Geronimo Service Co.

National Labor Relations Board - Board Decisions

Jun 23, 1971

191 N.L.R.B. 450 (N.L.R.B. 1971)

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Geronimo Service Co. andNew Mexico District Coun-
cil of Carpenters , AFL-CIO, affiliated with United
Brotherhood of Carpenters & Joiners of America,
AFL-CIO. Case 28-CA-2149
June 23, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND KENNEDY
On March 29, 1971, Trial Examiner Allen Sin-
sheimer, Jr., issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision.'
Thereafter, Respondent filed exceptions to certain por-
tions of the Trial Examiner's Decision, and a brief in
support of exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. ' The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order of
the Trial Examiner and hereby orders that Respondent,
Geronimo Service Co., Albuquerque, New Mexico, its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's recommended
Order.
' Respondent's request for oral arguments hereby denied as the brief and
the entire record adequately present the issues and positions of the parties.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ALLEN SINSHEIMER, JR., Trial Examiner: This proceeding
was heard at Albuquerque, New Mexico, Thursday, Decem-
ber 17, 1970, and the hearing closed on January 14, 1971,
upon receipt of certain stipulations and documents. The com-
plaint issued on October 13, 1970' alleges a violation of Sec-
tion 8(a)(5) of the Act by refusing to bargain with the Union
' The original charge was filed on July 31, 1970, and a first amended
charge on September 30, 1970.
at all times since July 1, 1970. The issues will be more fully
set forth hereafter. Upon the entire record including observa-
tion of the witnesses and after due consideration of the briefs
filed by the General Counsel and the Respondent, I make the
following:'
I THE BUSINESS OF THE RESPONDENT
Geronimo Service Co., herein called Respondent, is a cor-
poration organized under the laws of the State of California
with its principal office at Oxnard, California, and has been
continuously engaged at that location and other locations in
various States of the United States, including New Mexico,
Arizona, and California, in the business of providing and
performing services, under contract, including the services
involved herein at Holloman Air Force Base in the State of
New Mexico.
During the past 12 months, Respondent, in the course and
conduct of its business operations, furnished services valued
in excess of $1,000,000, of which services valued in excess of
$1,000,000 had a substantial impact on the national defense.
I find that the Respondent is engaged in commerce and that
its operations affect commerce within the meaning of the Act.
II THE LABOR ORGANIZATION INVOLVED
New Mexico District Council of Carpenters, AFL-CIO,
affiliated with United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, herein called the Union, is a labor orga-
nization within the meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issue in essence herein is whether or not Geronimo
Service Co. is a "successor" within the meaning of the deci-
sions of the Board and the courts under the Act, and thereby
obligated to bargain with the Union which had been certified
as the collective-bargaining representative in a unit of em-
ployees of United Service Corporation.
B. The Facts
Certain functions necessary to the operation of the United
States Air Force facilities at Holloman Air Force Base,
Alamogordo, New Mexico, are performed by civilian con-
tractors who bid the jobs which are awarded for fiscal year
periods of the Government. The awarded contracts cover
separate functions to be performed by the contractors,
namely: housing maintenance and painting, refuse collection,
custodial work, etc. United Service Corporation received and
performed two contracts for the Air Force at Holloman for
the period of July 1, 1969, through June 30, 1970. These were
the refuse collection contract and the housing maintenance
and painting contract. United Service Corporation submitted
bids for both these contracts for the yearly period beginning
July 1, 1970. It was awarded the contract for refuse collec-
tion, but did not obtain the housing maintenance and painting
contract which was awarded to Geronimo Service Co.
Geronimo did not bid on the refuse collection contract.
Geronimo also received the contract for custodial work for
the year beginning July 1, 1970, which is not directly here
involved. It had as early as 1961 and as late as 1965 per-
2 In fn 1 of his brief the General Counsel filed a motion to correct the
record in certain respects. No opposition thereto has been filed by the
Respondent. I have examined the record with respect to the corrections
requested and conclude that they are proper. The aforesaid motion is hereby
granted and the transcript of the proceedings is corrected accordingly,
191 NLRB No. 88
GERONIMO SERVICE CO.
formed housing maintenance and painting work at Hollo-
man.
