J. P. Mascaro & Sons

National Labor Relations Board - Board Decisions

Nov 23, 1993

313 N.L.R.B. 385 (N.L.R.B. 1993)

385
313 NLRB No. 46
J. P. MASCARO & SONS
Solid Waste Services, Inc., d/b/a J. P. Mascaro &
Sons, Inc. and International Union of Operat-
ing Engineers, Local Union No. 832. Case 3–
CA–17063
November 24, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 11, 1993, Administrative Law Judge Harold
Bernard Jr. issued the attached decision. The Respond-
ent filed exceptions and a supporting brief and the
General Counsel and the Charging Party filed answer-
ing briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Solid Waste Services, Inc.,
d/b/a J. P. Mascaro & Sons, Inc., Rochester, New
York, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
Doren G. Goldstone, Esq., for the General Counsel.
James R. LaVaute, Esq., of Syracuse, New York, for the
Charging Party.
Mark S. Shiffman, Esq., of Pittsburgh, Pennsylvania.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD JR., Administrative Law Judge. I heard
this case in Rochester, New York, on January 11 and 12,
1993, following a charge filed April 30 and a complaint
issued July 31, 1992, alleging that Respondent, as a succes-
sor employer to Laidlaw Waste Systems, violated Section
8(a)(5) of the Act by refusing to recognize and bargain with
the Union, the established bargaining representative for em-
ployees in the former Laidlaw unit.
By answer to complaint Respondent alleged that at no ma-
terial time did it employ a majority of employees who pre-
viously worked for Laidlaw, in an appropriate unit, but rather
that its work force consists of its own directly employed em-
ployees as well as employees jointly employed by Respond-
ent and others. Respondent at trial and on brief elaborated
to contend that on commencing Laidlaw’s former operations
in January 1992 it became a joint employer for the work in-
volved with Silvarole Trucking Company over former
Laidlaw unit employees hired directly by Respondent, but
also over a larger number of Silvarole employees such that
the Union, when it made its demand for recognition did not
represent a majority of Respondent/Silvarole employees in
the substantially enlarged combined appropriate unit, thereby
foreclosing Respondent’s bargaining obligation under the
Act.
Based on the entire record laudably shortened by the par-
ties’ welcome stipulations, including helpful briefs filed by
counsel, and the witnesses’ demeanor on the stand, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Pennsylvania corporation engaged in
transporting municipal and commercial waste products from
a facility located in Rochester, New York, to points outside
New York for which services it annually receives in excess
of $50,000. Annually, Respondent purchases products valued
in excess of $50,000 directly from points outside the State
of New York. I find, as admitted, that Respondent is an em-
ployer engaged in commerce as defined in the Act. The
Union is admittedly a labor organization as defined in the
Act.
II. UNFAIR LABOR PRACTICE
A. Background
Monroe County in New York State maintains a solid
waste transfer facility used to receive trash delivered there by
private and municipal trash collectors, including the city of
Rochester where the facility is located at 1845 Emerson
Street. The facility is used to both recycle some trash and
for temporary storage prior to shipment by the use of a truck
hauling contractor to a landfill where it is dumped.
The Union began representing employees involved in haul-
ing trash from this location 15 years ago, and continued rep-
resenting units of such employees after the county facility as
it is now constituted came into existence around 1982. Thus,
the Union represented a unit of employees there employed by
Browning-Ferris Industries and thereafter became party to a
collective-bargaining agreement covering unit employees
with Laidlaw Waste Systems, effective May 1, 1987, through
December 31, 1991.
B. The Laidlaw Unit
The Laidlaw unit represented by the Union consisted of
drivers who transported the trash by tractor trailers from the
facility to a landfill, spotters who jockeyed trailers between
the outdoor staging area and the loading area inside the facil-
ity, mechanics and helpers, front end loader operators who
loaded trash into the trailers, truck washers, and floor attend-
ance utility laborers, some 40 employees. (G.C. Exh. 13.)
These employees comprised the Laidlaw unit as of December
31, 1991, and it is undisputed that both with respect to
Browning-Ferris and, later, Laidlaw the employees in the
unit at the facility were all employees of these employers
alone during their respective consecutive separate tenures, al-
though it was commonplace for Browning-Ferris and after-
ward Laidlaw to hire subcontractors during excess demand
periods in operations; in fact, Laidlaw subcontracted some
such driver work to Silvarole Trucking Company. (G.C. Exh.
