Matlack, Inc.

246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Matlack, Inc. and Local 6, Bakery and Confection- ery Workers Union of America, AFL-CIO and Teamsters Local Union No. 773 a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party in Interest and Truck Drivers, Chauffeurs and Helpers, Local Union No. 384 a/w Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Party in In- terest. Case 4-CA-14833 27 January 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 23 October 1985 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Matlack, Inc., Lansdowne, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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. Joseph C. Kelley, Esq., for the General Counsel. Robert J. Bray and Thomas M. Tammany, Esqs., for the Respondent. Bernard N. Katz and Peter V. Marks, Esqs., for the Charging Party. DECISION FRANK H. ITKIN, Administrative Law Judge. An unfair labor practice charge was filed by Local 6, Bakery and Confectionery Workers Union of America, AFL- CIO (Bakery Union), on January 21, and the General Counsel for the National Labor Relations Board issued a complaint on March 28, 1985. Briefly, the General Coun- sel contends that Con Agra, Inc. (Con Agra) contracted with Respondent Matlack, Inc. (Matlack), a common carrier, to transport and deliver its product; that Herman Brothers, Inc. (Herman), also a common carrier, previ- ously had performed these same services for Con Agra; that Bakery Union had been, and was, the exclusive bar- gaining agent of Herman's drivers and mechanic employ- ees engaged in the performance of these services; that Matlack took over Herman's employees and operations and thus became a successor employer of Herman with respect to the unit employees involved in the perform- ance of these services; and that Matlack-by refusing to recognize and bargain with the Bakery Union as the rep- resentative of the unit employees and by its related con- duct-violated Section 8(a)(1), (2), (3), and (5) of the Na- tional Labor Relations Act. In response, Matlack denies it is a successor employer of Herman and has violated the Act as alleged. Matlack principally asserts that the driver and mechanic employees involved do not consti- tute an appropriate bargaining unit; that the Bakery Union did not make a sufficient demand on Matlack for recognition; and that the driver and mechanic employees involved should be accreted to Matlack's existing unit employees and, consequently, subject to its contract with the Teamsters Union. Hearings were held on the issues raised in Philadel- phia, Pennsylvania, on June 17 and 18, 1985. Upon the entire record, including my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT Con Agra is engaged in the business of milling and dis- tributing bakery flour in Pennsylvania. Herman and Mat- lack are both common carriers." For a number of years Con Agra employed its own drivers and mechanics to distribute its product. However, about July 1978, Con Agra contracted with Herman to transport its product from Con Agra's facilities in Martins Creek, Treichlers, and Red Lion, Pennsylvania, to various locations throughout the State (G.C. Exh. 13). Herman agreed to supply the necessary tractors, and Con Agra agreed to provide "all trailers" (G.C. Exh. 14). The most recent contract between Con Agra and Herman (G.C. Exh. 10), dated October 24, 1983, only referred to Con Agra's fa- cilities in Martins Creek and Treichlers, deleting refer- ence to Red Lion. Leroy Limsenbigler, a retired official of the Bakery Union,, testified that his Union (Local 289, and, following a merger, Local 6) represented all Con Agra's produc- tion and maintenance employees at its Martins Creek and Treichlers facilities; that Con Agra contracted out the transportation and distribution of its product to Herman in 1978; that his Union continued to represent approxi- mately 20 or more truckdriver and mechanic employees of Herman's engaged in the performance of these hauling services; and that General Counsel Exhibit 2, a contract effective from July 1, 1982, until June 30, 1985, was the last of a series of collective-bargaining agreements be- tween his Union and Herman covering the driver and mechanic employees. Limsenbigler noted that-although 1 The jurisdictional allegations of the complaint are not disputed Herman and Matlack are employers engaged in commerce , as alleged, and the Bakery Union and Teamsters Locals 384 and 773 are labor orga- nizations, as alleged. 278 NLRB No. 36 MATLACK, INC., the front page of the 1982-198:5 contract (G.C. Exh. 2) refers generally to facilities at "Martins Creek , Treichlers and Sandts Eddy"-the represented unit of drivers and mechanics has not been changed. He explained: . . there were two separate cement mills that Con Agra [initially] bought . . one was physically at Sandts Eddy and the other one was at Martins Creek . . . And, both of these facilities were [later] used by Con Agra to store flour, and at one, they milled flour. So that, when we drew up the con- tract, we included both of those facilities . They are only using one to mill four now . . . Sandts Eddy is where the milling is taking place now, but it has a Martins Creek address. Martins Creek and Sandts Eddy are about 1 mile apart and Treichlers is about 30 miles from both Martins Creek and Sandts, Eddy. Limsenbigler, as he further testified, became "aware'; during late November 1984 that Herman had "lost" its hauling contract with Con Agra. He