Plant and Field Service Corp.

PLANT AND FIELD SERVICE CORPORATION Plant and Field Service Corporation and Oilfield Maintenance Workers, Local 1234 and Interna- tional Union of Petroleum Workers, affiliated with The Seafarers International Union of North America, Party to the Contract. Case 21-CA-8435 August 1 1, 1970 DECISION AND ORDER On December 30, 1969, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion . He further found that Respondent had not en- gaged in certain other unfair labor practices and recommended that the appropriate portions of the complaint be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, the Respondent filed an answer to the General Counsel's exceptions and brief, and the Party to the Contract filed cross- exceptions to the Trial Examiner's Decision and 'a brief in support thereof and in answer to the General Counsel's brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the cross-exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, with the following modification. The Trial Examiner found that by distributing checkoff authorization forms to eight employees on February 10, 1969, as part of its hiring process, Respondent assisted the Party to the Contract and interfered with the rights of employees in violation of Section 8(a)(2) and (1) of the Act. Viewing the circumstances surrounding the distribution in this case, however, where the forms indicated on their face that execution was voluntary and where em- ployment was not conditioned on execution, we find that no violation has occurred. In our view, whatever improper effect the initial distribution might have had was promptly and fully remedied when the Respondent sent a letter to all employees on February 14 which emphasized that the checkoff authorization was voluntary. Accordingly, we shall dismiss the complaint in its entirety. ORDER 849 It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: This case was tried at Los Angeles, California, on August 19 and September 16, 18, and 19, 1969.' The issues litigated were framed by a complaint dated April 30, alleging violations of Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as amended, and answers filed by Plant and Field Ser- vice Corporation, herein called Respondent, and by International Union of Petroleum Workers, af- filiated with the Seafarers International Union of North America, AFL-CIO, Party to the Contract, herein called the Petroleum Union, both of which answers admitted some and denied other factual al- legations of the complaint but denied that Respon- dent violated the Act. The complaint was based on a charge filed on February 13 by Oilfield Main- tenance Workers, Local 1234, herein called the Maintenance Union. All parties appeared at the hearing and were given full opportunity to par- ticipate, to adduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs herein. Briefs which have been carefully considered have been filed on behalf of the General Counsel, Respondent, and the Petroleum Union. ISSUES 1. Whether Respondent became the successor to the bargaining relationship that Wonderly Con- struction Co., herein called Wonderly, had with the Maintenance Union when Respondent displaced Wonderly as the oilfield maintenance contractor on an oilfield operated by Thums Long Beach Com- pany, herein called Thums, located at Long Beach, California, herein called the Thums' facility. 2. Whether Respondent unlawfully assisted the Petroleum Union by extending its contract with that Union to cover its employees at the Thums' facility. 3. Whether Respondent unlawfully required its employees at the Thums' facility to sign dues- checkoff authorizations in favor of the Petroleum Union. Upon the entire record' of the case and from my observation of the witnesses and their demeanor, I make the following: ' All dates ate in 1969 unless otherwise specified ' All parties herein filed a point motion to correct the transcript of the record The motion is granted and the corrections are set forth in Appendix B of this Decision (omitted from publication] 184 NLRB No. 100 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a California corporation, is engaged in plant maintenance work of a mechanical nature and oilfield maintenance work. During 1968, Respondent performed services valued in excess of $50,000 for customers, each of whom shipped products to and performed services for customers located outside the State of California, which were valued in excess of $50,000. The complaint alleges, the answers admit,3 and I find the Respondent is an employer engaged in commerce 'within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the Respondent and Petroleum Union admit,' and I find that the Petroleum Union , the Maintenance Union , and the Southern California District Council of Laborers, affiliated with the Laborers ' International Union of North America, AFL-CIO, herein called the Dis- trict Council , are labor organizations within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting and Facts 1. The Thums operation Oil deposits in California are located in a somewhat checkerboard pattern, with the main production in Los Angeles and Orange Counties. The primary area is 40 or 50 miles from end to end. One of these deposits is near the city of Long Beach. In late 1964 or early 1965, the city of Long Beach, California, held a public bidding for the development of certain oilfields known as the East Wilmington Field, which underlies the Pacific Ocean just south of the city of Long Beach. Tex- aco, Humble, Union, Mobile, and Shell oil compa- nies formed a company which they named Thums to bid on the project. Thums was the successful bidder. As part of its development project, Thums created four man-made islands in the ocean off the city of Long Beach. Each of these islands, which were designated as islands A, B, C, and D, have about 10 acres of surface area. Drilling, pumping, and injection (the introduction of water into the well to maintain pressure) were undertaken on each of the islands. Thums also drilled, pumped, and injected on a location on the Long Beach The answer of Petroleum Union as amended at the hearing Either by answer, amended answer, or by stipulation The following general oilfield maintenance contractors performed ser- shorefront known as pier J. Also on pier J, Thums built a large storage area, a central treating area where all the oil was treated, and pumping and pipeline equipment for moving the oil to another location in Long Beach where the oil left Thums' ownership. There are no treating or storage facili- ties on the island except for small tanks. Materials to be taken by barge to the islands leave from another pier facility known as pier G, which is near pier J. The islands are about 5 to 15 minutes offshore. By the latter part of 1965, some of the new con- struction and drilling had been completed and it became necessary to have men working on the maintenance of the facilities that had already been installed. This maintenance work was done on a fill- in basis by the construction contractors until some time in 1968, when enough of the construction was completed so that there was a need for the regular use of maintenance crews to maintain the facilities. From that time on Thums began using contractors who supplied general oilfield maintenance crews. 