4a.) Such subcontractor’s employees were not included in the
unit.
As the expiration in Laidlaw’s contract with Monroe
County drew closer, the county opened bidding for a new
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent’s scale house operators were not part of the Laidlaw
unit and are likewise excluded from the unit here by stipulation.
contract to cover services to be provided at its facility for the
future period January 1, 1992, to December 31, 1993, plus
a 1-year option, and issued specifications pertaining thereto
governing the work. It is instructive to note, as more fully
addressed below, that the specifications carefully set forth
rules concerning the successful bidding contractor’s use of
subcontractors. (G.C. Exh. 4a.) Respondent prevailed over
other businesses in the bidding and signed an agreement with
Monroe County on September 25, 1991.
C. The Parties’ Stipulations
1. First
The parties agree that when Respondent’s hiring of em-
ployees to perform work under the new contract was com-
plete as of January 30, 1992, Respondent directly employed
19 employees in the unit as described in paragraph 8B of the
amended complaint, 13 of whom had worked for Laidlaw,
the predecessor employer at that location (the facility here).
I note parenthetically that there is no allegation before me
that the Respondent failed to directly hire more of Laidlaw’s
employees for discriminatory reasons and, without intending
to make an express finding thereto, I note further that the
General Counsel on brief at least seemed to concede business
reasons behind the reduced number of employees directly
hired by Respondent compared to the larger number of em-
ployees in the Laidlaw unit.
2. Second
Their second stipulation is that the circumstances attendant
to Respondent’s assumption of Laidlaw’s work establishes a
substantial continuity in the employing industry, including,
but not limited to, continuity in the business operation (the
record shows there was no hiatus in operations), facility, jobs
and working conditions, machines, equipment, methods of
production, and services. (The record also shows that
Laidlaw had a similar contract with the county for transfer-
ring and hauling waste as was awarded Respondent.)
3. Third
The parties agree that the (19) employees directly em-
ployed by Respondent as set forth in paragraph 8B of the
amended complaint share common wages, hours, benefits,
supervision, and other terms and conditions of employment,
and that but for (the exclusion of) employees of Silvarole
Trucking whom Respondent contends are jointly employed
(by Respondent and Silvarole and should be included in the
unit), Respondent stipulates that this would be an appropriate
unit. (The above-italized matter was added by me.)
The reference to Respondent’s qualified agreement in stip-
ulation 3 is to the fact that Respondent had by agreement
dated September 1, 1991, arranged with Silvarole to provide
hauling services as an independent contractor and ‘‘to haul
such loads as are made available by Respondent.’’ (Empha-
sis added.) (G.C. Exh. 8.) Respondent also signed an agree-
ment with Kephart Trucking Co. as an independent contrac-
tor for the same purposes, but later used its services and
those of a third subcontractor, D & M, only briefly and does
not assert a joint employer status as to either of those compa-
nies in this case. It is to the Silvarole employees who per-
form driving and mechanical work for Respondent that Re-
spondent’s qualification is directed, for it contends they
should be included in the appropriate unit, thereby dissipat-
ing the Union’s majority when the Union requested recogni-
tion and precluding Respondent’s duty to bargain. Thus, Re-
spondent argued on brief that Silvarole supplied to Respond-
ent at least 6 drivers and 6 mechanics jointly employed by
the 2 firms, so that when combined with Respondent’s di-
rectly employed 19 employees for a complement of 31, the
13 employees formerly employed by Laidlaw and rep-
resented by the Union failed to constitute a majority of the
newly emerged unit of Respondent/Silvarole employees. (R.
Br. 11.) It is agreed that the Respondent denied the Union’s
letter request for recognition dated January 30, 1992. (G.C.
Exh. 11.)
After Respondent took over, it directly hired 19 employees
in the classifications of drivers, spotters, maintenance, load-
ers, laborers, and floor attendants (G.C. Exh. 14), and the
process at the transfer facility itself remained virtually the
same as when Laidlaw had the contract (except for the
Laidlaw supervisors no longer being present), including the
dumping of trash there by various collectors not involved in
this case after being first weighed at a scale house,1 the re-
moval into trailers by a loader, and the tarping and weighing
of the trailer which was then moved to a staging area to
await hookup with a tractor and delivery to a disposal site
52 miles away. Respondent runs the operation at the transfer
facility, employs the scale house operator, and assigns work
to drivers assuring its drivers of at least two loads daily. Ba-
sically the balance of tonnage left is assigned to the sub-
contractor employees. There is no representative of Silvarole
at the facility; its operations manager assigns work to
Silvarole drivers after telephone calls from Respondent offi-
cials at the facility regarding Respondent’s needs.
