Williams Energy Services

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 160 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 160
Williams Energy Services and Paper, Allied-
Industrial, Chemical & Energy Workers Inter-
national Union, AFL–CIO, Local 4-227. Case
16–CA–20164
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND TRUESDALE
On August 11, 2000, Administrative Law Judge
George Carson II issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated 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 brief and has decided to
affirm the judge’s rulings, findings, and conclusions1 and
to adopt the recommended Order.
1. For the reasons set forth in the majority opinion in
St. Elizabeth Manor, 329 NLRB 341 (1999), we reject
our dissenting colleague’s criticism of the successor-bar
doctrine, under which a collective-bargaining representa-
tive is “entitled to a reasonable period of bargaining
without challenge to its majority status.” Id. at 344. Af-
ter a reasonable period for bargaining elapses, the em-
ployees will have an opportunity to change or eliminate
their bargaining representative if they so choose. Id. at
346.
Here, we agree with the judge that a reasonable period
for bargaining has not elapsed. The parties met twice.
At the first session, the Respondent rejected the Union’s
proposal that it adopt the predecessor’s collective-
bargaining agreement. At the second session, the Re-
spondent presented the Union with a letter, with the em-
ployee petition attached, asking the Union to voluntarily
withdraw as the employees’ collective-bargaining repre-
sentative or participate in a secret-ballot election. Like
our dissenting colleague, we take seriously the Act’s goal
of protecting employees’ free choice. However, we are
also mindful of the Act’s competing goal of promoting
stable labor-management relations by encouraging the
practice and procedure of collective bargaining. We be-
lieve that the application of the successor bar in the in-
stant case strikes the appropriate balance between these
competing policies. Our colleague correctly points out
that the employee petition disavowing the Union was
unanimous. This fact, he suggests, demonstrates a seri-
ous infringement of employees’ Section 7 rights and
makes fruitful collective bargaining unlikely, since the
union would appear to have no support. The successor
bar, of course, is a bright-line rule: a union is entitled to a
period free from any challenge, no matter how strong it
seems. The Board and the courts have recognized the
value of bright-line rules, which promote certainty, pre-
dictability, and administrative efficiency, even if their
application in a particular case may seem unjust or un-
wise. See, e.g., Cleveland Indians Baseball Co., 333
NLRB 579 (2001); NLRB v. Maryland Ambulance Ser-
vices, 192 F.3d 430, 434 (4th Cir. 1999). (“While bright-
line rules . . . may run the risk of being over or under-
inclusive in their coverage, it is generally recognized that
the certainty and stability such a rule affords outweighs
any harm done when the rule is applied evenly.”) We
could not take into account the extent of a union’s appar-
ent loss of support in applying the rule of St. Elizabeth
Manor without losing the benefits of a bright-line rule.
Moreover, the reasons for temporarily disregarding evi-
dence of apparent loss of support obtain, regardless of
whether employees are united or divided in their views.
If, in fact, most or all employees no longer desire union
representation, and if, in fact, nothing the union is able to
achieve during a reasonable period for bargaining
changes their feelings, then the union’s tenure will, in-
deed, be temporary. But for the reasons explained in St.
Elizabeth Manor, the Union is entitled to an opportunity
to prove itself to employees. Whether pursuing that op-
portunity is worthwhile is for the Union, not the Board,
to determine. Accordingly, we find that the Respondent
violated Section 8(a)(5) and (1) of the Act by failing and
refusing to recognize and bargain with the Union and by
withdrawing recognition from the Union.

