295 N.L.R.B. 529 (N.L.R.B. 1989)

Gsx Corp. Of Missouri

National Labor Relations Board - Board DecisionsJun 15, 1989

295 N.L.R.B. 529 (N.L.R.B. 1989)

GSX CORP. OF MISSOURI GSX Corporation of Missouri and Miscellaneous Drivers, Helpers, Health Care & Public Em- ployees Union Local 610, affiliated with Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America AFL- CIO.' Case 14-CA-18544 June 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 13, 1987, Administrative Law Judge William A. Gershuny issued the attached decision. The General Counsel and the Respondent have filed exceptions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified and to adopt the recom- mended Order as modified. The complaint , as amended , alleges that the Re- spondent violated Section 8(a)(1) and (3) by laying off and thereafter refusing to reinstate a number of employees2 represented by Local 610 in order to discourage support for or membership in that orga- nization . The amended complaint also alleges that the Respondent violated Section 8(a)(1) and (5) under two alternative theories: First, that employ- ees at the Respondent 's waste-transfer stations are an accretion to a unit represented by Local 610 and covered by Local 610's contract, and that the Re- spondent violated Section 8(a)(1) and (5) by failing to apply the contract's terms to these employees; alternatively, that the transfer station employees are an appropriate unit and that but for the unlaw- ful conduct alleged as an 8(a)(3) violation, Local 610 would be the representative of a majority of transfer station employees . Thus, it alleges that the Respondent violated Section 8(a)(1) and (5) by re- fusing to accede to Local 610's request to bargain on behalf of these employees. The judge found that the transfer station em- ployees were an accretion to the unit represented by Local 610, that these employees were covered by Local 610's contract with the Respondent, and that the Respondent violated Section 8(a)(5) and , On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO. Accordingly, the caption has been amended to reflect that change 2 The complaint named 10 discrimmatees . At the hearing, the General Counsel amended the complaint to include 11 additional named employ- ees as well as employees whose identities were unknown The General Counsel seeks reinstatement for all those employees 529 (1) by refusing to apply the terms of this contract to these employees. The judge further found that the issues of discriminatory layoff and failure to re- instate were appropriate for resolution under the grievance arbitration procedures of the parties' contract or in the compliance stage of this proceed- ing. Accordingly, he made no findings on these issues. Contrary to the judge, we do not find the issues of discriminatory layoff and failure to reinstate ap- propriate for deferral to arbitration, in the absence of a request for deferral and in light of the relation- ship between the alleged unlawful layoff and un- lawful failure to bargain.3 Rather, we find that the Respondent violated Section 8(a)(3) and (1) by laying off the Local 610-represented employees and then refusing to hire them for jobs in its waste- transfer station operations. We further find, in agreement with the judge, that the Respondent vio- lated Section 8(a)(5) and (1). In doing so, however, we rely on the General Counsel's alternative theory,4 which predicates a finding of an unlawful failure to bargain on the Respondent's unlawful layoff and failure to hire. The Respondent provides waste disposal services for residential and commercial sites . The branch of the Respondent involved here is the United Dis- posal Division (UDD), which is divided into a number of smaller divisions : the St. Louis Residen- tial Division , the Illinois Residential Division, the UDD commercial-hauling operations, and the M & D Division for construction-waste hauling. Local 610 represents a unit of approximately 70 drivers, laborers, and maintenance employees in the UDD commercial-hauling operations , which included the incinerator employees at issue here. Teamsters Local 682 represents a unit of employees in the M & D Division. Prior to July 1986, the Respondent performed hauling operations at two city-owned incinerators. In July 1986 the city closed the incinerators and contracted with the Respondent to establish two waste-transfer stations near the sites of the former incinerators. At the time of the closing, there were approximately 12 employees working for the Re- spondent at the incinerators . Following the closing of the incinerators , all 12 employees were initially laid off. Several, however, retained their employ- ment with the Respondent by exercising "bump- 3 See, e g, S Q.L Roofing, 271 NLRB 1 (1984). Moreover, because we do not rely on the judge's accretion finding , see infra, the contractual grievance arbitration procedures are inapplicable to the waste -transfer station operations. 4 Contrary to the judge , we do not find that the evidence establishes an accretion of the transfer station employees to the unit of drivers , laborers, and maintenance employees in the United Disposal Division commercial- hauling operations represented by Local 610 , as described infra. 