Apparatus Services, Inc.

APPARATUS SERVICE Apparatus Service, Inc. and International Union of Electrical Workers, Local 1126 . Case 17-CA- 14029 September 18, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On June 30, 1989, Administrative Law Judge Karl H. Buschmann issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Apparatus Service, Inc., Tulsa, Oklaho- ma, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(c). "(c) Refusing to bargain collectively with the Union as the collective bargaining representative of the employees in the following appropriate unit: "All production and maintenance employees, of the Employer at its Tulsa, Oklahoma Appa- ratus Service Shop, including truckdrivers, shipping and receiving, stockroom attendants, and all other employees, engaged in field serv- ice and equipment installation, excluded: office clerical employees, professional employees, technical employees, salesmen, guards and su- pervisors as defined in the Act." 2. Substitute the attached notice for that of the administrative law judge. ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings. 2 We shall modify the judge's recommended Order and substitute a notice so as to include a specific description of the appropriate bargaining unit. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 581 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 coercively question or interrogate applicants for employment concerning their union affiliation. WE WILL NOT maintain a rule or policy that pro- hibits our employees from discussing their salaries. WE WILL NOT refuse to bargain collectively in good faith with the Union as the collective-bar- gaining representative of our employees in the fol- lowing appropriate unit. All production and maintenance employees, of the Employer at its Tulsa, Oklahoma Appara- tus Service Shop, including truckdrivers, ship- ping and receiving, stockroom attendants, and all other employees, engaged in field service and equipment installation, excluded: office clerical employees, professional employees, technical employees, salesmen, guards and su- pervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL rescind any rule that prohibits our em- ployees from discussing their salaries. WE WILL, on request, bargain with the Union as the exclusive bargaining representative of our unit employees. APPARATUS SERVICE, INC. Stephen E. Wamser, Esq., for the General Counsel. Stephen L. Andrew, Esq. (McCormick, Andrew & Clark), of Tulsa, Oklahoma, for the Respondent. Jerry W. Smith, of Garland, Texas, for the Charging Party. DECISION STATEMENT OF THE CASE KARL H. BUSCHMANN, Administrative Law Judge. The case was tried in Tulsa, Oklahoma, on November 30, 1988 . The charge was filed by the Union on Septem- ber 14, 1988, and the complaint was issued on October 28, 1988. The issues are whether the Company violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The Respondent filed its answer on No- 296 NLRB No. 82 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vember 9, 1988, in which it denied the commission of any unfair labor practices. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT The Company, Apparatus Service, Inc., is an Oklaho- ma corporation located at 5220 S. 100th East Avenue, Tulsa, Oklahoma, where it is engaged in the repair and remanufacture of electrical and mechanical equipment. With purchases of goods and materials valued in excess of $50,000 from points outside the State it is admittedly engaged in commerce within the meaning of the Section 2(2), (6), and (7) of the Act. The Union, International Union of Electrical Workers Local 1126, is admittedly a labor organization within the meaning of Section 2(5) of the Act. Prior to March 28, 1988, the General Electric Compa- ny operated a business at the Respondent's location known as General Electric Apparatus Service Shop (Tr. 12). On March 28, 1988, the Respondent, Apparatus Service, Inc., purchased from General Electric the assets including the "[l]and, building and all of the furniture, equipment, inventory" and continued the business at the same location (Tr. 11). The Respondent also kept all of General Electric's employees except the manager Danny Davis (Tr. 12). These employees included all six produc- tion and maintenance employees (E. Belcher, Rick Bled- saw, Brady Crawford, Carl Stephens, Napoleon Lewis, and Henry Thompson) and the shop superintendent, Phil Sasser (Tr. 13). Former General Electric employee Law- rence Fuller became president and general manager of the Company (Tr. 9, 38). Prior to the change in ownership on March 28, 1988, the employees were represented by the International Union of Electrical Workers Local 1126 in the following unit (G.C. Exh. 7): All production and maintenance employees, of the Employer at its Tulsa, Oklahoma