Base Services, Inc.

172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Base Services, Inc. and National Association of Gov- ernment Employees, affiliated with Service Em- ployees International Union, AFL-CIO. Case 17-CA-1394 August 21, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On May 22, 1989, Administrative Law Judge William N. Cates issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in opposition to the 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, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent was a suc- cessor employer to the United States Army and that it violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union as the representative of a unit of the Re- spondent's maintenance and supply employees. We disagree. Specifically, we find that the evidence does not establish that a majority of the Respond- ent's employees in either (1) the expressly alleged unit of maintenance and supply employees, or (2) a unit of maintenance, supply, transportation, and quality control employees, had been employed in either of the units previously represented by the Union at Fort Leonard Wood.' Prior to the Respondent's start up of operations on June 1 , 1988,2 the Army employed approxi- mately 300-340 people in the Directorate of Logis- tics (DOL) at Fort Leonard Wood. Just prior to June 1 , 269 of the DOL workers were wage-grade employees represented by the Union in the first of the bargaining units set forth in footnote 1, supra. As of June 1 , the Respondent took over the maintenance, supply, transportation, and quality control functions previously performed in the DOL, and also created three small new depart- ments: contract administration , employee relations, and accounting and finance. As of the pay period ending June 5, the Respondent employed 239 non- supervisory employees.3 The parties stipulated that at the time the Respondent commenced operations on June 1 a majority of its work force was com- prised of individuals who had previously worked for the DOL prior to June 1 , as employees of the Federal Government. As seen, however, the DOL was comprised of more than wage-grade employ- ees represented by the Union . Thus, the fact that a majority of the Respondent's employees were former DOL employees does not, under the instant circumstances, necessarily mean that a majority of the Respondent's employees were former DOL wage grade employees, represented by the Union. Indeed, the record reflects that they were not. Of the 239 nonsupervisory employees employed by the Respondent as of the pay period ending June 5, just after the Respondent's June 1 takeover of op- erations from the DOL, only 109 (46 percent) of them were former DOL wage -grade employees, represented by the Union. As indicated, although the Respondent took over performance of the maintenance , supply, transpor- tation, and quality control functions previously per- formed by civilian employees of the Army (and added contract administration, employee relations, and accounting and finance functions ), the com- plaint alleged and the judge found that a unit of only the Respondent's maintenance and supply em- ployees was appropriate.4 In a unit limited to the i Prior to the June 1 , 1988 takeover by private employers (including the Respondent) of functions formerly performed by civilian employees of the United States Army at Fort Leonard Wood , the Union represented two separate bargaining units a All Wage Grade employees of United States Army Training Center Engineer and Fort Leonard Wood , and all Wage Grade em- ployees of the United States Army Health Services Command and the United States Army Communications Command with duty sta- tion at Fort Leonard Wood , Missouri, except employees of the Com- missary Sales Store, employees engaged in Federal personnel work in other than a purely clerical capacity, management officials, super- visors and guards as defined in the Order b Included all nonsupervisory employees of the U S . Army Com- missary Store at Fort Leonard Wood , Missouri. Excluded employees engaged in Federal personnel work in other than a purely clerical capacity, temporary intermittent (WAE) employees, confidential em- ployees, managers, supervisors as defined in the Order , and general schedule employees of the Control Section , Fort Leonard Wood, Missouri Commissary Store 2 All dates are 1988 unless otherwise stated. 9 The Respondent employed 261 employees as of the pay period ending June 5 The Respondent 's project manager at Fort Leonard Wood, Pete McKinney, testified that a total of 22 of them were in super- visory positions; however, McKinney did not specifically identify these 22 individuals. 