During the 1969-70 period of United's service contract
involving housing maintenance and painting and refuse col-
lection work, the National Labor Relations Board conducted
an election on a petition filed by the Union covering the
following unit: "All employees of the employer at Holloman
Air Force Base, New Mexico , excluding professional em-
ployees, guards and supervisors as defined in the Act." On
March 20, 1970, in Case 28-RM-237, a certification of repre-
sentative was issued which certified that the Union was the
exclusive bargaining representative in the aforesaid unit. The
tally of ballots in the election , issued March 12, reflects that
the election was conducted pursuant to a consent election
agreement and that 25 votes were cast for the Union, 19 votes
cast against it and that there were 4 challenged ballots which
were not determinative . The tally of ballots and the "Excel-
sior" list which was received in evidence and will be discussed
more fully hereafter indicates the approximate number of
eligible voters as 54 . Based on a stipulation as to the "Excel-
sior" list at the hearing, it appears , and I find, that of the 54
eligible names on the list, 44 were housing maintenance and
painting employees and 10 were engaged in refuse collection.'
Following the certification the Union and United Service
Corporation commenced negotiations for the purpose of ar-
riving at a collective-bargaining agreement . The General
Counsel in his brief asserts that "some proposals and counter
proposals were exchanged but before a conclusive agreement
could be reached and signed United Service found it had been
unsuccessful in obtaining the housing maintenance and paint-
ing contract for 1970-71." He adds that there was testimony,
some confused, as to whether and when any agreement was
concluded covering housing maintenance and painting em-
ployees and asserts:
It is the General Counsel's position that Respondent is
obliged to recognize and bargain with the Union as the
representative of its housing maintenance and painting
employees . There is no contention that Respondent is
obligated to any collective bargaining agreement that
United Service was negotiating with the Union. Whether
there was such an agreement is therefore academic.
I agree with the General Counsel that his case cannot be
predicated on any contract between United Service and the
Union. First any proposed agreement between the Union and
United was not to have been effective until July l 1970. As
of that time there could not have been a contract covering
housing maintenance and painting employees between
United and the Union because United had lost its bid early
in June for such work for the year commencing July 1, 1970.
In addition it is clear and I find that there was at no time
material herein any executed contract between the Union and
United Service covering the housing maintenance and paint-
ing employees.
It appears that the Union and United had discussed the
matter of a contract concerning all employees in the certified
unit. The Union prepared a draft contract and sent it to
United. United drafted a counterproposal dated May 4, 1970,
which its president, Berry, signed and sent to the Union.
' These figures vary somewhat from those stated by counsel at the hear-
ing as to the number of employees engaged in the respective categories
However, I consider that the "Excelsior" list is more accurate than the
approximate figures stated by counsel on the record . I am accordingly
finding that the number of persons employed in the respective work catego-
ries at the time of the "Excelsior" list were as set forth thereon and stipu-
lated thereto, namely 10 refuse employees and 44 housing maintenance and
painting employees I also find and conclude (based on testimony of very
little change) that this figure remained nearly the same until sometime in
June 1970.
451
Union Representative James testified that sometime about
May 15, he had signed this counterproposal although he did
not accept its terms and so indicated in a letter thereafter
(which is dated May 18). James testified that the members
approved his signing the counterproposal "by concensus" but
did not detail or clearly indicate how the "concensus" was
manifested . I find his testimony vague and indecisive as to
both the claimed approval of his signing and the actual time
of the signing thereof. In addition , Union Representative
Rodriquez , who was also involved in this matter with James,
said he didn't know as of about June 2 whether any contract
had been executed by James, asserting that he was in and out
of the matter and James was handling this portion . However,
Rodriquez also testified that on about June 2 he discussed
with United's president, Berry, changes in the proposed con-
tract. James admitted he did not inform United President
Berry that he had signed the counterproposal and Berry tes-
tified he was never sent a signed copy but did receive the letter
of May 18.
