W. Q. T., Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1981

254 N.L.R.B. 816 (N.L.R.B. 1981)

DFCISIONS OF NATIONAL LABOR RELATIONS BOARD
W. Q. T., Inc. and General Warehousemen Local
598, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 31-CA-9141
January 26, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On September 19, 1980, Administrative Law
Judge George Christensen issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief. The
Respondent also filed a motion requesting the
Board to dismiss the General Counsel's exceptions,
and the General Counsel filed an opposition to the
motion. The Respondent's motion is denied.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge2 and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
i Due to error, the Respondent's coiunsel wsas not originally served
with a copy of the General Counsel's exceptions, although the Respon-
dent as a company was sent a copy hy ordinary mail. Upon counsel's in-
quiry, he was promptly sent a copy of the exceptions and was granted ill
extension of time to respond. We see no prejudice to the Respondent by
reason of the error.
2We agree with the Administrative l.a Judge's findings that the Re-
spondent was not a successor to Western Quarry ile, and that the Rc-
spondent's own volume orf business did not satisfy the Board's standards
for asserting jurisdiction. As the coimplaint ill he dismissed fir lack of
jurisdiction, we finld it unnecessary to consider the merits of the 9la)(3)
and (5) allegations of the ciomplaint
DECISION
STATEMINT OF THEI CASE
GEORGE CHRISTENSEN, Administrative Law Judge:
On February 21 and 22, 1980, 1 conducted a hearing in
Los Angeles, California, to try issues raised by an
amended complaint issued on August 30, 1979,1 and
amended on December 12 and January 14, 1980, based
Read 1979 after all further date references ormittinig the year
254 NLRB No. 98
on a charge filed by General Warehousemen Local 598,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, 2 on June 28.
The complaint alleged that W. Q. T.,3 an alleged succes-
sor of Western Quarry Tile, Inc., 4 violated Section
8(a)(l), (3), and (5) of the National Labor Relations Act,
as amended (hereinafter called the Act), by refusing to
yield to the Union's demand that it grant seniority for
purposes of layoff, recall, vacation, etc., to any of West-
ern prior to going on strike against that employer.
WQT denied it was a successor employer to Western,
denied it met the Board's jurisdictional standards for
nonretail enterprises, conceded it refused to yield to the
union demand stated above, and denied it violated the
Act.
The issues are:
1. Whether WQT was a successor to Western within
the meaning of the Act.
2. Whether WQT met the Board's jurisdictional stan-
dards.
3. Whether WQT violated the Act.
The parties appeared by counsel at the hearing and
were afforded full opportunity to adduce evidence, to
examine and cross-examine witnesses, and to argue and
file briefs. Briefs were filed by the General Counsel and
WQT. 5
Based upon my review of the entire record, observa-
tion of the witnesses, perusal of the briefs, and research,
I enter the following:
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
that at all pertinent times the Union was a labor organi-
zation within the meaning of the Act.
The facts concerning the issue of whether the Board
has or should exercise jurisdiction over WQT are inter-
twined with the successorship issue; the jurisdictional
issue shall be determined after, and on the basis of, factu-
al findings entered below.
1. THE FACTS
Between 1965 and April 2, 1979, Western operated a
plant located at 2428 Dallas Street, Los Angeles, Califor-
nia, which produced glazed and unglazed clay tiles.
Marcel Hoessly owned and managed the business. He
employed supervisory, sales, production, and mainte-
nance personnel in his operations. The jobs performed by
the production and maintenance employees were inter-
changeable; they did not have specific job titles nor reg-
ular, assigned duties; no seniority system was followed or
employed; and the employees in question mixed batches
lereinafter called the Union
:' Hereinafter called WQ I
lereinaftcr called Western
' WQl' movcd for permission to file a reply brief to cite a pertinent
case lecisioll shich issued after cross-hriefs were filed aid to correct al-
leged isstatements aCnd errors in the General Counsel's brief The
mnotlon is granlted
816
W. Q. T.. INC.
of clay, filled molds, sprayed tiles, loaded and unloaded
kilns, packed tiles for shipment, etc.