D. Respondent’s Agreement with Silvarole
Respondent secured Silvarole if necessary to provide trash
hauling services as Respondent saw fit to provide excess
loads Respondent couldn’t handle with its own employees,
those that is, which it had directly hired from the former
Laidlaw unit, in the contract with Silvarole described above.
In the contract Silvarole is expressly identified as serving as
an independent contractor to Respondent in several ref-
erences. (G.C. Exh. 8, par. 11, p. 5; and pars. 1, 2, and 6.)
Likewise relevant in defining their business relationship is
the agreement provisions requiring Silvarole to hold Re-
spondent harmless from liability for action by the sub-
contractor’s employees at page 4, paragraph 10, and dis-
claiming representations or any guarantees of hauling work
for Silvarole. Supra. (Par. 2.) As also noted above, Respond-
ent used all three subcontractors in early 1992 to haul trash
(Silvarole, Kephart, and D & M), the use of such independ-
ent contractors being customary in the past at the facility to
handle excess trash hauling needs.
In a separate memorandum agreement, Silvarole agreed to
furnish Respondent maintenance services on Respondent’s
tractors, trailers, and miscellaneous vehicles and equipment
used by Respondent at the transfer facility in lieu of rent in
a building at 1187 Brighton Henrietta Town Line Road (1187
building) Respondent had leased from the owner there.
387J. P. MASCARO & SONS
Under the agreement, Silvarole uses the building for mainte-
nance work, pays for its own supplies for repair of its equip-
ment, and parks its own equipment there at the lot. Respond-
ent provides its own parts and materials, pays Silvarole for
heavy repairs at an hourly rate, and handles its own warranty
covered repairs, with Silvarole providing labor for routine
maintenance and general repairs including tire repair. (G.C.
Exh. 9.) Although road calls by Silvarole mechanics to the
facility to repair vehicles there are covered by the agreement,
other road calls within a 35-mile radius of the transfer facil-
ity are billed by Silvarole to Respondent based on 1-1/2
times the Silvarole mechanics’ hourly rate plus 25 cents a
mile and, if needed, a $50 towing charge.
It is clear from the agreements and the record that neither
confers authority on Respondent over the labor relations of
Silvarole employees and that the rent for the maintenance
services’ arrangement was made at arm’s length. There was
no documentary proof introduced at trial to the contrary. Re-
spondent’s general manager, Patrick Hourihan, once spoke to
a subcontractor’s driver about something he ‘‘didn’t like’’
but admitted there was nothing in writing giving Respondent
the right or authority to in any way supervise Silvarole driv-
ers at the facility or elsewhere.
It is also true that the two firms maintain separate person-
nel records for their employees at separate locations though
both use space at the 1187 building area where Respondent’s
drivers punch in and report to park equipment. Hourihan tes-
tified he was unaware as to whether the Silvarole employees
were required to punch in or out, whether Silvarole drivers
were assigned more than one run a day, and whether
Silvarole—which operates other business elsewhere—ear-
marked certain equipment for the Respondent-requested runs.
He further admitted that Respondent had no role in request-
ing drivers from Silvarole by name or in keeping track of
such drivers’ names, and that the Respondent and Silvarole
drivers only operate the equipment separately owned by their
respective employers. In addition, it is undenied that Re-
spondent’s employees are subject to different safety, bonus,
general work, accident, and reporting procedures than
Silvarole applies to its own employees, and that memoran-
dums on these subjects from Respondent went only to Re-
spondent’s employees. Memorandums on the need for accu-
rate recording of information needed by the scale house—
where all drivers report—intended for all independent con-
tractor drivers were twice prepared and left in a stack at the
scale house. There was no other correspondence relating to
labor relations between Respondent and Silvarole according
to Hourihan. It is reasonably inferable from Hourihan’s testi-
mony that he and therefore Respondent had nothing to do
with the personnel decisions and personnel policies of
Silvarole governing the Silvarole employees. Hourihan stated
that as long as Silvarole attended Respondent’s needs it was
the end of his concern.
