Siemens Building Technologies, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 345 NLRB No. 91 1108 Siemens Building Technologies, Inc. and Interna- tional Union of Operating Engineers, Local 832. Cases 3–CA–24050 and 3–CA–24304 September 30, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On February 25, 2004, Administrative Law Judge Martin J. Linsky issued the attached decision. The Re- spondent filed exceptions and a supporting brief, the General Counsel filed an answering brief to the Respon- dent’s exceptions, and the Respondent filed a reply brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,1 and conclusions, and to adopt the recommended Order as modified.2 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. There are no exceptions to: (1) the judge’s findings that the Respon- dent sufficiently disavowed its December 30 statement to the predeces- sor employees that employees would have to resign their union mem- bership as a condition of employment with the Respondent, and thus the statement does not warrant a finding of violation or a remedy; or (2) the judge’s denial of the General Counsel’s motion to amend the com- plaint to allege that the Respondent violated Sec. 8(a)(1) by stating, in a memorandum to employees posted on December 30, 2002, that “the positions that have been offered to you are non-union jobs.” 2 The judge inadvertently failed to include a description of the ap- propriate bargaining unit in his decision. The bargaining unit alleged in the amended consolidated complaint is essentially the same as the unit described in the collective-bargaining agreement between the predeces- sor (Monroe County) and the Union. The differences reflect the fact that the Monroe County unit included other facilities and thus included job classifications that did not exist at the successor’s Iola plant. In addition, as explained in the record, some job titles were used inter- changeably to refer to the same position while other titles were used to refer to more than one position. In its answer, the Respondent denied that the alleged unit was an appropriate bargaining unit. However, it did not contend that any specific job classification should be excluded from the unit or that any additional job classification should be added. The Board places a heavy evidentiary burden on a party attempting to show that a historical unit is no longer appropriate. Ready Mix USA, Inc., 340 NLRB 946, 947 (2003) (successor failed to show that histori- cal predecessor unit was no longer appropriate); Banknote Corp. of America, 315 NLRB 1041 (1994), enfd. 84 F.3d 637 (2d Cir. 1996), cert. denied 519 U.S. 1109 (1997) (same). The Respondent’s unsup- ported denial in its answer falls far short of meeting the heavy burden of proving that the historical unit is no longer appropriate. Accord- ingly, we find that the bargaining unit alleged in the amended consoli- dated complaint is an appropriate unit and will include a description of the unit in the Order. I. FACTS In 2002 Monroe County, New York sold its Iola, New York coal-fired plant to Monroe Newpower Corporation, a nonprofit entity formed by Monroe County to, inter alia, build two new cogeneration facilities, and phase out the Iola plant. Monroe Newpower, in turn, negotiated an agreement with the Respondent to install, operate, and maintain the two new cogeneration facilities and to phase out the Iola plant. The effective date of the sale to Mon- roe Newpower was December 23, 2002. The effective date of the contract between Monroe Newpower and the Respondent was December 31, 2002.3 The County had a collective-bargaining agreement with the Union that covered several county facilities, including the Iola plant. Before the Respondent took over the plant or hired employees, it engaged in negotia- tions with the Union. The negotiations included two meetings and exchanges of proposals. However, no agreement was reached.4 On December 30, the Respondent hired employees and on January 1 it began to operate the plant. The parties stipulated that the majority of the Respondent’s unit em- ployees had been employees of the County at the same plant. The judge found, and we agree for the reasons stated by him, that the Respondent is a successor em- ployer to the County. On January 2, the Union’s business representative, Mi- chael Scahill, sent the Respondent a letter requesting recognition and bargaining. The Respondent acknowl- edged receipt of the demand on January 3 and, on Janu- ary 16, denied the Union’s request. II. REFUSAL TO RECOGNIZE AND BARGAIN The Respondent contends that it refused to recognize and bargain with the Union because the Union had lost majority support. The judge correctly found that the Re- spondent did not show that the Union had lost actual ma- jority support, and therefore that the Respondent had violated Section 8(a)(1) and (5) by refusing to recognize and bargain with the Union. Levitz Furniture Co., 333 NLRB 717 (2001).5 See Flying Foods, 345 NLRB No. 3 Dates in December are 2002; otherwise dates are 2003. 4 The central issue in dispute during those negotiations was whether any collective-bargaining agreement that the parties entered into would survive the Respondent’s planned decommissioning of the plant and opening of two new cogeneration facilities to replace it. The Respon- dent wanted the agreement to end when, as stated by the judge, “the two new cogeneration facilities were on line and the old plant decom- missioned because the jobs’ duties would differ.” The Union took the position that the agreement should continue because the Iola plant employees could be trained to work in the new facilities. 5 In Levitz, supra, the Board held that an employer may rebut the presumption of an incumbent union’s majority status “only on a show- ing that the union has, in fact, lost the support of the majority of the SIEMENS BUILDING TECHNOLOGIES 1109 10, slip op. at 3 (2005); Port Printing Ad & Specialties, 344 NLRB No. 34 (2005). But, even under the Board’s pre-Levitz standard, as elucidated by the Supreme Court in Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), we would find that the Respondent was not justified in withdrawing recognition from the Union, because it has not established that it had a good-faith reasonable doubt (i.e., reasonable uncertainty) as to the union’s majority support. Therefore, we find that the Respondent violated the Act as alleged.6 Under the pre-Levitz standard, the employer bears the burden of proving that its withdrawal of recognition was lawful. The Board “does not exclude classes of evi- dence”—for example, a supervisor’s hearsay testimony regarding the antiunion sentiments of