Marine Spill Response Corporation

National Labor Relations Board - Administrative Judge Opinions

Feb 15, 2006

21-CA-036663 (N.L.R.B. Feb. 15, 2006)

JD(SF)–12–06
Carson & Long Beach, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE

MARINE SPILL RESPONSE CORPORATION

And Case 21-CA-36663

INLANDBOATMEN’S UNION OF THE PACIFIC,
MARINE DIVISION, INTERNATIONAL
LONGSHORE AND WAREHOUSE UNION, AFL-CIO

On Behalf of the General Counsel,
Lisa E. McNeill, Esq.

On Behalf of Respondent,
Avrum M. Goldberg, Esq.
and Dawn E. Starr, Esq., Akin Gump Strauss,
Hauer & Feld, LLP, of Washington D.C.

On Behalf of the Charging Party,
Carlos Cordon, International Organizer,
of San Pedro, California.

DECISION

Statement of the Case

JOHN J. MCCARRICK, Administrative Law Judge: This case was tried in
Los Angeles, California, on November 7-9, 2005 based upon the Complaint issued on
June 22, 2005 by the Regional Director for Region 21. The Complaint was amended on
June 27, 2005. The Complaint, as amended, alleges that Marine Spill Response Corporation,
Respondent, as the successor to Clean Coastal Waters, herein CCW, has refused to recognize
and bargain with Inlandboatmen’s Union of the Pacific, Marine Division, International Longshore
and Warehouse Union, AFL-CIO, herein the Union, the exclusive collective bargaining
representative of Respondent’s employees, in violation of Section 8(a)(1) and (5) of the Act.
Respondent filed a timely answer to the Complaint denying any wrongdoing and denying that
they are a successor employer.

Findings of Fact

Upon the entire record herein, including the briefs from the General Counsel and
Respondent, I make the following findings of fact.

I. Jurisdiction

Respondent, a Tennessee corporation, with facilities located at 190 South Pico Avenue,
Long Beach, California and 20780 Leapwood Avenue, Carson, California, is engaged in the

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business of providing clean up services for oil, substance spills and natural disasters. During
calendar year 2004, Respondent in the course of its business operations performed services
valued in excess of $50,000 outside the State of California.

Based upon the above, Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.

II. Labor Organization

Respondent admitted and I find that the Union is a labor organization within the meaning
of Section 2(5) of the Act.

III. The Alleged Unfair Labor Practices

The facts in this case are not in significant dispute. After the 1989 Exxon-Valdez oil spill
in Alaska, due to Congressional Legislation mandating the establishment of Oil Spill Response
Organizations (OSRO), in 1990 Respondent was created by several major oil companies to
clean up oil spills on the coasts of the United States. Respondent is non profit funded by the
Marine Preservation Association (MPA). Later in the mid-1990’s MPA increased its funding to
Respondent so that it could undertake additional clean up functions such as hazardous spills,
inland spills and natural disasters nationally and internationally. In addition to its headquarters
in Herndon, Virginia, Respondent maintains regional centers in New Jersey, Louisiana,
California and the state of Washington. Respondent has 75 manned and unmanned facilities in
the United States and employs over 250 employees. Respondent has in excess of 4000
customers that include oil companies, insurers and cargo vessels.

Steve Benz (Benz) is Respondent’s President and is located at Respondent’s Herndon,
Virginia corporate and administrative headquarters. Under Benz are four Regional Vice
Presidents located at the Regional administrative offices. Steve Ricks (Ricks) is Vice President
of the California Region with administrative offices in Concord, California. Under Ricks are Area
Response Managers for Northern and Southern California. Ray Nottingham (Nottingham) is
Area Response Manager for Southern California and is located in Long Beach, California.
Reporting to Nottingham are four response teams. These teams include the Carson, California
team of five employees supervised by Jeff Jappe (Jappe), two Long Beach, California teams,
one team of six employees supervised by John Degner (Degner) and second team of five
employees supervised by Rick Tamayo (Tamayo) and a San Diego, California team of three
employees supervised by Kyle Hanson (Hanson).

Since at least 1990, Clean Coastal Waters, Inc., (CCW) was an Oil Spill Response
Organization (OSRO), licensed by both the State of California and the Federal Government to
conduct offshore oil spill clean ups in the Southern California area from Pt. Dume near Oxnard,
California to the Mexican border south of San Diego, California. CCW operated from its facility
at 190 South Pico Avenue, Long Beach, California. Nottingham was President of CCW, Dave
Redman was Operations Manager, and Tamayo and Degner were supervisors. CCW employed
approximately 13 employees who were divided into two teams, supervised by Tamayo and
Degner. On March 26, 1998 the Union was certified in case 21-RC-19901 as the bargaining
representative of CCW’s boat operators and crew members employed at its 190 South Pico
Avenue Long Beach, California facility.1 On April 1, 2003 CCW and the Union signed a

1 Joint exhibit 1.

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collective bargaining agreement effective April 1, 2003 to March 31, 2006, covering CCW’s
employees in the above unit.2

As a result of a merger on about July 1, 2004, the assets of CCW were transferred to
Respondent, including all of CCW’s vessels and oil recovery equipment. Respondent hired 12
of CCW’s bargaining unit employees as well as most of CCW’s managers and supervisors.

