New Era Terminal Services, Inc

NEW ERA TERMINAL SERVICES New Era Terminal Services, Inc and Amalgamated Transit Union, Local Union 1600, AFL-CIO Case 10-CA-23233 February 14, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On July 15, 1988, Administrative Law Judge J Pargen Robertson issued the attached decision The Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in opposition to Respondent's exceptions 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, fmdings, and conclusions and to adopt the recommended Order We agree with the judge that the Respondent is a successor employer and that it violated Section 8(a)(5) of the Act by refusing the Union's request to bargain The Respondent is the fourth in a suc cession of employers who have operated the Grey- hound bus terminal in Atlanta, Georgia, since the date of the Union's certification in an appropriate unit there The Respondent's sole argument to the Board against a successorship finding is that a ma- jonty of the eligible employees of the first employ- er (R&W Travel) were not hired by the second employer (M&C Enterprises) and therefore the successorship chain could not have continued thereafter In arguing this position, it raises certain contentions regarding the status of particular indi- viduals We find all these arguments without merit as explained below It appears that the judge found that 45 employ- ees from R&W were in M&C's first complement of 79 employees In arguing that R&W's bargaining unit employees did not constitute a majority of M&C's work force, the Respondent first asserts that Judith Nunan should be excluded from R&W's bargaining unit The evidence, however, shows that Nunan was part of the bargaining unit at both R&W and M&C Thus, R&W President Rogers testified that, but for secretary Margie Street and various supervisors, all persons on R&W's payroll (which included Nunan) were bargaining unit em- ployees The Respondent next contends that the judge should have excluded "as many as 5" tempo- rary college students from R&W's bargaining unit This contention is also unsupported by the record Although R&W President Rogers testified that he probably had four or five students who worked on 1069 a temporary basis during the summer, he indicated that he did not know if any of these students were on his final payroll and he was unable to name any such employees on his payroll list M&C's Michael Berry testified that he did not have any temporary employees on his first payroll Thus, it is apparent that no temporary employees were included on the last R&W payroll or on the initial M&C payroll Finally, the Respondent contends that "Martin Braxton," who appears on R&W's final payroll, and "Braxton Martin," who appears on M&C's first payroll, may not be the same employee and there- fore should be excluded from the count of former R&W employees who were hired by M&C This contention, however, is without merit as the judge in any event did not count "Martin Braxton" or "Braxton Martin" as an employee hired from R&W as is revealed by a comparison of his numerical findings and the relevant payroll records Thus, the judge found that of 79 employees on M&C's first payroll, 45 employees came from R&W, 24 em- ployees were brought over from Trailways, and 10 employees do not appear on either the prior pay- rolls of R&W or Trailways The relevant payroll records of R&W and M&C list, from among their total nonsupervisory employees, 45 employees' names as working for both of them Critically, nei- ther "Martin Braxton" nor "Braxton Martin" is in- cluded as one of those 45 Nor does either name appear in the list of employees hired from Trail ways Thus, it is apparent that the judge included Braxton Martin as 1 of the 10 new employees hired If he would have found Braxton Martin to be a former R&W employee, his findings would have shown 46 employees from R&W, 24 from Trailways, and 9 new employees Thus, the Re- spondent's contentions are unpersuasive and with- out merit In any event, were we to deduct the seven em ployees from R&W's work force as the Respondent contends we should, we would correspondingly have to remove the claimed five temporary student employees from M&C's work force Having done this, R&W's work force would still constitute a majority of M&C's work force i ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, New Era ' We deny the Charging Party s request for litigation expenses We have reviewed the record and we find that the Respondents defenses are unpersuasive but not patently frivolous Tudee Products 194 NLRB 1234 (1972) See also Hotel & Restaurant Employees Local 19 (Seasons Restau rant) 277 NLRB 842 848-849 (1985) Super Save 273 NLRB 20 fn 1 (1984) 292 NLRB No 123 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Terminal Services, Inc., Atlanta, Georgia, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. Frank F. Rox Jr., Esq., for the General Counsel. G. Paris Sykes Jr., Esq. (Ford & Harrison), of Atlanta, Georgia, for the Employer/Respondent New Era Ter- minal Services, Inc. Richard M. Kobdish Jr., Esq. (Johnson & Swanson), of Dallas, Texas, for Southern Greyhound Lines, Gli Holding Company, and Jim Ferguson. Martin H. Steckel, Esq. (Swift, Currie, McGhee & Hiers), of Atlanta, Georgia, for James Rogers and R&W Travel Corporation. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. This matter was heard in Atlantia, Georgia, on 26 May 1988. The complaint, which issued on 28 March 1988, al- leges that Respondent engaged in conduct violative of Section 8(a)(5) and (1) of the Act. This matter involves a chain of employers and the successorship issue. On 4 June 1988 the Charging Party (the Union) was certified as representative of the em- ployees of R&W Travel Corporation at the Atlanta, Georgia Greyhound bus terminal at 81 International Boulevard. R&W Travel engaged in negotiations with the Union. However, before reaching a collective-bar- gaining agreement, on 31 August 1987, R&W Travel ceased operations. Subsequently, the operations of R&W Travel, which entailed basically the operation of Grey- hound's Atlanta terminal as commission agent, were as- sumed by M&C Enterprises. M&C Enterprises operated Greyhound's Atlanta terminal only from 31 August through 13 September 1987. On 15 September 1987, su- pervision of the Atlanta terminal was undertaken by Jim Ferguson. Ferguson had been asked by Greyhound to run the facility until Greyhound found a commission agent to replace M&C Enterprises. For tax purposes Fer- guson ran the terminal as Atlanta Bus Depot, with Tom Fox listed as commission agent. Fox is the commission agent for Greyhound's Marietta, Georgia terminal. On 17 January 1988 Respondent took over as commis- sion agent of Greyhound's Atlanta terminal. On 19 January 1988 the Union wrote Respondent de- manding recognition and bargaining. On 5 February 1988 Respondent rejected the Union's demand stating that it had a "good-faith doubt that your organization repre- sents an uncoerced majority." Respondent contends that it is not a successor employ- er and, for that reason, has no obligation to recognize and bargain with the Union. In its answer and at the hearing Respondent admitted the allegations of the complaint as to the filing of the charge, the commerce information, and Respondent's ex- istence as an employer within the meaning of Section 2(6) and (7) of the Act, and that the Charging Party, Amalgamated Transit Union, Local Union 1600, AFL- CIO (the Union), is a labor organization. The Union was certified as exclusive collective-bar- gaining representative of the following unit of employees of R&W Travel Corporation on 4 June 1987. All full-time and regular part-time platform work- ers, ticket agents, fuel technicians, package express agents, baggage agents, custodial employees, tracing agents, and porters employed at the International Boulevard, N.W., Atlanta, Georgia, Greyhound bus terminal but excluding all office clerical employees, guards, and supervisors as defined in the Act. Following the Union's 6 June 1987 demand on R&W Travel to commence negotiations the Union and R&W Travel met and engaged in negotiations. However, before they reached an agreement, R&W ceased oper- ations on 31 August 1987. The record evidence illustrated that R&W Travel was the commission agent for the operation of the Grey- hound terminal in Atlanta. As such R&W Travel operat- ed the bus terminal and serviced the buses at the termi- nal. Ticket sales, express package service, ticket and package information, baggage handling, cleaning the ter- minal, and cleaning and fueling the buses were included in R&W Travel's duties. James E. Rogers, president of R&W Travel, testified that as commission agent R&W Travel was responsible for handling ticket sales, giving counter information, checking baggage, answering the ticket telephone, fuel- ing buses, loading bags, doing janitorial work, sorting package express, loading package express, unloading buses, receiving and delivering package express, answer- ing package express telephones, sorting, checking, and delivering baggage and tracing shipments including pack- ages and baggage, at the Greyhound terminal at 81 Inter- national Boulevard, Altanta, Georgia. R&W Travel oper- ated the terminal 24 hours a day, 7 days a week. The last payroll for R&W Travel before it ceased operations on 31 August 1987 showed that it employed a work force of 7 supervisors and 49 employees. Michael Berry of M&C Enterprises, Inc. testified that he operated Greyhound's Atlanta bus terminal following R&W Travel. Berry operated the terminal during the short period from 31 August through 13 September 1987. Before Berry took operation of the Greyhound terminal, he was commission agent for the operation for Trailways Atlanta, Georgia bus terminal. On 14 July 1987 Greyhound purchased Trailways. When Berry took over the Greyhound terminal he did not terminate any of the former employees of R&W Travel. Berry, however, testified some three or four "might have quit." Because Trailways terminal was closed and those op- erations