Cencom Of Missouri

CENCOM OF MISSOURI 253 Cencom of Missouri and Communications Workers of America, AFL-CIO. Case 14-CA-17810 24 November 1986 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND STEPHENS On 30 September 1985 Administrative Law Judge Elbert D. Gadsden issued the attached deci- sion. The Respondent and the General Counsel filed exceptions and supporting briefs. 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order as modified. 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 The Respondent contends that with its takeover it implemented dra- matic changes in the bargaining unit employees ' terms and conditions of employment to militate against a finding of substantial continuity in the identity of the employing enterprise from Warner Amex to the Respond- ent We agree with the Respondent that the judge failed to identify cer- tain changes instituted with the transfer of business operations Thus, in addition to changes outlined in the judge's decision , the record reveals that the Respondent also eliminated a stock purchase plan, grievance pro- cedure, premium pay policy, and long- and short-term disability cover- age Further, the Respondent modified its predecessor's "on-call" proce- dures, methods of computing overtime and leave accrual , holiday pay practices, probationary policies, and employee medical plan contributions These changes in the working conditions (which the Respondent was free, of course, to make), however, do not basically affect the continu- ation of the employing enterprise Fabstee! Co of Louisiana, 231 NLRB 372, 377 (1977), enfd 587 F 2d 689 (5th Cir 1979) See also NLRB v Burns Security Services, 406 U S 272, 294, 295 (1972) Member Johansen finds that these changes concern matters that are not relevant to the continuity-of-enterprise inquiry under Burns Instead, he finds that the Respondent merely exercised its right to make changes in the employees' initial terms and conditions of employment By setting employees' initial terms and conditions of employment, however, the Re- spondent did not affect the nature of the employing enterprise 8 On 12 May 1986 the Respondent filed a motion to reopen the record and a supporting brief The General Counsel filed a response in opposi- tion to the motion on 27 May 1986 The Respondent contends that its operations have changed substantially since the judge rendered his deci- sion in this case . We find that the changes outlined in the Respondent's motion occurred well after the time relevant to the determination of successorship status The record establishes that on 3 and 11 January 1985 the Union requested that the Respondent recognize and bargain with it on behalf of former Warner Amex unit employees The record also shows that prior to the requests the Respondent commenced oper- ations with a work force consisting entirely of its predecessor's employ- ees We therefore find the Respondent's duty to recognize and bargain with the Union began on 3 January 1985 See Redok Enterprises, 277 NLRB 1010 fn 3 (1985) The changes mentioned in the Respondent's motion , having occurred after the relevant date, do not affect our conclu- sion that the Respondent is a successor employer to Warner Amex See Hudson River Aggregates , 246 NLRB 192 fn . 3 (1979), Pre-Engineered Building Products, 228 NLRB 841 fn 1 (1977) Accordingly, as the Re- The General Counsel excepts to the judge's de- scription of the appropriate bargaining unit. We find merit in this exception. As explained more fully in the judge's decision, on 19 January 1984 the Union was certified as the collective-bargaining representative of Warner Amex Cable Communications' (Warner) employees in the following unit: Demand Maintenance Technician, Preventive Maintenance Technician, Permit Processor, In- staller, Pre-wire Installer, Warehouser, Lead Warehouser, Quality Control Technician, Lead Quality Control Technician, Electronics Quality Control Technician, Lead Pre-wire In- staller, Construction Lineman, Bench Techni- cian, Lead Tracker, Qube Activation Techni- cian, Non-pay Technician, Converter Repair, and Dispatcher, EXCLUDING all office cleri- cal and professional employees, temporary em- ployees, guards, and supervisors as defined in the Act and all other employees. Shortly after Warner and the Union executed a 1-year contract, the Respondent purchased Warner and its assets. When the Respondent commenced operations on 1 January 1985, its work force con- sisted entirely of former Warner employees. Al- though the Respondent's employees continued to perform all the work previously performed by Warner's employees, certain job functions were consolidated as part of an effort to streamline oper- ations. The Respondent essentially reclassified the unit employees' modified functions into the follow- ing categories: locator/utilities coordinator, installer/technician, pole line maintenance,3 and super technician. This reclassification did not re- quire extensive cross-training of employees be- cause, in most instances, the newly classified em- ployee had been called on at times in the past to perform the work that was now added to his or her formal classification. The judge concluded that the proper description of the appropriate unit remained that which was set forth in the Board's original certification. We agree with the General Counsel that a unit descrip- tion that reflects the new job titles assigned by the Respondent to the unit employees' work is appro- priate. In addition to finding that the unit descrip- tion recommended by the judge is obsolete, we spondent seeks to present evidence that if adduced and credited, would not require a different result, we deny the Respondent 's motion In doing so, however, we note that the affirmative bargaining order rendered in this decision applies only with respect to unit employees employed by the Respondent at the operations based in Olivette and Fenton , Missouri 8 In sec III,(c), of his decision , the judge inadvertently referred to em- ployee Darrell Best's new job title as "pull line maintenance " The cor- rect title for Best's job is "pole line maintenance " 282 NLRB No. 37 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD note that, although ,the General Counsel first pro- posed modified unit language in the complaint issued 7 March 1985, the Respondent has at no time objected to the General Counsel's proposed language or questioned its accuracy. Further, the revised job titles are consistent with record evi- dence offered by the Respondent during the hear- ing. Finally, the amended unit description would encompass all employees at the Respondent's Oli- vette and Fenton, Missouri facilities,who perform the same unit work previously performed by War- ner's unit employees. Accordingly, we shall revise the unit description as follows:4 All field technician employees including Locator/Utilities Coordinator, Installer/Tech- nician, Pole Line Maintenance, and Super Technician, EXCLUDING all office clerical and professional employees, temporary em- ployees, guards, and supervisors as defined in the Act and all other employees. ORDER The National Labor Relations Board adopts the recommended Order of the 'administrative law judge as modified below and orders that the Re- spondent, Cencom of Missouri, St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Refusing to recognize and bargain with Charging Party Communications Workers of America, AFL-CIO as the exclusive collective-bar- gaining representative of the employees in the Oli- vette and Fenton, Missouri facilities in the appro- priate bargaining unit described below, regarding wages, hours,, working conditions, and other terms and conditions of employment: All field technician employees including Locator/Utilities Coordinator, Installer/Tech- nician, Pole Line Maintenance, and Super Technician, EXCLUDING all office clerical and professional' employees, temporary em- ployees, guards, and supervisors as defined in the Act and all other employees." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT fail or refuse to recognize and bargain with Communications Workers of Amer- ica, AFL-CIO as the exclusive collective-bargain- ing representative of the employees in the Olivette and Fenton, Missouri facilities in the appropriate unit described below regarding wages, hours, working conditions, and other terms and conditions of employment: All field technician employees including Locator/Utilities Coordinator, Installer/Tech- nician, Pole Line Maintenance, and Super Technician, EXCLUDING all office clerical and professional employees, temporary em- ployees, guards, and supervisors as defined in the Act and all other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, bargain with the Union as the collective-bargaining repre- sentative of our employees in the unit described above with respect to wages, hours, and other terms and conditions of employment and, if an un- derstanding is reached, embody such understanding in a signed agreement. CENCOM OF MISSOURI 4 We also amend the judge's Conclusion of Law 4 to incorporate the above-revised unit description. Sharon G. Birenbaum, Esq., and Robert S. Seigel Esq., for the General Counsel. Ronald Kreismann, Esq. (Finley, Kumble, Wagner, Hein, Underberg, Manley & Casey), of New York, New York, for the Respondent. CENCOM OF MISSOURI 255 DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. A charge and an amended charge of unfair labor practices were filed on 21 January and 6 March 1985, respectively, by Communications Workers of America, AFL-CIO (the Union or Charging Party) against Cencom of Mis- souri (the Respondent). The Regional Director for Region 14, on behalf of the General Counsel, issued a complaint against the Respondent on ' 7 March 1985. ` The complaint alleges that as of i January 1985 the Respondent, Cencom, became the successor of Warner Amex Cable Communications of St . Louis, Missouri; that since that date (1 January 1985) the Respondent has em- ployed unit employees of predecessor Warner Amex who at the time were represented by the Union, which at all times since 1 January 1985 has been the exclusive representative of the unit employees for purposes of col- lective bargaining with respect to rates of, pay, wages, hours, and other terms and conditions of employment; that on II January 1985, the Union orally requested the Respondent to recognize and bargain with it on behalf of the unit employees, which request the Union renewed during a meeting with , the Respondent on 11 January 1985; and that since the date of those requests , the Re- spondent has failed and refused to recognize and bargain with the Union, in violation of Section 8(a)(1) and (5) of the Act. The Respondent filed an answer on 28 March 1985, denying that it has engaged in any unfair labor practices as set forth in the complaint. A hearing in the above matter was ' held before me in St. Louis, Missouri, on 22 May 1985 . Briefs have been received from the General Counsel and the Respondent, respectively, which have been carefully considered. On the entire record, including my observation of the demeanor of the witnesses , and my consideration of the briefs filed by the General Counsel and the Respondent, respectively, I make the following FINDINGS OF FACT 1. JURISDICTION Warner Amex Cable Communications of St. Louis, Missouri (Warner Amex) was, until 31 December 1984, a Missouri corporation pursuant to the laws of the State of Missouri. As such, Warner Amex maintained a principal place of business at 9358 Deilman Industrial Drive, St. ]Louis, Missouri (the St. Louis facility), where it engaged in the operation of'cable television systems in St. Louis County. During the 12-month period prior, to 31 December 1984, Warner Amex, in, the course and conduct of its business operations, purchased and received at its St. Louis facility products , goods, and materials valued in excess of $50,000 