C & B Flooring Associates, LLC

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 349 NLRB No. 66 692 C & B Flooring Associates, LLC and Local 807, In- ternational Brotherhood of Teamsters.1 Case 29–CA–24357 March 30, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On May 3, 2002, Administrative Law Judge Eleanor MacDonald issued the attached decision. The Respon- dent filed exceptions and a supporting brief. The Charg- ing Party filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, C & B Flooring Associates, LLC, Albert- son, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Informing employees that there will be no union at the Company when the employer is obliged to recognize and bargain with Local 807, International Brotherhood of Teamsters (the Union). (b) Refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time chauffeurs and hi-lo operators/warehousemen, excluding guards and super- visors as defined in Section 2(11) of the Act. 1 We have amended the caption, recommended Order, and notice to reflect the disaffiliation of the International Brotherhood of Teamsters from the AFL–CIO effective July 25, 2005. 2 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. 3 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language. We shall also modify the make-whole remedy recommended by the judge for the Respondent’s unlawful unilateral changes in accordance with our decision in Planned Building Services, 347 NLRB 670 (2006). We shall substitute a new notice in conformity with the Order as modified. (c) Unilaterally changing the terms and conditions of employment of employees in the above appropriate unit without notice to and bargaining with the Union. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain with the Union concerning terms and conditions of employment of the unit employees and, if an agreement is reached, embody the agreement in a signed document. (b) On request of the Union, rescind any departures from terms and conditions of employment that existed prior to its commencing operations at Five Albertson Avenue, restoring preexisting terms and conditions of employment until it negotiates in good faith with the Union to agreement or impasse. (c) Make whole, in the manner set forth in the remedy section of the judge’s decision except as modified herein, the unit employees for any loss of earnings and other benefits caused by the Respondent’s failure to apply the terms and conditions of employment that existed prior to its commencing operations at Five Albertson Avenue, subject to its demonstrating in a compliance hearing that, had it lawfully bargained with the Union, it would have, at some identifiable time, lawfully imposed or reached agreement on less favorable terms than those that had existed under its predecessor. (d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its facility in Albertson, New York, copies of the at- tached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken 4 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.” C & B FLOORING ASSOCIATES, LLC 693 by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since June 25, 2001. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. CHAIRMAN BATTISTA, concurring in part. I concur in the conclusion that the Respondent violated the Act by refusing to recognize and bargain with the collective-bargaining representative of its predecessor’s employees and by unilaterally setting initial terms of employment that differed from those of the predecessor. With respect to the latter point, the judge relied on Ad- vanced Stretchforming International, 323 NLRB 529 (1997), enfd. in relevant part 233 F.3d 1176 (9th Cir. 2000), on remand 336 NLRB 1153 (2001). In that case, the Board held that a successor employer, who violates Section 8(a)(1) by telling employees that there will be no union, thereby gives up a successor’s normal right to set initial terms and conditions of employment. I do not pass on the validity of Advanced Stretchform- ing. Instead, I conclude that the Respondent’s unilateral action was unlawful because the Respondent’s plan was to populate its unit entirely with Union-represented unit employees of the predecessor. The evidence establishes that the Respondent was a “perfectly clear” successor within the meaning of NLRB v. Burns Security Services, 406 U.S. 272 (1972). In Burns, the Supreme Court held that, although a suc- cessor “is ordinarily free to set initial terms on which it will hire the employees of its predecessor, there will be instances in which it is perfectly clear that the new em- ployer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially con- sult with the employees’ bargaining representative before he fixes terms.”1 This principle applies where the suc- cessor employer employs a work force consisting solely of the predecessor’s employees.2 The instant case falls squarely within these principles. Shortly after it acquired its predecessor’s flooring and 1 Above at 294. 2 See also Galloway School Lines, Inc., 321 NLRB 1422, 1427 (1996). carpeting distribution business, the Respondent hired a work force consisting solely of its predecessor’s union- ized truck drivers. Thereafter, the Respondent unilater- ally modified those employees’ existing terms and condi- tions of employment without giving the Union prior no- tice and an opportunity to bargain. At no time prior to its unilateral action did the Respondent suggest that its terms would differ from those of the predecessor. On those facts, I find that the Respondent was a “perfectly clear” successor, and violated the Act by setting new initial terms and conditions of employment without giv- ing the Union prior notice and an opportunity to bargain. 