4 The Respondent excepts to the judge 's finding that a unit of only maintenance and supply employees is appropriate . The Respondent as- serts that the record does not establish that the maintenance and supply employees have a community of interests distinct from the Respondent's transportation and quality control employees. In reply, the Union argues that "quite plainly these [transportation and quality control] employees are included in the appropriate unit," because the maintenance and supply functions described in the unit found to be appropriate actually include the Respondent's transportation and quality control functions In light of the record evidence referred to above, it is not clear why the complaint alleged and the judge found that a unit of only the mainte- nance and supply employees is appropriate However , in light of our finding below that the Union did not have majority status in either unit Continued 296 NLRB No. 23 BASE SERVICES Respondent's maintenance and supply employees, only 77 (39 percent) of the 196 total maintenance and supply employees employed by the Respond- ent as of the pay period ending June 5 were former DOL wage-grade employees represented by the Union. In a unit including the Respondent 's mainte- nance, supply, transportation, and quality control employees, only 108 (43 percent) of the total 253 maintenance, supply, transportation, and quality control employees employed by the Respondent as of the pay period ending June 5 were former DOL wage-grade employees represented by the Union.5 The record does not show whether any (and if so, how many) of either (1) the Respondent's other employees employed as of pay period ending June 5, or (2) any additional employees hired by the Re- spondent prior to the July 15 close of its initial hiring program, were previously represented by the Union in non-DOL jobs in either of the two units represented by the Union prior to June 1 . Thus, the record fails to establish that at any time material a majority of the Respondent's work force in either the alleged unit of maintenance and supply employ- ees, or in a unit of maintenance, supply, transporta- tion, and quality control employees, was comprised of employees formerly represented by the Union. Accordingly, we find and conclude that the Re- spondent was under no obligation to bargain with the Union, and that it did not violate the Act as al- leged by refusing to do so.6 ORDER The complaint is dismissed. configuration (i e., with or without transportation and quality control em- ployees), we find it unnecessary to resolve the unit question in this pro- ceeding 5 Only one of the eight contract administration, employee relations, and accounting and finance employees employed by the Respondent as of pay period ending June 5 was a former DOL wage-grade employee. 6 NLRB v Burns Security Services, 406 U.S 272, 281 (1972), Untied Maintenance & Mfg. Co., 214 NLRB 529, 532-534 (1974). See generally Fall River Dyeing Corp. v. NLRB, 482 U.S 27, 46-47 and fn 13 ( 1987) In light of our findings and conclusions above, we find it unnecessary to pass on the judge's discussion of any of the other issues potentially raised in this case Richard C. Auslander, Esq., for the General Counsel. James G. Baker, Esq. (Spencer, Fane, Britt & Browne), of Kansas City, Missouri, for the Company. Brent J. Jaimes, Esq., of St. Louis, Missouri, for the Union. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. This case was tried before me in Mission (Kansas City), 173 Kansas, on February 21 and 22, 1989,1 pursuant to a complaint and notice of hearing (complaint) issued by the Regional Director for Region 17 of the National Labor Relations Board (Board) on November 9, 1988.2 The complaint is based on a charge filed on July 18 by the National Association of Government Employees, af- filiated with Service Employees International Union, AFL-CIO (Union). The complaint alleges Base Services, Inc. (Base or Company) has engaged in certain violations of Section 8(a)(5) and (1) of the National Labor Rela- tions Act (the Act or NLRA). The central issue herein is whether Base is a successor under the Act to the United States Army (the Army) thereby having an obligation under the Act to recognize and bargain with the Union which had been the collec- tive-bargaining representative of certain employees of the Army. There are other related or inextricably inter- twined issues such as; whether there should be a legal presumption of successorship under the Board's tradition- al test for successorship when the prior employer was the Federal Government (the Army) and the subsequent employer (Base) is from the private sector; whether a labor organization organized pursuant to the Federal Labor Relations Act (FLRA) with the representational powers permitted under that Act should be considered a labor organization within the meaning of the NLRA; whether employees would desire continued representa- tion by a such a organization with the expanded negoti- ating powers it would have under the NLRA; whether the successor unit is so fragmented as to be inappropri- ate; and whether there is evidence to rebut a presump- tion the Union continues to enjoy majority status in the successor unit. All parties were afforded full opportunity to examine and cross-examine witnesses, to argue orally, and to submit briefs. Briefs which have been carefully consid- ered were submitted by counsel for the General Counsel, the Union, and Base.3 On the entire record, including my observation of the demeanor of the witnesses, I conclude below, after exam- ining the relevant evidence and applicable legal princi- ples, that there is no impediment to the finding, which I make, that Base is the successor of the Army and is obli- gated to recognize and bargain with the Union for its employees in the unit which is appropriate for collective- bargaining purposes.4 i I granted Base's request on the second day of trial to sever this case from Harbert International Services (Harbert), Case