Concord Services

National Labor Relations Board - Board Decisions

Mar 24, 1993

310 N.L.R.B. 821 (N.L.R.B. 1993)

821
310 NLRB No. 132
CONCORD SERVICES
1 On August 19, 1991, Administrative Law Judge Bruce C. Nasdor
issued the attached decision. The General Counsel filed exceptions
and a supporting brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 Blary further testified that Indiana ceased providing employees to
Concord as of the beginning of 1990. Concord is now utilizing the
services of another company.
Concord Services, Inc., DB Command Services of
Indiana, Inc. and DB Command Services, Inc.,
Joint Employers and Chicago Truck Drivers,
Helpers and Warehouse Workers Union (Inde-
pendent). Case 13–CA–28603
March 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
Exceptions filed to the judge’s decision in this case1
raise the issue of whether the General Counsel in prov-
ing allegations that the Respondents, as successor em-
ployers, unlawfully refused to recognize and bargain
with the Union had the burden of establishing that the
Union possessed majority status at the time the prede-
cessor initially granted recognition.
The Board has considered the exceptions in light of
the record and brief and has decided to affirm the
judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.
Based on his review of the record here, the judge
found that the Union never enjoyed majority status in
the collective-bargaining unit in which it demanded
recognition from the Respondents as successor em-
ployers. The judge therefore concluded that the Re-
spondents did not, as alleged, violate Section 8(a)(5)
and (1) of the Act by refusing to recognize and bargain
with the Union. For the reasons set forth below, we
find that in this case the judge improperly allocated to
the General Counsel the burden of ‘‘affirmatively’’
demonstrating the Union’s majority status and we find
that the Respondents violated the Act by refusing to
recognize and bargain with the Union.
The evidence shows that Chesire Delivery Systems,
Inc. (Chesire) had been a carrier of hospital and med-
ical supplies in the Chicago area. The Union filed a
lawsuit against Chesire in 1986 alleging that it was a
successor and alter ego of Dependable Parcel Co. with
which the Union had a collective-bargaining relation-
ship. Chesire filed for bankruptcy about March or
April 1988. In September 1988, Paul Glover, the
Union’s vice president and general counsel, initiated
efforts to settle the litigation. Glover told Chesire’s
president, Richard Marszalek, that they could resolve
the pending litigation if Chesire would negotiate a col-
lective-bargaining agreement with the Union covering
a unit of drivers and dockmen. Marszalek agreed to
bargain if the Union could prove majority status.
Thereafter, Glover instructed the Union’s organizers
to solicit authorization cards from Chesire’s drivers
and dockmen. Glover subsequently received nine
signed cards. After personally talking to Chesire’s
drivers and dock personnel while verifying these signa-
tures, Glover determined that there were 17 employees
in the bargaining unit that the Union sought to rep-
resent. Glover presented the cards to Marszalek who
then conducted his own investigation of the Union’s
majority status. Marszalek confirmed Glover’s claim
and agreed to bargain.
Contract negotiations began the day that Glover
gave the signed cards to Marszalek and continued over
the next 2 or 3 weeks. The parties eventually reached
agreement on a contract covering Chesire’s drivers and
dockmen. Although Glover presented a copy of this
collective-bargaining agreement to Marszalek for his
signature, Marszalek never executed the contract.
In early 1989, John Rank, president of Intercon
Services, Inc., began negotiations with Marszalek to
purchase Chesire’s assets including equipment and ve-
hicles. Rank established a company known as Concord
Services, Inc. (Concord) sometime in 1989 mainly to
purchase Chesire’s assets. During the negotiations for
the acquisition of Chesire, Marszalek told Rank that he
had agreed to a contract with the Union but had not
yet signed it. Rank said that he was not interested in
purchasing Chesire’s assets if there was a contract in
effect.
Respondent DB Command Services of Indiana, Inc.
(Indiana) is engaged in the business of labor leasing,
staff leasing, and labor management. Rank, owner of
Concord, is also a stockholder in Indiana. On March
3, 1989, Concord and Indiana executed a contract in
which Indiana agreed to provide Concord employees to
perform such work ‘‘as may be requested by [Con-
cord].’’ Indiana then would charge Concord a fee for
each leased employee.