295 NLRB No. 61 530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing" rights over less senior employees elsewhere in the UDD commercial -hauling unit represented by Local 610. Further, pursuant to a contract between the city of St. Louis and UDD, UDD employees represented by Local 610 continued to perform temporary hauling work at the new waste-transfer sites prior to the sites' becoming fully operational. Approximately five employees who had been em- ployed at the incinerators were hired by the Re- spondent at the new waste-transfer sites. At the time of the hearing, there were approximately 30 employees in the transfer station jobs , and approxi- mately 21 Local 610-represented employees who had been laid off and not reinstated.5 Prior to the closings, the Respondent performed hauling and loading operations at the city-owned incinerators , using employees classified as drivers and yardmen or laborers . At the incinerator sites, the yardmen or laborers were primarily responsible for maneuvering tractor-trailer trucks under the conveyor belts that transferred the burnt ash from the incinerators into the top of the trucks . Laborers also operated the conveyor belts and kept the area around the belts clear of trash. Once the trucks were filled, the Respondent 's drivers hauled the ash to landfill sites and operated the hydraulic levers that raised the truck bed and deposited the ash at the landfill site . Drivers then drove the empty trucks back to the incinerators to be reloaded. The work at the waste-transfer station was simi- lar. The Respondent employed drivers, spotters, and loaders or operators . Spotters directed city em- ployees where to dump the incoming trash. Drivers were responsible for backing the tractor-trailer trucks down ramps and into the "pits" where the trash was collected. Loaders operated the "bucket loaders," which transferred the trash into the trucks. Drivers, assisted by spotters, then tarped the trucks. Once the truck was loaded and tarped, drivers hauled the trash to the landfill site and there operated levers connected to a blade inside the truck bed that, by moving horizontally, pushed the trash off the truck bed and onto the site. The drivers then drove the empty trucks back to the waste-transfer station for reloading. In early July 1986, Local 610 Representative Metz received a report that the incinerator employ- ees would be laid off and would not be offered an opportunity to work at the new waste -transfer sta- tions . He contacted the Respondent 's regional man- ager, Volonino . In response to Metz' question why Local 610 employees were not going to be assigned the transfer station work, Volonino informed Metz s This figure includes former incinerator employees as well as employ- ees from the UDD commercial -hauling operations unit who have been laid off due to a loss of contract work not alleged to be unlawful. that the Respondent had set up a new division and further that Metz should go and organize the trans- fer station employees. Metz replied that he "didn't feel [he] had to organize those people that the work was already [Local 610's]." Their discussion then ended. On August 5 Metz asked one of the Respondent 's area managers, Logsdon , what was "going on" with the transfer station , stating it was "[Local 610's] work." Logsdon informed Metz that the transfer station was a new division and "that's all there was to it." Between July 20 and October 6, approximately 20 grievances regarding the Re- spondent's failure to offer Local 610-represented employees an opportunity to bid on the waste- transfer station work were filed. Various statements made by the Respondent's of- ficials show that they viewed the bargaining rela- tionship with Local 610 as a continuing source of irritation. At the hearing, Area Manager Logsdon characterized dealings with Local 610 as "very strenuous" and as involving the handling of many grievances that, in Logsdon words, were "totally unnecessary ." According to uncontradicted testi- mony, the Respondent's district manager, Kania, at various times in 1986, had described grievances filed by Local 610 as "nit-picking," "bull shit," and "chicken shit." More significantly, Renaude, a busi- ness agent with Local 682, testified that during a meeting with Kania , Logsdon , and Williams,6 one of these individuals informed him that, with refer- ence to the waste-transfer station operations, the Respondent "would not negotiate with Local 610" and if "they [the Respondent] couldn't get Local 682, they might have to go somewhere else includ- ing the CIU [Congress of Independent Unions]." During this meeting Renaude was also told that the Respondent had a "good rapport with Local 682," but that the Respondent "had many problems with Local 610, many grievances," and it preferred a contract with Local 682. In a similar vein, former incinerator employee Kelts testified without rebut- tal that approximately 1 month before the inciner- ators were closed , his supervisor , Gentry, stated that the Respondent "wanted to get 610 out and 682 in, or go nonunion because of the hassles with 610 with the grievances all the time ." In fact, the Respondent solicited referrals from Local 682 for the waste-transfer stations, but told Local 610 to go out and "organize" the transfer station employees.' a Renaude identified Williams only as a representative of the Respond- ent. 9 Metz also testified that in a conversation with Area Manager Logs- don in October 1986 he asked Logsdon, in reference to the transfer sta- tion, "what in the hell [the Respondent] was doing and why [the Re- spondent was] doing this to [Local 610]." Logsdon purportedly stated that if "Mike Tettramble [chief shop steward] wasn 't around [Local 610] Continued GSX CORP. OF MISSOURI In contending that the layoff and refusal to hire violated Section 8(a)(3), the General Counsel argues that the above statements, together with the Respondent 's failure to employ a readily available pool of employees capable of performing the work, support the inference that the Respondent was un- lawfully motivated in refusing to assign Local 610- represented employees to the waste -transfer sta- tions . In response , the Respondent