On May 15, 1978, the Board issued a certification find-
ing that a majority of Western's production and mainte-
nance employees cast votes, in a secret- ballot election
previously conducted by the Board, for representation
by the Union for the purpose of bargaining collectively
with Western concerning their rates of pay, wages, hours
and working conditions. 6
Between July and October 24, 1978, representatives of
Western and the Union met a number of times to negoti-
ate an agreement. Western was represented in the negoti-
ations by Hoessly and District Manager of the California
Association of Employers James Richardson,7 of which
Western was a member. The Union was represented by
Maurice Feldman, organizer. 8 On the latter date, West-
ern had 13 production and maintenance employees in its
work force.
On October 25 the Union called and the 13 production
and maintenance employees participated in a strike
against Western in support of the Union's contract de-
mands. The strike (and picketing of Western's premises)
continued through April 2.
In the year preceding October 25, 1978, Western sold
tiles valued at $416,539; $107,536 of those sales were
made to customers located outside of the State of Cali-
fornia. Western attempted to continue its operations be-
tween October 25, 1978, and April 2 with a reduced
work force; during the period in question, its gross sales
were $158,796, of which $6,034 were made to customers
located outside of California.
At the end of the year, Hoessly decided to sell the
business and negotiated its sale to Walter Oleson. Hoess-
ly and Oleson agreed to close the sale on April 2. Prior
to consummation of the sale, Oleson visited the plant fre-
quently, observed the production process, acquainted
himself with the market Western served, and was fully
advised concerning the Union's certification, Western's
negotiations with the Union concerning contract terms,
the strike, and the picketing (Oleson also observed the
union pickets on his various visits to the plant).
Oleson purchased the business with the intention of in-
stalling a number of laborsaving machines and producing
more standard, uniform tiles than the tiles Hoessly pro-
duced. He believed that by automating the tilemaking
process he could meet or exceed Hoessly's production
with about half the production and maintenance force
Hoessly employed. With this in mind, he purchased and,
with Hoessly's consent, stored a ram press machine at
the plant in January. He subsequently purchased an ex-
truder, a clay mixer, and electrical components needed
for the operation of the machines. Prior to consummat-
ing the purchase, Oleson formulated plans for the
number of production and maintenance employees he
would hire and the rates of pay, wages, hours, and work-
ing conditions he would offer them; he planned to hire
seven production and maintenance employees (one lead-
6 Case 31-RC-4095.
7 Richardson acted as Western's spokesman
8 I find at all pertinent times Hoessly and Richardson ere agcnrt of
Western ad Feldman was an agent of the Ition ithin the mcanilllng of
Sec 2 of the Act
man over the casting and glazing crews, one caster and
one caster helper, one glazer and one glazer helper, and
one batcher and one ram press operator); to pay the
glazer, caster, and press operator between $4.75 and $6
per hour, to pay the batcher between $4.25-$4.85 per
hour; to pay the helpers between $3-$3.40 per hour; and
to pay the leadman 25 cents more per hour than the top-
rated caster or glazer. He also planned to offer I week of
vacation after I year of service and 2 weeks after 2
years; seven paid holidays a year; 5 days of sick leave
after I year of service; hospital and surgical insurance
coverage after 60 or 90 days of employment (he was un-
decided which waiting period to set until he checked out
some plans); and credits toward vacation, etc., dating
from each employee's hiring date. He also decided to
hire individuals as and when they applied, to require
each applicant to submit a job application, and to offer
each applicant who he was satisfied could meet his job
needs of employment at the rates of pay, etc., he had for-
mulated. Oleson neither sought nor secured any informa-
tion from Hoessly concerning the rates of pay, hours,
and working conditions of Western's production and
maintenance employees and independently determined
the rates of pay, hours, and working conditions he in-
tended to offer.
In March Oleson caused WQT to be formed. On April
2 Oleson signed a sales contract with Hoessly wherein
Oleson as an individual purchased Western's goodwill,
inventory, assets (including Western's office and shop
equipment, tools, machinery, leasehold improvements,
etc.), and the right to do business under Western's name;
Oleson expressly negated the assumption of any of West-
ern's liabilities or obligations; and Hoessly agreed not to
compete with Oleson within southern California for a 3-
year period. Oleson at the same time negotiated and ex-
ecuted a 5-year lease on the premises housing Western's
business. Following execution of the sales and lease con-
tracts, Oleson conveyed his interests therein to WQT.