was "told" that Matlack had submitted a "lower bid ." Shortly thereafter, during early December 1984, he was further apprised by a driver of Herman that Matlack was then "interviewing our drivers." He then telephoned David Baker, Mat- lack's regional representative, and identified myself [Limsenbigler] as president of the Union, that I represented the workers at Treichlers and Martins Creek facility. And, I was asking for recognition . And it was my understanding that Mat- lack had agreed with Con Agra, when they were negotiating for the transfer from Herman to Mat- lack as far as the hauling goes, that they would rec- ognize our Union.... He [Baker] said he didn't know anything about it... . Limsenbigler, on cross-examination, further explained that, about December 2, 1984, he initially telephoned a Matlack representative identified as Jack Haas , who was then "interviewing, the people to be hired at the terminal there .. . ." Limsenbigler indicated [to Haas] who I was . . . and I think I asked him about recognition. He [Haas] said I'd have to talk to Baker. I would say, I let him know that we expected rec- ognition. I can't exactly remember the exact words. He [Haas] indicated he had no authority to give me any assurance one way or the other, and that I'd have to talk to Mr. Baker. Limsenbigler telephoned Baker the next day , December 3. He told Baker "that we represented the people there and I was asking for representation there." Limsenbigler added: I don't recall everything that I said to him [Baker], except the fact that we represented those 247 people and that we would continue to represent them. the bargaining unit at Martins Creek and Treichlers that was previously-they previously worked for Herman. Baker responded : "as far as he was concerned this was a Teamsters unit, but he would get back to" Limsenbigler. Later, Limsenbigler again spoke with Baker on the tele- phone. Limsenbigler was then told that : "as far as Mat- lack was concerned, they had a Union [the Teamsters] and they weren't going to be bothered with any other Union. Limsenbigler, dissatisfied with Baker's response, filed the instant charge on January 21, 1985.2 Ricky Reph was formerly employed by Con Agra and, later, by Herman to haul Con Agra's flour product. He was and is a member and official of the Bakery Union. He testified that on December 9, 1984, hee togeth- er with 17 or 18 other Herman drivers , went to a meet- ing at the Holiday Inn, King of Prussia ; that representa- tives of both Matlack and the Teamsters Union were present; that he and his fellow workers were provided with breakfast; and that at this meeting Matlack official Jack Haas said, we would be working for Matlack . . . ; we had different forms to fill out; . . . he [Haas] intro- duced different people to us that were from man- agement and also from Teamsters ... ; he said we would be joining the Teamsters , that were repre- sented in the [Matlack] Norristown terminal [Local 384].... The Teamsters representative handed Reph and his co- workers "an authorization form and a letter, stating the initiation fees and dues that we would have to pay." Matlack's Norristown terminal is some 55 to 60 miles from the Con Agra facilities. Later that same day, December 9, Reph and his co- workers went to the Matlack Norristown terminal and they -were hired. On the following day, December 10, Reph and his coworkers "went to work for Matlack." Reph recalled that the 17 or 18 Herman drivers, who had attended the December 9 meeting, started working for Matlack on the following day, December 10. In addi- tion, Herman's two mechanics were "hired also" by Mat- lack. The employees then worked under Matlack's Teamsters Local 384 contract (G.C. Exh. 3). Reph next identified a notice (G.C. Exhs. 5 and 6) posted at Matlack's 'facilities, including Martins Creek and Treichlers, about December 17, 1984. The notice stated: 2 Ltmsenbigler recalled that December 9, 1984, was "the last day Herman operated at the Martins Creek and Trechlers facilities"; Matlack "took over" on December 10, Matlack "hired all of our members, except three, who were doing the hauling previously for Herman ," and, consequently, about 18 or 19 of Matlack's 21 or 22 drivers and mechanics who were hired by Matlack to perform the Con Agra hauling services had been previously employed by Herman to perform this same work 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Please be advised that Matlack has made the de- cision to transfer the Con Agra Martins Creek .. . work to the plant site of Con Agra, Martins Creek We anticipate that 25 drivers will be given the opportunity to transfer to Martins Creek in order of their terminal seniority at Norristown [and] two second -class mechanics and one utility man will be required at Martins Creek ... . All employees desiring to be considered .. . must sign .. . Of course, it is expected that Teamsters jurisdic- tion over the Martins Creek operation will be as- signed to Teamsters Local 773 [instead of Norris- town Teamsters Local 384].3 Some 22 employees signed this notice. Reph noted that "all but a few" of the 22 signatures on the General Counsel's Exhibit 5 "are signatures of former Herman" employees. Reph explained: Q. You were asked to sign this document so you'd be able to be . . . transferred to Martins Creek . . . and Treichlers . . . But, actually, at the time, you had already been working at Martins Creek or Treichlers at the time you signed