2. The work performed by Wonderly One of the contractors that Thums used to furnish general oilfield maintenance crews was Wonderly. Wonderly is primarily engaged in heavy construction work with about 90 percent of its gross revenue derived from new construction. As a heavy construction contractor, Wonderly per- formed construction work for Thums on the islands. In addition to that work, Wonderly supplied general oilfield maintenance crews for Thums between September 1968 and February 7, 1969. During that period, Wonderly performed main- tenance services only on pier J and other related onshore locations, such as pier G. All such work was closely related and will generally be referred to as pier J work. Other general oilfield maintenance contractors furnished crews on the islands.5 Won- derly used maintenance crews that were separate and distinct from its new construction crews. There was no interchange between the crews. Though Thums exercised a good deal of control over the contractors, the contractors were responsible for performing certain tasks with their own employees and the means of performing these tasks were left largely to the contractors; there is no contention that they were other than independent contractors. Each of these contractors worked pursuant to a written contract with Thums which was terminable at will by either party. Contracts often were ter- minated and different contractors were used. General oilfield maintenance work is a designa- tion of job tasks that is far from exact. In/general it includes all maintenance work between' the well- head and the delivery point into the pipeline. The vices on the islands Pierose on island A, O'Meara and,Rogers on island B, Western Maintenance on island C, and Ledford on island D PLANT AND FIELD SERVICE CORPORATION 851 employees of the general oilfield maintenance con- tractors, who are called roustabouts, do cleanup work, pick up oil spills, lay pipe and screw it together, tear out pipe and transport it, clear out cellars, help tear down heater treater vessels so that specialists can work on them, and perform a mul- titude of other tasks, some of which are difficult to distinguish from new construction. These em- ployees will on occasions not only rip out old pipe but put in new pipe to replace it. It is not unusual for them to set tanks even though the tanks are new. The work that these employees perform is the same on pier J and on the islands except that on the islands there is no need to maintain heater treater equipment or other special facilities that are located only on pier J. The tools that the employees use on the islands and pier J are basically the same. A frames, vacuum trucks, skip loaders, compres- sors, and related equipment plus small tools such as pipe wrenches and pipe threading machines are used. Each contractor is required to supply his own equipment. In addition to the work on pier J, Wonderly also did some maintenance work on pier G. That con- sisted of picking up parts, cleaning work, and paint- ing. It was done with the same crews that work on pier J. On February 7, 1969, Wonderly was work- ing two maintenance crews. One consisted of a foreman and seven employees and the other of a foreman and six employees. Each of the four con- tractors on the islands employed from five to eight employees. There was more work to be done on pier J than any single island, but more work on the islands as a group than on pier J. 3. Wonderly's contract with the Maintenance Union Prior to August 1, 1967, Wonderly had a collec- tive-bargaining agreement covering maintenance employees with Local 507, Laborers' International Union of North America , AFL-CIO , which was af- filiated with the District Council . Local 507 was primarily a construction local but it also contained members who were maintenance employees. Pur- suant to a policy whereby the Laborers ' Interna- tional Union sought to give separate identity to oil- field maintenance employees , the International on March 18, 1968, chartered the Maintenance Union as a separate organization for such employees. On September 1, 1968, Wonderly, through its member- ship in the Los Angeles Basin Oilfield Contractors' Association, became bound to a contract with the District Council and its affiliated Maintenance Union . The contract, by its terms, was to remain ef- fective through December 31, 1969 , and from year to year thereafter unless 60 days' written notice was given prior to an expiration date. Wonderly agreed to recognize the Maintenance Union as the exclu- sive bargaining agent for all its employees over whom that Union had jurisdiction. The territorial jurisdiction was set forth as including 12 California counties. The coverage of the unit was set out as follows: A. Oilfield Production and Maintenance is defined as all work within private and/or leased oilfield property, including installation, main- tenance and repair, grounds and property, and such other work as pertains to the production of oil, gas and water from its source to discharge from the shipping pump or compres- sor to the refinery or customer, also including the maintenance and repair of meter runs, cen- tral or mainloading racks, booster stations, compressor stations, pumping stations, located within the field containing the oil, gas or water wells, also including the maintenance on offshore drilling platforms and artificial islands; but specifically excluding new construction, construction of absorption plants, meter runs, adjacent thereto, booster stations, coi pressor plants, pumping stations, and any initial instal- lation of a like nature, as well as any major ex- pansion, alteration, or addition thereto; and also excluding transportation gas and oil pipelines and utilities, including booster sta- tions, pumping stations, and tank farms along the right-of-way of the transportation gas and oil pipelines and utilities. It is specifically un- derstood and agreed that this Agreement does not cover any work which is already covered by construction agreements between the Union and other employers including, but not limited to, that certain collective bargaining agreement known as the Southern California Master Labor Agreement between Southern California General Contractors and the Southern Califor- nia District Council of Laborers. This contract was applied to Wonderly's main- tenance work for Thums. However, as the contract was interpreted by the parties, 7 out of 15 in- dividuals named on Wonderly's payroll for Februa- ry 7 were not covered by the agreement. One was excluded as an operating engineer, another as a welder, and five more as pipefitters.6 A master labor agreement with the Associated General Con- tractors was applied for the operating engineer, pipefitters, and welder. Two truckdrivers were in- cluded within the bargaining unit of the Main- tenance Union.' Kupka testified that in his capacity as foreman he had discharged an employee, and Paul E. Stillman, Respondent's president, testified that foremen had the power to discharge employees and to hire new employees for their own crews. Though Stillman in a different part of his testimony stated that foremen 6 The 15 who were named were Kupka ( foreman ), Cole, Lawson , Smith, Coupe, Wise, Baity, Heston, Sanders , Williams, Pugh, Freeman , Pittman Jones, and Perez Heston was the operating engineer, Perez, the welder, and Sanders ( listed on Wonderly's records as a foreman), Williams, Pugh, Freeman, and Pittman, the pipefitters ' Wise and Baity 427-835 0 - 74 - 55 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could only make