Bengal Paving Co.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1273 (N.L.R.B. 1979)

BENGAL. PAVING CO.
Bengal Paving Co. and International Union of Operat-
ing Engineers, Local 370, AFL-CIO and General
Teamsters, Chauffeurs, Warehousemen and Helpers
Local No. 983 affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 19-CA 10421
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUItSDAI
On January 31, 1979, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
Pursant to the provisions of Section 3(d) of the Na-
tional Labor Relations Act, as amended, the National
Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Bengal Construction Company, hereinafter called
Construction, was formed in 1974. Shortly after its
formation, Construction signed a short-form compli-
ance agreement with the Charging Parties herein, In-
ternational Union of Operating Engineers, Local 370.
AFL-CIO, and General Teamsters, Chauffeurs,
Warehousemen and Helpers Local No. 983, herein
called Operating Engineers and Teamsters, respec-
tively, and with the Laborers. The Unions collectively
adopted the current and successive contracts with the
Idaho Branch, Inc., of The Associated General Con-
tractors of America, Inc. By its terms, the agreement
continued in full force and effect unless terminated.
The agreement also contained a union-security clause
pursuant to Section 8(f) of the Act.
Respondent Bengal Paving (herein also called Pav-
ing) was formed in March 19 78 ' by Gale Lim, opera-
tions manager of Construction, and Lynn Broadhead.
On March 30 Construction laid off its entire work
force due to weather conditions. On March 31, Re-
spondent and Construction entered into an agreement
whereby the latter agreed to sell Respondent 30 per-
cent of its assets. The next day, April 1, Respondent
began operations in Construction's old facility, while
Construction continued to operate from a new loca-
tion. On April 6, Respondent began hiring employees.
'All dates hereinafter are 1978 unless otherwise indicated
most of whom had been employed previously by
Construction.
The Administrative Law Judge found that Respon-
dent was a successor employer to Construction and
that the Unions represented a majority of Construc-
tion's employees prior to the formation of Respon-
dent. Additionally, the Administrative Law Judge
found that the complaint alleged and Respondent ad-
mitted that on April 20 the Unions made a demand
on Respondent to recognize and bargain with them as
the representative of its employees in the following
appropriate bargaining units:
(i) All employees of Construction who perform work
within the jurisdiction of the Operating Engineers
which has been traditionally or historicall, done by
Operating Engineers. excluding guards and supervisors
as defined in the Act.
(ii) All employees of Construction who perform work
within the jurisdiction of the Teamsters which has been
traditionally or historically done by Teamsters. exclud-
ing guards and supervisors as defined in the Act.
The Administrative Law Judge found that a major-
ity of Respondent's initial employee complement
were former employees of Construction, and thus, as
of the time Respondent began operations (on April
1). it was obligated upon request to bargain with the
Unions. Furthermore, the Administrative Law Judge
found that on April 20 a majority of Respondent's
employees were former employees of Construction.
Accordingly, the Administrative Law Judge con-
cluded that Respondent's refusal to recognize the bar-
gain with the Unions constituted a violation of Sec-
tion 8(a)(5) and (1) of the Act.
Respondent excepts to the Administrative Law
Judge's finding of a violation on grounds, inter alia,
that it did not admit and there is no proof that a
demand was made on April 20. Furthermore, Re-
spondent contends that there is no proof that the ma-
jority of its employees were former Construction em-
ployees. We find merit to these exceptions.
The complaint alleged, in pertinent part:
On or about April 20, 1978, the Engineers and
the Teamsters demanded that Respondent recog-
nize and bargain with them as the exclusive rep-
resentatives of the units [of Respondent's em-
ployees].
However, contrary to the Administrative Law
Judge's finding that Respondent admitted the de-
mand on April 20, the answer states in pertinent part:
Bengal Paving admits that the Engineers and
Teamsters have demanded that Respondent rec-
ognize and bargain with them as the exclusive
bargaining representative of the units described
in paragraph 6(c)(i). and 6(c)(ii).. [of the com-
245 NLRB No. 163
1271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint], and Bengal Paving further admits that it
has refused to recognize or bargain collectively
with said unions as the exclusive bargaining rep-
resentative for Bengal Paving's employees in the
units described in paragraph 6(c). of the com-
plaint, and the defendant [sic] denies each and
every other allegation contained therein.