contends there is no evidence that any former incinerator employ- ee was denied the opportunity to work at the waste-transfer stations . The Respondent's excep- tions also suggest that the former incinerator em- ployees were not hired because they were not ca- pable of performing the work. Thus, the Respond- ent argues that these operations differ significantly from the incinerator operations and involve the use of different equipment , such as the bucket loader. It also argues that the transfer station work re- quires different skills and special training , such as those required in the operation of the bucket loader or the operation of a tractor-trailer in the confined space of the loading area. We find that the General Counsel has established a strong prima facie case that the Respondent's layoff of, and refusal to rehire, unit employees for waste-transfer station jobs were discriminatorily motivated , and that the Respondent has failed to prove that the employees would not have been hired for the new operations in the absence of their membership in or support for Local 610. The evi- dence also shows that the Respondent's layoff of these employees arose from a desire to avoid bar- gaining with Local 610 concerning the waste-trans- fer stations . Thus the Respondent 's statements, de- scribed above , evince animus towards Local 610 and a desire to avoid dealing with it on behalf of its employees .8 Although these statements in them- selves are not unlawful , we nevertheless find them sufficient to establish animus toward Local 610.9 Without a convincing explanation for the Respond- ent's layoff and failure to hire Local 610-represent- ed employees , the statements suggest an unlawful basis for the Respondent 's actions. Further, we find that the Respondent, in fact, has advanced no legitimate reason for its failure to rehire former incinerator employees , as well as other laid-off unit employees , for its transfer station wouldn't have this problem" and further that Tettramble "was the reason why . [Local 610] didn't end up with the transfer station work." Logsdon has denied these remarks and the judge failed to resolve the conflict in testimony on this issue ° In the absence of a credibility resolution by the judge, we do not rely on the statement described supra in fn. 6. ° By contrast , we note that the Respondent indicated to a Local 682 official that they were interested in signing a contract with Local 682 concerning the waste-transfer stations and solicited referrals from the Local 682 agent 531 operations . In this regard , we find that the inciner- ator and transfer station operations, both of which involve the hauling and disposal of trash with the use of tractor-trailers and other heavy equipment, do not differ significantly . Even assuming that some of the equipment might be new to the former incinerator employees, we do not find that teaching them to use it would have been difficult and time consuming. The Respondent has not presented any evidence that anyone of the employees hired at the transfer stations was initially qualified to operate the bucket loader. Rather, Emde, the Respondent's official responsible for the transfer stations, testified that the first operators were given 3 days' instruc- tion in the operation of this equipment . In addition, an employee driver who was employed at the in- cinerator and subsequently hired at a transfer sta- tion testified without contradiction that he required no special training to operate the truck in the load- ing area and further testified that he did not see bucket loader operators receive special training. The Respondent has also argued that transfer station employees were hired for their capability of being cross -trained on different equipment . The Re- spondent, however, has not explained why the newly hired employees are better candidates for cross-training than former employees . Additionally, Emde admitted that even by the time of the hear- ing, approximately 4 months after the waste-trans- fer stations opened, a number of bucket loader op- erators had not been cross-trained because they lacked a chauffeur 's license necessary to operate tractor-trailers on the road . The Respondent failed to explain why these employees, who apparently required both training on heavy equipment and li- censing for truckdriving, were more qualified than former employees for transfer station work. Thus, we find that the Respondent's failure to rehire Local 610-represented employees for the waste-transfer station work arose from a desire to avoid employing individuals who were members of or supported Local 610, and in order to evade its bargaining obligation with Local 610.10 Accord- ingly, we find that the Respondent's layoff and fail- ure to rehire its former employees violated Section 8(a)(3). Having found that the layoff and refusal to rehire violated Section 8(a)(3), we further find that 10 The Respondent contends that there can be no finding that it violat- ed Sec . 8(a)(3) by laying off and refusing to hire Local 610-represented employees when there is no showing that the employees for whom the General Counsel seeks a remedy actually applied for transfer -station jobs and were rejected We find no merit to this contention as we find Metz' request for the work and the approximately 20 grievances filed in con- nection with the transfer-station work sufficient to establish a claim to and application for the transfer -station work by Local 610-represented employees. 