employees—“but rather accords evidence the weight to which it is entitled based on its reliability.”7 The date we focus on here is January 3, the date that the Respondent received the Union’s bargaining de- mand.8 As stated above, we find that, even applying the pre-Levitz standard, the Respondent was not justified in refusing to recognize the Union as of that date. First, there is persuasive evidence that the Respondent decided not to recognize or bargain with the Union for reasons other than a good-faith reasonable doubt of the Union’s majority status. Thus, Service Operations Man- ager Scott McKee admitted that “one reason” that the Respondent did not recognize and bargain with the Un- ion was the Union’s failure, in December, to agree to the Respondent’s “final offer.” Consistent with this testi- mony, on December 30, the Respondent posted a memo- randum to employees stating that the Respondent “was unable to reach an agreement with the union, and the positions that have been offered to you are non-union jobs.” The Union’s refusal to accept the Respondent’s employees in the bargaining unit.” 333 NLRB at 725. Chairman Bat- tista and Member Schaumber did not participate in Levitz, and they express no view as to whether it was correctly decided. For institu- tional reasons, they apply Levitz as a basis for the violation. Further, as noted infra, they conclude that there is a violation even under pre-Levitz law. 6 While Member Liebman concurs with the majority’s conclusion that the Respondent was not justified in withdrawing recognition from the Union even under the pre-Levitz “good-faith doubt” standard, she sees no reason to address prior law here: it can have no bearing on this case. 7 MSK Corp., 341 NLRB 43, 44 (2004), and cases cited therein. MSK Corp. was decided under the good-faith doubt standard because the standard announced in Levitz was applied only prospectively and not to cases pending when it issued. 8 A successor employer’s bargaining obligation matures when it has hired a substantial and representative complement of its employees, a majority of whom were unit employees of the predecessor, and the Union has made an effective demand for recognition and bargaining. MSK Corp., supra. contract terms does not support a good-faith reasonable doubt of the Union’s majority status. Second, the reasons advanced by the Respondent for its claim of doubt of the Union’s majority support do not withstand scrutiny. Service Operation Manager McKee asserted that 2 (out of 11 employees) in the unit had stated that the Union had not done anything for them. Further, the evidence shows, and the judge found, that the statements were made after the Respondent unlaw- fully denied the Union’s request for recognition and bar- gaining. Accordingly, these statements provide no basis for a good-faith reasonable doubt of majority support.9 McKee also claimed that two other employees had stated that they were unhappy because the Union had not taken the Respondent’s bargaining proposals back to the em- ployees. McKee, however, was vague as to the dates and context of these statements. Thus, it has not been estab- lished that the statements were made prior to the attach- ment of the Respondent’s bargaining obligation, on January 3. McKee’s failure to provide any specifics con- cerning the context for the statements further warrants according them little weight. McKee also testified that the Respondent relied on the employees’ failure to object when they were told, on December 30, that the Respondent would be “non-union” and on the fact that no employee voiced support for the Union. In the circumstances of this case, we accord little weight to that silence. The employees were in the midst of a successorship situation. A primary concern was to remain employed. The fact that the employees took “non-union” jobs does not establish that they no longer wanted union representation.10 We therefore conclude that the Respondent has not demonstrated that it had a good-faith reasonable doubt regarding the Union’s majority support, let alone evi- dence of the Union’s actual loss of majority support, at the time the bargaining obligation attached.11 Accord- ingly, the Respondent’s withdrawal of recognition vio- lated the Act. 9 In a successorship situation, as here, “the Respondent must demon- strate that it had a good-faith reasonable doubt on the date that its bar- gaining obligation matured,” MSK Corp., supra. 10 See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 39–40 (1987) (“[A]fter being hired by a new company following a layoff from the old, employees initially will be concerned primarily with maintaining their new jobs. In fact, they might be inclined to shun support for their former union, especially if they believe that such sup- port will jeopardize their jobs with the successor or if they are inclined to blame the union for their layoff and problems associated with it.”). 11 For the reasons stated by the judge, we agree that the Respon- dent’s June 2003 poll was tainted by its earlier refusals to recognize and bargain with the Union and that the poll may not be relied on to demon- strate either a good-faith doubt about majority status, or a loss of major- ity support. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1110 III. THE AFFIRMATIVE BARGAINING ORDER We also find, for the reasons fully set forth in Caterair International, 322 NLRB 64 (1996), and Williams En- terprises, Inc., 312 NLRB 937, 940–942 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995), that an affirmative bargaining order is warranted as a remedy for the Respondent’s unlawful refusal to recognize and bargain with the Un- ion. We recognize, consistent with extant Board law, Caterair, supra, that such an order is “the traditional, appropriate remedy for a Section 8(a)(5) refusal to bar- gain with the lawful collective-bargaining representative of an appropriate unit of employees.” Id. at 68.12 In several cases, however, the United States Court of Appeals for the District of Columbia Circuit has taken issue with the Board’s standard and has required that the Board justify, on the facts of each case, the imposition of such an order. See, e.g., Vincent Industrial Plastics, Inc., v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent, the court sum- marized its requirement that an affirmative bargaining order “must be justified by a reasoned analysis that in- cludes an explicit balancing of three considerations: (1) the employees’ Section 7 rights; (2) whether other pur- poses of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the viola- tions of the Act.” Id. at 738. We have examined the facts of this case, and find that a balancing of the three factors warrants the grant of 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 Re- spondent’s unlawful refusal to recognize and bargain with the Union. At the same time, an affirmative bar- gaining order and its attendant bar to raising a question concerning the Union’s continuing majority status for a reasonable time do not unduly prejudice the Section 7 rights of employees who may oppose continued union representation, because the duration of the order is no longer than is reasonably necessary to remedy the ill ef- fects of the violations. 