In addition to the foregoing, the record shows even further
diversity between the employees’ employment interests at
each company.
Thus, Respondent pays its drivers an hourly rate of pay for
a 40-hour week which they can reasonably count on work-
ing, but Silvarole drivers are paid only on a per load basis
and Respondent first sees to it that its own drivers are as-
signed loads before deciding on whether to call on Silvarole
to help out. Each driver group is covered by different insur-
ance, Silvarole employees receive no retirement or sick pay
unlike Respondent’s employees who receive other benefits
not granted Silvarole employees. Only 25 percent of
Silvarole’s work is devoted to Respondent’s needs, and driv-
ers for Silvarole, unlike Respondent, divide their duties be-
tween Respondent’s operations at the trash facility and duties
elsewhere; also there is no clearly identifiable or preassigned
core group of Silvarole drivers used by Respondent so that
their daily contact with Respondent’s employees is limited
and sporadic both for that reason and because there is no
drivers’ room at the facility or opportunity for such at the
transfer station, where the loaded trailers are ready for deliv-
ery as drivers arrive.
The record also shows regarding the maintenance agree-
ment that although Respondent’s maintenance manager
George Lazar prioritizes work needed by Respondent, that is,
governed by Respondent’s needs, and sets a schedule for the
mechanical work to be performed, he gives the schedule to
the Silvarole-employed lead mechanic at the 1187 building
who assigns the work to a Silvarole mechanic that he choos-
es. Lazar is not a mechanic and performs solely administra-
tive work at the 1187 building; Hourihan could not recall
ever seeing Lazar make such assignments personally. There
are separate timecard racks for the mechanics and drivers and
Silvarole makes up the payroll for its own employees. It is
true that Respondent’s operations manager at the transfer fa-
cility may, on occasion, call for a mechanic to do repair
work there as provided for in the maintenance agreement, but
no Respondent direction or supervision over the mechanic
while there is shown in the record. Moreover, the reference
to Hourihan’s fleeting and slight contact with Silvarole
Owner Neil Silvarole concerning hiring of a mechanic on
two occasions was in one instance based on Hourihan’s al-
leged indirect possible knowledge concerning the mechanic’s
qualifications and was not shown to have been effected with-
out Silvarole’s independent review, and the other involved an
instance when Silvarole sought Hourihan’s help in finding a
mechanic when Silvarole needed one. In neither case was
there demonstrated anything but a wholly voluntary effort by
Silvarole to seek help to locate a mechanic. These occur-
rences, like other examples of the two companies working
together, manifest, in my view, nothing more than natural co-
operation between a contractor and its subcontractor.
E. Analysis
1. Successorship
The central issue in this case is whether Respondent be-
came a successor to Laidlaw under Board law and thus as-
sumed the duty to recognize and bargain with the Union,
which enjoyed a presumption of majority support from its
former contract with Laidlaw covering employees hired by
Respondent. Fall River Dyeing Corp. v. NLRB, 482 U.S. 27,
41–43 (1987).
In a highly definitive decision on the law in such cases the
Board stated that (Hydrolines, Inc., 305 NLRB 416, 421
(1991)):
An employer, generally, succeeds to the collective-
bargaining obligation of a predecessor if a majority of
its employees, consisting of a ‘‘substantial and rep-
resentative complement,’’ in an appropriate bargaining
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unit are former employees of the predecessor and if the
similarities between the two operations manifest a
‘‘‘substantial continuity’ between the enterprises.’’ Fall
River Dyeing Corp. v. NLRB, 482 U.S. 27, 41–43
(1987), citing, inter alia, NLRB v. Burns Security Serv-
ices, 406 U.S. 272, 280 fn. 4 (1972).
The Supreme Court in Fall River, supra at 43, summarized
the factors relevant to determining continuity as follows:
[W]hether the business of both employers is essen-
tially the same; whether the employees of the new
company are doing the same jobs in the same work-
ing conditions under the same supervisors; and
whether the new entity has the same production
process, produces the same products, and has basi-
cally the same body of customers.
These factors are assessed primarily from the per-
spective of the employees, that is, ‘‘whether ‘those em-
ployees who have been retained will . . . view their job
situations as essentially unaltered.’’’ Id., quoting Gold-
en State Bottling Co. v. NLRB, 414 U.S. 168, 184
(1973). Further, although each factor must be analyzed
separately, they must not be viewed in isolation and ul-
timately, it is the totality of the circumstances which is
determinative. See Fall River, supra.
