Tricil Resources, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1986

282 N.L.R.B. 588 (N.L.R.B. 1986)

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tricil Resources, Inc. and United Rubber, Cork, Li-
noleum and Plastic Workers of America, AFL-
CIO. Case 8-CA-15085
30 December 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 2 December 1982 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision.
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 1 and briefs and
has decided to affirm the judge's rulings,' fmd-
ings,s and conclusions4 and to adopt the recom-
mended Order as modified-'
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that Tricil Resources, Inc.,
Akron, Ohio, its officers, agents, successors, and as-
signs, shall take the actions set forth in the Order,
' The Board's recent decision in Res-Care Inc., 280 NLRB 670 (1986),
and Long Stretch Youth Home, 280 NLRB 679 (1986), clarified the princi-
ples under which the Board may, in exercising its discretion, decline to
assert jurisdiction over an employer because of its relationship to an
entity exempt from our jurisdiction . Here, however, there were no excep-
tions to the judge's finding that the Board should assert jurisdiction over
the Respondent . Thus, Member Babson would not pass on the discretion-
sty jurisdictional issue in this case . See, e.g., Springfield Transit Manage-
ment 281 NLRB 72 fn. 1 (1986); Gateway Motor Lodge , 222 NLRB 851
(1976).
Although Member Stephens views the issue as one of statutory, rather
than discretionary, jurisdiction, he sees no reason for remanding this case
on that issue, given both the record evidence and the absence of any
claim by the Respondent that control of labor relations by an exempt
entity precludes the Board 's exercise of jurisdiction . See his concurring
and dissenting opinion in Res-Care, supra.
2 The Respondent excepts to the judge 's decision as being tainted with
bias, hostility, and prejudice . We find these allegations to be Without
merit. Upon our full review of the record and the decision of the judge,
we perceive no evidence that he prejudged the case, made prejudicial
rulings, or demonstrated bias, hostility, and prejudice toward the Re-
spondent's counsel . We further find no evidence of partiality in the
judge's analysis and discussion of the evidence.
a Throughout his decision the judge erroneously referred to the prede-
cessor employer as Teletyne . The record indicates that Teledyne is the
correct spelling of the predecessor employer.
4 We agree with the judge 's finding that the steamline men, who had
been included in the Union's contract with the Respondent 's predecessor,
are properly included in the bargaining unit . In so doing, we do not rely
on Grandee Beer Distributors, 247 NLRB 1280 (1980), cited by the judge.
5 The Respondent excepts to the introductory language of the judge's
recommended notice, which asserts that the Respondent violated Federal
law "by illegally refusing to bargain." As we do not find the judge's use
of the word "illegally," evidence of bias or prejudice, as contended by
the Respondent, we shall substitute the standard language that simply
refers to a violation of the Act.
except that the attached notice is substituted for
that of the administrative law judge.
CHAIRMAN DOTSON, dissenting.
In light of the jurisdictional question raised by
the Respondent's contract with the city of Akron,
Ohio, to operate the city-owned steam plant in
question, and its employment of unit employees in
this operation, I would remand this proceeding for
consideration of the jurisdictional issue in light of
Res-Care, Inc., 280 NLRB 670 (1986), and Long
Stretch Youth Home, 280 NLRB 678 (1986).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith on
request with United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO in the bar-
gaining unit described below:
All production and maintenance employees in-
cluding leadperson and supply clerks em-
ployed by us at 225 Opportunity Parkway,
Akron, Ohio, excluding all office clerical em-
ployees, 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 exer-
cise of your right to self-organization, to form,
join, or assist the above-mentioned Union, or any
other labor organization, to bargain collectively
through representatives of your own choosing and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such ac-
tivities.
WE WILL, on request, bargain with the Union on
behalf of our employees in the bargaining unit and,
if an understanding is reached, embody such under-
standing in a signed agreement.
TRICIL RESOURCES, INC.
Nancy Recko, Esq., for the General Counsel.
David A. Shaffer, Esq., and Stephen B. Spollar, Esq., of
Akron, Ohio, for the Respondent.
Paul H. Malesick, Esq., of Akron, Ohio, for the Charging
Party.
282 NLRB No. 84
TRICIL RESOURCES 589
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge . A hear-
ing in this proceeding was held on September 22, 1982,
at Akron, Ohio, on complaint of the General Counsel
against Tricil Resources, Inc. (the Company or the Re-
spondent). The complaint issutd on March 11, 1982, on a
charge filed on August 5, 1981 , by United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO
(the Union). The issue of the case is whether the Re-
spondent unlawfully refused to extend exclusive recogni-
tion to and bargain with the Union on demand. Briefs
were filed after the close of the hearing by the Respond-
ent and the General Counsel.