12 Chairman Battista and Member Schaumber do not agree with the view expressed in Caterair International, supra, that an affirmative bargaining order is “the traditional, appropriate remedy” for an 8(a)(5) violation. They agree with the United States Court of Appeals for the District of Columbia Circuit that a case-by-case analysis is required to determine if the remedy is appropriate. Saginaw Control & Engineer- ing, 339 NLRB 541, 546 fn. 6 (2003). They recognize, however, that the view expressed in Caterair International, supra, represents extant Board law. See Flying Foods, supra, slip op. at 10 fn. 23 (2005). The Respondent never recognized or bargained with the Union after it commenced operations at the Iola power plant, despite the Union’s express demand for recognition and bargaining. This fact militates in favor of the Section 7 rights of former Monroe County em- ployees that were infringed upon by the Respondent’s refusal to recognize the Union. This is particularly true where, as here, the employees were deprived of their collective-bargaining representative during the transition from working for Monroe County to working for the Respondent. More importantly, the employees were de- prived of their bargaining representative at a critical time, i.e., the Respondent was going to start the decommis- sioning of the Iola facility, and the employees faced the likelihood that at least some of them would lose their jobs when the new facilities were operational and the Iola plant closed. (2) An 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 in the hope of discouraging support for the Union. It also ensures that the Union will not be pressured by the possibility of a decertification petition or a withdrawal of recognition to achieve immediate results at the bargaining table fol- lowing the Board’s resolution of its unfair labor practice charge 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. Indeed, permitting a decertification petition to be filed immediately might very well allow the Respondent to profit from its own unlawful conduct. We find that these circumstances outweigh the temporary impact the affirmative bargain- ing order will have on the rights of employees who op- pose continued representation. For all of the foregoing reasons, we find that an af- firmative bargaining order with its temporary decertifica- tion bar is necessary to fully remedy the violations in this case. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Siemens Building Technologies, Inc., Rochester, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). SIEMENS BUILDING TECHNOLOGIES 1111 “(a) Failing and refusing to bargain with the Interna- tional Union of Operating Engineers, Local 832, as the exclusive collective-bargaining representative of the em- ployees in the following unit, which is appropriate for collective bargaining: All full-time and regular part-time stationary engineers, including the chief engineer, and firemen employed by the Respondent at the IOLA power plant located at 444 East Henrietta Road, Rochester New York, excluding office employees, guards, managerial employees, and supervisors as defined in the National Labor Relations Act, 1947, as amended.” 2. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to bargain with the Inter- national Union of Operating Engineers, Local 832, as the exclusive collective-bargaining representative of the em- ployees in the following unit, which is appropriate for collective bargaining: All full-time and regular part-time stationary engineers, including the chief engineer, and firemen employed by us at our IOLA power plant located at 444 East Henri- etta Road, Rochester New York, excluding office em- ployees, guards, managerial employees, and supervi- sors as defined in the National Labor Relations Act, 1947, as amended. WE WILL NOT unlawfully conduct a poll to determine if our employees wish to be represented by the Union or not. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Federal Law. WE WILL recognize the Union as your collective- bargaining representative and upon request bargain with the Union regarding hours, wages, and other terms and conditions of employment. SIEMENS BUILDING TECHNOLOGIES, INC. Greg Lehmann, Esq., for the General Counsel. Stanley J. Garber, James P. Daley, and David M. Novack, Esqs. (Bell, Boyd, and Lloyd, LLC), of Chicago, Illinois, for the Respondent. Peter C. Nelson, Esq. (Shapiro, Rosenbaum, Liebschutz, and Nelson, LLP), of Rochester, New York, for the Charging Party. DECISION STATEMENT OF THE CASE MARTIN J. LINSKY, Administrative Law Judge. On January 23, and June 17, 2003, the International Union of Operating Engineers, Local 832 (the Union) filed charges in Cases 3–CA– 24050 and 3–CA–24304, respectively, alleging that Siemens Building Technologies, Inc. (Respondent) committed certain unfair labor practices. On August 27, 2003, the National Labor Relations Board (the Board), by the Regional Director for Region 3, issued a consolidated complaint, herein complaint, which alleges that Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act), when it failed and refused to recognize and bargain with the Union, when it told prospective employees that as a condition of employment they had to resign their membership in the Union and when it conducted a poll to determine if its employees wished to be represented by the Union or not. Respondent filed an answer in which it denied that it violated the Act in any way. A hearing was held before me in Buffalo, New York, on Oc- tober 6, 7, and 8, 2003. Based on the entire record in this case, to include posthearing briefs submitted by counsel for the General Counsel, Respon- dent, and the Charging Party, and on my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I. JURISDICTION Respondent has an office and place of business in Rochester, New York. In December 2002, Respondent finalized an installation op- eration and maintenance agreement with the Monroe New- power Corporation, a nonprofit group, which owned the Iola powerplant. Under the agreement, among other things, the coal-fired Iola powerplant was to be decommissioned and re- placed by two gas-fired cogeneration facilities. The coal-fired Iola powerplant was to remain in operation until decommis- sioned and replaced. Respondent admits that it annually purchases and receives at its Rochester office goods and services valued in excess of $50,000 directly from points located outside the State of New York. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1112 Respondent further admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Overview The Iola Power Plant is a coal-fired power plant, which until the end of 2002 was owned and operated by Monroe County. Monroe County, a political entity, had a contract with the Un- ion, which covered many county facilities to include the Iola power plant. The most recent collective bargaining agreement between Monroe County and the Union ran from January 1, 2000, to December 31, 2003, which agreement covered the employees who worked at the Iola powerplant. In 2002, Monroe County sold the Iola powerplant to Monroe Newpower Corporation, a nonprofit corporation. Respondent, Siemens Building Technologies, Inc., entered into an installation operation and maintenance agreement with Monroe Newpower Corporation. The terms of the agreement were that Respondent would take over the Iola powerplant on January 1, 2003, and operate it as a coal-fired facility until it was decommissioned and replaced by two gas-fired cogeneration facilities. The Union represented the employees who ran the coal-fired Iola powerplant. It was obvious the Respondent would need people, i.e., fire- men and engineers, to run the power plant during the time it took to decommission the old plant and replace it with the new cogeneration facility, which would require employees who operated the new facility to have different expertise than the expertise required to run the Iola powerplant. B. Negotiations Begin Between the Union and Respondent Before the Respondent took over the power plant it engaged in negotiations with the Union regarding the employees needed to run the plant. The Union and Respondent met on two occasions, i.e., De- cember 12 and 19, 2002. Respondent, through its witness, Service Operations Man- ager Scott McKee, claims there was a third meeting on Decem- ber 24, 2002, where the Union flat out rejected Respondent’s final offer. I do not credit McKee’s testimony in this regard and find that no negotiations or meeting took place between Respondent and the Union on December 24, 2002. McKee claims that union officials Michael Scahill and James Glathar were present at this December 24 meeting. Scahill and Glathar testified that there was no such meeting and no negotiations and that they were on Christmas leave on December 24 and their calendars introduced into evidence corroborate them. McKee testified that Michael Yacos and Tom Garrett, two members of Respondent’s management team and employee Tim Berna were present at the meeting. Garrett did not testify. Yacos said he was at the plant on December 24 but couldn’t identify Scahill or Glathar as being present and didn’t testify about any discus- sions regarding a contract. Berna doesn’t remember Scahill or Glather being at the plant. Accordingly, the only two negotiating sessions that took place were on December 12 and 19, 2002. Respondent did not take over the power plant until January 1, 2003, and did not hire any employees until December 30, 2002. When the parties met on December 12 and 19, 2002, Respondent had not hired any employees to run the power plant. At the December 12 meeting, Respondent said it was ame- nable to reaching an agreement with the Union. On the follow- ing day, December 13, the Union left some proposals at Re- spondent’s office. On December 18, the day before the scheduled second meet- ing Respondent e-mailed to the Union a proposal for a com- plete agreement effective, January 1, 2003, which contained the following proposed language as to the term of the agreement: This Agreement will terminate on the earlier of eighteen (18) months from its Effective Date or that date on which the Em- ployer completes its work with respect to the operation of the existing Iola Power Plant or the date on which the Employer is relieved of its obligations under its agreement with its cus- tomer to operate the existing Iola Power Plant or the date on which said agreement is terminated. This Agreement will not apply to any construction and repair related work done by the Employer at the existing Iola Power Plant after the existing Iola Power Plant closes operations. The parties met on December 19. They adjourned with the understanding that the Union would draft some language and present it to the Respondent. The Union delivered its proposals to Respondent later on December 19 after the meeting ended. Also late on December 19, Respondent faxed and e-mailed to the Union what Respondent referred to as its “final offer” and requested that the Union let Respondent know what its decisions is “by Friday, December 20th at 12 noon.” The Union’s Michael Scahill left a message at Scott McKee’s office to the effect that the Union had some problems with Respondent’s proposal and the parties should talk further after the holidays. Christmas, needless to say, was just days away on December 25. In addition, the union offices were closed for the holidays on both December 24 and 25. The principal dispute between the Respondent and the Union centered around the “term” of the collective-bargaining agree- ment. Respondent wanted the relationship between Respondent and the Union to terminate once the two new cogeneration facilities were on line and the old plant decommissioned be- cause the jobs’ duties would differ. The employees at the new facility would be working with turbines. The Union wanted the relationship to continue beyond the two new cogeneration fa- cilities coming on line because the people they represented could be trained on turbines and indeed the Union represented employees elsewhere who had turbine experience and told this to Respondent. On December 23, the Union sent the following e-mail to Re- spondent: FROM: Jim Glathar SIEMENS BUILDING TECHNOLOGIES 1113 SENT: Monday, December 23, 2002 11:58 AM TO: McKee Scott Scott, After conferring with our attorney this morning there are a few things in the collective bargaining agreement that we need to discuss, we will be putting together a counter proposal package for you to look at but with the current work load and the upcoming holidays we are hav- ing difficulties getting this prepared. Our office will be closed on the 24th and 25th for the Christmas holiday and I will be out of town on the 