I7-CA-13953 s All dates herein are 1988 unless otherwise indicated Subsequent to filing its brief in this matter, Base through its counsel asked that I consider certain calculations set forth in a letter dated April 18, 1989, that should have been included at p 10 of its brief. On April 21, 1989, counsel for General Counsel moved that I reject Base 's calculations as being untimely, egregiously contrary to record stipulations, and an at- tempt by Base to offer additional facts into the record . On April 27, counsel for Base objected to counsel for the General Counsel 's motion contending the assertions made by counsel for the General Counsel were incorrect I have considered Base's calculations as nothing more than a correction to its brief 4 The appropriate unit is- All employees of Base performing maintenance and supply for the training and troop areas of the United States Army base in Fort Leonard Wood, Missouri, but excluding office clericals employees, Continued 174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION Base is a corporation with an office and principal place of business in Paramus , New Jersey. It is engaged in the physical maintenance of military bases, including the Army base in Fort Leonard Wood, Missouri.5 Since on or about June 1, Base has performed services valued in excess of $500,000 for the Army at its Fort Leonard Wood, Missouri, base and has purchased and received products, goods, and materials at that facility valued in excess of $50,000 directly from points outside the State of Missouri. The complaint alleges, and I find, that Base is, and at all times material herein has been, an employer engaged in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, the evidence establishes,6 and I find, the Union is, and at times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts On October 29, 1968, the Army, under authority of Executive Order 10988, voluntarily recognized7 the Union as the collective-bargaining representative of all wage grades employees employed in various directorates at Fort Leonard Wood, Missouri. Thereafter, an Amend- ment of Recognition issued amending the unit descrip- tion to conform to requirements of Executive Order 11491. These employees have been covered by a series of labor agreements between the Union and the Army. The most recent agreement by its "roll -over" provisions is ef- fective until November 1990. Prior to June 1, the Union represented approximately 763 wage grade employees in certain general areas at the base, namely , Headquarters, USA Medical Department Activity, US Army Commu- nications Command-Fort Leonard Wood, US Army Commissary, and US Army Training Center Engineer and Fort Leonard Wood. The wage grade employees in the Army Training Center functioned in separate identifiable groupings of employees. Those wage grade employees that were uti- lized to perform maintenance on equipment and to issue supplies to and provide transportation for the Army troops operated under the Directorate of Logistics (DOL). There are a total of approximately 12 different directorates at the base . Base was selected , after a cost- professional employees , guards, supervisors as defined in the Act, and all other employees. 8 The Company's Fort Leonard Wood , Missouri, location is the only location involved in the case sub judice 6 Evidence on the Union 's status as a labor organization within the meaning of the Act is more fully addressed later in this Decision r The parties stipulated at trial that "A review by all parties of the documents and evidence, including evidence in the possession of the Charging Party, does not establish conclusively whether NAGA had ma- jority support in the unit for which it was recognized in 1968 or thereaf- ter." effective study and pursuant to a bidding process, to be the contractor to perform the functions previously per- formed at the Army Training Center by DOL. Base as- sumed those functions on June 1.8 Just prior to June 1, there were approximately 269 wage grade employees employed in DOL.9 As of June 1, Base employed 239 rank-and-file employees. At the time Base commenced operations and at relevant times thereafter, a majority of its rank-and-file employees had previously been em- ployed in DOL.1 ° At relevant times, Base employed 8 managers, 22 working leadpersons/supervisors, 2 quality control employees, 2 exempt employees, and 1 account- ant. Only one of Base's eight managers had previously worked as a manager with DOL. That manager occu- pied the same position at DOL that he currently occu- pies for Base. Three of Base's 22 working lead- persons/supervisors were supervisors at DOL in the same positions they currently occupy at Base. From its inception, Base has utilized seven separate de- partments in its operations . Those seven departments are: maintenance, transportation, supply, quality assurance, contract administration, finance and accounting, and em- ployee relations. The latter three departments did not exist at DOL. The vast majority of Base's employees are employed in the first four above listed departments. Base only employs one rank-and-file employee in each of the latter three departments . Sixty percent of the job classifi- cations utilized by Base are essentially the same as those previously utilized by DOL, while 40 percent are some what different