Creative Vision Resources, LLC

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 91 (N.L.R.B. 2016)

364 NLRB No. 91
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Creative Vision Resources, LLC and Local 100, United
Labor Unions. Case 15–CA–020067
August 26, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On January 7, 2013, Administrative Law Judge Keltner
W. Locke issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the General Coun-
sel filed a reply brief. The Respondent filed cross-excep-
tions and a supporting brief, the General Counsel filed an
answering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions, cross-exceptions, and briefs and
has decided to affirm the judge’s rulings, findings,1 and
conclusions only to the extent consistent with this Deci-
sion and Order, to amend his remedy, and to adopt the rec-
ommended Order as modified and set forth in full below.2
We adopt the judge’s findings, as to which there are no
exceptions, that Creative Vision Resources, LLC (the Re-
spondent), was a legal successor to single employer M &
B Services, Milton Berry, and Berry Services, Inc. (Berry
III or the predecessor), and that it violated Section 8(a)(5)
and (1) of the Act by failing to recognize and bargain in
good faith with the incumbent employees’ bargaining rep-
resentative, Local 100, United Labor Unions (the Union).
For the reasons set forth below, however, we also find,
contrary to the judge, that the Respondent was a “perfectly
clear” successor and that it violated Section 8(a)(5) and (1)
of the Act by failing to provide the Union with notice or
an opportunity to bargain before imposing initial terms
and conditions of employment for the unit employees.

1 There are no exceptions to the judge’s finding that the Respondent
did not violate Sec. 8(a)(5) and (1) by unilaterally changing the way unit
employees are assigned to trucks. Accordingly, we affirm the judge’s
dismissal of that allegation.
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.
2 We shall substitute a new Order and notice to conform to the viola-
tions found and in accordance with Durham School Services, 360 NLRB
I. Facts
Richard’s Disposal is a waste disposal company operat-
ing in the greater New Orleans, Louisiana area. Since
2007, the Union has represented a unit of employees,
called hoppers, who ride on the back of the garbage trucks
operated by Richard’s Disposal and empty garbage cans
into the trucks.3 Prior to June 1, 2011, the hoppers were
employed by Berry III, a labor supply company.
In 2010, Alvin Richard III (Richard), the vice president
of Richard’s Disposal and the son of its owner, decided to
form the Respondent as a new labor supply company to
provide hoppers to Richard’s Disposal. The decision was
prompted by concerns about Berry III’s lax management
practices, including, among other things, its treatment of
the hoppers as independent contractors. The record shows
in this respect that Berry III paid the hoppers a flat rate of
$103 per day with no overtime, and made no deductions
for taxes or social security.
The transition from Berry III to the Respondent was
scheduled to take place on May 20, 2011.4 In anticipation,
Richard had an employee handbook and safety manual
prepared in May. He also prepared applications for em-
ployment, which, along with Federal and State tax with-
holding forms, were to be distributed to current Berry III
hoppers. Richard distributed applications to approxi-
mately 20 Berry III hoppers, and informed them of certain
changes in their terms and conditions of employment, in-
cluding that the Respondent would pay $11 per hour with
overtime, and that it would deduct taxes and social secu-
rity from their paychecks. Richard also asked Berry III
hopper Eldridge Flagge to assist him in passing out appli-
cations. Between mid-May and June 1, Flagge passed out
approximately 50 applications. Richard did not inform
Flagge of the new terms and conditions of employment
and, consequently, Flagge did not inform any of the hop-
pers to whom he gave applications that their terms and
conditions would change under the Respondent.
Berry III hoppers who wished to retain their jobs after
the transition were merely required to complete an appli-
cation and a W-4 tax form. As found by the judge, “filling
No. 85 (2014), and AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016).
3 The most recent collective-bargaining agreement between the Union
and Berry III was effective by its terms from September 1, 2007 through
August 31, 2010.
The bargaining unit originally included Berry III-employed hoppers
who worked on garbage trucks both for Richard’s Disposal and for Metro
Disposal, another waste disposal company. At some point in time, Berry
III lost its contract with Metro Disposal and ceased providing hoppers to
that company.
4 All dates are in 2011, unless otherwise stated.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
out the application . . . was a formality, albeit a required
one.” The Respondent did not interview candidates for its
hopper positions, review their qualifications, or check
their references.5 Indeed, Richard acknowledged that, by
submitting applications, Berry III hoppers were agreeing
to work for the Respondent and the Respondent was agree-
ing to hire them.
The transition did not occur on May 20, as initially
planned, because the Respondent had not obtained suffi-
cient applications from Berry III hoppers to fully staff the
trucks. However, by June 1, the Respondent had approx-
imately 70 completed applications from Berry III hoppers.
On that date, Richard cancelled Berry III’s agreement with
Richard’s Disposal.
Beginning on June 2, the Respondent began supplying
hoppers to Richard’s Disposal. At approximately 4 a.m.,
the hoppers assembled in the yard as usual, to await as-
signment to a truck. They were met by former Berry III
supervisor, Karen Jackson, whom Richard had hired on
June 1. Jackson informed all of the hoppers present that
“[t]oday is the day you start working under Creative Vi-
sion.” Jackson then explained to them the terms under
which they would be working, including, among other
things, the $11-per-hour pay rate, the deduction of Federal
and State taxes, and a number of new employment stand-
ards and safety rules. Some of the hoppers refused to work
upon learning of the new terms. A sufficient number of
hoppers remained, however, to staff the trucks. Thus, on
its first day of operations, the Respondent supplied 44
hoppers to Richard’s Disposal, all of whom were formerly
employed by Berry III.
On June 4, the Respondent distributed an employee
handbook and safety manual to the hoppers, which set out
a number of new rules and employment standards.
On June 6, after learning that the Respondent had re-
placed Berry III and retained the incumbent employees,
the Union’s State Director, Rosa Hines, hand delivered a
letter to the Respondent demanding that it recognize the
Union as the hoppers’ exclusive representative for collec-
tive-bargaining purposes. The Respondent did not reply.

5 Richard testified that by soliciting applications from the Berry III
hoppers, he was agreeing to hire them “if [he] needed them.” The record
establishes that the Respondent “needed” all 70 of the Berry III hoppers
from whom it solicited applications. Richard’s Disposal operates 6 days
per week and sends out 20–22 trucks per day, with 2 hoppers on each
truck. Because all of the hoppers do not show up for work every day, the
Respondent employs more than the minimum number of hoppers (40–
44) required to fully staff the trucks on a particular day. The Respond-
ent’s weekly payroll usually includes between 62 and 67 hoppers and,
II. Discussion
In NLRB v. Burns Security Services, 406 U.S. 272, 281–
295 (1972), the Supreme Court held that a successor em-
ployer is not bound by the substantive terms of a collec-
tive-bargaining agreement negotiated by the predecessor
and is ordinarily free to set initial terms and conditions of
employment unilaterally. The Court explained that the
duty to bargain will not normally arise before the succes-
sor sets initial terms because it is not usually evident
whether the union will retain majority status in the new
work force until after the successor has hired a full com-
plement of employees. Id. at 295. The Court recognized,
however, that “there will be instances in which it is per-
fectly clear that the new employer plans to retain all of the
employees in the unit and in which it will be appropriate
to have him initially consult with the employees’ bargain-
ing representative before he fixes terms.” Id. at 294–295.
The Board in Spruce Up Corp., 209 NLRB 194, 195
(1974), enfd. per curiam 529 F.2d 516 (4th Cir. 1975), ad-
dressed the “perfectly clear” exception, and found it was
“restricted to circumstances in which the new employer
has either actively or, by tacit inference, misled employees
into believing they would all be retained without change
in their wages, hours, or conditions of employment, or at
least to circumstances where the new employer . . . has
failed to clearly announce its intent to establish a new set
of conditions prior to inviting former employees to accept
employment.” (Footnote omitted.) Acknowledging that
“the precise meaning and application of the Court’s caveat
is not easy to discern,” the Board reasoned that “[w]hen
an employer who has not yet commenced operations an-
nounces new terms prior to or simultaneously with his in-
vitation to the previous work force to accept employment
under those terms, we do not think it can fairly be said that
the new employer ‘plans to retain all of the employees in
the unit,’ as that phrase was intended by the Supreme
Court,” because of the possibility that many of the em-
ployees will reject employment under the new terms, and
therefore the union’s majority status will not continue in
the new work force. Id.6
In subsequent cases, the Board has clarified that the per-
fectly clear exception is not limited to situations where the
during in its first 6 months of operation, the Respondent employed over
100 hoppers.
6 Although the Court in Burns, and the Board in Spruce Up, spoke in
terms of a plan to retain all of the employees in the unit, the Board has
subsequently clarified that the relevant inquiry is whether the successor
plans to retain a sufficient number of the predecessor’s employees so that
the union’s majority status will continue. See Galloway School Lines,
321 NLRB 1422, 1426–1427 (1996); Spitzer Akron, Inc., 219 NLRB 20,
22 (1975), enfd. 540 F.2d 841 (6th Cir. 1976), cert. denied 429 U.S. 1040
(1977).
CREATIVE VISION RESOURCES, LLC 3
successor fails to announce initial employment terms be-
fore it formally invites the predecessor’s employees to ac-
cept employment. Rather, a new employer has an obliga-
tion to bargain over initial terms when it displays an intent
to employ the predecessor’s employees without making it
clear that their employment will be on different terms from
those in place with the predecessor. Canteen Co., 317
NLRB 1052, 1053–1054 (1995), enfd. 103 F.3d 1355 (7th
Cir. 1997).7 Thus, in applying the “perfectly clear” excep-
tion of Burns, the Board scrutinizes not only the succes-
sor’s plans regarding the retention of the predecessor’s
employees but also the timing and clarity of the succes-
sor’s expressed intentions concerning existing terms and
conditions of employment.
Here, the judge found that “[t]he record leaves no doubt
that the Respondent[] . . . intended to employ the hoppers
working in the Berry III bargaining unit, and made no ef-
forts to hire hoppers from other sources.” As set forth in
Richard’s testimony, cited by the judge, Richard agreed to
hire the Berry III hoppers who submitted applications.
Notwithstanding this clear intent, the judge found that the
Respondent was not a “perfectly clear” successor within
the meaning of Spruce Up, because it “did not fail to com-
municate candidly with the hoppers” about its intent to set
its own initial terms. In so finding, the judge relied on the
fact that, between mid-May and June 1, Richard “commu-
nicated at least some information” about initial terms “to
at least some of the hoppers.” Additionally, the judge
cited evidence that an unknown number of hoppers heard
a rumor while they were still employed by Berry III that
the Respondent would be paying $11 per hour. Finally,
the judge placed heavy reliance on Jackson’s June 2 an-
nouncement of initial terms and conditions of employment

7 In Canteen, the Board found that a successor “effectively and clearly
communicated . . . its plan to retain the predecessor employees” by ex-
pressing to the union its desire to have the employees serve a probation-
ary period without mentioning any changes in employment conditions.
Therefore, it became a perfectly clear successor at that point, and “was
not entitled to unilaterally implement new wage rates” the next day, dur-
ing employment interviews. Id., citing Fremont Ford, 289 NLRB 1290,
1296–1297 (1988); Roman Catholic Diocese of Brooklyn, 222 NLRB
1052 (1976), enf. denied in relevant part sub nom. Nazareth Regional
High School v. NLRB, 549 F.2d 873 (2d Cir. 1977).
8 The judge also dismissed the complaint allegation that, even assum-
ing the Respondent was a regular Burns successor, it violated Sec. 8(a)(5)
and (1) by unilaterally implementing new work rules through the em-
ployee handbook and safety manual, after the bargaining obligation at-
tached. The General Counsel has excepted. In light of our finding below
that the Respondent was a “perfectly clear” successor, we find it unnec-
essary to pass on the General Counsel’s alternate theory.
9 See, e.g., Elf Atochem North America, Inc., 339 NLRB 796, 807
(2003) (successor incurs “obligation to bargain over initial terms of em-
ployment when it displays an intent to employ the predecessor’s employ-
ees without making it clear to those employees that their employment
will be on terms different from those in place with the predecessor em-
ployer”); Canteen, 317 NLRB at 1053–1054; Helnick Corp, 301 NLRB
to the hoppers who had assembled for work and were
awaiting assignments. Accordingly, the judge concluded
that “before it began operations, hoppers in the Berry III
bargaining unit were aware that Respondent intended to
make a number of significant changes.” He therefore
found that the Respondent was a regular Burns successor
that lawfully exercised its prerogative to set initial terms
and conditions of employment that differed from those es-
tablished by the predecessor.8 We disagree, for the rea-
sons that follow.
As described above, by submitting applications, the
Berry III hoppers were agreeing to work for the Respond-
ent, and the Respondent was agreeing to hire them. The
judge’s reliance on Jackson’s June 2 announcement that
the hoppers were now working for the Respondent and un-
der new terms and conditions of employment—made after
the hoppers reported to work and were awaiting their truck
assignments for the day—ignored Board decisions clari-
fying that, to preserve its authority to set initial terms and
conditions of employment unilaterally, a successor must
clearly announce its intent to establish a new set of condi-
tions prior to, or simultaneously with, its expression of in-
tent to retain the predecessor’s employees.9 The Board
has consistently held, moreover, that a subsequent an-
nouncement of new terms, even if made before formal of-
fers of employment are extended or the successor com-
mences operations, will not vitiate the bargaining obliga-
tion that is triggered when a successor expresses an intent
to retain the predecessor’s employees without making it
clear that their employment is conditioned on the ac-
ceptance of new terms.10
In the present case, the judge’s own factual findings es-
tablish that the Respondent expressed an intent to retain
128, 128 fn. 1 (1991) (obligation to bargain over initial terms com-
menced when new employer informed employees that they could expect
to be retained without mentioning changes in preexisting terms); C.M.E.,
Inc., 225 NLRB 514, 514–515 (1976) (obligation to bargain over initial
terms commenced when new employer informed the union that it in-
tended to retain the predecessor’s employees without mentioning
changes in preexisting terms, rather than on later dates when applications
for employment were solicited or when the union and the new employer
met to discuss contract revisions).
10 See, e.g., Nexeo Solutions, LLC, 364 NLRB No. 44, slip op. at 5–7
(2016) (“the bargaining obligation attaches when a successor expresses
an intent to retain the predecessor’s employees without making it clear
that employment will be conditioned on acceptance of new terms”; the
subsequent announcement of new terms will not justify a refusal to bar-
gain); Adams & Associates, Inc., 363 NLRB No. 193, slip op. at 3–4
(2016) (“The Board has consistently held . . . that a subsequent announce-
ment of new terms, even if made before formal offers of employment are
extended, or before the successor commences operations, will not vitiate
the bargaining obligation that is triggered when a successor expresses an
intent to retain the predecessor’s employees without making it clear that
their employment is conditioned on the acceptance of new terms.”);
DuPont Dow Elastomers, LLC, 332 NLRB 1071, 1074 (2000) (“The
Board has consistently found that an announcement of new terms will
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the predecessor’s employees between mid-May and June
1. Examining the events culminating with the June 1 can-
cellation of Berry III’s agreement to provide hoppers to
Richard’s Disposal, the judge found that it was “perfectly
clear,” using those words in their ordinary sense, that the
Respondent intended to retain the Berry III hoppers as its
new work force and continue operations largely un-
changed. The judge emphasized that the transition from
Berry III to the Respondent would be an abrupt shift, and
Richard had to be sure he had enough hoppers lined up to
staff all of the trucks in advance. The judge additionally
emphasized that the Respondent “made no efforts to hire
hoppers from other sources,”11 and he opined:
If the Respondent had not intended to hire the members
of the bargaining unit, en masse, Richard [] or someone