26th and 27th. Mike [Scahill] is off today but will be here on Thursday and Friday the 26th and 27th. Hopefully we can get something for you to look at before we schedule another meeting. Some of our concerns are with the time frame for the grievance procedures, how the health insurance payments are earned, Seniority, and some other issues that we have. Mike or myself will be in touch with you right after the Christmas Holiday to schedule a meeting so that we can settle some of these outstanding issues. Have a merry Christmas, Jim Glathar On December 30 Respondent hired the crew it would need to run the Iola powerplant beginning January 1, 2003, when Re- spondent took over the operation of the plant. It is stipulated by the parties that a majority of the work force hired by Respon- dent were former employees of Monroe County who had been represented by the Union. On January 2, 2003 the Union, by Business Representative Michael Scahill, sent Respondent a letter requesting Respon- dent to recognize the Union and to bargain with it. On January 3, 2003, Respondent, by Scott McKee, wrote a letter to the Union saying Respondent was forwarding the Un- ion request for recognition and bargaining to its attorneys. On January 16, 2003, Respondent’s attorney, Stanley J. Gar- ber, sent a letter to the Union denying the Union’s requests for recognition and bargaining. C. Is Respondent a Successor The mere fact that the employing entity changes from a gov- ernmental unit, or public sector employer, such as a State or county, to a private sector employing entity does not mean the new employer—the private sector employer—is not a succes- sor. See Lincoln Park Zoological Society, 322 NLRB 263 (1996), enfd. 116 F.3d 216 (7th Cir. 1997). The new employer can be a successor if it meets certain other criteria. The Supreme Court, in NLRB v. Burns Security Services, 406 U.S. 272 (1972), held that a new employer has a duty to recog- nize and bargain with the incumbent Union when two general factors, which can be summarized as (1) continuity of the work force and (2) continuity of the enterprise, are present. Although Burns dealt with a successor employer’s bargaining obligations to a newly certified Union, it is clear that the Burns rationale is equally applicable to situations where the Union is the estab- lished bargaining agent. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987). In order to establish a “continuity of the work force,” the former employees of the predecessor who were employed in the predecessor’s bargaining unit must comprise a majority of the new employer’s complement within that same bargaining unit. After establishing the continuity of the work force, the analysis proceeds to the second factor: the continuity of the enterprise. In evaluating the continuity of the enterprise, the Board looks to the following elements: (1) whether there was been substantial continuity of the same business operations; (2) whether the new employer uses the same facilities; (3) whether the same jobs exist under the same working conditions; (4) whether the new company employs the same supervisors; (5) whether the same equipment, machinery or processes are used: (6) whether the same products or services are offered; and (7) whether the new employer has basically the same body of cus- tomers. Fall River Dyeing, supra; see also: Sierra Realty Corp., 317 NLRB 832 (1995); Nephi Rubber Products Corp., 303 NLRB 151 (1991), enfd. 976 F.2d 1361 (10th Cir. 1992). The totality of the circumstances frames the analysis and the Board does not give controlling weight to any single factor. Premium Foods, Inc., 260 NLRB 708, 714 (1982), enfd. 709 F.2d 623 (9th Cir. 1983). An employer can be found to be successor even if it pur- chases or assumes only a part of the predecessor’s operations. Miami Industrial Trucks, 221 NLRB 1223, 1224 (1975). The Board and the courts have emphasized that the question of whether or not there is substantial continuity between the old and new business is to be examined from the perspective of the employees affected. The pertinent inquiry is whether there has been enough of a change in operations to defeat the employees’ expectation of continued union representation. Fall River Dye- ing, supra; Premier Products, 303 NLRB 161 (1991); Capitol Steel & Iron Co., 299 NLRB 484 (1990). Generally, another consideration in evaluating a Burns suc- cessor is whether there has been a hiatus between the cessation of the old operation and the commencement of the new busi- ness. Fall River Dyeing, supra. As a rule, the longer the hiatus, the less likely an entity will be deemed a successor. In Burns, the Supreme Court enunciated the principle that, “a successor employer is ordinarily free to set initial terms on which it will hire employees of a predecessor” without first bargaining with the employees’ bargaining representative. The Court recognized an exception to this principle, however in “instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit. . . .” 406 U.S. at 294–295. The Board interprets this phrase to encompass situa- tions whether the successor’s plan includes every employee in the unit as well as those where it includes a lesser number but still enough to make it evident that the Union’s majority status will continue. Spitzer Akron, Inc., 219 NLRB 20, 22 (1975), enfd. 540 F.2d 841 (6th Cir. 1976), cert. denied 429 U.S. 1040 (1977), Fremont Ford Sales, Inc., 289 NLRB 1290, 1296 (1988). In Spruce Up Corp., 209 NLRB 194, 195 (1974), the Board promulgated a specific test to determine whether the exception in Burns applies. Specifically, the Board found that the excep- tion applies if either of the following circumstances exist: (1) where the new employer has actively or, by tacit inference, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1114 misled employees into believing they would be retained with- out change in their wages, hours, or conditions of employment; or (2) whether the new employer has failed to announce its intent to establish a new set of conditions prior to inviting for- mer employees to accept employment. 