Concord purchased Chesire’s assets, including its Il-
linois intrastate route authority, on April 3, 1989.
About that time, Don Blary, Indiana’s president, met
with Chesire’s former employees and invited them to
remain working at Concord. Chesire employed 12 driv-
ers and 8 dock workers, a total of 20 employees, at the
time of the sale. Indiana then hired a majority of
Chesire’s former employees to work at Concord, which
provided uninterrupted delivery service for the prede-
cessor’s former customers.2 On June 1, 1989, Glover
sent a letter to Rank, addressed to Concord, stating that
the Union represented a majority of the unit employees
and requesting bargaining. The Respondents have nei-
ther recognized nor bargained with the Union.
822 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Although the record does not clearly disclose the relationship be-
tween DB Command Services, Inc. and Joint Employers Concord
and Indiana, we note that the Respondents do not except to the
judge’s findings that these three business entities are joint employers
here.
4 The judge’s reasoning is not clear on this point.
5 Virginia Sportswear, 226 NLRB 1296, 1300 (1976) (footnotes
omitted, emphasis added).
6 While Moisi involved an employer who first recognized a union
and then repudiated that recognition and the Respondents here as
successors were not the employers who initially recognized the
Union, the Respondents’ burden was nonetheless the same as the
employer’s in Moisi in order to justify their refusal to bargain with
the Union.
7 As the judge notes, Glover stated he was told by the employees
that there were 17 drivers and dockworkers. While the judge stated
his ‘‘belief’’ that Glover was misinformed by the employees he
talked to regarding the size of the unit, the judge offers no rationale
for that belief. The fact that Chesire’s president, Marszalek, was un-
sure of how many employees he had does not give credence to the
judge’s finding that Glover was misinformed as to the size of the
unit.
The Respondents do not contest the judge’s findings
that they are joint employers and that they are legal
successors to Chesire’s operations.3 It is also undis-
puted that a majority of the employees that the Joint
Employers hired upon commencing operations were
the predecessor’s former employees.
The judge found, however, that the Respondents had
no obligation to bargain with the Union because ‘‘[i]n
my opinion, the Union never enjoyed a majority status,
whatever date is ascertainable to show majority.’’ In
reaching this conclusion, the judge stressed the evi-
dence that before Chesire granted recognition to the
Union, in 1988, the Union had obtained 9 signed cards
which is less than a majority of the 20 employees
Chesire employed in 1989 when Concord purchased its
assets. The judge apparently impliedly questioned4
whether Chesire also did not have 20 employees in
1988, and not 17 as Glover claimed, at the time of ini-
tial recognition based on Marszalek’s testimony at the
hearing that ‘‘[i]f I set a number, I would be guess-
ing’’ when asked about the size of Chesire’s employ-
ment complement in September 1988. Based on his
finding that the General Counsel had ‘‘not affirma-
tively demonstrated’’ that the Union ever had majority
status in the bargaining unit, the judge without sup-
porting case citation concluded that the Respondents
did not violate Section 8(a)(5) by refusing to recognize
and bargain with the Union. He therefore dismissed the
complaint.
In reversing, we first find that the judge
misallocated the evidentiary burden in this case. In this
regard, the Board has indicated that:
[u]nder the Board’s well-settled successor em-
ployer doctrine approved by the Supreme Court in
NLRB v. William J. Burns International Security
Services, Inc., 406 U.S. 272 (1972), a successor
employer, absent a reasonably based good-faith
doubt of the incumbent union’s majority, is obli-
gated to recognize the continuing representative
status of the bargaining agent of its predecessor’s
employees in an appropriate bargaining unit taken
over from the predecessor. This is so not only
where, as in Burns, the incumbent union’s rep-
resentative status was established by Board certifi-
cation, but also where it was established by vol-
untary recognition accorded the [u]nion by the
predecessor employer. The presumptions of con-
tinuing majority status that are applicable to the
predecessor employer are equally applicable to the
successor. Where such a presumption exists and
has not been overcome by the requisite kind and
degree of proof, the incumbent union need not re-
establish its majority status through an election or
by a majority card showing in order to support a
finding in an 8(a)(5) complaint proceeding that
the successor’s refusal to recognize and bargain
with the union was violative of the Act.5
In this case, the Respondent’s predecessor accorded
voluntary recognition to the Union. Notwithstanding
this, and the applicable principles set out above, the
judge placed on the General Counsel the burden of af-
firmatively establishing the Union’s majority status. In
so doing, he was in error. As the Board stated in Moisi
& Son Trucking, 197 NLRB 198 fn. 2 (1972):
Respondent, as a defense to the 8(a)(5) allegation
of the complaint, asserts that the General Counsel
failed to establish that the Union ever enjoyed
majority status. Once an employer has extended
voluntary recognition to a union, however, he will
not be heard subsequently to challenge its major-
ity status in an 8(a)(5) proceeding unless he intro-
duces affirmative evidence proving a lack of ma-
jority at the time of the recognition agreement. No
such evidence was adduced by [r]espondent in
this case.
