Cencom Of Missouri

National Labor Relations Board - Board Decisions

Nov 24, 1986

282 N.L.R.B. 253 (N.L.R.B. 1986)

CENCOM OF MISSOURI 253
Cencom of Missouri and Communications Workers
of America, AFL-CIO. Case 14-CA-17810
24 November 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 30 September 1985 Administrative Law
Judge Elbert D. Gadsden issued the attached deci-
sion . The Respondent and the General Counsel
filed exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended Order
as modified.
1 The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Respondent contends that with its takeover it implemented dra-
matic changes in the bargaining unit employees ' terms and conditions of
employment to militate against a finding of substantial continuity in the
identity of the employing enterprise from Warner Amex to the Respond-
ent We agree with the Respondent that the judge failed to identify cer-
tain changes instituted with the transfer of business operations Thus, in
addition to changes outlined in the judge's decision , the record reveals
that the Respondent also eliminated a stock purchase plan, grievance pro-
cedure, premium pay policy, and long- and short-term disability cover-
age Further , the Respondent modified its predecessor 's "on-call" proce-
dures, methods of computing overtime and leave accrual , holiday pay
practices , probationary policies, and employee medical plan contributions
These changes in the working conditions (which the Respondent was
free , of course , to make), however, do not basically affect the continu-
ation of the employing enterprise Fabstee! Co of Louisiana, 231 NLRB
372, 377 (1977), enfd 587 F 2d 689 (5th Cir 1979) See also NLRB v
Burns Security Services, 406 U S 272, 294, 295 (1972)
Member Johansen finds that these changes concern matters that are not
relevant to the continuity-of-enterprise inquiry under Burns Instead, he
finds that the Respondent merely exercised its right to make changes in
the employees ' initial terms and conditions of employment By setting
employees ' initial terms and conditions of employment , however, the Re-
spondent did not affect the nature of the employing enterprise
8 On 12 May 1986 the Respondent filed a motion to reopen the record
and a supporting brief The General Counsel filed a response in opposi-
tion to the motion on 27 May 1986 The Respondent contends that its
operations have changed substantially since the judge rendered his deci-
sion in this case . We find that the changes outlined in the Respondent's
motion occurred well after the time relevant to the determination of
successorship status The record establishes that on 3 and 11 January
1985 the Union requested that the Respondent recognize and bargain
with it on behalf of former Warner Amex unit employees The record
also shows that prior to the requests the Respondent commenced oper-
ations with a work force consisting entirely of its predecessor's employ-
ees We therefore find the Respondent 's duty to recognize and bargain
with the Union began on 3 January 1985 See Redok Enterprises, 277
NLRB 1010 fn 3 (1985) The changes mentioned in the Respondent's
motion , having occurred after the relevant date, do not affect our conclu-
sion that the Respondent is a successor employer to Warner Amex See
Hudson River Aggregates , 246 NLRB 192 fn . 3 (1979), Pre-Engineered
Building Products , 228 NLRB 841 fn 1 (1977) Accordingly , as the Re-
The General Counsel excepts to the judge's de-
scription of the appropriate bargaining unit. We
find merit in this exception.
As explained more fully in the judge's decision,
on 19 January 1984 the Union was certified as the
collective-bargaining representative of Warner
Amex Cable Communications' (Warner) employees
in the following unit:
Demand Maintenance Technician, Preventive
Maintenance Technician, Permit Processor, In-
staller, Pre-wire Installer, Warehouser, Lead
Warehouser, Quality Control Technician,
Lead Quality Control Technician, Electronics
Quality Control Technician, Lead Pre-wire In-
staller, Construction Lineman, Bench Techni-
cian , Lead Tracker, Qube Activation Techni-
cian, Non-pay Technician, Converter Repair,
and Dispatcher, EXCLUDING all office cleri-
cal and professional employees, temporary em-
ployees, guards, and supervisors as defined in
the Act and all other employees.
Shortly after Warner and the Union executed a
1-year contract, the Respondent purchased Warner
and its assets. When the Respondent commenced
operations on 1 January 1985, its work force con-
sisted entirely of former Warner employees. Al-
though the Respondent's employees continued to
perform all the work previously performed by
Warner's employees, certain job functions were
consolidated as part of an effort to streamline oper-
ations. The Respondent essentially reclassified the
unit employees' modified functions into the follow-
ing categories: locator/utilities coordinator,
installer/technician, pole line maintenance,3 and
super technician. This reclassification did not re-
quire extensive cross-training of employees be-
cause, in most instances, the newly classified em-
ployee had been called on at times in the past to
perform the work that was now added to his or
her formal classification.