not justify a refusal to bargain if . . . the employer has earlier expressed
an intent to retain its predecessor’s employees without indicating that
employment is conditioned on acceptance of new terms.”), enfd. 296
F.3d 495 (6th Cir. 2002); Canteen, 317 NLRB at 1053–1054; Starco
Farmers Market, 237 NLRB 373, 373 (1978) (“[W]here the new em-
ployer’s offer of different terms was simultaneous with the expression of
intent to retain the predecessor’s employees, the Board has found no duty
to bargain over initial employment terms. However, where the offer of
different terms was subsequent to the expression of intent to retain the
predecessor’s employees, the Board has regarded the expression of intent
as controlling and has found that the new employer was obligated to bar-
gain with union before fixing initial terms.” (internal citations omitted));
Roman Catholic Diocese of Brooklyn, 222 NLRB at 1055 (obligation to
bargain over initial terms commenced when the chairman of the new em-
ployer’s board of trustees expressed an intent to retain the predecessor’s
employees without mentioning any changes in preexisting terms; obliga-
tion was not vitiated when promise to rehire was later disavowed and
employees were specifically informed—before formal offers of employ-
ment were extended and operations began—that employment would be
on new terms and that the new employer “has no intention of being bound
by the terms and conditions of employment which prevailed” under the
predecessor).
The dissent argues that the Board’s case law holding that a new em-
ployer must announce its intent to establish new terms prior to or simul-
taneously with its expression of intent to retain the predecessor’s em-
ployees to avoid “perfectly clear” successor status should not control in
the “unique facts” of this case. Specifically, the dissent asserts that be-
cause the Respondent’s hiring process “remained in a state of flux right
up to the moment on June 2 when the hoppers accepted employment by
boarding the garbage trucks to begin work,” the “chronological end-
point” for determining whether the Respondent was a perfectly clear suc-
cessor “was June 2, its first day of operations.” This argument funda-
mentally misconstrues the “perfectly clear” exception. In Burns, the Su-
preme Court recognized that there will be instances in which it will per-
fectly clear before the hiring process is complete that the successor in-
tends to hire the predecessor’s employees as a majority of its initial work-
force. In those circumstances, the Court stated that “it will be appropriate
to have [the successor] initially consult with the employees’ bargaining
representative before he fixes terms.” 406 U.S. 294–295. The Court
contrasted that situation with the more common situation where “it may
not be clear until the successor employer has hired his full complement
of employees that he has a duty to bargain with a union, since it will not
be evident until then that the bargaining representative represents a ma-
jority of the employees in the unit . . . .” Id. Although the Board in
working for him would have interviewed applicants, ex-
amined qualifications, and checked references. Instead,
the Respondent chose merely to distribute applications,
with W-4 forms attached, to the hoppers in the Berry III
bargaining unit. Typically, a job applicant does not fill
out a W-4 form until hired, so inclusion of the tax form
with the application suggests that the Respondent had
little doubt about whom it would hire.
Relying on these facts, and Richard’s own testimony that he
was agreeing to hire Berry III hoppers who submitted appli-
cations, the judge found that there was “no doubt” that the
Respondent intended to retain the Berry III hoppers as its new
work force and that “filling out the application and tax forms
was a formality.”12 See Cadillac Asphalt Paving Co., 349
Spruce Up held that “[w]hen an employer who has not yet commenced
operations announces new terms . . . we do not think it can fairly be said
that the new employer ‘plans to retain all of the employees in the unit,’”
(209 NLRB at 195), the Board has consistently required that the an-
nouncement of new terms be made prior to or simultaneously with the
expression of intent to retain. And it is irrelevant if, as is often the case,
the hiring process is incomplete or “in a state of flux” at that point. See
cases cited above and in footnote 9.
11 The Respondent contends in its answering brief that it sought ap-
plicants from sources other than the predecessor’s employees. However,
the Respondent did not except to the judge’s contrary finding. It is there-
fore procedurally foreclosed from raising the issue for consideration by
the Board in its answering brief. See Richmond District Neighborhood
Center, 361 NLRB No. 74, slip op. at 1, fn. 1 (2014), citing White Elec-
trical Construction Co., 345 NLRB 1095, 1096 (2005) and Bohemian
Club, 351 NLRB 1065, 1067 fn. 6 (2007); see also the Board’s Rules and
Regulations Sec. 102.46(b)(2) (“Any exception to a ruling, finding, con-
clusion, or recommendation which is not specifically urged shall be
deemed to have been waived.”).
12 The Respondent and our dissenting colleague do not challenge the
judge’s finding that, by distributing job applications and W-4 forms to
the Berry III hoppers, the Respondent was offering to hire them. How-
ever, they contend that the Respondent’s inclusion of the W-4 forms with
the job applications also signaled a fundamental change in the hoppers’
terms and conditions of employment, namely, that if they accepted em-
ployment, they would cease being independent contractors with no taxes
withheld. They argue, therefore, that the Respondent timely informed
the hoppers that employment was being offered on different terms. We
disagree. As discussed above, to avoid “perfectly clear” successor
status, a new employer must “clearly announce its intent to establish a
new set of conditions” prior to or simultaneously with its expression of
intent to retain the predecessor’s employees. 209 NLRB at 195; Canteen,
317 NLRB at 1053–1054. Although the announcement need not be made
in any particular form, it must be sufficiently clear that a reasonable em-
ployee in like circumstances would understand that continued employ-
ment is conditioned on acceptance of materially different terms from
those in place under the predecessor. The inclusion of W-4 forms with
job applications, without explanation, let alone an express announcement
that taxes would be withheld from the hoppers’ pay, was too ambiguous
to meet this standard. The record does not disclose whether the hoppers
received W-4 forms when they applied to work for Berry III. Further,
although the term “independent contractor” has been used in these pro-
ceedings to describe the hoppers’ employment status under Berry III,
CREATIVE VISION RESOURCES, LLC 5
NLRB 6, 11 (2007) (finding that “by offering job applica-
tions and W-4 forms to [the predecessor’s] employees . . . [the
successor] invited the employees to accept employment”).
Based on this compelling evidence, we find that Jackson’s
announcement of new terms on June 2 came too late to re-
move the Respondent from the “perfectly clear” exception.
Nor do we find that the word-of-mouth communication
among the hoppers about the Respondent’s new pay rate
was legally sufficient notice to the hoppers or the Union
of the Respondent’s intent to establish new terms and con-
ditions of employment. The judge found, and we agree,
that “the record affords no way of quantifying how many
of the hoppers had learned about the $11per hour wage
rate or the other terms and conditions of employment be-
fore they reported for work . . . on June 2.” Only one hop-
per, Anthony Taylor, testified that he learned about the
new pay rate before June 2. However, he was not able to
identify the source of the information, other than to state:
“we all congregate out there in the morning. We been
knowing that.” In addition, Union director Hines testified
that, in May, several hoppers told her that they heard a new
company was taking over for Berry III, and at least one
hopper told her that he heard the new company would be
paying $11 an hour. Hines questioned the hoppers, but
“no hopper . . . could confirm where he got it from” or
“say that anyone in authority of their . . . new employer to
be, had stated that [their pay] would be $11 an hour.”
From the perspective of the employees and the Union,
then, the information about the Respondent’s new pay rate

there is no evidence that the hoppers considered themselves to be “inde-
pendent contractors” rather than “employees” of Berry III in a bargaining
unit represented by the Union. Furthermore, a number of hoppers wrote
on their W-4 forms that they were exempt from paying taxes, suggesting
that they did not understand that taxes would be withheld from their pay
if they accepted employment with the Respondent, let alone that their
terms and conditions of employment would be changed. Indeed, none of
the hoppers testified that they understood that the Respondent planned to
deduct taxes from their pay before Jackson’s announcement on June 2.
The cases cited by our dissenting colleague are distinguishable. In
Ridgewell’s, Inc., 334 NLRB 37 (2001), enfd. 38 Fed.Appx. 29 (D.C.
Cir. 2002), the new employer, during one of its first contacts with the
union and before the hiring process or operations began, expressly in-
formed the union that it would utilize the predecessor’s employees only
on an independent contractor basis. The Board found that the announce-
ment was both “timely” and “substantive, putting the union on notice that
a new set of employment conditions would be in effect.” Id. at 37. Sim-
ilarly, in S & F Market Street Healthcare, LLC v. NLRB, 570 F.3d 354,
360–361 (D.C. Cir. 2009), denying enf. to Windsor Convalescent Center
of North Long Beach, 351 NLRB 975 (2007), the court found that by
expressly informing the predecessor’s employees that any employment
would be “at will,” the successor signaled a significant and material
change from employment under the “just cause” provision of the collec-
tive-bargaining agreement between the predecessor and incumbent un-
ion. Here, in contrast, the Respondent did not expressly inform the Un-
ion or the hoppers that the hoppers would be treated as employees rather
was unsubstantiated rumor or gossip until it was con-
firmed by Jackson on June 2. Gossip, conjecture, and un-
substantiated rumors cannot take the place of the clear an-
nouncement of intent to establish a new set of conditions
required by Spruce Up.13
Similarly, we find Richard’s communications of new
terms to approximately 20 Berry III hoppers between mid-
May and June 1 did not remove the Respondent from the
“perfectly clear” exception. The judge found that Richard
“told some of the hoppers—those to whom he gave em-
ployment application forms—” of the planned changes in
terms and conditions of employment. Richard testified
that he distributed applications to only 20 hoppers. The
only other person who distributed applications was
Flagge, and the credited testimony establishes that Flagge
did not inform any of the hoppers to whom he gave appli-
cations of the Respondent’s new terms. Accordingly, the
record clearly establishes that the Respondent failed to
give notice of different initial terms to 50 of the approxi-
mately 70 Berry III hoppers from whom it solicited appli-
cations on or before June 1.
To hold that a successor can avoid the obligation to bar-
gain over initial terms in these circumstances would invite
abuse. A new employer, wishing to take advantage of the
skill and experience of the incumbent employees while
avoiding the bargaining obligation of a “perfectly clear”
successor, would be encouraged to announce changes in
preexisting terms to only a select few incumbent employ-
ees, while allowing the majority of the employees to be
lulled by its silence into not seeking other work. Such a
than as independent contractors. And it did not inform the majority of
the hoppers that they would have taxes withheld from their pay until after
the bargaining obligation had already attached.
13 The judge found that Jackson notified some of the hoppers “in ad-
vance, while they were still working for Berry III,” about the Respond-
ent’s initial terms and conditions of employment. In so finding, the judge
relied on the testimony of hopper Kumasi Nicholas. However, the judge
misconstrued Nicholas’ testimony. Nicholas testified that he could not
recall when Jackson told him about the initial terms. Asked on direct
examination, “what happened on the very first day that [the Respondent]
began operations,” Nicholas testified, “Well, they told us ahead of
time—Mrs. Jackson told us ahead of time, you know, might be switching
over to another little company where—you know, a pay rate, and she just
let us know ahead of time, and then that’s when, you know, they started
off.” An effort to clarify whether Nicholas learned about the pay rate
during Jackson’s meeting with the hoppers on the morning of June 2
brought the response, “I’m not sure. It’s been about a year. . . . . I know
she told me that, but I’m not sure.” Even assuming, moreover, that Jack-
son discussed the Respondent’s pay rate with the hoppers before June 2,
the record does not support a finding that she did so as an agent of the
Respondent. Richard hired Jackson on June 1 (after she put the hoppers
on the trucks), and she began working for the Respondent on June 2.
There is no evidence that Richard, or anyone else in a position of author-
ity with the Respondent, informed Jackson of the hoppers’ initial terms
and conditions of employment or authorized Jackson to speak on the Re-
spondent’s behalf before she was hired.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
result would be at odds with the clear import of the Su-
preme Court’s decision in Burns and the Board’s decision
in Spruce Up. See S & F Market Street Healthcare, 570
F.3d at 359 (holding that, “at bottom the ‘perfectly clear’
exception is intended to prevent an employer from induc-
ing possibly adverse reliance upon the part of employees
it . . . lulled into not looking for other work”); Interna-
tional Assn. of Machinists and Aerospace Workers, AFL–
CIO v. NLRB, 595 F.2d 664, 674–675 (D.C. Cir. 1978)
(approving the Board’s imposition of an initial bargaining
obligation on the basis that “unconditional retention-an-
nouncements engender expectations, ofttimes critical to
employees, that prevailing employment arrangements will
remain essentially unaltered . . . . [U]nless [the predeces-
sor’s employees] are apprised promptly of impending re-
ductions in wages or benefits, they may well forego the
reshaping of personal affairs that necessarily would have
occurred but for anticipation that successor conditions will
be comparable to those in force.”), cert denied, 439 U.S.
1070 (1979).
Thus, a new employer that expresses an intent to retain
the predecessor’s work force without concurrently reveal-
ing to a majority of the incumbent employees that differ-
ent terms will be instituted, improperly benefits from the
likelihood that those employees, lacking knowledge that
terms and conditions will change, will choose to stay in
the positions they held with the predecessor, rather than
seeking employment elsewhere.
As the Board has observed, “[t]he Spruce Up test fo-
cuses on gauging the probability that employees of the
predecessor will accept employment with the successor.”
Road & Rail Services, Inc., 348 NLRB 1160, 1162 (2006)
(citing Spruce Up; Machinists, 595 F.2d at 673 fn. 45 (ob-
serving that in applying the Spruce Up test “the relevant
factor is the degree of likelihood that incumbents will
work for the successor”)). The Board explained in Spruce
Up:
When an employer who has not yet commenced opera-
tions announces new terms prior to or simultaneously
with his invitation to the previous work force to accept
employment under those terms, we do not think it can
fairly be said that the new employer “plans to retain all
of the employees in the unit,” as that phrase was in-
tended by the Supreme Court. The possibility that the
old employees may not enter into an employment rela-
tionship with the new employer is a real one, as illus-
trated by the present facts. . . . . Since that is so, it is

14 As the judge found, by turning in their applications and tax forms
to the Respondent, the Berry III hoppers were agreeing to work for the
Respondent and the Respondent was agreeing to hire them. On June 1,
the Respondent had approximately 70 completed applications from
surely not “perfectly clear” to either the employer or to
us that he can “plan to retain all of the employees in the
unit” under such a set of facts. 209 NLRB at 195.
The Board theorized that a successor’s plan to hire at
least the majority of its employees from the work force of
its predecessor is not likely enough to succeed when its
offer of employment is coupled with an announcement of
reduced wages and benefits, and in such circumstances no
duty to bargain over initial terms and conditions of em-
ployment would arise. Applying that rationale here, Rich-
ard’s announcement of new terms to approximately 20
Berry III hoppers did not negate the inference of probable
continuity of employment of the remaining 50 Berry III
hopper applicants, who lacked knowledge that their wages
and benefits would be reduced. The Respondent’s plan to
hire at least a majority of its employees from the ranks of
the Berry III hoppers was therefore reasonably certain to
succeed. Moreover, by June 1, it was clear that the Re-
spondent’s plan had indeed succeeded.14 The Respondent
was therefore obligated as of that date to consult with the
Union before imposing initial terms.
The Respondent, joined by our dissenting colleague,
contends that, even assuming it was “perfectly clear” that
the Respondent planned to retain the Berry III hoppers on
June 1, the bargaining obligation was not triggered until
the Union demanded bargaining on June 6 and, therefore,
the Respondent lawfully established initial terms and con-
dition of employment on June 2. We find no merit in that
argument.
The rule invoked by the Respondent and our dissenting
colleague—that a bargaining obligation is triggered only
when the union has made a bargaining demand—devel-
oped in a very different context. In Fall River Dyeing &
Finishing Corp. v. NLRB, 482 U.S. 27 (1987), the Su-
preme Court addressed the question when the bargaining
obligation is triggered in circumstances where there has
been a hiatus between the closing and reopening of an en-
terprise and/or a successor gradually builds up its work
force over a period of time. The Court held that, in those
circumstances, the successor’s duty to bargain is not trig-
gered until (1) the successor is engaged in normal opera-
tions with a “substantial and representative complement”
of employees, a majority of whom were employed by the
predecessor, and (2) the union has demanded recognition
or bargaining. Id. at 51–52. However, nothing in the lan-
guage or the reasoning of Fall River supports the exten-
Berry III hoppers, a number sufficient to fully staff the trucks operated
by Richard’s Disposal; Richard therefore cancelled the contract with
Berry III on that date.
CREATIVE VISION RESOURCES, LLC 7
sion of these criteria to the “perfectly clear” successor con-
text. Indeed, application of these criteria would eviscerate
the “perfectly clear” exception, which is intended to pro-
mote bargaining before the successor hires the predeces-
sor’s employees and fixes initial terms, in circumstances
where the successor intends to retain as its work force a
majority of the predecessor’s employees.
The Respondent and our dissenting colleague have cited
no case in which the Board or courts have applied the Fall
River criteria in the “perfectly clear” successor context.
To the contrary, in Cadillac Asphalt, 349 NLRB at 9–11,
cited by the Respondent in its answering brief, the Board
discussed the two-prong rule of Fall River but ultimately
found that the new employer’s obligation as a “perfectly
clear” successor to bargain over initial terms arose before
the union demanded bargaining. See also C.M.E., 225
NLRB at 514–515, where the Board reversed the admin-
istrative law judge’s finding that the successor’s obliga-
tion to bargain commenced on the date the union de-
manded recognition, and found, instead, that the obliga-
tion commenced on the earlier date when the successor
made it “perfectly clear” that it planned to retain all or sub-
stantially all of the predecessor’s employees. Cadillac As-
phalt and C.M.E. are consistent with a long line of cases
where the Board, without addressing Fall River, found
that a “perfectly clear” successor’s obligation to bargain
over initial terms commenced before the predecessor’s
employees were formally hired and normal operations be-
gan and/or before the union demanded recognition and
bargaining. Nexeo Solutions, LLC, 364 NLRB No. 44, slip
op. at 5–9 (finding that obligation to bargain over initial
terms commenced before successor hired employees and
before union demanded bargaining); Adams, 363 NLRB
No. 193, slip op. at 4–5 (same); Canteen, 317 NLRB at
1052–1054 (same); Level, a Div. of Worcester Mfg., Inc.,
306 NLRB 218, 218, 220 (1992) (same). See also Elf
Atochem North America, Inc., 339 NLRB at 796 (finding
that obligation to bargain over initial terms commenced
before successor hired employees); DuPont Dow, 332