in that some job classifications have been consolidated with others thereby enhancing the job duties for employees occupying the combined classifica- tions. Base provides the same basic services for the Army that DOL had. In addition to the above, Base per- forms some maintenance on target ranges at the base that employees at DOL had not previously performed. Base has, however, been able to absorb the target range main- tenance without the need for any additional employees. Base operates out of the same facilities and utilizes the same equipment that DOL utilized. The employees of Base work essentially the same hours that the employees in DOL worked and the customer for whom the work is performed, namely the Army, is the same as it had been with DOL. The Union, while representing employees at DOL and other directorates, did not have the authority to bargain with the Army concerning, among other things, wages, cost of living increases, overtime pay, pension or retire- ment plans, health or life insurance coverage , vacation 8 At the same time and pursuant to the same process , Harbert was se- lected as the contractor to perform the functions of the Directorate of Engineering and Maintenance (DEH) The wage grade employees in DEH performed buildings, roads, and ground maintenance . The matter related to Harbert is covered in a companion case (17-CA-13953). A sep- arate decision will issue in that case 9 I am not unmindful that Union Representative Garold Lawson esti- mated there were approximately 240 such employees However, G C Exh 4, a computer-generated printout of the employees as of October 30, 1987. reflects approximately 269 such employees . Lawson testified the list, with possible minor changes, was accurate until just prior to June 1. Lawson placed the total number of employees utilized in DOL that the Union represented prior to June 1 at approximately 300 to 340 10 Base had hired all the employees it intended by July 15 BASE SERVICES pay, holidays, or the accrual of sick leave. The Union was permitted to, and did in fact, bargain with the Army concerning the taking of sick and vacation leave as evi- dence by the collective-bargaining agreement that cov- ered, among other employees, those employed in DOL. The Union had the authority to bargain with the Army concerning training provided employes with DOL. The Union could challenge the compelling need for Army- wide directives that affected DOL or other covered em- ployees before such directives or regulations were insti- tuted, however, once the Army established a compelling need for any regulations, the Union's right to challenge the directives or regulations ended. The Union could thereafter only bargain with the Army about the imple- mentation of such directives or regulations. The Army was not required to bargain with the Union concerning the need for layoffs among, for example, the employees in DOL; however, certain of the procedures to be fol- lowed in reductions in force were subject to negotia- tions. The Union through its various locals represents Feder- al sector employees pursuant to the FLRA, private sector employees pursuant to the NLRA, and state em- ployees pursuant to statutes of the States involved. The scope of the Union's bargaining authority is governed by the employment status (i.e., Federal, state, or private en- terprise) of the employees involved. The Union asked for recognition and bargaining on June 1. Base, in a letter dated June 14, rejected the Union's request stating it had no obligation to recognize or bargain with the Union. B. Discussion, Analysis, and Conclusions It is settled law under the Board and court's traditional test that when a new employer takes over the business of a formerly unionized operation and does so with a sub- stantial and representative complement of bargaining unit employees, a majority of whom had been similarly em- ployed by the predecessor, the new employer will be considered a "successor employer" and will inherit cer- tain of the predecessor's bargaining obligations. The obli- gations the successor inherits includes recognizing and bargaining in good faith with the union but does not bind it to the predecessor's collective-bargaining agreement with the union. NLRB v. Burns Security Services, 406 U.S. 272 (1972), and Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987). In determining whether there is "sub- stantial continuity" between the enterprises, the Court- approved approach has been to consider the totality of circumstances with careful consideration given, but not limited to, the following factors: (1) whether there has been a continuation of the same business operations; (2) whether the new employer utilizes the same facilities as the previous employer; (3) whether the new employer utilizes the same or substantially the same work force; (4) whether the same jobs exist under the same working conditions; (5) whether the new employer utilizes the same or substantially the same supervisors; (6) whether the new employer utilizes the same machinery, equip- ment, and/or methods of production; (7) whether the new employer manufactures the same products, offers the same services, and/or has the same customers; and 175 (8) whether there has been a hiatus between the previous and the new employer's operations. None of these fac- tors is dispositive. See