1 The Respondent, relying on Harley-Davidson Transportation Co.,
273 NLRB 1531 (1985), contends that there is a substantive difference
between representation cases like St. Elizabeth Manor, 329 NLRB 341
(1999), and this case. As the Board explicitly stated in Inn Credible
Caterers, Ltd., 333 NLRB 898 (2001), however, the effect of the deci-
sion in St. Elizabeth Manor was to return to the principle expressed in
Landmark International Trucks, 257 NLRB 1375 (1981), enf. denied
699 F.2d 815 (6th Cir. 1983), that a successor employer violates Sec.
8(a)(5) if it withdraws recognition before a reasonable period of time
for bargaining has elapsed, whether that withdrawal is based on a good-
faith doubt of the union’s continuing majority status or evidence of
actual loss of majority status. Accordingly, the contrary view, as ex-
pressed in Harley-Davidson Transportation Co., 273 NLRB 1531
(1985), is no longer good law after St. Elizabeth Manor.
2. For the reasons fully set forth in Caterair Interna-
tional, 322 NLRB 65 (1996), we find that an affirmative
bargaining order is warranted in this case as a remedy for
the Respondent’s unlawful withdrawal of recognition
from the Union. We adhere to the view, reaffirmed by
the Board in that case, that an affirmative bargaining
order is “the traditional, appropriate remedy for an
8(a)(5) refusal to bargain with the lawful collective-
bargaining representative of an appropriate unit of em-
ployee.” Id. at 68.
336 NLRB No. 11
WILLIAMS ENERGY SERVICES 161
In several cases, however, the U.S. Court of Appeals
for the District of Columbia Circuit has required that the
Board justify, on the facts of each case, the imposition of
such an order. See, e.g., Vincent Industrial Plastics v.
NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber &
Building Material v. NLRB, 117 F.3d 1454, 1462 (D.C.
Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243,
1248 (D.C. Cir. 1994). In the Vincent case, the court
summarized the court’s law as requiring that an affirma-
tive bargaining order “must be justified by a reasoned
analysis that includes an explicit balancing of three con-
sideration: (1) the employees’ § 7 rights; (2) whether
other purposes of the Act override the rights of employ-
ees to choose their bargaining representatives; and (3)
whether alternative remedies are adequate to remedy the
violations of the Act.” Id. at 738.
Although we respectfully disagree with the court’s re-
quirement for the reasons set forth in Caterair, we have
examined the particular facts of this case as the court
requires and find that a balancing of the three factors
warrants an affirmative bargaining order.
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the em-
ployer’s withdrawal of recognition. At the same time, an
affirmative bargaining order, with its attendant bar to
raising a question concerning the Union’s continuing
majority status for a reasonable time, does not unduly
prejudice the Section 7 rights of employees who may
oppose continued union representation because the dura-
tion of the order is no longer than is reasonably necessary
to remedy the ill effects of the violation.
Moreover, ordering the successor employer to bargain
for a reasonable period of time with the incumbent union,
as in this case, serves “to protect the newly established
bargaining relationship and the previously expressed
majority choice, taking into account the stresses of the
organizational transition may have shaken some of the
support the union previously enjoyed.” St. Elizabeth
Manor, supra at 345. To require bargaining to continue
only for a reasonable period of time, not in perpetuity,
fosters industrial peace and stability and will ensure that
the bargaining relationship established between the Re-
spondent and the Union will have a fair chance to suc-
ceed.
(2) The affirmative bargaining order also serves the
policies of the Act by fostering meaningful collective
bargaining and industrial peace. That is, it removes the
Respondent’s incentive to delay bargaining or to engage
in any other conduct designed to further discourage sup-
port for the Union. It also ensures that the Union will not
be pressured, by the possibility of a decertification peti-
tion, to achieve immediate results at the bargaining table
following the Board’s resolution of its unfair labor prac-
tice charges and issuance of a cease-and-desist order.
(3) A cease-and-desist order, without a temporary de-
certification bar, would be inadequate to remedy the Re-
spondent’s violations because it would permit a decerti-
fication petition to be filed before the Respondent had
afforded the employees a reasonable time to regroup and
bargain through their representative in an effort to reach
a collective-bargaining agreement.
For all the foregoing reasons, we find that an affirma-
tive bargaining order with its temporary decertification
bar is necessary to fully remedy the allegations in this
case. Accordingly, we shall reaffirm the Board’s prior
order that the Respondent recognize and, on request, bar-
gain in good faith with the Union.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Williams Energy Services,
Galena Park, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