15 The dissent contends that dispensing with the Fall River criteria in
the “perfectly clear” successor context is impractical because: there is
no certainty that the union will even seek to represent the predecessor’s
employees in the new work force; the employer may already have a work
force represented by a different union; it is possible that none of the pre-
decessor’s employees will accept employment with the new employer;
and there may be no evidence that the predecessor’s union is supported
by the predecessor’s employees. At the root of these concerns is an ele-
mental misunderstanding of the “perfectly clear” successor doctrine.
The “perfectly clear” exception applies only in circumstances where the
continuity of the existing work force and the union’s majority status in
the new work force are reasonably certain. See Burns, 406 U.S. at 294–
295 (recognizing that “there will be instances in which it is perfectly
clear that the new employer plans to retain all of the employees in the
unit and in which it will be appropriate to have him initially consult with
NLRB at 1075 (same); Helnick Corp, 301 NLRB at 128
fn. 1 (1991) (same); Spitzer Akron, 219 NLRB at 23 (find-
ing that obligation to bargain commended before union
demanded bargaining).15
In sum, we find that the Respondent is a “perfectly
clear” successor and that it violated Section 8(a)(5) and (1)
of the Act by announcing and implementing unilateral
changes in the unit employees’ terms and conditions of
employment on and after June 2, 2011.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 3 and
4:
“3. Beginning June 2, 2011, and continuing to date, the
Respondent has failed and refused to recognize and bar-
gain with Local 100, United Labor Unions, as the exclu-
sive collective-bargaining representative of its employees
in the appropriate unit described in paragraph 2, above,
and thereby has violated Section 8(a)(5) and (1) of the
Act.”
“4. The Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of the
Act by announcing and implementing unilateral changes
in the unit employees’ existing terms and conditions of
employment on and after June 2, 2011, including promul-
gating new work rules and changing the manner in which
employees are paid. The above unfair labor practices af-
fect commerce within the meaning of Section 2(6) and (7)
of the Act.”
AMENDED REMEDY
We amend the judge’s proposed remedy to address the
additional violations that we have found. Having found
that the Respondent is a perfectly clear successor and that
it violated Section 8(a)(5) and (1) of the Act by failing to
bargain with the Union prior to changing existing terms
and conditions of employment for the unit employees, we
shall require the Respondent, on request of the Union, to
retroactively restore the terms and conditions of employ-
the employees’ bargaining representative before he fixes terms”);
DuPont Dow, 332 NLRB at 1073 (interpreting Spruce Up as requiring
“both a manifestation of intent on the part of the employer to retain all or
substantially all of its predecessor’s employees and also a substantial
likelihood that those offered employment will accept it”). Moreover,
under current law, when a business changes hands and the new employer
is a successor, the union is entitled to an irrebuttable presumption of ma-
jority support for a reasonable period of bargaining, preventing any chal-
lenge to the union’s status, whether by the employer’s unilateral with-
drawal of recognition or by an election petition. UGL-UNICCO Service
Co., 357 NLRB 801 (2011). Accordingly, a successor (whether a regular
Burns successor or a “perfectly clear” successor) must recognize and bar-
gain with the union that represented its predecessor’s employees for a
reasonable period of time—even if it has affirmative evidence that the
union is no longer supported by the predecessor’s employees.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment established by its predecessor and to rescind the uni-
lateral changes it has made, except for the payroll deduc-
tions required by Federal, State, or local law.16 The Re-
spondent shall also be required to make employees whole
for any loss of wages or other benefits they suffered as a
result of the Respondent’s unilateral changes in the man-
ner set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010), except for the changes in
the unit employees’ net pay resulting from the payroll de-
ductions required by Federal, State, or local law.
Finally, the Respondent shall be required to compensate
affected employees for the adverse tax consequences, if
any, of receiving lump-sum backpay awards, and file with
the Regional Director for Region 15, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee. Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
ORDER
The National Labor Relations Board orders that the Re-
spondent, Creative Vision Resources, LLC, New Orleans,
Louisiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit.
(b) Unilaterally changing the terms and conditions of
employment of its unit employees without providing the
Union with notice and an opportunity to bargain.
(c) 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 in good faith
with the Union as the exclusive collective-bargaining rep-
resentative of the employees in the following appropriate
unit concerning terms and conditions of employment and,
if an understanding is reached, embody the understanding
in a signed agreement:
All full-time and part-time hoppers employed by Crea-
tive Vision Resources, LLC, who work on trucks in the

16 The Order shall not be construed as requiring or authorizing the
Respondent to rescind any improvements in the unit employees’ terms
and conditions of employment unless requested to do so by the Union.
17 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
collection of garbage and trash in the Greater New Orle-
ans, Louisiana area, excluding all other employees,
guards and supervisors as defined in the Act.
(b) Before implementing any changes in the bargaining
unit employees’ wages, hours, or other terms and condi-
tions of employment, notify and, on request, bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the bargaining unit described
above.
(c) On request of the Union, rescind any changes in the
terms and conditions of employment for the unit employ-
ees that were unilaterally implemented on and after June
2, 2011, except for the changes implemented with respect
to payroll deductions required by Federal, State and local
law.
(d) Make the unit employees whole, with interest, for
any losses sustained as a result of the unilateral changes in
terms and conditions of employment in the manner set
forth in the remedy section of this decision.
(e) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 15,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for each
employee.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(g) Within 14 days after service by the Region, post at
its New Orleans, Louisiana, facility copies of the attached
notice marked “Appendix.”17 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
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.”
CREATIVE VISION RESOURCES, LLC 9
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of busi-
ness or closed the facility involved in this proceeding, the
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
June 2, 2011.
(h) Within 21 days after service by the Region, file with
the Regional Director for Region 15 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. August 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member

1 Under Burns and Fall River Dyeing & Finishing Corp. v. NLRB, 482
U.S. 27 (1987), a legal successor—i.e., an employer that acquires and
continues (in substantially unchanged form) the business of a unionized
predecessor, and hires as a majority of its work force (or of a segment of
its work force constituting an appropriate bargaining unit) the predeces-
sor’s union-represented employees—must, upon receiving a demand for
recognition or bargaining, recognize and bargain with the unit employ-
ees’ incumbent bargaining representative. However, the successor is not
bound by the terms of the predecessor’s labor contract and has the right
to set its own different initial terms and conditions of employment. As
the Supreme Court stated in Fall River Dyeing, the Court in Burns “was
careful to safeguard the rightful prerogative of owners independently to
rearrange their businesses” (internal quotations omitted). 482 U.S. at 40.
2 As more fully explained in the judge’s decision, Respondent’s pre-
decessor, Berry III, was a labor contractor in the business of furnishing
individuals called “hoppers” to trash collection companies in the New
Orleans area, including a company called Richard’s Disposal. Richard’s
Disposal is owned by Alvin Richard, Jr. The owner and president of the
Respondent is Alvin Richard III (Richard III). “Hoppers” ride on the
rear of garbage trucks and load garbage from trash containers into the
truck.
3 The general rule, stated above in fn. 1, is that a successor employer
has the right to set its own different initial terms and conditions of em-
ployment. However, the Court in Burns recognized a limited exception
to this right in situations where “it is perfectly clear that the new em-
ployer plans to retain all of the employees in the unit and in which it will
be appropriate to have him initially consult with the employees’ bargain-
ing representative before he fixes terms.” 406 U.S. at 294–295. “The
‘perfectly clear’ exception is and must remain a narrow one because it
conflicts with ‘congressional policy manifest in the Act . . . to enable the
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.
In this case, the judge found that, under NLRB v. Burns
International Security Services, 406 U.S. 272 (1972)
(Burns),1 the Respondent was a legal successor to the un-
ionized predecessor employer, Berry III,2 and violated
Section 8(a)(5) and (1) of the National Labor Relations
Act (NLRA or Act) by failing to recognize and bargain in
good faith with unit employees’ incumbent bargaining
representative, Local 100, United Labor Unions (the Un-
ion), on and after June 6, 2011, the date the Union de-
manded recognition and bargaining. There are no excep-
tions to these findings.
The principal issue on exceptions arises from the
judge’s finding that, contrary to the General Counsel’s
further allegation, the Respondent was not a “perfectly
clear” successor to Berry III, and therefore did not violate
Section 8(a)(5) of the Act when it set initial terms and con-
ditions of employment for unit employees without bar-
gaining with the Union.3 My colleagues reverse the
judge’s dismissal of this allegation and find that the Re-
spondent was a “perfectly clear” successor. Applying the
standard set forth in Spruce Up, supra, I would find, in
agreement with the judge and contrary to my colleagues,
that the facts establish that the Respondent was not a “per-
fectly clear” successor.4
parties to negotiate for any protection either deems appropriate, but to
allow the balance of bargaining advantage to be set by economic power
realities.’” S&F Market Street Healthcare LLC v. NLRB, 570 F.3d 354,
359 (D.C. Cir. 2009) (quoting Burns, 406 U.S. at 288). The Board inter-
preted the “perfectly clear” exception in Spruce Up Corp., 209 NLRB
194 (1974), enfd. mem. 529 F.2d 516 (4th Cir. 1975). See fn. 4, below.
4 In Spruce Up, the Board interpreted the limited “perfectly clear” ex-
ception to the general rule of Burns to be “restricted to circumstances in
which the new employer has either actively or, by tacit inference, misled
employees into believing they would all be retained without change in
their wages, hours, or conditions of employment,” or “where the new
employer has failed to clearly announce its intent to establish a new set
of conditions prior to inviting former employees to accept employment.”
209 NLRB at 195; accord Ridgewell’s, Inc., 334 NLRB 37 (2001), enfd.
38 Fed. Appx. 29 (D.C. Cir. 2002). And the Board in Spruce Up made
clear that by “prior to,” it meant “prior to or simultaneously with”:
“When an employer who has not yet commenced operations announces
new terms prior to or simultaneously with his invitation to the previous
work force to accept employment under those terms, we do not think it
can fairly be said that the new employer ‘plans to retain all of the em-
ployees in the unit,’ as that phrase was intended by the Supreme Court.”
209 NLRB at 195 (emphasis added). Significantly, Spruce Up does not
mandate that an employer announce its intent to establish new employ-
ment terms in any particular form to any specific number or percentage
of its predecessor’s unit employees. All that is required is a communi-
cation that “portend[s] employment under different terms and condi-
tions.” Ridgewell’s, 334 NLRB at 37; see S&F Market Street
Healthcare, 570 F.3d at 359 (“[A]t bottom the ‘perfectly clear’ exception
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The key point of my disagreement with my colleagues
concerns whether, as stated in Spruce Up, supra, the Re-
spondent “failed to clearly announce its intent to establish
a new set of conditions prior to inviting former employees
to accept employment.” My colleagues find that the Re-
spondent failed to timely announce its intent to establish
new employment terms. In this regard, I believe that my
colleagues have erred by applying “perfectly clear” suc-
cessor law in an excessively rigid and formalistic manner
that does not do justice to the unique facts of this case,
especially the nature of the Respondent’s hiring process.
In concluding, contrary to my colleagues, that the Re-
spondent did not fail to announce, at the appropriate time,
its intent to establish new terms and conditions of employ-
ment, I emphasize the following points.
As the judge’s detailed recitation of the facts shows,
Richard III decided to form the Respondent as a new labor
supply company to replace Berry III as the provider of
hoppers to Richard’s Disposal. Richard III was, as the
judge stated, “displeased with the laxity of Berry III and
determined to run his company differently, in compliance
with the law and with greater attention to workplace
safety.” Among other things, Richard III wanted to cor-
rect what he perceived to be Berry III’s erroneous treat-
ment of hoppers as independent contractors instead of em-
ployees, reflected in part by the fact that Berry III did not
deduct income taxes from the hoppers’ pay. To carry out
the transition from Berry III to the Respondent without an
interruption in trash-collection services, the Respondent
had to ensure that it had a sufficient number of hoppers
available to supply to Richard’s Disposal to staff the lat-
ter’s garbage trucks the day after Richard’s Disposal ter-
minated its labor-supply contract with Berry III. How the

is intended to prevent an employer from inducing possibly adverse reli-
ance upon the part of employees it misled or lulled into not looking for
other work.”).
Only the second part of the Spruce Up gloss on Burns’ “perfectly
clear” exception—i.e., whether the Respondent timely notified the hop-
pers of its intention to set new terms and conditions of employment—is
at issue here. The judge found that the credited evidence would not sup-
port a finding that the Respondent had misled employees, either actively
or by tacit inference, to believe that they would all be retained without
any changes in their terms and conditions of employment. My col-
leagues do not disagree with this finding.
5 All dates are 2011.
6 Although Richard’s Disposal cancelled its contract with Berry III on
June 1, I believe that the chronological endpoint for determining whether
the Respondent, under Spruce Up, timely communicated its intention to
set initial terms and conditions of employment was June 2, its first day
of operations. As the judge described, Richard III testified that through-
out the application process, he was hiring hoppers to work for him if he
needed them. Thus, the Respondent would not know precisely which
hoppers it needed until they showed up on June 2. Indeed, the record
reflects that the Respondent was still handing out applications on that
day. Moreover, on the morning of June 2, after the Respondent an-
nounced its employment terms to the hoppers gathered in the yard, some
Respondent’s hiring process unfolded is vital to determin-
ing whether the Respondent was a “perfectly clear” suc-
cessor.
The Respondent’s hiring process began on or about
May 19, 2011,5 but remained in a state of flux right up to
the moment on June 2 when the hoppers accepted employ-
ment by boarding the garbage trucks to begin work.6
Thus, in determining whether the Respondent fulfilled its
obligation under Spruce Up to clearly announce to the
hoppers its intention to set new terms and conditions of
employment prior to or simultaneously with inviting them
to accept employment, we must examine what the Re-
spondent communicated to the hoppers on or before June
2.
As to that critical issue, the judge found that (1) prior to
June 2, Richard III told a number of hoppers (but appar-
ently not more than 20) about the Respondent’s new terms
and conditions of employment; (2) starting in May, the
Respondent began distributing applications to Berry III
hoppers with W-4 tax withholding forms attached; and (3)
shortly before 4 a.m. on the morning of June 2, before
work started and before hoppers boarded the trucks, the
Respondent, through its supervisor, Karen Jackson, com-
municated to all the hoppers gathered in the yard its new
terms and conditions of employment, which the hoppers
were free to accept or refuse. Forty-four hoppers accepted
those terms and boarded the trucks, which the judge found
was a representative complement of the predecessor’s
hoppers. Accordingly, based on the credited evidence, I
would find, in agreement with the judge, that the Respond-
ent provided timely notice to the hoppers of its intention
to set new terms and conditions of employment.7
of them chose to accept employment on the offered terms by climbing
onto a truck, and others decided not to accept employment on those terms
and left the yard. Thus, hiring was an ongoing process that continued
right up to June 2, when the Respondent spelled out in detail the terms
on which it was offering employment.
7 My colleagues cite several cases in support of their view that Jack-
son’s June 2 announcement of initial terms and conditions came too late
to prevent the attachment of “perfectly clear” successor status. I will not
belabor my discussion by distinguishing those cases individually. Suf-
fice it to say that none of them presents the unusual facts presented here,
which demonstrate that the Respondent fulfilled its obligation under
Spruce Up to clearly announce to employees its intention to set new
terms and conditions of employment at the appropriate time in the cir-
cumstances of this case, namely, before inviting them to accept employ-
ment on June 2. Moreover, as explained more fully in the text, prior to
June 2 the Respondent distributed a job application to each hopper with
a W-4 tax withholding form attached, which was independently suffi-
cient to “portend employment under different terms and conditions,”
Ridgewell’s, 334 NLRB at 37, because the tax withholding forms placed
the hoppers on notice that they would no longer be paid as independent
contractors with no income tax withheld as they had been with predeces-
sor Berry III. And in any event, by June 2, the Respondent had clearly
informed hoppers of the new terms and conditions of employment: prior
CREATIVE VISION RESOURCES, LLC 11
Even assuming for the sake of argument that Jackson’s
June 2 announcement of new initial employment terms
came too late to remove the Respondent from the “per-
fectly clear” exception, the Respondent’s earlier actions
clearly portended employment under different terms and
conditions than those of Berry III and were thus inde-
pendently sufficient to render the “perfectly clear” excep-
tion inapplicable. As the judge described in his recitation
of the facts (but did not discuss in his legal analysis under
Spruce Up), the Respondent attached a tax withholding
form to the job application it provided to each of the hop-
pers. The inclusion of these tax forms is especially com-
pelling evidence of the Respondent’s intention to set new
terms of employment different from its predecessor’s. As
mentioned above, one of Richard III’s primary goals in
establishing the Respondent was to correct what he saw as
Berry III’s allegedly lax management practices, including
improperly treating hoppers as independent contractors
with no taxes withheld from their pay. Among other
things, Richard III was determined to treat hoppers as em-
ployees. Importantly, the tax withholding form provided
to hoppers along with the application was the sort that an
employee (as opposed to an independent contractor) re-
ceives. The tax forms thus signaled a fundamental change
in hoppers’ terms and conditions of employment, namely,
that if they accepted employment by the Respondent, they
would cease being independent contractors paid by the
day with no taxes withheld and would become employees
from whose paychecks taxes would be withheld. And be-
cause the hoppers received these withholding forms with
their applications—and signed (and in virtually every case

