New Era Terminal Services, Inc

National Labor Relations Board - Board Decisions

Feb 14, 1989

292 N.L.R.B. 1069 (N.L.R.B. 1989)

NEW ERA TERMINAL SERVICES
New Era Terminal Services , Inc and Amalgamated
Transit Union, Local Union 1600 , AFL-CIO
Case 10-CA-23233
February 14, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
HIGGINS
On July 15, 1988, Administrative Law Judge J
Pargen Robertson issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed a brief in opposition
to Respondent's exceptions
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 , fmdings, and
conclusions and to adopt the recommended Order
We agree with the judge that the Respondent is
a successor employer and that it violated Section
8(a)(5) of the Act by refusing the Union's request
to bargain The Respondent is the fourth in a suc
cession of employers who have operated the Grey-
hound bus terminal in Atlanta, Georgia, since the
date of the Union's certification in an appropriate
unit there The Respondent's sole argument to the
Board against a successorship finding is that a ma-
jonty of the eligible employees of the first employ-
er (R&W Travel) were not hired by the second
employer (M&C Enterprises) and therefore the
successorship chain could not have continued
thereafter In arguing this position, it raises certain
contentions regarding the status of particular indi-
viduals We find all these arguments without merit
as explained below
It appears that the judge found that 45 employ-
ees from R&W were in M&C's first complement of
79 employees In arguing that R&W's bargaining
unit employees did not constitute a majority of
M&C's work force, the Respondent first asserts
that Judith Nunan should be excluded from R&W's
bargaining unit The evidence, however, shows
that Nunan was part of the bargaining unit at both
R&W and M&C Thus, R&W President Rogers
testified that, but for secretary Margie Street and
various supervisors, all persons on R&W's payroll
(which included Nunan) were bargaining unit em-
ployees The Respondent next contends that the
judge should have excluded "as many as 5" tempo-
rary college students from R&W's bargaining unit
This contention is also unsupported by the record
Although R&W President Rogers testified that he
probably had four or five students who worked on
1069
a temporary basis during the summer, he indicated
that he did not know if any of these students were
on his final payroll and he was unable to name any
such employees on his payroll list M&C's Michael
Berry testified that he did not have any temporary
employees on his first payroll Thus, it is apparent
that no temporary employees were included on the
last R&W payroll or on the initial M&C payroll
Finally, the Respondent contends that "Martin
Braxton," who appears on R&W's final payroll,
and "Braxton Martin," who appears on M&C's first
payroll, may not be the same employee and there-
fore should be excluded from the count of former
R&W employees who were hired by M&C This
contention, however, is without merit as the judge
in any event did not count "Martin Braxton" or
"Braxton Martin" as an employee hired from R&W
as is revealed by a comparison of his numerical
findings and the relevant payroll records Thus, the
judge found that of 79 employees on M&C's first
payroll, 45 employees came from R&W, 24 em-
ployees were brought over from Trailways, and 10
employees do not appear on either the prior pay-
rolls of R&W or Trailways The relevant payroll
records of R&W and M&C list, from among their
total nonsupervisory employees, 45 employees'
names as working for both of them Critically, nei-
ther "Martin Braxton" nor "Braxton Martin" is in-
cluded as one of those 45 Nor does either name
appear in the list of employees hired from Trail
ways Thus, it is apparent that the judge included
Braxton Martin as 1 of the 10 new employees
hired If he would have found Braxton Martin to
be a former R&W employee, his findings would
have shown 46 employees from R&W, 24 from
Trailways, and 9 new employees Thus, the Re-
spondent's contentions are unpersuasive and with-
out merit
In any event, were we to deduct the seven em
ployees from R&W's work force as the Respondent
contends we should, we would correspondingly
have to remove the claimed five temporary student
employees from M&C's work force Having done
this, R&W's work force would still constitute a
majority of M&C's work force i
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, New Era
' We deny the Charging Party s request for litigation expenses We
have reviewed the record and we find that the Respondents defenses are
unpersuasive but not patently frivolous Tudee Products 194 NLRB 1234
(1972) See also Hotel & Restaurant Employees Local 19 (Seasons Restau
rant) 277 NLRB 842 848-849 (1985) Super Save 273 NLRB 20 fn 1
(1984)
292 NLRB No 123
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Terminal Services, Inc., Atlanta, Georgia, its offi-
cers, agents , successors , and assigns , shall take the
action set forth in the Order.
Frank F. Rox Jr., Esq., for the General Counsel.