There was no testimony stating the exact date of
the Unions' demand for recognition. However, Lynn
Broadhead, Respondent's major shareholder, testified
on Respondent's behalf that representatives of the
two Unions contacted him and his wife after Respon-
dent was formed. Ron Greene, business representa-
tive of the Operating Engineers, set up a meeting be-
tween himself and Broadhead and asked Broadhead
to sign an agreement. Broadhead's testimony makes
no specific mention of the time of that first meeting.
He testified that he thought the second meeting was
held in May. Gale Lim, Respondent's manager, also
testified for Respondent that he was present at both
meetings but that he could not definitely remember
when they were held. However, he stated that he
thought the meetings were held the last of April or
the first of May.
The General Counsel adduced no testimonial evi-
dence to support the allegation in the complaint that
a demand was made by the Unions on April 20. Ac-
cordingly, we find that the record does not establish a
demand for recognition as of that date. We further
find that the record does not establish that after April
20 a majority of Paving's employees were former em-
ployees of Construction. Thus, from the evidence it
appears that on April 22 Respondent had 13 opera-
tors and 6 drivers out of a total employee comple-
ment of 37. The record shows that on April 22, of the
13 operators, 7 were not former employees of Con-
struction, and, with respect to the drivers employed
on April 22, 3 were former employees of Construction
and 3 were not. Thus, it is clear from the evidence
that on April 22 a majority of Paving's employees
were not former employees of Construction in either
the Teamsters or the Operating Engineers unit.
Assuming that the demand for recognition was
made as the General Counsel contends at the end of
April or the beginning of May, the General Counsel
still has failed to establish that a majority of Respon-
dent's employees in the two bargaining units were
former employees of Bengal Construction Company.
Accordingly, we find that the General Counsel has
failed to establish that Respondent had an obligation
to bargain with the Unions and we shall therefore
dismiss the complaint in its entirety. 2
2 In view of our conclusion that the General Counsel failed to prove that a
demand was made at a time when a majority of Respondent's employees
were former employees of Bengal Construction, and in view of our ultimate
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
disposition of this case, we do not pass on any other issues raised by Respon-
dent's exceptions.
DECISION
SIATEMENI ()F THE CASE
JAMEiS S. JENSON, Administrative Law Judge: This case
was heard before me in Pocatello, Idaho, on October 24,
1978. The complaint, which issued on July 12, 1978, pursu-
ant to a charge and amended charge filed on May 24 and
July 10, 1978, respectively, alleges Respondent, as successor
to Bengal Construction Company, violated Section 8(a)(1)
and (5) of the Act by failing to recognize and bargain with
the Charging Unions as the authorized representatives of a
majority of its employees in units appropriate for collective
bargaining. Respondent acknowledges it has refused to bar-
gain with the named unions but contends it is not a succes-
sor to Bengal Construction Company nor that the Unions
represented a majority of its employees. All parties were
afforded full opportunity to appear, to introduce evidence,
to examine and cross-examine witnesses, to argue orally,
and to file briefs. Briefs have been filed by both the General
Counsel and Respondent and have been carefully consid-
ered.
Upon the entire record in the case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS ()F FACT
I. JURISDIC'TION
The parties stipulated that Respondent, an Idaho corpo-
ration, is engaged in the construction industry; that it com-
menced operations on or about April 1, 1978, and from that
period until October 24, 1978, purchased goods or services
from outside the State of Idaho of a value in excess of
$50,000. In accordance with the stipulation, I find that the
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. IIE LABOR OR(;ANIZAIIONS INVOLVE)
Respondent admits and I find that International Union
of Operating Engineers. Local 370, AFL-CIO. herein called
Operating Engineers, and General Teamsters, Chauffeurs,
Warehousemen and Helpers Local No. 983 affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called Team-
sters, are labor organizations within the meaning of Section
2(5) of the Act.