to June 2, Richard III had informed approximately 20 hoppers about the
new terms and conditions, and on June 2, Jackson told all the assembled
hoppers about the new terms and conditions of employment.
I am concerned that my colleagues have failed to fully recognize that,
as the D.C. Circuit emphasized in S&F Market Street Healthcare, the
“perfectly clear” exception “is and must remain a narrow one because it
conflicts with ‘congressional policy manifest in the Act . . . to enable the
parties to negotiate for any protection either deems appropriate, but to
allow the balance of bargaining advantage to be set by economic power
realities.’” 570 F.3d at 359 (quoting Burns, 406 U.S. at 288). As I stated
recently in another case dealing with the “perfectly clear” exception, “the
policies at issue here . . . should make the Board reluctant to find ‘per-
fectly clear’ successorship.” Nexeo Solutions, LLC, 364 NLRB No. 44,
slip op. at 18 fn. 8 (2016) (Member Miscimarra, dissenting in part). “Per-
fectly clear” successor law is not a legal trap, and it does not require any
particular form of communication. In short, I believe my colleagues take
an excessively formalistic approach that does not adequately account for
the reality that the Respondent’s hiring process was in flux right up to
the morning of June 2. As of June 1, Richard III believed he had a large
enough pool of applicants for Richard’s Disposal to cancel its contract
with Berry III. But he did not know which of the hoppers from that pool
would show up the next day. On the morning of June 2, Jackson an-
nounced in detail the new terms and conditions to the hoppers who
showed up. Those who accepted were hired on the spot.
also dated) the withholding forms—it reasonably follows
that they were on notice that the Respondent was offering
employment on new and different terms.
The instant case is therefore similar to Ridgewell’s, 334
NLRB at 37. In Ridgewell’s, the employer, prior to hiring
or commencing operations, announced that it would hire
the predecessor’s catering employees as independent con-
tractors. The Board found that the employer was not a
“perfectly clear” successor because its announcement of a
shift to independent contractor status for the former em-
ployees “portended employment under different terms and
conditions” and thus clearly signaled that Ridgewell’s
terms and conditions of employment would differ from its
predecessor’s. Id. at 37–38. Similarly, the inclusion of
the tax forms with the job applications in the instant case
portended an equally fundamental change in hoppers’
terms and conditions: treatment as employees with in-
come taxes withheld from their pay, as opposed to inde-
pendent contractors with no income taxes withheld. See
also S&F Market Street Healthcare, 570 F.3d at 354 (“per-
fectly clear” exception inapplicable where successor in-
formed applicants that employment would be “at will,”
where under predecessor, unit employees employed for 90
days or more could be discharged only for cause; all that
is required is “a portent of employment under different
terms and conditions”).
I am not persuaded by my colleagues’ contrary position.
First, they minimize the fact that, as described above, the
inclusion of tax withholding forms with the applications
portended to the hoppers that the Respondent was offering
them employment under different terms and conditions.8
8 In arguing that the hoppers would not have been on notice that em-
ployment was being offered on “significantly different terms” based on
the inclusion of tax withholding forms with the job applications, the ma-
jority states that the “record does not disclose whether the hoppers re-
ceived W-4 forms when they applied to work for Berry III.” But the
majority acknowledges that “[t]he record shows . . . that Berry III paid
the hoppers a flat rate of $103 per day with no overtime, and made no
deductions for taxes or social security” (emphasis added). Since the rec-
ord establishes that Berry III did not deduct income taxes from the hop-
pers’ pay, it is reasonable to infer that Berry III did not require hoppers
to fill out a useless W-4 form, the sole purpose of which is to enable the
employer to withhold the correct amount of income tax. The inclusion
of W-4 forms by Richard III clearly indicated a change in employment
terms.
Further seeking to minimize the significance of the W-4s attached to
the applications, my colleagues assert that some hoppers may not have
considered themselves to be “independent contractors” under Berry III
or “underst[ood]” that taxes would be withheld. The issue, however, is
not what the hoppers believed or understood, but what the Respondent
communicated to the hoppers prior to or simultaneously with inviting
them to accept employment. The inclusion with job applications of W-
4 forms—which state, on their face, that they refer to tax withholding—
signaled a fundamental change in hoppers’ employment status from not
having any money withheld from their pay to having money withheld.
My colleagues speculate that because “a number” of hoppers wrote on
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This act alone, however, was independently sufficient to
remove the Respondent from the “perfectly clear” excep-
tion to the general rule of Burns. See S&F Market Street
Healthcare, 570 F.3d at 360 (“a portent of employment
under different terms and conditions” suffices to make
“perfectly clear” exception inapplicable); Ridgewell’s,
334 NLRB at 37 (same). Further, the Respondent did an-
nounce to all hoppers—not just the approximately 20 hop-
pers Richard III spoke to when he gave them their appli-
cations—the changed terms and conditions on which it
was offering employment on the morning of June 2. After
that detailed announcement, some of the hoppers accepted
employment on the offered terms by climbing on a truck,
and others rejected employment on the offered terms by
leaving the yard. With that announcement, the “perfectly
clear” exception, already inapplicable by virtue of the dis-
tributed tax withholding forms, was rendered doubly inap-
plicable. See S&F Market Street Healthcare, 570 F.3d at
360 (“[T]he ‘perfectly clear’ exception applies only to
cases in which the successor employer has led the prede-
cessor’s employees to believe their employment status
would continue unchanged after accepting employment
with the successor.”).9
As a final matter, the record establishes that the Union
did not make any demand for recognition or bargaining
until June 6, which makes June 6 the earliest point in time
when the Respondent could be deemed a “successor” for
purposes of Section 8(a)(5). I believe this independently

their forms that they were exempt from paying taxes, this suggests “that
they did not understand that taxes would be withheld from their pay if
they accepted employment with the Respondent . . . .” Of course, many
hoppers apparently understood this perfectly well, since a number of
them filled out the forms in full. However, the issue again is not what
the hoppers understood, but what the Respondent communicated to
them; and the tax withholding forms attached to each application con-
veyed that hoppers would be accepting employment with the Respondent
on terms that differed from Berry III’s terms. Finally, my colleagues
attempt to distinguish Ridgewell’s and S&F Market Street Healthcare by
arguing that, unlike the successors in those cases, the Respondent did not
“expressly” notify the hoppers that they would be treated as employees
rather than independent contractors. I believe the inclusion of W-4 forms
with the job applications constituted sufficient notice in this regard.
Moreover, Supervisor Jackson reiterated the point when she addressed
the hoppers on the morning of June 2. My colleagues also distinguish
these cases on the basis that the Respondent “did not inform the majority
of the hoppers that they would have taxes withheld from their pay until
after the bargaining obligation had already attached.” However, the Re-
spondent attached a W-4 form to each job application distributed to the
hoppers, and the record shows that the first sentence in the instructions
at the top of the W-4 form states: “Complete Form W-4 so that your
employer can withhold the correct federal income tax from your pay.”
(The state tax withholding form has corresponding language.) I also re-
ject the unspoken premise of the majority’s statement, which is that the
bargaining obligation had already attached before Jackson addressed the
hoppers on June 2. As explained in the text, I find to the contrary.
9 Any lack of precision in the record about who received notice and
when is a failure of proof by the General Counsel, whose burden it was
precludes a finding that the Respondent was a “perfectly
clear” successor on or before June 2, when the Respondent
commenced operations after indicating, as explained
above, that there would be different employment terms.
It is well established that, in successorship cases, the
successor employer’s obligation to recognize and bargain
with the union commences only if and when two condi-
tions are met: (1) the union demands recognition or bar-
gaining, and (2) the successor is engaged in normal oper-
ations with a “substantial and representative complement”
of employees, a majority of whom were employed by the
predecessor.10 I respectfully disagree with my colleagues’
position that they can dispense with these requirements.
For good reasons, the Board and the courts have created
well-established successorship principles that identify the
precise point in time when a legal successor may be re-
quired to recognize and bargain with the union. For ex-
ample, in Fall River Dyeing, supra, the Supreme Court in-
dicated—consistent with longstanding Board and court
cases—that a successor employer’s obligation to recog-
nize and bargain with the union does not attach “until the
moment when the employer attains the ‘substantial and
representative complement,’” which is measured at the
time the employer has received a “demand” from the un-
ion. 482 U.S. at 52 (emphasis added); cf. Voith Industrial
Services, Inc., 363 NLRB No. 116, slip op. at 18–19
(2016) (Member Miscimarra, concurring in part and dis-
senting in part).11 Most importantly, if one dispenses with
to establish that the Respondent violated Sec. 8(a)(5) of the Act by set-
ting initial employment terms without bargaining with the Union, a vio-
lation that depends on proving the Respondent was a “perfectly clear”
successor. Necessarily, therefore, the General Counsel has the burden of
proving that the Respondent was a “perfectly clear” successor by show-
ing that it “failed to clearly announce its intent to establish a new set of
conditions prior to inviting former employees to accept employment.”
Spruce Up, 209 NLRB at 195 (emphasis added). Thus, it was for the
General Counsel to prove that the Respondent failed to announce new
employment terms to a sufficient number of hoppers, not on the Re-
spondent to prove it did.
My colleagues say that to “hold that a successor can avoid the obliga-
tion to bargain over initial terms in these circumstances would invite
abuse” because this would signal that successors could avoid “perfectly
clear” status by informing “only a select few” of the predecessor’s em-
ployees that different terms will be instituted. There is no basis for their
stated concern. Here, the facts establish that the Respondent informed
all the hoppers that it was offering employment on different terms. Prior
to June 2, Richard III informed some 20 hoppers about the new terms,
and on June 2, Supervisor Jackson told all the hoppers about the new
terms. And in any event, the inclusion of tax forms with job applications
given to all the hoppers “portend[ed] employment under different terms
and conditions.” Ridgewell’s, 334 NLRB at 37.
10 St. Elizabeth Manor, 329 NLRB 341, 344 fn. 8 (1999) (citing Royal
Midtown Chrysler Plymouth, 296 NLRB 1039, 1040 (1989)).
11 In line with numerous Board and court cases, the Supreme Court in
Fall River Dyeing held that if the union makes a premature demand for
bargaining, the employer at that time has no duty to recognize and bar-
gain with the union. In these circumstances, however, the Board and the
CREATIVE VISION RESOURCES, LLC 13
the requirement of a demand for bargaining before a new
employer can be deemed either a conventional or “per-
fectly clear” successor, the Board would impose bargain-
ing obligations on the new employer even though (i) the
employer has received no demand for recognition or bar-
gaining from any union, and there is no certainty that the
predecessor’s union will even seek to represent employees
who are hired or retained by the employer; (ii) the em-
ployer—for legitimate, nondiscriminatory reasons—may
already have a work force represented by a different union,
which may preclude lawful recognition of and bargaining
with the predecessor’s union; (iii) it is possible that the
predecessor’s employees, even though offered employ-
ment, will not accept employment with the new employer;
and (iv) there may be no evidence that the predecessor’s
union is supported by any employees who work for the
new employer. Moreover, when the employer does sub-
sequently receive a bargaining demand from the predeces-
sor’s union, it may be that none of the predecessor’s em-
ployees will have accepted offers of employment ex-
tended by the new employer. In these circumstances, un-
der successorship case law that dates back decades, the
new employer cannot be considered a legal “successor,”
and the new employer would violate the Act if it recog-
nized and bargained with the predecessor’s union.12
In sum, for the reasons stated above, I would find that
the Respondent was not a “perfectly clear” successor un-
der Spruce Up, and it did not violate the Act by unilater-
ally setting initial terms and conditions of employment.
Accordingly, I respectfully dissent.
Dated, Washington, D.C. August 26, 2016
______________________________________
Philip A. Miscimarra, Member