G. Paris Sykes Jr., Esq. (Ford & Harrison), of Atlanta,
Georgia, for the Employer/Respondent New Era Ter-
minal Services, Inc.
Richard M. Kobdish Jr., Esq. (Johnson & Swanson), of
Dallas, Texas, for Southern Greyhound Lines, Gli
Holding Company, and Jim Ferguson.
Martin H. Steckel, Esq. (Swift, Currie, McGhee & Hiers),
of Atlanta, Georgia, for James Rogers and R&W
Travel Corporation.
DECISION
STATEMENT OF THE CASE
J. PARGEN ROBERTSON, Administrative Law Judge.
This matter was heard in Atlantia, Georgia, on 26 May
1988. The complaint, which issued on 28 March 1988, al-
leges that Respondent engaged in conduct violative of
Section 8(a)(5) and (1) of the Act.
This matter involves a chain of employers and the
successorship issue . On 4 June 1988 the Charging Party
(the Union) was certified as representative of the em-
ployees of R&W Travel Corporation at the Atlanta,
Georgia Greyhound bus terminal at 81 International
Boulevard. R&W Travel engaged in negotiations with
the Union. However, before reaching a collective-bar-
gaining agreement , on 31 August 1987, R&W Travel
ceased operations. Subsequently, the operations of R&W
Travel, which entailed basically the operation of Grey-
hound's Atlanta terminal as commission agent, were as-
sumed by M&C Enterprises. M&C Enterprises operated
Greyhound's Atlanta terminal only from 31 August
through 13 September 1987. On 15 September 1987, su-
pervision of the Atlanta terminal was undertaken by Jim
Ferguson. Ferguson had been asked by Greyhound to
run the facility until Greyhound found a commission
agent to replace M&C Enterprises. For tax purposes Fer-
guson ran the terminal as Atlanta Bus Depot, with Tom
Fox listed as commission agent. Fox is the commission
agent for Greyhound's Marietta, Georgia terminal.
On 17 January 1988 Respondent took over as commis-
sion agent of Greyhound's Atlanta terminal.
On 19 January 1988 the Union wrote Respondent de-
manding recognition and bargaining. On 5 February 1988
Respondent rejected the Union's demand stating that it
had a "good-faith doubt that your organization repre-
sents an uncoerced majority."
Respondent contends that it is not a successor employ-
er and, for that reason, has no obligation to recognize
and bargain with the Union.
In its answer and at the hearing Respondent admitted
the allegations of the complaint as to the filing of the
charge, the commerce information, and Respondent's ex-
istence as an employer within the meaning of Section
2(6) and (7) of the Act, and that the Charging Party,
Amalgamated Transit Union, Local Union 1600, AFL-
CIO (the Union), is a labor organization.
The Union was certified as exclusive collective-bar-
gaining representative of the following unit of employees
of R&W Travel Corporation on 4 June 1987.
All full-time and regular part-time platform work-
ers, ticket agents, fuel technicians, package express
agents, baggage agents, custodial employees, tracing
agents, and porters employed at the International
Boulevard, N.W., Atlanta, Georgia, Greyhound bus
terminal but excluding all office clerical employees,
guards, and supervisors as defined in the Act.
Following the Union's 6 June 1987 demand on R&W
Travel to commence negotiations the Union and R&W
Travel met and engaged in negotiations. However,
before they reached an agreement, R&W ceased oper-
ations on 31 August 1987.
The record evidence illustrated that R&W Travel was
the commission agent for the operation of the Grey-
hound terminal in Atlanta. As such R&W Travel operat-
ed the bus terminal and serviced the buses at the termi-
nal. Ticket sales, express package service, ticket and
package information, baggage handling, cleaning the ter-
minal, and cleaning and fueling the buses were included
in R&W Travel 's duties.
James E. Rogers, president of R&W Travel, testified
that as commission agent R&W Travel was responsible
for handling ticket sales, giving counter information,
checking baggage, answering the ticket telephone, fuel-
ing buses, loading bags, doing janitorial work, sorting
package express, loading package express, unloading
buses, receiving and delivering package express, answer-
ing package express telephones, sorting, checking, and
delivering baggage and tracing shipments including pack-
ages and baggage, at the Greyhound terminal at 81 Inter-
national Boulevard, Altanta, Georgia. R&W Travel oper-
ated the terminal 24 hours a day, 7 days a week. The last
payroll for R&W Travel before it ceased operations on
31 August 1987 showed that it employed a work force of
7 supervisors and 49 employees.