1272
BENGAL PAVING CO.
111. ISSUE
Whether or not Respondent is the successor-employer to
Bengal Construction Company.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Bengal Construction Company, herein called Construc-
tion, an Idaho corporation, was formed in 1974 by Gale
Lim and three other stockholders to engage in road con-
struction work, including grading, excavation, deep sewer
and water utility work, and paving.' On July 14, 1974, Lim,
on behalf of Construction, signed a short-form compliance
agreement with the Operating Engineers, Teamsters, and
Laborers Unions adopting the current contract and succes-
sive contracts between the Unions and the Idaho Branch,
Inc., of The Associated General Contractors of America,
Inc., herein called AGC. Article II of the compliance agree-
ment reads:
The Employer hereby acknowledges and confesses re-
ceipt of a true copy of said Agreement above men-
tioned, and agrees to abide by all modifications,
amendments and successive agreements thereto as may
be made by the signatory parties thereof and the appli-
cable trust agreements therein appurtenant.
Article VIII reads in pertinent part:
This agreement ... shall continue in effect during the
term of the agreement mentioned in Article I hereof,
and during the term of all successive agreements
thereto, provided that, in the event either party elects
to terminate this Agreement or modify the same . . .
notice of intention to terminate by certified mail [shall
be given] at least sixty (60) days previous to the anni-
versary date.
While the business representative for the Teamsters thought
opening letters had been sent to employers who were par-
ties by virtue of the compliance agreement, he was not the
individual responsible for sending them and had never seen
a copy of such a letter; nor did Lim, a Construction corpo-
rate official, testify to receipt of such a letter. As Lim testi-
fied that Construction has continued to abide by the terms
of the successive collective-bargaining agreements, includ-
ing the payment of wages and fringe benefits provided for
therein, I conclude and find that Construction, at all times
material herein, has operated under a collective-bargaining
agreement with the named unions, which agreement con-
tains a union-security clause pursuant to Section 8(f) of the
Act. I find further that the following units are appropriate
units within the meaning of Section 9(b) of the Act:
(i) All employees of Construction who perform work
within the jurisdiction of the Engineers which has been
Beginning in the spring of 1974, and for approximately 18 months, Con-
struction leased a "hot-mix" plant for use in asphalt paving. Since the expi-
ration of the "hot-mix" plant lease, it has either purchased "hot-mix" from a
competitor and applied it with its own employees and equipment or subcon-
tracted out the asphalt work. Lim testified that Construction possessed
trucks and paving machines used to do paving work.
traditionally or historically done by Operating Engi-
neers, excluding guards and supervisors as defined in
the Act.
(ii) All employees of Construction who perform work
within the jurisdiction of the Teamsters which has been
traditionally or historically done by Teamsters, exclud-
ing guards and supervisors as defined in the Act.
In March 1977, the ownership composition of Construc-
tion changed. Lim, who had been operations manager be-
fore, continued as a stockholder and became one of two
general managers. In early 1978 the Construction stock-
holders expressed a reluctance to expand the business, so
Lim, who was experienced in asphalt paving, contacted
Lynn Broadhead about forming a paving company. Broad-
head arranged the financing, and Bengal Paving Company,
the Respondent, was formed as an Idaho corporation with
Broadhead and his wife as officers and the only stockhold-
ers. Lim became the manager.'
On March 30, 1978, Construction laid off all its employ-
ees. At the time of the layoff. employees were given applica-
tions for employment with Respondent and were told to
return them to either their supervisors or the Construction
office. Respondent also advertised for help in local newspa-
pers. Rick Stinger, a Construction operator, testified with-
out contradiction that he was interviewed for a job with
Respondent by Lim, who told him that Respondent was
going to be nonunion and that he would like to have the
men withdraw from the Union.