it? A. Yes. Q. So, physically, you were already transferred there? A. I always worked at Martins Creek and Treichlers. Q. At any time upon being hired by Matlack did you work at any place other than Con Agra's facili- ties at Treichlers . . . and Martins Creek, Pennsyl- vania? A. No. Reph further explained the nature of his new employ- ment with Matlack. Matlack had the "same two" dis- patchers at Martins Creek who previously had worked for Herman. The Martins Creek and Treichlers operation included "the same amount" of drivers and mechanics previously employed by Herman. These employees con- tinued to haul "trailers owned by Con Agra"; the prod- uct was still Con Agra's flour and was "delivered to the same customers"; the dispatch office was still "located at" the Martins Creek facility; the tractors and trailers were still parked ' on the Con Agra facility at Martins Creek; maintenance work on the vehicles continued to be done at Martins Creek; and, in short, the employees' "normal workday . . . is the same" as it was under Herman. However, after December 10, initiation fees and dues for Teamsters Local 773 were deducted from Reph's wages by Matlack. Reph noted that Matlack "re- turned" the deducted initiation fees "about a week or two after they took it out."4 3 See G C Exh. 4, the Local 773 contract with Matlack, effective De- cember 24, 1984. 4 It is undisputed (Tr pp 115-116) that Teamsters initiation fees were deducted from former Herman employees pursuant to the union "security clause " Reph was questioned about any "interchange" be- tween Matlack drivers at the Martins Creek-Treichlers operation and Matlack's other facilities. He testified that the drivers at Martins Creek-Treichlers "do not" "go down and do work that would normally be done by drivers working out of Matlack's" terminals. He ac- knowledged that "on occasion," `-`when we can't handle the [Martins Creek-Treichlers] work . . . a [Matlack] driver [from Norristown] will come up with the tractor" It varies . . . ; sometimes it's hardly ever; other times there might be a couple a day . . . ; other times they might not have another driver in there for a month. As Limsenbigler and Reph both noted, even when Herman had hauled Con Agra's product, Matlack would occasionally be utilized to transport "overloads" from Martins Creek and Treichlers-not on a regular basis; . .. if there was an extra load that could not be hauled by [Herman's] drivers" (see Tr. pp. 33-34, 97, 100-101).5 In sum, according to Reph, All of the Con Agra hauling and truck maintenance is essentially being done by the same people and in the same manner that it had been done . . . when Herman was the contractor . . . . For a period of time, all 18 or 20 . . . of the Bakery Union workers were required to be in Teamsters 384 . . . and then taken out of 384... and put into 773. Matlack "took over" Herman's some 20 employees and only hired "three" new workers.6 The testimony of former Herman employees William Bear, Donald Rice, and Dennis Flamisch corroborates in substantial part the testimony of Limsenbigler and Reph detailed above. Bear specifically recalled that Matlack official Haas had apprised the former Herman drivers, it is to our [Matlack's] benefit to hire most of the drivers from Herman that are acceptable to us be- cause it would make for a smooth take over. And, in addition, we were going to be hired through the Norristown [Teamsters] Local and after a period of a couple of weeks we would be transferred to an Allentown [Teamsters] Local after they put a bid up for the Martins Creek-Treichlers drivers. [See R. Exh. 3.] 5 Herman, when confronted with such an overload or shortage of per- sonnel during its contract with Con Agra, would similarly, on such infre- quent occasions, borrow personnel from its Northampton terminal. Her- man's employees at Northampton are covered by a supplement to the Bakery Union contract. See G C Exh 2, Schedule D, "Cement Adden- dum." Reph explained that Herman had about 10 employees at North- ampton and "that was an entirely different terminal and operation." Northampton terminal is admittedly not a Con Agra facility or operation. s Reph acknowledged that he in fact "actually reported to" Matlack's Norristown terminal "only" to "change" and "wash trailers " He also took a "driver road test" at Norristown upon being hired. Reph drove a "Mack" tractor for both Herman and Matlack-Matlack admittedly had newer equipment MATLACK; INC. 249 Further, as Bear explained, about December 17, 1984, I [Bear] was told that the bid [for Martins Creek-- Treichlers] was posted down at Norristown and that we were to get down `there and sign it . .. . Whoever had the most seniority would get the bid ... [whether they worked at Norristown or were former Herman employees.] When they told us about the bidding, they said they didn't feel that any of the Norristown people would bid it; if, at all, maybe one or two possibly ... . It is essentially undisputed (Tr. 116-117) that the "normal workday" of the former Herman employees en- gaged in the performance of the above services remained "the same" under Matlack with only "limited" vari- ations. The cleaning of Con Agra's trailers at Matlack's Norristown termmal is cited as such a "limited" varia- tion. Rice, previously employed- by Herman at Martins Creek as a "tank cleaner" "jockey and free-loader," now works for Matlack-he no longer does the cleaning which is performed at a "different location." As Rice ex- plained, the cleaning