Tricil Resources, Inc.

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tricil Resources, Inc. and United Rubber, Cork, Li- noleum and Plastic Workers of America, AFL- CIO. Case 8-CA-15085 30 December 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 2 December 1982 Administrative Law Judge Thomas A. Ricci issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision. 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 1 and briefs and has decided to affirm the judge's rulings,' fmd- ings,s and conclusions4 and to adopt the recom- mended Order as modified-' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that Tricil Resources, Inc., Akron, Ohio, its officers, agents, successors, and as- signs, shall take the actions set forth in the Order, ' The Board's recent decision in Res-Care Inc., 280 NLRB 670 (1986), and Long Stretch Youth Home, 280 NLRB 679 (1986), clarified the princi- ples under which the Board may, in exercising its discretion, decline to assert jurisdiction over an employer because of its relationship to an entity exempt from our jurisdiction. Here, however, there were no excep- tions to the judge's finding that the Board should assert jurisdiction over the Respondent. Thus, Member Babson would not pass on the discretion- sty jurisdictional issue in this case. See, e.g., Springfield Transit Manage- ment 281 NLRB 72 fn. 1 (1986); Gateway Motor Lodge, 222 NLRB 851 (1976). Although Member Stephens views the issue as one of statutory, rather than discretionary, jurisdiction, he sees no reason for remanding this case on that issue, given both the record evidence and the absence of any claim by the Respondent that control of labor relations by an exempt entity precludes the Board's exercise of jurisdiction. See his concurring and dissenting opinion in Res-Care, supra. 2 The Respondent excepts to the judge 's decision as being tainted with bias, hostility, and prejudice. We find these allegations to be Without merit. Upon our full review of the record and the decision of the judge, we perceive no evidence that he prejudged the case, made prejudicial rulings, or demonstrated bias, hostility, and prejudice toward the Re- spondent's counsel. We further find no evidence of partiality in the judge's analysis and discussion of the evidence. a Throughout his decision the judge erroneously referred to the prede- cessor employer as Teletyne. The record indicates that Teledyne is the correct spelling of the predecessor employer. 4 We agree with the judge's finding that the steamline men, who had been included in the Union's contract with the Respondent's predecessor, are properly included in the bargaining unit . In so doing, we do not rely on Grandee Beer Distributors, 247 NLRB 1280 (1980), cited by the judge. 5 The Respondent excepts to the introductory language of the judge's recommended notice, which asserts that the Respondent violated Federal law "by illegally refusing to bargain." As we do not find the judge's use of the word "illegally," evidence of bias or prejudice, as contended by the Respondent, we shall substitute the standard language that simply refers to a violation of the Act. except that the attached notice is substituted for that of the administrative law judge. CHAIRMAN DOTSON, dissenting. In light of the jurisdictional question raised by the Respondent's contract with the city of Akron, Ohio, to operate the city-owned steam plant in question, and its employment of unit employees in this operation, I would remand this proceeding for consideration of the jurisdictional issue in light of Res-Care, Inc., 280 NLRB 670 (1986), and Long Stretch Youth Home, 280 NLRB 678 (1986). 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. WE WILL NOT refuse to bargain in good faith on request with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO in the bar- gaining unit described below: All production and maintenance employees in- cluding leadperson and supply clerks em- ployed by us at 225 Opportunity Parkway, Akron, Ohio, excluding all office clerical em- ployees, guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of your right to self-organization, to form, join, or assist the above-mentioned Union, or any other labor organization, to bargain collectively through representatives of your own choosing and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such ac- tivities. WE WILL, on request, bargain with the Union on behalf of our employees in the bargaining unit and, if an understanding is reached, embody such under- standing in a signed agreement. TRICIL RESOURCES, INC. Nancy Recko, Esq., for the General Counsel. David A. Shaffer, Esq., and Stephen B. Spollar, Esq., of Akron, Ohio, for the Respondent. Paul H. Malesick, Esq., of Akron, Ohio, for the Charging Party. 282 NLRB No. 84 TRICIL RESOURCES 589 DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held on September 22, 1982, at Akron, Ohio, on complaint of the General Counsel against Tricil Resources, Inc. (the Company or the Re- spondent). The complaint issutd on March 11, 1982, on a charge filed on August 5, 1981 , by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO (the Union). The issue of the case is whether the Re- spondent unlawfully refused to extend exclusive recogni- tion to and bargain with the Union on demand. Briefs were filed after the close of the hearing by the Respond- ent and the General Counsel. On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Tricil Resources, Inc., a Delaware corporation, is en- gaged in the business of designing and operating energy recycling plants at a number of locations throughout the United States. In the course of its operations, it annually receives