Thus, as in Moisi, the burden in this case was on the
Respondents to affirmatively prove a lack of majority
at the time of recognition and not on the General
Counsel to prove the existence of a majority.6 The Re-
spondents failed to sustain that burden in this case.
The evidence offered does not affirmatively establish
that the Union lacked majority status in September
1988 when Chesire recognized it.7 Further, the judge
was in error in finding no majority status based on the
evidence that Chesire’s employment complement had
reached 20 when Concord purchased its assets on April
3, 1989, more than 6 months after initial recognition.
The predecessor’s employment complement on the lat-
ter date clearly is immaterial to the question of wheth-
er the Union enjoyed majority status in September
823CONCORD SERVICES
8 Based on our disposition of the instant case and the fact that the
General Counsel has not raised this particular issue, we find it un-
necessary to decide whether the application of Morse Shoe, 227
NLRB 391, 394 (1976), as modified 231 NLRB 13 (1977), would
preclude, in any event, a successor employer from attacking the va-
lidity of an initial recognition occurring, as here, more than 6
months before the filing of an 8(a)(5) charge.
9 Destileria Serralles, Inc., 289 NLRB 51 (1988), quoting Harley-
Davidson Co., 273 NLRB 1531 (1985) (citation omitted).
10 The Union, as stated, sent a letter to Respondent Concord on
June 1, 1989, demanding recognition. The date of that mailing fixes
the date of the written demand. Good N’ Fresh Foods, 287 NLRB
1231 (1988).
11 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
National 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.’’
1988 when Chesire initially granted recognition. The
Respondents failed to prove that the Union lacked ma-
jority status when Chesire recognized the Union in
September 1988.8
The Respondents did not overcome the presumption
of the Union’s majority status described in Virginia
Sportswear, infra at fn. 5. As alluded to above, the
Board has further held that in order to justify a refusal
to bargain or a withdrawal of recognition a successor
employer may also show that on the date of such a re-
fusal to bargain ‘‘the union had in fact lost its majority
status . . . or that the refusal to bargain was grounded
on a good-faith doubt based on objective factors that
the union continued to command majority support.’’9
The Respondents offered no evidence that the Union
either lacked majority support or that the Respondents
had a good-faith doubt that the Union lacked such sup-
port in June 1989 when they refused to bargain with
the Union.
For the reasons stated above, we conclude that the
Respondent Joint Employers as successors to Chesire
had a bargaining obligation when the Union sought
recognition on June 1, 1989. Accordingly, we find that
the Respondents violated Section 8(a)(5) and (1) by re-
fusing to recognize and bargain with the Union.10
CONCLUSIONS OF LAW
1. Concord Services, Inc., DB Command Services of
Indiana, Inc. and DB Command Services, Inc., are
joint employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Chicago Truck Drivers, Helpers and Warehouse
Workers Union (Independent) is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees of the Respondents con-
stitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act:
All drivers and dockmen; but excluding office
clerical employees, guards, and supervisors within
the meaning of the Act.
4. At all times on and after June 1, 1989, the Union
has been the exclusive collective-bargaining represent-
ative of the employees in the unit described above.
5. The Respondents are successors to Chesire Deliv-
ery Systems, Inc. and as of at least June 1, 1989, em-
ployed a full complement of employees in the unit
found appropriate.