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 vio- lated 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 tell employees that we intend to operate with no union when we are obliged to recognize and bar- gain with Local 807, International Brotherhood of Team- sters (the Union). WE WILL NOT refuse to recognize and bargain with the Union as the exclusive collective-bargaining representa- tive of our employees in the following appropriate unit: All full-time and regular part-time chauffeurs and hi-lo operators/warehousemen, excluding guards and super- visors as defined in Section 2(11) of the Act. WE WILL NOT unilaterally change terms and conditions of employment of the employees in the above unit with- out notice to and bargaining with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them as set forth above. WE WILL recognize and, on request, bargain with the Union concerning terms and conditions of employment of the unit employees and, if an agreement is reached, embody the agreement in a signed document. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 694 WE WILL, on request of the Union, rescind any depar- tures from terms and conditions of employment that ex- isted prior to our commencing operations at Five Albert- son Avenue, restoring preexisting terms and conditions of employment until we negotiate in good faith with the Union to agreement or impasse. WE WILL make our employees whole for any loss of earnings and other benefits caused by our failure to apply the terms and conditions of employment that existed prior to our commencing operations at Five Albertson Avenue, subject to our demonstrating in a compliance hearing that, had we lawfully bargained with the Union, we would have, at some identifiable time, lawfully im- posed or reached agreement on less favorable terms than those that had existed under our predecessor. C &B FLOORING ASSOCIATES, LLC Nancy B. Lipin, Esq., for the General Counsel. Loraine M. Cortese-Costa, Esq., (Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C.) of Bridgeport, Connecti- cut, for the Respondent. Laura Matlow, Esq, (Vladeck, Waldman, Elias & Englehard, P.C.), of New York, New York, for the Charging Party Un- ion DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. This case was heard in Brooklyn, New York on December 20, 2001 and February 20, 2002. The complaint alleges that the Respon- dent is a successor employer and that Respondent, in violation of Section 8(a)(1) and (5) of the Act, unilaterally modified the terms of the collective-bargaining agreement between Respon- dent’s predecessor and the Union and refused to recognize and bargain with the Union. Respondent denies that it is a succes- sor employer, denies that it was not privileged to offer new terms and conditions to its employees and denies that it refused to recognize and bargain with the Union. On the entire record, including my observation of the de- meanor of the witnesses, and, after considering the briefs filed by the General Counsel and the Respondent on April 10, 2002, I make the following5 FINDINGS OF FACT I. JURISDICTION Respondent, a domestic corporation with its principal office at Five Albertson Avenue, Albertson, New York, is engaged in the business of wholesale floor covering and carpet distribution. At all material times Respondent annually purchases and re- ceives at its facility goods valued in excess of $50,000 directly 5 The General Counsel has made a motion to correct the record. The motion is unopposed and it is hereby granted. The record is hereby further corrected so that at page 17, line 6 it reads “just disclaimed a really intimate knowledge of this document”; at page 19, line 13 should read “which was an asset management”. from points outside the State of New York. The Respondent 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, and that Local 807, International Brotherhood of Teamsters, AFL– CIO, is a labor organization within the meaning of Section 2 (5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The firm of Crockett and Buss had been in business for many years as a wholesale distributor of floor coverings. Gradually Crockett and Buss fell on hard times, it had trouble paying its vendors and then it went bankrupt. After emerging from bank- ruptcy the firm was unable to continue in business and Crockett and Buss began selling off inventory at sale prices. In mid- May 2001 the employees were informed that there was no more money to pay them and they were laid off. The assets of Crockett and Buss were purchased on June 19, 2001 by Mark Battey who since October 2000 had been a Crockett and Buss salesman and then territory manager.6 The truckdrivers employed by Crockett and Buss had been represented by Local 807 pursuant to a series of collective- bargaining agreements the most recent of which had a term from July 1, 1998 through June 30, 2003. The contract defined the bargaining unit as “(a) Chauffeurs [and] (b) hi-lo Opera- tors/Warehousemen.” Crockett and Buss had operated out of a warehouse at Five Albertson Avenue and an office at One Albertson Avenue. Battey signed a lease for the premises at Five Albertson Ave- nue although he was permitted to occupy the premises at One Albertson Avenue by the landlord for a short period while he was consolidating his operation at Five Albertson Avenue. Battey’s company is called C & B flooring Associates, LLC. Crockett and Buss was also known as C & B and this name appeared on its trucks. Battey purchased the name C & B Flooring Associates from Crockett and Buss. C & B uses the same 800 telephone number as did