A. CCW Operation

Since the 1970’s CCW performed oil spill clean up from Pt Dume south to the Mexican
Border. CCW performed oil clean up and recovery services for about 11 members and fewer
than 30 subscribers. In performing its clean up functions, CCW employed 13 bargaining unit
employees who operated boats, barges, and various items of oil recovery equipment. CCW
categorized the bargaining unit employees as crew members, boat operator I or boat operator II.
At CCW bargaining unit employees received their day to day work assignments from
supervisors Degner and Tamayo. On a daily basis CCW employees performed checks on
equipment to assure they were in good working order. As needed, employees would perform
preventative and corrective maintenance on recovery equipment and vessels. Employees
operated various boat trailers, vehicles, power packs, skimmers, oil recovery booms, gas
monitoring systems, breathing apparatus, absorbants and dispersants. CCW employees
worked on vessels of varying sizes including 18 foot sea sleds, 30 foot recovery I vessels, a 50
foot shallow water barge and 100 foot recovery vessels. Bargaining unit employees operated
the oil recovery equipment aboard the 140 foot vessel Cleanwaters while an independent
contractor operated the vessel. CCW bargaining unit employees worked generally from 7:30am
to 4:00pm Monday through Friday and were subject to a voluntary on call system. CCW
employees participated in mandatory training exercises two to three times a month. From time
to time CCW employees went out of their geographic area of responsibility to assist other
OSROs in California. Through a mutual aid agreement, the OSROs responsible for oil recovery
in the San Francisco Bay area, Clean Bay, in the Santa Barbara Channel, Clean Seas and in
Southern California, CCW, assisted each other when the oil recovery operation exceeded their
capacity. Since 1992 CCW employees trained with Clean Bay employees twice for five days
each and trained with Clean Seas employees on another occasion. CCW lent a boat and crew
to Clean Seas, went to an oil platform in the Santa Barbara Channel in an oil recovery operation
and deployed six employees to an Avila Beach, California oil spill on the California central coast
for a week in aid of Clean Seas. Bargaining unit employee wage rates are set forth in Joint
exhibit 2 at page 8. Effective April 1, 2004, Boat Operator I earned $20.98 to $22.45, Boat
Operator II earned $16.62 to $18.41 and Crew Member earned $13.13 to $14.32. CCW
provided its employees with medical benefits and a 401(k) plan.

B. Respondent’s Operation

Since 1990 Respondent has provided oil recovery and clean up throughout the coastal
United States and since the mid 1990’s oil and hazardous substance clean up, shoreline clean
up, inland clean up and offloading ships (lightering) both in the United States and internationally.
Respondent services over 4000 clients, including those CCW formerly serviced.

At the time of the CCW-Marine Spill Recovery Corporation merger, Respondent
operated a nationwide set of facilities managed from both a central corporate office in Herndon,
Virginia and four Regional offices, including its California Regional Office located in Concord,
California near San Francisco. Both Respondent’s labor relations and personnel policies are

2 Joint exhibit 2.

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established at the corporate headquarters and are administered by Regional Vice Presidents.
Respondent creates job descriptions at the corporate level. Likewise all terminations, transfers,
hires and benefits programs are decided at the corporate headquarters. Respondent employs
280 employees in 34 locations. All of Respondent’s employees engaged in direct recovery
operations are called Responders, Lead Responders and Master Responders. Rates of pay,
within a range determined by the corporate office, are set by the Regional Vice Presidents.

Respondent’s California Regional Vice President Ricks is responsible for seven
locations with 46 employees throughout the State of California. The Regional Office provides all
administrative functions for the sites in California, and makes recommendations to hire, fire and
discipline employees. In hiring, the Regional Human Relations Department interviews
prospective employees with the first line supervisor and the Area Response Manager and a
recommendation is made to the corporate office which has the final decision. Employee
personnel files are maintained at the Regional Office.

At Respondent’s local facilities, the first line supervisors approve both vacation and
overtime for employees and make day to day work assignments. In addition the local
supervisors prepare performance appraisals.