recommendations, it appears that these were effective recommendations. I find that Kupka was a supervisor within the meaning of the Act. From the 15 persons named on Wonderly's payroll for February 7, Kupka as foreman, Heston as operating engineer, Perez as welder, and Sanders (who was also a foreman), Williams, Pugh, Freeman, and Pittman as pipefitters cannot be con- sidered within the bargaining unit described in the contract between Wonderly and the Maintenance Union. Only seven employees, Cole, Lawson, Smith, Coupe, Wise, Baity, and Jones, were covered by that contract as of the last day that Wonderly performed maintenance work for Thums. It is the usual practice for collective-bargaining contracts covering oilfield maintenance employees to be based on a geographical area so that the con- tractor can move from job to job and work under the same contract in the entire area among the oil- fields. Wonderly worked at various times at the Huntington Beach field, the Sunset field, and the Fillmore area, and in each case the crews were moved from one field to another but remained in the same bargaining unit so that the employees did not have to transfer from one union to another when they transferred from jobsite to jobsite. The general practice in this industry is that each con- tractor brings in his own crew. 4. Respondent's prior work Since 1966, Respondent has been performing maintenance services both in chemical plants and on oilfields. Though both types of maintenance in- volve work related to the movement of liquids and therefore are somewhat similar, the crews that Respondent used for plant maintenance were al- ways separate from those doing oilfield main- tenance and the plant maintenance part of Respon- dent's business has little bearing on this case. The type of oilfield maintenance work performed by Respondent was the same as that done by Won- derly, which is described above. However, there is no ownership or business relation between Respon- dent and Wonderly. In general, the work included all maintenance work between the wellhead and the delivery point on the pipeline, but it also included a multitude of tasks including some that could be considered new construction Since 1966, Respon- dent performed oilfield maintenance work for vari- ous oil companies at Huntington Beach, Yorba Lin- da, Newport Beach, and Culver City, all in Califor- nia. Some of the jobs lasted for extended periods but others were for only a few weeks or months. In January 1969, Respondent was performing general oilfield maintenance services for Gulf Oil at Century City, which was about 30 miles from Thums, and for Standard Oil at Yorba Linda, California, which was about 20 miles from Thums. At each of these sites Respondent employed about four roustabouts. At that time Respondent knew that the Yorba Linda project would have to be phased out. 5. The bid for the Thums maintenance work Prior to February 7, 1969, Thums was using five separate contractors who had no relation to each other. Wonderly was on pier J and different con- tractors were on each of the four islands . Each of the five contractors had a contract with Thums that was terminable at will. Some time prior to October 31, 1968, Thums was criticized by the State of California because the maintenance work being performed was more ex- pensive than the work done by certain competitors. Thums decided to switch from a variety of main- tenance contractors to a single contractor in the hope that the work could be done more inexpen- sively. In addition, Thums decided to give the con- tractor who was awarded the work a contract for a fixed duration of 1 year, again in the hope of reduc- ing costs by guaranteeing a minimum of work. The city of Long Beach directed Thums to award the maintenance work by competitive bidding. As a result, on October 31, 1968, Thums issued an in- vitation to bid on the general oilfield maintenance work to number of contractors, including Respon- dent and Wonderly.8 On December 5, 1968, Respondent was determined to be the low bidder. About that date, Thums told Respondent that it was. low bidder and that a final award would be made subject to Respondent's securing a state license and review by Thums of Respondent's labor agreement. Thums' policy was to award contracts only to con- tractors who had agreements with labor organiza- tions. Respondent received the state license but was told by Thums that an addendum was needed to the contract it had with Petroleum Union to specifically note Respondent's new worksite at Thums. The ad- dendum was added and Respondent was awarded the work. By letter dated February 7, Respondent was formally awarded the work, which was to begin on February 10. Pursuant to the contract, Respon- dent was to do all of the general oilfield main- tenance work on pier J and the four islands. How- ever, in order to allow the contractors on the islands and their unions time to place their em- ployees elsewhere and avoid putting them out of work, Thums arranged for Respondent to take over the work on a staggered basis. Respondent was scheduled to begin the pier J maintenance work on February 10, the island C maintenance work on " Respondent submitted its bid based in part on the wage rates contained in its contract with the Petroleum Union and Wonderly submitted its based in part on its contract with the Maintenance Union PLANT AND FIELD SERVICE CORPORATION 853 February 24, the island D maintenance work on March 3, and the island B maintenance work on March 10.9 The schedule also provided for Respon- dent to staff pier J with one foreman and seven men and to staff each of the four islands with one foreman and five men. 6. Respondent's staffing of the Thums job Respondent's general approach to staffing new jobs was to use people who were already on the payroll, to use a file of applicants that was kept in a central location, and as a final resort to use newspaper advertising. Priority is given to em- ployees who previously worked for Respondent. Shortly before Respondent undertook the Thums job, it was in the process of phasing out its Yorba Linda work and Respondent intended to transfer the crew from Yorba Linda to Thums and to add other employees who had formerly worked for Respondent but who were not then working. At that time Respondent anticipated that a total com- plement, including foremen, of 45 to 50 men would be required. Additional employees were to be hired by the foremen with the subsequent approval of higher management and through central hiring. James M. Cook is the manager of field operations for Respondent, and clearly is a supervisor within the meaning of the Act. A few days before Februa- ry 7, while he was at the Thums' facility, one of Thums' foremen named Hill introduced him to Wil- lard Sanders, Wonderly's general foreman. Sanders asked Cook how he was fixed for labor and Cook answered that he had all the people that he needed to start with. Sanders replied that Wonderly had quite a few employees on pier J and that Wonderly didn't need them any longer. He asked if Cook had any use for them and Cook answered that they could probably use some additional employees but he didn't know whether it would be on pier J or not. After some discussion of the wage rate that Respondent was paying and the contract that Respondent had with the Petroleum Union, Sanders said that he had a lot of good people on pier J and he hated to see them without a job so he would get