directly from points located outside the State of Missouri. The complaint alleges, the parties stipulated , and I find that Warner Amex Cable Communications of St. Louis, Missouri, was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 'The' Respondent;Cencom Cable Associates, Inc., at all times material, has been jointly owned by copartners Robert A. Brooks and James C. Allen, doing business under the name of Cencom of Missouri, a limited part- nership. The Respondent has maintained its principal business offices at 14500 South Outer Forty Road, Ches- terfield, Missouri (the Chesterfield business), at 9358 Deilman Industrial Drive, St. Louis, Missouri (the St. Louis facility), and at a facility in Fenton, Missouri. The Respondent is engaged in the operation of the cable tele- vision systems in St . Louis County. Based on a projection of the Respondent's operations since 1 January 1985, when the Respondent commenced operations, the Respondent, in the course and conduct of its business operations, will annually purchase and re- ceive at its St. Louis, Missouri facility products , goods, and materials valued in excess , of $50,000' directly from points located outside the` State of Missouri. The complaint alleges, the answer admits, and I fmd that the Respondent is now,. and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The undisputed and credited testimony of William R. Harwell, administrative assistant to the vice president of Communications Workers of America, AFL-CIO (the Union), established that the Union represents employees, negotiates contracts, and participates in grievance and ar- bitration procedures with respect to wages, benefits, and conditions of employment . Employees hold membership in the Union and participate in the Union's local' meet- ings. Based on the foregoing uncontroverted evidence, I find that Communications Workers of America,, AFL- CIO is, and has been at all times material; a labor organi- zation within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Information About 1980,Warner Amex commenced installing and operating a cable television system pursuant to franchises in approximately 24 municipalities in St. Louis County. On 19 January 1984 the Union was certified as the exclu- sive representative of all employees of Warner Amex in the unit described as follows: Demand Maintenance Technician, Preventive Main- tenance Technician, Permit Processor, Installer, Pre-wire Installer Warehouser, Lead Warehouser, Quality Control Technician, Lead Quality Control Technician, Electronics Quality Control Technician, Lead Pre-wire Installer, Construction Lineman, Bench Technician, Lead Tracker, Qube Activation Technician, Non-pay Technician, Converter Repair, and Dispatcher EXCLUDING all office clerical and professional employees , temporary employees, guards, and supervisors as defined in the Act and all other employees. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warner Amex entered into .an agreement for the pur- chase of all its assets by the designee Respondent on 22 October 1984. The record and undisputed testimony show that Warner Amex commenced negotiating with the Union in March 1984, and the parties reached an agreement on a contract for 1 year, which was ratified by the Union in August 1984, and executed by the parties 29 November 1984. The record also shows that on 22 October 1984 Warner Amex entered into an agreement by which the Respondent, as designee of Cencom Cable Associates, Inc., agreed to purchase all the assets of Warner Amex, providing Warner Amex could transfer the franchises under which 85 percent of the subscribers of Warner Amex were being serviced. (G.C. Exh. 6.) During the process of obtaining the franchises from the several mu- nicipalities, the Respondent submitted an executive sum- mary, which stated, in part, that the Respondent "has contractually agreed with Warner Amex to `step into its shoes' and make no operational changes" or modifica- tions in the Warner Amex franchises relevant to the op- eration of the cable system Warner services, including the Qube services. (G.C. Exh. 3.) About 14 December 1984, Warner Amex (David M. Mintzes, vice president of industrial relations for Warner Amex) telephonically and in writing notified the Union that the sale of Warner Amex would be consumated on 28 December 1984, on which date Warner Amex will cease to exist as a business title; that in accordance with the existing collective-bargaining agreement between Warner Amex and the Union, Mintzes had given notice of the existence of the collective-bargaining agreement to the purchasing Respondent; that during the week of 17 December, all bargaining unit employees will be notified of their termination, at which time they will also be given applications to apply for employment with the Re- spondent, which he suggested the Union urge the em- ployees to complete and submit to the Respondent imme- diately. Mintzes also delivered a copy of the collective- bargaining agreement between Warner Amex and the Union to the Respondent's attorney on 30 November 1984. Warner Amex was in fact sold to Respondent Cencom of Missouri about 28 December 1984, and busi- ness operations and cable service were not interrupted by the sale and transfer.' B. Respondent Continued the Cable Television Service for Warner Amex The Respondent hired 70 out of 100 (70 percent) of Warner Amex's employees, and 30 out of 42 (approxi- mately 71 percent) of Warner Amex's bargaining unit employees, and commenced business operations about 1 January 1985. Consequently, on the latter date, the Re- spondent's entire work force consisted of former employ- ees of Warner Amex. After returning from 2 weeks' vacation, Communica- tions Workers of America (CWA) Representative Wil- liam R. Harwell called the Respondent's co-owner and partner, James Allen, on 3 January 1985, and informed him that the CWA Union represented employees of the Respondent. Allen expressed