At the time of the layoff, Construction had five construc-
tion jobs in process and "several little miscellaneous park-
ing lots" and driveways contracted for. The Surrey and Sy-
ringa Subdivision housing projects and a Federal low-
income housing project, all located in Pocatello, were for
site grading, water and sewer installation, curb and gutter
work, and asphalt paving. The Rock Creek Forest Service
job was a major grading and blasting job for the U.S. For-
est Service which included asphalt paving. Another major
job, the Tiehack Forest job, was for the construction of 19
miles of unpaved logging roads. Construction also had a
contract to crush rock for Bingham county, herein called
the Blackfoot crushing job.
On March 31, 1978, Respondent and Construction ex-
ecuted an agreement providing for Respondent to buy from
Construction, for $685,700, certain equipment, consisting of
about 30 percent of Construction's assets.3 The contract
also provided for Respondent's assumption of all of Con-
struction's work in process with the exception of the Black-
foot crushing job and the Tiehack Forest Service job.4
According to Lim, Respondent commenced operations
on April I out of the trailer located on Kraft Road in Poca-
tello, formerly occupied by, and purchased from, Construc-
2 Lim retained his interest in Construction.
3 Included in the list of equipment sold are two pavers. In addition to the
equipment purchased from Construction, Respondent has purchased ap-
proximately SI million worth of equipment from other sources, including a
"hot-mix" plant.
4 The agreement also excepted the asphalt paving on the Rock Creek For-
est Service job, but granted Respondent "a first right of refusal to do the
asphalt paving required ... at the same pnce as the lowest bid obtained from
any other qualified contractors." The record shows Respondent did the as-
phalt paving on that job.
1273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion.5 Construction's operations were moved to the storage
yard and offices of Cowboy Oil Co., in Pocatello, which is
owned in part by one of Construction's stockholders. As
noted above, Lim, who had been a general manager fr
Construction, because Respondent's manager. All five su-
pervisors hired by Respondent on April 6 had been em-
ployed by Construction at the end of March. Out of 10
operators hired on April 6, 8 had been employed by Con-
struction at the end of March. Of three drivers hired on
April 6, two had been laid off by Construction at the end of
March. Stinger testified that his first job with Respondent
was as a blade operator on the Surrey Subdivision, doing
the same job and using the same piece of equipment as
when he was employed by Construction,
The complaint alleges, Respondent admits, and the evi-
dence shows that on or about April 20, representatives of
both the Operating Engineers and Teamsters demanded
that Respondent recognize and bargain with them as the
representatives of all of Respondent's employees perform-
ing work within their respective trade jurisdictions, and that
recognition and bargaining were denied by Broadhead on
the ground that he did not believe the Unions represented
the employees. Broadhead testified that a similar demand
was also made in May and declined.
B. Contentions of the Parties
The General Counsel contends that Respondent is a suc-
cessor employer to Construction and that its refusal to rec-
ognize and bargain with the Operating Engineers and
Teamsters violates Section 8(a)(5) of the Act. The General
Counsel argues that "the determination of successorship
primarily focuses upon the degree of continuity between the
old and new employer's business enterprise. Factors affect-
ing this determination include (1) whether there is continu-
ity in the work force (the 'majority issue'); (2) whether there
is continuity in the employing industry; (3) whether there is
continuity in the appropriateness of the bargaining unit;
and (4) the impact of a hiatus in operation." In support of
his contention, the General Counsel points out that the ma-
jority of employees hired to fill the operators and drivers'
jobs were former Construction employees, and that a full
complement had been hired by April 22, the end of the
Respondent's third week of operation, which date coincided
with the initial demand for recognition. The continuity in
the identity of the employing industry and bargaining unit
criteria are met as evidenced by the fact that Respondent
began operations out of the same facility, purchased more
than $600,000 worth of equipment from Construction, and
employed former Construction employees who commenced
working for Respondent using the same equipment on the
same jobs and under the same supervision as at Construc-
tion. Lastly, the General Counsel points to the fact that
there was no significant hiatus between the cessation of
Construction's operations on March 30 and the resumption
by Respondent on April I.
