NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
C & B Flooring
Associates, LLC and Local 807, International
Brotherhood of Teamsters.1 Case 29–CA–24357
March 30, 2007
decision and order
By Chairman Battista and Members
Liebman and Walsh
On May 3,
2002, Administrative Law Judge Eleanor MacDonald issued the attached decision. The Respondent filed exceptions and a
supporting brief. The Charging Party
filed an answering brief.
The
National Labor Relations Board has delegated 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,2 and conclusions and to adopt the
recommended Order as modified and set forth in full below.3
ORDER
The
National Labor Relations Board adopts the recommended Order of the
administrative law judge as modified and set forth in full below and orders
that the Respondent, C & B Flooring Associates, LLC,
1. Cease and desist from
(a)
Informing employees that there will be no union at the Company when the
employer is obliged to recognize and bargain with Local 807, International
Brotherhood of Teamsters (the
(b) Refusing to recognize and bargain with the
All full-time and regular part-time chauffeurs and hi-lo operators/warehousemen, excluding guards and supervisors as defined in Section 2(11) of the Act.
(c) Unilaterally
changing the terms and conditions of employment of employees in the above appropriate
unit without notice to and bargaining with the
(d) In
any like or related manner interfering with, restraining, 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, on request, bargain with the Union concerning terms and conditions of
employment of the unit employees and, if an agreement is reached, embody the
agreement in a signed document.
(b) On
request of the Union, rescind any departures from terms and conditions of employment
that existed prior to its commencing operations at
(c) Make whole, in the manner set forth in the remedy section of the judge’s decision except as modified herein, the unit employees for any loss of earnings and other benefits caused by the Respondent’s failure to apply the terms and conditions of employment that existed prior to its commencing operations at Five Albertson Avenue, subject to its demonstrating in a compliance hearing that, had it lawfully bargained with the Union, it would have, at some identifiable time, lawfully imposed or reached agreement on less favorable terms than those that had existed under its predecessor.
(d) Preserve
and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in
(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Wilma B. Liebman, Member
______________________________________
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
Chairman Battista, concurring in part.
I concur in the conclusion that the Respondent violated the Act by
refusing to recognize and bargain with the collective-bargaining representative
of its predecessor’s employees and by unilaterally setting initial terms of
employment that differed from those of the predecessor. With respect to the latter point, the judge
relied upon Advanced Stretchforming International, 323 NLRB 529 (1997), enfd. in
relevant part 233 F.3d 1176 (9th Cir. 2000), on remand 336 NLRB 1153 (2001).
In that case, the Board held that a successor employer, who
violates Section 8(a)(1) by telling employees that there will be no union,
thereby gives up a successor’s normal right to set initial terms and conditions
of employment.
I
do not pass on the validity of Advanced
Stretchforming. Instead, I conclude
that the Respondent’s unilateral action was unlawful because the Respondent’s
plan was to populate its unit entirely with Union-represented unit employees of
the predecessor. The evidence establishes that the Respondent
was a “perfectly clear” successor within the meaning of NLRB v. Burns International Services, 406 U.S. 272 (1972).
In Burns, the Supreme Court held that, although a successor “is ordinarily free to set initial terms on which it will hire the employees of its predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees’ bargaining representative before he fixes terms.”1 This principle applies where the successor employer employs a work force consisting solely of the predecessor’s employees.2
The
instant case falls squarely within these
principles. Shortly after it acquired its predecessor’s
flooring and carpeting distribution business, the Respondent hired a work force
consisting solely of its predecessor’s unionized truck drivers. Thereafter, the Respondent unilaterally
modified those employees’ existing terms and conditions of employment without
giving the Union prior notice and an opportunity to bargain. At no time prior to its unilateral action did
the Respondent suggest that its terms would differ from those of the predecessor. On those facts, I find that the Respondent
was a “perfectly clear” successor, and violated the Act by setting new initial
terms and conditions of employment without giving the Union prior notice and an
opportunity to bargain.
Dated,
______________________________________
Robert J. Battista, Chairman
National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We
will not tell employees that we intend to operate with no union when we
are obliged to recognize and bargain with Local 807, International Brotherhood
of Teamsters (the
We
will not refuse to recognize and bargain with the
All full-time and regular part-time chauffeurs and hi-lo operators/warehousemen, excluding guards and supervisors as defined in Section 2(11) of the Act.
We
will not unilaterally change terms and conditions of employment of the
employees in the above unit without notice to and bargaining with the
We will not in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them as set forth above.
We will recognize and, on request, bargain with the Union concerning terms and conditions of employment of the unit employees and, if an agreement is reached, embody the agreement in a signed document.