previously performed for Herman was in fact done off Con Agra's site on -a nearby farm. And, Flamisch, one of Herman's two mechanics at Mar- tins Creek, similarly noted that the same two mechanics there "perform those same duties and functions" for Mat- lack. The Martins Creek mechanics "maintain the vehi- cles" parked at both Martins'Creek and Treichlers. ` David Baker, Matlack's eastern regional representa- tive, testified that his Company has some 100 terminals located throughout the United States and is a'signatory to the Teamsters Union Eastern Area Tank Haul Agree- ment (R. Exh. 1), as well as supplemental agreements with various Teamsters Locals having jurisdiction over particular terminal operations. (See, e.g., G.C. Exhs. 3 and 4.) Baker noted that Matlack has had a terminal in Norristown, Pennsylvania, since about 1962; that Con Agra, in the past, had utilized Matlack's Norristown drivers on occasion to haul its product; and that, in late 1984, Matlack submitted a "bid" to Con Agra "to handle the flour business from Martins Creek" which was then being serviced by Herman. Baker, in an attempt to, get the "bid," cited to Con' Agra "the benefit of using Mat- lack [because] we could clean their trailers at our Norris- town terminal" and "stressed .. . Matlack's overall size and service capabilities." Baker , asserted that his Company initially. had' deter- mined that, if Con Agra accepted its "bid," the Martins Creek-Treichlers job would be "handled by Norristown" personnel. On November 21, 1984, Con Agra in, fact no- tified Matlack that it would replace , Herman; Matlack was "to begin the,total operation on December. 3 and Con Agra wanted "a quick and complete transition [with] no interruption of service." Baker, however, ob- tained an extension of this "take over" deadline until-De- cember 10, 1984. Matlack needed 'additional driver and mechanic per- sonnel to handle the Con Agra operation. It interviewed applicants about December 9 at the Holiday Inn, King of Prussia. As Baker acknowledged, "preference" was given to Herman employees. The applicants were told during their interviews that they "would be hired out of the Norristown terminal . . . under the jurisdiction of Teamsters Union Local' 384" and "fall to the bottom of the seniority list at" the Norristown terminal. Matlack hired that day, December 9, approximately 16 former Herman drivers. In addition, Matlack hired two former Herman mechanics. Consequently, of the approximately 21 employees hired to handle the Con Agra operation, 18 were former Herman workers. Baker claimed that this type of "take over" by his Em- ployer occurred "probably on the average of twice a year" and the newly acquired operation was "just inte- grated into the Matlack system." In Baker's view, Mat- lack was obligated, by practice and its, contracts with the Teamsters, to place the Con Agra "work" at Norris- town- "it falls under the Norristown terminal" and "be- longed to Norristown employees." (Cf. R Exhs: 3, 5, 6, 7, & Tr. pp. 266-273.) Baker added that Matlack's 100 terminal system is an "integrated system"; "we work closely with other terminals through operations or cen- tral dispatch"; and, in this manner, there is greater oper- ational efficiency. However, Baker acknowledged that, in effect, "these specific Con Agra units, because they were dedicated trailers, were not at this time integrated into the Matlack central dispatch system." Further, Mat- lack had obtained "permission" to park its "units" on Con Agra's property, not at Norristown, from the com- mencement of operations there. In addition, Matlack had negotiated with Herman "regarding some of [Herman's] shop tools, shop equipment, air compressor, those kinds of items" at the Con Agra site. Elsewhere, Baker explained, in part as follows: Q. Now, isn't it true, Mr. Baker, that Matlack en- tered into negotiations with Con Agra in early De- cember 1984, to lease part of Con Agra's facility lo- cated at Martins Creek, Pennsylvania?-:.. I'm talk- ing about the negotiations for leasing part, of Con Agra's, facility. A. Yes. Q. As a result' of those negotiations, you did obtain a lease or an agreement to use ,part of Con Agra's facility at Martins Creek? A. Yes. An Agreement. Q. What portion of the property did you get to use? A. The shop location and the lower-I call it the lower yard. Q. The lower yard; is that where they park the trucks? A. Yes. Q. Is that what you leased it for, for parking pur- poses? - A. Yes. Q. And the shop would be the mechanics' shop, where the mechanic work is done? A. Yes. Q. When did you get the right to use the Con Agra facilities? . . . On the 10th of December? 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Right. Q. Even before you hired these former ... Herman employees, you realized that it was to your advantage to hire those people because of their ex- perience at that facility and because of their knowl- edge of the customers and the routes, and so forth, isn't that true? A. Yes. Q. You realized at that point that they lived close to the Martins Creek facility, their homes are close to the Martins Creek facility; isn't that true? A. I would assume. I don't personally know where any of them resided who applied. Q. But that is your assumption? A. I would assume that. Q. You also assumed that the Matlack employees who were working out of Norristown lived closer to the Norristown terminal, isn't that true? A. The majority, yes. I do know that there were some who lived