Based on this guiding precedent, consideration is made
here as to whether the elements required to find succes-
sorship are present in this case.
2. The Union’s demand and majority status
A threshold question is whether the Union made a proper
demand for recognition on January 30, 1992, at a time when
Respondent employed a ‘‘substantial and representative com-
plement’’ of employees in the alleged appropriate unit and
the parties agree that it did in their stipulation number 1. See
Hydrolines, Inc., supra at 421 fn. 31, and Fall River, supra.
Respondent objected at trial to the General Counsel’s motion
amending the description of the appropriate unit in the com-
plaint to exclude mechanics and mechanic helpers pointing
for support to the fact that the Union’s demand letter in-
cluded the two categories in the Union’s list of job categories
for whose incumbent employees it demanded recognition
from Respondent as their bargaining representative. I ac-
corded Respondent time to do so, but it made no allegation
of prejudice should the amendment be allowed, nor thereafter
did it seek any time to prepare its case due to the amendment
motion, which I granted. For the reasons noted in
Hydrolines, I find that the Union’s demand for recognition
was sufficiently clear to put the Respondent on notice that
it was seeking recognition for Respondent’s employees em-
ployed in the jobs as described in the Union’s letter and that
the Union made a proper demand. (Hydrolines, supra at 421.)
The parties further agreed there as to the next element for
consideration, the Union’s majority status, that the substantial
and representative complement consisted of 19 employees in
the unit described in the amended complaint, 13 of whom
had worked for the predecessor Laidlaw at the facility here.
As noted above, the Union represented such employees under
its bargaining contract with Laidlaw effective May 1, 1987,
through December 31, 1991, thereby satisfying the require-
ment assuming that alleged jointly employed Silvarole em-
ployees are not required to be included in the unit found ap-
propriate.
3. The appropriate bargaining unit
The unit described in the amended complaint is as follows:
All drivers/spotters, loaders, floor attendants/utility, and
laborers/utility employed by Respondent to perform
work under contract with the Monroe County Solid
Waste Transfer facility, excluding all office clerical em-
ployees, guards and supervisors as defined in the Act.
[G.C. Exh. 2.]
The parties agreed that the 19 employees Respondent directly
employed in these categories shared common wages, hours,
benefits, supervision, and other terms and conditions of em-
ployment. Respondent entered into the stipulation that such
would be an appropriate unit but for the alleged jointly em-
ployed Silvarole employees. It argued on brief that such
above-described unit should not be found appropriate on the
further ground that it excludes mechanics and mechanic help-
ers, a portion of the employees who were admittedly in-
cluded in the prior Laidlaw unit. (R. Br. 14.) This raises the
question whether a reduction in the unit size or scope is con-
trolling. This latter point is also encapsulated in the broader
question whether Respondent and Silvarole were joint em-
ployers, for Respondent on this record did not directly em-
ploy any mechanics or helpers; relying on Silvarole for such
work by the latter’s employees, and the further inquiry
whether such alleged joint employer status, even if true,
would impinge on finding that the claimed unit is appropriate
or not to which issues consideration now turns.
4. The alleged joint employers
Respondent contends that it was a joint employer with
Silvarole when it took over operations, so that the Union had
no majority in the appropriate unit at the facility when en-
larged by the Silvarole employees as described above in the
detailed findings. Respondent contends in effect two reasons
against the complaint allegations; one that the only appro-
priate unit on its commencement of operations at the facility
included Silvarole employees and therefore the Union’s re-
quest was defective and, second, that there was no majority
support for the Union in such unit.
Generally, to support a finding of joint employer status, it
must be determined that the business entities involved share
or codetermine those matters governing the essential terms
and conditions of employment, such as hiring, firing, dis-
cipline, supervision, and direction. Southern California Gas
Co., 302 NLRB 456 (1991); and Lee Hospital, 300 NLRB
947 (1990). In Southern California Gas the Board adopted
the administrative law judge’s decision where he stated,
In determining whether a joint employer relationship
exists, the issue to be resolved is whether the employer
exercises, or has the right to exercise, sufficient control
over the labor relations policies of the contractor or
over the wages, hours and working conditions of the
contractor’s employees from which it may be reason-
ably inferred that the employer is in fact an employer
of the contractor’s employees. Cabot Corporation, 223
389J. P. MASCARO & SONS
NLRB 1388 (1976); Syufy Enterprises, 220 NLRB 738
(1975). Primarily, the question of joint employer status
must be decided upon the totality of the facts of the
particular case. Supra at 461.