NLRB v. Band-Age, Inc., 534 F.2d 1 (1st Cir. 1976), cert. denied 429 U.S. 921 (1976). These factors must be viewed from the employees' perspective, that is whether their job situation has so changed that they would change their attitudes about being represent- ed. See Derby Refining Co., 292 NLRB 1015 (1989), see also NLRB v. Security-Columbian Banknote Co., 541 F.2d 135 (3d Cir. 1976). A mere change in ownership without an essential change in working conditions would not be likely to change employee attitudes about representation. NLRB v. Burns Security Services, supra at 278-279. The presumption about employee attitudes toward representa- tion is necessary to promote stability during changes of employers and to reduce industrial strife. As the Board stated in Derby Refining Co., supra: Both the Union and the employees are vulnerable during this period and hard-earned bargained-for rights can easily be diminished. Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 39 (1987). Employees, especially during such times, are worried about re- taining their jobs and may shun the union if they feel it will help their chances of doing so. If no pre- sumption existed, corporate transformation could be used to avoid the union and exploit employees' fears. Id. Such a situation would not be conducive to industrial peace. The Board is not precluded from finding that succes- sorship status exists simply because the predecessor was not covered by the Act. Cf. Boeing Co., 214 NLRB 541, 548, 559 (1974). Likewise the Board has held that a mere diminution in the employee compliment of the bargaining unit does not relieve the successor from its duty to bar- gain, e.g., Lloyd Flanders, 280 NLRB 1216, 1219 (1986). Nor does the fact the successor only takes over a portion of the operations of the predecessor preclude a succes- sorship finding. See G. T. and E. Data Services Corp., 194 NLRB 719, 720-721 (1971). As noted in Stewart Granite Enterprises, 255 NLRB 569, 573 (1981), and alluded to in Louis Pappas' Restaurant, 275 NLRB 1519 (1985): [I]t is established that successorship obligations are not defeated by the mere fact that only a portion of a former union-represented operation is subject to the sale or transfer to a new owner, so long as the employees in the conveyed portion constitute a sep- arate appropriate unit, and they comprise a majority of the unit under the new operation . [Case citations omitted.] Before focusing on the successorship issue it is helpful to address the Company's contention that the Union herein is not a labor organization within the meaning of the Act. Section 2(5) of the Act defines a "labor organization" as: [A]ny organization of any kind, or any agency or employee representation committee or plan, in 176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD which employees participate and which exist for the purpose, in whole or in part, of dealing with em- ployers concerning grievances, labor disputes, wages, rates of pay, hours of employment , or condi- tions of work. Thus, a labor organization must be one in which employ- ees participate and which exists for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. See, e.g., United Truck & Bus Service Co., 257 NLRB 343 (1981). It is clear that the Union herein admits to membership and represents employees from, among other sectors, the private sector. Thus, it exists, in part, as an organization in which employees, within the meaning of the Act, participate, and it deals with em- ployers, within the meaning of the Act, concerning the requisite matters outlined in Section 2(5) of the Act. The particular local-R14-32-that the Union had des- ignated to deal with the predecessor (the Army) has pro- visions in its constitution and bylaws relating to member- ship qualifications. The membership qualifications set forth at article II are: Section 1 . Qualifications : Any person, male or female, who is presently employed by the Federal Government of the United States or retired from government service (as provided for in the National Constitution and By-laws) shall be eligible to join or maintain membership in the National Associations of Government Employees regardless of creed, race, color, age or national origin. Thus, at first glance it would appear that Local R14-32 does not admit non-Federal government employees to membership and as such would not be an organization in which employees, as defined in the Act, participate. However, the provision in question for membership by Federal Government employees is not exclusive as was the case in United Truck & Bus Service Co., supra, where the Board found the Union in that case not to be a labor organization within the meaning of the Act, because pri- vate sector employees were prohibited from membership in that union. There is nothing in Local R14-32's consti- tution and bylaws that absolutely prohibits membership by non-Federal employees. Although Local R14-32's president, Leonard Johnson, testified that in order to be a member of Local R14-32 one had to be employed by or retired from the Federal Government such overall ex- clusion of non-Federal employees is not set forth in or required by the Local's constitution and bylaws. Further- more, the Union , including Local R14-32, has by its ac- tions herein, clearly expressed a willingness to represent the