Crockett and Buss. Christopher Courtenay, now the C & B president, was for- merly senior vice president for sales and marketing for Crockett and Buss.7 Helen Schlotterhausen, the former secre- tary/treasurer of Crockett and Buss, is the controller of C & B. Jack Allar, the vice president for credit of Crockett and Buss, is the credit manager for C & B. Three of the five C & B sales personnel were formerly employed by Crockett and Buss. Battey testified that a majority of the employees hired by C & B are former Crockett and Buss employees, including the drivers and warehousemen. James Collins was the warehouse supervisor for Crockett and Buss and he is the warehouse su- pervisor for C & B. The drivers currently use the same trucks and warehouse equipment as they did formerly with Crockett and Buss. It is undisputed that when C & B hired three truckdrivers 6 Battey, testified that he bought the assets from Wells Fargo, an as- set management company and that he opened for business on July 2, 2001. 7 Courtenay became aware in April 2001 that Crockett and Buss was trying to find a buyer for the business. C & B FLOORING ASSOCIATES, LLC 695 who were previously employed by Crockett and Buss it set their initial terms and conditions of employment. C & B issued an employee manual to the drivers when they began work. C & B did not offer the same vacation and sick leave as had been in force under the collective-bargaining agreement and it changed the policy on personal days, lunch periods and break periods. C & B changed the hours of the truckdrivers. C & B has not con- tributed to the Local 807 Labor Management Health and Pen- sion Fund which had been used to provide pension coverage and health insurance to the employees. B. The Successorship Issue Battey testified that “most of C & B’s current customers were previously customers of Crockett and Buss.” Courtenay stated that he has spent a lot of time reestablishing a relationship with the retailers and contractors who had previously been customers of Crockett and Buss.8 Crockett and Buss had leased a Danzig computer program designed to show customer accounts. C & B leases the same program; in fact, the program shows all the Crockett and Buss customers. Driver Wayne Campbell, who had worked 15-1/2 years for Crockett and Buss testified that of the 36 customers of C & B to whom he makes deliveries all were former Crockett and Buss customers.9 Driver Charles Shelles who had worked for Crockett and Buss for 34-1/2 years testified that since C & B took over he has delivered products to one new customer out of the 14 that he regularly visits. Driver George Butz worked for Crockett and Buss for 11 years. Now that he is employed by C & B he still delivers to the same customers and to six or seven new customers. Courtenay testified that Crockett and Buss distributed floor- ing products, carpeting, laminate flooring and accessories. He stated that C & B sells flooring products, carpeting, laminate flooring and accessories. Courtenay testified that Crockett and Buss sold commercial and residential floor coverings, accessories and supplies. About 70 percent of Crockett and Buss sales were for commer- cial purposes, consisting of vinyl floor coverings and carpet tiles destined for office buildings. At one time Crockett and Buss had been a warehouse distributor for Armstrong and after that it became the distributor for Tarkett. These distributor- ships accounted for 65 to 70 percent of the Crockett and Buss commercial business. In addition Crockett and Buss used over 20 vendors of tile floor coverings, including laminate and car- pet. Crockett and Buss also sold residential carpeting which it purchased from three mills: Shaw, Beaulieu and Mohawk. Courtenay stated that C & B had changed the emphasis of the business. Only 20 percent of the tile carried by C & B is commercial and the rest is residential. C & B concentrates on carpeting. It deals with only two of the three mills that Crock- ett and Buss had done business with: Shaw and Beaulieu. C & B uses different tile companies from the ones used by Crockett and Buss. When C & B first began operations it bought a num- ber of truckloads of seconds, something that Crockett and Buss 8 Some of these customers had lost confidence in Crockett and Buss when it was no longer able to supply them due to its problems in mak- ing current payments to suppliers. 9 Campbell was injured in November 2001 and was out on disability at the time of the instant trial. He planned to return to work at C &B. had never done. Warehouse manager James Collins was hired by C & B on July 1, 2001. He had been the operations manager for Crockett and Buss for many years. His duties at Crockett and Buss included supervising the drivers and warehouse workers, rout- ing the trucks, conducting inventory control, and doing paper- work. The warehouse workers did not drive trucks but some of the truckdrivers would load their own trucks, cut carpet, pull stock and perform other functions. Now that he works for C & B Collins is still in control of the warehouse. He still super- vises the drivers, he routes the trucks and the drivers still report to him. Collins testified that he now does everything in the warehouse; he unloads trailers, cuts carpet on the machines and he pulls stock. Although Collins testified that the C & B driv- ers no longer perform any work in the warehouse driver Shelles stated that he had been loading his own truck until 2 weeks before the instant hearing when Collins’ son began loading the trucks. All three truckdrivers testified that they use the same trucks and equipment and do the same job for C & B as they had done