6. On June 1, 1989, the Union made a valid demand
for recognition and bargaining, which demand the Re-
spondents refused, and continue to refuse.
7. By failing and refusing on and after June 1, 1989,
to recognize and bargain with the Union as the rep-
resentative of the employees in the appropriate unit,
the Respondents have violated Section 8(a)(5) and (1)
of the Act.
THE REMEDY
Having found that the Respondents have violated
Section 8(a)(5) and (1) of the Act, we shall order them
to cease and desist, to bargain on request with the
Union and, if an understanding is reached, to embody
the understanding in a signed agreement.
ORDER
The National Labor Relations Board orders that the
Respondents, Concord Services, Inc., DB Command
Services of Indiana, Inc. and DB Command Services,
Inc., Joint Employers, Northlake and Lockport, Illinois,
and Hammond, Indiana, their officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively
with Chicago Truck Drivers, Helpers and Warehouse
Workers Union (Independent) as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All drivers and dockmen; but excluding office
clerical employees, guards, and supervisors within
the meaning of the Act.
(b) In any like or related manner interfering with,
restraining, 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) On request, bargain collectively and in good
faith with Chicago Truck Drivers, Helpers and Ware-
house Workers Union (Independent) as the exclusive
collective-bargaining representative of employees in
the appropriate unit on terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement.
(b) Post at its facility in Northlake, Illinois, copies
of the attached notice marked ‘‘Appendix.’’11 Copies
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The evidence indicates that the relationship between Respondent
Concord and the employee leasing companies involved here had ter-
minated prior to the hearing in this proceeding. Accordingly, I would
permit the parties to raise the matter of the appropriate scope of sec.
2(a) of the Board’s Order at a subsequent stage of this proceeding.
1 All dates are in 1989, unless otherwise indicated.
2 In a confusing brief, in the selection captioned ‘‘Statement of the
Case’’ counsel for the General Counsel states that a complaint issued
naming as Respondents ‘‘Concord Services, Inc., DB Command
Services of Illinois, and DB Command Services of Indiana,’’ as joint
employers. The complaint before me does not include the name,
‘‘DB Services of Illinois.’’ Testimony clearly reflects, and counsel
for the General Counsel concedes, in fn. 3 of her brief, that it is
a defunct corporation. The complaint does however name an em-
ployer, DB Command Services, Inc., which apparently got lost some
place. I do not consider DB Command of Illinois a party to this liti-
gation.
To make matters even more confusing, counsel for the General
Counsel in the ‘‘Conclusion and Remedy’’ section of her brief asks
me to find that Chesire (a bankrupt predecessor) and DB Command
of Illinois (now defunct and not named as a Respondent) were suc-
cessors to Chesire. Moreover, she contends that they are obligated
to recognize and bargain with the Union. Fortunately the record,
which is clearer than the brief, allows me to render, what I hope is
a cognizant decision.
of the notice, on forms provided by the Regional Di-
rector for Region 13, after being signed by the Re-
spondents’ authorized representative, shall be posted
by the Respondents 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 Respondents 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-
spondents have taken to comply.
MEMBER OVIATT, concurring.
I agree with my colleagues and the judge that the
Respondents were joint employers and successors to
Chesire Delivery Service in 1989.
I find this case particularly troublesome because
there is clearly a question of whether this Union ever
represented a majority of the predecessor’s employees
in an appropriate unit. However, as the continuing vi-
tality of Morse Shoe was not litigated here, I join the
majority and concur in their conclusions and findings.1
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with
Chicago Truck Drivers, Helpers and Warehouse Work-
ers Union (Independent) as exclusive bargaining rep-
resentative of employees in the following appropriate
unit:
All drivers and dockmen; but excluding office
clerical employees, guards and supervisors within
the meaning of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain in good faith with the
Union as the exclusive collective-bargaining represent-
ative of the employees in the appropriate unit on terms
and conditions of employment and, if an understanding
is reached, embody such understanding in a signed
agreement.
CONCORD SERVICES, INC., DB COM-
MAND SERVICES OF INDIANA, INC. AND
DB COMMAND SERVICES, INC., JOINT
EMPLOYERS
Dawn Scarlett, Esq., for the General Counsel.