Michael Berry of M&C Enterprises, Inc. testified that
he operated Greyhound's Atlanta bus terminal following
R&W Travel. Berry operated the terminal during the
short period from 31 August through 13 September 1987.
Before Berry took operation of the Greyhound terminal,
he was commission agent for the operation for Trailways
Atlanta, Georgia bus terminal.
On 14 July 1987 Greyhound purchased Trailways.
When Berry took over the Greyhound terminal he did
not terminate any of the former employees of R&W
Travel. Berry, however, testified some three or four
"might have quit."
Because Trailways terminal was closed and those op-
erations merged into Greyhound's operations, Berry's
contract with Greyhound required a larger work force
than the work force of R&W Travel. Berry testified the
agreement with Greyhound required at least 73 employ-
ees to operate the terminal 24 hours a day. Berry stated
that he filled the complement of employees by bringing
over employees from the Trailways terminal and retain-
ing the former work force of R&W Travel at the Grey-
hound terminal.
NEW ERA TERMINAL SERVICES
The first payroll of M&C Enterprises at the Grey
hound Terminal shows that 4 supervisors and 45 employ
ees were retained from the R&W Travel operations Ac
cording to Michael Berry s testimony, 3 supervisors and
24 employees were brought over from the Trailways ter
urinal operations One supervisor and 10 employees
appear on the M&C Enterprises payroll that do not
appear on the prior payroll of either the Trailways terms
nal or R&W Travel
Michael Berry testified that no changes were made in
the operation of the terminal during his tenure His tests
mony was that the only thing different may have been
the job classifications of some employees The employ
ees, however, performed the same jobs as were per
formed under agency of R&W Travel '
The above evidence shows that M&C Enterprises2
was the successor of R&W Travel Although the num
bers are close, the employees from the R&W Travel last
payroll constitute a majority of the M&C Enterprises
work compliment Additionally, according to the testa
mony of Michael Berry, which was unrebutted, M&C
Enterprises engaged in substantially the same operations
as did R&W Travel even though that operation included
the merged operations of both Greyhound and Trail
ways See NLRB v Burns Security Services, 406 U S 272
(1972), Louis Pappas Restaurant 275 NLRB 1519 (1985)
On 8 September 1987 the Union wrote Michael Berry
demanding to meet and bargain Berry did not respond
to the Union s letter
After M&C left on 13 September 1987, Greyhound
asked retired Greyhound employee Jim Ferguson to
help manage the terminal function until someone else
could be brought in to operate it
Ferguson testified that he inherited M&C Enterprises
work force Ferguson did not discharge any of the M&C
former employees and he did not immediately hire
anyone He testified that he made no operational
changes A comparison of the first payroll under Fergu
son and the last payroll of M&C Enterprises shows that
all but six of the M&C employees appeared on Fergu
son s payroll Only two of Ferguson's nonsupervisory
employees did not appear on the M&C payroll The
M&C payroll included 79 nonsupervisory employees
Ferguson s first payroll included 75 nonsupervisory em
ployees
As shown above Ferguson operated the terminal
under the name of Atlanta Bus Depot, with Tom Fox
listed as commission agent Fox was the then current
commission agent for Greyhounds Marietta Georgia
terminal According to Ferguson s unrebutted testimony
he ran the terminal as Atlanta Bus Depot for tax pur
poses
The above evidence established that Ferguson operat
ed as a successor employer to M&C Enterprises
' The payroll of M&C Enterprises Inc lists five employees as Glen
cal Although the unit described in the certification excluded office
clerical employees from the unit it is not evident from the record
whether the five listed are office clerical Testimony regarding their
work for R&W Travel shows that perhaps only one person was an office
clerical Margie Street was described as the secretary and not in the unit
Margie Street appeared on the R&W Travel payroll but did not appear
on the M&C Enterprises payroll
2 The M&C payroll is entitled Berry Enterpnses/d/b/a Trailways
1071
On 17 September 1987 the Union wrote Southeastern
Greyhound Lines demanding to meet and bargain The
letter alleged that Southeastern Greyhound was a succes
sor employer to R&W Travel
On 30 September 1987 W J Lambert president
Southeastern Greyhound Lines," wrote the Union as fol
lows
This is to acknowledge receipt of your Septem
ber 17 1987 letter, concerning Atlanta, Georgia
You are incorrect in your statement that South
eastern Greyhound Lines is the successor of R &
W [sic) Travel Corporation
The Atlanta terminal is a commission agency
However, due to the unexpected resignation of the
commission agent, we are temporarily overseeing
the operations until a new commission agent can be
installed
We will, or course, as a matter of courtesy,
advise you the name of the new agent as soon as he
is selected
On 20 November 1987 the manager, Industrial Rela
tions Southeastern Greyhound Lines, wrote the Union
that Robert E Rintz had been selected as agent for the
Atlanta, Georgia terminal Rintz testified that he is presi