courts have created a “continuing demand” rule, under which “a prema-
ture demand that has been rejected by the employer . . . remains in force.”
482 U.S. at 52. Thus, as stated in the text, provided that the other pre-
requisites to successor status have been satisfied, the employer must rec-
ognize and bargain with the union if and when (1) it has received the
union’s demand for recognition or bargaining, and (2) the successor is
engaged in normal operations with a “substantial and representative
complement” of employees, a majority of whom were employed by the
predecessor. Id.
12 Sec. 9(a) provides for union recognition and bargaining only if the
union is supported by a “majority of the employees” in an appropriate
unit. Under Sec. 8(a)(2) of the Act, an employer commits an unfair labor
practice if it recognizes and bargains with a union that does not have
majority employee support. Although the Board and the courts have held
that the “majority” requirement may be satisfied in successorship cases
if there is sufficient evidence of business continuity and the existence of
a work force majority at the time the union has demanded recognition
and bargaining (provided that the employer at such time has a “substan-
tial and representative complement” of employees), the Act makes clear
NATIONAL LABOR RELATIONS BOARD
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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to recognize and bargain
with Local 100, United Labor Unions (the Union) as the
exclusive collective-bargaining representative of our em-
ployees in the bargaining unit.
WE WILL NOT unilaterally change your terms and con-
ditions of employment without negotiating in good faith
with the Union to agreement or to impasse.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL recognize and bargain with the Union as the
exclusive collective-bargaining representative of our em-
ployees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:
that the only basis upon which bargaining can be considered appropriate
is evidence sufficient to establish that the new employer is a legal “suc-
cessor”—again, that (1) the predecessor’s union has demanded recogni-
tion or bargaining, and (2) the successor is engaged in normal operations
with a “substantial and representative complement” of employees, a ma-
jority of whom were employed by the predecessor.
Decades of case law establish that the prerequisites of successor status
are not evaluated in the abstract. Rather, this evaluation is made only
when the union demands recognition or bargaining (or later if the union
made such a demand before the employer had a substantial and repre-
sentative complement of employees). My colleagues cite cases to the
contrary in the context of “perfectly clear” successorship. In none of
these cases did the Board squarely address (or discuss in depth) the issue
of whether a union must demand bargaining before “perfectly clear” suc-
cessor status attaches. And insofar as these cases could be interpreted as
indicating that a bargaining obligation could attach without a demand for
bargaining, I reject their reasoning.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All full-time and part-time hoppers employed by
Creative Vision Resources, LLC, who work on trucks
in the collection of garbage and trash in the Greater
New Orleans, Louisiana area, excluding all other
employees, guards and supervisors as defined in the
Act.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of your employment,
notify, and on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our unit
employees.
WE WILL, on request of the Union, rescind the changes
in the terms and conditions of employment for the unit
employees that we unilaterally implemented on and after
June 2, 2011, except for the changes we implemented with
respect to payroll deductions required by Federal, State, or
local law.
WE WILL make our unit employees whole for any losses
they sustained due to the unlawfully imposed changes, ex-
cept for the changes in net pay resulting from payroll de-
ductions required by Federal, State, or local law, with in-
terest.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 15, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
CREATIVE VISION RESOURCES
The Board’s decision can be found at
www.nlrb.gov/case/15–CA–020067 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
Andrew Miragliotta, Esq. and Kevin McClue, Esq., for the
General Counsel.
Clyde H. Jacob III, Esq. (Coats Rose, PC), and Ronald L.
Wilson, Esq., for the Respondent.
Rosa Hines, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. Respondent,
a successor, violated Section 8(a)(5) and (1) of the Act by failing
and refusing to recognize the Union which was the exclusive
representative of the predecessor’s bargaining unit employees.
However, Respondent did not violate the Act in other ways
alleged in the complaint.
Procedural History
This case began on June 17, 2011, when Local 100, United
Labor Unions (the Charging Party or the Union) filed the initial
unfair labor practice charge against Creative Vision Resources,
LLC (the Respondent). It amended this charge on November 9,
2011.
After an investigation, the Regional Director for Region 15 of
the National Labor Relations Board issued a complaint against
the Respondent on March 30, 2012. In doing so, she acted for
and on behalf of the Board’s Acting General Counsel (the
General Counsel or the government). The Respondent filed a
timely answer.
On May 23 and July 17, 2012, the Regional Director amended
the complaint. Respondent filed timely answers to these
amendments.
On August 15, 2012, a hearing opened before me in New
Orleans, Louisiana. On that day, on August 16 and 17 and
September 29, 2012, the parties presented evidence. After the
hearing closed, counsel filed posthearing briefs.
Admitted Allegations
In its answer and by stipulation during the hearing, the
Respondent admitted certain of the allegations raised in the
complaint. Specifically, the Respondent has admitted the
allegations raised in complaint paragraphs 1(a), 1(b), 2(a)—2(i),
3(a)—3(c), and 6. Based on these admissions, I find that the
government has proven the allegations raised in these
paragraphs.
Thus, I find that the unfair labor practice charge and amended
charge were filed and served as alleged.
The Respondent has not admitted the allegations, raised in
complaint subparagraphs 2(j) and 2(k), regarding the nature of
its business operations. It also has not admitted the allegation,
raised in complaint paragraph 4, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. However, it has admitted allegations sufficient to
establish that it is such an employer.
Specifically, the Respondent has admitted that, based on a
projection of its operations since about June 2, 2011, when it
began business, it will annually provide services valued in excess
of $50,000 to Richard’s Disposal, Inc. The Respondent also has
admitted that Richard’s Disposal is an enterprise within the State
of Louisiana which annually purchases and receives at its New
Orleans, Louisiana facility, directly from outside the State of
Louisiana, goods valued in excess of $50,000. Based on these
admissions, I conclude that the Respondent is subject to the
Board’s jurisdiction and meets the Board’s standards for the
assertion of jurisdiction. Further, I conclude that at all material
times, the Respondent has been an employer engaged in
CREATIVE VISION RESOURCES, LLC 15
commerce within the meaning of Section 2(2), (6), and (7) of the
Act.
The Respondent has admitted, and I find, that the following
individuals are its supervisors within the meaning of Section
2(11) of the Act and its agents within the meaning of Section
2(13) of the Act: Alvin Richard III, owner and president; Karen
Jackson, administrator.
Status of the Parties
In May 2010, Alvin Richard III (Richard III) incorporated the
Respondent to be a labor contractor providing workers to
Richard’s Disposal, a company operated by his father, Alvin
Richard Jr. (Richard Jr.). At the time of incorporation, another
entity, referred to here as Berry III, was performing this function,
and continued to do so until June 2, 2011.
Richard III is the owner and president of the Respondent, and
also is a vice president of Richard’s Disposal. However, the
complaint does not allege that Richard’s Disposal and the
Respondent are a single entity and the record would not establish
such an identity. For purposes of this case, the two businesses
are distinct and separate, notwithstanding Richard III’s service
in the management of both companies.
The employees furnished to Richard’s Disposal by the
Respondent (and previously by Berry III) are classified as
“hoppers.” As stated in the Respondent’s posthearing brief,
“Hoppers ride on the rear of the garbage trucks and load the
garbage from trash containers into the truck.”
Although the Respondent provides the same service that Berry
III had performed furnishing hoppers to work on another
company’s garbage trucks at one point Berry III had more
customers. At that time, Berry III furnished hoppers not only to
Richard’s Disposal but also to Metro Disposal, another trash
collection company in the New Orleans area.
Before proceeding further, to avoid confusion, it should be
noted that the entity referred to here as Berry III did business
under the following names at various times: M&B Services,
Berry Services, Inc., Milton Berry, and a second corporation also
called Berry Services, Inc. At hearing, the parties stipulated that
these businesses were a single entity and single employer. For
simplicity, the complaint calls this entity Berry III, as I do here.
Berry III was furnishing hoppers to Richard’s Disposal on
May 8, 2007, when the Board conducted a representation
election. On May 18, 2007, based on the results of that election,
the Board certified that Local 100, Service Employees
International Union was the exclusive representative, within the
meaning of Section 9(a) of the Act, of the following appropriate
unit of employees:
Included: All full-time and part-time hoppers employed by the
Employer who work as hoppers on trucks operated either by
Metro Disposal, Inc. and/or Richard’s Disposal, Inc. in the
collection of garbage and trash in the Greater New Orleans
area.
Excluded: All other employees, guards and supervisors as
defined in the Act.
The certification identified the employer as “M&B Services,”
the name which the entity, here called “Berry III,” was using at
the time. Berry III’s various name changes did not affect its
continuing duty to recognize and bargain with the certified
union.
In October 2009, Local 100 severed its affiliation with the
Service Employees International Union and began operating
under the name “Local 100, United Labor Unions.” Upon this
disaffiliation, bargaining unit employees who had been members
of Local 100, Service Employees International Union
automatically became members of Local 100, United Labor
Unions. They did not have to pay an initiation or transfer fee or
complete any applications.
The constitution of Local 100, United Labor Unions did not
change significantly from that of Local 100, Service Employees
International Union. Local 100 continued under essentially the
same leadership before and after the disaffiliation. Of the 10
individuals who were board members of Local 100, Service
Employees International Union, 9 became board members of
Local 100, United Labor Unions.
The disaffiliation did not affect the collective-bargaining
agreements, which Local 100, United Labor Unions assumed
and honored. It continued to represent employees in the
bargaining unit described above as well as employees of other
employers which had been parties to collective-bargaining
agreements with Local 100, Service Employees International
Union, and it has engaged in negotiations on behalf of such
employees. Based on these facts, I conclude that Local 100,
United Labor Unions is an organization in which employees
participate and which exists for the purpose of dealing with
employers concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work. Therefore, I
conclude that it is a labor organization within the meaning of
Section 2(5) of the Act.
Complaint subparagraph 8(f) alleges that Local 100, United
Labor Unions is the successor to Local 100, Service Employees
International Union, and succeeded to the bargaining rights of
Local 100, Service Employees International Union with respect
to the bargaining unit described above. The Respondent denies
such successorship.
The Respondent’s brief acknowledges the October 2009
disaffiliation but denies that there was continuity of
representation. The Respondent characterizes Local 100, United
Labor Unions as “not international in nature” and operating in
only three States. The Respondent further states:
The SEIU has another local in the New Orleans metropolitan
area, SEIU Local 21, and it was operating when the ULU
[United Labor Unions] began operations. Tr. 725-26. Judicial
notice can be taken under Federal Rule of Evidence 201 that
the SEIU is a larger, more influential and more economically
successful union than the ULU. This may be gleaned from the
unions’ respective websites, U. S. Department of Labor filings
by the unions, and news articles and reports.
Respondent’s argument is not persuasive. Even assuming,
solely for the sake of argument, that Local 100, United Labor
Unions is smaller and less influential than the Service Employees
International Union, the relevance of such a comparison escapes
me. For example, historians might well regard Andrew Johnson
as a less influential president than Abraham Lincoln, and
Johnson certainly was shorter. However, under the law, he was
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
indeed Lincoln’s successor. Relative political skill and physical
size were not cognizable factors. Likewise, here I will stick to
the criteria the Board has enunciated in its precedents.
The Respondent also points out that the hoppers represented
by the SEIU did not have an opportunity to vote on whether they
wished to disaffiliate from the SEIU and be represented by the
ULU and argues that this absence of a vote is material and should
be considered. In making this argument, the Respondent seeks
to distinguish Raymond F. Kravis Center for the Performing
Arts, 351 NLRB 143 (2007), which stands in the way. Therein,
the Board held that an employer is not relieved of its bargaining
obligation merely because a merger or affiliation is
accomplished without due process safeguards. In arguing that
the same principle should not be applied to disaffiliation, the
Respondent’s brief states:
The action of a union disaffiliating from another union is
unique from a union merger or affiliation. With a merger or
affiliation, unions typically decide to come together to augment
their economic strength and power. This, by its very nature
benefits the union membership that is merged. In contrast, a
disaffiliation typically involves a new union formed by leaving
a larger or more substantial one. That is what happened in the
case at hand. In disaffiliations, there is not the likelihood, as in
mergers, that the represented employees will be economically
better off or better represented. In the case of disaffiliations,
there is a greater need for the represented employees to be
protected. That is why a due process election in which the
affected employees vote is necessary.
However, the Board’s rationale in Raymond F. Kravis Center
for the Performing Arts did not depend on the likelihood that
employees would retain or gain bargaining power. Rather, this
decision rested on the Board’s understanding of NLRB v.
Financial Institution Employees of America Local 1182 (Seattle-
First), 475 U.S. 192 (1986). In that case, the Supreme Court held
that the Board cannot discontinue a certified union’s recognition
without determining that its affiliation with another union raised
a question of representation and, if so, conducting an election to
decide whether the certified union still is the choice of a majority
of the unit. The Board held that the lack of a membership vote
concerning union affiliation was insufficient to raise a question
concerning representation, that is, to make it “unclear whether a
majority of employees continue to support the reorganized
union.”
Following this logic, the appropriate inquiry here is not
whether the change seems to increase or decrease a union’s
bargaining power. Rather, in weighing the Respondent’s attempt
to distinguish Raymond F. Kravis Center for the Performing
Arts, the pivotal issue is whether the lack of a membership vote
for disaffiliation is sufficient to raise a question concerning
representation. Notwithstanding the Respondent’s argument, I
cannot conclude that a vote to disaffiliate is all that different from
a vote to affiliate or merge. Where, as here, the local union
leadership remains in place and continues to deal with an
employer as before, very little has changed, particularly from the
employees’ point of view. In the present case, at least, no change
has altered the local union’s identity so much that it would raise
a question concerning representation.
Indeed, the disaffiliation here appears little different from that
in Miron & Sons, Inc., 358 NLRB 647 (2012). There, the Board
adopted the judge’s finding that there was a substantial
continuity of representation and, accordingly, that the employer
had a continuing duty to recognize the union as the exclusive
bargaining representative. The Respondent argues that in Miron,
“the employer never challenged the union’s status under the
continuity of representation requirement. It is not an issue in the
case.” However, even were I to regard Miron merely as
illustrative, it supports the conclusion I draw from the reasoning
in Raymond F. Kravis Center for the Performing Arts. There,
the Board stated:
In determining whether there is a lack of continuity of
representation after a merger or affiliation, the Board considers
whether the merger or affiliation resulted in a change that is
“sufficiently dramatic” to alter the union’s identity. May
Department Stores, 289 NLRB 661, 665 (1988), enfd. 897 F.2d
221 (7th Cir. 1990). This may occur where “the changes are so
great that a new organization comes into being—one that
should be required to establish its status as a bargaining
representative through the same means that any labor
organization is required to use in the first instance.” Western
Commercial Transport, Inc., 288 NLRB 241, 217 (1988).
351 NLRB at 147. Applying this same principle to the present
case, involving a disaffiliation rather than a merger or affiliation,
and considering the totality of the circumstances, I conclude that
there is a continuity of representation. The employer here called
“Berry III” had a duty to recognize and bargain with Local 100,
Service Employees International Union before the disaffiliation,
and after the disaffiliation, it had a duty to recognize and bargain
with Local 100, United Labor Unions, which it did.
If the Respondent is a successor to Berry III—an issue to be
discussed and decided below—and if the bargaining unit remains
in existence, then the Respondent now has the same duty to
recognize and bargain with Local 100, United Labor Unions.
However, the Respondent argues that the bargaining unit has
changed in a manner which makes the present unit inappropriate.
Respondent’s brief states as follows:
The SEIU and Berry III entered into a collective bargaining
agreement on September 1, 2007. GCX-27. Article 1,
Recognition, recognizes a unit of hoppers working on trucks
operated by Richard’s Disposal and Metro Disposal.
At some time after Berry III and the SEIU entered their
agreement, Berry III lost its contract to supply hoppers to Metro
to another company—FastTrack. Tr. 151. The union has never
filed a disclaimer of interest of representation of the hoppers at
Metro Disposal. Tr. 252-53.
In the instant case, the unit used to establish successorship was
only the hoppers working on trucks operated by Richard’s
Disposal. Hoppers working at both Richard’s and Metro were
not counted to determine whether [the Respondent] hired a
majority of employees in the Berry III’s and SEIU unit.
With respect to the last sentence quoted above, it may be noted
that in determining successorship the Board looks to whether a
majority of the putative successor’s bargaining unit employees
CREATIVE VISION RESOURCES, LLC 17
had worked for the predecessor. That question, whether a
majority of the hoppers hired by the Respondent had worked in
the Berry III bargaining unit, will be addressed below.
Here, I focus on whether Berry III’s loss of the Metro Disposal
contract affected the appropriateness of the bargaining unit. It is
not unusual for the size of a bargaining unit to shrink when an
employer loses an existing customer, just as it is not unusual for
a bargaining unit to grow when an employer gains a new
customer. Typically, such fluctuations do not affect either the
appropriateness of the bargaining unit or the employer’s duty to
recognize and bargain with its exclusive representative. (An
exception involves the permanent shrinking of a bargaining unit
all the way down to one person, but that exception is not
applicable here.)
Berry III’s loss of the Metro Disposal contract did not reduce
the bargaining unit to a single employee or otherwise render it
inappropriate. It continued in existence at least until June 2,
2011, when the Respondent began its business operations.
Moreover, successorship may be found even when the
bargaining unit of the putative successor differs in some respects
from that of the predecessor. In Specialty Hospital of
Washington-Hadley, LLC, 357 NLRB 814 (2011), the Board
stated:
Bronx Health Plan, 326 NLRB 810 (1998), enfd. 203 F.3d 51
(D.C. Cir. 1999), is illustrative of the extent the unit may be
altered without eliminating successorship obligations. There,
the predecessor employed workers in hundreds of job
classifications in the recognized unit. The successor hired a
tiny fraction (.05 percent) of the predecessor’s bargaining unit
employees (16 out of 3500), who were scattered among those
many job classifications. The union sought to bargain over the
16 employees in a clerical unit. The Board found successorship
because, among other things, all of the successor’s unit
employees had been employees of the predecessor. In short, in
Bronx Health Plan, the successor’s unit no longer contained
the vast preponderance of the predecessor’s bargaining unit job
classifications and employee complement. But, as there was
continuity both in the nature of the enterprise and the work
force (within the contracted unit), successorship principles
resulted in a duty to bargain.
. . . .
The Supreme Court has instructed that the question of
substantial continuity must be considered from the employees’
perspective. Viewed from that perspective, it makes no
difference whether the successor acquired only a part of the
unit or the union disclaimed interest in a part of the unit. In
either case, there is no reason to believe that employees’ views
on union representation have changed. Put another way, a
diminution of unit scope or unit inclusion, by itself, is
insufficient to meaningfully affect the way that unit employees
perceive their jobs or significantly affect employee attitudes
concerning union representation.
357 NLRB 814, 814–815 (footnote omitted).
The Board places a heavy evidentiary burden on a party
attempting to show that historical units are no longer appropriate.
“Compelling circumstances” are required to overcome the
significance of bargaining history. Cadillac Asphalt Paving Co.,
349 NLRB 6 (2007). Here, the Respondent has not shown such
compelling circumstances. Accordingly, I reject the
Respondent’s inappropriate unit argument.
Was Respondent A Successor?
The Respondent denies the allegation that it is a successor to
Berry III. However, the Acting General Counsel argues that the
facts meet the standards for successorship regardless of whether
they are examined using the analytical framework of Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27 (1987), or that of NLRB v.
Burns Security Services, 406 U.S. 272 (1972). The facts satisfy
both tests.
As stated above, Alvin Richard Jr. owns Richard’s Disposal,
providing trash collection services in the New Orleans area, and
his son, Richard III, is the chief operating officer of that
company. It had contracted with Berry III to provide the hoppers
who ride at the back of the garbage trucks and load the trash into
the trucks. However, problems arose and Richard III testified he
“saw it as an opportunity to start a business for myself.”
Richard III decided to form a company which would replace
Berry III as the supplier of the hoppers. To that end, he
incorporated the Respondent in May 2010, but this company did
not begin operations right away.
With assistance from an employee of Richard’s Disposal,
Richard III prepared employment application forms. A Berry III
employee, Eldridge Flagge, passed out the applications to others
employed by Berry III in the hoppers’ bargaining unit. Each
application included the tax forms which an employee typically
completes on being hired. The record indicates that Richard III
gave Flagge the forms sometime around May 19, 2011.
Flagge distributed the applications soon after he received
them. However, the record indicates that Flagge played little
role in collecting the completed applications. Rather, after filling
out an application, a hopper would give it directly to personnel
working for Richard’s Disposal.
For reasons discussed later in this decision, I credit Richard
III’s testimony that he, too, provided application forms to some
of the hoppers employed by Berry III. The record reveals an
obvious motivation for doing so: The change from Berry III to
the Respondent was not something which would be phased in
gradually. Rather, it would be an abrupt shift from one to the
other. Therefore, Richard III needed to be sure he had enough
hoppers lined up to staff all the trash trucks before the
Respondent replaced Berry III. Moreover, it was not Richard
III’s policy to place any hopper on a truck until that person had
submitted an application form, including the tax forms attached
to it.
Richard III did not interview any applicants for employment.
I infer that he presumed that all the hoppers working for Berry
III were qualified, or else they would not be doing the work
already. Therefore, filling out the application and tax forms was
a formality, albeit a required one. Richard III testified, in part,
as follows:
Q. [I]sn’t it also true at the time you started—isn’t it also true
at the time you started passing out the applications or gave Mr.
Flagge the applications for him to pass out, it was your plan to
start providing hoppers to Richard’s Disposal on May 20,
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2011?
A. Yes.
Q Okay. But you didn’t start that day, because you didn’t have
enough applications returned to you. Correct?
A. Yes.
Q. Okay. So I’m assuming on June 1, you had enough
applications.
A. Yes.
Q. Isn’t it also true that by the hoppers turning in their
applications, they were agreeing to work for Creative Vision,
and you were agreeing to hire them if they wanted to work?
A. If I needed them, yes, sir.
By June 1, 2011, the Respondent had the applications of
enough hoppers to staff the trash trucks, and on that date
Richard’s Disposal canceled its agreement with Berry III. The
next day, the Respondent began providing to Richard’s Disposal
the same hoppers who had been doing the same work but
receiving their pay from Berry III. From the hoppers’ point of
view, little had changed. They still reported for work at the same
place, Richard’s Disposal, and still rode on Richard’s Disposal’s
trucks.
Moreover, their direct supervisor had not changed. Karen
Jackson had been employed as a supervisor by Berry III, where
she assigned each hopper to work on a specific truck. She
continued to do the same thing.
A little before 4 a.m. on June 2, 2011, when the hoppers
arrived at the Richard’s Disposal facility to work, Jackson
conducted a meeting to inform them that they were working for
Creative Vision. In the words of one hopper, Shawn Lewis, “Ms.
Jackson called a little brief meeting before any trucks drove out
of the yard, and told us, ‘Today is the day you start working
under Creative Vision.’” Jackson also told the hoppers that they
would be paid $11 per hour, would receive overtime, and that the
Respondent would guarantee each hopper 8 hours of work per
day.
On this first day, 44 hoppers worked for the Respondent. This
number was sufficient to staff the trucks operated by Richard’s
Disposal. Specifically, Richard III testified that Richard’s
Disposal typically sends out 20 to 22 trucks per day and each
truck has two hoppers. Thus, from 40 to 44 hoppers would be
sufficient for Richard’s Disposal to operate in the usual manner.
Accordingly, although the record suggests that on some later
days the Respondent provided, and Richard’s Disposal used,
more than 44 hoppers, I conclude that the 44 hoppers employed
on June 2, 2011, constituted a representative complement of
employees.
Under NLRB v. Burns Security Services, above, at least half of
the employees in the representative compliment must have
worked for the putative predecessor. Here, all 44 of the hoppers
who worked for the Respondent on June 2, 2011, had been
bargaining unit employees at Berry III. Clearly, Respondent is a
Burns successor. Further, I conclude that the Respondent is also
a successor under Fall River Dyeing Corp. v. NLRB, above.
In Fall River Dyeing Corp., the Supreme Court articulated a
“substantial continuity” test, which the Board applied in Van
Lear Equipment, 336 NLRB 1059 (2001). The Board noted that
the Supreme Court had identified the following factors as
relevant:
[W]hether the business of both employers is essentially the
same; whether the employees of the new company are doing
the same jobs in the same working conditions under the same
supervisors; and whether the new entity has the same
production process, produces the same products and has
basically the same body of customers.
336 NLRB at 1063. The answer to each of these questions is
“yes.” The business of the Respondent is the same as that of
Berry III, providing employees to work as hoppers on trucks op-
erated by Richard’s Disposal. The working conditions remained
the same and the employees worked under the supervision of the
same person, Karen Jackson. The production process remained
unchanged. At one point, Berry III provided hoppers for two