merged into Greyhound's operations, Berry's contract with Greyhound required a larger work force than the work force of R&W Travel. Berry testified the agreement with Greyhound required at least 73 employ- ees to operate the terminal 24 hours a day. Berry stated that he filled the complement of employees by bringing over employees from the Trailways terminal and retain- ing the former work force of R&W Travel at the Grey- hound terminal. NEW ERA TERMINAL SERVICES The first payroll of M&C Enterprises at the Grey hound Terminal shows that 4 supervisors and 45 employ ees were retained from the R&W Travel operations Ac cording to Michael Berry s testimony, 3 supervisors and 24 employees were brought over from the Trailways ter urinal operations One supervisor and 10 employees appear on the M&C Enterprises payroll that do not appear on the prior payroll of either the Trailways terms nal or R&W Travel Michael Berry testified that no changes were made in the operation of the terminal during his tenure His tests mony was that the only thing different may have been the job classifications of some employees The employ ees, however, performed the same jobs as were per formed under agency of R&W Travel ' The above evidence shows that M&C Enterprises2 was the successor of R&W Travel Although the num bers are close, the employees from the R&W Travel last payroll constitute a majority of the M&C Enterprises work compliment Additionally, according to the testa mony of Michael Berry, which was unrebutted, M&C Enterprises engaged in substantially the same operations as did R&W Travel even though that operation included the merged operations of both Greyhound and Trail ways See NLRB v Burns Security Services, 406 U S 272 (1972), Louis Pappas Restaurant 275 NLRB 1519 (1985) On 8 September 1987 the Union wrote Michael Berry demanding to meet and bargain Berry did not respond to the Union s letter After M&C left on 13 September 1987, Greyhound asked retired Greyhound employee Jim Ferguson to help manage the terminal function until someone else could be brought in to operate it Ferguson testified that he inherited M&C Enterprises work force Ferguson did not discharge any of the M&C former employees and he did not immediately hire anyone He testified that he made no operational changes A comparison of the first payroll under Fergu son and the last payroll of M&C Enterprises shows that all but six of the M&C employees appeared on Fergu son s payroll Only two of Ferguson's nonsupervisory employees did not appear on the M&C payroll The M&C payroll included 79 nonsupervisory employees Ferguson s first payroll included 75 nonsupervisory em ployees As shown above Ferguson operated the terminal under the name of Atlanta Bus Depot, with Tom Fox listed as commission agent Fox was the then current commission agent for Greyhounds Marietta Georgia terminal According to Ferguson s unrebutted testimony he ran the terminal as Atlanta Bus Depot for tax pur poses The above evidence established that Ferguson operat ed as a successor employer to M&C Enterprises ' The payroll of M&C Enterprises Inc lists five employees as Glen cal Although the unit described in the certification excluded office clerical employees from the unit it is not evident from the record whether the five listed are office clerical Testimony regarding their work for R&W Travel shows that perhaps only one person was an office clerical Margie Street was described as the secretary and not in the unit Margie Street appeared on the R&W Travel payroll but did not appear on the M&C Enterprises payroll 2 The M&C payroll is entitled Berry Enterpnses/d/b/a Trailways 1071 On 17 September 1987 the Union wrote Southeastern Greyhound Lines demanding to meet and bargain The letter alleged that Southeastern Greyhound was a succes sor employer to R&W Travel On 30 September 1987 W J Lambert president Southeastern Greyhound Lines," wrote the Union as fol lows This is to acknowledge receipt of your Septem ber 17 1987 letter, concerning Atlanta, Georgia You are incorrect in your statement that South eastern Greyhound Lines is the successor of R & W [sic) Travel Corporation The Atlanta terminal is a commission agency However, due to the unexpected resignation of the commission agent, we are temporarily overseeing the operations until a new commission agent can be installed We will, or course, as a matter of courtesy, advise you the name of the new agent as soon as he is selected On 20 November 1987 the manager, Industrial Rela tions Southeastern Greyhound Lines, wrote the Union that Robert E Rintz had been selected as agent for the Atlanta, Georgia terminal Rintz testified that he is presi dent of Respondent On 19 January 1988 the Union wrote Robert Rintz de manding immediate negotiations By 5 February 1988 letter Respondent rejected the Union s demand In reply to your letter dated January 19, 1988, please be advised that I have a good faith doubt that your organization represents an uncoerced ma jonty of New Era Terminal Services Inc employ ees in an