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD but for the unlawful refusal to employ Local 610- represented employees, these employees would have constituted the majority of the Respondent's employee complement at the waste-transfer sta- tions. We also find that in light of this majority, the Respondent was obligated to recognize Local 610 as the representative of the waste-transfer station employees . See generally Love's Barbeque, 245 NLRB 78 (1979), enfd. in relevant part sub nom. Kallmann v. NLRB, 640 F.2d 1094 (9th Cir. 1981). In Love's Barbeque , the Board directed a successor employer to bargain with the union as the repre- sentative of its employees when the employer was found to have unlawfully refused to hire the prede- cessor 's employees because of their union affili- ation . The Board reasoned that but for the succes- sor employer 's unlawful conduct , the union's ma- jority status would have survived the change in op- erations resulting from the successor's takeover of the business. Accordingly, the Board concluded that the successor was not entitled to set initial terms of employment without first consulting with the union. Although this case involves the same employer, rather than a successor, we find that the reasoning of Love's Barbeque is applicable here and supports an order requiring the Respondent to bargain with the Union concerning the waste-transfer station employees . In fact , we view this as an even more compelling case for a bargaining order than Love's Barbeque , because here the Respondent has an es- tablished bargaining relationship with the Union, and the transfer station employees constitute a sep- arate appropriate unit that is a substitute for a por- tion of the existing UDD unit represented by the Union, i.e., the former incinerator employees."' That we are finding a new unit here separate from the existing unit does not make a bargaining order inappropriate in these circumstances . Like the suc- cessor employer in Love's Barbeque, the Respond- ent sought through discriminatory hiring decisions to use a change in operations to avoid bargaining i i The General Counsel alleges in the amendment to the complaint that the waste-transfer station employees constitute an appropriate unit. In its answer to the original complaint , the Respondent, as an affirmative defense to the allegation that the transfer station employees were an ac- cretion , asserted that the waste-transfer employees were an appropriate unit . Moreover, in its brief to the judge , the Respondent argued that the waste-transfer station employees were an appropriate unit and , in its brief to the Board , argued that the General Counsel , by virtue of the com- plaint allegation , had conceded that the transfer station employees were an appropriate unit . Finally , the Respondent stipulated to the existence of an appropriate unit of all transfer station employees , excluding office clericals, professionals , and guards in connection with the petition filed by Local 682 in Case 14-RC-10125 , which was subsequently withdrawn. In these circumstances , we find that the General Counsel and the Re- spondent are in agreement that the waste -transfer station employees con- stitute an appropriate unit and we find the unit to be appropriate . We also find it appropriate to direct the Respondent to bargain with the Union as the representative of this separate appropriate unit. with the employees' representative. The Union's presumption of majority status would have contin- ued had the laid-off incinerator and other UDD employees been hired for the new transfer station work. As noted above, a representative of Local 610 attempted unsuccessfully to discuss the transfer station work with the Respondent, and the Re- spondent advised the Union to organize the trans- fer station employees if it wanted to represent them. We find that this refusal to recognize and bargain with the Union as the waste-transfer station employees ' representative violated Section 8(a)(5) and (1) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order the Respondent to cease and desist and to take certain affirmative action designed to effectuate the poli- cies of the Act. We shall order the Respondent to offer to all af- fected employees immediate reinstatement to the jobs for which they would have been reinstated except for the unlawful conduct or, if those jobs no longer exist , to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings and benefits they may have suffered as a result of the discrimination against them . Backpay shall be computed as in F. W. Woolworth Co., 90 NLRB 289 (1950), plus in- terest in the manner prescribed in New Horizons for the Retarded.12 In addition , having found that the Respondent laid off and thereafter refused to reinstate these em- ployees in order to avoid its obligations to recog- nize and bargain with Local 610, we shall also order the Respondent to recognize and bargain with Local 610 as the representative of a unit of waste-transfer station employees.'s CONCLUSIONS OF LAW 1. By laying off and thereafter refusing to recall certain of its employees because they were repre- sented by Local 610 and in order to discourage membership in Local 610 , the Respondent has vio- lated Section 8(a)(3) and (1) of the Act. 2. By refusing to recognize and bargain with Local 610 as the representative of all employees employed by the Respondent at its 71 Angelica South and 4100 South First Street, St. Louis, Mis- is 283 NLRB 1173 (1987). is The judge's recommended Order includes a visitatonal clause. We find such a clause unnecessary in the circumstances here. See Cherokee Marine Terminal, 287 NLRB 1080 (1988). GSX CORP. OF MISSOURI souri (transfer station) facilities , excluding office clerical and professional employees , guards, and su- pervisors as defined in the Act, the Respondent has violated Section 8(a)(5) and (1) of the Act. ORDER The National Labor Relations Board orders that the