209 NLRB at 95. A successor employer’s obligation to recognize and bargain is triggered by the incumbent Union’s request for recognition and/or bargaining. It has long been held that a valid request for recognition and/or bargaining need not be made in any particu- lar form so long as the request clearly indicates a desire to bar- gain and negotiate on behalf of the unit employees. It may be difficult in some cases to determine at precisely what point in time a new employer is obligated to bargain. Thus, the Supreme Court has held that a new employer’s obli- gation to bargain attaches when it has hired a “substantial and representative” compliment within the unit. Fall River Dyeing, supra. In determining the existence of a substantial and repre- sentative compliment, the Board must consider whether the job classifications designed for the operation were filled or substan- tially filed at the time the demand for recognition or bargaining was made; whether the operation was in normal or substantially normal production at the time of the demand; the size of the bargaining unit complement on the date of the demand; that the relative certainty of any new employer’s claim that anticipated expansion makes its current unit employee complement not substantial and representative of its normal operations. Respondent took over operation of the Iola Power Plant on January 1, 2003. It is stipulated by the parties that a majority of the employees represented by the Union who worked at the Iola powerplant worked at the Power Plant after Respondent took over its operation. The stipulation read into the record was as follows: The majority of the employees hired by respondent, Sie- mens Building Technologies, at the end of December 2002 had been employed just prior thereto by Monroe County and employed at the Iola Power Plant. These employees include Timothy Berna, B-E-R-N-A, Ray O’Dell, O- capi- tal D-E-L-L, John Ciminelli, C-I-M-I-N-E-L-L-I, Anthony Pursati, P-U-R-S-A-T-I, and Michael Healy, H-E-A-L-Y. The stipulation will also include that the following employees worked at the Iola Power Plant within the pre- vious five months of December of 2002, and those em- ployees include Henry Brown, Paul McBride, James Muhs, M-U-H-S, and Daniel Steinfeldt, S-T-E-I-N-F-E-L- D-T. And furthermore, respondent also hired on December, at the end of December 2002, two part-time employees that had been employed just prior thereto by Monroe County at Iola Power Plant, which includes Rob Camalari, C-A-M-A-L-A-R-I and Jim White, who had been hired— JUDGE LINSKY: Off the record. (Off the record) JUDGE LINSKY: On the record Mr. Lehmann? MR. LEHMANN: Can we go off the record. JUDGE LINSKY: Off the record. (Off the record) JUDGE LINSKY: On the record Mr. Lehmann, on the last two. MR. LEHMANN: On the last two, involving the part- time employees, the stipulation would read that Robert Cammilleri, C-A-M-M-I-L-L-E-R-I, was hired as a part- time employee by the respondent had been employed just prior thereto by Monroe County at the Iola Power Plant. And Jim White had previously worked at the Iola Power Plant. [Tr. 109–110.] Richard Healy testified without contradiction that the work done by the Union represented employees at the Iola power- plant was the same after Respondent took over as before. There was no hiatus in operations. The Iola powerplant was operated the same as before and serviced the same customers. It is clear that Respondent is a Burns successor with an obli- gation to recognize the Union and bargain with it. The failure of the parties to reach agreement on a new con- tract may be grounds for Respondent to declare a lawful im- passe and unilaterally implement its last best offer but it is not grounds for Respondent to refuse to recognize and bargain the Union. The duty to recognize and bargain with the Union is not ter- minated if the Respondent and the Union cannot agree on a collective bargaining agreement. D. The Alleged 8(a)(1) Statements by Respondent’s Agent Beatriz Pyle On December 30, 2002, when Respondent was in the process of offering jobs to the employees to work at the powerplant Beatriz Pyle, an admitted agent of Respondent, told the em- ployees that, as a condition of employment, they had to resign their membership in the Union. Employees Tim Berna and John Ciminelli called Union Rep- resentative Michael Scahill who caused a union attorney to tell Respondent that what was said was illegal. In addition, Scott McKee overheard Pyle make the comment. McKee contacted Respondent’s counsel who instructed McKee to let the employ- ees immediately know that as a condition of employment they did not have to resign their membership in the Union. This was done within 15 minutes of Pyle’s unfortunate statement. None of the employees who heard Pyle’s statement resigned from the Union. In addition, Respondent posted a notice that same day which remained on the bulletin board for 3 months and which pro- vided as follows: Date: 12/30/2002 To: IOLA Plant Employees From: Scott N. McKee Priority: [Urgent] This will confirm our discussion today concerning the status of the jobs in the IOLA Power Plant. Siemens Building Technologies was unable to reach an agreement with the union, and the positions that have been offered to you are non-union jobs. Employees at the Iola Plant can elect to give up their current union membership, however, this will not be re- SIEMENS BUILDING TECHNOLOGIES 1115 quired as a condition of employment. The earlier commu- nication on this matter was a misunderstanding concerning the transition process. Please address any concerns with this issue directly with me. Thank you. Respondent’s very prompt and appropriate disavowal of Pyle’s statement that as a condition of employment the employ- ees would have to resign their Union membership leads me to conclude that Pyle’s statement, since promptly retracted, did not amount to a violation of Section 8(a)(1) of the Act. If Re- spondent had not retracted Pyle’s statement or was dilatory in doing so I would find a violation of the Act. I believe all coun- sel agreed on this but prompt corrective action avoids a finding of an unfair labor practice. I note again that no employee with- drew from the Union. See Passavant Memorial Area Hospital, 237 NLRB 138 (1978). I denied as untimely counsel for the General Counsel’s mo- tion to amend the complaint to allege a violation of Section 8(a)(1) of the Act because of the statement in McKee’s memo of December 30, 2002, that “the positions that have been of- fered to you are non-union jobs.” Although the memo had only recently come into the possession of the General Counsel it had been posted from December 2002 to March 2003. The hearing before me was in October 2003. However, the statement that the jobs offered “are non-union jobs” is further evidence of Respondent’s unlawful refusal to recognize and bargain with the Union. E. Why Respondent Claims It Didn’t Recognize and Bargain with the Union On direct examination, Service Operations Manager Scott McKee was questioned by Respondent’s attorney. Pertinent testimony was as follows: Q. My question to you is, and in the General Counsel Exhibit 9, written by Mr. Garber to Mr. Scahill denies 832’s request for recognition and