On May 18, James wrote a letter to Berry in which he
clearly rejected the counterproposal and listed items that
must be included in a contract .' The letter of May 18 not only
evidentially indicates there was no execution previously
thereto, but as a matter of law constitutes a counteroffer to
the counterproposal of May 4. Legally this would be a rejec-
tion thereof. The record is clear that no acceptance of the
letter of May 18 was effected by Berry. I therefore conclude
that there was no executed contract at any time covering the
housing maintenance and painting employees of United. For
both this reason and the fact that any claimed agreement
would not have been effective until July 1, I agree with the
General Counsel 's position and find that there was no con-
tract herein involved for which a predicate for the complaint
could be based.'
This leads to the question of whether or not Geronimo was
in fact a "successor" to the United Service Corporation. Both
of these companies are engaged in service operations in vari-
ous locations throughout the United States and have been for
some years. United has eight or nine service contracts at
locations in Virginia , Florida, Mississippi , Utah, and New
Mexico. Geronimo has eight or nine other service contracts
covering employees in New Mexico , Arizona, and California,
and pursuant to these employs in all at these locations about
250 employees ranging from the smallest number of 6 to the
largest about 120.
There is no question that United and Geronimo are sepa-
rate legal entities and there is no relationship direct or in-
direct, between the companies. It appears that they are com-
petitors.
When Geronimo received the contract covering the hous-
ing maintenance and painting work, it took over the same
facilities that United Service had used consisting of an 'ad-
ministrative office building and a yard-which were used for
garaging of vehicles and warehousing of equipment and parts.
It had the same area as was used by United Service and used
the same telephone number . The number of housing units
In the letter, James stated "there are several important sections that
have been omitted.... These are most important ... and must be in-
cluded " His letter concluded "hoping we will be able to work out a satisfac-
tory agreement in the very near future, I remain."
I With respect to the refuse agreement, this was subsequently negotiated
by Berry and' Rodriquez , but evidently was not actually executed until
sometime in July 1970 after the new government contract covering refuse
employees went into effect . This is one more element of proof that in fact
there was no executed agreement between United and the Union insofar as
housing maintenance and painting employees were concerned since the
refuse employees had been included in the preceding proposals relative to
a proposed contract between the parties.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increased from 1250 by about 300. There were also 100 addi-
tional trailer units with the prior number unspecified.
Geronimo purchased from United certain automobile equip-
ment, paying $20,000 for the automotive equipment plus
$3500 for a Dempster Hoister which later was used else-
where. In addition to the equipment purchased by Geronimo
from United it brought in equipment which it owned or had
purchased from other sources consisting of 12 additional
units with a dollar value of $50 ,000. Geronimo was not able
to utilize all the automotive equipment it purchased from
United but did use about $ 12,000 to $13 ,000 of this in per-
formance of its contract . Additionally , Geronimo purchased
$5,000 worth of miscellaneous equipment and tools from
United Service . This represented about 40 percent of all the
equipment used by United to fulfill the housing maintenance
and painting contract.' It also represented about 80 percent
of the tools. By stipulation and evidence the record reflects
that on July 1, 1970, Geronimo received through United
Service supplies and equipment in the amount of $26,000
which consisted of government supplies or materials (origi-
nally) issued to United Service Corporation.
Although the number of housing units under the
Geronimo contract increased by 300 from 1250 and the num-
ber of trailers by 100 , the job classifications needed and em-
ployed to perform the housing maintenance and painting work
remained the same.