a list of employees who wanted to work for Respon- dent and give them to Cook. On February 6, Cook was once again on the Thums' facility, where he met William J. Kupka, one of Wonderly's foremen. They discussed the possibility of Wonderly employees going to work for Respondent and Kupka said that he would get a list of people that wanted to work for Respondent and give the list to Sanders. On February 7, while Cook was once again at Thums' facility, Sanders gave him a list of people who worked for Wonderly who wanted to work for Respondent. Sanders told Cook that they were all good, especially Kupka. Thums' foreman, Hill, was also present and concurred with Sanders. The names on the list were Kupka, Baity, Wise, Coupe, and Cole. Cook went over the list with Kupka, who recommended each man and gave his qualifica- tions. Cook told Kupka to have all the men on the list at work on February 10 and they would see if they could find a place for them. Later on the same day, which was a Friday, Thums' foreman, Hill, told Cook that there was some work that needed doing over the weekend, cleaning a frog pond (the place where oil skim is removed from water before it is returned to the ocean ). Cook answered that he had not planned to have anybody work until February 10, and Hill said that Wonderly's crew had already been released. Coupe then went to Kupka and told him to pick another man and the two of them could begin the frog pond cleaning work the following morning. Cook also arranged to have four men bring equip- ment , trucks, and hand tools from Respondent's yard to the Thums' facility over the weekend.'o Respondent's payroll records show that on February 10 it began working for Thums with one foreman and eight employees. The foreman and seven of these employees had, through February 7, worked for Wonderly.'t In addition, the name of R. 1. Marcum, an employee of Respondent who had worked at Yorba Linda and was transferred to the Thums' facility, also appears on the payroll. The payroll for the following day, February 11, does not show Lawson as having worked but does add the name of D. L. Bellini, another employee of Respon- dent's who was transferred from Yorba Linda. Respondent's records also show the number of em- ployees, excluding foremen, employed on succeed- ing weeks . For the week ending February 16, there were seven employees on pier J. For the week end- ing March 9, the seven on pier J remained , but six employees were added to island B. For the week ending March 16, pier J had seven, island B six, island C six, and island D two. For the week ending March 23, pier J had seven, island B five , island C six, and island D six . For the week ending March 30, pier J had 7, island B 6, island C 8, island D 11, and island A 7. From that time on pier J as well as all four islands were staffed and the payroll records show that from March 30 through July 27, the em- ployee complement, excluding foremen, ranged from a low of 38 for the week ending April 6 to a high of 56 for the week ending June 29. Each crew, whether on pier J or one of the islands, had its own foreman. None of Respondent's employees used any tools or equipment owned by Wonderly. Even the con- struction shack which Wonderly had used was "The testimony of Thomas S Richards, vice president and manager of Thums, on which these findings are based, does not mention any date for staffing island A However, Respondent 's records show that it started staffing island A the week ending March 30 ` o Kupka and Cole worked 4 hours on February 7 and 4 hours on Februa- ry 8 on the frog pond Kupka, Barry, Wise, and Coupe each worked 4 hours in equipment moving on February 8 " The foreman was Kupka, the employees were Barry, Perez, Wise, Lawson, Coupe, Cole, and Smith As noted above, Perez had been ex- cluded from Wonderly's bargaining unit with the Maintenance Union, as he was a welder Thus, there were six employees who had been part of that unit 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD removed and Respondent brought its own shack. Ninety-nine percent of the tools used by Respon- dent came from Respondent's yard in Santa Fe Springs. 7. Respondent's contract with Petroleum Union On June 1, 1968, Respondent and the Petroleum Union executed a collective-bargaining agreement which, by its terms, was effective from March 1, 1967, until April 30, 1969, and thereafter, unless certain written notices were given. The recognition provision of the contract read: A. The Company recognizes the Union as the exclusive bargaining agent of those em- ployees of the Company referred to in this Article for the Purpose of collective bargain- ing with respect to rates of pay, wages, hours of work, and other conditions of employ- ment. B. This Agreement shall apply to employees on the payroll of the Company including all production, construction, and maintenance employees for work being performed for the Company's client named in the addendum to this Agreement, but excluding office, execu- tive, clerical, timekeepers, guards and super- visors above the rank of foreman. Though the above unit description applies only to work being performed for Respondent's "client named in the addendum to this Agreement," the contract, which was admitted in evidence without objection, does not disclose any addendum except one for Thums which was executed on January 31. However, the uncontradicted testimony of Paul E. Stillman, president of Respondent, establishes that Respondent uniformly applied this contract with the Petroleum Union to all of its general oilfield maintenance jobs, and it was the understanding of both Respondent and the Petroleum Union that the contract covered all employees whether or not Respondent had notified the Union as to the exact location where the work was taking place. As noted above, before Respondent was formally awarded the maintenance contract, it was notified by Thums that an addendum should be added to the contract between Respondent and the Petrole- um Union so that Thums would be specifically named. Though both Respondent and Petroleum . Union felt that an addendum would not be needed for the contract to cover Respondent's work for Thums, an addendum was executed on January 31, because Thums had requested it. The collective-bargaining agreement also con- tained a union-security clause requiring employees to join the Union within 30 days after the date of 11 The cards in question read Date '19 (TYPE OR PRINT NAME) PAYROLL DEDUCTION AUTHORIZATION OF UNION DUES hereby authorize (Company) to deduct monthly from my wages the amount equal to the then regu- lar monthly dues of the International Union of Petroleum Workers, employment or the date of the agreement, whichever was later, and a provision for the volun- tary checkoff of dues and initiation fees. The contract coverage as interpreted by the parties thereto was similar to the coverage under the agreement between Wonderly and the Main- tenance Union except in one major area. Wonder- ly's contract as interpreted by the parties thereto did not cover operating engineers, welders, or pipefitters. Employees in those classifications were covered by different contracts with different unions. Respondent, when it took over the main- tenance work, informed its employees that they would be expected to do all work and that all would be covered under the Petroleum Union contract. 