CHAIRMAN HURTGEN, dissenting.
The Respondent took over the business on August 2,
1999, as a successor employer. On August 5, an em-
ployee of the Respondent filed a decertification petition
with the NLRB Regional Office. The Respondent then
declined to bargain. Following the filing of unfair labor
practice charges, the Respondent agreed to bargain with
the Union, and such bargaining began on September 29.
On November 3, the Respondent was presented with a
petition, signed by all unit employees, saying that they
did not wish to be represented by the Union. On No-
vember 5, the Respondent wrote the Union, stating that it
no longer enjoyed majority support, and asking whether
the Union wanted to withdraw as bargaining representa-
tive or proceed to an election to determine the issue of
representative status. On November 9, the Region dis-
missed the August 5 decertification petition, citing St.
Elizabeth Manor, 329 NLRB 341 (1999).
My colleagues find that the Respondent withdrew rec-
ognition on November 17, 1999, and that such with-
drawal violated Section 8(a)(5). In doing so, my col-
leagues do not contend that the November 3 petition was
tainted. They contend only that the Union’s majority
status was immune from attack for a reasonable period of
time after the successor employer began to bargain. See
St. Elizabeth Manor, supra. My colleagues then con-
clude that a reasonable period had not elapsed.
For the reasons stated in the dissenting opinion in St.
Elizabeth Manor, supra. 329 NLRB 341 at 346, I dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 162
agree with the holding of that case.1 See also my dissent-
ing opinion in Hill Park Health Care Center, 334 NLRB
328 (2001). Accordingly, I conclude that the employees
were free to reject the Union, and that the Respondent
thus did not violate Section 8(a)(5) by refusing to bargain
with the Union.
My view is consistent with the Supreme Court’s lan-
guage in Fall River Dyeing Corp. v. NLRB, 482 U.S. 27
(1987):

If, during negotiations, a successor questions a un-
ion’s continuing majority status, the successor “may
lawfully withdraw from negotiation at any time fol-
lowing recognition if it can show that the union had
in fact lost its majority status at the time of the re-
fusal to bargain or that the refusal to bargain was
grounded on a good faith doubt based on objective
factors that the union continued to command major-
ity support.” [482 U.S. at 41 fn. 8; Emphasis sup-
plied.]

Further, my position properly balances the competing
interests of fostering collective bargaining and ensuring
employee free choice. Under Burns, if a majority of the
successor’s employees come from the predecessor, the
union’s majority status is presumed to continue, and the
successor is obligated to honor the collective-bargaining
relationship that existed between the predecessor and the
union. However, if a majority of the successor’s em-
ployees make it clear that they do not wish to be repre-
sented by the union, that Section 7 right must prevail.
“Of paramount importance . . . is the employees’ Section
7 right to select a union representative of their own
choice or to have no union represent them at all.” 329
NLRB 341 at 347.
The contrary result reached by my colleagues demon-
strates the enormity of the majority’s error in St. Eliza-
beth Manor. Under that majority view, as applied to the
instant case, the “successor bar” principle serves to hand-
cuff employees’ fundamental Section 7 rights on the is-
sue of representation. This happened not once, but at
two junctures in this case. First, based on St. Elizabeth
Manor, the Region dismissed a valid decertification peti-
tion filed promptly after the Respondent commenced
operations in August 1999. Through that petition, em-
ployees sought to invoke their Section 7 right to an elec-
tion to determine whether to continue Union representa-
tion. Second, relying on St. Elizabeth, the majority has
negated the employees’ unanimous employee petition,

1 As set forth in the dissent in St. Elizabeth, that case overruled long-
standing precedent. The majority herein expressly adds Harley David-
son, 273 NLRB 1531, to the string of overruled precedent.
presented to the Respondent on November 3, 1999, stat-
ing that: “We the employees of Williams, elect not to
have the Union (P.A.C.E.) represent us as a collective
unit.”