The same day (April 2) Oleson posted a notice outside
the plant advertising: (1) A new owner, WQT, was com-
mencing business as a tile manufacturer at the premises;
(2) the new owner was hiring and invited anyone inter-
ested in a job to file an employment application; and (3)
the new owner was interested in hiring employees with
prior experience in the business. The notice was written
in English. The next day Oleson posted a second sign
containing the same information written in Spanish.
There were pickets present on both days (and on each
day subsequent through January 1980) and they inspect-
ed the signs. On the latter date Richardson also sent a
letter to the Union notifying the Union that Hoessly sold
his business on April 2.9
Prior to commencing operation of the business, Oleson
offered Malcolm Saucier, who had previously been em-
ployed by Western as a supervisor, employment by
WQT as a supervisor at the same wages he received
from Western and the fringe benefits recited hereto-
" tcssl inl'irm d Richlrdson prior to April 2 he was sellitig the
hulinc, I ()itslr Rich;lrdl.,in proinlpll: corillatcd ()le- n and pcrslladcd
hiill to j ITi ;1irld allthori/c tih Calitlrnlil A'.O llltiin of i rnpl)e rs to rp-
reseil 'S( t frillit .itd afer \Npril 2
817
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore. ' Saucier accepted and began work on April 2. On
the same date, Oleson offered his brother, David Oleson,
employment as a glazer, at the glazer rate of pay and the
aforementioned fringe benefit levels. David (hereinafter
called D. Oleson) accepted and also began work on
April 2.
While the Union continued to picket the premises after
WQT commenced its operations on April 2, none of
Western's employees applied to WQT for employment
between April 2 and 16. On the latter date, WQT began
to run a help-wanted ad in a local newspaper.
On April 17, John Herrmann was hired as a caster at
the caster rate of pay and fringe benefit schedules de-
scribed above, after filling out a job application and scru-
tiny of his references and employment history.
On April 23 Kil Song Chin was hired at a $6 per hour
rate of pay (the record does not show what job classifi-
cation he was assigned) and the fringe benefit schedules
previously described, after filling out a job application
and scrutiny of his references and employment history. '
On either April 23 or 24,12 Gilberto Chavez was hired
as a helper after filing a job application and accepting an
offer of the helper wage rate and other benefit schedules
set out above.
On the former date (April 23) Oleson received his first
contact from the Union. 3 Feldman identified himself
and asked Oleson if he were willing to meet and negoti-
ate with the Union. Oleson stated he was prepared to do
so,'4 and the two agreed to meet on May 3.
On the following day, April 24, one of Western's
former employees who had been picketing the plant
since WQT began its operations, Ernesto Arosegoi, ap-
peared and asked for a job. When Oleson asked him to
fill out a job application, however,' 5 Arostegoi refused
to fill out the application, stated the Union instructed
him not to sign anything, and said he would come back
later. He never returned. No other former Western em-
ployee ever appeared and applied for work.
On April 25 Marvin Adams was hired as a caster, after
filing a job application and accepting an offer of the
caster wage rate and other benefit schedules set out here-
tofore.
On June 9 another brother of Oleson's, Gregory
Oleson (hereafter called G. Oleson), was hired as a
batcher, after filing a job application and accepting an
"' Olesonl needed an experienced supervisor to direct the casting and
glazing operations and to operate the kilns.
" Chin worked I day (April 24); he failed to report for work there-
after.
12 Oleso testified he interviewed and hired Chavez on April 23, while
his job application is dated April 24.
I: Olesoll testified Feldman contacted him by telephone that date
Feldman testified he visited the plant and made personal contact with
Oleson I find it unlnecessary to resolve the conflict, since both agree the
contact occurred on April 23 and both agreed on the substance of their
conversation
J4 Olesn explained that, while he was aware none of WQT's eploy-
ees formerly were employed by Western and he had no idication any of
WQT's employees designated the Union as their representative for collec-
tive-bargaining purposes, he agreed to meet and negotiate with the lUnion
in the hope lie could bring the picketing to an end.
r The onrily ilformation lioessly left Oleson concerning Western's emn-
ploycees 5was a list of their names and social security numbers; Olesorn had
no knowledge of w hich jobs they performed. the skills they possessed or
their wage rates etc.
offer of the batcher wage rate and other benefit sched-
ules set out above.