Because of its mission and size, Respondent has the ability to send employees to
recovery operations throughout the United States. This practice is known as “cascading.”
Since Respondent merged with CCW, there have been two emergencies that required
nationwide cascading. Both of these incidents involved hurricanes in the Gulf Coast area. In
September 2004 Respondent cascaded employees from throughout the United States to the
Gulf Coast in the aftermath of Hurricane Ivan and in September 2005 Respondent cascaded its
employees to the Gulf area after Hurricanes Rita and Katrina. Employees were assigned to
various administrative and clean up duties for one to three weeks at a time. Not all employees
were required to cascade in these two emergencies. In 2004 four of 17 employees from the
Carson-Long Beach facilities cascaded to Hurricane Ivan clean up and in 2005 eight of 16
Carson-Long Beach employees went to the Gulf in response to Hurricanes Rita and Katrina.3 In
addition in August 2004, when Respondent opened a new facility in San Diego, California, eight
employees from Carson-Long Beach went to San Diego for one week at a time to help open the
new facility.

Respondent conducts drills at its local facilities mandated both by the corporate office
and state and Federal regulatory agencies. Respondent also provides for financial audits at its
nationwide facilities on a regular basis.

When Respondent merged with CCW in July 2004, it already operated a facility at
Carson, California, employing four Responders.4 Respondent effectively merged its Carson
facility with the CCW Long Beach facility where CCW had employed 13 bargaining unit
employees.5 The Carson and Long Beach facilities are about nine miles apart. Respondent
hired 12 of the CCW Long Beach bargaining unit employees at the time of the merger.6 After
the merger there were 18 Responders in the Carson-Long Beach facilities.7 Following the
merger, two of Respondent’s Carson employees were transferred to Long Beach and four CCW
employees were transferred to Carson. In addition there is regular interchange of employees

3 Respondent’s exhibits 10 and 12.
4 Respondent’s exhibit 4.
5 Joint exhibit 3.
6 Compare Respondent’s exhibit 5 and Joint exhibit 3.
7 Respondent’s exhibit 5.

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between the Carson and Long Beach facilities for work assignments, meetings, drills and
training. Tamayo and Degner remained the supervisors of the two Long Beach Responder
teams and Jappe supervises the Carson team. Nottingham was made Respondent’s Area
Response Manager, supervising the two Long Beach teams, the Carson team and the San
Diego team. Respondent plans to merge the Carson and Long Beach locations into one facility
in Long Beach as of December 2005.

The Responder’s job duties at the Carson-Long Beach facilities remained essentially
unchanged from the job duties with CCW. With both employers Responders did check offs,
performed routine and preventative maintenance and engaged in training and various drills.
The equipment was essentially the same at both employers although Respondent introduced
some new oil skimmers, a different shallow water barge and a larger oil recovery boat, the 200
foot long California Responder. Like CCW’s employees aboard the Cleanwaters, Respondent’s
employees operate the oil recovery equipment aboard the California Responder but an
independent company operates the vessel itself. Respondent’s employees at Long Beach
continue to use the same oil recovery equipment they had used with CCW in addition to the new
oil recovery equipment introduced by Respondent. Responders are also required to perform
inland oil recovery and shoreline clean up in addition to oil spill clean up at sea. Respondent
introduced a computer system that requires Responders to input their maintenance check offs
of equipment. Computer duties occupy from 30 minutes to two hours a day. Respondent has
given Responders authority to charge up to $1000 for the purchase of parts and supplies.
Respondent’s Responders work an alternative work schedule generally from 7:00 a.m. to
4:30 p.m. In a two week pay period, Responders work nine hours for four days, one day for
eight hours then four days for nine hours and the fifth day off. Respondent has a mandatory on
call system for Responders. Responders must report for duty within two hours, 24 hours a day,
seven days a week. The job titles of employees changed after the merger. CCW Crew Member
became Responders, Boat Operators II became Lead Responders and Boat Operators I
became Master Responders. Long Beach Lead Responder Garrick Gilham earned $18.41 an
hour as a Boat Operator II with CCW and $20.05 an hour with Respondent. Long Beach Lead
Responder Tim Parker earned $18.41 an hour as a Boat Operator II with CCW and $19.00 an
hour with Respondent. Respondent provides its employees with both medical benefits and a
401(k) plan that differ in minor ways from the CCW medical and 401(k) plans.

C. The Demand for Recognition

In its letter of July 2, 2004, the Union, as the collective bargaining representative of the
employees in the bargaining unit consisting of boat operators and crew members of CCW,8
made a demand for recognition and bargaining upon Respondent. In response, by letter dated
July 15, 2004, Respondent stated that it was not a successor to CCW and desired that the
matter be submitted to the Board for adjudication.9 Again on September 24, 2004 the Union
made a demand for recognition and bargaining upon Respondent. Respondent has refused to
recognize or bargain with the Union as representative of the employees in the CCW bargaining
unit.

