Carlow, Frank V., and Michael Carlow d/b/a Carlow's Ltd.

CARLOW'S LTD. Frank V. Carlow and Michael Carlow d/b/a Car- low's Ltd. and Service Employees International Union Local 585, AFL-CIO. Case 6-CA-15135 March 4, 1983 DECISION AND ORDER BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER Upon a charge filed on December 3, 1981, and amended on January 26, 1982, by Service Employ- ees International Union Local 585, AFL-CIO, herein called the Union, and duly served on Frank V. Carlow and Michael Carlow d/b/a Carlow's Ltd., herein called Respondent, the General Coun- sel of the National Labor Relations Board, by the Acting Regional Director for Region 6, issued a complaint on January 27, 1982, against Respondent, and an amendment to the complaint on July 14, 1982, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and the complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint as amended alleges in substance that, from 1948 to November 1980, G.P.S. Investors Company, hereafter G.P.S., was engaged in the management, operation, and rental of an office building known as the Fayette National Bank Building in Uniontown, Pennsylvania, recognized the Union as the exclusive collective-bargaining representative of an appropriate unit of its custodial and maintenance employees, and was a party to successive collective-bargaining agreements, the most recent of which was effective until December 31, 1981. The complaint further alleges that in No- vember 1980 Respondent purchased the assets of G.P.S., including the Fayette National Bank Build- ing, and has, since that date, engaged in the same business operations at the same location employing as a majority of its custodial and maintenance em- ployees individuals previously employed by G.P.S. in the recognized unit. The complaint further al- leges that Respondent is thereby a successor em- ployer to G.P.S., that the custodial and mainte- nance employees constitute an appropriate unit, that the Union is the exclusive collective-bargain- ing representative of the unit employees, and that since November 23, 1981, Respondent has failed and refused to recognize and bargain collectively as successor to G.P.S., although the Union is re- questing it to do so. The complaint alleges that Re- 266 NLRB No. 55 spondent, by the foregoing conduct, has violated Section 8(a)(5) and (1) of the Act. On February 10, 1982, Respondent filed an answer to the complaint admitting in part, and denying in part, the allegations in the complaint. As to certain of the allegations denied, Respondent, the Union, and the General Counsel entered into a stipulation on July 15, 1982, as to facts regarding the effects of Respondent's operations on interstate commerce. Respondent admits, inter alia, that it is a successor to G.P.S., that a majority of its custodi- al and maintenance unit employees were previously employed by G.P.S., and that it has refused to bar- gain with the Union upon request. Respondent denies, however, that upon termination of the col- lective-bargaining agreement between G.P.S. and the Union on December 31, 1981, that it has had any duty to recognize or bargain with the Union. On August 23, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, together with exhibits. She submits, in effect, that by virtue of Respondent's admissions, as a matter of law, Respondent has vio- lated Section 8(a)(5) and (1) of the Act. Subse- quently, on August 27, 1982, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Coun- sel's Motion for Summary Judgment should not be granted. Respondent filed an answer in opposition to the General Counsel's Motion for Summary Judgment which the Board has treated as a timely filed response to its Notice To Show Cause of August 27, 1982.1 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment As indicated above, Respondent has admitted in its answer and in the stipulation all facts necessary to establish the Board's jurisdiction in this proceed- ing, the Union's status as the exclusive bargaining representative of certain employees in an appropri- ate unit, and Respondent's successorship to G.P.S. ' On September 30, 1982, the Board issued a Decision and Order in this proceeding without having considered this answer in opposition. Upon learning of its inadvertent oversight, the Board, on October 13, 1982, issued an Order rescinding its Decision and Order and agreed to consider Respondent's opposition. Thereafter, on December 3, 1982, the Board issued a Notice To Show Cause why Respondent's opposition should not be treated as an amended answer to the complaint thereby raising a factual issue resolvable only through a hearing before an admin- istrative law judge The counsel for the General Counsel timely filed a response to the Notice To Show Cause. For the purposes of this proceed- ing we shall treat Respondent's opposition as an amended answer. 