Proxy Communications Of Manhattan, Inc.

540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Proxy Communications of Manhattan, Inc. and United Telephone Answering and Communica- tions Service Union, Local 780. Case 2-CA- 21169 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON Upon a charge filed by the Union on July 22, 1985, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on September 30, 1985 , against the Compa- ny, the Respondent, alleging that it had violated Section 8(a)(5) and (1) of the National Labor Rela- tions Act. Thereafter, the Respondent filed an answer, later amended, admitting in part and denying in part the allegation in the complaint and raising certain af- firmative defenses. The determinative facts in this case are not in dispute. On or about June 25, 1985, the Respondent purchased the assets of Federated Answering Serv- ice, a Division of Sherwood Diversified Services, Inc. (Federated). Prior to June 25 , 1985, Federated had been engaged in providing telephone answer- ing services to businesses and the general public. Federated had recognized the Union in or about 1957 as the exclusive collective-bargaining repre- sentative of its telephone operators employed at its facility located at 210 East 86th Street, New York, New York.' This recognition was embodied in col- lective-bargaining agreements to which the Union and Federated were parties, the most recent of which expired on May 31 , 1983. About August 17, 1983, Federated's employees went on strike. At the time it purchased Federated , the Respondent was aware that Administrative Law Judge Joel Biblowitz, in a decision issued on July 9, 1984, in Case 2-CA-19496, had found, inter alia, that Fed- erated had committed unfair labor practices aimed at disaffecting the employees from the Union, that Federated had unlawfully refused to bargain with the Union, that the unlawful refusal was the cause of the strike, that the striking employees , therefore, were entitled to reinstatement, and that Federated had a legal obligation to bargain with the Union.2 ' The Respondent admits that the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Sec. 9(b) of the Act All telephone operators employed by the Respondent at its facility located at 210 East 86th Street , New York, New York, but excluding all office workers , guards and supervisors as defined in the Act. 2 On February 10, 1986 , the Board remanded Case 2-CA-19496 against Federated to the judge for further findings, conclusions, and credibility resolutions based on the existing record regarding whether Marilyn McGuire was Federated 's agent . 278 NLRB 472 (1986). On March 6, Since it purchased Federated, the Respondent has been engaged in providing the same services that Federated had provided at the same location to the same customers. Additionally, at the time the Respondent purchased Federated on June 25, 1985, it hired all the employees who had been working for Federated on June 24, 1985. These employees composed the Respondent 's entire work force, which consisted of 39 replacements for Fe- derated's unfair labor practice strikers and 7 em- ployees who had never gone on strike or who had returned from the strike. By letter of about June 28 , 1985, the Union re- quested the Respondent to recognize and bargain with it as the exclusive representative of the Re- spondent's employees. In its response letter of about July 10, 1985, the Respondent refused to rec- ognize and bargain with the Union.3 Notwithstanding its admission of all the facts set forth above, the Respondent denies that it violated Section 8(a)(5) and ( 1) of the Act by refusing to recognize and bargain with the Union after pur- chasing Federated's assets. On November 27, 1985 , the Respondent filed a Motion for Summary Judgment with a supporting brief. On December 9, 1985 , the Board issued an order transferring proceeding to the Board and Notice to Show Cause . On December 23, 1985, the General Counsel filed a Cross-Motion for Summa- ry Judgment with a brief in support of that motion and in opposition to the Respondent's summary judgment motion. On January 10, 1986 , the Charg- ing Party filed a brief supporting the General Counsel's motion and opposing the Respondent's motion. Also on January 10, 1986, the Respondent filed a brief opposing the Cross-Motion for Sum- mary Judgment. 