On the entire record and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Tricil Resources , Inc., a Delaware corporation, is en-
gaged in the business of designing and operating energy
recycling plants at a number of locations throughout the
United States . In the course of its operations, it annually
receives goods valued in excess of $50,000 from points
located outside the State of Ohio. This case is concerned
only with its operations in Akron. I find that the Re-
spondent is engaged in commerce within the meaning of
the Act.
11. THE LABOR ORGAN][ZATION INVOLVED
I find that United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
This is a very simple refusal-to-bargain case. The city
of Akron owns a plant called the Akron Recycling
Energy System, which, using residential-industrial gar-
bage and natural gas as fuel , produces steam that the city
sells to a large number of customers. The city contracts
with a private company to have the plant operated. By
such a contract, a company called Teletyne National
Corporation operated the plant with the workmen on its
direct employment from August 1979 to June 30, 1981.
While the plant was functioning at full capacity, Tele-
tyne had about 70 production and maintenance employ-
ees. In June 1980, after a Boatel-conducted election when
the number of eligible employees was set at 50, the
Union won, and was certified as exclusive bargaining
agent for those employees. Teletyne and the Union then
signed a collective-bargaining agreement on February 1,
1981 , to remain in effect for 3 years.
As the months went, by the machinery that handled,
processed, shredded, and fed the garbage into the plant
boiler began to fail. Little by little less and less garbage
was used effectively and matters reached a point where
that part of the plant which dealt with the garbage
ceased working altogether . The use of gas as fuel never
ceased, continuing right on to the last day Teletyne was
in charge of the plant. In June 1981, the city of Akron
contracted with another company to operate the plant.
The company is called, Tricil Resources, Inc., the Re-
spondent here. Tricil took over on July 1, 1981, and
began to run the plant, as it was still doing at the time of
the hearing 14 months later.
A majority of Teletyne's employees worked in the
processing of the garbage, so that when, in May and
June 1981 , it became clear their work was going to end
because that part of the machinery was simply not work-
ing satisfactorily, those employees were released. By
mid-June , with knowledge it was going to leave the
plant for good, Teletyne was down to about 15 employ-
ees in the bargaining unit for which the Union was bar-
gaining agent. When Tricil took over on July 1 it started
with about 16 employees, all of whom previously had
been employees of Teletyne. But for,two or three other
employees, also former employees of Teletyne, who
were added sometime during the next 6 months, the em-
ployee complement remained the same at least into 1982.
The employees who worked on directly from the first
into the second company were eight engineers, four
maintenance employees , and four steamline men.
On July 2, 1981, the Union requested recognition of
Tricil as bargaining agent for the employees then at
work, on the ground that the new company was operat-
ing the same business with substantially the same work
force as the predecessor. Before the month was out the
Respondent refused to bargain as requested, denying
successorship status . The complaint alleges this refusal to
have been a violation of Section 8(a)(5) of the Act.
The only question presented for decision in this pro-
ceeding is whether when the Respondent refused to bar-
gain with the Union in July 1981, 14 months before the
hearing, it committed an unfair labor practice. Whatever
happened a year or a year and a half after that time, or,
indeed, whatever may happen later in 1983-of which
the Respondent 's sole witness 'spoke at , great length at
the hearing-has nothing to do with whether Tricil vio-
lated the Actin mid-1981.
Board law is clear . When a second company takes
over the operations of a predecessor ,, continues to carry
on the same business , in the same plant and location, and
hires the employees who had worked for the first com-
pany, continues to use the same supervisors , ' and pro-
duces the same product going to the same customers,
there is, a presumption of continued majority status, and
the new company is, under this statute, obligated to bar-
gain,with the union that represented the, employees while
the first company did the business . Burns Security Services
v. NLRB, 406 U.S. 272 (1972). And it matters 'not that
the total number of employees involved is greatly re-
duced; the presumption of continued majority among the
lesser number continues on. Lloyd A. Fry Roofing Co.,
176 NLRB 10,25 (1969). 1 fmd that is what happened in
' The parties stipulated that Ralph Iacono , plant manager under Tele-
type, continued in that position when the Respondent assumed the oper-
ation. Don Peterson, maintenance and operations supervisor under Tele-
tyne, serves as the Respondent's maintenance supervisor . Joseph Homeni,
steam line crew supervisor under Teletyne , continues in that position for
the Respondent.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case and that the complaint is therefore affirmatively
proven as of July 1981.