Apparatus Service Shop, including truckdrivers, shipping and receiving, stockroom attendants, and all other em- ployees, engaged in field service and equipment in- stallation, excluded: office clerical employees, sales- men, guards and supervisors as defined in the Act. The most recent collective-bargaining agreement cov- ered the period of July 1, 1985, until June 26, 1988 (G.C. Exh. 8). On March 15, 1988, a meeting was held between man- agement and the employees. That meeting, held in the lunchroom, was conducted in two stages: first, General Electric management informed the employees of the clo- sure of the operation and the employees' benefits. The second part of the meeting was conducted by the Re- spondent's management team, Fuller and Al Martin. Edward Gaskill, the Union's International representative, was also present at the meeting and participated in the discussions. Fuller explained initially the nature of Appa- ratus Service. Martin then read certain provisions from an employee handbook to the assembled employees and explained that these were the conditions of employment as well as the employee benefits. In response to Gaskill's question whether these provisions were proposals, Martin responded: "[T]his was what our plan was on how we intended to operate the business" (Tr. 18); he also said: "I guess then they're proposals" (Tr. 80). Gas- kill orally requested a copy of the handbook as soon as it was available. By letter of March 18, 1988, Gaskill wrote Fuller (G.C. Exh. 9): As discussed at our meeting on March 15, 1988 in Tulsa, please forward your Contract proposals to me. On March 24, prior to the transfer of ownership, the Respondent distributed to the employees the handbook in its finalized version (G.C. Exh. 2, Tr. 14). The hand- book contains a provision requiring the employees to keep their salary confidential. Gaskill contacted Fuller again by calling him on March 28, stating, "[W]e continued to represent the em- ployees, and that I would like a date when we could sit down to negotiate" (Tr. 84). Fuller replied that he needed to get out on the road to contact customers be- cause they did not have sufficient work (Tr. 84). When Gaskill inquired how Fuller intended to operate in the interim, Fuller replied, "General Electric owned the business yesterday and we own it today, and there's no interim" (Tr. 34). Gaskill insisted that he wanted some- thing in writing, Fuller replied that he needed to get out, visit customers, and attract work for the Company and the employees. On April 14 and several dates thereafter, Fuller inter- viewed and hired several employees. During the inter- view discussions, Fuller asked some of the prospective candidates whether they were represented by a union. By letter of May 13, 1988, the Union requested the Respondent to open negotiations, stating inter alia as fol- lows (G.C. Exh. 4): IUE Local 1126 respectfully request the opening of negotiations for the Local contract begin on Wednesday, June 1, 1988 and be finalized by mid- night, Thursday, June 30, 1988. The letter also contained the names of the employees who were selected for the negotiation committee. On May 25, 1988, Gaskill presented Fuller with a peti- tion for representation signed by all nine of Respondent's employees (G.C. Exh. 3). Gaskill told Fuller that the Union "had a continuing right to represent the employ- ees, and that the petition, authorization petition, should clear up any doubts that he had about [the Union's] rep- resentation" (Tr. 92). Fuller replied by letter of May 28, 1988, stating as fol- lows (G.C. Exh. 5): This will acknowledge receipt of your letter dated May 13, 1988 wherein you request that this Company participate in collective bargaining nego- tiations with the Union. APPARATUS SERVICE After careful consideration, the purpose of this letter is to advise you that we have a good faith belief that your Union does not represent a majority of the employees which might be included in a bar- gaining unit which might be established by the Na- tional Labor Relations Board. Under these circum- stances, we cannot in good faith and without violat- ing the law enter into collective negotiations. The General Counsel argues that the Respondent is a successor employer who had no basis to question the Union's majority status and who refused and failed to bargain collectively with the Union in violation of the Act. The Respondent also violated the Act, according to the General Counsel, by prohibiting its employees from discussing their salaries and by questioning two job ap- plicants about their union membership. The Respondent submits that it was not obligated to bargain with the Union because it failed to make a proper demand to bargain prior to the issuance of the handbook and because the Respondent