1986, Judge Biblowitz issued his supplemental decision finding that McGuire was Federated's agent On March 31 , 1988, the Board issued its decision in 288 NLRB 341 which , inter alia, affirmed the judge's decision in all relevant respects and found that, as a result of McGuire's agency status, Federated was responsible for additional unfair labor practices. It is the burden of the successor employer to establish that it lacks knowl- edge of unfair labor practices pending at the time of purchase . See Airport Bus Service, 273 NLRB 561, 597 ( 1984); Mansion House Center Manage- ment Corp, 208 NLRB 684, 686 ( 1974) Here, there is no contention that the Respondent lacked knowledge of all the allegations pending at the time it purchased Federated . In fact, the Respondent concedes that it was aware of the judges decision in Federated Answering Service, above, and the Federated respondent's exceptions to that decision that were then before the Board . Accordingly, the Respondent has raised no material issue of fact regarding its capacity to sustain the burden of disproving knowledge at the time of purchase of all unfair labor practice allegations then pending in Federated, including those of which Judge Biblowitz had recommended dismissal but in which the Board ultimately found merit, and we shall order the Respondent to remedy those unfair labor practices as well a On July 12, 1985, the Respondent filed an RM petition (Case 2-RM- 1959) By letter dated November 4, 1985, the Regional Director for Region 2 dismissed the petition . On October 14, 1986 , the Board affirmed the Regional Director's dismissal of the petition 290 NLRB No. 68 PROXY COMMUNICATIONS The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on the Motions for Summary Judgment 1. The parties' contentions In support of its Motion for Summary Judgment, the Respondent argues that it is not a Burns4 suc- cessor to Federated, obligated to bargain with the Union. It predicates its argument that it has no bar- gaining obligation on a claim of objective good- faith doubt as to the Union's majority status based, inter alia, on the sentiments of the unfair labor practice striker replacement employees. Further, the Respondent asserts that because it is not a Burns, successor it cannot be a Golden States suc- cessor and that, even if it is found to be a Burns successor, it is not obligated to remedy Federated's unfair labor practices under the balancing of inter- ests required by Golden State. In support of its Cross-Motion for Summary Judgment, the General Counsel asserts that the Re- spondent is both a Burns successor and a Golden State successor obligated to bargain with the Union and to remedy Federated's unfair labor practices by virtue of its purchase of Federated's assets be- cause its work force after the purchase consisted entirely of employees who had been employed by Federated prior to the purchase and because, at the time it made the purchase, the Respondent was aware of Federated's unremedied unfair labor prac- tices. We agree with the General Counsel and find that the Respondent is both a Burns successor and a Golden State successor. 2. The Respondent has a bargaining obligation under Burns The Respondent admits that the employing en- terprise was not materially altered after it pur- chased Federated's assets. Also, the strike replace- ments, nonstrikers, and returned strikers who had been employed by Federated the day before the purchase (June 24) were employed by the Re- spondent the day of the purchase (June 25). Thus, the same employees were employed at the same lo- cation, performing the same functions after the sale as before the sale. The purchase, then, involved a mere transfer of title, not a major restructuring of the enterprise. In these circumstances we find that there was substantial continuity in the identity of the employing enterprise and conclude that the Re- See NLRB Y. Burns Security Services, 406 U.S. 272 ( 1972). See also Fall River .Dyeing Corp. Y. NLRB, 482 U.S. 27 (1987), in which the Su- preme Court elaborated on the successorship principles stated in Burns. 3 See Golden State Bottling Ca Y. NLRB, 414 U S 168 (1973). See also Fall River, above 541 spondent is a Burns successor.° Furthermore, the Respondent admits that when it purchased Federat- ed, it was aware of the unfair labor practice charges and the judge's decision finding that Fed- erated had committed unfair labor practices aimed at disaffecting its employees from the Union, that Federated had unlawfully refused to bargain with the Union, that Federated's unlawful refusal was the cause of the employees' strike, that the striking employees were, therefore, unfair labor practice strikers entitled to reinstatement on their uncondi- tional offer to return to work, and that Federated was legally obligated to bargain with the Union.7 It is well settled that there is a rebuttable pre- sumption in favor of a union's majority status fol- lowing the certification year.8 This presumption also applies where the union has been accorded voluntary recognition as in the instant case.9 Fur- ther, this presumption applies in the successorship context."