D. The Law

The Supreme Court in NLRB v. Burns International Security Services, 406 U.S. 272, 281
(1972), established that a successor is bound to bargain with the union representative of its
predecessor’s employees if, “the bargaining unit remains unchanged and a majority of

8 Joint exhibit 5.
9 Joint exhibit 6.

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employees hired by the new employer were represented by a recently certified bargaining
agent.” In Howard Johnson Co. v. Hotel and Restaurant Employees, Detroit Local Joint
Executive Board, 417 U.S. 249, 263 (1974), the Court stated that one test of successorship was
the “substantial continuity of identity of the business enterprise.” In Valley Nitrogen Producers,
207 NLRB, 208 (1973), the Board held that the criteria for determining substantial continuity in
the employing industry includes whether an employer, “uses substantially the same facilities and
work force to produce the same basic products for essentially the same customers in the same
geographic area.” Later in Fall River Dyeing and Finishing Corp. v. NLRB, 482 U.S. 27, 41
(1987), the Supreme Court clarified Burns and said if a, “new employer makes a conscious
decision to maintain generally the same business and to hire a majority of its employees from
the predecessor, then the bargaining obligation of Section 8(a)(5) is activated.”

In applying these principles, an employer will be found a successor if there is continuity
in the workforce, i.e., has it hired a majority of the predecessor’s employees, if there is continuity
of the appropriate bargaining unit, i.e., does the bargaining unit remain appropriate and if there
is substantial continuity of the business enterprise. It is the employees’ perspective and their
expectations of continued representation that is paramount when assessing these factors in
determining successorship. Pennsylvania Transformer Technology, Inc. v. NLRB, 254 F.3d 217
(D.C. Cir. 2001), enforcing 331 NLRB 1147 (2000).

E. The Analysis

1. Continuity of the Workforce

There is no dispute that Respondent hired a majority of its predecessor, CCW’s,
employees from the Long Beach bargaining unit that were represented by the Union. Thus,
there is continuity of the workforce vis-à-vis the Long Beach bargaining unit. The dispute is
whether there is continuity of the appropriate bargaining unit and of the business enterprise.

2. Continuity of the Appropriate Bargaining Unit

Counsel for the General Counsel concedes that there has been a change in the
appropriate bargaining unit in that it has expanded into the Carson, California facility.
Respondent, on the other hand, contends that due to the functional integration and
interchangeability of employees only a nation-wide unit of Responders is appropriate. In the
alternative Respondent argues that the smallest appropriate unit is the unit consisting of all
Responders employed by Respondent in the California Region.

A bargaining unit need not be the most appropriate unit under all of the circumstances, it
must be only an appropriate unit. American Hospital Association v. NLRB, 499 U.S. 606, 610
(1991). In Budget Rent a Car Systems, Inc., 337 NLRB 379 (2002), the Board reaffirmed that a,

[S]ingle-facility unit is presumptively appropriate, unless the single facility has
been effectively merged into a more comprehensive unit, or is so functionally
integrated with another unit that it has lost its separate identity. R&D Trucking,
327 NLRB 531 (1999). To determine whether the single-facility presumption has
been rebutted, the Board looks at such factors as the similarity of employee
skills, functions and training, the distance between the facilities, the functional
coordination in operations of the facilities, common supervision, centralized
control of operations and labor, contact between employees at different facilities,
employee interchange (particularly temporary transfers) between facilities,
common wages, benefits, and terms and conditions of employment, and

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bargaining history, if any. See Waste Management Northwest, 331 NLRB 309
(2000); New Britain Transportation Co., 330 NLRB 397 (1999).

An employer must over come this presumption and demonstrate that a single facility unit is
inappropriate. Dattco, Inc., 338 NLRB 49 (2002). A review of recent Board decisions reviewing
the issue of the appropriateness of single facility units and multi facility units in a larger
corporate organizational structure is helpful in analyzing this case.

In North Hills Office Services, 342 NLRB No. 25 (2004), Ready Mix USA, Inc., 340 NLRB
946 (2003), Van Lear Equipment, Inc., 336 NLRB 1059 (2001), New Britain Transportation Co.,
330 NLRB 397 (1999), Rental Uniform Service, Inc., 330 NLRB 334 (1999) and First Security
Services Corp., 329 NLRB 235 (1999) the Board found single facility units or units smaller than
the employer’s larger organizational structure appropriate.