had a good-faith doubt about the Union's majority status. The Respondent also asserts that its policy on confidential salary informa- tion was not effectively enforced. Analysis Initially, the record is clear that the Respondent, Ap- paratus Service, Inc., is a direct successor employer of General Electric Company's apparatus service shop. There was no interim period, but as the Respondent's chief executive testified, General Electric owned the op- eration yesterday and the Respondent owned it today, ef- fective March 28, 1988, by an acquisition of the assets, i.e., real estate, equipment , and inventory (Tr. 11, 34). The business continued uninterrupted at the same loca- tion under a similar name with the same employees, in- cluding the unit employees and the shop superintendent. A mere change in ownership is not considered such an unusual circumstance as to relieve the successor employ- er from his obligation to bargain with elected representa- tives of the employees . NLRB v. Burns Security Services, 406 U.S. 272 (1972). The Respondent does not dispute its obligation to bargain under such circumstances, but states that it had a good-faith doubt about the Union's majority status because certain employees had expressed their reservation. Whether a successor employer may question a union's majority in good faith must be resolved by considering the totality of all the circumstances in a particular case. "But among such circumstances , two factors would seem to be essential prerequisites. . . . There must, first of all, have been some reasonable grounds for believing that the union had lost its majority status since its certification. And, secondly, the majority issue must not have been raised by the employer in a context of illegal anti-union activities." Celanese Corp., 95 NLRB 664 (1951). The record here shows that the employer had no reasonable basis for believing that the Union's majority had eroded. First of all, the Union's representative, Gaskill, had indi- cated to Respondent's officials since the March 15 meet- ing that he was acting on behalf of the employees. Indeed the Union's May 13 letter, which the Respondent 583 acknowledged contained a request to bargain, listed five names for the negotiating committee , all of whom were members of the bargaining unit of the prior employer (G.C. Exh. 4; R. Br. 7). Moreover, on May 25, the Respondent received from the Union a statement from its nine employees authoriz- ing it to represent the employees (G.C. Exh. 3, Tr. 28). Accordingly, the record shows that there was an absence of objective or reasonable factors for the Company's belief; to the contrary, there were affirmative indicia that showed that the Union continued to represent the em- ployees. Nevertheless, the Respondent claims that be- tween May 13 and 28, the Company had such a good- faith belief, because two of the holdover employees and the four new employees had indicated to Fuller that they did not want to be represented by the Union. Fuller testified that he learned from his shop superin- tendent that employees Napoleon Lewis and Henry Thompson felt that they did not need a Union (Tr. 30). Yet both employees testified that they never told Sasser, the superintendent, or anyone else, that they no longer wanted to be represented by the Union (Tr. 48, 65, 70). Moreover, the employees' conduct, having signed union cards, as well as the statement agreeing to be represented by the Union and being designated members of the nego- ti...ion team, fails to support Fuller's good-faith belief and renders it implausible and incredible . With respect to the four new employees, Duane McLane, Larry Griffith, Larry Woolsey, and Forrest Adair, it was Fuller's testi- mony that they had revealed to him during the employ- ment interview that they preferred not to be represented by any union (Tr. 30). The record shows that these disclosures came about as a result of Fuller's questioning the candidates during their job interviews. For example, Fuller admitted asking McLane on April 14, the day he was hired, whether he was represented by a union in his old job. McLane denied being represented. On May 17, Fuller questioned Adair during his job interview whether he was repre- sented by a union to which Adair said , no (Tr. 21-22, 26, 39). Fuller did not threaten the employees, but consider- ing the seriousness of a job interview, it is clear that the Respondent's conduct was coercive. NLRB v. Solboro Knitting Mills, 572 F.2d 936 (2d Cir. 1978), cert. denied 439 U.S. 864 (1978). It is clear, therefore, that the Re- spondent not only lacked an objective basis for its belief that the Union lacked a majority, but also that the issue was raised in a context of illegal antiunion activities. Burns Security Services, supra. For it is also significant