Joel L. Greenblatt, Esq., for Concord Services, Inc.
Robert R. Benjamin, Esq., for DB Command Services of In-
diana, Inc.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This case
was tried in Chicago, Illinois, on August 15 and 16, 1990.
The charge was filed on May 3, 1989,1 by the Union against
Concord Services, Inc. (Concord), Chesire Delivery Systems,
Inc. (Chesire), DB Command Services (Services), John Rank,
and various other employers. DB Command Services of Indi-
ana, Inc. (Indiana) is not named in the charge. At the hear-
ing, counsel for DB Command Services of Indiana initially
took the position that his client was not served with a copy
of the charge, while later acknowledging that his client re-
ceived a copy, although the charge was not directed to his
client. At any rate, his answer reflects the receipt of the
charge, so due process has been served, albeit sloppily.
The complaint and notice of hearing issued on June 14,
1990, naming as Respondents the employers appearing in the
caption of this decision.2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs, I
make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent Concord, a corporation
with an office and place of business in Northlake, Illinois,
825CONCORD SERVICES
3 Referred to in pars. II(h) and (i) of the complaint as ‘‘db Com-
mand.’’ There is no answer on behalf of this entity contained in the
General Counsel’s file of exhibits. There is no answer filed on be-
half of ‘‘DB Command Services, Inc.,’’ a named Respondent. I
therefore am compelled to assume that ‘‘DB Command and DB
Command Services, Inc.’’ are one and the same.
has been engaged in the business of providing common car-
rier trucking services.
During the past calendar year, Concord, in the course and
conduct of its business operations derived gross revenues in
excess of $50,000 for the transportation of freight and com-
modities in interstate commerce pursuant to arrangements
with, and as an agent for, various common carriers, including
Whiteford Transport Systems, Inc. which operates between
and among various States of the United States.
At all times material, Respondent DB Command Services
of Indiana, a corporation with an office and place of business
in Hammond, Indiana, has been engaged in the business of
providing driver personnel to private, common, and contract
carriers as an essential link in the interstate transportation of
commodities.
During the past calendar year, a representative period, Re-
spondent DB Command Services of Indiana received gross
revenues in excess of $50,000.
At all times material, Respondent DB Command Services,
Inc.,3 a corporation with an office and place of business in
Lockport, Illinois has been engaged in the business of pro-
viding driver personnel to private, common, and contract car-
riers as an essential link in the interstate transportation of
commodities.
During the past calendar year, a representative, DB Com-
mand Services, Inc., in the course and conduct of providing
services, received gross revenues in excess of $50,000.
Respondents are now, and have been at all times material,
employers engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(2) and (5)
of the Act.
III. THE APPROPRIATE UNIT
The following employees of Respondents constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All drivers and dockmen, but excluding office cler-
ical employees, guards and supervisors within the
meaning of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The Facts
Chesire Delivery Systems, Inc. (Chesire) was a carrier of
hospital supplies within a 5-mile radius of Chicago. As such,
it delivered supplies to 130 to 135 hospitals. Some of its cus-
tomers were Burrough’s (pharmaceutical company), Midline
Industries, Fisher Scientific, Sanicraft, and others. Chesire
differed from the typical general cartage common carrier in
that hospitals must have the products delivered by noon on
any given day.
As the result of litigation which commenced sometime in
1986, Paul Glover, vice president and general counsel of the
Union, met in September 1988, with Richard Marszalek,
president of Chesire. Glover advised Marszalek that the liti-
gation could be resolved if Chesire would negotiate a collec-
tive-bargaining agreement with the Union for a unit of driv-
ers and dockmen. Marszalek was amenable to bargaining if
the Union could prove a majority.
To this end, Glover had union organizers solicit authoriza-
tion cards from Chesire’s drivers and dockmen. Glover ob-
tained nine cards and verified the signatures by personally
confronting the signatories to the cards. Moreover, he alleg-
edly was told by the employees that Chesire employed a total
of 17 drivers and dockworkers. Glover presented the cards
to Marszalek, who had spoken to the cardsigners, and agreed
to meet and bargain with the Union.