in the Lehigh Valley, also. Q. So it came as no surprise to you when the people that signed that list to be transferred to Mar- tins Creek [G.C. Exh. 5] ..., that the great majori- ty of those were former Herman employees, isn't that true? A. Right. Q. And from the very beginning, your Company assumed that those people would be working out of that terminal, isn't that true? A. No. We didn't presuppose anything. Under our contractual obligations with Local 384, we posted it for transfer, which was open to all Norris- town employees. Q. Yes. But you knew deep down in your heart that people who were working at Martins Creek would be the ones who would apply for that job and that those working out of Norristown wouldn't be interested in that work; isn't that true? A. That would be a logical assumption. Q. And the only reason you, when you hired these men you told them they'd be working out of Norristown, was to satisfy that technicality, that you had to go through that, to let everyone bid on those jobs because you knew the end result would be that the Matlack-the Martins Creek employees would be the ones who would get the jobs and would be the ones who would bid on it; isn't that true? A. Yes. Baker further recalled: I [Baker] received another phone call from, I be- lieve, a Mr. Ehrlic, approximately a week later .... He asked if I was coming up to negotiate a contract with the Bakery Union, and I said I had no intention of negotiating a contract since I was under obligation with 384 at Norristown ... . Baker could not recall a later telephone conversation with Limsenbigler. Stanley Bowers, now terminal manager for Matlack at "the Martins Creek facility," testified that he assumed his "current position" on December 24, 1984; that previous- ly he was the "terminal manager at Norristown"; that Matlack, prior to its takeover of Herman's operation, performed hauling work for Con Agra "on a back up basis"-"it was work that was normally performed by Herman that they could not cover"; and that I [Bowers] found out that Herman's contract [with Con Agra] was going to be due up . . . . So, we made a sales call to put our bid in and see if we could take a bit of the work. J3owers asserted that Matlack previously contemplated that the Con Agra work "was going to fall into Norris- town, and the cleaning [of trailers] was going to be done at Norristown." However, elsewhere, Bowers explained that Matlack, from the outset of its take over of the Con Agra job in 1984, "anticipated that in the near future this work may be redomiciled closer to the Con Agra facility " (R. Exh. 3.)7 Matlack, took over the Con Agra operation on Decem- ber 10.5 Bowers testified that one problem that we realized . . . it was going to take a lot [of the drivers'] time to report to Norris- town . . . so I contacted Mr. Baker on December 10 . . . and that's when we decided . . . if we just couldn't park the units [ a t Con Agra] ... . Matlack also "had fuel brought in to Martins Creek that afternoon." The 16 former Herman drivers thus contin- ued to do their jobs from the Con Agra site. In addition, Bowers recalled that on December 21, 11 days later, he was "informed that, as of December 24, we would be operating as a terminal in Martins Creek." Bowers there- upon transferred to Martins Creek. Bowers insisted that "Matlack has what is known as' a central dispatch system." However, on cross-examination, Bowers ac- In addition, Baker related his telephone conversation with Limsenbigler on December 3, 1984, as follows: He [Limsenbigler] called and identified himself as being with the Bakers Union. He understood that Matlack was taking over the business at Con Agra and wanted to know if Matlack intended to-I don't know if he used the word negotiate or put the drivers in the Bakery Union. My response was that we had a contract with Local 384, and the work was being handled out of Norristown, and I would get back to him. ' In the past, Con Agra's trailers had been cleaned at the Con Agra site. According to Bowers, Con Agra "had been notified by the EPA . . they had to discontinue cleaning on the property " Consequently, as noted above, the Con Agra trailers, during Herman's performance of the work involved, were in fact cleaned on a nearby farm site Bowers ex- plained to Con Agra that, if Matlack's bid were accepted, this "cleaning would be done at Norristown." 8 Bowers explained that, after Matlack's bid was accepted by Con Agra, "we processed three drivers that first week" in Norristown; Mat- lack also hired the Herman dispatchers "knowing that they were familiar with the work"; Matlack advertised and held interviews for additional personnel; and 16 new drivers were hired-"all former drivers for Her- man's Martins Creek facility " According to Bowers, "everybody went to the bottom of the Norristown seniority list." MATLACK, INC. 251 knowledged that the "drivers that are: involved in' this case ... never in fact used the central dispatch office" of Matlack-they are "not assimilated into the central dispatch" because they "have to return the [Con Agra] trailers.9 The testimony detailed supra is by and large undis- puted. There are, however, some conflicts. I' credit the above testimony of Limsenbigler, Reph, Bear, Rice, and Flamisch as a reasonable , complete, and candid recitation of the pertinent sequence of events . Insofar as the testi- mony of Baker and Bowers may conflict with the above testimony of Limsenbigler, Reph, Bear, Rice, and Fla- misch, I