appropriate unit Robert Rintz testified that Respondent began operating the Atlanta Greyhound terminal on 17 January 1988 Rintz testimony illustrated that the operation of the ter urinal by Respondent was substantially the same as the operation under the previous employers Although Rintz expressed doubt that individual job classifications includ ed the same duties, his overall testimony failed to reveal substantial differences A comparison of the first payroll of Respondent and the last payroll under Atlanta Bus Depot shows that Re spondent orginally employed some 67 nonsupervisory employees Fifty nine of those employees appeared on the last payroll of Atlanta Bus Depot Atlanta Bus Depot s last payroll included 68 nonsupervisory employ ees Although the record included some evidence as to clerical and part time employees, the record did not con clusively show whether those employees would be ex cluded from the bargaining unit However, even if all those employees are excluded-and it is not clear from the record that they should be excluded since the unit in cludes clericals other than office clericals and all 'regu lar part time' employees-the record shows that Re spondent employed a majority of its original work force from the employees that formerly made up the unit for Atlanta Bus Depot 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Conclusion The Board and the courts have long held that, absent unusual circumstances, a union enjoys an unrebuttable presumption of majority status for a period of 1 year fol lowing certification There was no showing of unusual circumstances that would justify ignoring the 1 year rule 3 Therefore, the Respondent was not justified in contending that it had a good faith doubt as to the Union's majority The Respondents assertion of a good faith doubt was made on 5 February 1988 which is well within the year following the Union's certification on 4 June 1987 It is immaterial whether a respondent has doubts as to the union s majority status during the certifi cation year (IMS Mfg Co v NLRB 813 F 2d 113 (6th Cir 1987), NLRB v Blu Fountain Manor, above Cf Harley Davidson Co, 273 NLRB 1531 (1985), in which the Board affirmed the certification year rule but permit ted an employer to overcome a presumption of majority status when the 1 year had lapsed) Nevertheless while the existence of a good faith doubt is immaterial , the question of majority status is material in the context of the successorship issue The Supreme Court has established in NLRB v Burns Security Services, above, the criteria for determining whether an employer is a successor The overriding question concerns the issue of continuity of the employing industry Here nu merous criteria in that were clearly satisfied For exam ple, all four employers continued the same business in the same location using the same hours of operation Each of the employers performed similar functions in op erating the Greyhound terminal at 81 International Bou levard, Atlanta Georgia After Greyhound purchased Trailways the Trailways Atlanta terminal operations were merged into the Greyhound terminal operations on 31 August 1987 Thereafter the merged operations con tained at 81 International Boulevard terminal as the Greyhound bus terminal The operations were conducted on a 24 hour a day 7 day a week basis by all four em ployers In the instant case the question of Respondents re sponsibility to recognize the Union arose during its initial period of employment Respondent took over the terms nal on 17 January 1988 On 19 January 1988 the Union wrote demanding recognition and bargaining Therefore, the issues must concern themselves with the Union s status and Respondents obligation at the time of Re spondent s initial operation of the Greyhound terminal As noted above, the Union was certified on 4 June 1987 Negotiations were terminated when the initial em ployer, R&W Travel, ceased operations However, the Union continued to contact each successive employer in an effort to resume negotiations Although negotiations did not resume none of the employers, before Respond ent questioned the Union s status 4 Moreover, as shown s See NLRB v Blu Fountain Manor 785 F 2d 195 205 (7th Cir 1986) in which the court outlined the circumstances that would qualify as un usual 4 When Greyhound wrote the Union on 13 September 1987 in response to the Union s bargaining demand it questioned the Union s assertion that it was a successor Greyhound however did not question the Union s status as bargaining representative of the employees of R&W Travel Cor above the facts show that each employer was a successor of the immediate preceding employer Therefore under applicable jurisprudence, the Union continued to enjoy an irrebuttable presumption of majority status during its certification year despite the turnover in employers (IMS Mfg Co v NLRB above NLRB v Blu Fountain Manor, above The merger of Trailways into the Greyhound op erations did not sever the Union s status as bargaining representative ( Western Davis Co, 236 