The judge concluded that the proper description
of the appropriate unit remained that which was
set forth in the Board's original certification. We
agree with the General Counsel that a unit descrip-
tion that reflects the new job titles assigned by the
Respondent to the unit employees' work is appro-
priate. In addition to finding that the unit descrip-
tion recommended by the judge is obsolete, we
spondent seeks to present evidence that if adduced and credited, would
not require a different result, we deny the Respondent 's motion In doing
so, however , we note that the affirmative bargaining order rendered in
this decision applies only with respect to unit employees employed by the
Respondent at the operations based in Olivette and Fenton , Missouri
8 In sec III,(c), of his decision , the judge inadvertently referred to em-
ployee Darrell Best 's new job title as "pull line maintenance " The cor-
rect title for Best's job is "pole line maintenance "
282 NLRB No. 37
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
note that, although ,the General Counsel first pro-
posed modified unit language in the complaint
issued 7 March 1985, the Respondent has at no
time objected to the General Counsel's proposed
language or questioned its accuracy. Further, the
revised job titles are consistent with record evi-
dence offered by the Respondent during the hear-
ing. Finally, the amended unit description would
encompass all employees at the Respondent's Oli-
vette and Fenton, Missouri facilities,who perform
the same unit work previously performed by War-
ner's unit employees. Accordingly, we shall revise
the unit description as follows:4
All field technician employees including
Locator/Utilities Coordinator, Installer/Tech-
nician, Pole Line Maintenance, and Super
Technician, EXCLUDING all office clerical
and professional employees, temporary em-
ployees, guards, and supervisors as defined in
the Act and all other employees.
ORDER
The National Labor Relations Board adopts the
recommended Order of the 'administrative law
judge as modified below and orders that the Re-
spondent, Cencom of Missouri, St. Louis, Missouri,
its officers, agents , successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Refusing to recognize and bargain with
Charging Party Communications Workers of
America, AFL-CIO as the exclusive collective-bar-
gaining representative of the employees in the Oli-
vette and Fenton, Missouri facilities in the appro-
priate bargaining unit described below, regarding
wages, hours,, working conditions, and other terms
and conditions of employment:
All field technician employees including
Locator/Utilities Coordinator, Installer/Tech-
nician, Pole Line Maintenance, and Super
Technician, EXCLUDING all office clerical
and professional' employees, temporary em-
ployees, guards, and supervisors as defined in
the Act and all other employees."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT fail or refuse to recognize and
bargain with Communications Workers of Amer-
ica, AFL-CIO as the exclusive collective-bargain-
ing representative of the employees in the Olivette
and Fenton, Missouri facilities in the appropriate
unit described below regarding wages, hours,
working conditions, and other terms and conditions
of employment:
All field technician employees including
Locator/Utilities Coordinator, Installer/Tech-
nician, Pole Line Maintenance, and Super
Technician, EXCLUDING all office clerical
and professional employees, temporary em-
ployees, guards, and supervisors as defined in
the Act and all other employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and, on request, bargain
with the Union as the collective-bargaining repre-
sentative of our employees in the unit described
above with respect to wages, hours, and other
terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding
in a signed agreement.
CENCOM OF MISSOURI
4 We also amend the judge's Conclusion of Law 4 to incorporate the
above-revised unit description.
Sharon G. Birenbaum, Esq., and Robert S. Seigel Esq., for
the General Counsel.
Ronald Kreismann, Esq. (Finley, Kumble, Wagner, Hein,
Underberg, Manley & Casey), of New York, New
York, for the Respondent.
CENCOM OF MISSOURI 255
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN , Administrative Law Judge. A
charge and an amended charge of unfair labor practices
were filed on 21 January and 6 March 1985 , respectively,
by Communications Workers of America, AFL-CIO
(the Union or Charging Party) against Cencom of Mis-
souri (the Respondent). The Regional Director for
Region 14, on behalf of the General Counsel , issued a
complaint against the Respondent on ' 7 March 1985. `
The complaint alleges that as of i January 1985 the
Respondent, Cencom, became the successor of Warner
Amex Cable Communications of St . Louis, Missouri; that
since that date ( 1 January 1985) the Respondent has em-
ployed unit employees of predecessor Warner Amex
who at the time were represented by the Union, which
at all times since 1 January 1985 has been the exclusive
representative of the unit employees for purposes of col-
lective bargaining with respect to rates of, pay, wages,
hours, and other terms and conditions of employment;
that on II January 1985 , the Union orally requested the
Respondent to recognize and bargain with it on behalf of
the unit employees , which request the Union renewed
during a meeting with , the Respondent on 11 January
1985; and that since the date of those requests , the Re-
spondent has failed and refused to recognize and bargain
with the Union, in violation of Section 8(a)(1) and (5) of
the Act.
The Respondent filed an answer on 28 March 1985,
denying that it has engaged in any unfair labor practices
as set forth in the complaint.
A hearing in the above matter was ' held before me in
St. Louis, Missouri, on 22 May 1985 . Briefs have been
received from the General Counsel and the Respondent,
respectively, which have been carefully considered.
On the entire record , including my observation of the
demeanor of the witnesses , and my consideration of the
briefs filed by the General Counsel and the Respondent,
respectively, I make the following
FINDINGS OF FACT
1. JURISDICTION
Warner Amex Cable Communications of St. Louis,
Missouri (Warner Amex ) was, until 31 December 1984, a
Missouri corporation pursuant to the laws of the State of
Missouri . As such, Warner Amex maintained a principal
place of business at 9358 Deilman Industrial Drive, St.
]Louis, Missouri (the St . Louis facility), where it engaged
in the operation of'cable television systems in St. Louis
County.