doubt that CWA represent- ed the employees and Harwell asserted that he did repre- sent the employees and requested Allen to meet with him 11 January 1985 for further discussion of the matter. Allen agreed to meet Representative Harwell on the date suggested. The uncontroverted testimony of Harwell shows that he and George Bair of CWA met in the office of Allen, with Allen and another representative of the Respondent on 11 January 1985. During the meeting Harwell re- quested the Respondent to negotiate with them as the representative of its employees in the collective-bargain- ing unit, but the Respondent refused to recognize and bargain with the Union. There was no further contact between the Respondent and the Union after the 11 Jan- uary meeting and before the charge filed by the Union 21 January 1985. C. Is the Respondent the Successor of Warner Amex The Respondent contends its refusal to recognize ' and bargain with the CWA is not in violation of Section 8(a)(1) and (5) of the'Act because its operational struc- ture and business practices are not substantially the same as those of Warner Amex so as to render the Respondent as successor employer to Warner Amex. In support of its allegation that the Respondent is the successor of Warner Amex, the General Counsel present- ed witnesses who described their job functions and titles for Warner Amex as compared with their job functions for the Respondent as follows: Job Title and Job at Respondent Function-Warner Amex Dennis McNew (1) General Essentially the same work, Warehouse duties except not consistently on between 10 December call with a beeper. Works 1980 and December more on microwave. 1984 (2) Installer- upgrading and downgrading channels. (3) Demand Work is performed in the Maintenance same areas plus BUC area 8. Technician (DMT)- troubleshooter to correct problems on feeders. On call to perform work which sometimes overlapped with installer work. ' The above facts are not disputed and are not in conflict in the record CENCOM OF MISSOURI 257 (4) Preventive Maintenance Technician (PMT)- balancing or adjusting levels on amplifiers, sweeping and splicing cable on telephone polls-mostly performed on the trunk and amplifiers. David DeSutter (1) Warehouseman Works under two immediate from what they performed for Warner Amex. However, supervisors he worked he pointed out, the same jobs existed and performed at under at Warner Amex Warner Amex exist and are now performed at the Re- spondent, even though a particular job may now be per- formed by a different former employee of Warner Amex. David DeSutter worked for Warner Amex as a ware- houseman, installer, and a demand maintenance techni- Salary-the same ; Hours- the same; Tools-the same; Benefits-lost retirement, dental and educational assistance with Respondent Essentially the same work with no additional training. Uses same tools, equipment and truck. Same work hours and started with same salary. (2) Installer (3) Demand Maintenance Technician (DMT) Uses the same: (a) Tools (b) Truck, and works the same hours under the same supervisor Several senior installers had to have additional training to perform a little more of the service work. John Aubuckon (1) Pre-wire installer Work is essentially the same. Uses the same tools. Earns the same salary, uses the same truck, and works the same hours. (2) Installer Tools-screwdrivers, crimpers, wire plyers, hammers, power drill, ladders, safety equipment, climbing gear, safety belts. David Branson Tracker and Quality Control Technician Employee Dennis McNew who worked as a ware- houseman and installer for Warner Amex, was hired by the Respondent as a supertechnician, which is described as the same function as a preventive maintenance techni- cian at Warner Amex. He further testified that some bar- gaining unit employees' positions were changed when they were hired by the Respondent. Some position changes resulted from a promotion of the employee, like Randy Webb was previously a dispatcher with Warner Amex, but worked as an installer for the Respondent until about late May 1985 . He said some other employees perform different job functions with the Respondent clan (DMT). Although he said some senior installers had to have additional training to perform a little more of the service work for the Respondent, he does not perform any job tasks for the Respondent that he did not perform for Warner Amex. Essentially, the undisputed and credited testimony of McNew, DeSutter, Aubuchon, and Branson appears to be corroborative of one another, in the sense that some installers for Warner Amex remained installers for the Respondent, performing the same work; that some em- ployees who performed demand maintenance technician work (which included performing some installer and some preventive maintenance technician work) may be performing one or the other job function, or both, under the same or a different job title with the Respondent; and that some job functions were consolidated by the Re- spondent and performed by an employee in one or a combination of the job specialties, which existed at Warner Amex, under the same or a different job title at the Respondent. Linda Skala, presently director of human resources- handling payroll and employee benefits for the Respond- ent-formerly worked as assistant secretary and office manager-supervisor for Warner Amex. In her testimony she described the comparative job functions and titles of the employees when they worked for Warner Amex, as now compared to their employment with the Respond- ent, as follows: For Warner Amex 1. R. Beck-Utilities Coordinator, processes permits 2. Randy Webb- Dispatcher, dispatches service calls 3. Darrel Best- Quality Control Technician, inspects construction 4. James Berry- Demand Maintenance Technician, runs service calls 5. Donald Brendel- Maintenance Technician, pull transfers and pre-wire 6. Dale Dennis- Construction Service Coordinator, handles customer complaints