Geronimo hired employees from the local job market and
had its supervisor by word of mouth let it be known among
the United Service employees that applications would be ac-
cepted from them for work under the housing maintenance
and painting contract . There are numerous records set forth
which deal with the employment by United of employees and
by Geronimo of employees . There was no list of United em-
ployees submitted for the month of June as such, but through
the Excelsior list of February and testimony an approxima-
tion as to the June complement can be made. The "Excelsior"
list as stated contained 54 names of purportedly eligible em-
ployees of whom 10 were refuse employees and 44 housing
maintenance and painting employees. A table marked Ap-
pendix A is attached hereto which reflects a compilation in
large part made by the General Counsel (which has been
checked by the Trial Examiner ), together with certain figures
furnished by the Respondent with respect to July 1 employ-
ment. Certain explanations and amplifications are also set
forth thereon . Most of these originated with the General
Counsel with some additions and changes by the Trial Exam-
iner. My examination and check indicate these accurately
reflect the data as set forth . However , like most data these
require further consideration and analysis. With respect to
this compilation and certain contentions made as to employ-
ment by the General Counsel and the Respondent , I note the
following:
The Respondent in referring to its July 1 payroll lists 29
employees including one supervisor , Rolls, an employee when
with United , and 12 others whom Respondent credits as
former United employees. These were former United em-
ployees. However , one of them , Miller was not employed
during 1970 but in 1969 . The July 1 date, of course , was the
first day of the new contract . The subsequent dates set forth
of July 11 and 24 , August 7, and September 4, 1970 , appear
to be more representative of the employment complement,
particularly July 24 and August 7 , since by July 25 the record
reflects Geronimo achieved its full complement of employees.
6 I note that there appears to have been some requirement that certain
equipment be less than 3 years old and therefore some of the equipment that
Geronimo purchased from United may not have been usable under the
contract.
The General Counsel has included in his list the same Miller,
who was not employed in 1970 , and also Dennis Harrell and
Jose Gonzales, who apparently were not employed at the
"Excelsior" date in February 1970 nor thereafter. Their
names appeared on the "Excelsior" list among the employees
marked "not employed" which group was crossed off
thereon. The General Counsel also includes James Lisman
and Jerry Moore, whose employment applications to
Geronimo indicated that they were employed in 1970, one of
them from February, 1970, but also were not on the "Excel-
sior" list. He also lists Crestino Pantoja whose employment
application shows employment from July 1965 to July 1970
as employed but who for some reason does not appear on the
"Excelsior" list. These at some time all apparently worked for
United Service.
Although the record does not show what the situation in
fact was , Lisman and Moore could have been replacements
for Harrell and Gonzales . If so, to count all four would be
including employees who would not have been employed at
the same time . With respect to Pantoja it is not clear what his
status was at the time of the "Excelsior " list and why he was
not included thereon . The General Counsel contends the fact
of Pantoja having previously worked for Geronimo as well as
United is indicative of the employing industry. While it may
be questionable what employment of one individual would
prove, the fact that Geronimo had previously had the contract
prior to United and then after United, does point to an employ-
ing industry with one corporation succeeding another or at
least competing with one another in that industry . The record
testimony reflected that the persons whose names are shown
on the "Excelsior" list continued in employment until June
when some three or four persons (among housing mainte-
nance and painting employees ) were laid off by United prior
to the end of the period . However, James Chitty, contract
manager for United , testified credibly that this was because
of the approaching end of the contract . I therefore do not
consider that such reduction in force be of significance in
analyzing the relation between the prior United employees
and those employed by Geronimo.
The increased number of employees by Geronimo in July
may reflect the fact of additional housing units or be attribut-
able to its approach to performing the work . This difference
does not appear to be large. United showed an employment
from the Excelsior list in the housing maintenance and paint-
ing group of 44 in February (including Rolls). What its pre-
cise employment was before the reduction in June is not
entirely clear . If Pantoja, Lisman, and Moore are counted, it
would appear to have had about 47 (46 without Rolls) hous-
ing maintenance and painting employees before the reduc-
tion. ' The Geronimo employment figures were July 11, 48;
July 24 , 53; August 7, 46; and September 4, 43. These include
Rolls, who as stated was an employee with United but a
supervisor for Geronimo.