During the 12-month period prior, to 31 December
1984, Warner Amex, in, the course and conduct of its
business operations, purchased and received at its St.
Louis facility products , goods, and materials valued in
excess of $50,000 directly from points located outside the
State of Missouri.
The complaint alleges, the parties stipulated , and I find
that Warner Amex Cable Communications of St . Louis,
Missouri , was an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
'The' Respondent;Cencom Cable Associates, Inc., at all
times material , has been jointly owned by copartners
Robert A . Brooks and James C. Allen, doing business
under the name of Cencom of Missouri, a limited part-
nership . The Respondent has maintained its principal
business offices at 14500 South Outer Forty Road, Ches-
terfield , Missouri (the Chesterfield business), at 9358
Deilman Industrial Drive , St. Louis, Missouri (the St.
Louis facility), and at a facility in Fenton, Missouri. The
Respondent is engaged in the operation of the cable tele-
vision systems in St . Louis County.
Based on a projection of the Respondent's operations
since 1 January 1985, when the Respondent commenced
operations , the Respondent , in the course and conduct of
its business operations, will annually purchase and re-
ceive at its St. Louis , Missouri facility products , goods,
and materials valued in excess , of $50,000' directly from
points located outside the ` State of Missouri.
The complaint alleges, the answer admits, and I fmd
that the Respondent is now ,. and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The undisputed and credited testimony of William R.
Harwell, administrative assistant to the vice president of
Communications Workers of America, AFL-CIO (the
Union), established that the Union represents employees,
negotiates contracts, and participates in grievance and ar-
bitration procedures with respect to wages , benefits, and
conditions of employment . Employees hold membership
in the Union and participate in the Union's local' meet-
ings.
Based on the foregoing uncontroverted evidence, I
find that Communications Workers of America,, AFL-
CIO is, and has been at all times material; a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
About 1980,Warner Amex commenced installing and
operating a cable television system pursuant to franchises
in approximately 24 municipalities in St . Louis County.
On 19 January 1984 the Union was certified as the exclu-
sive representative of all employees of Warner Amex in
the unit described as follows:
Demand Maintenance Technician, Preventive Main-
tenance Technician , Permit Processor, Installer,
Pre-wire Installer Warehouser, Lead Warehouser,
Quality Control Technician, Lead Quality Control
Technician, Electronics Quality Control Technician,
Lead Pre-wire Installer, Construction Lineman,
Bench Technician, Lead Tracker, Qube Activation
Technician, Non-pay Technician, Converter Repair,
and Dispatcher EXCLUDING all office clerical
and professional employees , temporary employees,
guards, and supervisors as defined in the Act and all
other employees.
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warner Amex entered into .an agreement for the pur-
chase of all its assets by the designee Respondent on 22
October 1984.
The record and undisputed testimony show that
Warner Amex commenced negotiating with the Union in
March 1984, and the parties reached an agreement on a
contract for 1 year, which was ratified by the Union in
August 1984, and executed by the parties 29 November
1984.
The record also shows that on 22 October 1984
Warner Amex entered into an agreement by which the
Respondent, as designee of Cencom Cable Associates,
Inc., agreed to purchase all the assets of Warner Amex,
providing Warner Amex could transfer the franchises
under which 85 percent of the subscribers of Warner
Amex were being serviced. (G.C. Exh. 6.) During the
process of obtaining the franchises from the several mu-
nicipalities, the Respondent submitted an executive sum-
mary, which stated, in part, that the Respondent "has
contractually agreed with Warner Amex to `step into its
shoes' and make no operational changes" or modifica-
tions in the Warner Amex franchises relevant to the op-
eration of the cable system Warner services, including
the Qube services. (G.C. Exh. 3.)
About 14 December 1984, Warner Amex (David M.
Mintzes, vice president of industrial relations for Warner
Amex) telephonically and in writing notified the Union
that the sale of Warner Amex would be consumated on
28 December 1984, on which date Warner Amex will
cease to exist as a business title; that in accordance with
the existing collective-bargaining agreement between
Warner Amex and the Union, Mintzes had given notice
of the existence of the collective-bargaining agreement to
the purchasing Respondent; that during the week of 17
December, all bargaining unit employees will be notified
of their termination, at which time they will also be
given applications to apply for employment with the Re-
spondent, which he suggested the Union urge the em-
ployees to complete and submit to the Respondent imme-
diately. Mintzes also delivered a copy of the collective-
bargaining agreement between Warner Amex and the
Union to the Respondent's attorney on 30 November
1984. Warner Amex was in fact sold to Respondent
Cencom of Missouri about 28 December 1984, and busi-
ness operations and cable service were not interrupted by
the sale and transfer.'
B. Respondent Continued the Cable Television Service
for Warner Amex
The Respondent hired 70 out of 100 (70 percent) of
Warner Amex's employees, and 30 out of 42 (approxi-
mately 71 percent) of Warner Amex' s bargaining unit
employees, and commenced business operations about 1
January 1985. Consequently, on the latter date, the Re-
spondent's entire work force consisted of former employ-
ees of Warner Amex.