305 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well settled that a successor employer is obli- gated to bargain, upon request, with the exclusive representative of the employees of its predecessor, where, as here, a majority of its employees in the appropriate unit were employees of the predecessor and that it continues the same operation, and that a refusal to do so violates Section 8(a)(5) and (1) of the Act.2 Accordingly, we shall grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a partnership with its principal office and place of business located in Uniontown, Pennsylvania, and is engaged in the management, operation, and rental of an office building known as the Fayette National Bank Building. During the 12-month period ending December 31, 1981, Re- spondent derived gross revenues in excess of $250,000, of which in excess of $25,000 was de- rived from U.S. Steel Mining Company, Inc. U.S. Steel Mining Company, Inc., is engaged in the deep mining and preparation of coal at its Maple Creek mine and preparation plant located near Uniontown, Pennsylvania, and, during the 12- month period ending December 31, 1981, pur- chased and received at its Maple Creek facility goods, products, and materials valued in excess of $50,000 directly from suppliers located outside the Commonwealth of Pennsylvania. We find, on the basis of the foregoing, that Re- spondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED Service Employees International Union Local 585, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2 N. LR.B. v. Williams J Burns International Security Services, Inc., 406 U.S. 272 (1972). In its answer in opposition to the General Counsel's Motion for Sum- mary Judgment, Respondent alleges for the first time that in addition to 5 unit employees retained, it "employed 14 additional employees with no union affiliation to perform construction duties." Respondent does not specifically contend that these additional employees should be in the bar- gaining unit nor does it proffer any evidence which would support such a contention. The Board therefore finds this statement as to Respondent's present work force insufficiently precise to raise a factual issue under Burns, particularly in view of Respondent's earlier admission that a ma- jority of its custodial and maintenance employees were employed by G.P.S. III. THE UNFAIR LABOR PRACTICES A. The Union's Status 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All custodial and maintenance employees em- ployed by the Employer at its Uniontown, Pennsylvania, facility (the Fayette National Bank Building); excluding all office clerical employees, guards, professional employees, and supervisors as defined in the Act. 2. The recognition by Respondent's predecessor From 1948 until November 1980, G.P.S. was en- gaged in the management, operation, and rental of the Fayette National Bank Building in Uniontown, Pennsylvania. In 1948 the Union was recognized by G.P.S. as the exclusive collective-bargaining representative of the employees in the above-de- scribed unit and the Union continues to be such ex- clusive representative within the meaning of Sec- tion 9(a) of the Act. G.P.S.'s recognition was em- bodied in successive collective-bargaining agree- ments, the most recent of which was effective from January 1, 1979, to December 31, 1981. B. Respondent's Successorship to G.P.S. Investors Company In November 1980, Respondent purchased the assets of G.P.S. Investors Company, including the Fayette National Bank Building, and since that date has been engaged in the same business oper- ations, at the same location, renting the same office space to substantially the same tenants, and has as a majority of its custodial and maintenance employ- ees individuals who were previously employees of G.P.S. C. The Request To Bargain and Respondent's Refusal Commencing on or about November 9 and 23, 1981, and at all times thereafter, the Union has re- quested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about November 23, 1981, and continuing at all times thereafter to date, Respond- ent has refused, and continues to refuse, to recog- nize and bargain with the Union as the exclusive 306 CARLOW'S LTD. representative for collective bargaining of all em- ployees in said unit. Accordingly, we find that Respondent is the suc- cessor to G.P.S. and has, since November 23, 1981, and at all times thereafter, refused to bargain col- lectively with the Union as the exclusive repre- sentative of the employees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Frank V. Carlow and Michael Carlow d/b/a Carlow's Ltd. is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union Local 585, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All custodial and maintenance employees em- ployed by the Employer at its Uniontown, Penn- sylvania, facility; excluding all office clerical em- ployees, guards, professional employees, and super- visors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 1980, Respondent has been and is the successor to G.P.S. Investors Company. 5. The Union was, in November 1980, and has been at all times since, the exclusive bargaining representative of all employees in the aforesaid bar- gaining unit within the meaning of Section 9(a) of the Act. 6. By failing and refusing at all times since No- vember 23, 1980, to recognize and bargain with the Union as the exclusive bargaining representative of the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Frank V. Carlow and Michael Carlow d/b/a Car- low's Ltd., Uniontown, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Service Employees International Union Local 585, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All custodial and maintenance employees em- ployed by the Employer at its Uniontown, Pennsylvania, facility; excluding all office clerical employees, guards, professional em- ployees, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Uniontown, Pennsylvania, facility copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly 3 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 307 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Service Employees International Union Local 585, AFL-CIO, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All custodial and maintenance employees employed by the Employer at its Union- town, Pennsylvania, facility; excluding all office clerical employees, guards, profession- al employees, and supervisors as defined in the Act. FRANK V. CARLOW AND MICHAEL CARLOW D/B/A CARLOW'S LTD. 308