negotiations. Why did Siemens not recognize and continue to negotiate with 832 in January 2003? A. There was basically two reasons. Q. What are they? A. We had already been down this road, trying to ne- gotiate with them, and we hadn’t gotten anywhere. Q. But what in particular was the stumbling block? A. That they wanted to have a scope that went beyond the Iola power facility. Q. Had you had any indication that Local 832 was go- ing to relent on that position? A. No. Q. All right. A. And the second reason was that we didn’t feel that the employees wanted to have the Union represent them anymore. Q. Did you have a basis for this belief? A. Yes, when the original offers were presented to the Union the— Q. To the Union? A. When we had presented the offer to the Union, the Union did not take that offer back to the employees that it was going to affect. Q. How do you know that? A. Because they had told me that, and they mentioned that they were upset because they thought that, after seeing the offer that was a clear offer. JUDGE LINSKY: Now you say they told you, who is they? MR. NOVAK: Your Honor, on this— JUDGE LINSKY: No, no, no. I’m saying he sounded like he could be saying the Union told them something rather than the persons who were made offers. THE WITNESS: The persons that were made offers. Q. So you said there were four factors that (unclear). A. The second one was that when I had mentioned that the positions that were going to be offered were non- union positions, nobody objected to that. Q. So they all accepted the offer knowing full well it was a non-union job? A. Correct Q. Three? A. Again, when I mentioned that these were non- union positions nobody expressed an interest in (unclear) them. Q. And to this day has anyone expressed an interest in having the Union at Iola? A. No. Q. Anything else? A. The fourth reason was I had a couple of the em- ployees that are now working for Siemens come up to me and say that the Union had not done anything for them, therefore they had no— MR. LEHMANN: Objection, Your Honor, hearsay. THE WITNESS: They told me. MR. LEHMANN: Hearsay MR. NOVAK: Your Honor, I’m not offering that for the truth. I’m offering it for the fact that it was said. JUDGE LINSKY: Objection overruled. Not introduced for the truth of the matter stated, but for the state of mind of the respondent when they made the decision not to rec- ognize the Union? MR. NOVAK: Correct JUDGE LINSKY: All right MR. NOVAK: Could I have the record read back to see the last part of his answer about employees’ statements to him? Q. Why did Siemens decide to poll its employees? A. It was apparent that there were employees that did not necessarily have the Union represent them. So we wanted to verify that.” (Tr. 136–139). On cross-examination by counsel for the General Counsel, the following testimony was elicited: Q. Now going to the four reasons that you had indi- cated previously in your testimony of why Siemens denied recognition and bargaining. The fourth reason that you DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1116 testified to was that a couple of employees had told you that they weren’t happy with the Union, is that correct? A. Not exactly. Q. You testified that these employees had told you that the Union hadn’t done anything for them? A. That’s correct. Q. Can you identify who these employees are? MR. NOVAK: I’m going to object, Your Honor. We are very concerned that this Union will retaliate against our employees if their names are revealed. We think that counsel for the General Counsel and counsel for the Union have ample other means to test the Witness’ credibility, and we strenuously object to the disclosure of names. These are people who obviously have specialized training. They don’t have jobs all over the place, job opportunities available to them. Those job opportunities are largely controlled by this Union and we really do not want to im- peril their livelihoods. MR. NELSON: Your Honor, we’ve been talking names the whole time. He has not identified who they were. He hasn’t really identified how many. If we can’t get the names then it should be treated as though nobody com- plained. We don’t know if the people were actually mem- bers that were hired on that January 1st. JUDGE LINSKY: I think we got a choice here. We can either strike that testimony from this Witness or he can give the names. MR. NOVAK: Can we take a break on that? JUDGE LINSKY: And I’m not sure that he shouldn’t really have to give the names in any event. But why don’t you see? And of course there are several of these reasons. That’s the one about there were four reasons. One was when told it was non-union they didn’t object. That’s eve- rybody they hired, I guess. When told it was non-union, no one expressed the intent that they wanted the Union to come in. That’s with respect to 1 and 4, there’s going to be specific names. One was annoyed that the— MR. NOVAK: let me take about 5 minutes. JUDGE LINSKY: Off the record. (Off the record) JUDGE LINSKY: On the record. MR. NOVAK: Respondent withdraws its objection to the question. JUDGE LINSKY: Okay, you want to repeat it? MR. LEHMANN: Yes. Q. Can you identify the employees who stated that the Union had not done anything for them? A. Yes, there was Henry Brown and Tony Pursati. Q. And it’s your testimony that these conversations took place prior to the denial of recognition or after? MR. NOVAK: Could counsel give a date? Prior to the recognition is a legal— MR. LEHMANN: Okay. JUDGE LINSKY: When did they tell him that would be one way to get at it, and then put it in the frame of in terms of other events that we know about. Q. Did these conversations occur prior to January 16, 2003? A. Yes. Q. Do you recall providing a sworn statement to the National Labor Relations Board regarding this very same issue? A. I remember providing a statement. MR. NOVAK: Your Honor, we will object to the char- acterization of the affidavit being provided for the very same issue. MR. LEHMANN: Okay, I’ll strike that characterization. Q. Now turning to the back page of the affidavit that you have in your hands. A. Yes. Q. Is that your signature? A. Yes. MR. GARBER: Can we identify which affidavit he has in his hands. He has provided two affidavits for the Na- tional Labor Relations Board. JUDGE LINSKY: What page and what’s the date of the affidavit, Mr. Lehmann. MR. LEHMANN: The date of the affidavit is dated July 18, 2003, and right now I’m asking him to turn to page 6. MR. GARBER: Excuse me, there were two affidavits given on that date by Mr. McKee to Mr. Lehmann. Can he please identify which affidavit? MR. LEHMANN: It’s for the case, on the front page it’s for the case 