On June 24 Diego Chiriboga was hired as a helper,
after filling out a job application and accepting an offer
of the helper wage rate and other benefit schedules set
out above.
With the hire of Chiriboga, the work force, contem-
plated by Oleson prior to WQT's commencement of op-
erations, was practically complete (except for a ram
press operator, which position was not filled because the
press was not yet operable, and a leadman).
In early July, due to financial problems, WQT shut
down its operations and laid off all its production em-
ployees (Adams, Chavez, Chiriboga, Herrmann, D.
Oleson, and G. Oleson) as well as its supervisor (Sau-
cier). When it resumed reduced operations in late July,
only D. Oleson, G. Oleson, and Saucier were recalled.
Between late July and February 22, 1980 (the date the
hearing closed), these three constituted WQT's entire
work force.
During its operations between April 2 and the date of
the hearing (February 21, 1980), WQT utilized the same
office and shop facilities Western employed in operating
its business; used the same tools, equipment, machinery
(with some added new machinery), and materials (ex-
hausting Western's materials inventory and replenishing
those materials by purchase from the same suppliers
Western bought from); produced the same product
(glazed and unglazed clay tiles); sold a substantial
amount of the tiles it produced to the same customers
Western had; and billed its customers on invoices con-
taining either the heading "Western Quarry Tile" or the
heading "Western Quarry Tile-by WQT, Inc." With
one exception, 6 none of Western's production and main-
tenance employees made any effort to secure employ-
ment with WQT. WQT neither knowingly offered'" nor
placed into effect any of the wages, hours, or working
conditions Western's employees received prior to going
on strike, and WQT's work force never included any of
Western's production and maintenance employees.
While WQT, in response to the General Counsel's sub-
pena, produced at the hearing its sales records for the
period April 2, 1979-January 31, 1980, the General
Counsel introduced into evidence only those invoices
showing WQT's sales between April 2 and September
30, a 6-month period. The introduced records show that
during that 6-month period, WQT's gross sales were
$96,722, of which $1,110 were sales directly to customers
located outside the State of California. The records do
not show what proportion of those sales were made to
customers who in turn did business with customers out-
side the State of California (nor, as to any such custom-
ers, the value of the business they transacted with their
customers located outside the State of California). The
records introduced into evidence establish, during the
' Arostegi.
7 As noted ahbio, ()lesrrt was rlot acquainlcd with the 5wagcs, rates of1
pay, hurs, ad w rking clditll os f Westcrn's production and mainte-
iance emplyces anrid. therefore, ally iriliarit) between Ihe wage rates,
etc he ist lituted for WQ 'l s eniployces and tIhese tof Western's eriply-
ecs would be accidenltal Western's rates of pay, etc. were not intrioduced
for conmparisot purploses
818
W. Q. T., INC.
same period, WQT purchased materials valued at
$11,242. Oleson testified those materials were purchased
from suppliers located inside the State of California. The
record does not reflect whether those suppliers made
purchases from suppliers outside the State of California,
nor, if so, in what amount.
Pursuant to Feldman's request, WQT and the Union
met on May 3, 10, 15, 21, 23, and 30 and on June 5, 11,
12, 18, 21, and 28. WQT was represented by Oleson and
Richardson. Richardson acted as WQT's spokesman.
Jules Sanford, a friend of Oleson's, attended the first two
meetings, but none thereafter. The Union was represent-
ed throughout by Feldman, who acted as its spokesman.