The effect of these applications of St. Elizabeth Manor
is to “seriously [infringe] on employees’ Section 7 rights
to engage in or refrain from engaging in union activity.”
329 NLRB 341 at 346.2 Indeed, it serves to impose on
unit employees—both those carryovers from the prede-
cessor unit and new hires alike—a collective-bargaining
representative that they have clearly and unanimously
rejected. Part of the rationale of the majority’s holding
in St. Elizabeth Manor is to allow an insulated period for
fruitful collective bargaining with the new employer. It
is hard to imagine, however, a more fruitless bargaining
endeavor where the union has little support, or as in this
case, no support.
My colleagues concede that the employees demon-
strated unanimous opposition to the Union in their No-
vember 3 petition. They seek to justify disregarding this
clearly expressed sentiment on the basis that St. Eliza-
beth Manor’s successor-bar rule is a bright-line test,
which type of test is favored by the Board and courts
because it promotes “certainty, predictability, and admin-
istrative efficiency.” This argument misses the mark. In
my view, none of the factors of “certainty, predictability,
and administrative efficiency,” considered separately, or
as a whole, warrant deprivation of employees’ Section 7
rights. Indeed, the fact that fundamental Section 7 rights
are negatively implicated clearly demonstrates that this is
an instance when such a bright-line test was improvi-
dently adopted.
Nor are employees sufficiently safeguarded, as argued
by my colleagues, because at some unspecified future
date (once a “reasonable period” for bargaining has
elapsed), their Section 7 rights will be resurrected.
Those rights are frustrated at least for some period. Fur-
ther, if the union reaches an agreement with the succes-
sor employer, the deprecation can be as much as 3 more
years.
Finally, my colleagues contend that their application of
the St. Elizabeth Manor successor-bar rule appropriately
balances the competing interests of employee free choice
and labor stability. I do not agree. Weighing both inter-
ests, I find that the appropriate balance must be struck in
favor of employees’ Section 7 right to choose whether or
2 There is no allegation that the unanimous November 3 petition (or,
indeed, the August 5 decertification petition) was tainted by any unlaw-
ful Respondent conduct. Cf. Inn Credible Caterers, 333 NLRB 898
(2001) (concurring opinion).
WILLIAMS ENERGY SERVICES 163
not to be represented. My colleagues, through St. Eliza-
beth Manor, improperly deprive them of this right.
In sum, I would not foreclose employee free choice.
Accordingly, I dissent.

Tamara J. Gant, Esq., for the General Counsel.
R. Mark Solano, Esq., for the Respondent.
Bernard L. Middleton, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This
case was submitted by stipulation dated May 26, 2000. The
charge was filed on November 9, 1999.1 The complaint issued
on March 31, 2000. The complaint alleges that Respondent
violated Section 8(a)(1) and (5) of the National Labor Relations
Act by failing and refusing to recognize and bargain with the
Charging Party Union and by withdrawing recognition from the
Union. Respondent’s answer denies any violation of the Act. I
find that Respondent violated the Act as alleged in the com-
plaint.
On the entire record, and after considering the briefs filed by
the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Williams Energy Services, a Delaware cor-
poration, is engaged in the provision of petroleum storage ser-
vices at various locations including its facility in Galena Park,
Texas, and, based on a projection of its operations, it will annu-
ally perform services valued in excess of $50,000 directly to
Colonial, Arco, Lyondell, and Shell Pipelines enterprises that
are directly engaged in interstate commerce. The Respondent
admits, and I find and conclude, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Respondent admits, and I find and conclude, that Paper,
Allied-Industrial, Chemical & Energy Workers International
Union, AFL–CIO, Local 4-227, the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Prior to August 1999, Respondent Williams Energy Services
(Williams or the Company) entered into negotiations to pur-
chase the Galena Park facility from Amerada Hess Corporation.
Employees of Amerada Hess working as truckdrivers and oper-
ating and maintenance employees were, and since 1950 had
been, represented by the Union.2 Amerada Hess and the Union
had entered into a collective-bargaining agreement that was, by