In North Hills, 10 the Board found a single unit of 27 service employees appropriate
despite the employer’s larger regional administrative unit composed of 366 employees at 59
facilities in the New York/New Jersey area. Despite the similarity of job functions among
employees, and the new employer’s centralized labor relations and personnel policies, the
Board noted that there was local supervision and some degree of labor relations autonomy at
the Meadows facility, limited transfer and interchange among the various employer facilities in
the greater New York/New Jersey area and the Meadows. The Board distinguished Trane, an
Operating Unit of American Standard Companies, 339 NLRB 1 (2003), Waste Management,
supra, and P.S. Elliot Services, Inc., 300 NLRB 1161 (1990) where it found the single plant unit
presumption had been rebutted since in those cases there was no local supervision or local
autonomy of labor relations.

In Ready Mix, supra, the Board found the predecessor’s 39 employee, three-plant facility
still appropriate despite its merger into the successor’s 800-employee operation. In Ready Mix
there was a history of bargaining as well as local autonomy and supervision at the three unit
facility.

In Van Lear, supra, the merger of the predecessor’s 32 employee bargaining unit into
the successor’s 218 employee administrative organization that had a high degree of centralized
labor relations and personnel policies did not defeat the single facility presumption where the
predecessor unit retained local labor relations autonomy and local supervision and where there
was no interchange or transfer of employees from the single facility to the successor’s other
locations.

In New Britain, supra, the predecessor’s single facility of bus drivers remained
appropriate where there was evidence of local autonomy in labor relations, local supervision
and lack of interchange or transfer of employees from the single location to the successor’s
other facilities, despite the successor’s central control of labor relations and personnel functions.

In Rental Uniform, supra, the Board found a single processing plant appropriate despite
the fact that it had two satellite facilities 22 and 38 miles away where each satellite facility had
its own managers and supervisors who retained some degree of labor relations autonomy and
where there was no interchange among the three facilities.

In First Security, supra, the Board found the petitioned for unit of 34 guards at one of the
successor’s facilities in an administrative region consisting of 230 guards at over 17 client

10 North Hills, footnote 3

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facilities, appropriate despite the successor employer’s highly centralized labor relations and
personnel functions that included common pay, hiring, firing and discipline. The single facility
retained day to day supervision, including local work assignments, local approval of overtime,
initial preparation of performance appraisals and the absence of employee interchange or
transfer.

In Clarian Health Partners, Inc., 344 NLRB No. 28 (2005), Laboratory Corp. of America
Holdings, 341 NLRB No. 140 (2004), Trane, supra, Dattco, supra, Budget Rent a Car, supra,
and Waste Management, supra the Board found that the appropriateness of the single-plant unit
had been rebutted.

In Clarian, supra, a merged health care facility, the Board found the predecessor’s unit of
maintenance employees at a single location no longer appropriate where there was common
supervision, interaction and exchange among maintenance employees in several similar
facilities only five minutes apart.

In Laboratory Corp., supra, the Board reversed the Regional Director who had found a
seven facility unit appropriate out of the employer’s 29 facility administrative region, where all 29
facilities were in similar geographic proximity, where there was common supervision of all 29
facilities, where the supervision of the seven facility unit was in a state of flux and not consistent
with other employer administrative groups and where there was frequent employee interchange.

In Trane, supra, a 16 employee single facility unit among the employer’s three facility
St. Louis District was found not appropriate where there was centralized labor relations,
supervision and personnel policies at all three facilities and no supervision or management one
of the facilities. There was common interchange and frequent contact among employees at all
three facilities.

In Dattco, 338 NLRB 49 (2002), the employer contended that its predecessor’s Hartford,
Connecticut bus driver’s terminal was not an appropriate unit as it had been integrated into its
statewide administrative organization. The Board found that Dattco had highly centralized labor
relations with no local autonomy of the managers or dispatchers at each of its nine terminals.
Local terminal mangers or dispatchers could not grant time off, hire, fire or discipline employees.
All work assignments were made at headquarters not by the terminal dispatcher or manager.
There was significant interchange among the Hartford drivers to and from various terminals
where they were supervised by the local terminal dispatcher or manager.

In Budget Rent a Car, supra, the Board found the petitioned for single facility unit
inappropriate where there were seven similar rental facilities in the Detroit area, five of which,
including the petitioned for facility, were commonly managed, where there was no local
autonomy of labor relations, where there was daily contact among employees of the various
Detroit facilities, where there was regular interchange and transfer of employees among the five
facilities, including the petitioned for unit, and where there was no supervision at the petitioned
for location.

In Waste Management, supra, the petitioned for unit of 18 employees at the Woodinville,
Washington facility performed identical tasks as the 12 employees at the Fife, Washington
facility 42 miles distant. In finding the single unit inappropriate, the Board noted that there was
no supervisor at the Fife facility, that all supervisors and managers were at Woodinville, that all
work assignments were made from Woodinville and that there was frequent interaction and
coordination among the Fife and Woodinville employees.