disposal services, Metro Disposal as well as Richard’s Disposal,
whereas it appears that the Respondent only provides hoppers to
Richard’s Disposal. Nonetheless, the Respondent has “basically
the same body of customers” as Berry III.
These factors are assessed from the perspective of the
employees, that is, “whether ‘those employees who have been
retained will . . . view their job situations as essentially
unaltered.’” Id., quoting Golden State Bottling Co. v. NLRB, 414
U.S. 168, 184 (1973). From the perspective of the employees
who appeared for work on June 2, 2011, nothing had changed.
They would not have known that they were working for a
different employer if their supervisor, Karen Jackson, had not
told them.
One hopper, Booker T. Sanders, who testified as a witness for
the Respondent, stated that he recalled a meeting at which
Jackson “said Creative Vision was taking over, and she they’re
paying $11 an hour, and they’re taking out taxes and Social
Security.” The Respondent also called to the witness stand
another hopper, Harold Jefferson, who testified that Jackson “got
all the hoppers, and she explained to us that, you know, Creative
Vision was open, and we no longer worked for Berry.” If
Jackson had not called a meeting of the hoppers on June 2, 2011,
and informed them that they were now working for the
Respondent, they would not have known until they received their
paychecks.
In sum, the evidence clearly establishes the “substantial
continuity” required by the Fall River Dyeing Corp. test, as well
as successor under NLRB v. Burns Security Services, above. I so
find.
Is Respondent A “Perfectly Clear” Burns Successor?
In general, a Burns successor has a duty to recognize and
bargain with the exclusive representative of the predecessor’s
employees but it remains free to set the initial terms and
conditions of employment. However, there is an exception. In
Burns, the Supreme Court stated that although a successor
employer “is ordinarily free to set initial terms on which it will
hire the employees of a predecessor, there will be instances in
which it is perfectly clear that the new employer plans to retain
all of the employees in the unit and in which it will be appropriate
CREATIVE VISION RESOURCES, LLC 19
to have him initially consult with the employees’ bargaining
representative before he fixes terms.” 406 U.S. at 294.
The Board has held that this “perfectly clear” exception to the
general rule that a successor employer is free to set initial terms,
while restrictive, should apply “to circumstances in which the
new employer has either actively or, by tacit inference, misled
employees into believing they would all be retained without
change in their wages, hours, or conditions of employment, or at
least to circumstances where the new employer . . . has failed to
clearly announce its intent to establish a new set of conditions
prior to inviting former employees to accept employment.”
Spruce Up Corp., 209 NLRB 194, 195 (1974), enfd. mem. 529
F.2d 516 (4th Cir. 1975); see also Grenada Stamping &
Assembly, Inc., 351 NLRB 1152 (2007); Cadillac Asphalt
Paving Co., 349 NLRB 6, 10 (2006).
The present record would not support any finding that the
Respondent had misled employees, either actively or by tacit
inference, to believe they would all be retained without any
changes in the wages, hours, or conditions of employment.
Rather, whether the Respondent is a “perfectly clear” Burns
successor turns on whether it “failed to clearly announce its
intent to establish a new set of conditions prior to inviting former
employees to accept employment.”
For example, in Cadillac Asphalt Paving Co., above, the
successor employer did not conduct job interviews and no
evidence indicated that it sought applicants from any source
other than the predecessor’s work force. At a meeting with the
predecessor’s employees, the successor invited them to fill out
job applications and W-4 forms but did not tell them it intended
to set initial terms and conditions of employment. In these
circumstances, the Board found that the hiring employer was a
“perfectly clear” Burns successor.
The facts in the present case are rather similar to those in
Cadillac Asphalt Paving Co. but certainly not identical. As
described above, Richard III distributed application forms, with
attached W-4 tax forms, to hoppers while they were employed
by Berry III and he also enlisted the help of Eldridge Flagge, one
of the hoppers in the Berry III bargaining unit. The record does
not indicate that the Respondent sought employees from any
other source.
To this extent, the facts here resemble those in Cadillac
Asphalt Paving Co. However the credited evidence establishes
that Richard III communicated at least some information about
the contemplated wages and working conditions to at least some
of the hoppers while they were still employed by Berry III. The
question thus is whether the Respondent conveyed enough
information to enough hoppers.
To preserve its authority to establish initial terms and
conditions of employment, a successor must “clearly announce
its intent to establish a new set of conditions prior to inviting
former employees to accept employment.” Spruce Up Corp.,
above, 209 NLRB at 195. What constitutes such a clear
announcement? The information must be sufficient to allow the
predecessor’s employees to make an informed choice about
whether to go to work for the Respondent.
In Windsor Convalescent Center of North Long Beach, 351
NLRB 975 (2007), a successor sent a letter to the predecessor’s
employees offering them temporary employment. The letter
stated that they were not eligible for certain benefits, and adding,
“Other terms and conditions of your employment will be set
forth in Windsor’s personnel policies and its employee
handbook.”
Although the quoted statement seems to convey the
successor’s intent to establish a new set of working conditions,
the Board held that it was insufficient to allow the predecessor’s
employees an informed choice concerning whether to accept the
successor’s employment offer or turn it down. The Board held
that a general statement that new terms will subsequently be set
is not sufficient to fulfill the Respondent’s Spruce Up obligation
to announce new terms prior to or simultaneous with the
takeover.
In other words, applying the Board’s Spruce Up standard
faithfully requires digging deeper than might at first appear
necessary from a narrow and literal reading of the test. A
message sufficient to convey the successor’s intention to
establish new terms and conditions of employment may still lack
enough detail to afford the predecessor’s employees an informed
choice. If so, the “perfectly clear” label sticks.
Thus, the doctrine has evolved since 1972, when the Supreme
Court noted that “there will be instances in which it is perfectly
clear that the new employer plans to retain all of the employees
in the unit, and in which it will be appropriate to have him
initially consult with the employees’ bargaining representative
before he fixes terms.” Burns, above, 406 U.S. at 294–295.
Under the doctrine, as it has now ripened and matured, a
successor employer’s failure to provide sufficient information to
the predecessor’s employees proves that it is perfectly clear the
successor intended to retain all the unit employees.
Therefore, it is important to distinguish between the ordinary
meaning of the words “perfectly clear” and the import of this
phrase as a term of art. When used in the everyday sense, the
words “perfectly clear” take the analysis in a different direction.
The record makes it perfectly clear that the Respondent intended
to retain the employees in the bargaining unit, but this conclusion
does not rest on the amount of communication between the
Respondent and the hoppers.
If the Respondent had not intended to retain the employees in
the Berry III bargaining unit, it would have been a remarkable
coincidence that on the first day of the Respondent’s operations
all 44 hoppers had been employed by Berry III. Of course, it was
not a coincidence. The record does not indicate that the
Respondent sought to hire hoppers from any other source.
If the Respondent had not intended to hire the members of the
bargaining unit, en masse, Richard III or someone working for
him would have interviewed applicants, examined
qualifications, and checked references. Instead, the Respondent
chose merely to distribute applications, with W-4 forms
attached, to the hoppers in the Berry III bargaining unit.
Typically, a job applicant does not fill out a W-4 form until hired,
so inclusion of the tax form with the application suggests that the
Respondent had little doubt about whom it would hire.
Richard III already knew about the quality of the hoppers’
work because they performed that work for Richard’s Disposal,
a company he managed. His dissatisfaction was not with the
hoppers themselves, but rather with Berry III’s lax management
practices, which included treating the hoppers as independent
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
contractors rather than employees, failing to deduct taxes, and
neglecting to follow such usual employment practices as issuing
handbooks and implementing dress standards.
Moreover, the hoppers in the Berry III bargaining unit already
were familiar with how Richard’s Disposal operated. If the
Respondent had decided to recruit through the State
unemployment office or through “help wanted” advertisements,
the process of selecting and training those chosen would have
been a major undertaking. So it is hardly surprising that the
Respondent would decide to use the same individuals who
already were hopping on the trucks every morning.
The record leaves no doubt that the Respondent’s owner,
Richard III, intended to employ the hoppers working in the Berry
III bargaining unit, and made no efforts to hire hoppers from
other sources. Using the words “perfectly clear” in their
everyday sense, that intent is perfectly clear.
Is such an intention “perfectly clear” when that phrase is a
term of art? To answer that question, I return to the issue of what
the Respondent communicated to the hoppers while they still
worked for Berry III. On this point, witnesses delivered
conflicting testimony.
Richard III testified that he gave job application forms to some
of the hoppers who were working for Berry III, and that when he
did so he described to them the terms and conditions of
employment which would be instituted by the Respondent,
stating, for example, that hoppers would earn $11 per hour. This
testimony invites scrutiny because, although both the
Respondent and the General Counsel called a number of hoppers
to the witness stand, none testified that Richard III gave him a
job application.
However, Richard III was not the only possible conduit of
information from the Respondent to the hoppers. Both Richard
III and hopper Eldridge Flagge testified that Richard III gave
Flagge application forms which Flagge then distributed to other
hoppers. According to Richard III, he gave Flagge a stack of
about 15 to 20 applications and Flagge later requested more.
Although it is undisputed that Richard III gave Flagge
application forms, their testimony conflicts regarding what
Richard III told Flagge. Richard III’s testimony, if credited,
would establish that he informed Flagge of the initial terms and
conditions of employment which he intended to implement when
the Respondent began operations:
Q. What did you tell Mr. Flagge, if anything about what the
wages, benefits, and—would be?
A. $11 an hour, eight hours guaranteed a day, overtime if they
made it, and holidays—the four standard holidays.
Q. Did you mention anything about taxes being withheld?
A. Yes.
However, Flagge’s testimony squarely contradicts Richard III
on this point:
Q. And during that conversation, did Alvin Richard III say
anything about pay to you?
A. No.
Q. Did he tell you anything about holiday pay during that
conversation?
A. No.
Q. Did he say anything about new work rules?
A. No.
Q. During that conversation, did he say anything about an
employee handbook?
A. No.
Q. Did he say anything about a safety manual?
A. No.
Before addressing this conflict in the testimony, I note that
even if Richard III told Flagge about the contemplated terms and
conditions of employment Flagge did not convey such
information to other hoppers employed by Berry III. I credit
Flagge’s uncontradicted testimony that he told the other hoppers
“they might have a job when they fill the application out, but
they needed to have Social Security, ID to bring up in there, and
I told them to bring it to Clayton, where he could make a copy
of it.”
Richard III’s testimony, if credited, establishes that the
hoppers had another source of information apart from Flagge,
namely, Richard III himself. He testified that, in addition to
providing Flagge application forms to distribute, he also gave out
such forms to other employees in the Berry III bargaining unit:
Q. Now, did you distribute applications during this time?
A. Yes.
Q. And how many applications would you say you might have
distributed during this time period?
A. Maybe 20.
Q. What did you say to the hoppers as you gave them
applications?
A. They had to know about their wages, $11 an hour, 40-hour
guaranteed—excuse me. Guaranteed eight, 40 hours, the
overtime after the 40 hours, and I was going to have to do the
taxes.
Q. Did you say holidays, too? I’m sorry. I didn’t.
A. Yes. There’s four guaranteed holidays in our business.
Richard III testified that he began distributing these
applications sometime in May 2011. However, he could not
name any individual, except Flagge and a hopper named Terry
Hills, to whom he had given an application. Richard III also
testified that he received completed applications from hoppers
working for Berry III but, again, could not name any person who
gave him one.
Richard III’s inability to identify the hoppers to whom he had
given and from whom he had received application forms does
raise questions about the reliability of his testimony. However,
in evaluating this testimony, I cannot simply assume that Richard
III was so familiar with the hoppers that he knew all of them by
sight and could associate faces with names. He was not their
immediate supervisor and the hoppers spent almost all their work
time away from the facility.
Eight hoppers testified at the hearing, six of them called by the
Respondent. However, none of these witnesses testified that
Richard III had informed him of the initial terms and conditions
of employment before June 2, 2011. Indeed, none of the hoppers
testified that he had received such information from any source
before June 2, 2011.
This absence of corroboration, as well as Richard III’s
inability to name specific individuals to whom he had given
applications, raises some doubt about the reliability of his
CREATIVE VISION RESOURCES, LLC 21
testimony. However, other considerations weigh in favor of
crediting it.
From Richard III’s testimony and that of other witnesses, I
infer that he was not very happy with the way Berry III operated.
Berry III treated the hoppers as independent contractors even
though they clearly had the attributes of employees—for
example, they were required to work at specific times and in a
specific way—and did not withhold taxes from their pay. Berry
III also did not provide employees with either an employee
handbook or a safety manual, and it ignored an unfair labor
practice complaint, resulting in a default judgment. See M&B
Services, Inc., 355 NLRB No. 136 (2010) (not reported in Board
volumes).
Richard III testified that there had been problems with Berry
III, a factor in his decision to start his own company. Although
his demeanor as a witness was low key, I infer that he was
displeased with the laxity of Berry III and determined to run his
company differently, in compliance with the law and with
greater attention to workplace safety.
Thus, he instituted work rules requiring hoppers to put on
vests, which I assume were similar to safety vests worn by
highway construction workers, before they could get on the
trucks. Richard III also established a dress code. It required
hoppers to wear shirts and belts at all times and to wear their
pants pulled up rather than hanging low on the waist.
This impression of Richard III being meticulous, a stickler for
detail, is consistent with a portion of his testimony which
otherwise puzzled me. According to Alvin Richard Jr., who
owns Richard’s Disposal, his son, Richard III, is vice president
and manager of that company. The son, however, was not so
confident he held the second title. On cross-examination, he
testified, in part, as follows:
Q. Okay. Were you the vice president of Richard’s Disposal
on June 1, 2011?
A. I’m a COO. If that’s a vice president, I don’t know.
The General Counsel then showed Richard III a letter bearing
his signature and the title “vice president.” This exchange
followed:
Q. And at the bottom it says, vice president. So does that
refresh your recollection as to whether or not you’re the vice
president or not?
A. No.
Q. It doesn’t?
A. I said I signed it. What my title was at the time I don’t
remember.
Richard III’s demeanor was not belligerent or hostile and I
believe he was trying to give answers which were both accurate
and precise. His reluctance to agree that he was vice president,
even after seeing a letter referring to him by that title, did not
advance his interest in any obvious way. If he had been trying
to conceal his management position with Richard’s Disposal, he
would not have referred to himself as “COO,” chief operating
officer. In view of his willingness to acknowledge that title, his
hesitation about the title of vice president is difficult to
understand except as a reflection of scrupulousness in attention
to detail.
The easier course, when confronted with a letter he signed
which referred to him as “vice president,” would have been
simply to admit that “vice president” was his title. Instead, he
testified that he did not remember what his title had been at the
time of the letter, an answer he could not have expected to help
his credibility. Thus, Richard III impressed me as being a
meticulous witness even when his answers foreseeably might be
contrary to his interest.
Moreover, even though no hopper testified that Richard III
told him about the initial terms and conditions, the record does
establish that some hoppers had heard that the Respondent would
be paying $11 per hour. For example, a union official, Rosa
Hines, reported that at least one hopper employed by Berry III
had called the Union to ask about the $11-per-hour figure. Hines
testified:
What I received is a call, saying they heard a couple hoppers—
I’m not sure of their names—and they heard that their wages
was dropped to $11, and I questioned on that did the
management or did this new company tell you that, and they
said they just hear it. They had not heard from any authorized
personnel.
The Respondent argues that the existence of this rumor—that
hoppers hired by the Respondent would make $11 per hour—
supports an inference that the Respondent did, in fact, announce
this pay rate to the hoppers while they were still working for
Berry III. Thus, the Respondent’s brief asks: “How else could
hoppers communicate to Hines the pay rate of $11/hour at
[Creative Vision Resources] unless they learned it from Richard,
from Flagge, or from other hoppers who learned it from Richard
and/or Flagge?”
The testimony of Anthony Taylor confirms that a number of
hoppers learned about the $11-per-hour wage rate while they
were still working at Berry III. This same testimony illustrates
the difficulty of tracking down the elusive source of this
information:
Q. Now, you mentioned $11 an hour. What, if any,
conversations were the hoppers having before this meeting
about the $11 an hour?
A. We all congregate in the morning out there. They been
knowing about the $11 an hour.
Q. So the hoppers before this meeting in May knew about the
$11 an hour?
A. Sure, man. The application was passed out before. I think
Flagge was passing out those applications.
Q. Did Flagge know about the $11?
A. I told you, we all congregate out there in the morning. We
been knowing that.
The testimony of Kumasi Nicholas, who worked in the Berry
III bargaining unit, provides further evidence that hoppers knew
about the Respondent’s initial terms and conditions of
employment before the Respondent began operations:
Q. Before you began work for Creative Vision, did you know
you were going to make $11 an hour?
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Yes, sir.
Q. Did you know you were going to be guaranteed eight hours
a day?
A. Yes, sir.
Q. Did you know you were going to get overtime?
A. Yes, sir.
Q. Did you know you were going to get four holidays?
A. Yes, sir.
However, Nicholas’ testimony does not indicate that he
received this information from Richard III. Rather, he learned
about the Respondent’s contemplated terms and conditions of
employment from Karen Jackson, who then was working for
Berry III: “Well, they told us ahead of time—Ms. Jackson told
us ahead of time, you know, might be switching over to another
little company where—you know, a pay rate, and she just let us
know ahead of time, and then that’s when, you know, they
started off.”
Jackson did not testify that she informed the hoppers in advance,
while they still worked for Berry III, about Respondent’s replac-
ing Berry III as the contractor providing hoppers to Richard’s
Disposal. Indeed, she stated in a pretrial affidavit, “I don’t know
who told the hoppers about [Respondent] CVR taking over. I was
employed by Mr. Berry until June 3. The hoppers’ first day was
June 2. I don’t know who did my job on June 2.”
Jackson admitted in a subsequent affidavit, and acknowledged
on the witness stand, that she erred in stating that her first day
working for the Respondent was June 3 rather than June 2. For
reasons discussed below, I have significant reservations about
the reliability of her testimony. Therefore, crediting Nicholas, I
find that Jackson, who was the hoppers’ supervisor at Berry III,
did inform them about some of the Respondent’s contemplated
initial terms and conditions of employment, including that $11
per hour wage rate.
This finding, that hoppers working for Berry III learned some
information about the Respondent from Jackson, does not
contradict Richard III’s testimony that he informed hoppers
about the Respondent’s initial terms of employment. Although
Richard III’s testimony is uncorroborated, it is also
uncontradicted. Moreover, it is consistent with the fact that at
least some hoppers knew about the contemplated $11-per-hour
wage rate.
Further, as discussed above, Richard III appeared to be a
sincere and meticulous witness. For these reasons, I credit his
testimony that he told some of the hoppers—those to whom he
gave employment application forms—that the Respondent
would be paying an $11-per-hour wage, would guarantee 8 hours
of employment per day, would pay overtime for hours worked in
excess of 40 per week, and would withhold taxes from their
paychecks. Based on Richard III’s credited testimony, I also find
that he told these hoppers that the Respondent guaranteed four
holidays.
The record does not establish exactly how many hoppers
heard Richard III make these statements about the initial terms
and conditions of the Respondent. At most, Richard III likely
distributed applications to less than half the hoppers in the Berry
III bargaining unit.
There is no evidence that the hoppers who got their application
forms from Flagge rather than Richard III received the same
information. I credit Flagge’s uncontradicted testimony that he
did not tell them. This testimony is consistent with that of hopper
Booker Sanders, who received a job application form from
Flagge but no information about the Respondent’s initial terms
and conditions of employment. Sanders did not learn that the
Respondent would be paying $11 per hour until he attended a
meeting called by Supervisor Karen Jackson on the day the
Respondent began operations.
The record affords no way of quantifying how many of the
hoppers had learned about the $11-per-hour wage rate or the
other terms of employment by the time they reported for work,
as usual, at the Richard’s Disposal facility on June 2, 2011.
There, again as usual, they encountered Karen Jackson, who had
been Berry III’s supervisor responsible for deciding which
hoppers would work on which trucks. Jackson’s job with Berry
III had required her to be at the facility every workday around
3:30 a.m., to take the roll and make sure each truck was
adequately staffed. She had held that position through June 1,
2011, when she resigned from Berry III and accepted an offer to
do the same job for the Respondent. Early on June 2, sometime
between 3:30 and 4 a.m., Jackson called a meeting of the
hoppers, announced that they no longer were working for Berry
III, and told them the new terms and conditions of employment.
Before describing that meeting, I will address how much
weight should be given to Jackson’s testimony. Two problems
raise concerns about her credibility.
The first problem concerns conflicting statements Jackson
made in pretrial affidavits about the date she began working for
the Respondent. In the earlier pretrial affidavit, Jackson gave
June 3, 2011, as the date she started working. If so, that would
indicate that she was not present on the Respondent’s first day of
operations, June 2, and could not then have conducted a meeting
with hoppers.
However, Jackson provided a second pretrial affidavit which
corrected the date. In that second affidavit, Jackson stated that
she had mistakenly believed that June 3, 2011, had been a
Thursday. After someone showed her a calendar, she realized
that her first day of work for the Respondent actually had been
June 2, 2011.
Further, there is also a separate and more serious problem.
Late in the hearing, Jackson resumed the witness stand and then
admitted altering the dates on the copies of some employment
applications which the Respondent furnished to the Board during
the investigation of the charge. These applications had been
dated June 8, 2011, presumably by the applicants submitting
them, but Jackson had covered up that date with a correction
fluid and typed June 2, 2011, in its place.
One of the altered documents was the employment application
of a hopper, Damian Pichon, which originally bore the date June
8, 2011. Jackson admitted using a correction fluid such as Wite
Out to cover up this date and substituting June 2, 2011. During
cross-examination by the General Counsel, Jackson testified, in
part, as follows:
Q. Ms. Jackson, why did you do that?
A Well, as I was copying information, I just happened to look
at it and see that one page had one date, and I just changed it on
CREATIVE VISION RESOURCES, LLC 23
the front. I just changed it to try to make everything coincide,
since he worked the first day. It was stupid. I didn’t think it
through when I did it. I just did it.
Q. Did anyone tell you to make those changes?
A. No.
Both Jackson’s conduct and her explanation, which I do not
find wholly persuasive, raise doubts about the reliability of her
testimony. Nonetheless, based on the entire record, I believe it
is highly likely that Jackson did begin work for the Respondent
on June 2, 2011, and did conduct a meeting with the hoppers on
that date, rather than at some later time.
Moreover, this misconduct does not compel a conclusion that
every bit of Jackson’s testimony should be rejected. Whatever
might have been the motive for her changing the dates on the
application forms, I do not believe it caused her to give an
incorrect starting date in her affidavit. Rather, considering all
the circumstances, it seems likely that Jackson made an innocent
mistake when she stated, in her earlier affidavit, that she began
work for the Respondent on June 3, 2011.
Moreover, a number of hoppers testified that Jackson was
present at the Richard’s Disposal facility on June 2, 2011. For
example, hoppers Kumasi Nicholas, Anthony Taylor, and Jason
Bertrand testified that they saw Jackson at the facility on the first
day of the Respondent’s operations. Hopper Eldridge Flagge
also was present at the facility on June 2, 2011, and saw Jackson
there.
Hopper Harold Jefferson testified as follows concerning the
meeting Jackson conducted on June 2, 2011:
Q. When you began work on the very first day of Creative
Vision, can you tell us what happened on that very first day?
A. Well, we went—she held a meeting one morning
. . . .
Q. Who is that, when you say, “she”?
A. Ms. Jackson.
Q. Ms. Jackson held a meeting?
A. Yes. She got all the hoppers, and she explained to us that,
you know, Creative Vision was open, and we no longer worked
for Berry, and we’ll receive two checks, one from Berry and
one from Creative Vision, and, you know, basically that was it.
Q. Did she tell you what you were going to get paid?
A. Yes. She said—she explained to us how we was going to
get paid, and, you know, what day the time goes in and, you
know, stuff like that.
Q. How much did she tell you you were going to get paid?
A. She said we was going to be started off with $11 an hour,
and we was going to—you know, everything over 48 hours is
16.50 an hour, you know, and—
Q. So you get overtime is what she was telling you.
A. Right. And they was—they started taking taxes out, you
know. They was going to start taking taxes out.
Q. Did she mention holidays to you?
A. No. She didn’t mention nothing about holidays.
Q. Was safety discussed?
A. Yes. They discussed safety.
Q. Who gave you your application, if you recall, to work for
Creative Vision?
A. Ms. Jackson.
In sum, a number of witnesses confirm that Jackson was
present at the Richard’s Disposal facility and met with the
hoppers on the day the Respondent began operations. Of course,
some of the witnesses remembered the meeting in greater detail
than others. However, all of the testimony paints a consistent
picture and generally corroborates the following testimony,
given by Jackson, describing what she told the hoppers at this
meeting:
It was approximately about 3:40, because everybody doesn’t
get there for 3:30, so I waited to let some of them get there, you
know, so I could meet with them. Well, they had a good bit of
them that were there. So I met with them. I explained to them
that it was a new company taking over that was not Berry
Services anymore. It was going to be called Creative Vision.
They were going to be making $11 an hour, guaranteed eight
hours, time and a half being paid to them for overtime. That’s
hours worked over 40 hours. I also told them that taxes would