for Crockett and Buss. The record shows that after rehiring by C & B the drivers continued to communicate with the Union. They all decided not to sign a confidentiality agreement presented to them by C & B at the time of their hiring. C. The Hiring of Three Drivers Shelles testified that at the end of May or beginning of June Collins telephoned him and said the company was sold and the new owner wanted Shelles to work for him.10 Collins said that Shelles, Butz, and Campbell would be hired but that there would be no Union. According to Shelles at first he refused to go back to work but after talking some more with Collins he agreed to return. Shelles said he met with Courtenay and Bat- tey at the end of June. Courtenay introduced Shelles to Battey, said that they wanted Shelles to come back to work and then proceeded to talk about the different products the Company would be carrying. Courtenay said that there would be no Un- ion. Shelles stated that he asked what would be done at con- struction sites where the men could not deliver without a union card, and Courtenay replied that they would not deliver to con- struction sites. Shelles began work for C & B on July 2. Shelles gave an affidavit which details the telephone conversa- tion in which Collins asked him to return to work; however, the affidavit does not mention any comments by Collins about not having a union. On cross-examination by Counsel for the Re- spondent Shelles said that Courtenay brought up the subject of the Union in the meeting with Battey, but Shelles could not recall how the issue came up. Shelles recalled that Courtenay said if they had gotten a Tarkett distributorship the Company would go with the Union but now they could not afford the Union. Shelles testified that he does the same work for C & B as he did for Crockett and Buss. Butz testified that Collins called him at home and said that the new owner of the Company wanted to meet him. Butz stated that Collins said there would be no Union and the meet- 10 Shelles had worked for Crockett and Buss for a few days after the initial layoff. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 696 ing with the owner was set for Wednesday. Butz recalled that he subsequently met with Courtenay and Battey in the office. Courtenay did most of the talking. He said they had heard good things about Butz and he described some of the Company’s plans for the future. Courtenay said that they would not take the Union back. Butz agreed to come back to work. On a Fri- day the Company held a barbecue for managers, drivers, and office workers at the Albertson Avenue facility. After the meal a company video was shown and the employees went over a company manual. Butz testified that he does the same job for C & B as he did for Crockett and Butz. Campbell testified that Shelles telephoned him one night and asked him to come to the Albertson Avenue office to meet Bat- tey.11 Campbell met with Battey and Courtenay on June 25. Courtenay did most of the talking. He told Battey that Camp- bell had been with the company for a long time and was a real asset. Courtenay said they were going back to work but that the Union would not be with the company any more. Campbell agreed to return to work. In August Campbell was working on pallets with Collins when the latter told Campbell that the Un- ion would never come back into the Company. Campbell could not recall anything else about this conversation with Collins. Campbell testified that he is doing the same work for C & B as he did for Crockett and Buss. Collins denied that he mentioned the Union when he tele- phoned the men about coming to work for C & B. Collins also denied talking with Campbell about the Union after C & B started operations. Courtenay testified that he made hiring recommendations to Battey and he was there when Battey interviewed employees. Courtenay was present during the meeting with Shelles. In answer to the question whether there was discussion about the Union with Shelles, Courtenay said, “Not that I recall, no.” Similarly, when asked by Counsel for the Respondent whether there was a discussion about the Union with Butz and Camp- bell, Courtenay replied, “Not that I recall.” Battey was not called by the Respondent to testify about the interviews he conducted with Courtenay. D. Demand for Recognition and Bargaining Battey testified that when he bought the assets of Crockett and Buss he was unaware that the drivers and warehousemen were represented by a union. On July 3, 2001 Counsel for the Union addressed a letter to C & B enclosing a copy of the col- lective-bargaining agreement and requesting that the Company meet to negotiate a new contract. Laura Matlow, Esq., Counsel for the Union, testified that she spoke to Courtenay on July 16 and asked the Company to apply the contract to the unit em- ployees. Courtenay informed Matlow that he was not the owner and he referred her to Battey. During this conversation Courtenay told Matlow that he understood that the Company did not want to deal with Local 807 because it was too small. Although Matlow telephoned Battey and left a message he did not return her call. On July 26 Counsel for the company wrote to the Union that 11 Campbell had worked at least one day for Crockett and Buss after the initial layoff. “C & B has been in business only a few short weeks and is still in the process of developing its operations and determining its hiring and other needs.” The letter stated that the Company had not assumed the collective-bargaining agreement. There was no response to the demand for a bargaining session. On January 3, 2002 Counsel for the Respondent sent Matlow an