dent of Respondent
On 19 January 1988 the Union wrote Robert Rintz de
manding immediate negotiations By 5 February 1988
letter Respondent rejected the Union s demand
In reply to your letter dated January 19, 1988,
please be advised that I have a good faith doubt
that your organization represents an uncoerced ma
jonty of New Era Terminal Services Inc employ
ees in an appropriate unit
Robert Rintz testified that Respondent began operating
the Atlanta Greyhound terminal on 17 January 1988
Rintz testimony illustrated that the operation of the ter
urinal by Respondent was substantially the same as the
operation under the previous employers Although Rintz
expressed doubt that individual job classifications includ
ed the same duties, his overall testimony failed to reveal
substantial differences
A comparison of the first payroll of Respondent and
the last payroll under Atlanta Bus Depot shows that Re
spondent orginally employed some 67 nonsupervisory
employees Fifty nine of those employees appeared on
the last payroll of Atlanta Bus Depot Atlanta Bus
Depot s last payroll included 68 nonsupervisory employ
ees Although the record included some evidence as to
clerical and part time employees, the record did not con
clusively show whether those employees would be ex
cluded from the bargaining unit However, even if all
those employees are excluded-and it is not clear from
the record that they should be excluded since the unit in
cludes clericals other than office clericals and all 'regu
lar part time' employees-the record shows that Re
spondent employed a majority of its original work force
from the employees that formerly made up the unit for
Atlanta Bus Depot
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Conclusion
The Board and the courts have long held that, absent
unusual circumstances, a union enjoys an unrebuttable
presumption of majority status for a period of 1 year fol
lowing certification There was no showing of unusual
circumstances that would justify ignoring the 1 year
rule 3 Therefore, the Respondent was not justified in
contending that it had a good faith doubt as to the
Union's majority The Respondents assertion of a good
faith doubt was made on 5 February 1988 which is well
within the year following the Union's certification on 4
June 1987 It is immaterial whether a respondent has
doubts as to the union s majority status during the certifi
cation year (IMS Mfg Co v NLRB 813 F 2d 113 (6th
Cir 1987), NLRB v Blu Fountain Manor, above Cf
Harley Davidson Co, 273 NLRB 1531 (1985), in which
the Board affirmed the certification year rule but permit
ted an employer to overcome a presumption of majority
status when the 1 year had lapsed)
Nevertheless while the existence of a good faith doubt
is immaterial , the question of majority status is material
in the context of the successorship issue The Supreme
Court has established in NLRB v Burns Security Services,
above, the criteria for determining whether an employer
is a successor The overriding question concerns the
issue of continuity of the employing industry Here nu
merous criteria in that were clearly satisfied For exam
ple, all four employers continued the same business in
the same location using the same hours of operation
Each of the employers performed similar functions in op
erating the Greyhound terminal at 81 International Bou
levard, Atlanta Georgia After Greyhound purchased
Trailways the Trailways Atlanta terminal operations
were merged into the Greyhound terminal operations on
31 August 1987 Thereafter the merged operations con
tained at 81 International Boulevard terminal as the
Greyhound bus terminal The operations were conducted
on a 24 hour a day 7 day a week basis by all four em
ployers
In the instant case the question of Respondents re
sponsibility to recognize the Union arose during its initial
period of employment Respondent took over the terms
nal on 17 January 1988 On 19 January 1988 the Union
wrote demanding recognition and bargaining Therefore,
the issues must concern themselves with the Union s
status and Respondents obligation at the time of Re
spondent s initial operation of the Greyhound terminal
As noted above, the Union was certified on 4 June
1987 Negotiations were terminated when the initial em
ployer, R&W Travel, ceased operations However, the
Union continued to contact each successive employer in
an effort to resume negotiations Although negotiations
did not resume none of the employers, before Respond
ent questioned the Union s status 4 Moreover, as shown
s See NLRB v Blu Fountain Manor 785 F 2d 195 205 (7th Cir 1986)
in which the court outlined the circumstances that would qualify as un
usual
4 When Greyhound wrote the Union on 13 September 1987 in response
to the Union s bargaining demand it questioned the Union s assertion that
it was a successor Greyhound however did not question the Union s
status as bargaining representative of the employees of R&W Travel Cor
above the facts show that each employer was a successor
of the immediate preceding employer Therefore under
applicable jurisprudence , the Union continued to enjoy
an irrebuttable presumption of majority status during its
certification year despite the turnover in employers (IMS
Mfg Co v NLRB above NLRB v Blu Fountain Manor,