Contract negotiations ensued, and continued for a period
of 2 to 3 weeks. Marszalek testified that Chesire filed for
bankruptcy in March or April 1988. Glover furnished
Marszalek with a copy of a collective-bargaining agreement,
asked him to look it over, and change anything that ‘‘the
company could not survive with.’’
Negotiations culminated in the parties reaching a collec-
tive-bargaining agreement, and incorporating agreed-upon
terms into a written copy. Glover presented a copy of the
contract to Marszalek for his signature.
After the passage of 7 to 10 days, Glover had not received
the executed contract from Marszalek. Glover telephoned
him and was told by Marszalek that he was sending a copy
of the contract to his lawyer, and that there might be prob-
lems because the contract would have to be presented to the
bankruptcy court. Marszalek never executed the agreed-upon
collective-bargaining agreement.
In the early part of 1980, Marszalek entered into negotia-
tions with John Rank, president of Intercom Services, Inc.,
to sell Chesire’s assets including equipment and trucks to
Concord, a company owned by Rank. Rank and Marszalek
knew each other because Chesire leased terminal space in
one of Intercom’s buildings. Accordingly Rank was
Marszalek’s landlord. During the negotiations between
Marszalek and Rank for the purchase of Chesire, Marszalek
told Rank that he had negotiated a collective-bargaining
agreement with the Union but had not signed it. Rank ad-
vised Marszalek that if there was a contract between Chesire
and the Union he would not purchase Chesire’s assets.
Rank as the sole stockholder, established a company some-
time in 1989, known as Concord Services, Inc. Concord was
formed to haul freight for Whiteford in interstate and intra-
state transportation. By April 1989, Chesire was also en-
gaged in hauling freight for Whiteford. On March 23, 1989,
during the bankruptcy proceedings, the Union futilely at-
tempted to have the contract executed. The parties were in
bankruptcy court on March 23. Marszalek was not present,
but he was represented by an attorney and trustee. The Union
was represented by an outside attorney, employed to deal
with bankruptcy matters. Rank was represented by Counsel
Joel L. Greenblatt. The parties are in accord, and Rank testi-
fied that on March 23, 1989, at the bankruptcy court, the
Union was still attempting to ‘‘re-negotiate’’ a contract with
Marszalek’s attorney.
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Counsel for the General Counsel incorrectly cites the date as
1990
Concord purchased Chesire’s assets, including the Illinois
Commerce Commission’s authority for intrastate hauling on
April 3, 1989. Concord continued uninterrupted to service
Chesire’s customers.
In early 1989, when Chesire commenced to carry general
commodities for Whiteford, 20 to 30 percent of Chesire’s
business was Whiteford freight. The Whiteford freight was
carried with Chesire’s hospital freight on the same trucks,
with the same employees. By the time Chesire was dis-
solved, or immediately prior thereto, Whiteford accounted for
30 percent of Chesire’s Freight.
Marszalek and dispatcher Ray Villega, who later became
a dock supervisor, conducted Chesire’s entire operation
Villega was the de facto general manager. Marszalek and
Villega specifically identified by name, 12 drivers and 8
dockworkers, a total of 20 unit employees, who were em-
ployed by Chesire prior to the sale of its assets to Concord.
No payroll records were offered into evidence, other than
General Counsel’s Exhibit 6, which reflects the name of an
office clerical employee.
On or about April 3, 1989, Indiana held a meeting with
the Chesire employees, where Don Blary, president of Indi-
ana, and a 50-percent stockholder handed out employment
applications and invited the former Chesire employees to re-
main working at Concord. After filling out the appropriate
paperwork, employees were hired at the same amount of pay
that they received at Chesire. They also continued to work
at the same site. John Rank owns the remaining 50-percent
stock of Indiana.
A substantial number of employees who formerly worked
for Chesire were employed to perform work for Concord.
Villega was originally hired at Concord as a dispatcher, but
later the job changed to dock supervisor. The defunct cor-
poration, DB Command of Illinois, hired clerical employees
and dockworkers who performed work for Concord, while
Indiana hired the truckdrivers.