offer to recognize and bargain with the Union without preju- dice to either party’s position in the instant case. III. DISCUSSION AND CONCLUSIONS The General Counsel urges and the Respondent denies that C & B is a successor to Crockett and Buss under the principles announced in Fall River Dyeing & Finishing v. NLRB, 482 U.S. 27, 43 (1987). In that case the Court discussed the criteria to be applied in determining whether an entity is a successor and therefore bound to recognize and bargain with the representa- tive of its employees. Stressing that the approach “is based upon the totality of the circumstances of a given situation” which leads to “substantial continuity” between the enterprises the Court listed the factors to be evaluated as: Whether the business of both employers is essentially the same Whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors Whether the new entity has the same production proc- ess, produces the same products, and basically has the same body of customers Whether the employees will view their job situations as essentially unaltered In Fall River the Court also considered whether the 7-month hiatus between the demise of the predecessor and the start up of the successor defeated the principle of “substantial continuity.” The Court held that 7 months was not significant in view of the fact that a skeleton crew was maintained for some time and there were continuing efforts to sell or revive the business. 482 U.S. at 45. In the instant case the business of Crockett and Buss and Re- spondent C & B is substantially the same. C & B purchased the business name and assets of Crockett and Buss and it operates out of the same warehouse. The Crockett and Buss office was in a different building, but the C & B office is in the old ware- house location. C & B uses the same 800 telephone number formerly used by Crockett and Buss. As Courtenay testified, the business of both firms is properly described as the distribu- tion of flooring products, carpeting, laminate flooring and ac- cessories. It is not significant that the mix of residential and commercial products sold is different for C & B. Nor is it ma- terial that C & B sells more carpeting and less laminate than Crockett and Buss. Likewise, it is not important that Crockett and Buss was an official distributor for Armstrong and then Tarkett but that C & B has not attained the status of a distribu- tor; this circumstance has no effect on the truckdrivers. There is no change in the “essential nature” of the unit employees’ jobs which is to take flooring products from the warehouse and deliver them by truck. See Fall River, 482 U.S. at 44. As Bat- tey stated, C & B delivers to “most” of the same customers as C & B FLOORING ASSOCIATES, LLC 697 did Crockett and Buss. C & B leases the same computer pro- gram as Crockett and Buss and this program lists all of the former Crockett and Buss customers. Courtenay testified to his efforts to “reestablish” relations with former Crockett and Buss customers. All of the C & B unit employees worked for Crock- ett and Buss and they are supervised by Collins who was their direct supervisor under Crockett and Buss. Courtenay, a former vice president of Crockett and Buss and now the president of C & B, recommended the hiring of the unit employees to the owner of C & B. These C & B employees report to the same warehouse and they use the same equipment and trucks as they did with Crockett and Buss. At least until two weeks before the instant hearing, the truck drivers loaded their own trucks as they had done with Crockett and Buss.12 The employees view their job situations as essentially unaltered: they all testified that their jobs were the same, only the benefits were reduced and the hours slightly changed. The approximately one month hiatus between the layoff of the employees and their rehire is not material. During this period some of the employees were called back to work briefly and, as in Fall River, efforts were being made to sell the business. I find that there is a substantial continuity between Crockett and Buss and the Respondent C & B and I conclude that C & B is a successor to Crockett and Buss.13 There is no dispute that on July 2 all of the Respondent’s unit employees were former unit employees of Crockett and Buss who had been represented by the Union. As a successor Respondent C & B had a duty to recognize and bargain with the Union as of this date. The Union requested bargaining on July 3. When Matlow spoke to Courtenay on July 16 he told her that he understood the company did not want to deal with the Union because it was too small. The Respondent did not offer to recognize and bargain with the Union until January 3, 2002. Thus the Respondent refused to recognize and bargain with the Union in violation of Section 8 (a) (5) and (1) of the Act. Shelles, Butz, and Campbell all testified that when they met with Courtenay and Battey for a prehire interview Courtenay said that C & B would not take the Union back and that the Union would not come into the Company. As discussed above, Courtenay did not deny these statements; he only said he did not recall making them. Further, Battey who was present for all three interviews did not deny that Courtenay told the employees they would come back to work without the Union. Battey is the owner of Respondent and his failure to deny the statements is significant. Finally, Shelles’ recollection is particularly impres- sive about the meeting because he also recalled a discussion of the impossibility of delivering to construction sites without a union card. Courtenay did not deny this aspect of the interview with Shelles. I find that when the unit employees were hired the Respondent informed them that the Union could not come 12 Although the record shows that Collins’ son had been loading trucks for 2 weeks it was not established how long this situation was expected to continue. 