DATA MONITOR SYSTEMS, INC.

National Labor Relations Board - Board Decisions

May 31, 2016

364 NLRB No. 4 (N.L.R.B. 2016)

364 NLRB No. 4
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Data Monitor Systems, Inc. and Teamsters Local Un-
ion No. 957, General Truck Drivers, Ware-
housemen, Helpers, Sales and Service and Casi-
no Employees. Case 09–CA–145040
May 31, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On January 19, 2016, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs. The Respondent filed an answering
brief, and the Charging Party filed a reply 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,1 and conclusions as
modified below and to adopt the recommended Order as
modified and set forth in full below.2
The primary issue in this case is whether the Respond-
ent was a “perfectly clear” successor under NLRB v.
Burns Intl. Security Services, 406 U.S. 272, 294–295
(1972), and Spruce Up Corp., 209 NLRB 194, 195
(1974), enfd. per curiam 529 F.2d 516 (4th Cir. 1975),
with an obligation to bargain with the Union prior to set-
ting initial terms and conditions of employment that dif-
fered from those under the predecessor’s collective-
bargaining agreement with the Union. For the reasons
discussed below, we find, in agreement with the judge,
that the General Counsel failed to prove that the Re-
spondent was a “perfectly clear” successor as alleged in
the complaint.

1 The Charging Party excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
In the absence of exceptions, we adopt the judge’s finding that the
Respondent violated Sec. 8(a)(5) and (1) of the Act by failing to pro-
vide the Union with requested information.
2 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and to provide for the posting of
the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010). We
shall substitute a new notice to conform to the Order as modified.
Facts
The Respondent is a federal contractor that was
awarded a contract to provide supply and transportation
services at Wright Patterson Air Force Base in Fairborn,
Ohio, replacing WSI All Star, LLC. WSI had collective-
bargaining agreements (CBAs) with the Charging Party
Union covering its maintenance, transportation, supply,
and personal property employees. These CBAs required
that seniority be used in deciding which employees to lay
off and how to assign hours of work.
The Respondent won the federal contract on July 18,
2014.3 The contract provided for a transition period from
August 1–31, during which the Respondent was to be-
come familiar with Base operations and interview and
hire employees. The Respondent began operational per-
formance on September 1.
The Respondent asked WSI to distribute employment
applications to WSI employees and to set up an initial
schedule for interviews with the Respondent. In late July
or early August, WSI project managers informed em-
ployees that WSI had lost the contract, that the Respond-
ent would be taking over the contract effective Septem-
ber 1, and that those interested in working for the Re-
spondent could obtain employment applications from
WSI. Employees were also told that the Respondent
would be conducting employment interviews on August
6, 7 and 8, and that they should sign up for a specific
time and complete their applications by that time.4
The interviews were conducted as scheduled in early
August. At the conclusion of each interview, the Re-
spondent told applicants that they would be hearing from
the Respondent shortly as to whether they would be of-
fered employment. The Respondent interviewed all WSI
employees who signed up for an interview and ultimately
offered employment to 60 of approximately 90 WSI em-
ployees.
On August 8, Donald Minton, the Union’s business
agent, met with three of the Respondent’s managers, in-
cluding James Gustafson, the Respondent’s president and
owner. During this meeting, Gustafson told Minton that
the Respondent was not going to hire the same number of
people that were then employed by WSI. When Minton
asked whether the Respondent was going to use seniority
in determining who to hire, Gustafson replied that the