Indiana is a company engaged in the business of labor
leasing, staff leasing, and labor management. John Rank,
owner of Concord, is also a stockholder in Indiana. On
March 3, 1989,4 Concord and Indiana entered into a written
contract wherein Indiana agrees to provide Concord workers
to perform duties ‘‘as may be requested by the company
(Concord).’’ The contract provided that Indiana furnish Con-
cord with employees, in the numbers and job descriptions
pursuant to Concord’s needs and requests. Indiana agreed to
‘‘instruct’’ the employees and to govern their conduct and
behavior while performing work for Concord to conform
with Concord’s issuance of general rules and instructions. In-
diana also agreed to be responsible for the supervision of the
employees and to ensure compliance with Concord’s general
rules and instructions. Furthermore, Indiana agreed to honor
the wishes of Concord in replacing employees who did not
fulfill Concord’s requirements.
John Rank’s testimony appears to treat Indiana and DB
Command, Inc. as a single entity. Counsel for the General
Counsel refers to ‘‘the two db Command companies.’’ I be-
lieve that DB Command Inc. is the named Respondent, DB
Command Services, Inc. (Services). The employees are on
the payrolls of the ‘‘DB Command’’ companies According to
Rank’s testimony the employees at Concord are hired, dis-
ciplined and can be fired by the DB companies. These com-
panies also issue the employees’ paychecks according to
Rank. Villega testified that the name ‘‘db Command Serv-
ices’’ appeared on his paycheck. The Command companies
pay social security, Federal, and state withholding taxes and
workmen’s compensation for the individuals working at Con-
cord.
Concord is billed a fee for each leased employee. This fee
includes the cost of wages and withholding taxes for each
leased employee. According to Rank, Concord had the au-
thority to effectively recommend hiring and firing of any em-
ployees who performed services for it. Employees punched
a timeclock located at Concord’s premises and Concord de-
termined the amount of wages to be paid to the employees
and their hours of work. Employees did not receive life in-
surance or vacations unless authorized by Concord. If such
an authorization was forthcoming, it would be billed to the
DB Command companies. Concord would notify the DB
Command companies if the employees needed to be dis-
ciplined. Concord set work rules and procedures and directed
work assignments. DB companies did not participate in the
day-to-day supervision of the employees working at Concord.
Blary, president of Indiana, testified that his company
ceased to provide employees to Concord as of the beginning
of 1990. Concord is utilizing the services of another com-
pany.
On June 1, 1989, Glover, representing the Union, sent a
letter to John Rank addressed to Concord stating that the
Union represented a majority of Concord’s drivers and
dockmen. Glover requests that Rank meet and bargain with
the Union. Moreover the document advises that the Union
possesses authorization cards with signatures of a majority.
As of the date of the hearing, neither Rank, Concord, or any
of the named Respondents have recognized or bargained with
the Union.
Conclusion and Analysis
The record clearly reflects that all the Respondents share
control and a common labor policy of the employees.
Concord exercised direct control over the employees com-
pensation and benefits. It determined the employees’ wage
scales. Concord would have to approve and pay Indiana and
Services for any paid vacations requested by the employees
if such an occasion occurred. Employees could not avail
themselves of life insurance without Concord’s sanctions.
Services and Indiana initially hired the employees and
could fire the employees.
They also issued their paycheck. Indiana and Services did
not exercise any day-to-day control or supervision over the
employees. These functions were the responsibility of the
leased supervisor. Concord sets hours and work schedules.
Concord could reject any employee referred to it by Services
or Indiana.
Record facts convince me that all the named Respondents
and each of them have ample control over the employee, and
their jobs, to qualify them as joint employers. See Browning-
Ferris Industries, 259 NLRB 148 (1981), and cases cited
therein.
The Supreme Court in NLRB v. Burns Security Services,
406 U.S. 272 (1972), and later Board cases, set forth the cri-
827CONCORD SERVICES
5 A period of 9 months from when Concord began operations.
teria to be met for finding a successorship. It is essential that
there be a substantial continuity of the employing industry.
Concord is engaged in the same endeavor as Chesire was,
i.e., the transportation of freight, out of the same terminal as
Chesire. Concord’s drivers drove the trucks purchased from
Chesire. The drivers and dockworkers were paid the same
wages they were paid by Chesire. Chesire’s supervisor,
Villega, continued to supervise at Concord. Blary, president
of Indiana testified that he believed a majority of the Chesire
employees were on Indiana’s payroll in February 1989, while
Chesire was still operating.