8. The incident involving the checkoff The findings of fact set forth above is a com- posite of testimony of a number of witnesses, all of whom testified credibly and without substantial contradiction. However, a sharp conflict of testimony does exist with regard to the circum- stances under which certain employees of Respon- dent signed checkoff authorizations in favor of the Petroleum Union. James M. Cook, manager of field operations for Respondent, testified as follows: On February 8, he spoke to the men who were working that day about the wage rates in the Petroleum Union contract and showed them a copy of the contract. Some of the men may have signed applications for employment at that time. On February 10, he met with all the employees who were working that day and he handed each of them a W-4 form, an employment application, and a payroll deduction authorization for union dues in favor of the Petroleum Union. He told the employees that they had to fill out the ap- plication for employment and the W-4 form. One of the employees asked when he wanted the cards back and he answered that they could give them back when they wanted to and the only require- ment in the contract was that the employees had to become a member after 30 days. He specifically de- nied ever telling them that they would lose their jobs if they didn't immediately turn in the signed checkoff authorization card, but acknowledged that he did say the card should be turned in within 30 days if the employees decided to join the Union. Some time later, one of the employees, Wise, told him the card had the wrong address and asked for its return . Cook did return it and Wise substituted a new one thereafter without saying anything more about it.12 Kupka's testimony concerning the cards differed substantially from that of Cook. Kupka testified as AFL-CIO, and to pay such definite amount in full to such Union until further notice from me It is understood that this authorization is voluntary , and shall remain in force until cancellation by me, such cancellation to be submitted to the payroll office not later than the IOth of the month in which the deduction is to be cancelled Witness Signed Date of Birth Address Local City Dept Zip # PLANT AND FIELD SERVICE CORPORATION 855 follows: Cook gave him the checkoff authorization cards to pass out among the employees the morning before he started working. Cook told him to return the cards that evening because he (Cook) had to have them but Cook did not make any statement about what would happen if the men did not sign the cards, and no threats were made concerning the cards. About 4 p.m. on February 10, Cook met with all the employees. Cook told the men that all the cards had to be signed for the Union and had to be turned in that day. Cook did not say anything about what would happen if the cards were not signed nor did he say anything about the signing being a condition of employment. However, he left for home after signing his card and other employees were still there. Two employees also testified concerning the checkoff authorizations. Charles E. Wise testified that at the meeting with Cook on February 10 Cook not only gave the cards to the employees but told them that it was necessary for them to sign and turn in the cards because they could not work there unless they were. Wise also testified that he sub- sequently got back the card from Cook on the pre- text that the card had the wrong address but that Cook told him that another card had to be signed and turned in. Wise did turn in another card but it was unsigned. Another employee, John D. Baity, corroborated parts of Wise's testimony. In his initial testimony Baity testified that he did not hear Cook say anything about checkoff cards, but after his memory was refreshed by the examination of an af- fidavit that he had previously given, he testified that at the February 10 meeting Cook passed out the checkoff cards and told the employees that the cards had to be signed and returned that night if the employees wanted to work there. The testimony of Wise and Baity must be viewed in connection with the report that they gave to Leas, the general representative for the Main- tenance Union. Leas testified that he spoke to Wise and Baity, as well as the rest of the crew, and they reported to him that Cook told them that he would like them to sign authorization cards and give them back to him and that "they had to get them back in so that they would be members at the end of 30 days or they could not work there." After observing all of the witnesses and reviewing their testimony, I credit Cook's version of the February 10 meeting. Wise and Baity testified that Cook told them they had to sign the cards if they wanted to work there. However, according to Leas' testimony, Wise and Baity told him in effect that they had to join the Union within 30 days to work there. Kupka testified that he heard no threats at all. Cook's testimony that he only told the men that they had to join the Union within 30 days was con- vincing and is credited. However, I do find, on the basis of Cook's own admission, that he did dis- tribute the checkoff authorization cards to em- ployees. On February 14, Respondent sent the following letter to all employees: Shortly after you were employed by us, you signed a "Payroll Deduction Authorization of • Union Dues" card. The purpose of this card is to provide for monthly deduction of dues of the International Union of Petroleum Workers. Dues will not be deducted from your wages until such time as you decide to become a member of the I.U.P.W. By the terms of our agreement with the I.U.P.W., you must become a member of the I.U.P.W. by the thir- ty-first day of your employment by us. Prior to this time you may or may not become a member, at your option. The deduction authorization is voluntary. You may cancel the authorization and pay dues directly at such time as you become a member and dues are payable. 9. The strike and the demand for recognition by the Maintenance Union On February 10, employees Wise and Smith and, on February 11, employees Baity and Cole signed bargaining authorization cards in favor of the Main- tenance Union. All the cards showed that the em- ployees were employed by Respondent. Employee Wise collected the cards and on February 13 gave them to Leas, the general representative for the Maintenance Union. On the same day, the Main- tenance Union began picketing Respondent at the Thums' facility. After the picketing began neither Kupka nor any of the employees, except Marcum, who began work on February 10, reported for work. All engaged in picketing and all were replaced by Respondent. On or about February 11, Leas, on behalf of the Maintenance Union, and Stillman, on behalf of Respondent, had a conversation. In substance Leas said that he wanted to talk about a contract with his union and Stillman replied that he would not discuss a contract because of his outstanding con- tract with the Petroleum Union. B. Analysis and Conclusions 1. The successorship issue The United States Supreme Court has held that "the disappearance by a merger of a corporate em- ployer which has entered into a collective-bargain- ing agreement with a union does not automatically terminate all rights of the employees covered by the agreement, and that, in appropriate circumstances, present here, the successor employer may be required to arbitrate with the union under the agreement. .." John Wiley and Sons, Inc. v. Livingston, 376 U.S. 543 (1964). In reaching this