A number of assertions are advanced in defense, none
of them valid. It is said Tricil is not in the same business
as was Teletyne, but the plain facts completely contra-
dict the contention . This plant, with a single large boiler,
produces steam that goes out to customers in under-
ground pipes spread over the city of Akron, and for
which the customers pay the city directly. The plant
always did this and it is still doing that today. It used
two kinds of fuel-garbage and natural gas. The machin-
ery that prepared the garbage for burning in the .boiler
failed, was shut down, has slowly been removed and is
being replaced, with expectations that by the end of 1982
garbage can again be burned here in the successful pro-
duction of steam . During 1979 and 1980 gas alone was
used to run the plant at least 30 percent of the time. The
regular employees who were released in May and June
1981 , albeit a large number, were the lesser skilled men
who handled garbage , doing such work as unloading,
shredding, cleaning up , etc. It is clear that with the use
of, gas instead of garbage the overall machinery works
by itself, needing only engineers and maintenance men.
This is all that happened when the Union demanded con-
tinued recognition of the successor. And the responsibil-
ity for so running the plant-with the sole use of gas,
was under a complete , separate contract Tricil made
with the city in June 1981, obligating it to continue that
straight operation to the end of 1982-a year and a half
in the future.
The attempt to distort this plain picture-and to say
that the old business is no longer identifiable-rests on
the fact Tricil entered into a totally separate contract
with the city of Akron to design and later construct new
side machinery in the plant for the purpose of again re-
cycling garbage one day. Under that different agreement
Tricil's scientists and construction engineers spent a
number of months-from July to the end of 1981-on
drawings and' designs conceptually conceived to improve
the machinery. None of the new equipment needed to
put up a new garbage consumption operation began to
arrive at the plant until January 1982. When Tricil en-
tered into that contract-to design and put together a
new garbage recycling plant-it was specifically agreed
that that work would require 18 months, until January 1,
1983 . Meanwhile it was understood Tricil would ' just go
on fulfilling its separate contract to operate the plant
only with gas, as it in fact has been doing since July
1981. There is no relationship at all between the business
of running the steam production plant for 18 months
with gas and the business of designing changes in the
plant for the future. More significantly, insofar as this
case is concerned it is not even claimed that the employ-
ees used by Tricil to run the regular steam producing
business were ever intermingled with those that may be
working on new engineering construction . The two
"businesses" have nothing to do with one another.
Nor is there any merit in the argument that because
the customers of the city-those who pay the city for
the steam they buy-have been reduced, Tricil is not a
successor as the Board decisions hold. There were about
them was the Goodrich Company and Akron University.
Ralph Iacono, manager first with Teletyne and then
holding the same position without interruption for the
successor, grouped the rest of the customers under the
phrase "central business district, " and called it one cus-
tomer. He was exaggerating; the reality is, as the record
shows, that in the business district of the city, where the
steampipes run, there are all kinds of purchasers-stores,
plants, apartments, hospitals, etc. Iacono did say, and he
was not contradicted, that Goodrich and Akron Univer-
sity were the largest customers, at times using up to 40
to 50 percent of the total output of the plant. But the
fact is they were not two out of a total of three custom-
ers. What is more revealing is that the meter readers,
also called pipeline maintenance men, all of whom
worked before and remained at the same work with the
Respondent, continued to read meters and make reports
on consumption as they had always done. This means
that whatever their separate sizes, all the 148 customers
in the business district continued to constitute a very
major portion of the total operation.
Another contention in support of the conclusionary
idea that the bargaining unit as it existed under Teletyne
is no longer recognizable , is the argument that a majority
of the former employees taken on right away by the Re-
spondent- were not, or at least may not now, be deemed
as properly included. There are eight engineers and four
so-called "steamline men." The steamline men, like the
engineers, were always included in the Union's contract.
It is not only too late to try to take them out now,2 but
it is also not true that they do not properly belong there.
The major part of the work performed by the steamline
men is done off the plant premises; they go around in-
specting the steamlines; looking for leaks, making repairs
when necessary, and reading meters regularly. They
keep a timecard record of their hours as do the plant em-
ployees, and, when necessary, come to the plant for
parts, to repair their equipment , or even to do overtime
work inside the plant when convenient. They even do
regular work in the plant at times. From the general
manager's , testimony: "Oh, during a shutdown, they [the
steamline men] may have been called in to do some work
related to the valves, packing valves, repairing pipeline,
that type of thing." There is absolutely no reason for
saying the steamline men are not an integral part of the
appropriate bargaining unit.
To further bolster the contention that the business has
changed and that the successor is not really using the
predecessor's employees in substantial numbers, the Re-
spondent also says the engineers who previously worked
as regular employees included in the bargaining unit
were changed into supervisors. There is literally no evi-
dence supporting that position. Four of those men-now
called assistant engineers but previously called shift-
helper engineers-operate the machinery during their
shifts, as do the regular engineers , and as both groups
have always done. It is not even claimed they have occa-
sion to exercise direct supervisory authority over any-
body. They were licensed engineers when working for
150 customers when Teletyne ran the plant. Among a Grandee Beer Distributors, 247 NLRB 1280 (1980).