Respondent, GSX Corporation of Missouri, St. Louis, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain in good faith with Miscellaneous Drivers, Helpers, Health Care & Public Employees Union Local 610, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO as the exclusive collective-bargain- ing representative of its employees in the following appropriate unit: All employees employed at the 71 Angelica Street and 4100 South First Street, St. Louis, Missouri facilities , excluding office clerical and professional employees , guards, and supervi- sors as defined in the Act. (b) Laying off and thereafter refusing to reinstate its employees who were employed in the unit rep- resented by the Union in order to discourage mem- bership in or support for the Union. (c) In any like or related manner interfering with, restraining , or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain collectively with the Union as the exclusive representative of the Re- spondent's employees in the above unit, with re- spect to rates of pay, wages, hours, and other terms and conditions of employment and, if an under- standing is reached, embody it in a written agree- ment. (b) Offer to all employees employed in the unit represented by the Union who were laid off since the closing of the city-owned incinerators immedi- ate and full reinstatement to the jobs for which they would have been reinstated except for the Re- spondent's unlawful conduct or, if those positions no longer exist , to substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges previously enjoyed, discharg- ing if necessary any employees hired in their place. (c) Make these employees whole for any loss of earnings and benefits suffered as a result of the dis- crimination against them , in the manner set forth in the remedy section of the decision. 533 (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its St. Louis, Missouri facilities copies of the attached notice marked "Appendix."' 4 Copies of the notice, on forms provided by the Re- gional Director for Region 14, 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. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER CRACRAFT, concurring further. I adopt my colleagues ' finding that GSX violated Section 8(a)(3) by laying off and refusing to rehire unit employees because they were represented by Local 610. I also agree with their finding that GSX violated Section 8(a)(5) by refusing to recognize and bargain with Local 610 as the representative of the employees at the work transfer stations. I concur only to set out what I believe is an equally viable legal rationale on which to base the 8(a)(5) finding. Respondent GSX recognized Local 610 as the bargaining representative of its employees at the obsolete incinerators as part of the UDD commer- cial-hauling bargaining unit . When the incinerators closed, GSX began operating the waste-transfer stations, used somewhat different operating meth- ods, restructured by setting up a new division for the transfer stations, and employed a majority of nonunit employees at the transfer stations. At issue is whether the changes are sufficient to defeat the presumption of continued majority support that tra- ditionally governs the relationship of a continuing employer with a union . I agree with my colleagues that the changes are not legally significant.' 14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1 My colleagues ' reliance on Love 's Barbeque, 245 NLRB 78 (1979), and their analogy to successorship present a viable legal theory . Had an- other employer taken over Respondent 's incinerator operations, hired a majority of the Respondent's incinerator employees, and converted oper- Continued 534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The judge found that the waste-transfer station employees are an accretion to the existing UDD commercial-hauling unit . I agree with my col- leagues that the evidence fails to establish an accre- tion because the transfer station employees could constitute a separate appropriate unit . Accretion principles do not, however, go to the heart of the case . The transfer stations are not an addition to GSX's operations but are a spinoff from the exist- ing unit or a substitute for the obsolete incinerator operations . As an alternative rationale I would find that the existing unit including the transfer station employees remains an appropriate bargaining unit and that GSX is obligated to recognize and bargain with Local 610 as the representative of the transfer station employees as part of the UDD commercial- hauling unit. Section 8 (a)(5) of the Act requires an employer to bargain with a union as the exclusive representa- tive of all employees in the unit. The obligation does not automatically expire when corporate re- structuring or technological changes affect the jobs of an employee group . The employer 's bargaining obligations depend on whether the changes are so substantial that inclusion of the affected employees renders the overall unit no longer appropriate. The Respondent 's changes are not that significant. Bay Shipbuilding Corp., 263 NLRB 1133 (1982), enfd. 721 F.2d 187 (7th Cir. 1983); Rice Food Markets, 255 NLRB 884 (1981); Columbia Tribune Publishing Co., 201 NLRB 538 (1973), enfd. 495 F.2d 1384 (8th Cir. 1974).2 In Rice Food Markets, above, the employer com- plied with a state law mandating the removal of liquor sales from grocery stores by moving its liquor sales to free-standing, adjacent stores and placing the stores under the umbrella of a separate, subsidiary corporation. The Board found that Rice had a continuing bargaining obligation in regard to its spunoff alcoholic beverage operations. In so finding the Board adopted Administrative Law Judge Welles' distinction (255 NLRB at 887) be- tween accretion and an employer 's continuing obli- gation to represent a group of employees spunoff from the existing unit: In practical effect , there is a heavy burden on a party seeking to prove "accertion" to show that the group sought to be added to an existing unit is an "accretion" within the mean- ing of the Board 's longstanding use of that ations to the waste -transfer stations , successorship would be clear. As my colleagues state , there is an even more compelling reason to impose a bargaining obligation when the same employer is involved. 