conclusion the high Court equated the merger situation with one where an owner is replaced by 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD another owner but the business entity remains the same. This concept of continuing business entity has been consistently employed by the Board to require successor employers to honor the bargaining obligations of their predecessors." In Will Coach Lines, Inc., 175 NLRB 518, the Board adopted the decision of Trial Examiner George J. Bott which held in part: Respondents refused to bargain with the Union when it took over E & OV's operations, and it justifies its refusal on various considerations connected with the transfer and change of ownership. It has long been established, how- ever, that a change in ownership in an enter- prise does not automatically extinguish the rights of employees or their representatives and absolve the new owner from any duty to recognize the union which represented his predecessor's employees or to comply with any of the terms of a labor contract which covered those employees. Since it is the "employing in- dustry" which the Act seeks to regulate,10 the predecessor's obligations may devolve on the successor in certain circumstances. Critical questions in determining the extent of the new employer's obligations are whether there has been a "substantial continuity of identity in the business enterprise" or "the enterprise remains essentially the same," after the change in ownership." The basic question had also been described as "whether respondent continued essentially the same operation, with substan- tially the same employee unit .... 1114 In at- tempting to answer these critical questions and determine whether a new employer is a "suc- cessor employer" obligated to bargain with the Union which represented his predecessor's em- ployees, the Board and the courts consider many factors. What combination of factors is controlling is not always easy to determine, but prime considerations are the continuation of the business without substantial interruption, in such a form as to make the bargaining unit readily discernible, with some or all of the former employees employed at their old jobs.13 10 N L R B v Cotten, d/b/a Kiddie Kover Mfg, Co , 105 F 2d 179, 183 (CA 6) " John Wiley & Sons, Inc v Livingston, 376 U S 543, Cruse Motors, Inc , 105 NLRB 242, 247 i2 Maintenance, Incorporated, 148 NLRB 1299, 1301, Glenn Gould- ing, d/hla Fed-Mart, 165 NLRB No 22 11 Overnite Transportation Company v N L R B , 372 F 2d 765 (C A 4), Randolph Rubber Company, Inc, 152 NLRB 496, Firchau Logging Company, Inc , 126 NLRB 1215, 1221 As counsel for the General Counsel points out in his comprehensive and well-written brief, the suc- cessorship principle has been applied by the Board where a successor has introduced improved 13 Sec Wackenhut v International Union , United Plant Guards , 332 F 2d 954 (C A 9, 1964), Overnite Transportation Co v N L R B , 372 F 2d 765 machines and techniques, changed the managerial staff and used a new trademark, Randolph Rubber Company, 152 NLRB 496, and the same doctrine has been used where there did not exist any privity of contract between the predecessor and the suc- cessor. Thus, in Maintenance, Inc., 148 NLRB 1299, the Board found that a successor was required to honor the bargaining obligations of a predecessor where the predecessor was an indepen- dent concern which lost a contract to provide custodial janitorial services for NASA's Marshall Space Flight Center and the successor was an inde- pendent concern that was awarded that contract. In that case, the successor performed substantially the same operation that the predecessor had, serviced the facilities in the same manner at the same site, and utilized the predecessor's work force, who did basically the same job. The Board found that there had been no substantial change in the employing in- dustry. The Board has also held that "among the central factors in the successorship question is the new em- ployer's relationship to the old employer's work force." Tallakson Ford, Inc., 171 NLRB 503. To put that relationship in perspective some discussion of the bargaining unit is required. The General Counsel contends in his brief that as Wonderly's general oilfield maintenance employees were restricted to pier J, a separate bargaining unit for pier J is appropriate and that Respondent is the successor in that bargaining unit. Thus, in deter- mining the relationship between the old and new employees General Counsel would exclude all of Respondent's employees on the islands. I cannot find merit in that contention. The collective-bar- gaining agreement between Wonderly and the Maintenance Union was not limited to Wonderly's employees on pier J. The bargaining unit included all of Wonderly's oilfield maintenance employees over whom the Maintenance Union had jurisdic- tion. As interpreted by the parties, the contract ex- cluded operating engineers, welders, and pipefit- ters, but is clear that Wonderly's roustabouts would be in the bargaining unit no matter where they were employed on the Thums' facility. If Wonderly had been awarded the oilfield maintenance work on the islands, no new agreement would have been needed to include the island roustabouts in the bargaining unit. In other words, the contract covered the en- tire Thums' facility even though Wonderly hap- pened to be working only on pier J. As this broad coverage has to be considered when the employing entity was Wonderly, it would also have to be con- sidered if the same employing entity was Respon- dent. Before Respondent came into the picture, Thums contracted the oilfield maintenance work to five separate contractors, four on the islands and one on (C A 4, 1967 ), and cases cited therein for judicial approval of this doc- trine PLANT AND FIELD SERVICE CORPORATION 857 pier J. Based on economic motivation, Thums ter- minated the contracts with the independent con- tractors and unified all of the oilfield maintenance work by consolidating it for bidding purposes. The result was that one employer was to take on the function of supplying roustabouts for the islands and pier J. As a successful bidder, Respondent was required to supply roustabouts for all of Thums' oil- field maintenance needs. Though, as discussed above, there were some differences between the jobs roustabouts performed on the islands and on pier J, the basic work was the same . Wonderly's contract with the Maintenance Union covered its roustabouts working at Thums with the exception of the operating engineers , welders, and pipefitters, and Respondent took over all the roustabout work at Thums without those exclusions. As is set forth in more detail above, on February 7, which was Wonderly's last day as general oilfield maintenance contractor for Thums, Wonderly had in its employ 15 persons, 2 of whom were foremen and 7 of whom were in the bargaining unit in question.14 On February 10, which was the first full day of Respondent's work as general oilfield maintenance contractor, Respondent employed nine persons, one of whom was a foreman and eight of whom were employees. The foreman and seven of the eight employees had been employed by Wonderly at Thums on February 7. Six of those seven em- ployees had been in the bargaining unit established between Wonderly and the Maintenance Union. Between February 10 and March 30, Respondent gradually increased the scope of its general oilfield maintenance