Initially, without any transitional period, Concord com-
menced to haul the identical freight which was carried by
Chesire, general commodities, and hospital freight. After ap-
proximately 3 months, the transitional phase commenced
when Concord began phasing out the hauling of hospital
freight. This phase lasted until 6 months later,5 at which time
Concord was hauling general commodities only.
In my opinion, the change in the nature of the freight is
not fatal to my finding that Concord is a successor to
Chesire, and I so find. The Board affirmed an administrative
law judge’s finding of successorship where the ‘‘product
mix’’ was changed. The change was not substantial enough
to overcome the successor status. The same principle, in my
opinion, is applicable here—freight is freight. Cf. Louisiana-
Pacific Corp., 283 NLRB 1079 (1987).
Accordingly, it follows that the joint employers Concord
Indiana and Services, should be considered as successors to
Chesire, and I so conclude.
Having enunciated the above, I would be remiss in ignor-
ing the fact that the counsel for General Counsel has not af-
firmatively demonstrated that the Union, at any time rep-
resented a majority of employees.
Record testimony by Marszalek, Chesire’s president, re-
flects that Board-conducted election was held among
Chesire’s unit employees sometime in 1986 or 1987. The
Union herein appeared on the ballot. It did not garner a suffi-
cient number of votes to represent a majority of employees.
The next time Marszalek heard from the Union, was when
he was contacted by Glover in September 1988. Glover pre-
sented him with nine authorization cards. Counsel for the
General Counsel, acknowledges in her brief, where she lists
Chesire’s employees, ‘‘prior to the sale of any assets,’’ that
20 employees appeared on the payroll. Indeed, record testi-
mony supports her contention at page 6 of her brief, ‘‘All
of the employees referred to above were employed by
Chesire up to the date Chesire’s assets were sold to Con-
cord.’’ She considers the critical date to be April 3, 1983,
the date Concord began operation. Assuming arguendo coun-
sel for the General Counsel is correct, and the date of the
demand is not the critical date, and assuming that a majority
of Concord’s work force consisted of former Chesire em-
ployees represented by the Union, 9 is not a majority of 20.
Nine is not even a majority of 18, the number of employees
appearing on General Counsel’s Exhibit 9(b) captioned,
‘‘Command Services of Indiana.’’ Supervisor Villega was
not considered part of the unit. If employee Dugar left prior
to the assets buyout, it does not change the Union’s minority
status.
I believe that Glover, and similarly Marszalek, verified
that the signatures on the cards were authentic. I further be-
lieve that Glover was misinformed by the employees he
talked to, regarding the size of the unit. Moreover, I am con-
vinced that Marszalek, as demonstrated by his testimony on
cross-examination, was not certain of how many individuals
he actually employed. For example he testified, ‘‘If I set a
number, I would be guessing.’’ When asked if the number
was 15, he responded, ’that would be fairly close.’’ When
advised that in his earlier testimony he ‘‘listed 20,’’ and he
was asked if that was close, Marszalek responded affirma-
tively. His responses were vague at best.
The issue of majority is critical. In my opinion, the Union
never enjoyed a majority status, whatever date is ascertain-
able to show majority. Marszalek bargained, and reached
agreement on a collective-bargaining agreement, with a mi-
nority representative. Accordingly, Respondents cannot be
held, and are not obligated to recognize and bargain with the
Union.
I therefore recommend that the 8(a)(1) and (5) allegations
of the complaint be dismissed.
CONCLUSIONS OF LAW
1. Respondents and each of them are engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Respondents and each of them are joint employers.
3. Respondents and each of them are successors of
Chesire.
4. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
5. At no time material herein has the union been the des-
ignated exclusive collective-bargaining representative of the
employees in the appropriate unit.
6. The allegations of the complaint that Respondents, and
each of them, have engaged in conduct violative of Section
8(a)(1) and (5) of the Act have not been supported by sub-
stantial evidence.
[Recommended Order for dismissal omitted from publica-
tion.]