employees in question . It is this willingness and desire to represent the employees in question that is the controlling factor, rather than Local R14-32's constitu- tional ability to do so . See Gino Morena Enterprises, 181 NLRB 808 (1970). Thus, I conclude that the Union (in- cluding designated Local R14-32) is a labor organization within the meaning of the Act."" I I In any event , the evidence indicates the Union designates it locals depending on the employment sector of the employees involved Thus, Turning now to the successor issue I shall consider that issue under the traditional approach to such cases before addressing Base's contention the Board 's legal presumption of successorship should not apply where the predecessor was the Federal Government and the new employer is from the private sector . In applying the tra- ditional successorship test, I am not unmindful that some of the various factors overlap . I have, where it has been appropriate for discussion and analysis purposes, consoli- dated factors. It is clear that when Base began operations on June 1, it did so with a representative complement of its work force employed , a majority of which were former DOL employees. I am persuaded the employees viewed Base's operations as a continuation of the services performed by DOL. In that regard, Base provides the same services to the same customer-the Army-that DOL provided. Base does provide the additional service of maintaining the target ranges at the base, however, such additional duties did not necessitate the hiring of any additional em- ployees. Base operates out of the same facilities utilizing the same equipment and working essentially the same hours as had the predecessor, DOL. The organizational differences established by Base such as its departments of contract administration, finance and accounting , and em- ployee relations are each staffed with only one unit em- ployee each. Viewed from the employees' perspective, these changes were not so dramatic as to likely affect their views or attitudes about being represented by the Union. Sixty percent of the job classifications utilized by Base are substantially the same as those that had been utilized at DOL. In the 40 percent that are different, the differences are only that the job classifications are more enhanced in that employees in these classifications may be performing a consolidation of duties that were previ- ously performed by separate classifications at DOL. These classification consolidations were motivated by ef- ficiency considerations and not due to any changes in the types of work performed or services provided. The evi- dence establishes that other changes made by Base are also insignificant. For example, DOL utilized a time keeper to maintain time cards and employees were only required • to sign them at the end of the workweek whereas Base requires its employees to fill out their own timecards daily. I also view as a minor change the fact Base in reviewing work the customer finds fault with or rejects brings its employees in direct contact with the customer whereas under DOL the employees were given written "pink slip" type notifications of any problems on work they had performed . I do not view as negating a finding that Base is the successor of DOL that only one of its eight managers had worked for DOL and only three of its 22 working leadpersons/supervisors had worked at DOL in the same positions they have at Base. The overall continuity of the business operation viewed from the employees' perspective remains substantially unchanged notwithstanding the fact the overall supervi- sion is somewhat changed. no impediment to the Union representing the employees in question exists. BASE SERVICES Finally, I note Base commenced providing the services DOL had provided without a hiatus between operations. The unit of all maintenance and supply employees at Base is classically appropriate. Accordingly, under the traditional approach to successor cases, I conclude and find Base is the successor of DOL and as such has an ob- ligation to recognize and bargain in good faith with the Union. I shall now consider whether the traditional successor- ship doctrine, under which I find Base to be a successor, should apply in a situation such as herein , where the predecessor was the Federal Government and the suc- cessor is from the private sector. I am persuaded the traditional successorship test is the proper one to be applied in the instant case notwithstand- ing the fact the predecessor-the Army-was not an em- ployer within the meaning of the Act. Imposing succes- sorship in the instant situation fulfills the purposes of the Act by fostering stability and harmony in labor relations for an employer (Base) who is covered by the Act and which renders services to a customer (the Army) that di- rectly affects national defense. To fail to apply the tradi- tional successorship test in the instant case, merely be- cause the predecessor was from the public sector, would place form over the substantive goals of the Act. Stated differently, the employees of Base which are currently covered by the Act may not be denied the benefits that arise under the successorship doctrine simply because their former employer was from the public sector. Em- phasis in successorship cases must be placed upon a de- termination