After returning from 2 weeks' vacation, Communica-
tions Workers of America (CWA) Representative Wil-
liam R. Harwell called the Respondent's co-owner and
partner, James Allen, on 3 January 1985, and informed
him that the CWA Union represented employees of the
Respondent. Allen expressed doubt that CWA represent-
ed the employees and Harwell asserted that he did repre-
sent the employees and requested Allen to meet with
him 11 January 1985 for further discussion of the matter.
Allen agreed to meet Representative Harwell on the date
suggested.
The uncontroverted testimony of Harwell shows that
he and George Bair of CWA met in the office of Allen,
with Allen and another representative of the Respondent
on 11 January 1985. During the meeting Harwell re-
quested the Respondent to negotiate with them as the
representative of its employees in the collective-bargain-
ing unit, but the Respondent refused to recognize and
bargain with the Union. There was no further contact
between the Respondent and the Union after the 11 Jan-
uary meeting and before the charge filed by the Union
21 January 1985.
C. Is the Respondent the Successor of Warner Amex
The Respondent contends its refusal to recognize ' and
bargain with the CWA is not in violation of Section
8(a)(1) and (5) of the'Act because its operational struc-
ture and business practices are not substantially the same
as those of Warner Amex so as to render the Respondent
as successor employer to Warner Amex.
In support of its allegation that the Respondent is the
successor of Warner Amex, the General Counsel present-
ed witnesses who described their job functions and titles
for Warner Amex as compared with their job functions
for the Respondent as follows:
Job Title and Job at Respondent
Function-Warner
Amex
Dennis McNew
(1) General Essentially the same work,
Warehouse duties except not consistently on
between 10 December call with a beeper. Works
1980 and December more on microwave.
1984
(2) Installer-
upgrading and
downgrading
channels.
(3) Demand Work is performed in the
Maintenance same areas plus BUC area 8.
Technician (DMT)-
troubleshooter to
correct problems on
feeders. On call to
perform work which
sometimes overlapped
with installer work.
' The above facts are not disputed and are not in conflict in the
record
CENCOM OF MISSOURI 257
(4) Preventive
Maintenance
Technician (PMT)-
balancing or adjusting
levels on amplifiers,
sweeping and splicing
cable on telephone
polls-mostly
performed on the
trunk and amplifiers.
David DeSutter
(1) Warehouseman
Works under two immediate from what they performed for Warner Amex. However,
supervisors he worked he pointed out, the same jobs existed and performed at
under at Warner Amex Warner Amex exist and are now performed at the Re-
spondent, even though a particular job may now be per-
formed by a different former employee of Warner Amex.
David DeSutter worked for Warner Amex as a ware-
houseman, installer, and a demand maintenance techni-
Salary-the same ; Hours-
the same ; Tools-the same;
Benefits-lost retirement,
dental and educational
assistance with Respondent
Essentially the same work
with no additional training.
Uses same tools, equipment
and truck. Same work hours
and started with same
salary.
(2) Installer
(3) Demand
Maintenance
Technician (DMT)
Uses the same:
(a) Tools
(b) Truck, and works the same hours under the
same supervisor
Several senior installers had to have additional training
to perform a little more of the service work.
John Aubuckon
(1) Pre-wire installer Work is essentially the
same. Uses the same tools.
Earns the same salary, uses
the same truck, and works
the same hours.
(2) Installer
Tools-screwdrivers,
crimpers, wire plyers,
hammers , power drill,
ladders, safety
equipment, climbing
gear, safety belts.
David Branson
Tracker and Quality Control Technician
Employee Dennis McNew who worked as a ware-
houseman and installer for Warner Amex, was hired by
the Respondent as a supertechnician, which is described
as the same function as a preventive maintenance techni-
cian at Warner Amex. He further testified that some bar-
gaining unit employees' positions were changed when
they were hired by the Respondent. Some position
changes resulted from a promotion of the employee, like
Randy Webb was previously a dispatcher with Warner
Amex, but worked as an installer for the Respondent
until about late May 1985 . He said some other employees
perform different job functions with the Respondent
clan (DMT). Although he said some senior installers had
to have additional training to perform a little more of the
service work for the Respondent, he does not perform
any job tasks for the Respondent that he did not perform
for Warner Amex.
Essentially, the undisputed and credited testimony of
McNew, DeSutter, Aubuchon, and Branson appears to
be corroborative of one another, in the sense that some
installers for Warner Amex remained installers for the
Respondent, performing the same work; that some em-
ployees who performed demand maintenance technician
work (which included performing some installer and
some preventive maintenance technician work) may be
performing one or the other job function, or both, under
the same or a different job title with the Respondent; and
that some job functions were consolidated by the Re-
spondent and performed by an employee in one or a
combination of the job specialties, which existed at
Warner Amex, under the same or a different job title at
the Respondent.