° In order to rebut this presumption, the employer must show that on the date recognition was denied the union did not represent a majority of the unit employees, or it must present evidence establishing an objective good-faith doubt of the union's majority status."" It is also settled that an employer can not lawful- ly justify a refusal to bargain based wholly on doubt as to a union's majority status stemming from the antiunion sentiments of replacement em- ployees hired to replace unfair labor practice strik- ers.12 This is because the employer's unfair labor practices sought to cause disaffection from the union and caused its employees to strike. For with- out the employer's unlawful conduct, there would be no replacement employees, nonstrikers, or re- turned strikers. 13 Indeed, the interest of replace- s This finding would be warranted regardless of which groups of former Federated employees the Respondent had chosen to hire. Wheth- er the Respondent hired, as a group, the replacements, nonstrikers, and returned strikers (as it chose to here), or whether it had employed, as a group, the strikers or a combination of these two groups, the employee complement would have continued substantially the same 7 We emphasize that Federated's obligation to bargain was not founded on a Board-directed bargaining order resulting from its unfair labor prac- tices, but rather on Federated's voluntary recognition of the Union. a Celanese Corp., 95 NLRB 664, 673 (1951), cited with approval in Ray Brooks v. NLRB, 348 U.S. 96, 104 (1954). 9 Bartenders Assn., 213 NLRB 651 (1974). 10 Harley-Davidson Transportation Co., 273 NLRB 1531, 1532 (1985), cited with approval in Fall River, above i i Station KKHI, 284 NLRB 1339 (1987). 12 See NLRB v. Frick Co, 423 F.2d 1327, 1334 (3d Cir. 1970). 18 See Celanese Corp. of America, above at 673 (an employer can not question a union's majority status "in a context of illegal antiunion activi- ties, or other conduct by the employer aimed at causing disaffection from the union") Moreover, Federated's unfair labor practices had a tendency to affect all its employees because they were unremedied as of the time Federated sold its business to the Respondent. Thus, whichever category an employee came under-striker, nonstriker, returned striker, or replace- ment-Federated's unlawful conduct interfered with the employee's Sec. 7 rights and, consequently, tainted his or her free choice in selecting or rejecting a bargaining representative. 542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ments for unfair labor practice strikers in the unit is illusory or ephemeral at best : they must give way to strikers who choose to return. In Frick, an economic strike was converted to an unfair labor practice strike when the employer's unlawful conduct prolonged the strike. The court, in agreement with the trial examiner noted , at 134, that: The Company's unfair labor practices not only undercut the union but had a natural tendency to impede "a settlement of the strike. A corol- lary of this is that if the strike had been settled at an early date and not prolonged by Re- spondent's unfair labor practices . . . there may never have been 202 strikers who aban- doned the strike and returned to work or 239 replacements for strikers." The court concluded that the Board was correct in precluding the company from relying on the re- placements as evidence rebutting the presumption of continuing majority status. In the instant case, the Respondent, while con- tending that it had the right to hire whom it pleased, provided no discrimination was involved, admits that it has continued the employing enter- prise without change. Yet the Respondent seeks to rely on the sentiments of the replacement employ- ees and nonstrikers and returned strikers it hired as evidence of an objective good-faith doubt in the Union's majority status. The Respondent is correct that as the purchaser of Federated's assets it was free to choose its em- ployees, in the absence of unlawful motivation.' 4 This right, however, does not allow the Respond- ent to avoid the consequences of the choices it made. At the time of the purchase, the Respondent admits that it was aware of the judge's recom- mended disposition of unfair labor practice charges against Federated, including the judge's findings that Federated had committed unfair labor prac- tices which caused the employees to strike and that the striking employees, therefore, were entitled to reinstatement. Given this knowledge, the Respond- ent, by retaining all of Federated's employees (and by refraining from making any other change in the employing enterprise), effectively stepped into Fe- derated's shoes,' 8 vis-a-vis the Union.' a Because it 1 * Fall River, above, 414 U.S. at 168 In. 6. Ia See Fall River Dyeing Corp Y. NLRB, 482 U.S. 27 (1987) (where the Supreme Court noted that "to a substantial extent the applicability of Burns rests in the hands of the successor") 