3-CA-24304. MR. GARBER: Thank you. Q. Is that your signature? A. Yes. Q. I’m going to draw your attention to the second page. The first full paragraph, the 2nd sentence, it says “More specifically, I had three specific conversations with Henry Brown in which he indicated to me that the Union has not done anything for him. Thus, he did not want to be represented by the Union.” Is that an accurate reflec- tion of what it reads? A. Yes, it is. Q. The next sentence says these conversations oc- curred somewhere between the end of January 2003 to the beginning of June 2003, correct? A. That’s what it reads. Q. The very next paragraph goes on to say, I also had conversations with Anthony Pursati regarding his dissatis- faction with how the Union handled the negotiations with the project labor agreement. These conversations occurred in May 2003. Correct? A. That’s what it says.” [Tr. 151–161.] It seems clear that the complaints of employees Henry Brown and Anthony Pursati occurred after Respondent refused to recognize and bargain with the Union. The other reasons advanced by McKee for not recognizing and bargaining with the Union do not demonstrate objective loss of majority support. At most Respondent may have had grounds to petition the Board for an election but Respondent had insufficient reason to either refuse to recognize the Union or to withdraw recognition. See, Levitz Furniture Co. of the SIEMENS BUILDING TECHNOLOGIES 1117 Pacific, 333 NLRB 717 (2001). Under Levitz Respondent would need to show actual loss of majority support to justify its refusal to recognize and bargain with the Union. Accordingly, Respondent violated Section 8(a)(1) and (5) of the Act when it refused to recognize and bargain with the Un- ion. F. Polling In June 2003, Scott McKee testified that based on the rea- sons he articulated for refusing to recognize the Union and for certain additional reasons he caused a poll to be taken among Respondent’s employees as to whether or not they wanted to be represented by the Union. The additional reasons were that employees Ray O’Dell and Anthony Pursati were helped out by Respondent when they had medical problems and that Bert Lute, a former employee at the Iola powerplant and a former union officer told Scott McKee that, according to union official Michael Scahill, if the employ- ees didn’t want the Union to represent them the unfair labor practice charges would be dropped. Scahill denies he said this to Lute but Lute did tell this to McKee. In any event Respon- dent decided to conduct a Struksness poll under the auspices of the American Arbitration Association.1 And Respondent de- cided to do it on June 16, 2003, just days before the case was scheduled for trial in the hopes that the results of the poll would obviate the need for the hearing. In any event the hearing was postponed and not heard by me until October 2003. Respondent refused the Union’s request to be present during the polling but did permit union representatives to be present when the voters were counted. The vote was 7 votes against representation by the Union and 0 votes for representation by the Union. It is alleged that the taking of the poll violated Section 8(a)(1) of the Act and I agree because the poll was tainted by the unremedied unfair labor practice of Respondent dating back to January 2003 when Respondent unlawfully refused to recog- nize and bargain with the Union. See Power Electrical Mfg. Co., 287 NLRB 969–970 (1987), affd. in pertinent part 906 F.2d 1007 (5th Cir. 1990). Under Struksness an employer can not conduct such a poll if it has engaged in unfair labor prac- tices. REMEDY The remedy for Respondent’s unlawfully conducting a poll will be a cease and desist order and the posting of an appropri- ate notice. The remedy for Respondent’s unlawful refusal to recognize and bargain with the Union will be a cease and desist order, the posting of an appropriate notice, and a requirement that, upon request from the Union, that Respondent recognize the Union and bargain with the Union in good faith. Needless to say once the old Iola powerplant was decommissioned the service of some of employees hired to run the Iola powerplant from Janu- ary 2003 until it closed may be unnecessary. In that event ef- fects bargaining would be in order, i.e., severance pay, etc. On 1 Struksness Construction Co., 165 NLRB 1062 (1967). the other hand some or maybe even all employees went to other jobs at the new cogeneration facility. One of the problems Respondent and the Union had in reach- ing an agreement on a contract in December 2002 was that Respondent wanted to limit a contract to 18 months or shorter provided the Iola powerplant was decommissioned and the new cogeneration facility on line. CONCLUSIONS OF LAW 1. Respondent, Siemens Building Technologies, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, International Union of Operating Engineers, Local 832, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (5) of the Act when it refused to recognize the Union and bargain with it. 4. Respondent violated Section 8(a)(1) of the Act when it conducted an unlawful poll as to whether its employees wished to be represented by the Union or not. 5. The above violations of the Act are unfair labor practices affecting commerce within the meaning of Section 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 recommended2 ORDER Respondent, Siemens Building Technologies, Inc., Roches- ter, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unlawfully refusing to recognize and bargain with the Union. (b) Unlawfully conducting a poll among its employees as to whether they want to be represented by the Union or not. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Upon request recognize the Union as the collective bar- gaining representative of the employees in the appropriate unit and bargain with the Union in good faith. (b) Within 14 days after service by the Region, post at its fa- cility in Rochester, New York, and all other places where no- tices customarily are posted, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 3 after being signed by the 2 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. 3 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1118 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 customarily are posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other mate- rial. In the event that Respondent has gone out of business or closed the facility involved in these proceedings, the Respon- dent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees em- ployed by the Respondent at any time since January 1, 2003. (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.