Feldman was accompanied at several meetings by union
representatives John Gilligan and Louie Andretti. t'
At the commencement of negotiations, Feldman re-
quested the parties resume negotiations at the point
Western and the Union were immediately prior to the
strike. Richardson declined, stating WQT was not West-
ern's successor, it was a smaller and different operation,
and it did not consider itself bound by any agreements
made by Western. Richardson suggested Feldman furnish
WQT with any proposals the Union wanted WQT to
consider. Feldman declined to do so. The parties eventu-
ally agreed to utilize language contained in a document
labeled, "Proposal-Western Quarry Tile and Teamsters
Local 598" and language contained in the Union's cur-
rent contract with the Los Angeles Warehousemen's As-
sociation as a basis for discussion. The parties first dis-
cussed noneconomic issues, reaching tentative agreement
on a number of provisions, including language contained
in the recognition provision of the Union's contract pro-
posal to Western (substituting WQT, of course, for West-
ern, as the Employer party) and a modification of the
language of the seniority provision of the Warehouse-
men's contract reading:
Seniority rights for employees shall prevail under
this Agreement and all agreements supplemental
hereto. Seniority means length of continuous service
without a break from the employvee's last dalte of
hire. 19
For the same reason, Richardson proposed (and Feld-
man accepted) a WQT proposal that the parties expressly
agree, on adoption of the language of article XXXII, sec-
tion 1, of the Warehousemen's contract, 20 that only the
" I find on such 'ccasions Gilligan and Andrelli were agents acting
on behalf of the Union within the meaning of Se 2 f the Act
"' The italicized language was proposed by Richardson and accepted
by Feldman; it was sought by WQT to insure anl frmer Western em-
ployees who sought and secured employment with WQT ould have se-
niority rights equal to those formulated hy WQT prior t1 commencing
operations and offered and accepted by its current enmployees
2' The section reads as follows:
Title-Maintenance of Rates of Pay and Monetary tenefits- lan-
guage- Any employee covered by this Agreement who, prior to the
effective date of this Agreement, Was receiving a higher rate f pa;
or a higher differential rate of pa; Ithan the rates required hby the pre-
vious agreement, shall continue t rceive such favorable rate or dif
ferential rate of pa ilas ilg as tlere is no change in the classification
of the work he is performing Thle pros iin shall include hut ti, h
limited io a, \.g rates, holidaN pal iand lacaltiL) ll l;l All ohtiler mnllC-
tary benefits shall he cnlinued
wage scales, benefits and conditions established by WQT
from and after April 2 would be preserved in the future.
By the June 12 meeting, the parties had settled on the
language of provisions of a prospective contract between
them governing noneconomic issues. On that date, Rich-
ardson presented WQT's proposals on economic issues
(wages, holiday pay, vacation pay, etc.). At some point
during the ensuing discussion, a union representative
asked how many employees WQT needed and how the
prospective contract would affect any of Western's
former employees who were hired. In response to the
former, Oleson stated WQT needed about one or two
more employees (within the production and maintenance
categories) and, in response to the latter, Richardson
stated, since WQT had no information concerning West-
ern's former employees other than their names and social
security numbers, WQT would accept employment appli-
cations from any of Western's former employees who de-
sired employment by WQT, would accord such appli-
cants preferential hiring status in jobs their applications
indicated they were qualified to perform, and any former
Western employee hired would have seniority for all
purposes, including vacations, from his date of hire by
WQT, in accordance with the language the parties had
agreed to for the seniority and maintenance of standard
provisions of their tentative agreement. The Union re-
jected WQT's economic proposals, contended the words
"from the employee's last date of hire" agreed upon in
the former provision meant the employee's last date of
hire by Western, and expressed concern over the effect
the agreed-upon language had on the vacation entitle-
ment of any former Western empioyee hired by WQT.
Richardson then proposed granting any former Western
employee hired by WQT a "service credit," for vacation
purposes only, based on his total service with Western,
to be added for vacation purposes at the end of 1 year of
service with WQT (and in subsequent years). The Union
objected (since the employee in question would then lose
credit for the period dating from the date of his last day
of employment by Western to the date he was employed
by WQT), and proposed such an employee receive a
prorated vacation on each anniversary date following his
date of hire by WQT based upon a service period dating
from his last date of hire by Western. Richardson accept-
ed the proposal. At the next to the last meeting (on June
21), the Union announced it was going to file a refusal-
to-bargain charge against WQT unless it adopted the
Union's interpretation of the seniority provision, granting
seniority for all purposes, including layoff and recall, to
any former Western employee, from the date he was
hired by Western rather than the date he was hired by
WQT. Richardson responded WQT was required by law
to bargain over the language and interpretation of a se-
niority provision covering WQT's production and main-
tenance employees, but it was not required to agree to
the Union's proposal with regard to those subjects, and
that it had bargained in good faith.
At the final meeting (June 28), the parties agreed they
had reached an impasse on the issues of seniority, over-
time, and the right of management personnel to perform
819
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production and maintenance work. There were no meet-
ings scheduled or held thereafter.
The Union removed its pickets at WQT's premises in
January 1980.