is the office For the Respondent Locator Utilities Coordinator no permit processing Installer Technician, dispatching and performing installations Pull Line Maintenance, performs pull transfers and moves cable Installer Technician, service calls and installations Installer Technician, servicing calls and performing installations Installer Technician, performing installations 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. David DeSutter- Installer Technician, Demand Maintenance servicing calls and Technician, service performing installations calls 8. Steven Marshall- Installer Technician Quality Control Inspects construction 9. Dennis McNew- Super Technician, over Preventive assistant technicians on call Maintenance on alternate shifts Technician, trunk line, cable and feeder work 10. Dean Muchnick- Installer Technician Demand Maintenance Technician 11. Eric Rives- Installer Technician Installer Technician 12. Charles Hampton-Installer Technician Not an installer 13. DeBret Kroeges- Demand Maintenance Technician Now Installer Technician 14. John Aubuchon- Resigned Installer Technician 15. Harold Martin- Was Installer Technician Preventive but has since resigned Maintenance Technician 16. Michael Evans- Installer Technician Preventive Maintenance Technician 17. Michelle Gold- Was Installer Technician Installer Technician Warner Amex Positions for Respondent Employed Area Maintenance Supervisors a. Bill Wolf- Now Super Technician Supervisor b. Bill Kuekler-Area Dispatcher, assistant head, Maintenance and technician Supervisor c. John Dotson- Super Technician Supervisor All maintenance supervisors' jobs were abolished under Respondent and all technicians now report to Ev- erett Burrows. Pull line maintenance employees now report to Bill Gast, instead of to Bob Shemrock. The drafter previously reported to Schemrock now reports to Dave Miller, engineering service manager. Responsibilities of the head technician are now com- bined with the video technician under the supervision of the dispatcher. The location of the engineering manager has been di- vided between Deilman Industrial Drive Building and the Fenton warehouse; and Bill Wolf has been moved from 9334 into the next building, the north location, so that the demand maintenance technicians and the preven- tive maintenance technicians can report to him. Employees who were only installers or demand main- tenance technicians had to be trained in each other's job functions on the job over a period of 2 to 3 weeks. Director Skala further explained that the demand maintenance technician position has been consolidated with the installer technician to operate at a lower staffing level, and render quality service in a shorter period of time to the customers . She said such consolidation of po- sitions eliminated some positions maintained by Warner Amex, which accounts for the reason the Respondent did not employ 12 of Warner Amex's 42 bargaining unit employees. Analysis and Conclusions Whether the Respondent failed and refused to bargain with the Union in violation of Section 8(a)(1) and (5) of the Act, as alleged, depends on a determination of the following subordinate factual question : Are the Respond- ent's organizational and operational structure and busi- ness practices substantially the same as those of Warner Amex, so as to constitute the Respondent a successor employer to Warner Amex and obligating it to bargain with the Union of the former unit employees of Warner Amex? The Board has held, with court approval, that when all or a part of a business is sold the purchaser of the business is a legal successor to the predecessor business entity and has inherited the obligation to recognize and bargain with a union that represents the employees of the predecessor. Indianapolis Mack Sales, 272 NLRB 690 (1984); Jeffries Lithograph Co., 265 NLRB 1499, 1503 (1982), enfd. 752 F.2d 459 (9th Cir. 1985); NLRB v. Burns Security Services, 406 U.S. 272 (1972). The Board has also held in Cruse Motors, 105 NLRB 242, 247 (1953). Where the enterprise remains essentially the same, the obligation to bargain of a prior employer de- volves upon his successor in title . . . . Where, however, the nature or extent of the employing en- terprise, or the work of the employees, is substan- tially changed, the transfer of a part, or even all, of the physical assets does not carry with it the duty of the former owner to continue bargaining with the former exclusive representative. However, in view of the multiple and varied situations that may accompany a change in the employing enter- prise, the Board has long established the criteria for de- termining whether there is substantial evidence of the following aspects of the purchasing enterprise as follows: (1) continuity in the same business operations ; (2) use of the same plant; (3) employs the same or substantially the same work force; (4) the same jobs exist under the same working conditions; (5) employs the same supervisors; (6) uses the same machinery, equipment, and methods of production; and (7) manufactures the same product or offers the same services. Aircraft Magnesium , 265 NLRB 1344, 1345, supra. CENCOM OF MISSOURI Applying these criteria to the Respondent's operations, the credited evidence demonstrates: 1. The Respondent, as was Warner Amex, is engaged in the operation and delivery of cable television systems. There was no hiatus in the same television systems busi- ness operations prior or subsequent to the transfer of ownership from Warner Amex to the Respondent. I, therefore, conclude and find that there was substantial continuity in the same business operations by the Re- spondent. 