We
will, on request of the Union, rescind any departures from terms and
conditions of employment that existed prior to our commencing operations at
We will make our employees whole for any loss of earnings and other benefits caused by our failure to apply the terms and conditions of employment that existed prior to our commencing operations at Five Albertson Avenue, subject to our demonstrating in a compliance hearing that, had we lawfully bargained with the Union, we would have, at some identifiable time, lawfully imposed or reached agreement on less favorable terms than those that had existed under our predecessor.
C & B Flooring Associates, LLC
Nancy B. Lipin, Esq., for the General Counsel.
Loraine M. Cortese-Costa, Esq., (Durant,
Nichols, Houston, Hodgson & Cortese-Costa, P.C.) of
Laura Matlow, Esq, (Vladeck, Waldman, Elias
& Englehard, P.C.), of
Decision
Statement of the Case
Eleanor MacDonald,
Administrative Law Judge. This case was
heard in
On the entire
record, including my observation of the demeanor of the witnesses, and, after
considering the briefs filed by the General Counsel and the Respondent on April
10, 2002, I make the following[5]
Findings of Fact
i. jurisdiction
Respondent, a
domestic corporation with its principal office at
ii. alleged unfair labor practices
A. Background
The firm of
Crockett and Buss had been in business for many years as a wholesale distributor
of floor coverings. Gradually Crockett
and Buss fell on hard times, it had trouble paying its vendors and then it went
bankrupt. After emerging from bankruptcy
the firm was unable to continue in business and Crockett and Buss began selling
off inventory at sale prices. In mid-May
2001 the employees were informed that there was no more money to pay them and
they were laid off. The assets of
Crockett and Buss were purchased on June 19, 2001 by Mark Battey who since
October 2000 had been a Crockett and Buss salesman and then territory manager.[6]
The
truckdrivers employed by Crockett and Buss had been represented by Local 807
pursuant to a series of collective-bargaining agreements the most recent of
which had a term from July 1, 1998 through June 30, 2003. The contract defined the bargaining unit as
“(a) Chauffeurs [and] (b) hi-lo Operators/Warehousemen.”
Crockett and
Buss had operated out of a warehouse at
Battey’s
company is called C & B flooring Associates, LLC. Crockett and Buss was also known as C & B
and this name appeared on its trucks.
Battey purchased the name C & B Flooring Associates from Crockett
and Buss. C & B uses the same 800
telephone number as did Crockett and Buss.
Christopher
Courtenay, now the C & B president, was formerly senior vice president for
sales and marketing for Crockett and Buss.[7] Helen Schlotterhausen, the former secretary/treasurer
of Crockett and Buss, is the controller of C & B. Jack Allar, the vice president for credit of
Crockett and Buss, is the credit manager for C & B. Three of the five C & B sales personnel
were formerly employed by Crockett and Buss.
Battey
testified that a majority of the employees hired by C & B are former
Crockett and Buss employees, including the drivers and warehousemen. James Collins was the warehouse supervisor
for Crockett and Buss and he is the warehouse supervisor for C & B. The drivers currently use the same trucks and
warehouse equipment as they did formerly with Crockett and Buss.
It is
undisputed that when C & B hired three truckdrivers who were previously employed by Crockett and Buss it set their initial
terms and conditions of employment. C
& B issued an employee manual to the drivers when they began work. C & B did not offer the same vacation and
sick leave as had been in force under the collective-bargaining agreement and
it changed the policy on personal days, lunch periods and break periods. C & B changed the hours of the
truckdrivers. C & B has not contributed
to the Local 807 Labor Management Health and Pension Fund which had been used
to provide pension coverage and health insurance to the employees.
B. The Successorship Issue
Battey testified that “most of C & B’s current customers were
previously customers of Crockett and Buss.”
Courtenay stated that he has spent a lot of time reestablishing a
relationship with the retailers and contractors who had previously been
customers of Crockett and Buss.[8] Crockett and Buss had leased a
Courtenay
testified that Crockett and Buss distributed flooring products, carpeting,
laminate flooring and accessories. He
stated that C & B sells flooring products, carpeting, laminate flooring and
accessories.
Courtenay
testified that Crockett and Buss sold commercial and residential floor coverings,
accessories and supplies. About 70
percent of Crockett and Buss sales were for commercial purposes, consisting of
vinyl floor coverings and carpet tiles destined for office buildings. At one time Crockett and Buss had been a
warehouse distributor for Armstrong and after that it became the distributor
for Tarkett. These distributorships
accounted for 65 to 70 percent of the Crockett and Buss commercial
business. In addition Crockett and Buss
used over 20 vendors of tile floor coverings, including laminate and carpet. Crockett and Buss also sold residential
carpeting which it purchased from three mills:
Shaw, Beaulieu and Mohawk.