16 See Bay Diner, 279 NLRB 538 (1986) (employer continuing prede- cessor's business without change stands in shoes of predecessor vis-a-vis its relationship with the union). knew of Federated's unremedied unfair labor prac- tices, and as a result of its continuation of the em- ploying enterprise without change, the Respondent succeeded to Federated's obligation to bargain with the Union. As noted, the presumption of majority status also applies in the successorship context. As a conse- quence of having been found to have committed unfair labor practices aimed at causing disaffection from the Union, Federated, as found in Case 2- CA-19494, could not rely on the decertification pe- tition signed in the context of those unfair labor practices as evidence of its good-faith doubt in the Union's majority status. For the same reason, had Federated remained the employer and relied on the sentiments of the replacement strikers as evidence of its good-faith doubt, that defense also would have failed. As the Respondent here has stepped into Federated's shoes in relation to the Union, it too is prevented from relying on the sentiments of the unfair labor practice striker replacements as evidence of its good-faith doubt as to the Union's majority status. In this regard, the Respondent's knowledge that Federated's actions were the cause of the strike means that the Respondent was aware that absent Federated's conduct there would never have been 39 replacement employees or 7 nonstriking or re- turned strikers for it to hire . To allow the Re- spondent to rely on the replacements' sentiments as evidence of its objective good -faith doubt of the Union's majority status in these circumstances would be to allow the Respondent to benefit from Federated's unfair labor practices." Thus, by step- ping into Federated's shoes, the Respondent like Federated (had Federated remained the employer) is precluded from relying on the replacements' sen- timents as evidence of its objective good-faith doubt in the Union's majority status. As additional support for its assertion that it has an objective good-faith doubt about the Union's majority status, the Respondent relies on two other grounds: (1) the Union's misconduct as found in Telephone Answering Service Union Local 780 (Fed- erated Communications) 118 and (2) the presence of 17 Because we find that the Respondent can not rely on the sentiments of the replacement employees, it is unnecessary for us to determine the union sentiments of those employees. We note , however, that the Board recently has declined to generalize about the union sentiments of striker replacements. In so doing the Board rejected both the presumption that the replacements support the union in the same ratio as the striking em- ployees and any presumption that the replacements evidence repudiation of the union simply by crossing a picket line or because they were not contacted by the union. See Station KKHI, 284 NLRB 1339 (1987). See also Johns-Manville Sales Corp., 289 NLRB 360, 363 ( 1988). Is 276 NLRB 507 (1985). PROXY COMMUNICATIONS seven employees who either never went on strike or abandoned the strike and returned to work.19 In Telephone Answering, one striking employee was found to have told one nonstriking employee who had crossed the picket line that the striking employee "would kick her [the nonstriking em- ployee's] ass and her mother's ass."20 This state- ment was made twice and was found to be a viola- tion of Section 8(b)(1)(A) of the Act.21 Neither this statement nor the other lawful statements found to have been made (e.g., strikers calling em- ployees crossing the picket line scabs) indicate that the Union had lost its majority status22 or that the Respondent had an objective good-faith doubt about that status. Nor does the fact that 7 of the 46 employees hired by the Respondent had never gone on strike or had returned from the strike establish an objec- tive good-faith doubt as to those employees' union sentiments. As stated previously, absent Federated's unfair labor practices, which the Respondent knew remained unremedied , there would never have been any nonstrikers or returned strikers. In any event, apart from considerations arising out of Fe- derated's misconduct, the facts here do not show that these employees had antiunion sentiments.23 3. The Respondent has a Golden State obligation to remedy Federated's unfair labor practices The Respondent also contends that, as required by Golden State, a balancing of the conflicting le- gitimate interests involved, i.e., the interests of the Respondent as an arm's-length purchaser of Feder- ated's assets, the interests of the public, and the in- terests of the "affected" employees,24 should ab- solve it of any obligation it might have to remedy Federated's unfair labor practices. We find no merit to this contention. Although the Respond- 1B The Respondent also offers the fact that the Union did not seek to bargain with Federated over the terms and conditions of employment of the unfair labor practice striker replacements as evidence that the re. placement employees were not represented by the Union. Although this argument relies on the antiunion sentiments of the replacements , a reli- ance we have found to be misplaced , it also ignores Federated 's earlier withdrawal of recognition from the Union, which made any subsequent attempt to bargain futile , The Respondent admits, however , that the Union sought to bargain with it within 3 days of the Respondent's pur- chase of Federated's assets. 