2 Cf Sterling Processing Corp., 291 NLRB 208 (1988); Morton Develop- ment Corp., 287 NLRB 385 (1987), remanded sub nom. Hospital Employ- ees District 1199P Y. NLRB, 864 F 2d 1096 (3d Cir. 1989) term . . . . When, as here, an employer at- tempts to justify removing a particular group or groups from the coverage of a collective-bar- gaining agreement or relationship , it has the burden of showing that the group is sufficient- ly dissimilar from the remainder of the unit so as to warrant that removal. In Bay Shipbuilding Corp., the Board found that the employer had a continuing obligation to bargain when it changed from manual to computerized loft operations , i.e., design and layout operations. Bay Shipbuilding relied on Rice . Similarly, in Columbia Tribune, above, the Board held that conversion from hot type composition to cold type, i.e., photo- composition , impaired neither the appropriateness of the unit nor the union's representative status. I would apply the principles of the above cases as an alternative basis for concluding that GSX had a continuing obligation to bargain with Local 610 as the representative of the waste-transfer station em- ployees. The waste-transfer group is not sufficient- ly dissimilar from the incinerator group to warrant removing them from the collective -bargaining unit. Although the majority of employees hired by GSX at the waste -transfer stations were new em- ployees, we have found that GSX violated Section 8(a)(3) by refusing to employ laid-off unit employ- ees at the transfer stations . Thus, but for the 8(a)(3) violations , a majority of the transfer stations' em- ployees would have been unit members. The waste- transfer employees are performing the same func- tion that the incinerator group previously per- formed. They continue to load centrally collected trash and haul it to landfills. As detailed in my col- leagues' decision , the skills and qualifications of employees in the waste-transfer group are similar to those in the obsolete incinerator unit. The differ- ence in skills and qualifications are not as marked as those between the manual and computerized loft operations in Bay Shipbuilding, above , or as great as those between hot type and cold type composi- tion in Columbia Tribune, above. Finally, neither the relocation to nearby sites nor the creation of a separate division for the waste-transfer stations is legally significant . The latter change is less than the placement of the spunoff group under a differ- ent corporation in Rice Food, above. Accordingly, for the above alternative reasons, as well as the reasons stated by my colleagues, I find that GSX violated Section 8(a)(5) by refusing to recognize and bargain with Local 610 as the representative of its employees at the waste-transfer stations. GSX CORP. OF MISSOURI 535 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join , or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT lay off and refuse to reinstate or otherwise discriminate against you in order to dis- courage support for or membership in Miscellane- ous Drivers, Helpers, Health Care & Public Em- ployees Union Local 610, affiliated with Interna- tional Brotherhood of Teamsters , Chauffeurs, War- ehousemen and Helpers of America , AFL-CIO. WE WILL NOT refuse to recognize or bargain, on request, with Local 610, the bargaining representa- tive of employees in the following appropriate unit: All employees employed at the 71 Angelica Street and 4100 South First Street , St. Louis, Missouri facilities , excluding office clerical and professional employees , guards, and supervi- sors as defined in the Act. WE WILL NOT in any like or related manner interfere with , restrain , or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with Local 610 and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the above bargaining unit. WE WILL offer employees employed in the unit represented by Local 610 who were laid off since the closing of the city-owned incinerators immedi- ate and full reinstatement to the jobs for which they would have been reinstated except for our un- lawful conduct or , if those jobs no longer exist, to substantially equivalent positions , without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits , less any net interim earnings , plus interest. GSX CORPORATION OF MISSOURI Stephen D. Smith, Esq., for the General Counsel. Timothy K. Kellett, Esq. (Armstrong, Teasdale, Kramer, Vaughan & Schlafly), of St . Louis, Missouri, for the Respondent. DECISION STATEMENT OF THE CASE WILLIAM A . GERSHUNY , Administrative Law Judge. A hearing was held in St. Louis, Missouri , on 18-20 No- vember 1986, on complaint issued 17 September 1986, as amended 14 November 1986, alleging a failure and refus- al to bargain with Teamsters Local 610, Charging Party; a failure and refusal to apply its contract with Local 610 to its accreted waste disposal operations; and its discrimi- natory refusal to hire Local 610 members at these new facilities, in violation of Section 8(a)(1), (3), and (5) of the Act. On the entire record , including my observation of wit- ness demeanor , I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION AND LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that Respondent, engaged in the waste disposal business, is an employer subject to the Act, and Teamsters Locals 610 and 682 are labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The original complaint alleges two distinct theories: one, that Respondent, in the summer of 1986, discrimina- torily laid off a number of its unit employees because of their membership in Local 610; the other , that Respond- ent refused to apply its labor agreement with Local 610 to its newly established waste transfer stations, which constituted an accretion to the unit represented by Local 610. By amendment of 14 November 1986, another relat- ed allegation was added ; that Respondent refused to bar- gain with Local 610 at its newly established facilities. Briefs and reply briefs were filed by the parties. In ad- dition, the parties stipulated that General Counsel's Ex- hibits 25 and 26, a summary of personnel action and se- niority lists, be received in evidence . These exhibits, ac- cordingly , are received in evidence. Because I find and conclude that Respondent's new fa- cilities constitute an accretion to those operations cov- ered by its existing labor agreements with Local 610, that this contract must be applied to the new facilities, and that this contract contains detailed procedures for the grievance and arbitration of all employee complaints concerning work assignments , job transfers , layoffs, and rates of pay , there is no need to resolve, in this proceed- ing, the alternative issues of discriminatory layoff and re- fusal to bargain . The grievance -arbitration procedures of 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the contract or the compliance stage of this proceeding, I believe, can best deal with the complicated issues, not litigated here, of which employees were entitled to trans- fer to the new facilities , to bump , and to be recalled. A. Background Respondent , which provides waste disposal services generally throughout Missouri and Illinois , operates through a number of bargaining units in the St. Louis area : one unit, represented by Teamsters Local 682, per- forms waste-hauling services from construction sites; three other units, two of which are represented by Teamsters Local 610, perform residential trash hauling; and its United Disposal unit , also represented by Team- sters Local 610, covers incinerator operations as well as commercial waste-hauling services . These units are all in- cluded in Respondent 's United Disposal Division. Only the last unit, i.e., the incinerator unit represented by Local 610, is involved here, except that Teamsters Local 682 filed a petition to represent the employees at two new waste -transfer stations . It is these two new facilities that General Counsel claims constitute an accretion to the incinerator unit. Prior to June 1986, Respondent 's operation at the city's two incinerators consisted of loading trucks with ashes and hauling the ash to out-of-state landfills. Each location operated on three shifts , with one unit laborer and one unit driver per shift, for a total of 12 unit em- ployees . These two incinerators were closed in June 1986 for environmental reasons and , in their place, the city contracted with Respondent to establish two waste-trans- fer station facilities at or near the incinerator sites. Raw trash no longer was incinerated ; rather it was dumped in warehouse -like buildings and loaded into Respondent's tractor-trailers for hauling to the same landfills. Since the closing of the incinerators , a number of em- ployees were laid off; some, along with new employees (many referred to Respondent by Local 682), were hired for the new waste-transfer station operations . Respond- ent refuses to recognize Local 610 as the bargaining rep- resentative of its transfer station employees and refuses to apply its existing contract with Local 610. Grievances have been filed under that contract by Local 610 on behalf of the incinerator employees seeking enforcement of contract provisions concerning assignment of work and layoffs . Deferral to arbitration to resolve these con- tract issues, which appear identical to the issues in this case, is not sought by any party. B. Unit Accretion In determining whether a group of employees is an ac- cretion to a preexisting unit, the Board has set forth a number of factors to be considered: whether the two groups share common management and supervision, par- ticularly as regards labor relations ; the bargaining history between the parties ; interchange between the groups; the integration of the work of the new group with that of the existing bargaining unit ; geographical proximity; sim- ilarity in wages, hours , and working conditions; and the similarity of skills and the type of work performed by the new group to those of the existing group, with this latter factor receiving the most emphasis . J. C. Penney Co., 252 NLRB 424, 427 (1980). The record facts relevant to each of these criteria are simple and largely undisputed. For both the United Disposal unit and the new waste- transfer stations , the following administrative practices were the same : payroll data is forwarded to corporate headquarters ; the payroll is prepared by the same payroll service ; maintenance of personnel files is governed by corporate policy; compensation claims likewise are gov- erned by corporate-level policy; employment application forms are identical ; United Disposal handbooks initially were distributed to employees at the waste stations; and new handbooks , when prepared , contained identical pro- visions concerning work rules, personnel regulations, and disciplinary