Courtenay
stated that C & B had changed the emphasis of the business. Only 20 percent of the tile carried by C
& B is commercial and the rest is residential. C & B concentrates on carpeting. It deals with only two of the three mills
that Crockett and Buss had done business with: Shaw and Beaulieu. C & B uses different tile companies from
the ones used by Crockett and Buss. When
C & B first began operations it bought a number of truckloads of seconds,
something that Crockett and Buss had never done.
Warehouse
manager James Collins was hired by C & B on July 1, 2001. He had been the operations manager for
Crockett and Buss for many years. His
duties at Crockett and Buss included
supervising the drivers and warehouse workers, routing the trucks, conducting
inventory control, and doing paperwork.
The warehouse workers did not drive trucks but some of the truckdrivers
would load their own trucks, cut carpet, pull stock and perform other
functions. Now that he works for C &
B Collins is still in control of the warehouse.
He still supervises the drivers, he routes the trucks and the drivers
still report to him. Collins testified
that he now does everything in the warehouse; he unloads trailers, cuts carpet
on the machines and he pulls stock.
Although Collins testified that the C & B drivers no longer perform
any work in the warehouse driver Shelles stated that he had been loading his
own truck until 2 weeks before the instant hearing when Collins’ son began
loading the trucks. All three truckdrivers
testified that they use the same trucks and equipment and do the same job for C
& B as they had done for Crockett and Buss.
The record
shows that after rehiring by C & B the drivers continued to communicate
with the
C. The Hiring of Three Drivers
Shelles
testified that at the end of May or beginning of June Collins telephoned him
and said the company was sold and the new owner wanted Shelles to work for him.[10] Collins said that Shelles, Butz, and Campbell
would be hired but that there would be no
Butz testified
that Collins called him at home and said that the new owner of the Company
wanted to meet him. Butz stated that
Collins said there would be no
Collins denied
that he mentioned the
Courtenay
testified that he made hiring recommendations to Battey and he was there when
Battey interviewed employees. Courtenay
was present during the meeting with Shelles.
In answer to the question whether there was discussion about the
Battey was not
called by the Respondent to testify about the interviews he conducted with
Courtenay.
D. Demand for Recognition and Bargaining
Battey
testified that when he bought the assets of Crockett and Buss he was unaware
that the drivers and warehousemen were represented by a union. On July 3, 2001 Counsel for the
On July 26
Counsel for the company wrote to the
On January 3,
2002 Counsel for the Respondent sent Matlow an offer to recognize and bargain
with the
iii. discussion and conclusions
The General
Counsel urges and the Respondent denies that C & B is a successor to
Crockett and Buss under the principles announced in Fall River Dyeing & Finishing v.
Whether the business of both employers is essentially the same
Whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors
Whether the new entity has the same production process, produces the same products, and basically has the same body of customers
Whether the employees will view their job situations as essentially unaltered
In
In the instant
case the business of Crockett and Buss and Respondent C & B is
substantially the same. C & B purchased
the business name and assets of Crockett and Buss and it operates out of the
same warehouse. The Crockett and Buss
office was in a different building, but the C & B office is in the old warehouse
location. C & B uses the same 800
telephone number formerly used by Crockett and Buss. As Courtenay testified, the business of both
firms is properly described as the distribution of flooring products,
carpeting, laminate flooring and accessories.
It is not significant that the mix of residential and commercial
products sold is different for C & B.
Nor is it material that C & B sells more carpeting and less laminate
than Crockett and Buss. Likewise, it is
not important that Crockett and Buss was an official distributor for Armstrong
and then Tarkett but that C & B has not attained the status of a distributor;
this circumstance has no effect on the truckdrivers. There is no change in the “essential nature”
of the unit employees’ jobs which is to take flooring products from the
warehouse and deliver them by truck. See
I find that
there is a substantial continuity between Crockett and Buss and the Respondent
C & B and I conclude that C & B is a successor to Crockett and Buss.[13]
There is no
dispute that on July 2 all of the Respondent’s unit employees were former unit
employees of Crockett and Buss who had been represented by the
Shelles, Butz,
and Campbell all testified that when they met with Courtenay and Battey for a
prehire interview Courtenay said that C & B would not take the Union back
and that the
The law is
clear that when a successor employer informs its employees that there will be
no union at the company it loses its right under
Respondent’s
brief urges that the employees were not coerced because they continued to
communicate with their
There is no
dispute that Respondent C & B did not make contributions to the
Conclusions of Law
1. Respondent C & B Flooring Associates, LLC
is a successor to Crockett and Buss.
2. Local 807, International Brotherhood of Teamsters,
AFL–CIO, is the exclusive collective-bargaining representative of the following
appropriate unit of employees under Section 9 (a) of the Act:
All full-time
and regular part-time chauffeurs and hi-lo operators/warehousemen, excluding
guards and supervisors as defined in Section 2 (11) of the Act.