work until it was manning pier J and all four islands. For the week ending March 30, it had 39 employees, excluding foremen. Between that time and July 27, the lowest number of em- ployees was 38 and the highest 56, again excluding foremen. The General Counsel urges that Respondent's relationship to Wonderly's work force should be considered as of the February 7 and February 10 dates. However, I do not believe that would be an adequate comparison. Respondent did not bid on or accept a maintenance job at pier J alone. It bid on and received the general oilfield maintenance work for all of the Thums' facility, including pier J and the islands. It was anticipated that the work would require the employment of 45 to 50 men and in fact, when Respondent was fully staffed, it did employ between 39 and 56 employees. It would not be fair to say the Respondent took a small job which grew in size . Rather it took a large job and phased in its . operation. This phasing in was required to prevent unnecessary hardship to em- ployees of other contractors on the islands. Con- sidering Respondent's total function on the Thums' facility, it cannot be said that there was a represen- tative employee complement of Respondent's em- ployees on February 10. It follows that the six em- ployees who were hired by Respondent and who had formerly worked in Wonderly's bargaining unit must be viewed in the light of the normal employee complement of Respondent which ranged from 39 to 56. In addition, the one foreman hired by Respondent who had formerly worked for Won- derly must be viewed against the five foremen nor- mally employed by Respondent.15 In addition, con- sideration must be given to the fact that the foreman and the seven employees who had previ- ously worked for Wonderly left the job and were replaced.16 As the Board said in Tallakson Ford, Inc., supra, one of the main factors to be considered in deter- mining whether a true successorship relation exists is the new employer's relationship to the old em- ployer's work force.17 In that case, the Board found that a majority of the employees of the successor had never worked for the predecessor and there- fore the successor had no obligation to bargain with the union which represented the employees of the predecessor. In Thomas Cadillac, Inc., 170 NLRB 884, the Board also held that no true successorship existed and refused to order a successor's to bar- gain with the union which represented the em- ployees of the predecessor. In that case, two inde- pendent auto dealers each acquired a Cadillac sales business that had been formerly run by General Motors. Noting that at one location only 16 of 63 service department employees of the new employer had formerly been employed by General Motors and at the other location only 11 out of 35 were in the same situation, the Board found that "neither employed a significant number of service em- ployees who had worked for GM, and the super- visory heirarchy bears little resemblance to that for- merly existing under GM," and that the new franchise dealers had no obligation to bargain with the union that had represented the GM employees. Under the criteria set forth in Thomas Cadillac, Inc., supra, and Tallakson Ford, Inc., supra, I must conclude that, considering the overall employee complement of Respondent, Respondent did not employ a significant number of employees who had formerly worked for Wonderly in Wonderly's bar- gaining unit with the Maintenance Union, nor did Respondent's supervisory hierarchy bear much resemblance to Wonderly's. Considering the nature of the industry involved where it is not uncommon for employees to follow a contractor from one job to another; the scope of the contracts that Respondent and Wonderly had with the Petroleum Union and Maintenance Union, " As noted, the operating engineers, welders, and pipefitters were ex- cluded 15 There is a separate foreman for each crew and at least one crew on pier J and each of the islands 's There is no contention that these employees were terminated in viola- tion of the Act it See also Ellary Lace Corp , 178 NLRB 73, and Marion Stmcox, Trustee of Wagner Shipyard and Marina Inc, 178 NLRB 516 18 The word "successor" in this context means "the one who came after" and does not imply a legal obligation 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respectively; the disparity in the size of the job un- dertaken by Respondent as contrasted to Won- derly; the exclusion of the operating engineers, wel- ders, and pipefitters from Wonderly's bargaining unit and the lack of that exclusion from Respon- dent's; the complete lack of any relationship, con- tractual or otherwise, between Respondent and Wonderly; and, most important of all, the small number of Wonderly's employees who were taken on by Respondent, I conclude that Respondent is not the successor to Wonderly's bargaining obliga- tions with the Maintenance Union. I shall therefore recommend that the portion of the complaint which alleges that Respondent violated Section 8(a)(5) of the Act be dismissed. 2. The extension of contract issue On January 3 1, when Respondent and the Petroleum Union executed an addendum to their contract to specifically name Thums as one of Respondent's clients, Respondent had no em- ployees working at Thums. It can thus be argued that the contract was an unlawful prehire agree- ment.19 However, I found that the parties to this contract understood that this contract covered all of Respondent's employees no matter which client Respondent happened to be working for I further found that the contract was uniformly applied to all of Respondent's general oilfield maintenance jobs. I do not believe that the contract can be considered prehire any more than it would be if Respondent expanded its operation at one existing location. The contract as interpreted by the parties covers all of Respondent's employees and the particular location where they are assigned to work by the Respondent is not controlling. Respondent's contract granted exclusive recognition to the Petroleum Union as the representative of Respondent's employees and such recognition " raises a presumption of regularity, namely, that the Union was the majority represen- tative of the employees at the time of the execution of the contract; for, otherwise, it would have been unlawful for the Respondent to have extended such recognition." Shamrock Dairy, Inc., 124 NLRB 494, enfd. 280 F.2d 665 (C.A.D.C., 1960).20 As the General Counsel is seeking to show that the appli- cation of the contract to the Thums' facility is a violation of the Act, the General Counsel has the burden of rebutting that presumption of regularity. The presumption has not been rebutted either as to Respondent's overall employee complement or Respondent's employee complement at Thums. I 10 Section 8 (f) of the Act provides that a prehlre agreement shall not be unlawful where it is made by " an employer engaged primarily in the build- ing and construction industry covering employees engaged in the building and construction industry with a labor organization of which building and construction employees are members " However, Respon- dent is not engaged in the building and construction industry Though Respondent does perform such functions which overlap with construction work, it is a general oilfield maintenance contractor and its primary func- tion relates to maintenance rather than building and construction have found