find the testimony of the latter witnesses to be more complete, reliable, and trustworthy here. The testi- mony of the latter witnesses was in significant part mutu- ally corroborative, substantiated by undisputed documen- tary evidence, and substantiated by acknowledgements of the Employer's representatives. And, relying also on de- meanor, I was favorably impressed with the candor of the latter witnesses. Discussion We are mainly , concerned here with the applicability of settled legal principles of successorship and accretion to the essentially undisputed evidence of record. As the court explained in NLRB v. Jeffries Lithograph Co., 752 F.2d 459, 463 (9th Cir. 1985), A successor employer is a firm which, having hired most of its employees from `a predecessor em- ployer's workforce, conducts' essentially the same business that the predecessor did . . . . When a properly recognized ' or Board-certified union has represented the predecessor's employees,' the law presumes that a majority of'-the successor's employ- ees support the same union . . . . This presumption places the successor employer under a' duty to bar- gain with the union ... . The reason for the presumption is that a mere change in ownership, without an essential change in working conditions, is not likely to change employ- ees' attitudes toward union representation [NLRB v. Burns International Security Services , -406 U.S. 272 (1972).] 9 James Shelton, business representative for the Eastern Conference of Teamsters, identified the Eastern Area Tank Haul Agreement (R. Exh 1). In his view, under this agreement, When a carver [like Matlack] operating under this contract finds new business and brings that new business into its system, . the position of the Eastern Conference of Teamsters with respect to the coverage of this contract [is] ... it's an accretion to the bargaining unit . The employer involved, like Matlack, has "no authority to determine what Union will have jurisdiction over its operation, [that is] what Union within the Teamsters Union." Shelton then explained the procedure and method for resolving such a dispute. He insisted that the Con Agra work is an "accretion to the bargaining -unit, therefore, it comes under Team- sters " Further, he noted similar acquisitions by other employers 'operat- ing under this agreement . Also see the testimony of Raymond Snyder, formerly associated with, among others, Chemical Tank Lines, a carrier under contract with the Teamsters (Tr 281-291). He too similarly asserted that : "we understood that any work that we acquired was going to be put under the Eastern Area Tank Haul Agreement." And, 'in Airport Bus Service, 273 NLRB 561, 562 (1984), the Board restated the controlling considerations, as fol- lows: An employer which takes' over a business is a "successor" if there is continuity in the employing industry after the change in ownership . Although all the circumstances are considered , the key factor in making a successorship determination is whether a 'majority of the new employer 's bargaining unit employees were members of the predecessor's unit work force"at or near the time it ceased operations. Accretion, on the other hand, is a limited, practical ex- ception or accommodation. The Court, in NLRB Y. Secu- rity-Columbian Banknote Co., 541 F.2d 135, 140 (3d Cir. 1976), observed: Simply stated, an accretion is the incorporation of employees into an -already existing larger unit when such a community of interest exists among the entire group that the additional employees have no separate unit identity [and thus are] properly gov- erned by the larger group's choice of bargaining representative. The Court noted, however, that the "Board has restric- tively applied the accretion principle since it operates to deny the accreted employees a vote on their choice of bargaining representative." Applying the foregoing legal principles to the essen- tially undisputed and credited evidence of record, I find and conclude that Matlack became a successor employer of Herman upon its December 10, 1984 takeover of the Con Agra ' flour hauling operation. Herman, for many years, had recognized the Bakery Union as the exclusive bargaining agent of the driver and mechanic employees engaged in the hauling of Con Agra's flour. These driver and mechanic employees constituted , at all times perti- nent here, a separate and appropriate unit for collective- bargaining purposes. Matlack, on takeover, continued this same flour hauling operation. Matlack hired the former Herman drivers and mechanics . Only three new employees, of a total of some 21 , were hired. The same dispatchers were hired. And, the drivers and mechanics continued, without any interruption or break in service, to perform the same, duties which they had performed for Herman. The tractors and trailers were still parted at the Con Agra facilities ; the same Con Agra trailers were hauled; the normal workday remained unchanged; there was no interchange with other Matlack personnel; the total work force remained essentially the same ; the same product was hauled in the same trailers to the same cus- tomers; the dispatch system remained unchanged; and Matlack even purchased equipment , and property from Herman , in order to continue this flour hauling operation at the Con Agra site . In_ short, we have here a "mere change in ownership 'without any essential , change in working conditions," with virtually all the predecessor's employees still performing the unit work . Cf. Jeffries Lithograph, supra, and cases cited. Matlack argues that the Con Agra site drivers and me- chanics should be accreted into its existing work , force. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, as the record shows, the drivers and mechan- ics engaged in hauling Con Agra's flour have not lost their "separate identity"-they have not been incorporat- ed into "an already existing larger unit" with the re- quired "community of interest . . . among the entire group." Cf. Security Columbian-Banknote, supra, and cases cited. On the contrary, these drivers and mechanics continue, as before, to haul the same flour on Con Agra trailers at the Martins Creek-Treichlers facilities; they have separate supervision; they do not interchange with other Matlack personnel; they are geographically sepa- rate; and they have not even been integrated into the Matlack central dispatch system because of their limited and specialized flour hauling duties for Con Agra. These drivers and mechanics have been represented, for many years, by the Bakery Union. Under the circumstances present here, to apply the accretion principle would, in my view, deny the "accreted employees a vote on their choice of bargaining representative" (Ibid).10 Matlack further contends that the Bakery Union did not, make a sufficient demand for recognition. "The Board and the Courts have repeatedly held that a valid request to bargain need not be made in any particular form, or in haec verba, so long as the request clearly in- dicates a desire to negotiate on behalf of the employees in the appropriate unit." Cf. Marysville Travelodge, 233 NLRB 527, 532-533 (1977), and cases cited. The essen- tially undisputed and credited evidence of record amply demonstrates here that the Bakery Union, at all times pertinent, sufficiently manifested its desire to continue representing and negotiating on behalf of the former Herman drivers and mechanics engaged in hauling Con Agra's flour at the Martins Creek-Treichlers site. Union Official Limsenbigler made this clear to Matlack Repre- sentative Haas and, later, on two occasions, to Matlack representative Baker. Union Attorney Ehrlic, in like vein, repeated this request to Matlack Representative Baker. In response, Baker emphasized that he had "no intention of negotiating" with the Union because of Mat- lack's Teamsters contract. The Bakery Union thereupon filed the instant unfair labor practice charge. Throughout this running scenario, the Bakery Union unquestionably represented an overwhelming majority of the' unit em- ployees. Matlack reasonably understood that the Bakery Union wanted to continue representing and negotiating on behalf of these unit employees. )1 10 Matlack asserts in its posthearmg brief (Br. 71-73, 21) that there was in effect "interchangeability of the employees ." In support of this asser- tion, Matlack principally relies upon the vague and unclear "understand- ing" (Tr. 248) of Company Representative Baker about what transpired during its pretakeover and start up days at the Con Agra site However, the credited evidence of record, as recited supra, does not establish such "interchangeability " And, in any event, Baker's somewhat limited "un- derstanding" falls far short of satisfying this criterion. II Following the submission of posthearing briefs, the General Counsel moved to reopen the record to 'remove any "confusion " regarding 'the names and geographic locations of the [Con Agra] facilities." The plead- ings and evidence of record sufficiently identify the pertinent facilities, that is, Con Agra's facilities at Martins Creek and Treichlers Further, Sandts Eddy has the same mailing address as nearby Martins Creek and is a part of and included in this alleged unit Therefore, it is unnecessary to now reopen the record for this limited purpose The motion is denied. Matlack admittedly entered into and maintained a col- lective-bargaining agreement with Teamsters Local 773 and applied and implemented the union-security and re- lated clauses of its Teamsters Union contracts with re- spect to the former Herman drivers and mechanics en- gaged in hauling Con Agra's flour. They were required to join the appropriate Teamsters Local and pay the specified initiation fees and dues. Matlack failed and re- fused to bargain with the Bakery Union, rendered unlaw- ful assistance and support to the Teamsters Union and discriminated in regard to the hire or tenure or terms and conditions of employment of its employees, encour- aging membership in the Teamsters, in violation of Sec- tion 8(a)(1), (2), (3), and (5) of the Act. CONCLUSIONS OF LAW 1. Matlack is an employer engaged in commerce as al- leged. 2. Bakery Union and Teamsters Locals 773 and 384 are labor organizations as alleged. 3. Matlack has violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain col- lectively and in good faith with the Bakery Union as the exclusive bargaining agent of its employees in the follow- ing appropriate unit: All employees including truckdrivers and mechanics employed at Martins Creek and Treichlers, Pennsyl- vania, mills, but excluding office clericals, guards, janitorial employees and supervisors as defined in the Act.12 4. Matlack further violated Section 8(a)(2), (3), and (1) of the Act by granting recognition to Teamsters Locals 773 and 384 as the exclusive bargaining agent of the em- ployees in the above unit, notwithstanding the fact the Teamsters Unions did not represent a majority of em- ployees in the unit; by entering into and maintaining a collective-bargaining agreement with Teamsters Local 773 as the exclusive bargaining agent of the unit employ- ees; and by deducting initiation fees and dues from the unit employees' wages on behalf of the Teamsters Union. 