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Common to those cases where a single facility or a multi facility unit smaller than the unit
requested by the employer was found appropriate, are local autonomy of labor relations in the
smaller unit, including the ability of local supervisors to schedule work, grant time off and
prepare initial appraisals, and lack of regular interchange, interaction or transfer between the
smaller unit and the employer’s larger administrative unit. The common thread in each of those
cases where the single facility presumption was rebutted, in addition to centralized control of
labor relations and personnel functions by the new employer among several facilities, was no
evidence of local autonomy or day to day local supervision at the predecessor facilities,
evidence of common day to day supervision at the different plants, evidence of regular
interaction among employees and employee transfers among the facilities including the
petitioned for units.

In this case, I find that the presumption that a single facility unit is appropriate has been
overcome.

Since 1998 there has been a history of bargaining between the Union and CCW
regarding CCW’s oil clean up employees at the Long Beach facility. With the merger
Respondent continued to operate CCW’s Long Beach facility but effectively merged the day to
day operation of the Long Beach facility with its preexisting Carson facility. After the merger,
Respondent transferred Carson employees to Long Beach and Long Beach employees to
Carson. There is ongoing exchange of employees between the Carson and Long Beach
facilities. Both Carson and Long Beach employees attend daily meetings where work is
assigned, participate together in weekly drills, training and safety meetings, and perform
essentially the same work under the common supervision of Nottingham. This functional and
operational integration is so complete that as of December 2005 Respondent planned to merge
the Carson and Long Beach facilities at a new facility near the Long Beach airport. I conclude
that the single Long Beach facility has been so effectively merged and integrated with the
Carson facility that it has lost its separate identity. Dattco, supra.

In addition to the Carson and Long Beach facilities, in August 2004 Respondent opened
a new manned Responder facility in San Diego, California, with a supervisor and three
Responders under the supervision of Nottingham. San Diego is located about 100 miles from
Long Beach. Unlike the Carson and Long Beach employees, there is no daily or weekly
interchange of employees with San Diego. While Carson-Long Beach employees were detailed
to San Diego to assist in setting up equipment and facilities in August 2004, this was an
isolated, one time event. Any ongoing contact or interchange between Carson-Long Beach
employees and San Diego employees is irregular. While Area Response Manager Nottingham
and ultimately Regional Vice President Ricks manage all three facilities, there is no common
day to day first line supervision of Carson-Long Beach and San Diego employees. There is a
supervisor at the San Diego facility that has autonomy over the day to day operations, including
the scheduling of work, granting overtime and time off and preparing the initial performance
evaluations of Responders. Given the lack of regular employee interaction or interchange, the
local autonomy and presence of supervision at San Diego as well as at Carson and Long Beach
and the distance between Carson-Long Beach and San Diego, I find that the Carson-Long
Beach facilities and the San Diego facility have not been so functionally integrated as to have
lost their separate identities. The Carson-Long Beach facility is thus an appropriate unit. New
Britain Transportation Co., 330 NLRB 397 (1999).

There is some interchange of employees between Carson-Long Beach and other
California Regional facilities. However, this interchange is not a frequent occurrence. There
has been sporadic delivery of vehicles and equipment by Carson-Long Beach employees to the
Concord, California, Regional Office. Repairs and training have been conducted infrequently in

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Carson and Long Beach by employees from other California Regional facilities. While the rates
of pay, hiring, firing and discipline of employees is centralized at the Regional offices in
Concord, California, local supervisors in Carson-Long Beach conduct day to day operations,
assign work to Responders daily, supervise employees’ work, schedule vacation, make
overtime assignments, prepare performance appraisals, participate in the interview of
prospective employees and initiate disciplinary actions. I find that the Carson-Long Beach
facilities have not been so functionally integrated into Respondent’s California Region as to
have lost their separate identity and thus Carson-Long Beach remains an appropriate unit.
North Hills Office Services, 342 NLRB No. 25 (2004); First Security Services Corp., 329 NLRB
235 (1999).