20 Telephone Answering, above at 510. a I Ibid. 22 Nor is the 8(bXIXA) violation a sufficient basis on which to deny a bargaining order. Cf. Laura Modes Co, 144 NLRB 1592 ( 1963) (union denied affirmative bargaining order despite 8(aX5) refusal -to-bargain find- ing when union agent physically beat the employer and "pushed around" an office employee). 29 See Station KKHI, supra (failure to join strike may indicate employ- ees' economic concerns); Frick, supra, 423 F.2d at 1333 (no presumption that an employee's return to work during a strike demonstrates a rejec- tion of union). 24 Golden State, above, 414 U.S. at 181. 543 ent's liability for remedying Federated's unfair labor practices does require a balancing of inter- ests, the Respondent's declared application of this balancing test unduly emphasizes its own interests as the purchaser of Federated's assets with a right to hire its employees and the interests of the em- ployees it hired. Such an emphasis is misplaced. Under the Golden State balancing test, emphasis is placed instead on the protection of the victim- ized employees.25 The court in Golden State quoted with approval the following statement made by the Board in Perma Vinyl:26 Especially in need of help, it seems to us, are the employee victims of unfair labor practices who, because of their unlawful discharge, are now without meaningful remedy when title to the employing business operation changes hands. An emphasis on victimized employees is especial- ly appropriate in this case where the victimized employees were on strike as a result of Federated's unfair labor practices-thus entitling the strikers to reinstatement on their unconditional offer to return to work. Further, the Respondent was aware of these facts and still decided to hire all of the strik- ing employees' replacements. This shows that the Respondent essentially continued unaltered the job situations of Federated's strikers and, thereby, their legitimate expectations that Federated's unfair labor practices would be remedied. E 7 The choices the Respondent made in hiring all of Federated's employees in light of its knowledge of Federated's unremedied unfair labor practices has placed it in the position of being obligated to remedy those unfair labor practices. The Respond- ent can not now point to its freedom to make those choices for legitimate reasons and to the interests of the unfair labor practice striker replacements (who must be discharged, if necessary) that it re- tained, as outweighing the special protection given to the victimized employees. The Respondent also claims that it is not re- quired to reinstate the strikers on their uncondition- al offer to return to work because the strikers had not made an offer to return to work prior to the ss 414 U.S. at 181-182. a" Id. at 181 , quoting 164 NLRB 968 (1967), enfd. sub nom U.S Pipe & Foundry Ca Y. NLRB, 398 F.2d 544 (5th Cir. 1968) 27 Sound policy reasons support requiring the Respondent to remedy Federated's unfair labor practices in these circumstances . See Golden State, supra at 184. To the extent the Respondent argues that "employees who have been retained" are the replacement employees, the Respondent misperceives the implications of its actions in purchasing Federated's assets with knowledge of its predecessor's unremedied unfair labor prac- tices and without changing the employing enterprise in any way 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent's purchase of Federated's assets.28 The Respondent states that because there was no offer to return to work prior to the purchase, the sale extinguished the strikers' right to reinstatement. There are several flaws in this assertion . First, it ig- nores the fact that Federated's unlawful refusal to bargain, the cause of the strike, had not been reme- died prior to the purchase . Second, it ignores the fact that the Respondent stepped into Federated's shoes, that at the time it did so it was aware the strike had been designated an unfair labor practice strike, and that, additionally, it was aware that Federated had unlawfully threatened to replace permanently the strikers and had been ordered to notify the strikers that they were entitled to rein- statement on their unconditional offer to return to work. Third, it ignores the fact that the Union promptly requested bargaining with the Respond- ent after the purchase but that the request was re- jected, making any offer to return to work futile. Of course the Respondent has the option of re- taining the replacement employees while at the same time reinstating the striking employees on their unconditional offer to return to work . 