13 I shall not discuss Radiant Fashions, Inc., 202 NLRB 938 (1973), cited by the Respondent. This case was decided, on markedly different facts, before Fall River and it is inconsistent with the teachings of the Supreme Court in that case. into the Company.14 The Respondent violated Section 8 (a) (1) of the Act when it informed the employees that they would be hired without union representation. The law is clear that when a successor employer informs its employees that there will be no union at the company it loses its right under NLRB v. Burns Security Services, 406 U.S. 272 (1972), to set initial terms and conditions of employment. The Board has held that, “A statement that there will be no union at the successor employer’s facility blatantly coerces employees in the exercise of their Section 7 right to bargain collectively through a representative of their own choosing and constitutes a facially unlawful condition of employment. Nothing in Burns suggests that an employer may impose such an unlawful condi- tion and still retain the unilateral right to determine other le- gitimate initial terms and conditions of employment.” Ad- vanced Stretchforming International, 323 NLRB 529, 530 (1997), enfd. in relevant part, 233 F.3d 1176 (9th Cir. 2000). Here, the Respondent C & B not only told employees that they would not have Union representation but it also acted on that statement by repeatedly refusing to bargain with the Union for six months. Respondent did not agree to bargain until after the hearing in the instant case had begun. Here, as in Advanced Stretchforming, the Respondent “did not merely utter the unlawful ‘no union’ statement; it acted on it” by refusing to recognize and bargain with the union despite an immediate demand that it do so. Concurring opinion by Member Higgins at 323 NLRB 532. Respondent’s brief urges that the employees were not co- erced because they continued to communicate with their Union and they all refused to sign a confidentiality agreement. This argument ignores the Respondent’s statements, which reasona- bly would have a coercive impact on the unit employees, to the effect that the Union would not represent employees of the Company. There is no dispute that Respondent C & B did not make contributions to the Union’s health and pension fund, and that it unilaterally decreased the lunch and break periods of the unit employees, decreased vacation, sick leave and personal leave entitlements, changed the hours of its employees and instituted a C & B employee manual. These changes made without no- tice to and bargaining with the Union violated Section 8 (a) (5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent C & B Flooring Associates, LLC is a succes- sor to Crockett and Buss. 2. Local 807, International Brotherhood of Teamsters, AFL– CIO, is the exclusive collective-bargaining representative of the following appropriate unit of employees under Section 9 (a) of the Act: All full-time and regular part-time chauffeurs and hi-lo opera- tors/warehousemen, excluding guards and supervisors as de- 14 In view of my finding about the interviews with owner Battey and president Courtenay I need not decide whether Collins also told Shelles and Butz that the Union could not come back when he called to invite them to their job interviews. Collins denied making any such state- ments and Shelles’ affidavit does not refer to this statement. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 698 fined in Section 2 (11) of the Act. 3. By informing employees before they were hired that there would be no union at the company, the Respondent violated Section 8(a)(1) of the Act. 4. By refusing to recognize and bargain with the Union and by modifying the terms and conditions of employment of unit employees without prior notice to the Union and without af- fording the Union an opportunity to bargain over these matters, the Respondent violated Section 8(a)(5) and (1) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. On request, the Respondent shall bargain with the Union concerning wages, health and pension benefits, vacations, hours and other terms and conditions of employment. In order to remedy the Respondent’s unlawful unilateral changes the Re- spondent shall, on request of the Union, rescind any changes in employees’ terms and conditions of employment unilaterally effectuated and make the employees whole by remitting all wages and benefits that would have been paid absent the Re- spondent’s unlawful conduct, until the Respondent negotiates in good faith with the Union to agreement or to impasse. Em- ployees shall be made whole in the manner prescribed in Ogle Protection Service, 183 NLRB 683 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, 282 NLRB 1173 (1987). The Respondent shall also make whole its unit employees by making all delinquent employee benefit fund contributions, including any additional amounts due the funds in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addition, The Respondent shall reimburse unit em- ployees for any expenses ensuing from its failure to make the required contributions, as set forth in Kraft Plumbing & Heat- ing, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amount to be computed in the manner set forth in Ogle Protection Service, supra, with interest as prescribed in New Horizons for the Retarded, supra. [Recommended omitted Order from publication.]