TRICIL RESOURCES
Teletyne and are licensed now. The- Company says they
were not required to be licensed before but now are so
required . Ergo, according to a leading question put to
Manager Iacono by Respondent's counsel, "even though
they were licensed, [they] were not employed in a li-
censed capacity." How the employer's mental operation
alters the status of an engineer , the lawyer did not ex-
plain. The men do the same work as before, monitoring
the machine operations; they also prepare steam produc-
tion log sheets , water quality reports, operations data
lists, purchase production records, etc . None of that
work touches upon their relationship with other employ-
ees, or in the least indicates supervision over others in
the statutory sense . After the takeover, Tricil gave, these
men a 9-percent raise in pay . Also, as it did with all of its
other employees, it gave them new fringe benefits, such
as dental, medical, and life insurance. As the General
Counsel correctly states in her brief "... any change in
the job duties of employees in the engineering classifica-
tion deals most basically with their handling of machines
and not other employees."
One more claim, a bit fanciful, will be enough. Two of
the customers for the steam produced are hospitals in
Akron. Steam failure there , I suppose, could be a greater
inconvenience than in a commercial establishment. Be-
cause the engineer on watch during a shift must do his
best to see that the boiler does not fault , and the hospi-
tal's supply of steam is not cut off , he has a great respon-
sibility in the servicing of that customer . Does this fact
of itself help prove he is a supervisor? Quoting company
counsel: "They [hospitals] need steam more than a pizza
shop would need steam . A hospital is certainly more im-
portant . It's important that the operating engineer be
clocked with greater authority' to make 'sure that the hos-
pital receives steam." "He has to have the authority to
ensure uninterrupted steam delivery to crucial custom-
ers." Again, from the Respondent's brief: ". . . the engi-
neers, being the only employees with operating duties in
the plant during their shift have a sole responsibility for
operating; a highly complex facility that has the potential
of causing great harm in the case of faulty performance."
I think it best to leave such fantasy unanswered.
I find that on July 30, 1981, when the Respondent re-
plied to the Union's demand for recognition with an out-
right denial , it violated Section 8(a)(5) and (1) of the
Act. By September 1982, 15 months later, the Respond-
ent had added only three more employees to its 1981
complement in the appropriate bargaining unit. Even
then, 16 of its total complement of perhaps 21 or 22 were
production and maintenance employees formerly em-
ployed by the predecessor.
IV. THE REMEDY
It having been found that the Respondent violated
Section 8(aX5) and (1) of the Act, it will be recommend-
ed that the Respondent cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act. It has been found that the Respond-
ent refused to bargain with the Union, which represented
a majority of the employees in an appropriate bargaining
unit. Accordingly, it will be recommended that ,the Re-
spondent be ordered to bargain, on request, with the
591
Union as the exclusive representative of the employees in
the appropriate unit.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth above, oc-
curring in connection with the operations of the Re-
spondent described above, have a close, intimate and
substantial relationship to trade, traffic , and commerce
among the several States and tend to lead and have led
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
CONCLUSIONS OF LAW
1. All production and maintenance employees , includ-
ing leadpersons and supply clerks employed by the Re-
spondent at the facility located at 225 Opportunity Park-
way, Akron, Ohio, excluding all office clerical employ-
ees, guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
2. At all times material, the Union has been , and still
is, the exclusive representative of the employees in the
aforesaid unit for the purposes of collective bargaining,
within the meaning of Section 9(a) of the Act.
3. By refusing in July 1981 to bargain collectively with
the Union as the exclusive representative of its employ-
ees in the appropriate unit, the Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
eds
ORDER
The Respondent , Tricil Resources, Inc., Akron, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain concerning rates of pay , wages,
hours of employment, and , other conditions of employ-
ment, with United Rubber , Cork, Linoleum and Plastic
Workers of America, AFL-CIO as the exclusive repre-
sentative of all employees in the bargaining unit found
appropriate above.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
right to self-organization , to form, join, or assist the
above-named Union, or any other labor organization, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
8 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.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following 'affiimative action necessary to
effectuate the policies of the Act.
(a) On request bargain collectively in good faith with
United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, as the exclusive representative of
all employees of the Respondent in the appropriate unit
described above.
(b) Post at its place of business in the Akron Recycling
Energy Plant , in Okron, Ohio, copies of the attached
notice marked "Appendix."4 Copies of the notice, on
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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
forms provided by the Regional Director for Region 8,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(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.
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."