I Respondent had applied for a building permiut for a location near Black-
foot, Idaho, approximately 25 miles from Pocatello, and contemplated mov-
ing the trailer to that location. The move was delayed because of a zoning
dispute, and at the time of the hearing in this matter, Respondent had not
yet moved into a permanent facility which had been constructed there.
Respondent contends that "it is not the successor of Con-
struction; that the unions have not established that they
represent a majority of Respondent's employees in their re-
spective units: that therefore, it has no duty to bargain with
the union, and thus has not committed any unfair labor
practices." Arguing that Respondent is a new business en-
tity created and owned by parties independent of Construc-
tion who wanted to go into the paving business and seized
the opportunity to purchased certain equipment from Con-
struction which Respondent could use in its business, Re-
spondent points out, inter alia, that Construction is still
doing the type of work it always desired to do; to wit, grad-
ing, excavation, and deep sewer and water utility work; in
the past Construction generally subcontracted paving work
to other paving companies; Construction did not desire or
have the funds to purchase a hot-mix plant that would
make it possible to become competitively involved in pav-
ing projects; Broadhead had no connection with Construc-
tion: the two businesses are operated out of separate loca-
tions; Lim left Construction because of its unwillingness to
expand its operations to include paving; while Respondent
purchased about 30 percent of Construction's assets, it also
acquired a substantial amount of equipment from other
sources, all of which was to be used in the paving business;
Construction laid off most of its employees in March be-
cause weather prevented work on its existing projects: Re-
spondent advertised for help in local newspapers and the
first employees hired initially went to work refurbishing
equipment; it continued hiring, acquired a hot-mix plant,
and by June 3 had a complement of 55 employees (includ-
ing laborers) which was sufficient to maintain its paving
operation, only 9 or 10 of whom had been former Construc-
tion employees; the agreement between Respondent and
Construction provides that Respondent had no obligation
to hire Construction employees; and a number of former
Construction employees hired by Respondent had worked
for various other construction companies in the area as they
were needed, and worked from a pool of available employ-
ees.
C. Discussion and Conclusions
"It is a settled principle that when employees have bar-
gained collectively with an employer and there occurs a
change of ownership not affecting the essential nature of
the enterprise, the successor employer must recognize the
incumbent union and deal with it as the bargaining repre-
sentative." Tom-A-Hawk Transit, Inc., v. N.L.R.B., 419
F.2d 1025, 1026-1027 (7th Cir. 1969), cited with approval
in N.L.R.B. v. William J. Burns, The International Detective
Agency, Inc., 406 U.S. 272, 281 (1972). Thus, in Burns, the
Supreme Court held that the Board properly required a
company that succeeded to a c, mpetitor's security service
contract to bargain with an incumbent union where the
bargaining unit continued to be "an appropriate one" and a
majority of the successor's employees had been represented
by the incumbent union when the competitor was perform-
ing the service contract. Further, although in Burns the bar-
gaining relationship between the predecessor employer and
the incumbent union emanated from a Board certification,
it is well established that a successor employer must bargain
1274
BENGAL PAVING CO.
with the representative of his employees regardless of
"whether such representative status [was] originally evi-
denced by a Board certification or by recognition and the
existence of a collective bargaining contract." Valleydale
Packers, Inc., of Bristol, 162 NLRB 1486, 1490-1491 (1967),
enfd. 402 F.2d 768 (5th Cir. 1968), cert. denied, 396 U.S.
825 (1969).
The two primary requirements for a finding of successor
status are continuity of the work force and a substantial
continuity of the employing industry. For there to be a con-
tinuity of the work force, the "successor" employer must
have hired a majority of his employees from the predecessor
employer. Burns, supra. This, of course, raises the question
as to when, while a new employer's work force is being
assembled, it is proper to determine whether the new em-
ployer is a successor. In Pacific Hide & Fur Depot, Inc., 223
NLRB 1029 (1976), enforcement denied 553 F.2d 609 (9th
Cir. 1977), the Board determined that majority status is to
be determined at the time a perfected demand for recogni-
tion arises. The Board has adhered to this position, and in
Pre-Engineered Building Products, Inc., 228 NLRB 841, fn.