The figures, as set forth by the General Counsel and in-
dicated on his summation, include all of the employees
named, supra, and Supervisor Rolls with the resultant totals
set forth of 27 (former United) of 48 (Geronimo) on July 11;
28 of 53 on July 24; 27 of 46 on August 7; and 25 of 43 on
September 4. If Rolls were omitted as foreman , Miller omit-
ted as not employed in 1970 and Harrell and Gonzales omit-
ted as not employed as of the Excelsior date or thereafter, the
number of counted employees on July 11, 1970, would be 48
less 4 or 44 . This would result in a total of 21 (20 without
Rolls) of the 44 United housing maintenance and painting
If Pantoja were employed as his application indicates throughout Febru-
ary, then there would have been 45 housing maintenance and painting
employees at that time rather than the 44 shown on the "Excelsior" list
GERONIMO SERVICE CO.
employees on the "Excelsior" list being among 44 employees
of Geronimo (including Lisman, Moore, and Pantoja) on July
11, 1970. If June, before reductions, is examined and Lisman,
Moore, and Pantoja included, among the total of United
employees then in housing maintenance and painting work
there appear to be 47 with Rolls (46 without Rolls). Based on
such June employment, then 23 of the 46 United employees
were among 44 Geronimo employees on July 11 (not counting
Rolls, Miller, Harrell, and Gonzales). Were Harrell, Gon-
zales, and Miller (but not Rolls) to be counted as employees
without giving any effect to their sometime United Service
employment on July 11, there would have been 47 employees,
23 of whom apparently had still been employed by United as
of June 1970. However, if these 3 are counted as employees,
then the General Counsel obviously would contend that they
should be counted as former United Service employees, who
would then constitute 26 of 47 employees on July 11. The
same type of analysis would apply to July 24 or August 7 or
September 4.
A comparison of the United employees evidently employed
in June (before reductions) who were subsequently employed
by Geronimo, excluding Harrell, Gonzales, Miller, and Rolls,
shows that of the apparent total of 46 (excluding Rolls)
United Service housing maintenance and painting employees,
23 were on Geronimo's July 11 payroll, 25 on its July 24
payroll, 24 on its August 7 payroll and 21 on its September
1970 payroll. The foregoing establishes, and I find, a majority
of the 46 persons' who were evidently performing housing
maintenance and painting work in June, were employed by
Geronimo at the time it reached its full complement of em-
ployees on July 24 and also on August 7 The record as shown
further established: Slightly less than half of the total number
of employees hired by Geronimo were on the "Excelsior" list.
Nearly half of those employees on the Geronimo payrolls of
July 11 and July 24, and over half on Geronimo's payroll of
August 7 (and also September 4 if Rolls is included) were
employed by United in June. Further as shown, of the total
number of Gerommo employees engaged in housing mainte-
nance and painting on July 11, July 24, August 7, and Sep-
tember 4, 1970, a majority of the employees employed by
Geronimo had at some time been United Service employees.
Hugh Horn, president of Respondent, testified credibly,
and I find, that about July 3, 1970, Union Representative
James contacted him and asked Horn to enter into a contract.
Horn told James he would have to check and let him know.
Subsequently, Horn advised James, "I told him we didn't
believe that we were obligated to enter into a contract with
him or with the Union, not with him." I find that by the
foregoing Respondent refused to bargain with the Union.
Whether or not this was proper will now be considered.
C. Findings and Conclusions as to Successorship
The cases vary as to the facts, and various arguments and
contentions may be made with respect thereto and what is
necessary to establish "successorship." However, it appears
that two criteria are principally looked to for resolution.
First, is the nature of the "employing industry " substantially
the same? Second, what percent of the former employees are
employed by the new employer which is now conducting the
operations and facilities. Together these central factors may
establish whether or not the "employing industry" is essen-
tially the same or sufficiently so to establish "successorship."
The question has been described as "whether respondent con-
'Forty-seven if Rolls is included in total but if so he should also be
included in the total of United employees working for Gerommo on the
dates set forth.