Linda Skala, presently director of human resources-
handling payroll and employee benefits for the Respond-
ent-formerly worked as assistant secretary and office
manager-supervisor for Warner Amex. In her testimony
she described the comparative job functions and titles of
the employees when they worked for Warner Amex, as
now compared to their employment with the Respond-
ent, as follows:
For Warner Amex
1. R. Beck-Utilities
Coordinator,
processes permits
2. Randy Webb-
Dispatcher, dispatches
service calls
3. Darrel Best-
Quality Control
Technician, inspects
construction
4. James Berry-
Demand Maintenance
Technician, runs
service calls
5. Donald Brendel-
Maintenance
Technician, pull
transfers and pre-wire
6. Dale Dennis-
Construction Service
Coordinator, handles
customer complaints
is the office
For the Respondent
Locator Utilities
Coordinator no permit
processing
Installer Technician,
dispatching and performing
installations
Pull Line Maintenance,
performs pull transfers and
moves cable
Installer Technician, service
calls and installations
Installer Technician,
servicing calls and
performing installations
Installer Technician,
performing installations
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. David DeSutter- Installer Technician,
Demand Maintenance servicing calls and
Technician , service performing installations
calls
8. Steven Marshall- Installer Technician
Quality Control
Inspects construction
9. Dennis McNew- Super Technician, over
Preventive assistant technicians on call
Maintenance on alternate shifts
Technician, trunk line,
cable and feeder work
10. Dean Muchnick- Installer Technician
Demand Maintenance
Technician
11. Eric Rives- Installer Technician
Installer Technician
12. Charles
Hampton-Installer
Technician
Not an installer
13. DeBret Kroeges-
Demand Maintenance
Technician
Now Installer
Technician
14. John Aubuchon- Resigned
Installer Technician
15. Harold Martin- Was Installer Technician
Preventive but has since resigned
Maintenance
Technician
16. Michael Evans- Installer Technician
Preventive
Maintenance
Technician
17. Michelle Gold- Was Installer Technician
Installer Technician
Warner Amex Positions for Respondent
Employed Area
Maintenance
Supervisors
a. Bill Wolf- Now Super Technician
Supervisor
b. Bill Kuekler-Area Dispatcher, assistant head,
Maintenance and technician
Supervisor
c. John Dotson- Super Technician
Supervisor
All maintenance supervisors ' jobs were abolished
under Respondent and all technicians now report to Ev-
erett Burrows . Pull line maintenance employees now
report to Bill Gast, instead of to Bob Shemrock. The
drafter previously reported to Schemrock now reports to
Dave Miller , engineering service manager.
Responsibilities of the head technician are now com-
bined with the video technician under the supervision of
the dispatcher.
The location of the engineering manager has been di-
vided between Deilman Industrial Drive Building and
the Fenton warehouse; and Bill Wolf has been moved
from 9334 into the next building, the north location, so
that the demand maintenance technicians and the preven-
tive maintenance technicians can report to him.
Employees who were only installers or demand main-
tenance technicians had to be trained in each other's job
functions on the job over a period of 2 to 3 weeks.
Director Skala further explained that the demand
maintenance technician position has been consolidated
with the installer technician to operate at a lower staffing
level, and render quality service in a shorter period of
time to the customers . She said such consolidation of po-
sitions eliminated some positions maintained by Warner
Amex, which accounts for the reason the Respondent
did not employ 12 of Warner Amex's 42 bargaining unit
employees.
Analysis and Conclusions
Whether the Respondent failed and refused to bargain
with the Union in violation of Section 8(a)(1) and (5) of
the Act, as alleged , depends on a determination of the
following subordinate factual question : Are the Respond-
ent's organizational and operational structure and busi-
ness practices substantially the same as those of Warner
Amex, so as to constitute the Respondent a successor
employer to Warner Amex and obligating it to bargain
with the Union of the former unit employees of Warner
Amex?
The Board has held , with court approval, that when
all or a part of a business is sold the purchaser of the
business is a legal successor to the predecessor business
entity and has inherited the obligation to recognize and
bargain with a union that represents the employees of the
predecessor . Indianapolis Mack Sales, 272 NLRB 690
(1984); Jeffries Lithograph Co., 265 NLRB 1499, 1503
(1982), enfd . 752 F .2d 459 (9th Cir . 1985); NLRB v.
Burns Security Services , 406 U .S. 272 (1972).
The Board has also held in Cruse Motors, 105 NLRB
242, 247 (1953).
Where the enterprise remains essentially the same,
the obligation to bargain of a prior employer de-
volves upon his successor in title . . . . Where,
however, the nature or extent of the employing en-
terprise, or the work of the employees, is substan-
tially changed , the transfer of a part, or even all, of
the physical assets does not carry with it the duty
of the former owner to continue bargaining with
the former exclusive representative.
However, in view of the multiple and varied situations
that may accompany a change in the employing enter-
prise, the Board has long established the criteria for de-
termining whether there is substantial evidence of the
following aspects of the purchasing enterprise as follows:
(1) continuity in the same business operations ; (2) use of
the same plant; (3) employs the same or substantially the
same work force; (4) the same jobs exist under the same
working conditions; (5) employs the same supervisors;
(6) uses the same machinery , equipment, and methods of
production ; and (7) manufactures the same product or
offers the same services . Aircraft Magnesium , 265 NLRB
1344, 1345, supra.