1 (1977), stated:
As to Respondent's first contention, the evidence of the
subsequent increase in Respondent's work force is im-
material, as it is well established that the critical date
for determining the union's majority status is the date
on which the request for bargaining is received by the
employer. The Daneker Clock Company, Inc., 211
NLRB 719, 721 (1974), enfd. 516 F.2d 315 (4th Cir.
1975); C.G. Conn, Ltd., 197 NLRB 442 (1972). There-
fore, Respondent's bargaining obligation as the succes-
sor employer vested on or about December 17, 1975,
the date on which the Union first requested recognition
and bargaining. At that time, the Respondent's full
employee complement consisted of persons who previ-
ously had been employed by Flint and represented by
the Union. Respondent therefore has unlawfully re-
fused to recognize and bargain with the Union since
December 17, 1975. The possible later loss of the
Union's majority status is of no consequence in view of
Respondent's continuing unlawful refusal to bargain.
C.G. Conn, supra.
Thus, the Board's current position remains that the proper
time to determine majority status is the date the union de-
mands recognition and bargaining.
In determining whether there is a substantial continuity
of the employing industry, the Board looks at a number of
criteria such as whether there is a substantial continuity in
the same business operation; the new employer uses the
same plant; the same or substantially the same work force
is employed; the same jobs exist under the same working
conditions; the same supervisors are employed; the same
machinery, equipment, and methods of production are
used; and the same product is manufactured or the same
services offered. "Not all of these criteria need be present to
warrant a finding of continuation of the employment indus-
try. The finding is based on a totality of circumstances of
which whether the alleged successor took over a majority of
the predecessor's work force is perhaps the most impor-
tant." Border Steel Rolling Mills, Inc., 204 NLRB 814, 815
(1973). In Mondovi Foods Corporation, 235 NLRB 1080,
1082 (1978), the Board stated:
In cases involving the successorship issue, the
Board's key consideration is "whether it may reason-
ably be assumed that, as a result of transitional
changes, the employees' desires concerning unioniza-
tion [have] likely changed."' The Board considers a
variety of factors in determining whether the new em-
ployer has succeeded to the former employer's bar-
gaining obligation. Certainly a prime factor is whether
the purchaser has hired a sufficient number of former
employees of the seller to constitute a majority of the
employee complement of the appropriate unit.6 Once it
has been found that the purchaser has hired such a
majority, the Board considers such circumstances as
whether or not there has been a long hiatus in resum-
ing operations, a change in product line or market, or a
change of location or scale of operations.' Hiatus is a
significant factor because, as it lengthens, employees'
expectations of hire by the purchaser diminish. Change
of location may have a similar result in proportion to
the distance from the prior location. Changes in prod-
uct line or market can be indicative of a different type
of business (e.g., different or altered production ma-
chinery necessitating restraining and/or different
skills). However, a change in scale of operation must
be extreme before it will alter a finding of successor-
ship.'
Ranch-Way, Inc., 183 NLRB 1168. 1169(1970).
6See N.L.R.B. v. Burns, supra. Howard Johnson Co., Inc., v. Detroit
Local Joint Executive Board Hotel & Restaurant Employees & Banend-
ers International Union, AFL CIO, 417 U.S. 249 (1974): Spruce Up Cor-
poralion, 209 NLRB 194 (1974).
'See, e.g., Radiant Fashions. Inc., 202 NLRB 938, 941 (1973).
I See, e.g.. Ranch- Way, Inc., supra, in which respondent was found to
be a successor although it had purchased only I of the seller's 16 opera-
tions. The seller had a collective-bargaining agreement with the union
covenng 800 production and maintenance employees; respondent hired
18 of the seller's previous employees, a majority of the unit complement
for the operation which it purchased.