2. Although the Respondent presented uncontroverted testimony that for convenience the offices of some super- visors were moved from one building to another building that was also previously occupied by Warner Amex, the evidence substantially established that except for its of- fices located at 14500 South Outer Forty Road, Chester- field, Missouri, the Respondent carries on its total busi- ness operations in the same building facilities (9358 Dell- man Industrial Drive, and in Fenton, Missouri) as did Warner Amex; and that only the reporting location of a few unit employees was changed to another of the same facilities used by Warner Amex. Under these circum- stances, contrary to the Respondent, I find that the evi- dence supports the conclusion that the Respondent occu- pies and uses essentially the same business facilities, or plant, that Warner Amex occupied and used. . Since it has been established by the uncontroverted evidence that the Respondent employed 30 out of 42 bar- gaining unit employees and 70 out of 100 nonbargaining unit employees who were previously employed by Warner Amex, I find that the Respondent has employed substantially the same work force that was employed by Warner Amex. 4. In addressing the question whether the same jobs exist under the same working conditions at the Respond- ent, it is first noted that the General Counsel presented four employee witnesses who had actually performed work for Warner Amex and are now actually performing work for the Respondent. Linda Skala previously worked as office manager-supervisor for Warner Amex, and now works as director of human resources for the Respondent. Ms. Skala was the only witness to testify on the Respondent's behalf regarding job titles and job func- tions at Warner Amex, and now at the Respondent. In analyzing Director Skala's testimonial account against the testimonial account of McNew, DeSutter, Aubuchon, and Branson, I find that although some specific job func- tions have been consolidated with one or more other job functions, all the work previously performed by the work force of Warner Amex is still performed by the work force of the Respondent. The work performed at Warner Amex's and the Respondent's operations includes installing cable in homes, apartments, or other buildings of customers, and preparing and repairing cable lines and equipment, as well. Warner Amex classified its technicians as preventive maintenance technicians (PMT), demand maintenance technicians (DMT), and installers. The Respondent clas- sified the technicians as supertechnicians and installer technicians. Employer witnesses, and to some extent, Skala, testified that Warner Amex's PMT worked pri- marily on main trunk lines of the system. They could, 259 and sometimes did, perform the work of DMTs and in- stallers. Because they were trained to prevent major problems in the system, they were the most skilled tech- nicians. DMT worked primarily on feeder lines that ex- tended from the main trunk to the customer's building Installers worked primarily on the receiving equipment in the customer's building but they could, and sometimes did, perform installer work. On occasion, DMT per- formed PMT and installer's work. The Respondent ad- mitted its system technicians perform the same job func- tion that Warner Amex's PMTs performed The record shows the Respondent's installer technicians perform the same work the DMTs previously performed. The undis- puted and credited testimony of the employee witnesses also established that they work the same hours, receive essentially the same salary, and have essentially the same benefits, less retirement, dental, and educational assist- ance that they enjoyed at Warner Amex.2 The credited evidence shows that some job functions (mostly installer work) have been consolidated with other job functions by the Respondent, and that some new performing employees had to undergo 2 to 3 weeks on-the-job training. It is noted, however, that most other employees did not require any additional training. As such consolidated job functions were generally given an- other title, and both or all such job functions may have been previously performed by the employee to whom the new title was assigned, a few employees may not have previously performed both functions, although the record shows that a majority of the employees had pre- viously performed and are now performing installer work. The only changes the Respondent implemented in its operations are: expanding its cable television system services into a wider geographical area, and being able to perform a few more jobs with fewer employees as a result of consolidating some job functions with other job functions, and changing the supervisory assignments of some supervisors who previously worked for Warner Amex. All job functions are otherwise performed under substantially the same conditions, with essentially the same work force. 5. The evidence is clear that the Respondent employed all the supervisors who were formerly employed in man- agement at Warner Amex. Some of such supervisory persons are Bob Shemrock, William (Bill) Gast, Jeffrey Clark, Bill Kuelker, and Everett Burrows. The undis- I I find little actual conflict in the accounts of the unit-employee wit- nesses as compared with witness Skala However, to the extent that their accounts differ, I credit the unit employee witnesses over Director Skala's account because I was persuaded by the contents of their testimo- ny and their demeanor that they know more about what jobs were and are now actually performed by themselves and other workers, have ob- served or worked with fellow employees performing other job functions According to Director Skala, nearly all workmen have performed or are now performing installer technician work I was also persuaded by the demeanoir of the unit employee witnesses that they were testifying accu- rately and truthfully , while I was persuaded Director Skala was less ac- curate about the actual job functions of some employees, as she continued to refer to her notes during her testimony Additionally, because the Re- spondent did not produce any employee witnesses who actually perform the principal work functions of the business, or supervisors of such work- men, I