3. By informing employees before they were hired
that there would be no union at the company, the Respondent violated Section
8(a)(1) of the Act.
4. By refusing to recognize and bargain with the
Union and by modifying the terms and conditions of employment of unit employees
without prior notice to the Union and without affording the Union an
opportunity to bargain over these matters, the Respondent violated Section
8(a)(5) and (1) of the Act.
Remedy
Having found that
the Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
On request,
the Respondent shall bargain with the
The Respondent
shall also make whole its unit employees by making all delinquent employee
benefit fund contributions, including any additional amounts due the funds in
accordance with Merryweather Optical Co.,
240
On these
findings of fact and conclusions of law and on the entire record, I issue the
following recommended11
ORDER
The
Respondent, C & B Flooring Associates, LLC,
1. Cease and desist from
(a) Informing employees that there will be no
union at the company when the employer is obliged to recognize and bargain with
Local 807, International Brotherhood of Teamsters, AFL–CIO.
(b) Refusing to recognize and bargain with the
All full-time
and regular part-time chauffeurs and hi-lo operators/warehousemen, excluding
guards and supervisors as defined in Section 2 (11) of the Act.
(c) Changing the terms and conditions of
employment of employees in the appropriate unit without notice to and bargaining
with the
(d) In any like or related manner interfering
with, restraining, 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) On request, bargain with the Union concerning
terms and conditions of employment of the unit employees.
(b) On
request, rescind changes in terms and conditions of employment of the unit
employees unilaterally effectuated and make the employees whole by remitting
all wages and benefits in the manner set forth in the Remedy section above
until the Respondent negotiates in good faith with the Union to agreement or to
impasse.
(c) Preserve and, within 14 days of a request, or
such additional time as the Regional Director may allow for good cause shown,
provide at a reasonable place designated by the Board or its agents all payroll
records, social security payment records, timecards, personnel records and
reports, and all other records, including an electronic copy of such records if
stored in electronic form, necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Within 14 days after service by the Region,
post at its facility in
(e) Within 21 days after service by the Region,
file with the Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the Respondent has
taken to comply.
Dated,
APPENDIX
Notice To
Employees
Posted by Order
of the
National Labor
Relations Board
An Agency of the
The National
Labor Relations Board had found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form,
join, or assist a union
Choose
representatives to bargain with us on your behalf
Act
together with other employees for your benefit and protection
Choose
not to engage in any of these protected activities
We will not tell
employees that there we intend to operate with no union when we are obliged to
recognize and bargain with Local 807, International Brotherhood of Teamsters,
AFL–CIO.
We will not refuse
to recognize and bargain with the
We will not change
terms and conditions of employment of the employees in the above unit without
notice to and bargaining with the
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 concerning terms and conditions of employment
of the unit employees.
We will, on
request, cancel changes in terms and conditions of employment made without
consent of the Union and we will
make employees whole by remitting all wages and benefits that would have been
paid absent our unlawful conduct, until we negotiate in good faith with the
C & B Flooring
Associates, LLC
1 We have amended the caption, recommended Order, and notice to reflect the disaffiliation of the International Brotherhood of Teamsters from the AFL–CIO effective July 25, 2005.
2 The Respondent has
excepted to some of the judge’s credibility findings. 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
3 We shall modify the judge’s recommended Order
to conform to the Board’s standard remedial language. We shall also modify the make-whole remedy
recommended by the judge for the Respondent’s unlawful unilateral changes in
accordance with our decision in Planned
Building Services, 347
4 If this Order is
enforced by a judgment of a
1 406
2 See also Galloway School Lines, Inc., 321
[5] The General Counsel has made a motion to correct the
record. The motion is unopposed and it
is hereby granted. The record is hereby
further corrected so that at page 17, line 6 it reads “just disclaimed a really
intimate knowledge of this document”; at page 19, line 13 should read “which
was an asset management”.
[6] Battey, testified that he bought the assets from Wells Fargo, an asset management company and that he opened for business on July 2, 2001.
[7] Courtenay became aware in April 2001 that Crockett and Buss was trying to find a buyer for the business.
[8] Some of these customers had lost confidence in Crockett and Buss when it was no longer able to supply them due to its problems in making current payments to suppliers.
[9]
[10] Shelles had worked for Crockett and Buss for a few days after the initial layoff.
[11]
[12] Although the record shows that Collins’ son had been loading trucks for 2 weeks it was not established how long this situation was expected to continue.
[13] I
shall not discuss Radiant Fashions, Inc.,
202
[14]
In view of my finding about the interviews with owner Battey and president
Courtenay I need not decide whether Collins also told Shelles and Butz that the
11 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 purposes.
12 If this
Order is enforced by a judgment of a