be taken out of their money. They would not receive 1099s
like they did with Mr. Berry, that they would receive W-2
forms. I also discussed safety issues with them.
Q. What kind of safety issues?
A. They had to have on a vest to get on a truck. They had to
wear their pants pulled up. They couldn’t wear their pants,
because that’s the fashion now where they’re wearing their
pants hanging down. But we don’t want that. We want them
to be dressed properly. They needed to have on a shirt and a
belt at all times.
Q. What, if anything, was mentioned about holidays?
A. Yes. I told them they had four holidays. They had to work
180 days to receive the pay for the holidays.
Q. About how long would you say that meeting lasted?
A. Maybe 20, 25 minutes at the most.
Q. Did it go past 4:00 p.m.—or 4:00 a.m.? Excuse me.
A. Yes.
In at least one respect, Jackson’s testimony goes beyond that
of the hoppers who described the June 2, 2011 meeting. Jackson
testified that some of the hoppers were so unhappy about the
announced terms and conditions of employment that they walked
away:
Q. Now, when the meeting was over, were there some hoppers
who weren’t satisfied with the terms and conditions that—the
wages, the terms and conditions that had been announced by
you?
A. Yes.
Q. What did they do?
A. They left the yard. They started discussing it and then they
left the yard. I’m not working with this bullshit; people try to—
I’m sorry, but that was—that is what was said. Okay. This is
what I heard them saying. I can’t pinpoint who it was, because
there was a lot of people out there, and it is dark out there in the
mornings. So they left the yard. Some of them just didn’t—
some people did refuse to work.
Based on the evidence discussed above, I find that the
Respondent’s owner, Richard III, determined the initial terms
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and conditions of employment before the Respondent began
operations. Indeed, I infer that one reason Richard III
established the Respondent was to correct problems in the terms
and conditions of employment under which the Berry III hoppers
worked.
Although Berry III employed the hoppers, it assigned them to
work on Richard’s Disposal’s trucks. As chief operating officer
of Richard’s Disposal, Richard III thus was aware of the
irregularities in the way the hoppers were treated but had no
direct way to address the matter so long as the hoppers worked
for someone else. However, the problems were serious and
some, such as Berry III’s treating the hoppers as independent
contractors and failing to pay overtime, appear to have violated
Federal law.
By creating the Respondent and hiring the hoppers, Richard
III was able to put an end to the unlawful way they had been
treated, but achieving this goal necessarily involved setting new
terms and conditions of employment. Credited evidence reflects
that the Respondent decided to pay the hoppers an hourly rate,
with overtime, and communicated this intention well before it
began operations. Similarly, the record establishes that the
Respondent decided to withhold taxes from the hoppers’
paychecks, and communicated this intention while the hoppers
were still employed by Berry III.
In sum, the record establishes that it was “perfectly clear”
(using these words in the everyday sense) that the Respondent
was going to hire the predecessors employees and continue
operations largely unchanged. However, the Respondent did not
fail to communicate candidly with the hoppers who would
become its employees and thus did not fall within the definition
of “perfectly clear” successor which the Board set forth in
Spruce Up Corp., above.
The reason for this apparent difference is that the Board,
exercising caution, did not “push the envelope” but instead
articulated a narrower standard than the Supreme Court’s
language arguably might support. “We concede that the precise
meaning and application of the Court’s caveat is not easy to
discern,” the Board wrote, “But any interpretation contrary to
that which we are adopting here would he subject to abuse, and
would, we believe, encourage employer action contrary to the
purposes of this Act and lead to results which we feel sure the
Court did not intend to flow from its decision in Burns.” Spruce
Up Corp., 209 NLRB at 195.
On occasion, some Board members have expressed the
viewpoint that the Spruce Up standard not only is more
restrictive than required by the Supreme Court’s language but is
also, in their opinion, too restrictive. See, e.g., Canteen Co., 317
NLRB 1052, 1054–1055 (1995) (Chairman Gould, concurring).
However, the Spruce Up standard remains Board law and I apply
it here.
In Spruce Up, after explaining its reasoning, the Board stated:
We believe the caveat in Burns, therefore, should be restricted
to circumstances in which the new employer has either actively
or, by tacit inference, misled employees into believing they
would all be retained without change in their wages, hours, or
conditions of employment, or at least to circumstances where
the new employer, unlike the Respondent here, has failed to
clearly announce its intent to establish a new set of conditions
prior to inviting former employees to accept employment. [Id.
At 195 (footnote omitted, emphasis added.)]
Here, the credited evidence does not suggest that the
Respondent, either actively or tacitly, tried to mislead employees
into believing they would all be retained without change in their
wages, hours, or conditions of employment. To the contrary, the
record establishes that before it began operations, hoppers in the
Berry III bargaining unit were aware that Respondent intended
to make a number of significant changes.
Moreover, before 4 a.m. on the very first day of the
Respondent’s operations, and before hoppers got on the trucks,
the Respondent’s supervisor, Jackson, described the changes to
them in detail. As a result, some of the workers decided not to
accept employment and left.
In these circumstances, I conclude that the Respondent’s
conduct does not meet the test for “perfectly clear” successor
which the Board established in Spruce Up. Therefore, I further
conclude that the Respondent did not violate the Act by setting
its initial terms and conditions of employment.
Refusal to Bargain Allegations
Complaint paragraph 9(a) alleges that from about October
2009 until about June 2, 2011, based on Section 9(a) of the Act,
the Union had been the exclusive collective-bargaining
representative of the unit employed by M&B Services, Inc. The
Respondent has denied this allegation.
As discussed above, the record establishes that on May 18,
2007, the Board certified Local 100, Service Employees
International Union, as the exclusive representative of a unit of
hoppers employed by M&B Services. The entity referred to
herein as “Berry III” was doing business as M&B Services at the
time of this certification and I conclude that until June 2, 2011,
it had a duty to recognize and bargain with Local 100, Service
Employees International and, after Local 100 disaffiliated from
the Service Employees International Union, with Local 100.
Also, for the reasons discussed above, I have concluded that
Local 100, the full name of which is Local 100, United Labor
Unions, is the successor to Local 100, Service Employees
International Union. Accordingly, I conclude that the
government has proven the allegations raised by complaint
paragraph 9(b).
Complaint paragraph 9(b) alleges that at all times since about
June 2, 2011, based on Section 9(a) of the Act, the Union (Local
100, United Labor Unions), has been the exclusive collective-
bargaining representative of the Respondent’s employees in the
unit. The Respondent has denied this allegation.
For the reasons discussed above, I have concluded that the
Respondent became a Burns successor to Berry III on June 2,
2011, the date on which it began operations and on which it hired
a representative complement of employees. The Union became
the Section 9(a) exclusive representative on that date.
Complaint paragraph 10(a) alleges that about June 6, 2011,
the Union, by letter, requested that the Respondent recognize and
bargain with it as the exclusive collective-bargaining
representative of the bargaining unit. Although the
Respondent’s answer denied this allegation, the evidence is clear
and uncontroverted that the Union did send to the Respondent a
CREATIVE VISION RESOURCES, LLC 25
June 6, 2011 letter requesting bargaining. Indeed, the
Respondent’s posthearing brief stated that “the union’s state
director, Rosa Hines, visited [the Respondent] on Monday, June
6, and delivered a letter demanding recognition and bargaining.”
Therefore, I conclude that the government has proven the
allegations raised in complaint paragraph 10(a).
Complaint paragraph 10(b) alleges that since about June 6,
2011, the Respondent has failed and refused to recognize and
bargain with the Union as the exclusive collective-bargaining
representative of the bargaining unit. The Respondent’s answer
denied this allegation.
The record establishes that the Union did not receive a reply
to the June 6, 2011 request to bargain. On June 17, the Union
filed the unfair labor practice charge which began these
proceedings.
The Respondent did not meet with the Union until February
14, 2012, when the Union’s state director, Rosa Hines, and
another union representative conferred with the Respondent’s
attorney, Clyde H. Jacob III. After their initial meeting on
Valentine’s Day, representatives of the Union and the
Respondent met about four more times. Hines credibly testified
that the last such meeting was in late May or early June 2012:
Q. Have you scheduled any other meetings?
A. No. We’re still—we’re waiting back—Mr. Jacob said that
he would talk his client and get back, so we’re still waiting for
him to get back to us.
Hines also testified, credibly and without contradiction, that
the Union and the Respondent had not reached any agreements.
Based on Hines’ testimony, which I credit, I find that between
June 6, 2011, and about February 14, 2012, the Respondent
failed and refused to bargain with the Union. It appears that as
of February 14, 2012, when the Respondent’s attorney met with
the union representatives, that the Respondent has given the
Union at least de facto recognition. It may be noted, however,
that the Respondent’s answer to the complaint, dated April 12,
2012, denied the allegation in complaint paragraph 9(b) that at
all times since June 2, 2011, based on Section 9(a) of the Act,
the Union has been the exclusive representative of the hoppers.
The complaint does not allege “surface bargaining,” that is,
going through the motions of negotiating but with an intent not
to reach agreement, and the General Counsel has not argued such
a theory. Additionally, the government did not seek to elicit the
sort of detailed testimony about the negotiating process which is
needed to prove “surface bargaining” allegations.
It appears clear that the alleged violations of Section 8(a)(5)
do not concern what happened at the bargaining table but rather
the Respondent’s tardiness in even coming to the table. A
successor employer’s obligation to recognize the union attaches
after the occurrence of two events: (1) a demand for recognition
or bargaining by the union; and (2) the employment by the
successor employer of a “substantial and representative
complement” of employees, a majority of whom were employed
by the predecessor. University Medical Center, 335 NLRB 1318
(2001). Accordingly, the Respondent’s obligation to recognize
and bargain with the Union began on June 6, 2011, when it
received the Union’s letter demanding such recognition and
bargaining.
Section 8(d) of the Act states that to “bargain collectively is
the performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours, and other terms
and conditions of employment, or the negotiation of an
agreement or any question arising there under, and the execution
of a written contract incorporating any agreement reached if
requested by either party.” 29 U.S.C. § 158(d) (emphasis added).
An unwillingness to meet at reasonable times breaches the duty
to bargain in good faith.
In Gitano Group, Inc., 308 NLRB 1172 fn. 2 (1992), a union
requested bargaining in August but the employer did not
schedule a meeting until late December. The employer did not
offer evidence of any particularly unusual or emergency
condition which would justify the delay. The Board found that
the employer had violated the Act. Here, the Respondent
delayed for twice as long as the employer in Gitano Group, Inc.
and the record neither suggests nor supports a finding of any
particularly unusual or emergency circumstance which might
justify such a delay.
The Respondent certainly had sufficient opportunity to
present evidence to explain the cause of the delay and to argue,
if appropriate, that there were mitigating circumstances. Not
only did the complaint allege a violative refusal to recognize and
bargain, but the General Counsel clearly put the Respondent on
notice that its delay in recognizing and bargaining with the
Union was an issue in this case. Indeed, counsel for the General
Counsel began his opening argument with the observation that
“ignoring a responsibility won’t make it go away, and the longer
one ignores it, the worse the situation becomes.” The General
Counsel then stated:
On June 6, 2011, the hoppers union, Local 100, requested to
bargain with the Respondent. Since that time, Respondent has
failed and refused to recognize and bargain in good faith with
the union, a plain violation of Section 8(a)(5) of the Act.
Respondent knows it has this duty; yet it continues to ignore it.
Nonetheless, neither the Respondent’s opening argument nor
its posthearing brief focused on the approximately 8-month
delay between the June 6, 2011 demand for recognition and
bargaining and the first meeting, on February 14, 2012. If the
Respondent believed there were legitimate reasons to justify the
delay, it has not broadcast them from the rooftops.
The record leaves little room to doubt that the Respondent is,
indeed, a successor to Berry III and, therefore, has become heir
to Berry III’s duty to recognize the Union and bargain with it.
Considering that all the employees initially hired by the
Respondent had worked in the Berry III bargaining unit, that they
continued their same work from the same location and under the
same supervision, and that there was no gap between the end of
their employment with Berry and their hire by the Respondent,
the conclusion becomes inescapable that the Respondent has a
successorship obligation under both the Burns and Fall River
Dyeing analytical frameworks. Reaching that conclusion does
not take 8 months.
Therefore, I conclude that the Respondent delayed
unreasonably in replying to the Union’s bargaining request and
in meeting with the Union’s representatives. It thereby breached
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its duty to bargain in good faith, as described in Section 8(d) of
the Act, and violated Section 8(a)(5).
Even though the Respondent met with union representatives
on February 14, 2012, it still has not clearly and unequivocally
recognized the Union’s status as the hoppers’ exclusive
representative. Indeed, its answer to the complaint denied such
status. Moreover, it has taken the position, elaborated in its post-
hearing brief, that the Union is not the successor to the originally
certified labor organization, Local 100, Service Employees
International Union. Similarly, it continues to challenge the
appropriateness of the bargaining unit.
Therefore, I conclude that, notwithstanding the five meetings
at which the Respondent discussed with the Union the hoppers’
terms and conditions of employment, it still has not recognized
the Union as their Section 9(a) representative and, therefore,
continues to violate Section 8(a)(5) and (1) of the Act.
Alleged Unilateral Changes
Complaint paragraph 11(a) alleges that about June 2, 2011,
the Respondent changed the manner in which it pays its
employees. As amended at hearing, complaint paragraph 11(b)
alleges that about July 13, 2011, the Respondent changed the
manner in which employees are selected for work. Complaint
paragraph 11(c) alleges that about June 11, 2011, the Respondent
promulgated new work rules in the form of an employee
handbook.
The Respondent’s answer denies all these allegations.
Additionally, the answer raises, as an affirmative defense, that
“Any unilateral change was either required by law or legally de
minimis in nature.”
In making these allegations, the General Counsel assumes that
the evidence proves the Respondent to be a “perfectly clear”
Burns successor, and therefore without the right to establish
unilaterally its initial terms and conditions of employment. As
discussed above, a “perfectly clear” Burns successor is an
exception to the general rule that a successor employer may set
its initial terms and conditions of employment without
bargaining with the union.
However, for the reasons discussed above, I have concluded
that the Respondent was not a “perfectly clear” Burns successor.
Accordingly, it had no duty to bargain with the Union before
establishing the initial wages and working conditions and did not
violate the Act by doing so unilaterally.
Because I conclude that the Respondent did not violate the Act
by establishing initial wages and working conditions, it is not
necessary to reach the Respondent’s “affirmative defense.”
However, I understand that the Respondent is raising it to argue
that it could not continue the predecessors’ practice of treating
the employees as if they were independent contractors, that is,
by paying them by the day without regard to the Fair Labor
Standards Act and by failing to withhold taxes as required by the
Internal Revenue Code. These arguments, I believe, clearly are
nonfrivolous and would merit consideration had I concluded that
the Respondent was a “perfectly clear” Burns successor.
However, in view of my conclusion to the contrary, I need not
and do not consider the Respondent’s affirmative defense.
The unilateral change alleged in complaint paragraph 11(a)
concerned the Respondent paying employees at $11 per hour,
with taxes withheld. Because the Respondent was a successor,
and not a “perfectly clear” Burns successor, it lawfully
established such initial terms of employment.
The unilateral change alleged in complaint paragraph 11(c)
concerns work rules promulgated in an employee handbook.
Although the complaint alleges that the Respondent issued this
handbook about June 11, 2011, the credited evidence establishes
that many employees received their handbooks on June 4, 2011.
However, I do not believe that the lawfulness of these new rules
depends either on the exact date when the handbook was printed
or the date when an employee received the handbook.
The rules took effect when the Respondent began its
operations, not when the handbook was printed or distributed.
The issue of whether an employee had notice of a rule—and, if
so, when—is distinct from the issue of when the rule came into
existence. Because I find that the Respondent promulgated these
rules as part of the initial terms and conditions of employment it
established at startup, I conclude that it had no duty to bargain
with the Union and that it did not violate the Act.
The allegations in complaint paragraph 11(b) raise different
issues. Originally, paragraph 11(b) of the complaint alleged that
about June 9, 2011, the Respondent changed the manner in
which employees were selected for work. At hearing, the
General Counsel moved to amend the complaint to change the
date to July 13, 2011. Over the Respondent’s objection, I
granted the amendment. In opening argument, the General
Counsel described the allegation as follows:
Lastly, under Berry, hoppers were regularly assigned to the
same truck and had never been replaced by new employees for
training. You will hear Respondent during July 2011, well
after it had succeeded Berry, removed hoppers from their
regular trucks and then replaced them with new employees,
employees still in training. Respondent ignored its legal
obligation to bargain with the union, and in doing so, further
worsened the situation.
The General Counsel’s posthearing brief shed further light on
the scope and gravamen of the allegations. It stated, in part:
[I]n July 2011, Respondent, through Supervisor Karen
Jackson, began replacing experienced hoppers on trucks with
inexperienced hoppers. While working for Berry III, Jackson
always assigned experienced hoppers to trucks before
inexperienced hoppers for safety reasons. However, Jackson
changed this policy in July 2011, when she replaced hopper
Eldridge Flagge with a rotation of three new and completely
inexperienced hoppers. Jackson did the same with experienced
hopper Booker Sanders. Flagge and Sanders continued to
show up for work, but Jackson eventually simply stopped
assigning them to work for Respondent, favoring the
inexperienced hoppers over the veteran hoppers.
(Exhibit and transcript citations omitted.)
The General Counsel’s argument, as set forth above, depends
on the assumption that the Respondent is a “perfectly clear”
Burns successor and therefore obligated to bargain with the
Union before changing the terms and conditions of employment
which the predecessor had established. However, I have
concluded that the Respondent was not such a “perfectly clear”
CREATIVE VISION RESOURCES, LLC 27
successor and thus had the right to establish its own initial terms
and conditions of employment without having first to bargain
with the Union.
If the Respondent is not a “perfectly clear” Burns successor,
then it doesn’t matter whether Jackson’s action changed one of
the predecessor’s terms or conditions of employment. Rather,
the relevant question concerns whether her action changed a
policy that the Respondent adopted when it lawfully set the
initial terms and conditions of employment. A departure from
the Respondent’s initial terms and conditions of employment
might trigger a bargaining obligation, but that would be the case
only if the change affected some term or condition which was a
mandatory subject of collective bargaining, and only if the
change were material, substantial, and significant. See, e.g., Ead
Motors Eastern Air Devices, 346 NLRB 1060 (2006).
The General Counsel’s post-hearing brief argues that Jackson
made a change in the “method used to assign hoppers” and that
this change was unlawful even if the Respondent were not shown
to be a “perfectly clear” Burns successor. This argument appears
to be premised on the assumption that at the time Jackson
supposedly made the change, in July 2011, the Respondent
already had in place a policy or practice concerning the
assignment of hoppers to trucks, and that Jackson changed it.
Thus, the General Counsel’s brief states:
In either scenario [whether “perfectly clear” Burns successor
or not] Respondent unilaterally changed the method used to
assign hoppers to trucks without first providing the Union with
notice and an opportunity to bargain regarding the change of a
mandatory subject of bargaining, and therefore, violated
Section 8(a)(5) of the Act.
Thus, argument assumes that there was an existing policy or
practice—an established “method used to assign hoppers to
trucks”—and that Jackson changed it. Proving that there was, in
fact, such a method or practice is a necessary antecedent to
proving that the Respondent changed it, and the General Counsel
bears the burden of proof.
Indeed, to establish a violation, the government must prove a
number of elements. It must show (1) the existence of a
particular term or condition associated with the workers’ current
employment by the Respondent, (2) that this term or condition
of employment concerns a mandatory subject of collective
bargaining, (3) that the Respondent changed it, (4) that the
change was material, substantial, and significant, and (5) that the
Respondent made the change without affording the employees’
exclusive representative notice and a meaningful opportunity to
bargain.
The government has not carried its burden of proving that
there was an extant practice or “method used to assign hoppers
to trucks.” The General Counsel elicited testimony from Jackson
to the effect that when she worked for Berry III she chose to
assign to the trucks experienced hoppers rather than
inexperienced. However, because the Respondent is not a
“perfectly clear” Burns successor and was not bound to retain the
Berry III practices, Jackson’s testimony about her work for Berry
III is largely irrelevant.
Jackson may well have continued to prefer experienced
hoppers over inexperienced, but I do not consider such a personal
preference to be the same thing as an established practice.
Rather, it seems likely that her opinion that experienced hoppers
are safer was simply one factor she took into account in
exercising her independent judgment as a supervisor.
In this regard, the complaint alleges that Jackson is a
supervisor of the Respondent within the meaning of Section
2(11) of the Act. That subparagraph of the Act limits the
definition of supervisor to those individuals who use
independent judgment when they exercised authority on behalf
of the employer. See 2 U.S.C. § 152(11). The government’s
allegation that Jackson meets the statutory definition of
supervisor necessarily includes the allegation that Jackson must
use independent judgment in performing her supervisory duties,
and the Respondent has admitted it.
Jackson’s supervisory duties include deciding which hoppers
to assign to which trucks, decisions based not on one but a
number of different factors, one of them being the relative
experience or inexperience of the workers available for
assignment. Jackson’s testimony makes clear that when she was
making such decisions as a supervisor for Berry III she took into
account the relative experience of the hoppers available for
assignment.
It would not be surprising if Jackson’s belief that less
experience hoppers are more likely to have accidents continues
to influence how she exercises her independent judgment as a
supervisor for the Respondent. However, even should she decide
to give this factor less weight, or no weight at all, it does not
change the “method used to assign hoppers to trucks.” That
method is to have the supervisor make the decisions, as need
arises, using independent judgment.
Certainly, it is possible to imagine situations in which an
employer promulgates a list of criteria to be used by the
supervisor in making such choices or, going even further, assigns
each criterion a specific weight. The present record does not
suggest that the Respondent did so.
The government has not pointed to any document amounting
to a statement of the Respondent’s policy on how hoppers should
be assigned to trucks. Likewise, the record does not suggest that
Jackson, Richard III, or any other person speaking for the
Respondent announced such a policy.
Compared to Berry III, the Respondent has demonstrated far
more inclination to set policy, to memorialize such policies in
employee manuals, and, more generally, to do things “by the
book.” Nonetheless, the General Counsel has not offered any
document which reflects either the terms of a policy about
assigning hoppers to trucks, or even the existence of such a
policy.
Of course, a practice can come into existence and become
established without any formal statement of policy. However,
the present record does not persuade me that such a practice
existed.
Moreover, this unilateral change allegation rests largely on
Jackson’s testimony. The General Counsel has argued forcefully
that Jackson is not a credible witness but rather someone willing
to alter the dates on documents submitted during a government
investigation. Additionally, she initially erred concerning the
date on which she began work for the Respondent.
Further, considering her testimony as a whole leads me to
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
suspect it was affected by a desire to place the Respondent, and
herself, in a favorable light. Thus, it is difficult to evaluate how
much of her professed concern about hopper safety reflected her
actual practice as a supervisor and how much was exaggeration
for the sake of appearance.
Other witnesses have corroborated some portions of Jackson’s
testimony, such as that pertaining to what she told the hoppers
during the meeting on June 2, 2011, and, in view of that
corroboration, I have credited those portions. However,
Jackson’s testimony about mental processes when assigning
hoppers for Berry III stands by itself and I have little confidence
in it.
For these reasons, I conclude that credible evidence does not
establish that the Respondent had an established practice
regarding how hoppers were to be assigned to trucks. Because
the government has not proven the existence of such a practice,
it also cannot prove there was a change in it.
In sum, with respect to the allegations raised in complaint
paragraph 11(b), I find that the government has not carried its
burden of proof. With respect to the other unilateral change
allegations, I conclude that the Respondent, not being a
“perfectly clear” Burns successor, acted lawfully in establishing
the initial terms and conditions of employment unilaterally.
Therefore, I recommend that the Board dismiss these allegations.
REMEDY
Beginning June 6, 2011, and continuing to the present, the
Respondent’s refusal to recognize and bargain with the Union
has placed it in violation of Section 8(a)(5) and (1) of the Act.
To remedy these violations, I recommend that the Board order
the Respondent to recognize and bargain with the Union without
further delay and, additionally, to post the “:Notice to
Employees” attached to this decision as Appendix.
CONCLUSIONS OF LAW
1. The Respondent, Creative Vision Resources, LLC, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Local 100, United Labor Unions is a labor organization
within the meaning of Section 2(5) of the Act and the exclusive
representative, within the meaning of Section 9(a) of the Act, of
the following employees who constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b) of the
Act:
All full-time and part-time hoppers employed by Creative
Vision Resources, LLC, who work on trucks in the collection
of garbage and trash in the Greater New Orleans, Louisiana
area, excluding all other employees, guards and supervisors as
defined in the Act.
3. Beginning June 6, 2011, and continuing to date, the
Respondent has failed and refused to recognize Local 100,
United Labor Unions, as the exclusive representative of its