Here, as set forth above, Respondent commenced opera-
tions within a few days after Construction laid off its em-
ployees. In accordance with a written agreement it as-
sumed, with the exception of the Tiehack Forest and
Blackfoot crushing jobs, all of Construction's jobs in pro-
cess and contracted for, many of which entailed asphalt
paving. Respondent purchased 30 percent of the assets of
Construction, totaling more than $685,000, including trucks
and two pavers. Moreover, it appears that Respondent's
employees continued on the same jobs using the same
equipment and under the same supervisors as when on
Construction's payroll. From April I until October 24, the
date of the hearing, Respondent continued operating from
the same location Construction had utilized. Lim, who had
been operations manager for Construction, became man-
ager of Respondent, and all of the supervisors Respondent
hired on April 6 were former Construction employees or
supervisors Out of 10 operators hired on April 6, 8 were
former Construction employees, as were 2 of the 3 drivers
6 Brower, Hall, Hunziker. Robson. and Woodbndge. (See Resp. Exh. II.)
1275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired on that date.7 Further, all three concrete workers
hired on April 6, Burnside, Roper, and Stump, had been
employed by Construction. It is undisputed that on April
20 the Operating Engineers and Teamsters demanded and
were refused recognition as the collective-bargaining repre-
sentatives of the employees in the units they had repre-
sented at Construction, and it is clear from the evidence
that on that date they represented a majority of the Re-
spondent's employees in their respective craft units.'
Applying the above principles to the facts of the instant
case, I conclude and find that Respondent is the successor
to Construction's obligation to bargain with the Operating
Engineers and Teamsters, and that its failure and refusal to
recognize and bargain with those unions as the authorized
representatives of a majority of its employees in the units
herein found appropriate for collective bargaining is viola-
tive of Section 8(a)(5) and () of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section IV,
above, occurring in connection with the operations of Re-
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
I Former Construction operators hired on April 6 were Aslett (who termi-
nated April 15), Hendricks, Klein, Morrow, Stanger, Stinger, Stites, and
Truchot. Construction drivers hired on April 6 were Keller and Samuelson.
(See Reap. Exh. I I.)
'Of 12 operators and mechanics employed on April 20, 8 were former
Construction employees: Hansen, Hendricks, Klein, Morrow, Stanger,
Stinger, Stites, and Truchot. Archibald, Bailey, Robertson, and Smith were
not. Aslett, a Construction employee hired on April 6, terminated on April
15. (See Reap. Exh. II.) Of six drivers employed on April 20, five were
former Construction employees: Keller, Kirwan, Larsen, Lien, and Samuel-
son. (While Resp. Exh. II does not show Larsen and Lien as having been
formerly employed by Construction, Lim testified at pages 75 and 76 of the
transcript that they had been. Resp. Exh. 11 shows they were both hired on
April 10.)
2. The Operating Engineers and Teamsters are labor or-
ganizations within the meaning of Section 2(5) of the Act.
3. The following units constitute units appropriate for
purposes of collective bargaining within the meaning of
Section 9 of the Act.
(i) All employees of Respondent performing work
within the jurisdiction of the Operating Engineers
which has been historically and traditionally per-
formed by Operating Engineers, excluding guards and
supervisors as defined in the Act.
(ii) All employees of Respondent performing work
within the jurisdiction of the Teamsters which has been
historically and traditionally performed by Teamsters,
excluding guards and supervisors as defined in the Act.
4. International Union of Operating Engineers, Local
370, AFL-CIO, has been and is the exclusive representative
of all employees in the unit set forth in 3(i) above, an appro-
priate unit for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. General Teamsters, Chauffeurs, Warehousemen and
Helpers Local No. 983 affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, has been and is the exclusive representative
of all employees in the unit set forth in 3(ii) above, an ap-
propriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
6. By refusing on or about April 20, 1978, and at all
times thereafter, to recognize and bargain collectively with
the above-named labor organizations as the exclusive repre-
sentatives of all its employees in the respective appropriate
units, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) and
(I) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and () of the Act, I shall recommend that it
cease and desist therefrom and, upon request, bargain col-
lectively with the Unions as the exclusive representative of
all employees in the respective appropriate units.
IRecommended Order omitted from publication.]
1276