goods valued in excess of $50,000 from points located outside the State of Ohio. This case is concerned only with its operations in Akron. I find that the Re- spondent is engaged in commerce within the meaning of the Act. 11. THE LABOR ORGAN][ZATION INVOLVED I find that United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE This is a very simple refusal-to-bargain case. The city of Akron owns a plant called the Akron Recycling Energy System, which, using residential-industrial gar- bage and natural gas as fuel , produces steam that the city sells to a large number of customers. The city contracts with a private company to have the plant operated. By such a contract, a company called Teletyne National Corporation operated the plant with the workmen on its direct employment from August 1979 to June 30, 1981. While the plant was functioning at full capacity, Tele- tyne had about 70 production and maintenance employ- ees. In June 1980, after a Boatel-conducted election when the number of eligible employees was set at 50, the Union won, and was certified as exclusive bargaining agent for those employees. Teletyne and the Union then signed a collective-bargaining agreement on February 1, 1981, to remain in effect for 3 years. As the months went, by the machinery that handled, processed, shredded, and fed the garbage into the plant boiler began to fail. Little by little less and less garbage was used effectively and matters reached a point where that part of the plant which dealt with the garbage ceased working altogether. The use of gas as fuel never ceased, continuing right on to the last day Teletyne was in charge of the plant. In June 1981, the city of Akron contracted with another company to operate the plant. The company is called, Tricil Resources, Inc., the Re- spondent here. Tricil took over on July 1, 1981, and began to run the plant, as it was still doing at the time of the hearing 14 months later. A majority of Teletyne's employees worked in the processing of the garbage, so that when, in May and June 1981, it became clear their work was going to end because that part of the machinery was simply not work- ing satisfactorily, those employees were released. By mid-June, with knowledge it was going to leave the plant for good, Teletyne was down to about 15 employ- ees in the bargaining unit for which the Union was bar- gaining agent. When Tricil took over on July 1 it started with about 16 employees, all of whom previously had been employees of Teletyne. But for,two or three other employees, also former employees of Teletyne, who were added sometime during the next 6 months, the em- ployee complement remained the same at least into 1982. The employees who worked on directly from the first into the second company were eight engineers, four maintenance employees, and four steamline men. On July 2, 1981, the Union requested recognition of Tricil as bargaining agent for the employees then at work, on the ground that the new company was operat- ing the same business with substantially the same work force as the predecessor. Before the month was out the Respondent refused to bargain as requested, denying successorship status . The complaint alleges this refusal to have been a violation of Section 8(a)(5) of the Act. The only question presented for decision in this pro- ceeding is whether when the Respondent refused to bar- gain with the Union in July 1981, 14 months before the hearing, it committed an unfair labor practice. Whatever happened a year or a year and a half after that time, or, indeed, whatever may happen later in 1983-of which the Respondent's sole witness 'spoke at , great length at the hearing-has nothing to do with whether Tricil vio- lated the Actin mid-1981. Board law is clear. When a second company takes over the operations of a predecessor,, continues to carry on the same business, in the same plant and location, and hires the employees who had worked for the first com- pany, continues to use the same supervisors , ' and pro- duces the same product going to the same customers, there is, a presumption of continued majority status, and the new company is, under this statute, obligated to bar- gain,with the union that represented the, employees while the first company did the business . Burns Security Services v. NLRB, 406 U.S. 272 (1972). And it matters 'not that the total number of employees involved is greatly re- duced; the presumption of continued majority among the lesser number continues on. Lloyd A. Fry Roofing Co., 176 NLRB 10,25 (1969). 1 fmd that is what happened in ' The parties stipulated that Ralph Iacono, plant manager under Tele- type, continued in that position when the Respondent assumed the oper- ation. Don Peterson, maintenance and operations supervisor under Tele- tyne, serves as the Respondent's maintenance supervisor. Joseph Homeni, steam line crew supervisor under Teletyne, continues in that position for the Respondent. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this case and that the complaint is therefore affirmatively proven as of July 1981. A number of assertions are advanced in defense, none of them valid. It is said Tricil is not in the same business as was Teletyne, but the plain facts completely contra- dict the contention. This plant, with a single large boiler, produces steam that goes out to customers in under- ground pipes spread over the city of Akron, and for which the customers pay the city directly. The plant always did this and it is still doing that today. It used two kinds of fuel-garbage and natural gas. The machin- ery that prepared the garbage for burning in the .boiler failed, was shut down, has slowly been removed and is being replaced, with expectations that by the end of 1982 garbage can again be burned here in the successful pro- duction of steam. During 1979 and 1980 gas alone was used to run the plant at least 30 percent of the time. The regular employees who were released in May and June 1981, albeit a large number, were the lesser skilled men who handled garbage, doing such work as unloading, shredding, cleaning up, etc. It is clear that with the use of, gas instead of garbage the overall machinery works by itself, needing only engineers and maintenance men. This is all that happened when the Union demanded con- tinued recognition of the successor. And the responsibil- ity for so running the plant-with the sole use of gas, was under a complete, separate contract Tricil made with the city in June 1981, obligating it to continue that straight operation to the end of 1982-a year and a half in the future. The attempt to distort this plain picture-and to say that the old business is no longer identifiable-rests on the fact Tricil entered into a totally separate contract with the city of Akron to design and later construct new side machinery in the plant for the purpose of again re- cycling garbage one day. Under that different agreement Tricil's scientists and construction engineers spent a number of months-from July to the end of 1981-on drawings and' designs conceptually conceived to improve the machinery. None of the new equipment needed to put up a new garbage consumption operation began to arrive at the plant until January 1982. When Tricil en- tered into that contract-to design and put together a new garbage recycling plant-it was specifically agreed that that work would require 18 months, until January 1, 1983 . Meanwhile it was understood Tricil would' just go on fulfilling its separate contract to operate the plant only with gas, as it in fact has been doing since July 1981. There is no relationship at all between the business of running the steam production plant for 18 months with gas and the business of designing changes in the plant for the future. More significantly, insofar as this case is concerned it is not even claimed that the employ- ees used by Tricil to run the regular steam producing business were ever intermingled with those that may be working on new engineering construction . The two "businesses" have nothing to do with one another. Nor is there any merit in the argument that because the customers of the city-those who pay the city for the steam they buy-have been reduced, Tricil is not a successor as the Board decisions hold. There were about them was the Goodrich Company and Akron University. Ralph Iacono, manager first with Teletyne and then holding the same position without interruption for the successor, grouped the rest of the customers under the phrase "central business district, " and called it one cus- tomer. He was exaggerating; the reality is, as the record shows, that in the business district of the city, where the steampipes run, there are all kinds of purchasers-stores, plants, apartments, hospitals, etc. Iacono did say, and he was not contradicted, that Goodrich and Akron Univer- sity were the largest customers, at times using up to 40 to 50 percent of the total output of the plant. But the fact is they were not two out of a total of three custom- ers. What is more revealing is that the meter readers, also called pipeline maintenance men, all of whom worked before and remained at the same work with the Respondent, continued to read meters and make reports on consumption as they had always done. This means that whatever their separate sizes, all the 148 customers in the business district continued to constitute a very major portion of the total operation. Another contention in support of the conclusionary idea that the bargaining unit as it existed under Teletyne is no longer recognizable, is the argument that a majority of the former employees taken on right away by the Re- spondent- were not, or at least may not now, be deemed as properly included. There are eight engineers and four so-called "steamline men." The steamline men, like the engineers, were always included in the Union's contract. It is not only too late to try to take them out now,2 but it is also not true that they do not properly belong there. The major part of the work performed by the steamline men is done off the plant premises; they go around in- specting the steamlines; looking for leaks, making repairs when necessary, and reading meters regularly. They keep a timecard record of their hours as do the plant em- ployees, and, when necessary, come to the plant for parts, to repair their equipment, or even to do overtime work inside the plant when convenient. They even do regular work in the plant at times. From the general manager's , testimony: "Oh, during a shutdown, they [the steamline men] may have been called in to do some work related to the valves, packing valves, repairing pipeline, that type of thing." There is absolutely no reason for saying the steamline men are not an integral part of the appropriate bargaining unit. To further bolster the contention that the business has changed and that the successor is not really using the predecessor's employees in substantial numbers, the Re- spondent also says the engineers who previously worked as regular employees included in the bargaining unit were changed into supervisors. There is literally no evi- dence supporting that position. Four of those men-now called assistant engineers but previously called shift- helper engineers-operate the machinery during their shifts, as do the regular engineers , and as both groups have always done. It