29 Even if the Respondent chooses this option , however, we still need not analyze the union sentiments of the replacement employees (or any other former Fed- erated employees) to determine if the presumption favoring the Union's majority status continues. See fn. 13 supra. As a practical consideration , the Respondent argues that it can not be expected to run its busi- ness under the condition that it reinstate the strik- ers whenever they decide to make an unconditional offer to return to work. It is within the Respond- ent's power, however, to avoid such disruption by bargaining with the Union and offering reinstate- ment to the striking employees. Nor is the conclusion that the Respondent is ob- ligated to remedy Federated 's unfair labor practices 28 We note that the strikers' right to reinstatement is derived from their status as unfair labor practice strikers . See Mastro Plastics Corp. V. NLRB, 350 U.S. 270, 278 (1956). The order against Federated required it to notify the strikers that the threat of permanent replacement was with- drawn and that Federated would reinstate the strikers on their uncondi- tional offer to return to work 29 With regard to the composition of the Respondent 's work force, the Respondent wants us to infer, solely on the basis of the passage of time (i.e., since the start of the strike against Federated on August 17, 1983), that few, if any, of the strikers would be available for work and, there- fore, that a majority of the Respondent's work force would not be com- posed of union supporters. We cannot infer, based merely on the passage of time , however, that only a few of the strikers would return to work if the Respondent indi- cated its willingness to comply with its obligation to bargain with the Union and reinstate all the strikers on their unconditional offer to return to work. That the Respondent has received no answer from the Union or the Regional Director to its inquiry as to how many of the strikers desire to fill vacancies or be placed on preferential hiring lists in no way assists the Respondent in carrying its burden of establishing an objective good- faith doubt of the Union's majority status. unduly burdensome. As the Court in Golden State, again quoting with approval from the Board's Perma Vinyl decision, stated:30 Since the successor must have notice before li- ability can be imposed , "his potential liability for remedying the unfair labor practices is a matter which can be reflected in the price he pays for the business, or he may secure an in- demnity clause in the sales contract which will indemnify him for liability arising from the seller's unfair labor practices." Here, the Respondent at the time of its purchase of Federated's assets admittedly had knowledge of the unremedied unfair labor practices and could have protected itself from the burden of remedying those unlawful practices, which burden resulted from its choice to purchase and continue unaltered the employing enterprise. In summary, we find that the Respondent is a successor employer that purchased Federated's assets with knowledge of Federated's unremedied unfair labor practices, that in the circumstances of this case the Respondent can not rely on the senti- ments of the unfair labor practice striker replace- ments as evidence of its objective good-faith doubt in the Union's majority status, that none of the other evidence establishes that the Respondent has rebutted the presumption in favor of the Union's majority status, and that the Respondent is obligat- ed to remedy Federated's unfair labor practices. Accordingly, we grant the General Counsel's Cross-Motion for Summary Judgment.S1 On the entire record the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, Proxy Communications of Manhattan, Inc., a Delaware corporation, has been engaged in providing telephone answering and re- lated services to businesses and the general public at its facility in New York, New York, where it an- nually will derive gross revenues in excess of $500,000 and annually will purchase goods and ma- terials valued in excess of $50,000, directly from firms located outside the State of New York. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We also find that the Union is a labor organization within the meaning of Section 2(5) of the Act. so Golden State, above, 414 U S at 185 Si The Respondent's Motion for Summary Judgment is denied. PROXY COMMUNICATIONS 545 II. ALLEGED UNFAIR LABOR PRACTICES A. Recognition Since about 1957 Federated had recognized the Union as the exclusive collective-bargaining repre- sentative of the employees in the following appro- priate unit: All telephone operators employed by Federat- ed at is facility located at 210 East 86th Street, New York, New York, but excluding all office workers, guards and supervisors as defined in the Act. Since about June 25, 1985, the Respondent has been the employer of the employees in the unit by virtue of having about June 25 , 1985, become a successor to Federated at the New York facility. The Union continues to be the exclusive represent- ative of the Respondent's employees under Section 9(a) of the Act. B. Refusal to Bargain Since about June 28, 1985, the Union has re- quested the Respondent to bargain, and since about July 10, 1985, the Respondent has refused . We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. By refusing on and after July 10, 1985, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2. The Respondent is Federated's successor at the New York facility. 3. The Respondent is legally obliged to comply with the Board's Order against Federated in Case 2-CA-1949632 with respect to those unfair labor practices of which it had knowledge at the time of its purchase of Federated. 32 We are aware that this case is before us in a somewhat unusual pro- cedural posture in that an alleged successor's status is normally Irrigated in the context of a compliance hearing. Instead, this case is before us on an 8(aX5) complaint in which it is alleged, inter alia, that the Respondent is obligated to bargain with the Union as a result of its status as Federat- ed's successor. Despite these somewhat unusual circumstances, however, the Respondent had a full opportunity after adequate notice to address the question of whether it is a successor responsible for remedying its predecessor's unfair labor practices. Jessie Beck's Riverside Hotel, 279 NLRB 405 (1986) (Board directed successor to comply with an order against predecessor that required the predecessor to bargain with the union). REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement.33 ORDER The Respondent Proxy Communications of Man- hattan, Inc., New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Telephone Answering and Communications Service Union, Local 780 as the exclusive bargaining representa- tive of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All telephone operators employed by Re- spondent at its facility located at 210 East 86th Street, New York, New York, but excluding all office workers, guards and supervisors as defined in the Act. (b) Notify all its striking employees, by letter or telegram, that the threat of permanent replacement contained in Federated's August 17, 1983 telegram to them is withdrawn, and that on an unconditional offer to return to work, they will be offered rein- statement to their former positions, or substantially similar positions. (c) Comply with the Board's Order in Federated Answering Service, 288 NLRB 341 (1988). (d) Post at its facility in New York, New York, copies of the attached notice marked "Appen- dix."34 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- 32 The General Counsel's request for a visitatorial clause in the Order is denied because the circumstances of this case do not warrant such a provision. Cherokee Marine Terminal, 287 NLRB 1080 (1988). 84 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." 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ly 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 material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 with United Telephone Answering and Communications Serv- ice Union, Local 780 as the exclusive representa- tive of the employees in the bargaining unit. 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, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All telephone operators employed by us at our facility located at 210 East 86th Street, New York, New York, but excluding all office workers, guards and supervisors as defined in the Act. WE WILL, on an unconditional offer to return to work, offer to all those employees who participat- ed in the strike which began on August 17, 1983, immediate and full reinstatement to their former positions of employment or, if those positions are no longer available, to substantially equivalent em- ployment without prejudice to their seniority or other rights and privileges previously enjoyed. WE WILL comply with the National Labor Rela- tions Board's Order in Federated Answering Service, 288 NLRB 341 (1988). PROXY COMMUNICATIONS OF MAN- HATTAN, INC.