above The merger of Trailways into the Greyhound op
erations did not sever the Union s status as bargaining
representative ( Western Davis Co, 236 NLRB 1224
(1978), Houston Distribution Services, 227 NLRB 960
(1977)
Immediately before Respondent took over operations
on 17 January 1988, the Union was the bargaining repre
sentative of the unit employees employed by Respond
ent s predecessor
Respondent , as shown above employed a majority of
its unit employees from the work force of its predeces
sor, Atlanta Bus Depot Respondent conducted business
in the same facility as its predecessor , worked the same
hours as its predecessor was party with the same con
tractor (i e Greyhound) as its predecessor , and used
substantially the same work force performing the same
functions as its predecessor I find that Respondent is a
successor employer By refusing to bargain with the
Union as the unit employees exclusive bargaining repre
sentative , Respondent violated Section 8(a)(1) and (5) of
the Act
CONCLUSIONS OF LAW
1 Respondent New Era Terminal Services Inc is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 Amalgamated Transit Union Local Union 1600,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act
3 The Union has been certified as the exclusive bar
gaining representative of all employees in the below
stated unit for purposes of collective bargaining with re
spect to rates of pay wages, hours of work and other
terms and conditions of employment
All full time and regular part time platform work
ers ticket agents fuel technicians, package express
agents, baggage agents, custodial employees tracing
agents, and porters employed at the International
Boulevard, N W, Atlanta Georgia, Greyhound bus
terminal but excluding all office clerical employees,
guards, and supervisors as defined in the Act
4 New Era Services Inc is a successor employer of
the employees in the above described bargaining unit
5 By refusing the Union's request to recognize and
bargain with the Union in the appropriate unit as set
forth above, Respondent, as a successor engaged in, and
is engaging in, unfair labor practices in violation of Sec
tion 8(a)(5) and (1) of the Act
potation at the Atlanta Georgia Greyhound bus terminal at 81 Interna
tional Boulevard
NEW ERA TERMINAL SERVICES
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to recommend
that Respondent be ordered to cease and desist there
from and to take certain affirmative action necessary of
fectuate the policies of the Act
Having found that Respondent as a successor employ
er refused to recognize and bargain with the Union, I
shall recommend that it be required to do so and if an
understanding is reached embody that understanding in
a signed agreement
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed5
ORDER
The Respondent, New Era Terminal Services, Inc,
Atlanta, Georgia, its officers, agents , successors, and as
signs, shall
1 Cease and desist from
(a) Refusing to bargain collectively with Amalgamated
Transit Union, Local Union 1600, AFL-CIO as the suc
cessor employer of the employees in the following de
scribed collective bargaining agreement
All full time and regular part time platform work
ers, ticket agents, fuel technicians, package express
agents, baggage agents, custodial employees, tracing
agents and porters employed at the International
Boulevard, N W , Atlanta Georgia, Greyhound bus
terminal but excluding all office clerical employees,
guards, and supervisors as defined in the Act
(b) In any like or related manner interfering with re
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Recognize and bargain with the aforesaid Union in
the unit described here and, if an understanding is
reached as to the terms and conditions of employment,
embody the same in a written agreement
(b) Post at its place of business in Atlanta, Georgia,
copies of the attached notice marked Appendix 6
Copies of the notice on forms provided by the Regional
Director for Region 10, after being signed by the Re
spondent s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
5 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 pur
poses
6 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
1073
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent 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 Re
spondent 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
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, loin, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT refuse to bargain collectively with
Amalgamated Transit Union Local Union 1600, AFL-
CIO as exclusive representative of our employees in the
unit described below
All full time and regular part time platform work
ers ticket agents fuel technicians package express
agents baggage agents custodial employees, tracing
agents, and porters employed at the International
Boulevard, N W Atlanta Georgia Greyhound ter
urinal but excluding all 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 recognize and bargain collectively on re
quest with Amalgamated Transit Union Local Union
1600 AFL-CIO as the exclusive representative of all
employees inthe bargaining unit discribed above with re
spect to rates of pay, wages, hours and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree
ment
NEW ERA TERMINAL SERVICES, INC