5. The unfair labor practices found above affect com- merce as alleged. THE REMEDY To remedy the unfair labor practices found above, the Respondent will be directed to cease and desist from en- gaging in such conduct or like or related conduct and to post the attached notice at its Martins Creek-Treichlers (including Sandts Eddy) facilities. Further, to effectuate the purposes and policies of the Act, the Respondent will be directed to,,on request, bargain in good faith with the Charging Party Bakery Union as the exclusive bargain- ing agent of the unit employees involved and embody in a signed agreement any understanding reached. Finally, the Respondent will be directed to make whole the unit employees for all monetary losses sustained as a result of its unlawful conduct, including the reimbursement of the 12 As explained supra, this unit, alleged in the complaint , includes the proximately located Sandts Eddy Con Agra facility MATLACK, INC. unit employees for 'ues and initiation fees unlawfully withheld from their wages and unrefunded to date,l"-to- gether with interest, as provided in Florida Steel Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record; I issue the following recommend- ed14 ORDER The Respondent, Matlack, Inc., Lansdowne, Pennsyl- vania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with Local 6, Bakery and Confectionery Workers Union of America, AFL-CIO as the exclusive bargaining agent of the employees in the following ap- propriate unit, with respect to rates of pay, hours of em- ployment, and other terms and conditions of employ- ment. The appropriate unit is: All employees including truckdrivers and mechanics employed at Martins Creek and Treichlers, Pennsyl- vania, mills, but excluding office clericals, guards, janitorial employees and supervisors as defined in the Act." s (b) Granting recognition to Teamsters Locals 773 and 384 as the exclusive bargaining agent of the unit employ- ees, notwithstanding the fact that the Teamsters Unions do not represent a majority of the unit employees; enter- ing into and maintaining a collective-bargaining agree- ment with Teamsters Local 773 as the exclusive bargain- ing agent of the unit employees, notwithstanding the fact that the Teamsters Union does not represent a majority of the unit employees; and deducting initiation fees and dues from the unit employees' wages on behalf of the Teamsters Union. (c) 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) On request, bargain collectively and in good faith with the Bakery Union as the exclusive bargaining repre- sentative of the unit employees, with respect to rates of pay, hours of employment, and other terms and condi- tions of employment, and embody in a signed agreement any understanding reached. (b) Make whole the above unit employees for all mon- etary losses sustained, including unlawfully withheld dues and initiation fees, together with interest, as provid- ed in this decision. (c) Post at its facilities in Martins Creek and Treichlers, Pennsylvania, copies of the attached notice 13 The record indicates that some, but not all, dues and/or fees unlaw- fully withheld from the unit employees have been refunded. 14 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 15 See fn 11 253 marked "Appendix."16 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply., 16 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT fail and refuse to bargain collectively and in good faith with Local 6, Bakery and Confection- ery Workers Union of America, AFL-CIO as the exclu- sive bargaining agent of the employees in the following appropriate unit, with respect to rates of pay, hours of employment, and other terms and conditions of employ- ment. The appropriate unit is: All employees including truckdrivers and me- chanics employed at Martins Creek and Treichlers, Pennsylvania, mills (including Sandts Eddy), but excluding office clericals, guards, jani- torial employees and supervisors as defined in the Act. WE WILL NOT grant recognition to Teamsters Locals 773 and 384 as the exclusive bargaining agents of the unit employees, notwithstanding the fact that the Teamsters Unions do not represent a majority of the unit employ- ees; enter into and maintain a collective-bargaining agreement with Teamsters Local 773 as the exclusive bargaining agent of the unit employees, notwithstanding the fact that the Teamsters Union does not represent a majority of the unit employees; or deduct initiation fees and dues from the unit employees' wages on behalf of the Teamsters Unions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed by Section 7 of the National Labor Re- lations Act. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, on request, bargain collectively and in good WE WILL make whole the above unit employees for all faith with the Bakery Union as the exclusive bargaining monetary losses sustained, including unlawfully withheld representative of the unit employees, with respect to dues and initiation fees, together with interest, as provid- rates of pay, hours of employment, and other terms and ed in this decision. conditions of employment, and embody in a signed agreement any understanding reached. MATLACK INC.