procedures. There is strong evidence of corporate-level control of labor relations at both facilities . Supervisory personnel from the United Disposal unit , who were to exercise no control at the new waste-transfer stations , encouraged Local 682 to organize at the new facilities and solicited referrals from that local. One United Disposal supervisor solicited certain employees to make application for em- ployment . All this indicates a concerted labor relations policy managed from the corporate level and a desire, at a level higher than the operating divisions , to begin oper- ations at the new facilities with a hand-picked comple- ment of employees . In addition , on one occasion, when United Disposal drivers refused to cross a picket line at a customer 's facility, drivers were provided from the waste-transfer facilities , despite the fact that the customer was exclusively United Disposal 's. Two of the drivers had formerly been employed in the United Disposal unit. The offices of both operations are located in the same building, United Disposal drivers were assigned to haul waste from the transfer stations on an emergency basis, and United Disposal , on one occasion , provided a dispos- al container when the transfer facility needed one under its contract with the city. Moreover , there is a straight line operation involving both United Disposal employees and transfer station employees : the former haul waste to the transfer station, their trucks are spotted into unload- ing spots by transfer station employees , and the waste is then hauled to landfills by transfer station drivers. There is no significant difference in the work per- formed by employees of the two operations. Most are drivers, operating rigs which vary only in dimension and configuration . Each of the vehicle types has unloading systems which vary only in the nature of the manual controls necessary to activate them . Drivers hired from the United Disposal operation needed no special training to perform this work. Both operations require the tarping of trucks and employee skills in this respect are identical. At the transfer stations , employees push the bulk waste with rubber-tired bucket loaders, a piece of equipment similar in operation to the forklift used at the incinerator, except that the former is state-of-the-art, with complex electronic controls . There is no evidence that an experi- enced forklift operator cannot easily be trained in the use of these controls . Drivers at each operation dispose of waste at the identical landfills , are subject to identical GSX CORP. OF MISSOURI 537 work rules, and receive comparable pay. The requisite "close community of interest " is clearly present on this record . Indeed , General Counsel 's characterization of the transfer station as "a substitute for work previously per- formed in the United Disposal Division bargaining unit" is an apt one. The transfer stations represent nothing more than an improved method of performing the identi- cal work performed by employees in the United Disposal unit, akin to a change from typewriters to word proces- sors, from hand assembly to robotic assembly. At the transfer stations , the waste that is dumped , loaded, hauled , and dumped again is raw waste ; at the inciner- ators, it was the burned residue of raw waste that was loaded , hauled , and dumped. There was interchange of employees , as previously de- scribed : certain employees were "invited " to apply for positions at the transfer stations ; temporary work was performed by United Disposal employees at the transfer stations ; and transfer station drivers substituted for United Disposal drivers who refused to cross a picket line at a customer 's facility. The operations are at nearly identical locations, with the transfer stations sited at or near the abandoned incin- erators . The source of the incoming waste is identical, and the landfills at which the waste is dumped are the same. Finally, the bargaining history, as reflected on this record , supports a finding of accretion . Respondent has a number of bargaining units represented by Local 610. When Local 682 was approached by Respondent and en- couraged to organize its employees at the new transfer stations , Local 682 had serious doubt whether it should infringe on Local 610's "jurisdiction ." Local 610 mem- bers performed maintenance work on transfer station ve- hicles, and there is some evidence that, in the past, Local 610 acquired jurisdiction over new operations. On this overwhelming record evidence, I find and conclude that the two waste transfer -stations constitute an accretion to the United Disposal unit. REMEDY Having found that Respondent violated Section 8(a)(1) and (5) of the Act, I will order Respondent to recognize Local 610 as the bargaining representative of its employ- ees at the two waste -transfer stations ; to apply to such employees all the terms and conditions of its existing col- lective-bargaining agreement with Local 610 covering the United Disposal unit, including , but not limited to, those provisions concerning work assignments , seniority, hours of work, and classification and wage rates; to en- tertain and process all grievances filed by or on behalf of employees affected by Respondent's refusal to afford rec- ognition to Local 610 and to apply the existing labor contract ; and to make employees whole for any losses they may have sustained , with interest , by reason of Re- spondent 's failure to so act . In addition , the recommend- ed Order will include a visitatorial clause, essential in this case because of the complex issues of employee claims to be resolved at the compliance stage of this pro- ceeding. [Recommended Order omitted from publication.]