Likewise there is occasional temporary assignment of Carson-Long Beach Responders
throughout the United States in response to catastrophes like Hurricanes Rita and Katrina. This
policy has impacted about half of the Carson-Long Beach Responders for a total of four to six
weeks per Responder over the past two years as a result of the devastation caused by
hurricanes in the Gulf Coast. While Respondent’s ability to respond to natural disasters is an
important service to its customers, it cannot be said that the isolated natural disaster response
is a regular and substantial part of the day to day functions of the Carson-Long Beach
Responders. Moreover, the duties performed by Responders during cascading to events such
as the Gulf hurricanes is a natural extension of the jobs they perform and train to perform on a
day to day basis while stationed in Carson and Long Beach. When assigned to perform
temporary duty in the event of a natural disaster the Responders are not assigned to a new
facility but perform duties on the site of the natural disaster, establishing that there is no
significant interchange between facilities. The number of days assigned to temporary work in
response to major spills and natural disasters represents a small fraction of the total days the
Carson-Long Beach Responders worked in 2004 and 2005. The Carson-Long Beach
Responders spend the vast majority of their time working with employees on the Responder
teams assigned to Carson-Long Beach and are supervised on a day to day basis by Carson-
Long Beach supervisors who assign work, grant time off, grant overtime and prepare initial
performance evaluations. The Carson-Long Beach unit retains its integrity independent of the
remainder of Respondent’s Responders throughout the United States. North Hills, supra;
Rental Uniform Service, Inc., 330 NLRB 334 (1999); First Security Services Corp., supra.

3. Continuity of the Business Enterprise

Respondent argues that there has been a fundamental and substantial change in the
employing enterprise so that under the Burns, Howard Johnson and Fall River Dyeing tests it is
not a successor to CCW. Thus it is necessary to consider whether Respondent uses
substantially the same facilities and work force to produce the same basic products for
essentially the same customers in the same geographic area. Valley Nitrogen Producers, 207
NLRB (1973). While the Board considers the totality of the circumstances when determining if
an employer is a successor, hiring a majority of the predecessor’s employees is central.
Pennsylvania Transformer Tech., Inc., v. NLRB, 254 F.3d 217 (D.C. Cir. 2001), enforcing 331
NLRB 1147 (2000). In assessing these factors the Board has traditionally held that changes in
the employing entity will not terminate the successor’s obligation to bargain unless “the
employee’s job situation is so changed that they would change their attitude about being
represented.”11 In assessing whether Respondent is a successor the analysis must focus “not
on the continuity of the business structure in general but on the parties’ operations of the
business as they affect the members of the relevant bargaining unit.” Food and Commercial
Workers Local 152 v. NLRB, 768 F. 2d 1463, 1470 (D.C. Cir. 1985) enforcing in part, denying in

11 Van Lear, supra at 1059.

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part remanding in part 268 NLRB 1483 (1984). See also Pennsylvania Transformer
Technology, Inc., supra.

It is beyond dispute that Respondent is a much larger organization than CCW with the
ability to operate outside the Southern California area to encompass the entire coastal United
States. Respondent’s clients are far more numerous than CCW’s. Respondent’s corporate
headquarters has standardized pay and benefits for all of its Responder employees that differ
slightly from CCW benefits and Respondent has a centralized labor relations policy that applies
to all Responders nationwide. Respondent performs services that CCW did not, including
inland and coastal spill clean up as well as centralized communications. However, the mere
fact that the successor is a larger organization with centralized labor relations and personnel
policies, a different management philosophy and larger customer base will not alone defeat a
finding of successorship. Pennsylvania Transformer Technology, Inc., supra.

At the Carson-Long Beach facilities, a majority of CCW’s employees continue to perform
the same essential duties for Respondent, i.e., oil spill cleanup, with essentially the same
equipment, i.e., small and large boats, barges, booms, oil skimmers, breathing apparatus and
gas monitors. The Carson-Long Beach employees continue to service most of CCW’s former
clients in essentially the same geographic area as CCW from essentially the same facilities.
Respondent’s Responders are supervised by the two former CCW supervisors who perform
essentially the same supervisory duties with Respondent. Nottingham, CCW’s former
president, continues to manage the Carson-Long Beach employees.

While Respondent introduced CCW employees to some new oil recovery equipment, it
was not significantly unlike the equipment they were familiar with and continue to use. Former
CCW employees are required by Respondent to use computer terminals to input maintenance
records and have authority to charge up to $1000 for parts. Further, Respondent’s Responders
are required to be on call at all times and occasionally perform their duties away from their
permanent duty station. These temporary assignments away from the permanent duty station
constitute an insignificant number of days out of the Responders’ total days worked in a year.
Further, this deployment is not unlike the assignment of CCW employees to other OSROW’s for
large oil spill clean up in California in the past decade. The modifications in the CCW
employees’ working conditions made by Respondent are minor alterations that do not change
the CCW employees’ job situation such that they would alter their attitude about being
represented. I conclude that there is substantial continuity in the employing business
enterprise. North Hills, supra; Ready Mix, supra; Van Lear, supra.