CENCOM OF MISSOURI
Applying these criteria to the Respondent's operations,
the credited evidence demonstrates:
1. The Respondent, as was Warner Amex, is engaged
in the operation and delivery of cable television systems.
There was no hiatus in the same television systems busi-
ness operations prior or subsequent to the transfer of
ownership from Warner Amex to the Respondent. I,
therefore, conclude and find that there was substantial
continuity in the same business operations by the Re-
spondent.
2. Although the Respondent presented uncontroverted
testimony that for convenience the offices of some super-
visors were moved from one building to another building
that was also previously occupied by Warner Amex, the
evidence substantially established that except for its of-
fices located at 14500 South Outer Forty Road, Chester-
field, Missouri, the Respondent carries on its total busi-
ness operations in the same building facilities (9358 Dell-
man Industrial Drive, and in Fenton, Missouri) as did
Warner Amex; and that only the reporting location of a
few unit employees was changed to another of the same
facilities used by Warner Amex. Under these circum-
stances, contrary to the Respondent, I find that the evi-
dence supports the conclusion that the Respondent occu-
pies and uses essentially the same business facilities, or
plant, that Warner Amex occupied and used.
. Since it has been established by the uncontroverted
evidence that the Respondent employed 30 out of 42 bar-
gaining unit employees and 70 out of 100 nonbargaining
unit employees who were previously employed by
Warner Amex, I find that the Respondent has employed
substantially the same work force that was employed by
Warner Amex.
4. In addressing the question whether the same jobs
exist under the same working conditions at the Respond-
ent, it is first noted that the General Counsel presented
four employee witnesses who had actually performed
work for Warner Amex and are now actually performing
work for the Respondent. Linda Skala previously
worked as office manager-supervisor for Warner Amex,
and now works as director of human resources for the
Respondent. Ms. Skala was the only witness to testify on
the Respondent's behalf regarding job titles and job func-
tions at Warner Amex, and now at the Respondent. In
analyzing Director Skala's testimonial account against
the testimonial account of McNew, DeSutter, Aubuchon,
and Branson, I find that although some specific job func-
tions have been consolidated with one or more other job
functions, all the work previously performed by the
work force of Warner Amex is still performed by the
work force of the Respondent. The work performed at
Warner Amex's and the Respondent's operations includes
installing cable in homes, apartments, or other buildings
of customers, and preparing and repairing cable lines and
equipment, as well.
Warner Amex classified its technicians as preventive
maintenance technicians (PMT), demand maintenance
technicians (DMT), and installers. The Respondent clas-
sified the technicians as supertechnicians and installer
technicians. Employer witnesses, and to some extent,
Skala, testified that Warner Amex's PMT worked pri-
marily on main trunk lines of the system. They could,
259
and sometimes did, perform the work of DMTs and in-
stallers. Because they were trained to prevent major
problems in the system, they were the most skilled tech-
nicians. DMT worked primarily on feeder lines that ex-
tended from the main trunk to the customer's building
Installers worked primarily on the receiving equipment
in the customer's building but they could, and sometimes
did, perform installer work. On occasion, DMT per-
formed PMT and installer's work. The Respondent ad-
mitted its system technicians perform the same job func-
tion that Warner Amex's PMTs performed The record
shows the Respondent's installer technicians perform the
same work the DMTs previously performed. The undis-
puted and credited testimony of the employee witnesses
also established that they work the same hours, receive
essentially the same salary, and have essentially the same
benefits, less retirement, dental, and educational assist-
ance that they enjoyed at Warner Amex.2
The credited evidence shows that some job functions
(mostly installer work) have been consolidated with
other job functions by the Respondent, and that some
new performing employees had to undergo 2 to 3 weeks
on-the-job training. It is noted, however, that most other
employees did not require any additional training. As
such consolidated job functions were generally given an-
other title, and both or all such job functions may have
been previously performed by the employee to whom
the new title was assigned, a few employees may not
have previously performed both functions, although the
record shows that a majority of the employees had pre-
viously performed and are now performing installer
work. The only changes the Respondent implemented in
its operations are: expanding its cable television system
services into a wider geographical area, and being able
to perform a few more jobs with fewer employees as a
result of consolidating some job functions with other job
functions, and changing the supervisory assignments of
some supervisors who previously worked for Warner
Amex. All job functions are otherwise performed under
substantially the same conditions, with essentially the
same work force.