The Board-approved test has also been refined to require for
such finding that ‘‘there must be a showing that the [alleged
joint] employer meaningfully affects matters relating to the
employment relationships.’’ (Emphasis added.) International
Shipping Assn., 297 NLRB 1059 (1990). There, the Board
agreed with the finding of no joint employer status where the
contract, as here, stated the supplier of services (order fillers)
was an independent contractor and, also like here, its work
depended on the needs of the employer’s plant. Even more
significantly, the fact that the supplier supervisor made as-
signments to supplier employees based on orders received
from the employer was found to be no evidence of joint em-
ployer relationship, as the employer, it was found, did not
thereby make the assignments of work to the supplier’s em-
ployees. The facts in this respect are on all fours with the
facts on which Respondent bases its assertion here of com-
mon direction and supervision by Respondent over Silvarole
employees at the facility and over the mechanics, for here it
is Respondent whose officials notify Silvarole’s operations
manager as to the number of loads needed to be transported
by Silvarole drivers and he then assigns the Silvarole drivers.
Not uncommonly, these drivers then drive the assigned loads
for Respondent in coordination with the trips involving sole-
ly Silvarole work. Furthermore, although Respondent
prioritizes its maintenance needs, it is the Silvarole lead me-
chanic who assigns the work to Silvarole mechanics in a
similar fashion to the Silvarole driver assignments and both
types of occurrences fail to evidence a joint employer rela-
tionship under the above guiding precedent. The record
makes plain that the Silvarole drivers—like any others,
whether Respondent’s or other subcontractors—are present
only briefly at the facility when engaged in picking up their
assigned trailer loads of trash so the fact that Respondent of-
ficials generally supervise operators at the facility—as re-
quired by their contract with the county—is immaterial and
fails to rise to the level of meaningfully affecting matters re-
lating to the employment relationship. The Silvarole drivers
simply pick up the trailer with a Silvarole tractor, visit the
scale house to record weight, and leave with a bill of loading
identifying Silvarole as the carrier. Respondent of necessity
may exercise some implicit or indirect control over the oper-
ations of Silvarole at the facility to ensure against disruption
of its own operations or to assure it secures the services
promised, but this is no basis to find the customer-employer
is a joint employer of its contractor’s employees; rather
whatever management coordination transpired arose in the
best interests of both companies. Southern California Gas,
supra at 461, 462; and Furniture Distribution Center, 234
NLRB 751, 752 (1978). The record plainly shows that Re-
spondent exercised no meaningful control over Silvarole em-
ployees’ labor relations matters, as candidly admitted by its
general manager and as fulsomely detailed above in my find-
ings, wherein the autonomy of each firm over its own em-
ployees’ labor relations only is clearly demonstrated. It is
therefore found that the two firms were not joint employers.
I note in passing that even if the contrary were true, such
would not mandate that only a unit comprising both groups
of employees would be appropriate, as a joint employer sta-
tus does not always, per se, establish such to be true. Value
Village, 161 NLRB 603 (1966).