III. ANALYSIS AND CONCLUSIONS
A. The Successorship Issue
While it is clear from the foregoing WQT produced
and sold the same products Western produced and sold,
glazed and unglazed clay tiles; used the same premises,
tools, and materials and most of the same machinery and
equipment Western utilized in manufacturing those prod-
ucts; utilized Western's name and good will in its busi-
ness operations; and sold its products to a substantial
number of Western's customers; it is likewise clear WQT
decided, prior to commencing its operations, to formu-
late its own wage rate and fringe benefit schedules,
hourly and other conditions of employment, without
knowledge or regard for the wage rates, benefits, hours,
and working conditions of Western's employees; and to
offer employment to qualified individuals as and when
they filed employment applications, met the qualifica-
tions desired, and accepted the wage rates, benefit sched-
ules, hours, and other working conditions previously de-
termined, including any individuals formerly employed
by Western; and that only one of Western's employees
sought employment by WQT and refused to complete an
application, so WQT's employee complement did not in-
clude any former Western employees.
It is settled law a purchaser company has a right to
determine the wage rates, etc., it wishes to offer prospec-
tive employees prior to commencing operation of the
purchased business2 ' and it is equally settled that the
purchaser is not obligated to offer employment to the
employee complement of the company whose business it
has purchased, so long as it did not refuse to hire such
company's employees for discriminatory reasons.22
The General Counsel contends WQT "hired" the pro-
duction and maintenance employees 2 3 who went on
strike against Western on October 24, 1978, when Oleson
agreed, on April 23, to meet and negotiate with the
Union. The General Counsel also relies on the following
exchange between the General Counsel and Richardson
to establish the employees in question were employees of
WQT:
Q. Now is it your understanding that the strikers
were still striking the premises at WQT during the
negotiations?
A. There were people out there picketing. We
did not have any real knowledge as to who all they
were. But some we felt were employees. Some we
felt, you know, were not employees.
Z' Spruce U'p (orlwarion. 209 Nl.RB 194 (1974)
22 N. L.R. . v he Wiliuam J. Burmn Internationul D)tetrri .-Igen, Inc.,
406 U.S. 272 (1972); A.L.R.B l.dwu of IIl Paso, 496 F.2d 117 4lh
Cir. 1974).
2: Thr (General Counsel asserts the UTlit consisted of 14 ernployees
when the strike cnlleliced; the record, hosec er, shoss one cnlploNce
quit the day before the strike commenced The record lso hos seeral
of the striking employees returned 1to A ork for Western prior to 1979 .and
subsequently quit Western's employ
I reject the General Counsel's contention. Findings
have been entered that Oleson, prior to commencing op-
erations, anticipated employing a work force not exceed-
ing seven or eight employees, including a leadman and a
ram press operator; the ram press still was not operable
at the time of the hearing and a leadman never was em-
ployed; Oleson followed the policy, from the inception
of WQT's operations, of hiring individual applicants as
and when they applied for jobs, filled out an employ-
ment application, satisfied him they possessed the apti-
tude, attitude, background, and experience he desired for
whatever jobs were vacant, and accepted his offer of the
requisite wage rate, benefit schedules, etc., he had formu-
lated prior to commencing business; he agreed to meet
and negotiate with the Union in the hope such meeting
and negotiations would result in the cessation of the
Union's picketing activities; and he informed the Union,
in the course of those negotiations, that he only needed
one or two more employees to round out his employee
complement.
On the basis of the foregoing, I find WQT never con-
templated hiring any of Western's production and main-
tenance employees other than whatever number applied
for employment by WQT, filled out employment applica-
tions, satisfied Oleson as to their job qualifications, etc.,
and accepted an offer of the rates of pay, wages, hours,
and working conditions Oleson formulated prior to com-
mencing business; and that, since none of Western's em-
ployees ever so applied, none of them ever became
WQT's employees and never were so considered by
WQT.
As to Richardson's remarks, their meaning clearly is
not that attributed to them by the General Counsel; all
Richardson conveyed was his belief or understanding
some of the pickets were formerly employed by Western
and some of them were not.
A recent Board decision2 4 holds an employer may not
be considered a successor employer for purposes of the
Act when that employer neither contemplates the hiring
nor hires a majority of its predecessor employer's em-
ployees within an appropriate unit, on purchasing and as-
suming operation of the business formerly conducted by
such predecessor.