1 All dates are in 1999 unless otherwise indicated.
2 The alleged and admitted appropriate unit is:
Included: All truck drivers, operating and maintenance employees at
the Galena Park facility formerly operated by Amerada Hess; ex-
cluded: All office, warehouse, technical, plant guard, clerical, and su-
pervisory employees.
its terms, effective from May 1, 1998, through April 30, 2001.3
There was not a successorship clause in the collective-
bargaining agreement.
The Union learned of the impending purchase of the Galena
Park facility prior to its actual consummation, and Local Union
President Tom Gentry called Joe Streif, director of independent
terminals for the Company. By letter dated July 23, Gentry
confirmed his call and formally requested that the Company
meet with the Union and enter into negotiations “to establish
wages, hours of work, and other conditions of employment for
represented employees at . . . Galena Park.” The Company did
not respond immediately to this letter.
The Company purchased the Galena Park facility on August
2. The Company continued to operate the business in un-
changed form, and it hired a majority of the former unit em-
ployees. The parties have stipulated that Williams is a succes-
sor to Amerada Hess. On August 5, a decertification petition
was filed in Case 16–RD–1441 by Russell Holman, an individ-
ual. The petition reflects that, at that time, the unit contained 16
employees. This petition was dismissed on November 9, after
various intervening events. The dismissal letter, citing St.
Elizabeth Manor, Inc., 329 NLRB 341 (1999), states that after a
successor employer’s duty to bargain attaches a union is enti-
tled “to a reasonable period of bargaining without challenge to
its majority status through a decertification effort.”
On August 12, the Union filed a charge in Case 16–CA–
20026 alleging that, since July 23, Williams had refused to
bargain. At some point following the filing of the charge, the
stipulation does not state the date the Company agreed to meet
and bargain. The charge was dismissed on September 30. The
dismissal letter states that upon being contacted regarding the
charge the Company “stated that it would recognize and bar-
gain with the Union, and has, in fact done so.” The letter addi-
tionally notes that, although there was a “slight delay” in the
Company’s response to the Union it was “not of sufficient
length to constitute a refusal by Williams to recognize and bar-
gain with the Union.”
On September 29, the day prior to the dismissal of the Un-
ion’s unfair labor practice charge, the parties met. The Union
sought to have the Company agree to retain the existing collec-
tive-bargaining agreement. The Company rejected this pro-
posal. Due to scheduling conflicts, no bargaining sessions were
scheduled for October. The parties did agree to meet on No-
vember 5, 18, 19, and December 16 and 17.
The September 30 letter dismissing the Union’s charge pro-
vided that any appeal should be filed by October 14. The Union
initially requested an extension of time for filing an appeal until
October 28, and thereafter requested a subsequent extension
until November 12. Both requests were granted. No appeal was
ever filed. The charge herein was filed November 9.
On November 3, 2 days prior to the next scheduled bargain-
ing session, Chuck Bigi, Gulf Coast Marine Terminal Systems
operations manager, found an employee petition signed by “all
seventeen (17) unit employees” on his desk. The petition states:
3 The collective-bargaining agreement is between Amerada Hess and
Oil, Chemical and Atomic Workers International Union, Local 4-227,
the legal predecessor of the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 164
“We, the employees of Williams, elect not to have the Union
(P.A.C.E.) represent us as a collective unit.”
On November 5, Streif wrote Gentry, attaching a copy of the
petition and noting that the Union no longer enjoyed majority
support. The letter refers to 17 of 21 employees. In view of the
parties’ stipulation that there were 17 unit employees, it appears
that Streif’s figure of 21 included 4 nonunit employees. The
letter asks if the Union wished to voluntarily withdraw as the
employees’ collective-bargaining representative or participate
in a secret-ballot election conducted by the Board or a neutral
third party. Streif presented this letter to Gentry at the begin-
ning of the scheduled November 5 bargaining session. No bar-
gaining occurred.
On November 9, the Union filed the charge herein. By letter
dated November 11, Gentry advised that the found Streif’s
letter “to be without merit,” and he requested that the Company
meet on their next scheduled date, November 18.
By letter dated November 17, Streif stated that the Company
intended “to abide by the wishes of the overwhelming majority
of our employees” and that, therefore, it would not meet on
November 18.
There is no evidence and no allegation that anyone from the
Company solicited the petition from the employees or other-
wise tainted the obtaining of the petition.
C. Contentions of the Parties
The General Counsel and the Charging Party contend that
the Company was not privileged to refuse to meet and bargain
notwithstanding its receipt of the untainted petition on Novem-
ber 3. Citing St. Elizabeth Manor, Inc., supra, the General
Counsel argues that the Union was entitled to “a reasonable
period of time for bargaining without challenge to its majority
status.”
The Company contends that St. Elizabeth Manor is inappo-
site and incorrectly decided. In arguing that it is inapposite, the
Company points out that St. Elizabeth Manor arose in a repre-
sentational context and that the specific holding related to the
processing of an employer filed RM petition. The employer had
neither refused to bargain nor withdrawn recognition from the
union. The Company further argues that St. Elizabeth Manor
did not specifically overrule Harley-Davidson Co., 273 NLRB
1531 (1985), which held that a successor employer “may law-
fully withdraw from negotiation at any time following recogni-
tion if it can show that the union had in fact lost its majority
status.” In arguing that St. Elizabeth Manor was incorrectly
decided, the Company summarizes the rationale and authority
cited in the dissenting opinion in St. Elizabeth Manor and re-
states the Section 7 mandate that employees have the right to
engage in self-organization or “to refrain from any or all such
activities.”
D. Analysis and Concluding Findings
In St. Elizabeth Manor, the Board adopted a “successor bar
rule” and remanded the case to the Regional Director to deter-
mine whether “a reasonable period for bargaining had elapsed”
at the time the RM petition therein was filed. The Board stated
that it saw “no reason in law or logic why a bargaining repre-
sentative’s status once the successor’s duty to recognize it at-
taches should not be given at least as much protection as is
given to a representative’s status following the extension of
voluntary recognition after ascertaining demonstrated majority
support.” Id. at 344. Consistent with this rationale, the Board
adopted a “successor bar” rule that would preclude petitions
challenging a union’s majority status “for a reasonable period
after a successor employer’s obligation to recognize an incum-
bent union is triggered.” Ibid. In a footnote the decision refers
to the bar as affecting both the processing of a petition “or to
any other challenge to the union’s majority status.” Id. at fn. 8.
The Board notes that, in the absence of the successor-bar rule,
“the successor may be reluctant to commit itself wholeheart-
edly to bargain for a collective-bargaining agreement with the
incumbent union when at any time following the recognition,
the union’s majority may be attacked.” Id. at 343.
I am mindful that an employee filed decertification petition
does not establish that a majority of the unit no longer desires
representation. The Board’s Statements of Procedure, section
101.18(a), requires that such a petition be supported by only 30
percent of the unit. Thus, I agree with the Company that there is
a substantive difference between cases arising in a representa-
tional context and cases such as the instant case and Harley-
Davidson Co., supra, where there is objective evidence of an
actual loss of majority. Contrary to the Company’s argument,
however, it is clear that St. Elizabeth Manor is applicable. Al-
though the Board majority did not state that it was overruling
Harley-Davidson Co., the reference to “any other challenge to
the union’s majority status” in footnote 8 confirms that the
Board majority intended the principle of giving a union a “rea-
sonable period of time for bargaining without challenge to its
majority status” to apply even when there is objective evidence
of loss of majority. Id. at 344. The dissenting members of the
Board certainly understood this to be the case. They state:

[I]n its unfair labor practice form, the “successor bar” rule es-
tablishes a presumption which forbids the successor employer
from withdrawing recognition, regardless of the facts. Thus,
the majority impliedly, but necessarily, reverses Harley-
Davidson Transportation Co., which held that a successor
employer, unlike an employer which voluntarily recognizes a
majority representative in an initial organizing context, may,
without bargaining for a reasonable period of time, withdraw
recognition from an incumbent union if it “can show that the
union had in fact lost its majority status at the time of the re-
fusal to bargain or that the refusal to bargain was grounded on
a good- faith doubt based on objective factors that the union
continued to command majority support.” [Id. at 347.]

The majority opinion in St. Elizabeth Manor does not state
that the dissenting opinion is incorrect in stating the that its
holding “impliedly . . . reverses” Harley-Davidson Co. The
majority specifically responded to the assertion in the dissent
that the Supreme Court had adopted the rationale of Harley-
Davidson Co., in Fall River Dyeing Corp. v. NLRB, 482 U.S.
27 (1987), stating:

The primary issue decided in Fall River Dyeing was
whether a successor employer’s obligation to bargain with
the union that had represented the predecessor’s employ-
ees was limited to situations in which the union in ques-
WILLIAMS ENERGY SERVICES 165
tion had been certified only recently before the transition.
The Court agreed with the Board that the obligation was not
thus limited. Even if a union’s majority status at the time of
transition is based on the rebuttable presumption that arises 1
year after the initial certification, its majority status and the
accompanying bargaining obligation will apply despite the
change in employers if the work force includes a majority of
the predecessor’s employees. The Court’s description of the
presumption as rebuttable was neither necessary to the
Court’s ultimate decision nor surprising but was simply a re-
flection of Board law at the time. The issue in the present
case, whether the successor’s recognition should result in an
irrebuttable rather than a rebuttable presumption of majority
status for a reasonable period of time, was not presented in
Fall River Dyeing. Thus, neither the Board nor the Court had
any occasion to consider whether the policies of the Act might
be better effectuated by providing a protected period for bar-
gaining after a Burns successor’s bargaining obligation is
triggered. Id at fn. 7.