Turning to the exclusion of mechanics and their helpers
from the unit described above as the appropriate unit the
record shows that they are assigned work by the Silvarole
lead mechanic, hired by Silvarole, paid by that firm alone,
have separate timecard racks and records maintained only by
Silvarole, normally work at the 1187 building remote from
Respondent’s employees except for road calls or repairs at
the facility, and work on Silvarole’s, Respondent’s, or other
customers’ vehicles. They are paid different benefits from
Respondent’s employees and Respondent, although it
prioritizes its own needs, is not shown by probative evidence
to assign them work. I find first that the mere fact they were
included in the Laidlaw unit and not in the unit sought by
the Union and claimed to be appropriate in the amended
complaint is no grounds to support the Respondent’s conten-
tion against a successorship finding, for such finding is not
precluded merely because the entire bargaining unit or oper-
ations of the predecessor are not transferred to the new em-
ployer. As the Board stated, ‘‘An employer, however, may
take over only a part of the operations of the predecessor and
still be deemed a successor employer. Also, successorship is
not precluded because the entire bargaining unit is not trans-
ferred to the new employer.’’ Hydrolines, supra; Irwin Indus-
tries, 304 NLRB 78 fn. 4 (1991); Mondovi Foods Corp., 235
NLRB 1080 (1978); and Helnick Corp., 301 NLRB 128
(1991). This is also true given the mechanics’ and helpers’
geographic separation from the Respondent’s facility based
unit employees. Stewart Granite Enterprises, 255 NLRB 569,
573 (1981). I further find that as solely employees of the
separate employer Silvarole, the mechanics and mechanic
helpers are properly excluded from a unit limited to Re-
spondent’s own employees. Given the parties’ agreement
number 3 and the record facts establishing that the employ-
ees therein share a close community of employment interests,
I further find the following unit, as set forth in the amended
complaint to be appropriate:
All drivers/spotters, loaders, floor attendants/utility, and
laborers/utility employed by Respondent to perform
work under contract with the Monroe County Solid
Waste Transfer facility, excluding all office clerical em-
ployees, guards and supervisors as defined in the Act.
5. The continuity between operations
Addressed now as the remaining element to establish
successorship is the question whether the similarity between
the Laidlaw operations and those of Respondent manifest a
substantial continuity between the enterprises. The parties
stipulation 3, supported by the record, satisfies this require-
ment for there they expressly stipulate to such finding in spe-
cific detail. I agree with the General Counsel’s assertion on
brief that the record is barren of any basis to conclude em-
ployees’ perceptions concerning their job situation and the
appropriateness of the Union as their collective-bargaining
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In this connection, I find that the change in supervisors after Re-
spondent assumed operations is, under the totality of circumstances
supporting the finding of a continuity between operations here, im-
material. Hydrolines, supra.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
representative changed when Respondent commenced oper-
ations. (G.C. Br. 14.)2
Based on the foregoing, I find that Respondent is the suc-
cessor to Laidlaw and that since February 3, 1992, by refus-
ing the Union’s demand for recognition dated January 30,
1992, Respondent has violated Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. Solid Waste Services, Inc. is the successor to Laidlaw
Waste Systems.
2. International Union of Operating Engineers, Local
Union No. 832 has been and is the exclusive representative
of all employees in the appropriate unit for purposes of col-
lective bargaining within the meaning of Section 9(a) of the
Act.
3. The following employees constitute a unit that is appro-
priate for collective bargaining within the meaning of Section
9(b) of the Act:
All drivers/spotters, loaders, floor attendants/utility, and
laborers/utility employed by Respondent to perform
work under contract with the Monroe Count Solid
Waste Transfer facility, excluding all office clerical em-
ployees, guards and supervisors as defined in the Act.
4. By failing and refusing to recognize and bargain collec-
tively with the Union as the exclusive representative of the
Respondent’s employees in the appropriate unit since Feb-
ruary 3, 1992, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
5. The Respondent’s unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act by failing and refusing to bargain
with the Union, I shall order it to cease and desist, to bargain
on request with the Union, and, if an understanding is
reached, to embody the understanding in a signed agreement.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Solid Waste Services, Inc., d/b/a J. P.
Mascaro & Sons, Inc., Rochester, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with International
Union of Operating Engineers, Local Union No. 832 as the
exclusive bargaining representative of the employees in the
bargaining unit described below.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union as
the exclusive representative of the employees in the follow-
ing appropriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement:
All drivers/spotters, loaders, floor attendants/utility, and
laborers/utility employed by Respondent to perform
work under contract with the Monroe County Solid
Waste Transfer facility, excluding all office clerical em-
ployees, guards and supervisors as defined in the Act.
(b) Post at its facility in Rochester, New York, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of the no-
tice, on forms provided by the Regional Director for Region
3 after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with Inter-
national Union of Operating Engineers, Local Union No. 832
as the exclusive representative of the employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
391J. P. MASCARO & SONS
WE WILL, on request, recognize and bargain with the
Union and put in writing and sign any agreement reached on
terms and conditions of employment for our employees in
the bargaining unit:
All drivers/spotters, loaders, floor attendants/utility, and
laborers/utility employed by us to perform work under
contract with the Monroe County Solid Waste Transfer
facility, excluding all office clerical employees, guards
and supervisors as defined in the Act.
SOLID WASTE SERVICES, INC.