453
tinned essentially the same operation with substantially the
same employee unit.... "9 The "employing industry" herein
appears to be sufficiently the same so as to come within the
criteria laid down by the cases. The fact that all of the former
equipment was not used is not determinative. Some of the
automotive equipment was used by Geronimo and some was
not. Miscellaneous hand tools and supplies of some $5,000
(consisting of 40 percent of the miscellaneous equipment and
specifically 80 percent of hand tools) were purchased from
United by Geronimo and some $26,000 of supplies and
materials furnished by the U.S. Government were transferred
from United to Geronimo. The facilities to be worked on were
the same in character although somewhat enlarged in num-
ber. However, the increase was not such as to change the
basic nature of the operations. The same location was uti-
lized. The principal difference was the omission of the refuse
employees which amounted to some 10 of 54 employees or
about 18 percent. It is clear that such does not change the
basic employing operation." Even a separation of plants has
been held not to have such effect.'
As for the former employees involved, the number of
United employees employed by Geronimo either was or ap-
proximated a majority of the United employees who were
employed in June (prior to the reduction at the end). These
latter employees constituted about halfof all those employed
by Geronimo. Further, a majority of all persons employed by
Geronimo at each of the dates set forth (except July 1) were
at some time employed by United. Under these circumstances
the cases indicate that this is sufficient to find that Geronimo
is a successor . See Maintenance Inc., supra, footnote 9 (75
percent of former employees hired by "successor"). See also
Firchau Logging Company, 126 NLRB 1215, where the pre-
cecessor had 43 employees in the bargaining unit. Of 62 in the
expanded unit of the new employer, 20 had been employees
of the predecessor. The ratio of employees of the predecessor
employed by the new employer to total employees of the
predecessor was 20 of 43 or 46+ percent while the ratio of
predecessor employees to total employees of the new em-
ployer was 20 of 63 or 31 + percent."
In the instant case since the employing industry is essen-
tially the same and since evidently a majority of those em-
ployees working for United in June were employed by
Geronimo, these constituted approximately half of Geroni-
mo's employment complement, and since a majority of
Geronimo's employees were at some time employed by
United, I find and conclude that Geronimo Service Company
is a "successor" to United Service Company.
Maintenance Inc., 148 NLRB 1299, 1301 discussed post.
10 See Maintenance Incorporated, supra, fn. 9, wherein Maintenance
Incorporated was successful bidder for custodial janitorial services but not
for the garbage collection contract held by its predecessor This affected
about 40 persons in a unit of more than 360 or 11 + percent There the
remaining employment amounted to 88+ percent, here to 82+ percent of
the predecessor.
See Quaker Tool & Die Inc, 162 NLRB 1307
Cf. Thomas Cadillac, 170 NLRB No. 92, where after the predecessor
split its operations only one of four employees of one new employer had
worked for the predecessor and less than one of three employees of the
second new employer had worked for the predecessor. Cf. also Tallakson
Ford, Inc., 171 NLRB No. 67, where the Board said, "Only a minority of
Howard's employees in the appropriate unit continued in the employ of
Respondent... " The Board added, "And since. . a majority of its em-
ployees in the unit involved had never worked for Howard, Respondent is
not a successor as to that unit ... " (Emphasis supplied.) Cf. also Plant &
Field Service Corporation, 184 NLRB 100 (one employee to each seven or
eight new employees) And Cf. Stepps Friendly Ford, 338 F.2d 833 wherein
only 3 of 12 employees in the predecessor unit were hired which resulted
in three of eight in the new employer's unit having been employees of the
predecessor.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also find that "all housing maintenance and painting
employees of Geronimo Service Company engaged in the
performance of its contracts at Holloman Air Force Base,
excluding executives, guards, professional employees and
supervisors as definediin the Act constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act."