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, these 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.
employees in the appropriate unit described in paragraph 2,
above, and thereby has violated and is violating Section 8(a)(5)
and (1) of the Act.
4. The Respondent did not violate the Act in any other manner
alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Creative Vision Resources, LLC, New
Orleans, Louisiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with Local
100, United Labor Unions, as the exclusive representative of all
full-time and part-time hoppers it employs in the New Orleans,
Louisiana area.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Grant immediate and full recognition to Local 100, United
Labor Unions, as the exclusive representative of its full-time and
part-time hoppers and bargain with that labor organization in
good faith.
(b) Within 14 days after service by the Region, post at its
facilities in New Orleans, Louisiana, copies of the attached
notice marked “Appendix.”2 Copies of the notice, on forms
provided by the Regional Director for Region 15, after being
signed by the Respondent’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 Respondent to
ensure that the notices are not altered, defaced, or covered by any
other material. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by email,
posting on an intranet or internet site, and/or other electronic
means, if the Respondent customarily communicates with its
employees by such means. In the event that, during the pendency
of these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the
Respondent at any time since June 6, 2011.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Regional Director attesting to the steps
2 If this Order is enforced by a judgment of the 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.”
CREATIVE VISION RESOURCES, LLC 29
that the Respondent has taken to comply.
Dated Washington, D.C. January 7, 2013
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
federal labor law and has ordered us to post and abide by this
notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of these rights, guaranteed to them by Section 7
of the National Labor Relations Act.
WE WILL NOT fail and refuse to bargain collectively and in
good faith with Local 100, United Labor Unions, as the exclusive
representative of our full-time and part-time hoppers.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL grant immediate and full recognition to Local 100,
United Labor Unions, as the exclusive representative of all
hoppers we employ in the Greater New Orleans area, and will
bargain in good faith with that labor organization.
CREATIVE VISION RESOURCES, LLC