NLRB 1224 (1978), Houston Distribution Services, 227 NLRB 960 (1977) Immediately before Respondent took over operations on 17 January 1988, the Union was the bargaining repre sentative of the unit employees employed by Respond ent s predecessor Respondent, as shown above employed a majority of its unit employees from the work force of its predeces sor, Atlanta Bus Depot Respondent conducted business in the same facility as its predecessor , worked the same hours as its predecessor was party with the same con tractor (i e Greyhound) as its predecessor, and used substantially the same work force performing the same functions as its predecessor I find that Respondent is a successor employer By refusing to bargain with the Union as the unit employees exclusive bargaining repre sentative, Respondent violated Section 8(a)(1) and (5) of the Act CONCLUSIONS OF LAW 1 Respondent New Era Terminal Services Inc is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Amalgamated Transit Union Local Union 1600, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 The Union has been certified as the exclusive bar gaining representative of all employees in the below stated unit for purposes of collective bargaining with re spect to rates of pay wages, hours of work and other terms and conditions of employment All full time and regular part time platform work ers ticket agents fuel technicians, package express agents, baggage agents, custodial employees tracing agents, and porters employed at the International Boulevard, N W, Atlanta Georgia, Greyhound bus terminal but excluding all office clerical employees, guards, and supervisors as defined in the Act 4 New Era Services Inc is a successor employer of the employees in the above described bargaining unit 5 By refusing the Union's request to recognize and bargain with the Union in the appropriate unit as set forth above, Respondent, as a successor engaged in, and is engaging in, unfair labor practices in violation of Sec tion 8(a)(5) and (1) of the Act potation at the Atlanta Georgia Greyhound bus terminal at 81 Interna tional Boulevard NEW ERA TERMINAL SERVICES THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to recommend that Respondent be ordered to cease and desist there from and to take certain affirmative action necessary of fectuate the policies of the Act Having found that Respondent as a successor employ er refused to recognize and bargain with the Union, I shall recommend that it be required to do so and if an understanding is reached embody that understanding in a signed agreement On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed5 ORDER The Respondent, New Era Terminal Services, Inc, Atlanta, Georgia, its officers, agents, successors, and as signs, shall 1 Cease and desist from (a) Refusing to bargain collectively with Amalgamated Transit Union, Local Union 1600, AFL-CIO as the suc cessor employer of the employees in the following de scribed collective bargaining agreement All full time and regular part time platform work ers, ticket agents, fuel technicians, package express agents, baggage agents, custodial employees, tracing agents and porters employed at the International Boulevard, N W , Atlanta Georgia, Greyhound bus terminal but excluding all office clerical employees, guards, and supervisors as defined in the Act (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 bargain with the aforesaid Union in the unit described here and, if an understanding is reached as to the terms and conditions of employment, embody the same in a written agreement (b) Post at its place of business in Atlanta, Georgia, copies of the attached notice marked Appendix 6 Copies of the notice on forms provided by the Regional Director for Region 10, after being signed by the Re spondent s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained 5 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 6 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 1073 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 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, loin, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT refuse to bargain collectively with Amalgamated Transit Union Local Union 1600, AFL- CIO as exclusive representative of our employees in the unit described below All full time and regular part time platform work ers ticket agents fuel technicians package express agents baggage agents custodial employees, tracing agents, and porters employed at the International Boulevard, N W Atlanta Georgia Greyhound ter urinal but excluding all office clerical employees 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 exercise of the rights guaranteed you by Section 7 of the Act WE WILL recognize and bargain collectively on re quest with Amalgamated Transit Union Local Union 1600 AFL-CIO as the exclusive representative of all employees inthe bargaining unit discribed above with re spect to rates of pay, wages, hours and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree ment NEW ERA TERMINAL SERVICES, INC