5. The evidence is clear that the Respondent employed
all the supervisors who were formerly employed in man-
agement at Warner Amex. Some of such supervisory
persons are Bob Shemrock, William (Bill) Gast, Jeffrey
Clark, Bill Kuelker, and Everett Burrows. The undis-
I I find little actual conflict in the accounts of the unit-employee wit-
nesses as compared with witness Skala However, to the extent that their
accounts differ, I credit the unit employee witnesses over Director
Skala's account because I was persuaded by the contents of their testimo-
ny and their demeanor that they know more about what jobs were and
are now actually performed by themselves and other workers, have ob-
served or worked with fellow employees performing other job functions
According to Director Skala, nearly all workmen have performed or are
now performing installer technician work I was also persuaded by the
demeanoir of the unit employee witnesses that they were testifying accu-
rately and truthfully , while I was persuaded Director Skala was less ac-
curate about the actual job functions of some employees, as she continued
to refer to her notes during her testimony Additionally, because the Re-
spondent did not produce any employee witnesses who actually perform
the principal work functions of the business, or supervisors of such work-
men, I find Director Skala's uncorroborated account somewhat self-serv-
ing and not convincing, that most of the job functions and the superviso-
ry positions were substantially changed
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
puted and credited testimony of four employee witnesses,
corroborated in part by Director Skala, established the
following:
a. While employed at Warner Amex, Preventive
Maintenance Technicians (PMT's), demand Mainte-
nance Technicians (DMT's), and installers, reported
to Area Maintenance supervisors (AMS's) and
AMS's reported directly to Everett Burrows, who
was the ultimate. supervisor of all technicians. After
Respondent abolished the AMA's positions, Bur-
rows now continues to supervise all technicians for
Respondent, including McNew and DeSutter.
b. Frank Webb was general manager for Warner
Amex and was also general manager for Respond-
ent until 1 May 1985.
c. William (Bill) Gast,was manager of Technical
Operations for Warner Amex on construction. He
continues in that position for Respondent but as-
sumes responsibility for the decreasing construction
work, of which Shemrock was manager for Warner
Amex.
d. Jeffrey Clark was vice president of operations
with Warner Amex, and he continues in that posi-
tion for Respondent.
e. Charging Party witness McNew testified he
works under the supervision of his prior immediate
supervisors. However, it is well established by the
evidence that Respondent is engaged in the same
predecessor business, that Respondent employs a
substantial number of supervisors who formally [sic]
supervised unit employees of Warner Amex; and
that the current job titles of most of such supervi-
sors have been simply changed by Respondent for
better coordination of the work schedules, although
several of them perform essentially the same work
function.
It is clear from the undisputed and credited testimony
that Everett Burrows performs essentially the same su-
pervisory functions for the Respondent that he previous-
ly performed for Warner Amex, currently supervising
McNew and DeSutter, whose job functions are essential-
ly the same. I therefore find on the foregoing credited
evidence that the Respondent employs a substantial
number of supervisory personnel who formerly super-
vised unit employees of Warner Amex; and that although
the current job titles of these former supervisors have
been changed by the Respondent, they nevertheless per-
form essentially the same or related job function.
The Respondent argues, however, that since it abol-
ished the area maintenance supervisors positions, which
included Supervisors Wolf, Kuelker, and Dotson, and
main line employees now report to one supervisor, Dave
Miller, engineering service manager, Respondent does
not now employ the same supervisors in the same super-
visory capacities . Although these title changes by the
Respondent are not disputed and are acknowledged, it is
particularly noted, that the Respondent (Director Skala)
did not describe the specific supervisory or managerial
function of the other former supervisory personnel still
in its employ . Nor did it explain when such supervisory
title or job function changes took place . In the absence
of such specificity , the Respondent 's evidence does not
establish that all of its former Warner Amex supervisors
perform essentially different job functions . Under these
circumstances , I find that the Respondent employs sub-
stantially the same supervisors who were previously em-
ployed by Warner Amex.
6. Employee witnesses McNew , DeSutter, and Aubu-
chon testified without dispute that they use the same
tools they used at Warner Amex when performing their
work for the Respondent . DeSutter and Aubuchon use
the same truck and equipment they used while working
for Warner Amex. The evidence did not establish that
the Respondent employees use any new or substantially
different tools or equipment to perform their work than
were used by them to perform work for Warner Amex.
Additionally, because the Respondent is engaged in the
same business operations as was its predecessor Warner
Amex, it is unequivocally clear that it uses substantially
the same machinery, equipment, and methods of per-
forming its work operations as were previously used by
Warner Amex.
7. The evidence is uncontroverted and I find that the
Respondent offers and delivers the same cable television
services to essentially the same, although some addition-
al, customers ; to the same municipalities ; under the same
franchises , in the same, although additional , geographical
areas.
I, therefore , conclude and find on the foregoing evi-
dence that there is substantial continuity of the business
operations of Warner Amex by the Respondent ; that the
Respondent uses essentially the same business facilities
previously used by Warner Amex ; that the Respondent
employs substantially the same work force that was em-
ployed by Warner Amex; that essentially the same jobs
exist under essentially the same working conditions at
the Respondent; that the Respondent employs substan-
tially the same supervisors previously employed by
Warner Amex ; that the Respondent uses essentially the
same machinery, equipment, and methods of production
or delivery of services that were previously used by
Warner Amex ; and that the Respondent offers and deliv-
ers the same cable television systems services to essen-
tially the same customers , in the same municipalities, pur-
suant to the same ordinances and franchises, in the same,
and additional geographical areas as did Warner Amex.
Aircraft Magnesium, supra. I further find that the Re-
spondent is the legal successor to the predecessor,
Warner Amex, and is thereby obligated to recognize and
bargain with the Union. Jeffries Lithograph Co., supra.
The Union represents the Respondent's employees in the
below described collective -bargaining unit.