find Director Skala's uncorroborated account somewhat self-serv- ing and not convincing, that most of the job functions and the superviso- ry positions were substantially changed 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD puted and credited testimony of four employee witnesses, corroborated in part by Director Skala, established the following: a. While employed at Warner Amex, Preventive Maintenance Technicians (PMT's), demand Mainte- nance Technicians (DMT's), and installers, reported to Area Maintenance supervisors (AMS's) and AMS's reported directly to Everett Burrows, who was the ultimate. supervisor of all technicians. After Respondent abolished the AMA's positions, Bur- rows now continues to supervise all technicians for Respondent, including McNew and DeSutter. b. Frank Webb was general manager for Warner Amex and was also general manager for Respond- ent until 1 May 1985. c. William (Bill) Gast,was manager of Technical Operations for Warner Amex on construction. He continues in that position for Respondent but as- sumes responsibility for the decreasing construction work, of which Shemrock was manager for Warner Amex. d. Jeffrey Clark was vice president of operations with Warner Amex, and he continues in that posi- tion for Respondent. e. Charging Party witness McNew testified he works under the supervision of his prior immediate supervisors. However, it is well established by the evidence that Respondent is engaged in the same predecessor business, that Respondent employs a substantial number of supervisors who formally [sic] supervised unit employees of Warner Amex; and that the current job titles of most of such supervi- sors have been simply changed by Respondent for better coordination of the work schedules, although several of them perform essentially the same work function. It is clear from the undisputed and credited testimony that Everett Burrows performs essentially the same su- pervisory functions for the Respondent that he previous- ly performed for Warner Amex, currently supervising McNew and DeSutter, whose job functions are essential- ly the same. I therefore find on the foregoing credited evidence that the Respondent employs a substantial number of supervisory personnel who formerly super- vised unit employees of Warner Amex; and that although the current job titles of these former supervisors have been changed by the Respondent, they nevertheless per- form essentially the same or related job function. The Respondent argues, however, that since it abol- ished the area maintenance supervisors positions, which included Supervisors Wolf, Kuelker, and Dotson, and main line employees now report to one supervisor, Dave Miller, engineering service manager, Respondent does not now employ the same supervisors in the same super- visory capacities. Although these title changes by the Respondent are not disputed and are acknowledged, it is particularly noted, that the Respondent (Director Skala) did not describe the specific supervisory or managerial function of the other former supervisory personnel still in its employ. Nor did it explain when such supervisory title or job function changes took place. In the absence of such specificity, the Respondent's evidence does not establish that all of its former Warner Amex supervisors perform essentially different job functions . Under these circumstances, I find that the Respondent employs sub- stantially the same supervisors who were previously em- ployed by Warner Amex. 6. Employee witnesses McNew , DeSutter, and Aubu- chon testified without dispute that they use the same tools they used at Warner Amex when performing their work for the Respondent. DeSutter and Aubuchon use the same truck and equipment they used while working for Warner Amex. The evidence did not establish that the Respondent employees use any new or substantially different tools or equipment to perform their work than were used by them to perform work for Warner Amex. Additionally, because the Respondent is engaged in the same business operations as was its predecessor Warner Amex, it is unequivocally clear that it uses substantially the same machinery, equipment, and methods of per- forming its work operations as were previously used by Warner Amex. 7. The evidence is uncontroverted and I find that the Respondent offers and delivers the same cable television services to essentially the same, although some addition- al, customers; to the same municipalities; under the same franchises, in the same, although additional, geographical areas. I, therefore, conclude and find on the foregoing evi- dence that there is substantial continuity of the business operations of Warner Amex by the Respondent; that the Respondent uses essentially the same business facilities previously used by Warner Amex; that the Respondent employs substantially the same work force that was em- ployed by Warner Amex; that essentially the same jobs exist under essentially the same working conditions at the Respondent; that the Respondent employs substan- tially the same supervisors previously employed by Warner Amex; that the Respondent uses essentially the same machinery, equipment, and methods of production or delivery of services that were previously used by Warner Amex; and that the Respondent offers and deliv- ers the same cable television systems services to essen- tially the same customers, in the same municipalities, pur- suant to the same ordinances and franchises, in the same, and additional geographical areas as did Warner Amex. Aircraft Magnesium, supra. I further find that the Re- spondent is the legal successor to the predecessor, Warner Amex, and is thereby obligated to recognize and bargain with the Union. Jeffries Lithograph Co., supra. The Union represents the Respondent's employees in the below described collective-bargaining unit. Demand Maintenance Technician, Preventive Main- tenance Technician, Permit Processor, Installer, Pre-wire