of continuity of the enterprise rather than upon the source of such employment . In summary, I find that the fact the predecessor and the Union's labor agree- ment was governed by the FLRA does not vitally impede the finding, which I make, that Base is the suc- cessor of the Army. I shall next consider whether there has been fragmen- tation of the unit such as would preclude imposing a successorship obligation upon Base . First, I note succes- sorship obligations are not defeated simply by the fact that only a portion of a former unionized operation is taken over by a new employer so long as the employees in the conveyed portion constitute a separate appropriate unit and they comprise a majority of the unit under the new operation. In the case sub judice there were ap- proximately 763 employees in the overall unit at the base with bargaining unit employees working in approximate- ly 12 different directorates.' 2 As is noted throughout this Decision the directorate involved herein is DOL. Just prior to June 1, there were approximately 269 wage grade (300 to 340 total) employees in DOL. As of June 1, Base employed 239 workers (plus 22 working lead- persons/supervisors). It is clear that DOL functioned as a separate and identifiable work group of the overall unit at the base and had a clearly established work objective which was to perform maintenance on equipment and issue supplies to and provide transportation for army troops at the base. Base assumed those same functions for 12 Directorates at the base are generally best described as departments or bureaus of the base with certain distinct functions or missions to ac- complish 177 the Army at the base. Although Base only acquired a portion of the functions of the overall unit at the prede- cessor it nonetheless assumed a separate and distinct por- tion. The unit of employees at Base is not that signifi- cantly smaller than the directorate (DOL) it replaced. Thus, I conclude and find there was not an inappropriate fragmentation of a previously homogeneous grouping of employees such as to preclude imposing successorship obligations upon Base. Where there is substantial continuity between the em- ploying enterprises and a successor (such as Base) hires a majority of the predecessor's (the Army's) unionized work force a continuing desire for representation is pre- sumed . A question, however, arises in the instant case as to whether there is anything that would rebut that pre- sumption. I find there is insufficient evidence to over- come the presumption . In attempting to rebut the pre- sumption Base contends there are such drastic differ- ences between the bargaining rights of Federal and pri- vate employees that it is simply inappropriate to assume that workers who selected a Federal union would desire to have that some organization represent them in the pri- vate sector. Base points out what it asserts are some of these drastic changes. Base notes the Union did not have the right to call a strike against the predecessor (the Army) and argues it would be unreasonable to assume that the employees would now desire to have an exclu- sive bargaining agent with that authority. Base argues that because the Union did not have the authority to bar- gain with the predecessor concerning wages and certain fringe benefits it was nothing more than a "mere om- budsman" compared to a labor organization under the Act, and as such it would be inappropriate to presume the employees would still desire union representation by an organization with the enhanced bargaining rights this Union would have in the private sector. I reject the Company's above outlined contentions because they are invalid and speculative. While bargaining in the Federal sector is much narrower than the obligations imposed upon private employers by the NLRA, I am nonetheless persuaded no reason exists to presume these former public sector employees would reject having the Union as their bargaining representative simply because the rep- resentative's bargaining powers have been increased. Base's contention that expanded bargaining rights under the Act were not contemplated by the former public sector employees and as such might cause them to reject the Union is speculative. Simply stated , I find no reason to conclude that an increase in bargaining rights and powers would cause the employees of Base to reject the Union as their bargaining representative. Base makes two additional contentions it asserts rebuts the presumption of a continuing desire by its employees to be represented by the Union, both of which are with- out merit. First, Base points out there were few dues- paying members in the overall unit at the predecessor. While this contention is true (as of June 1 there were 154 dues-paying members in the unit of approximately 763 employees) union membership is not an accurate or con- trolling indicator of employees desire for union represen- tation. Employees may desire the benefits of unionization C DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 178 without any of the expenses related thereto . Second, Base asserts the Union has no experience in representing private sector employees and that it would be "absurd" to presume its employees desired this "totally inexperi- enced" organization to be their collective -bargaining rep- resentative . Assuming arguendo that the Union lacks ex- perience in the private sector, a finding of which I am unwilling to make, such would not preclude it from serv- ing as the collective-bargaining representative for Base's employees. Furthermore, there is nothing to indicate the Union had not represented the employees of the prede- cessor in collective bargaining, grievance handling, and statutory appeals to the fullest extent possible under the FLRA. Therefore, the employees may well expect a continuation of representation to the fullest extent possi- ble from the Union as their representative in the private sector. Accordingly, a lack of private sector experience, even if established , would not standing alone rebut the presumption the employees still wish to be represented by the same union they had designated and selected at the predecessor. In summary, and as noted at the beginning of this deci- sion, I find Base is the successor of the Army and is obli- gated to recognize and bargain with the Union for its employees in the unit which is appropriate for collective- bargaining purposes. CONCLUSIONS OF LAW 1. Base Services, Inc. is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. National Association of Government Employees, af- filiated with Service Employees International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Base Services, Inc. is the successor of the mainte- nance employing entity (DOL) of the United States Army at Fort Leonard Wood, Missouri. 4. All employees of Base performing maintenance and supply for the training and troop areas of the United States Army base in Fort Leonard Wood, Missouri; but excluding office clerical employees , professional employ- ees, guards, supervisors as defined in the Act, and all other employees constitute a unit appropriate for collec- tive bargaining within the meaning of Section 9(b) of the Act. 5. National Association of Government Employees, af- filiated with Service Employees International Union, AFL-CIO has been, and is, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing on or about June 14 , 1988, and at all times thereafter, to recognize and bargain collectively with the above-named labor organization as the exclusive representative of all its employees in the appropriate unit, Base has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Base has engaged in certain unfair labor practices, I shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. I shall order Base to recognize and, on request , to bar- gain with the Union as the exclusive representative of all its employees in the appropriate unit, which unit is de- scribed elsewhere in this decision . I shall also order that Base post a notice to employees attached as an appendix for 60 days in order that employees may be apprised of their rights under the Act and Base's obligation to remedy its unfair labor practices. On these findings of fact, conclusions of law, and on the entire record , I issue the following recommended' 3 ORDER The Company, Base Services, Inc., Fort Leonard Wood, Missouri, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to recognize and bargain in good faith with National Association of Government Employees, affiliated with Service Employees International Union, AFL-CIO as the exclusive bargaining representative of the employees in the bargaining unit described elsewhere in this decision. (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 which is deemed necessary to effectuate the policies of the Act (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement: All employees of Base performing maintenance and supply for the training and troop areas of the United States Army base in Fort Leonard Wood, Missouri; but excluding office clerical employees, professionals employees, guards, supervisors as de- fined in the Act, and other employees. (b) Post at its Fort Leonard Wood , Missouri facilities copies of the attached notice marked "Appendix." t 4 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by Base's au- thorized representative, shall be posted by Base immedi- ately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- is 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 i4 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 " BASE SERVICES 179 tices to employees are customarily posted . Reasonable steps shall be taken by Base to ensure that the notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Base has taken to comply. APPENDIX To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to recognize and, on request, bar- gain in good faith with National Association of Govern- ment Employees, affiliated with Service Employees International Union, AFL-CIO as the exclusive bargain- ing representative of the employees in the bargaining unit described below: 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, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion All employees of Base performing maintenance and supply for the training and troop areas of the United States Army base in Fort Leonard Wood, Missouri; but excluding office clerical employees, professionals employees, guards, supervisors as de- fined in the Act, and other employees. 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, 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 bar- gaining unit described above. BASE SERVICES, INC.