Demand Maintenance Technician, Preventive Main-
tenance Technician, Permit Processor, Installer,
Pre-wire Installer, Warehouser, Lead Warehouser,
Quality Control Technician, Lead Quality Control
Technician, Electronics Quality Control Technician,
Lead Pre-wire Installer, Construction Lineman,
Bench Technician, Lead Tracker, Qube Activation
CENCOM OF MISSOURI 261
Technician, Non-pay Technician, Converter,Repair,
and Dispatcher, EXCLUDING all office clerical
and professional employees, temporary employees,
guards, and supervisors as defined in the Act and all
other employees.
Although there were minor changes in some job func-
tions, employee benefits, and some expansion of the geo-
graphical area serviced by the Respondent, such changes
do not significantly affect the above findings. Fabsteel
Co., 231 NLRB 372 (1977), enfd. 587 F.2d 689 (5th Cir.
1979); Indianapolis Mack, supra.
The Respondent's Refusal to Recognize and
Bargain with the Union
The unpontroverted evidence of record established
that on 3 January 1985 Union Representative Harwell
telephoned the Respondent's co-owner, James Allen, and
advised him that the Union represented the Respondent's
employees. Although the Respondent expressed doubt of
the authenticity of the Union's assertion, the Union reas-
serted its representative authority and the Respondent
agreed to meet with the Union on 11 January 1985.
During their meeting on 11 January, the Union requested
the Respondent to recognize and bargain with it on
behalf of its employees. When the Respondent refused,
the Union filed a charge in the instant proceeding on 21
January 1985. As previously found here as the Respond-
ent is the successor of Warner Amex and is legally obli-
gated to recognize and bargain with the Union on behalf
of its employees in the above-described unit, the Re-
spondent's failure and refusal to do so constituted a vio-
lation of Section 8(a)(1) and (5) of the Act. NLRB v.
Burns Security Service, supra; Indianapolis Mack Sales &
Services, supra.
Respondent argues that its methods of operation are so
substantially different from those of Warner Amex that it
is not a successor employer obligated to recognize and
bargain with the Union as the Board found in Georgetown
Stainless Mfg. Corp., 198 NLRB 234, 236 (1972). Howev-
er, my review of that case reveals that the evidence of
successorship measured against the criteria enunciated by
the Board in Aircraft Magnesium, supra, or Indianapolis
Mack Sales, supra, is considerably less in probative qual-
ity and quantity than the evidence in the case before me.
I therefore deem the Georgetown Stainless case inapplica-
ble to the facts as found here.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and that it take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that the Respondent violated Section
8(a)(1) and (5) of the Act by unlawfullyfailing and refus-
ing to recognize and bargain with Charging Party Union
(Communications Workers of America, AFL-CIO) as
the exclusive collective bargaining representative of its
employees in the appropriate collective-bargaining unit, I
will recommend that the Respondent cease and desist
from engaging in such conduct; that it be ordered to rec-
bgdize"and, on request, bargain in good faith with Com-
munications Workers of America, AFL-CIO as the ex-
clusive collective-bargaining representative of its em-
ployees in the appropriate bargaining unit.
CONCLUSIONS OF LAW
1. The Respondent, Cencom of Missouri , is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) -of the Act.
2. Communications Workers of America, AFL-CIO is
a labor organization within the meaning of Section 2(5)
of the Act.
3. By unlawfully failing and refusing to recognize and
bargain with Charging Party Communications Workers
of America, AFL-CIO, Respondent violated Section
8(a)(1) and (5) of the Act.
4. All the below-described employees employed by the
Respondent, constitutes an appropriate unit for purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
Demand Maintenance Technician, Preventive Main-
tenance Technician, Permit Processor, Installer,
Pre-wire Installer, Warehouser, Lead Warehouser,
Quality Control Technician, Lead Quality Control
Technician, Electronics Quality Control Technician,
Lead Pre-wire Installer, Construction Lineman,
Bench Technician, Lead Tracker, Qube Activation
Technician, Non-pay Technician, Converter Repair,
and Dispatcher, 'EXCLUDING all office clerical
and professional employees, temporary employees,
guards, and supervisors as defined in the Act and all
other employees.
5. At all times material, Communications Workers of
America, AFL-CIO has been the exclusive collective-
bargaining representative of the employees in the above-
described appropriate unit within the meaning of Section
9(a) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent , Cencom of Missouri, 9358 Deilman
Industrial Drive, St. Louis , Missouri, and 14500 South
Outer Forty Road , Chesterfield , Missouri , its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Charging
Party Communications Workers of America, AFL-CIO
as the exclusive collective-bargaining representative of
the employees in the appropriate bargaining unit de-
scribed above, regarding the wages , hours, working con-
ditions, and other terms and conditions of employment.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively
with Communications Workers of America, AFL-CIO
as the exclusive collective-bargaining representative of
the employees in the appropriate unit described above,
with regarding wages, hours, working conditions, and
other terms and conditions of employment of unit em-
ployees and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its business facilities located at 9358 Deil-
man Industrial Drive, St. Louis, and 14500 South Outer
Forty Road, Chesterfield, Missouri, and Fenton, Missou-
ri, • copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Regional
Director for Region 14, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
I If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."