I reject the Company’s argument that St. Elizabeth Manor is
“a single, aberrant Board case.” The case, decided by the full
Board, fully discusses the underlying principles involved and
announces the concept of a successor bar pursuant to which a
recognized collective-bargaining representative is given an
“irrebuttable rather than a rebuttable presumption of majority
status for a reasonable period of time.” Id. Insofar as this is the
requirement of current Board precedent, I am obligated to apply
it.
The Board, in St. Elizabeth Manor, remanded the case to the
Regional Director for a determination of whether there had
been a “reasonable period of time” for bargaining. In that case,
the parties had held three bargaining sessions in a 3-month
period. In the instant case, the parties met twice. At the single
bargaining session that was held, the Company rejected the
Union’s proposal that it adopt the collective-bargaining agree-
ment into which it had entered with the Company’s predeces-
sor. At the scheduled November 5 bargaining session, Streif
presented his letter attaching the petition to Gentry. There was
no bargaining after this event. I find that there had not been a
reasonable period of time for bargaining. See Gerrino Restau-
rant, 306 NLRB 86, 90 (1992); King Soopers, Inc., 295 NLRB
35, 37 (1989).
The complaint alleges, but the answer denies, that the Com-
pany failed and refused to recognize and bargain with the Un-
ion on November 5, the date that Streif presented his letter and
the petition to Gentry. The letter states that “your union no
longer enjoys majority support” and asks whether the Union
wishes to withdraw as the employees’ collective-bargaining
representative or go to an election. I find that the foregoing
letter constituted, at the least, a refusal to recognize and bargain
pending the outcome of an election, a condition upon which the
Company, having voluntarily recognized the Union, could not
predicate its actions. This finding is virtually immaterial since
the complaint alleges and the answer admits that the Company
withdrew recognition from the Union on November 17. Consis-
tent with the principles enunciated in St. Elizabeth Manor, I
find that the Company’s actions violated Section 8(a)(1) and (5)
of the Act.
CONCLUSION OF LAW
By failing and refusing to bargain with the Union and by
withdrawing recognition from the Union, the Respondent has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of
the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having unlawfully failed and refused to bargain with the Un-
ion and having withdrawn recognition from the Union, Re-
spondent shall be ordered to recognize and meet and bargain
collectively in good faith with the Union as the exclusive col-
lective-bargaining representative of its employees in the appro-
priate unit. Exxel-Atmos, Inc., 323 NLRB 888 (1997).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Williams Energy Services, Galena Park,
Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from, and refusing to meet and
bargain collectively with, Paper, Allied-Industrial, Chemical &
Energy Workers International Union, AFL–CIO, Local 4-227,
the Union, as the exclusive bargaining representative of its
employees in the appropriate bargaining unit set forth below.
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the policies of the Act.
(a) On request, recognize, meet and bargain collectively in
good faith with the Union as the exclusive collective-
bargaining representative of its employees in the unit described
below, regarding wages, hours, and other terms and conditions
of employment, and if an agreement is reached, embody it in a
signed contract. The appropriate unit is:

All truck drivers, operating and maintenance employees em-
ployed at the Galena Park facility; excluding all office, ware-
house, technical, plant guard, clerical, and supervisory em-
ployees.

(b) Within 14 days after service by the Region, post at its fa-
cility in Galena Park, Texas, copies of the attached notice

4 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 166
marked “Appendix.”5 Copies of the notice, on forms provided
by the Regional Director for Region 16, after being signed by
the Respondent’s authorized representative, 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 material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since November 5, 1999.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

5 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

WE WILL NOT withdraw recognition from, and refuse to
meet and bargain collectively with, Paper, Allied-Industrial,
Chemical & Energy Workers International Union, AFL—CIO,
Local 4-227, the Union, as your exclusive bargaining represen-
tative in the appropriate bargaining unit set forth below.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, on request, recognize and bargain in good faith
with the Union as your exclusive collective-bargaining repre-
sentative in the following appropriate unit with respect to rates
of pay, wages, hours, and other terms and conditions of em-
ployment and, if an understanding is reached, embody such
understanding in a signed written agreement:

All truck drivers, operating and maintenance employees em-
ployed at the Galena Park facility; excluding all office, ware-
house, technical, plant guard, clerical, and supervisory em-
ployees.

WILLIAMS ENERGY SERVICES