In the Vantage case, Exxon operated a number of gas
stations on several New York freeways under contracts
with the State of New York and the Jones Beach State
Parkway Authority expiring December 31, 1977. Prior to
the expiration of the contracts, Vantage underbid Exxon
on the contracts and was chosen to operate the stations
under contracts expiring December 31, 1982. Exxon's
employees at the stations in question were covered by a
contract with Teamsters Local 808. In preparation for its
assumption of Exxon's operations, Vantage formulated
wage rate schedules predicated on the Federal minimum
wage and schedules covering other benefits, hours, and
working conditions, and decided to recruit employees on
an individual basis. Its executives posted notices it was
seeking employees to man the stations, ran help-wanted
ads, and visited the various stations, outlining its pro-
: 'anta, ag 'erflui (. p 247 N. RH No 2102 (198 )
820
W. Q T., INC
posed wage, etc., package. By approximately a week
prior to assuming operation of the stations, Vantage had
received and processed job applications and hired a full
employee complement to man the stations. While Team-
sters Local 808 members covered by the Exxon contract
visited Vantage's offices and requested employment and
Vantage responded to Teamsters Local 808's request to
meet with its officials, the members in question rejected
the pay scales offered by Vantage (insisting on retention
of their Exxon wage scales), stated (through a spokes-
man) they would not accept employment with Vantage
unless Vantage recognized Local 808 as their collective-
bargaining representative, and Vantage refused to ex-
ecute a contract with Local 808 covering its employees
at the stations. On these facts, the Board stated:
[W]e find that Respondent's (Vantage's) actions in
regard to the Exxon employees did not violate Sec-
tion 8(a)(1) and (3) of the Act . . the facts estab-
lish that Respondent had decided, before being ap-
proached by Nasti (a Local 808 steward employed
by Exxon) and the Union in early December, on the
wages and terms and conditions it would offer em-
ployees, and that it would not simply hire the com-
plement of Exxon . . . employees then working at
the parkway stations, but would hire employees in-
dividually as they applied regardless of source.
Consequently, Respondent was not a successor em-
ployer to . .. Exxon.... In these circumstances,
Respondent was under no obligation to hire the
Exxon . .. .employees either individually or as a
group 2
WQT's pattern was similar, WQT formulated its wage
and benefit package to offer to prospective employees
prior to commencing operations, without regard to the
wage and benefit package of its predecessor operator,
Western; WQT decided prior to commencing operations
to hire employees individually, without regard to source;
and not a single Western employee sought and secured
WQT employment.
On the basis of the foregoing, I find and conclude
WQT was not a successor to Western for purposes of the
Act.
B. The Jurivdictional Issue
Siemons Mailing Service, 122 NLRB 81 (1958), estab-
lishes the standard the Board has applied in deciding
whether or not to assert its jurisdiction over nonretail es-
tablishments. Under the Siemons standard, the Board will
not assert its jurisdiction unless such establishment has a
combined direct and indirect outflow across state lines
valued at $50,000 or a combined direct and indirect
inflow across state lines valued at the same amount.
Findings have been entered that in the calendar year
preceding the date the Union called and Western's pro-
duction and maintenance employees went on strike (Oc-
tober 25, 1978), Western sold tiles valued at $107,536 to
customers located outside of the State of California. On
the basis of that finding, I find and conclude that at times
pertinent herein Western was an employer engaged in
25 247 N.RB No 202
commerce in a business affecting commerce within the
meaning of Section 2 of the Act.
The General Counsel contends WQT, as a successor to
Western, should be adjudged an employer engaged in
commerce in a business affecting commerce on the basis
of the same proof, inasmuch as Western's employees
were on strike on and after October 25, 1978, and a fair
measure of WQT's business volume, absent the strike and
picketing, may be presumed to reach the same volume.
Since I have entered findings WQT was not a succes-
sor to Western, I shall evaluate the question of whether
WQT meets the Board's standard on the basis of its
volume of business, not that of Western.
The General Counsel chose to limit his introduction of
evidence concerning WQT's business to a 6-month
period extending from April 2 through September 30;
projecting the volumes demonstrated over a 12-month
period, it appears WQT's gross sales would be $193,444,
with direct out-of-state sales valued at $2,220 and its
gross purchases would be $80,856 (adding the value of
initial inventory of materials to materials purchased
during the 6 months, and multiplying by two), all pur-
chased within the State of California.