that Respondent's normal employee complement at Thums ranged from 38 to 56 em- ployees. It is not possible from an examination of the record to determine whether a majority of these employees were members of the Petroleum Union or not. Respondent gave priority in employment to persons who previously worked for it. How many of the total employee complement were recalled em- ployees who were members of the Petroleum Union cannot be determined from the record. The main thrust of the General Counsel's brief on this issue is that Respondent violated the Act by recognizing the Petroleum Union when it had a duty under law to bargain with the Maintenance Union and, moreover, considering the employee complement on February 10, the Petroleum Union could not have represented a majority of Respondent's em- ployees on that date in a unit limited to pier J. However, in the section of this Decision entitled "successorship issue," I have found that Respond- ent did not have an obligation to bargain with the Maintenance Union, that February 10 was not the critical date, and that there was no bargaining unit limited to pier J. I conclude that the General Coun- sel has not met the burden of proof required to establish that Respondent's application of its con- tract with the Petroleum Union to its Thums' em- ployees violated Section 8(a)(1), (2), or (3) of the Act. I shall therefore recommend that those allega- tions in the complaint be dismissed.21 3. The checkoff issue I have found that Respondent, through its manager of field operations, Cook, distributed checkoff authorization cards in favor of the Petroleum Union to the employees at a meeting on February 10. At the same time he gave them em- ployment applications and W-4 forms. Thus, the checkoff cards were given as part of Respondent's hiring process with regard to the employees who were present. Those employees were Baity, Perez, Wise, Lawson, Coupe, Cole, Smith, and Marcum. Though I have found that Cook did not condition employment on the execution of the checkoff cards, that the cards on their face indicated that they were voluntary, and that Respondent's pres- ident, Stillman, on February 14, wrote to all the employees emphasizing the fact that the payroll deduction authorizations were voluntary, the question remains whether the mere distribution of the cards by Respondent on February 10 as part of the hiring process was in itself a violation of Section 20 Sce also N L R B v Local3, IBEW, 362 F 2d 232 (C A 2, 1966) 21 The General Counsel relies in his brief on Midaest Piping and Supply Co, 63 NLRB 1060, in arguing that Respondent's recognition of the Petroleum Union was unlawful However, the Midwest Piping doctrine is applicable only where a valid question concerning representation has been raised As Respondent had an outstanding contract with the Petroleum Union covering all of its employees and that contract has not been found to be invalid, the Midst est Piping doctrine would not be applicable PLANT AND FIELD SERVICE CORPORATION 859 8(a)(1) and (2) of the Act. The distribution is by its very nature an implied solicitation to the em- ployees to execute the cards. In Alaska Salmon Industry, Inc., 122 NLRB 1552, the Board found that an employer violated Section 8(a)(1) and (2) of the Act by permitting a union to solicit dues-checkoff authorizations during the process of hiring. This conclusion was reached even though there was no evidence the job applicants were required to sign the dues-checkoff authoriza- tions as a condition of receiving employment. The Board held "the conditions under which applicants were asked to sign the authorizations-conditions for which the Respondent was responsible-greatly helped the Union in securing necessary signatures. Employees, particularly unsophisticated ones, could very well believe from the circumstances, that sig- ning a dues checkoff was a routine part of the hir- ing process."22 The rationale of that case applies even more strongly where as in the present case an employer did not merely go along with a union's distribution of checkoff cards during the hiring process, but distributed the cards itself through a high level supervisor. I conclude that Respondent's distribution of checkoff authorization cards in favor of the Petroleum Union through its supervisor, Cook, to the eight employees named above on February 10 was an unlawful assistance to the Petroleum Union and therefore violated Section 8(a)(1) and (2) of the Act. by the distribution of checkoffs during the hiring process to eight employees. I shall recommend that Respondent be ordered to cease and desist from en- gaging in such conduct and to post appropriate notices. However, I do not believe that a dues reim- bursement order running in favor of the eight em- ployees would be warranted under the particular facts of this case. One of the employees, Marcum, was not a new employee but was transferred from a location of one of Respondent's other clients. Prior to his reporting to the Thums' facility, he was covered by the Petroleum Union contract. The seven other employees who executed checkoff authorizations on February 10 all left the job on February 13 and were replaced. By letter dated February 14 from Respondent, it was made clear to all these employees that the dues would not be deducted from their wages until such time as they decided to become members of the Petroleum Union, that they had 30 days to join the Union, that the deduction authorization was voluntary, and that they could cancel the authorization and pay dues directly at such time as they became members. In these circumstances, with all seven employees hav- ing been replaced after they had worked on the job for 3 days, a dues reimbursement order would be meaningless.23 Upon the basis of the foregoing findings of fact and the entire record in this case, I make the fol- lowing: IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent with respect to the distribution of checkoff authorization cards in favor of the Petroleum Union as set forth in section III, above, occurring in connection with Respon- dent's operations described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. I have found that Respondent un- lawfully assisted the Petroleum Union in obtaining employees' signatures on checkoff authorizations r' See also Cadillac Wire Corp, 128 NLRB 1002, enfd 290 F 2d 261, Campbell Soup Company, 152 NLRB 1645, enfd 378 F 2d 259, Western Building Maintenance Co, 162 NLRB 778, enfd 402 F 2d 775 CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Petroleum Union and the Maintenance Union are both labor organizations within the meaning of Section 2(5) of the Act. 3. By distributing checkoff authorization forms in favor of the Petroleum Union to eight employees on February 10 as part of its hiring process, Respondent assisted the Petroleum Union and in- terfered with the rights of employees set forth in Section 7 of the Act in violation of Section 8(a)(2) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as is set forth in 3, above, the General Counsel has not established by a preponderance of the evidence that Respondent engaged in the unfair labor practices alleged in the complaint. [Recommended Order omitted from publica- tion. ) ' See Alaska Salmon Industry, Inc , supra, where the Board refrained from ordering a dues reimbursement remedy after the employer had par- ticipated in the solicitation of checkoff cards during the hiring procedure