The Union was certified on March 20, 1970, as exclusive
bargaining representative of the employees of United Service
in, the unit set forth,' supra. Since the employing., industry
herein has remained essentially the same and I have found
Geronimo Service Co. to be a successor-employer, the obliga-
tion to bargain with the Union devolved upon it. The effec-
tiveness of a certification is not destroyed by the mere change
of employers, but continues where a successorship is properly
found." I accordingly find that since, absent unusual circum-
stances, a certification is conclusive as to majority status for
a period of 1 year14 that the Union was the exclusive bargain-
ing representative of Respondent's employees in the aforesaid
appropriate unit within the meaning of Section 9(a) of the
Act. I also find that Geronimo Service Co. has failed and
refused to bargain with the Union as the exclusive collective-
bargaining representative of its employees in said unit, supra.
Accordingly, I further find that by refusing to recognize
and bargain with the Union as the exclusive representative of
its employees in said unit, as found above, the Respondent
has violated Section 8(a)(1) and (5) of the Act.
IV. THE REMEDY
As found above, the certification of March 20, 1970, issued
with respect to United Service Corporation in legal effect
applies to Geronimo Service Co. except as to the refuse em-
ployees. Also, as set forth, the Union requested recognition
on July 3, 1970, and Respondent refused to recognize or
bargain with it.
Having found that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of the
Act, I shall recommend that it be ordered to cease and desist
therefrom and, upon request, bargain collectively with the
Union as the exclusive representative of all the employees in
the appropriate unit and if an understanding is reached em-
body such understanding in a signed agreement.
In order to insure that the employees in the appropriate
unit will be accorded the services of their selected bargaining
agent for the period provided by law the initial period of
certification shall be construed as beginning on the date Re-
spondent commences to bargain in good faith with the Union
as the recognized bargaining agent in the appropriate unit.
See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce Co. d/b/a Lamar Hotel, 140 NLRB 226, 229 enfd. 338
F.2d 600 (C.A. 5) cert. denied 379 U.S. 817; Burnett Con-
struction Company, 149 NLRB 1419 enfd. 350 F.2d 57 (C.A.
10).
V THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations in section
I, above, have a close, intimate and substantial relation to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing the
free flow of commerce.
See N.L.R.B. v. Armato , 199 F.2d 800 (C.A 7).
" A certification also creates a continuing presumption of majonty status
thereafter.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act..
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All housing maintenance and painting employees of the
Respondent engaged .in the performance of its contracts at
Holloman Air Force ' Base, excluding _ executives, guards,
professional employees and: supervisors as defined in the Act,
constitute a-unit appropriate for the purposes of',collective
bargaiiiing,'within'the meaning of Section 9(b) of`the Act.
4. The Union was, owJuly 1, 1970, and at all times there-
after, has been thb exclusivecolieeti've-bargaining^representa-
tive of Respondent's employees in,the appropriate unit within
the meaning of Section^9(d) of the Act'
5. By refusing on and:after July' 3, 1970;: to meet with the
above-named labor organization ,and to'.bargairr with, ittfor
purposes of collective bargaining, Respondent has engaged in
and is engaging in unfair labor. practices,within. the meaning
of Section 8(a)(5) and (1) of the-Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section-2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:"
ORDER
Respondent, Geronimo Service Co. its officers, agents,
successors and assigns shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with New Mexico Dis-
trict Council of Carpenters, AFL-CIO, affiliated with United
Brotherhood of Carpenters & Joiners of America, AFL-CIO
as the exclusive collective-bargaining representative of the
employees in the following appropriate bargaining unit:
All housing maintenance and painting employees of the
Respondent engaged in the performance of its contracts
at Holloman Air Force Base , excluding executives,
guards, professional employees and supervisors as
defined in the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Upon request bargain collectively with New Mexico
District Council of Carpenters, AFL-CIO, affiliated with
United Brotherhood of Carpenters & Joiners of America,
AFL-CIO as the exclusive representative of the employees in
the appropriate unit with, respect to rates of pay, wages, hours
of work and other terms and conditions of employment. Re-
spondent shall also embody in a signed agreement any under-
standing reached.
(b) Post at its premises at Holloman Air Force Base,
Alamogordo, New Mexico, copies of the notice attached
hereto marked "Appendix B."16 Copies of the notice, on
forms provided by the Regional Director for Region 28, after
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions and Order, and all objections thereto shall
be deemed waived for all purposes.