is not even claimed they have occa- sion to exercise direct supervisory authority over any- body. They were licensed engineers when working for 150 customers when Teletyne ran the plant. Among a Grandee Beer Distributors, 247 NLRB 1280 (1980). TRICIL RESOURCES Teletyne and are licensed now. The- Company says they were not required to be licensed before but now are so required. Ergo, according to a leading question put to Manager Iacono by Respondent's counsel, "even though they were licensed, [they] were not employed in a li- censed capacity." How the employer's mental operation alters the status of an engineer, the lawyer did not ex- plain. The men do the same work as before, monitoring the machine operations; they also prepare steam produc- tion log sheets, water quality reports, operations data lists, purchase production records, etc. None of that work touches upon their relationship with other employ- ees, or in the least indicates supervision over others in the statutory sense. After the takeover, Tricil gave, these men a 9-percent raise in pay. Also, as it did with all of its other employees, it gave them new fringe benefits, such as dental, medical, and life insurance. As the General Counsel correctly states in her brief "... any change in the job duties of employees in the engineering classifica- tion deals most basically with their handling of machines and not other employees." One more claim, a bit fanciful, will be enough. Two of the customers for the steam produced are hospitals in Akron. Steam failure there, I suppose, could be a greater inconvenience than in a commercial establishment. Be- cause the engineer on watch during a shift must do his best to see that the boiler does not fault , and the hospi- tal's supply of steam is not cut off, he has a great respon- sibility in the servicing of that customer. Does this fact of itself help prove he is a supervisor? Quoting company counsel: "They [hospitals] need steam more than a pizza shop would need steam. A hospital is certainly more im- portant. It's important that the operating engineer be clocked with greater authority' to make 'sure that the hos- pital receives steam." "He has to have the authority to ensure uninterrupted steam delivery to crucial custom- ers." Again, from the Respondent's brief: ". . . the engi- neers, being the only employees with operating duties in the plant during their shift have a sole responsibility for operating; a highly complex facility that has the potential of causing great harm in the case of faulty performance." I think it best to leave such fantasy unanswered. I find that on July 30, 1981, when the Respondent re- plied to the Union's demand for recognition with an out- right denial, it violated Section 8(a)(5) and (1) of the Act. By September 1982, 15 months later, the Respond- ent had added only three more employees to its 1981 complement in the appropriate bargaining unit. Even then, 16 of its total complement of perhaps 21 or 22 were production and maintenance employees formerly em- ployed by the predecessor. IV. THE REMEDY It having been found that the Respondent violated Section 8(aX5) and (1) of the Act, it will be recommend- ed that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respond- ent refused to bargain with the Union, which represented a majority of the employees in an appropriate bargaining unit. Accordingly, it will be recommended that ,the Re- spondent be ordered to bargain, on request, with the 591 Union as the exclusive representative of the employees in the appropriate unit. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, oc- curring in connection with the operations of the Re- spondent described above, have a close, intimate and substantial relationship to trade, traffic , and commerce among the several States and tend to lead and have led to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. All production and maintenance employees, includ- ing leadpersons and supply clerks employed by the Re- spondent at the facility located at 225 Opportunity Park- way, Akron, Ohio, excluding all office clerical employ- ees, guards and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 2. At all times material, the Union has been, and still is, the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9(a) of the Act. 3. By refusing in July 1981 to bargain collectively with the Union as the exclusive representative of its employ- ees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, Tricil Resources, Inc., Akron, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain concerning rates of pay , wages, hours of employment, and , other conditions of employ- ment, with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO as the exclusive repre- sentative of all employees in the bargaining unit found appropriate above. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 8 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. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following 'affiimative action necessary to effectuate the policies of the Act. (a) On request bargain collectively in good faith with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, as the exclusive representative of all employees of the Respondent in the appropriate unit described above. (b) Post at its place of business in the Akron Recycling Energy Plant, in Okron, Ohio, copies of the attached notice marked "Appendix."4 Copies of the notice, on 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized repre- sentative, 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. (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. the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."