that Fuller's interrogation was not conducted merely in the context of the employees ' questions, but on Respond- ent's own initiative . He also considered it significant to know of all new employees, whether they were repre- sented by a union in their prior jobs . I therefore con- clude that the Respondent not only violated Section 8(a)(1) of the Act by interfering with the employees' Section 7 rights, but also Section 8(a)(5) and (1) of the Act for its failure to bargain with the Union after repeat- ed demands to do so. On March 24, 1988 , prior to the official change in ownership, the Respondent's officials distributed the em- 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployee handbook to the six employees . The handbook, which continues in force as the Respondent's policy, re- quires the employees to keep their salary confidential under the following proviso. (G.C. Exh. 2, p. 8): Salaries-Confidential Your salary is determined individually, is confiden- tial, and should not be discussed with any one other than your manager. Our wage and salary program is designed to recognize individual performance while ensuring conformance to applicable laws. Maintaining and enforcing a policy prohibiting em- ployees from discussing salary information restrains em- ployees in the exercise of their rights to engage in con- certed activities in violation of Section 8(a)(1) of the Act irrespective of whether such a policy is actually en- forced. Electronic Data Systems, 278 NLRB 125, 130 (1986). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent was a successor to the prior em- ployer which had a collective-bargaining relationship with the Union. 4. The Respondent, by questioning employees about their union membership, interfered with their Section 7 rights in violation of Section 8(a)(1) of the Act. 5. The Respondent did not have a good-faith doubt about the Union's majority status, and it violated Section 8(a)(5) and (1) of the Act when it refused to bargain col- lectively with the Union on behalf of the employees in the appropriate unit. 6. The Respondent , by maintaining a policy prohibit- ing employees from discussing their salaries, interfered with the employees' Section 7 rights in violation of Sec- tion 8(a)(1) of the Act. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to remedy the unfair labor practices and to effectuate the policies of the Act. Having found that the Respondent refused to bargain with the Union and having found that the Respondent is a successor employer to the prior company that had a bargaining obligation with the Union, and having further found that the Respondent did not have a good-faith doubt about the Union's majority status among the unit employees, I shall order the Re- spondent to bargain in good faith with the Union as the exclusive bargaining representative of the employees in the following appropriate unit. All production and maintenance employees, of the Employer at its Tulsa, Oklahoma Apparatus Service Shop, including the truckdrivers, shipping and receiving, stockroom attendants, and all other employees, engaged in field service and equipment installation, excluded : office clerical employees, pro- fessional employees , technical employees , salesmen, guards and supervisors as defined in the Act. Having further found that the Respondent maintained a policy prohibiting its employees to discuss their sala- ries, which has a tendency to interfere with the employ- ees' rights under Section 7 of the Act, I recommend that the Respondent rescind or revoke its policy. On these findings of fact and conclusions of law and on the entire record, I make the following recommend- ed' ORDER The Respondent, Apparatus Service, Inc., Tulsa, Okla- homa, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively questioning or interrogating its employ- ees or job applicants about their union affiliation. (b) Maintaining any rule or policy that prohibits its employees from discussing their salaries , or other forms of compensation. (c) Refusing to bargain collectively with the Union as the collective-bargaining representative of the unit em- ployees. (d) 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) Rescind or revoke its rule or policy that prohibits its employees from discussing their salaries or other forms of compensation. (b) Recognize and, on request , bargain collectively with the Union as the exclusive bargaining representative of the employees in the above-stated appropriate unit. (c) Post at its Tulsa, Oklahoma facility copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to the above-described members and em- ployees 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. ' 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. 2 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 "