Installer, Warehouser, Lead Warehouser, Quality Control Technician, Lead Quality Control Technician, Electronics Quality Control Technician, Lead Pre-wire Installer, Construction Lineman, Bench Technician, Lead Tracker, Qube Activation CENCOM OF MISSOURI 261 Technician, Non-pay Technician, Converter,Repair, and Dispatcher, EXCLUDING all office clerical and professional employees, temporary employees, guards, and supervisors as defined in the Act and all other employees. Although there were minor changes in some job func- tions, employee benefits, and some expansion of the geo- graphical area serviced by the Respondent, such changes do not significantly affect the above findings. Fabsteel Co., 231 NLRB 372 (1977), enfd. 587 F.2d 689 (5th Cir. 1979); Indianapolis Mack, supra. The Respondent's Refusal to Recognize and Bargain with the Union The unpontroverted evidence of record established that on 3 January 1985 Union Representative Harwell telephoned the Respondent's co-owner, James Allen, and advised him that the Union represented the Respondent's employees. Although the Respondent expressed doubt of the authenticity of the Union's assertion, the Union reas- serted its representative authority and the Respondent agreed to meet with the Union on 11 January 1985. During their meeting on 11 January, the Union requested the Respondent to recognize and bargain with it on behalf of its employees. When the Respondent refused, the Union filed a charge in the instant proceeding on 21 January 1985. As previously found here as the Respond- ent is the successor of Warner Amex and is legally obli- gated to recognize and bargain with the Union on behalf of its employees in the above-described unit, the Re- spondent's failure and refusal to do so constituted a vio- lation of Section 8(a)(1) and (5) of the Act. NLRB v. Burns Security Service, supra; Indianapolis Mack Sales & Services, supra. Respondent argues that its methods of operation are so substantially different from those of Warner Amex that it is not a successor employer obligated to recognize and bargain with the Union as the Board found in Georgetown Stainless Mfg. Corp., 198 NLRB 234, 236 (1972). Howev- er, my review of that case reveals that the evidence of successorship measured against the criteria enunciated by the Board in Aircraft Magnesium, supra, or Indianapolis Mack Sales, supra, is considerably less in probative qual- ity and quantity than the evidence in the case before me. I therefore deem the Georgetown Stainless case inapplica- ble to the facts as found here. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I will recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action designed to effectuate the poli- cies of the Act. Having found that the Respondent violated Section 8(a)(1) and (5) of the Act by unlawfullyfailing and refus- ing to recognize and bargain with Charging Party Union (Communications Workers of America, AFL-CIO) as the exclusive collective bargaining representative of its employees in the appropriate collective-bargaining unit, I will recommend that the Respondent cease and desist from engaging in such conduct; that it be ordered to rec- bgdize"and, on request, bargain in good faith with Com- munications Workers of America, AFL-CIO as the ex- clusive collective-bargaining representative of its em- ployees in the appropriate bargaining unit. CONCLUSIONS OF LAW 1. The Respondent, Cencom of Missouri, is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) -of the Act. 2. Communications Workers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By unlawfully failing and refusing to recognize and bargain with Charging Party Communications Workers of America, AFL-CIO, Respondent violated Section 8(a)(1) and (5) of the Act. 4. All the below-described employees employed by the Respondent, constitutes an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act: Demand Maintenance Technician, Preventive Main- tenance Technician, Permit Processor, Installer, Pre-wire Installer, Warehouser, Lead Warehouser, Quality Control Technician, Lead Quality Control Technician, Electronics Quality Control Technician, Lead Pre-wire Installer, Construction Lineman, Bench Technician, Lead Tracker, Qube Activation Technician, Non-pay Technician, Converter Repair, and Dispatcher, 'EXCLUDING all office clerical and professional employees, temporary employees, guards, and supervisors as defined in the Act and all other employees. 5. At all times material, Communications Workers of America, AFL-CIO has been the exclusive collective- bargaining representative of the employees in the above- described appropriate unit within the meaning of Section 9(a) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Cencom of Missouri, 9358 Deilman Industrial Drive, St. Louis, Missouri, and 14500 South Outer Forty Road, Chesterfield, Missouri, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Charging Party Communications Workers of America, AFL-CIO as the exclusive collective-bargaining representative of the employees in the appropriate bargaining unit de- scribed above, regarding the wages, hours, working con- ditions, and other terms and conditions of employment. 3 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 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) 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 collectively with Communications Workers of America, AFL-CIO as the exclusive collective-bargaining representative of the employees in the appropriate unit described above, with regarding wages, hours, working conditions, and other terms and conditions of employment of unit em- ployees and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its business facilities located at 9358 Deil- man Industrial Drive, St. Louis, and 14500 South Outer Forty Road, Chesterfield, Missouri, and Fenton, Missou- ri, • copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. I 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."