The above projections fail to satisfy the standard,
either on the basis of the projected value of WQT's out-
flow across state lines or WQT's inflow.
1, therefore, find and conclude the General Counsel
failed to establish by valid evidence WQT met the
Board's standard for assertion of its jurisdiction over
nonretail enterprises and, therefore, the complaint should
be dismissed.
C. The .4lleged Violalion of the Act
Inasmuch as I have entered findings WQT was not a
successor to Western within the meaning of the Act and
the General Counsel failed to prove WQT met the
Board's jurisdictional standards, the complaint warrants
dismissal on those grounds. However, so the Board may
have before it findings on all issues raised in the course
of the proceeding, I shall also consider the complaint al-
legations WQT violated the Act by refusing to yield to
union demands WQT afford any Western employee it
chose to hire seniority dating from the date he was last
hired by Western prior to going on strike against that
employer.
I have entered findings Oleson engaged in contract ne-
gotiations with the Union and tentatively agreed to lan-
guage wherein WQT would recognize the Union as the
exclusive representative of its production and mainte-
nance employees, despite the absence of any basis for a
belief WQT's production and maintenance employees de-
sired representation by the Union, because he wanted to
see if he could reach an accommodation with the Union
which would cause it to cease picketing WQT's prem-
ises. All the time such negotiations were in progress, the
Union neither represented any of WQT's production and
maintenance employees nor had assurance any of its
members or supporters would be hired. other than the
few Oleson thought he might need to complete his work
force.
821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the absence of evidence the Union represented a
majority of WQT's production and maintenance employ-
ees at the time the negotiations took place, WQT had no
duty or obligation to bargain with the Union; therefore,
WQT could not violate the Act by refusing to yield to
the Union's demands any union supporters formerly em-
ployed by Western it chose to hire should receive credits
for seniority purposes exceeding those of WQT's other
employees.
Even were this not so, I find WQT's proposal on se-
niority was not unlawful; the parties settled on seniority
language contained in the Union's Warehousemen con-
tract, with the modification seniority would date from
the last date of each employee's hire. Since it is clear the
contract was between WQT and the Union, Richardson's
interpretation thereof, i.e., that they had agreed on se-
niority dating from the date of each employee's hire by
WQT, without regard to who the previous employer of
such employee was, was not unreasonable; it was the
result of the give and take of normal bargaining. WQT
established its wages, etc., independent of whatever
Western did prior to commencing hiring and with the
intent of hiring regardless of source; and it offered by its
seniority proposal to extend the same terms to former
Western employees as it offered all others. It refused to
yield to union demands that it provide any former West-
ern employees hired with different and better seniority
rights; and, by so doing, it engaged in normal bargaining.
I therefore find that WQT did not violate the Act by
refusing to yield to the Union's demand it grant seniority
for all purposes to any former Western employee it hired
dating from his last date of hire by Western prior to
going on strike.
CONCL.USIONS OF LAW
1. At times pertinent, the Union was a labor organiza-
tion within the meaning of Section 2 of the Act.
2. WQT was not a successor employer to Western
within the meaning of the Act.
3. The General Counsel failed to demonstrate by valid
evidence WQT met the Board's jurisdictional standards.
4. The General Counsel failed to demonstrate by valid
evidence the Union ever represented a majority of
WQT's production and maintenance employees.
5. WQT did not violate the Act by refusing to yield to
the Union's demand it grant seniority for all purposes to
any Western employee it hired dating from his last date
of hire by Western prior to going on strike.
Based upon the foregoing findings of fact, conclusions
of law, and the entire record, and pursuant to Section
10(c) of the Act, I recommend the Board issue the fol-
lowing:
ORDER 26
The complaint is dismissed in its entirety.
Inr the cevent no exceptions arc iled as priovided by Sec. 102 46 of
the Rules and Regulationls of the National Labor Rclations Board, the
findings, conclusions, and recinrlnended Order herein shall, as provided
in Sec It10248 of the Rules antd Regulations. he adopted by the Board and
becomc its Fildings, conclusions and Order, and all objections thereto
shall be deeted waiCld rfor ll purposesc
822