Having found continuity in the workforce, the appropriate bargaining unit and the
employing business enterprise, I find that Respondent is successor employer to CCW within the
meaning of NLRB v. Burns International Security Services, 406 U.S. 272, 281 (1972); Howard
Johnson Co. v. Hotel and Restaurant Employees, Detroit Local Joint Executive Board, 417 U.S.
249, 263 (1974); and Fall River Dyeing and Finishing Corp. v. NLRB, 482 U.S. 27, 41 (1987).

In refusing to bargain with the Union as the bargaining representative of the Carson-
Long Beach oil recovery employees, Respondent has violated Section 8(a)(1) and (5) of the Act.

Conclusions of Law

Marine Spill Response Corporation is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.

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Inlandboatmen’s Union of the Pacific, Marine Division, International Longshore and
Warehouse Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the
Act.
Respondent has engaged in conduct in violation of Section 8(a)(1) and (5) of the Act by
refusing to recognize and bargain with Inlandboatmen’s Union of the Pacific, Marine Division,
International Longshore and Warehouse Union, AFL-CIO as the exclusive collective bargaining
representative of its employees in the appropriate unit:
All full time and regular part time responders, master responders and lead
responders employed by Respondent at its facilities located at 190 Pico Avenue,
Long Beach, California and 20780 Leapwood Avenue, Carson, California;
excluding office clerical employees, guards and supervisors as defined in the Act.
The above are unfair labor practices affecting commerce within the meaning of Sections
2(6), (7) and (8) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I shall
recommend that it be ordered to cease and desist and to take certain affirmative action
designed to effectuate the purposes of the Act. I shall order the Respondent to recognize and
bargain with the Union as the exclusive collective bargaining representative of its employees in
the above described unit and on request by the Union meet and bargain in good faith.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended12
ORDER
The Respondent, Marine Spill Response Corporation, its officers, agents, successors
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain in good faith with Inlandboatmen’s
Union of the Pacific, Marine Division, International Longshore and Warehouse
Union, AFL-CIO as the exclusive collective bargaining representative of its
employees in the appropriate unit:
All full time and regular part time responders, master responders and lead
responders employed by Respondent at its facilities located at 190 Pico
Avenue, Long Beach, California and 20780 Leapwood Avenue, Carson,
California; excluding office clerical employees, guards and supervisors as
defined in the Act.

12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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(b) In any like or related manner interfering with, restraining or coercing its
employees in the exercise of rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, meet and bargain in good faith with the Union as the collective
bargaining representative of its employees in the described appropriate unit
concerning terms and conditions of employment and, if agreements are reached,
embody the agreements in a signed collective bargaining agreement.
(b) Within 14 days after service by the Region, post at its facilities in Carson and
Long Beach, California, copies of the attached notice marked “Appendix.” 13
Copies of the notice, on forms provided by the Regional Director for Region 21,
after being signed by the Company’s authorized representative, shall be posted
by the Company immediately on 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 Company to ensure
that the notices are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Company has gone out
of business or closed a facility involved in theses proceedings, the Company shall
duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Company at any time since
July 15, 2004.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.

Dated, at Washington, D.C. February 15, 2006

__________________________
John J. McCarrick
Administrative Law Judge

13 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted Pursuant to an 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.”

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives or bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT refuse to recognize and bargain collectively with Inlandboatmen’s Union of the
Pacific, Marine Division, International Longshore and Warehouse Union, AFL-CIO as the
exclusive collective bargaining representative of its employees in the appropriate unit:

All full time and regular part time responders, master responders and lead
responders employed by Respondent at its facilities located at 190 Pico Avenue,
Long Beach, California and 20780 Leapwood Avenue, Carson, California;
excluding office clerical employees, guards and supervisors as defined in the Act.

WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.

WE WILL, on request, bargain with Inlandboatmen’s Union of the Pacific, Marine Division,
International Longshore and Warehouse Union, AFL-CIO as the exclusive collective bargaining
representative of its employees in the appropriate unit:

All full time and regular part time responders, master responders and lead
responders employed by Respondent at its facilities located at 190 Pico Avenue,
Long Beach, California and 20780 Leapwood Avenue, Carson, California;
excluding office clerical employees, guards and supervisors as defined in the Act.

Marine Spill Response Corporation
(Employer)

Dated By
(Representative) (Title)

The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Las Vegas
Resident office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.

888 South Figueroa Street, 9th Floor
Los Angeles, California 90017-5449
Hours: 8:30 a.m. to 5 p.m.
213-894-5200.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE

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 ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 213-894-5229.

THIS NOTICE AND THE DECISION IN THIS MATTER ARE PUBLIC RECORDS

Any interested individual who wishes to request a copy of this Notice or a complete copy of the
Decision of which this Notice is a part may do so by contacting the Board’s Offices at the
address and telephone number appearing immediately above.