16 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
GERONIMO SERVICE CO. 455
being duly signed by an authorized representative of the Re- notices to employees are customarily posted. Reasonable
spondent, shall be posted by it immediately upon receipt steps shall be taken by the Respondent to insure that said
thereof, and be maintained by it for 60 consecutive days notices are not altered, defaced, or covered by any other
thereafter, in conspicuous places, including all places where material.
11 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 28, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
(c) Notify the Regional Director for Region 28, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.",
APPENDIX A
To be considered with footnote explanations and in conjunction with text
analysis.
Former (at sometime) Employed by
United Service Housing Geronimo Dur.
Maintenance & Painting Employed on Payroll Per.
Employees Employed by July 1 End. 7-11-70
Geronimo Service Co . tf DENOTED BY X DENOTE D BY X
Benson , Charles W. X
Bright , George Lee X
Foid, Allan J. X
Rolls , Freeman A. * X X
Allen, Marvin X
Armstrong , James
Bass , William R. X
Bickham, William F. * X X
Diaz, Benny R. * X
Eaden , Eddie L. X
Fanto, Nick C. * X X
Godard , Clarence X
Gray, D. H. * X X
Gray, Donald Jr. X
Higgens , Tommie A. * X X
Hutson , Donald B. * X x
Kopp, James V. X
Manzanarez , Arsenia * X X
Miles, Vernard * X X
Munoz , Alex C.
Ornelas , Arturo J. * X
Ornelas , David X
Snellgrove, Price C. * X X
Vann, Edd H.
Harrell, Dennis Ray ** X
Gonzales , Jose B. ** X
Lisman, James (1970)*** X x
Miller, John **** X X
Moore , Jerry (1970)***** X X
Pantoja , Crestino ****** X X
Employed by Employed by Employed by
Geronimo Dur. Geronimo Dur. Geronimo In
Payroll Per. Payroll Per. Payroll Per.
End. 7-24-70 End. 8-7-70 End. 9-4-70
DENOTED BY X DENOTED BY X DENOTED BY X
X X
X X X
X X X
X X X
X X X
X
X X
X X X
X X X
X X X
X X X
X X X
X X X
X X
X X X
X X
X X X
X X X
X X X
X X
X X X
X X X
X X X
X X X
X X X
X X X
X X X
X
X X
X X X
27 of 48 28 of 53 27 of 46 25 of 4330 13 of 29
Total Total Total TotalTotal
Complement Complement Complement ComplementComplement
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
*Found on Excelsior list (G.C. Exhibit 12). Testimony also indicates these men
were employed in June of 1970 by United Service
**Found on Excelsior list with note that
***Application shows employment by United
****Application shows employment by United
*****Application shows employment by United
June 30, 1970.
******Application shows employment by United
also shows prior employment before 1965
they had left employment of United Service.
Service in 1970.
Service from July 1969 to November 1969.
Service from February to "present ," i.e.,
Service from July 1965 to July 1970 and
of Geronimo.
1/ Qualifications and explanations as to time of employment with United Service or
basis of listing should be carefully noted.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively upon re-
quest with New Mexico District Council of Carpenters,
AFL-CIO, affiliated with United Brotherhood of Car-
penters & Joiners of America, AFL-CIO as the exclu-
sive bargaining representative of the following em-
ployees:
All housing maintenance and painting employees of
the Respondent engaged in the performance of its
contracts at Holloman Air Force Base, excluding
executives, guards, professional employees and
supervisors as defined in the Act.
WE WILL bargain collectively upon request with the
Union as the exclusive representative of the employees
I
in the bargaining unit and if an understanding is reached
we will sign a contract with the Union.
GERONIMO
SERVICE CO.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 7011
Federal Building and U.S. Courthouse, 500 Gold Ave. S.W.,
P.O. Box 2146, Albuquerque, New Mexico 87101, Telephone
843-2555.