3 All dates are in 2014 unless otherwise indicated.
4 WSI employees interested in continuing employment with the Re-
spondent were given an application packet that consisted of a cover
sheet, list of positions, application, and acknowledgement form. The
cover sheet stated that the packet also included five forms related to
EEO law, Veteran status, disability and affirmative action identifica-
tion, and “Employers Holding Federal Contracts or Subcontracts.” Of
these forms, only the EEO form was entered in the record as an exhibit.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent was going to hire the best applicants it could
find and that seniority would not be used in deciding
which WSI employees to retain.
Although not mentioned by the judge, there is no dis-
pute that the Respondent was subject to Executive Order
13495, Non-Displacement of Qualified Workers (E.O.
13495), which requires contractors awarded a federal
government service contract to offer a right of first re-
fusal of suitable employment to those (nonmanagerial
and nonsupervisory) employees whose employment will
be terminated as a result of the award of the successor
contract. See 74 Fed.Reg. 6103 (2009).5 E.O. 13495
states that a successor contractor may employ fewer em-
ployees than the predecessor, that the successor must
offer the right of first refusal only to the number of eligi-
ble employees that it believes necessary to meet its antic-
ipated staffing pattern, and that the successor (subject to
certain restrictions not applicable here), “will determine
to which employees it will offer employment.” See 29
CFR §9.12(d)(1)(i) & 9.12(d)(2).
The complaint alleges that the Respondent became a
“perfectly clear” successor to WSI when the Respondent
had WSI distribute application packets to WSI unit em-
ployees without a simultaneous announcement of chang-
es to existing terms and conditions of employment. The
complaint further alleges that the Respondent failed to
utilize seniority when laying off unit employees and
when assigning hours of work to the unit employees,
thereby changing terms and conditions of employment
without giving the Union notice and the opportunity to
bargain.
Discussion
The judge found that the Respondent was not a “per-
fectly clear” successor because the Respondent indicated
to the Union that it did not intend to hire all of WSI’s
employees and because the Respondent told applicants
that they would hear shortly from the Respondent as to
whether they would be hired. The judge found that this
communication would lead applicants to infer that the
Respondent was not going to adopt the terms and condi-
tions of WSI’s CBAs with the Union. Because the Re-
spondent was not a “perfectly clear” successor, the judge
found that it did not violate the Act by refusing to use
seniority in determining whom to employ.
The General Counsel and the Charging Party except to
the judge’s findings and argue that the Respondent was a
“perfectly clear” successor whose bargaining obligation
attached in late July when, through WSI, it invited WSI
employees to submit job applications. The General

5 The Department of Labor’s rules relating to administration of E.O.
13495 are codified at 29 CFR § 9.1 et seq.
Counsel argues that distributing applications and inviting
employees to sign up for interviews was the same meth-
od that all prior successor employers had utilized, with-
out disruption in service delivery or employment, and
that employees understood the process to be routine and
that their employment would continue uninterrupted.
The General Counsel argues that, in the context of the
“historical practices with various successor employers”
and the obligations imposed by E.O. 13495, the Re-
spondent’s invitation to WSI employees to submit appli-
cations was “essentially” a job offer.
Under NLRB v. Burns Security Services, supra, 406
U.S. at 281–295, a successor is not bound by the substan-
tive terms of a collective-bargaining agreement negotiat-
ed by the predecessor and is ordinarily free to set initial
terms and conditions of employment unilaterally. The
Court explained that the duty to bargain will not normal-
ly arise before the successor sets initial terms because it
is not usually evident whether the union will retain ma-
jority status in the new work force until after the succes-
sor has hired a full complement of employees. Id. at 295.
The Court recognized, however, that “there will be in-
stances in which it is perfectly clear that the new em-
ployer plans to retain all of the employees in the unit and
in which it will be appropriate to have him initially con-
sult with the employees’ bargaining representative before
he fixes terms.” Id. at 294–295.
In Spruce Up Corp., supra, the Board interpreted the
“perfectly clear” caveat in Burns as “restricted to circum-
stances in which the new employer has either actively or,
by tacit inference, misled employees into believing they
would all be retained without change in their wages,
hours, or conditions of employment, or at least to cir-
cumstances where the new employer . . . has failed to
clearly announce its intent to establish a new set of con-
ditions prior to inviting former employees to accept em-
ployment.” 209 NLRB at 195 (footnote omitted).6
In subsequent cases, the Board has clarified that, alt-
hough the Court in Burns, and the Board in Spruce Up,
spoke in terms of a “plan[] to retain all of the employees
in the unit” (emphasis added), the relevant inquiry is
whether the successor “[p]lanned to retain a sufficient
number of predecessor employees to make it evident that
the Union’s majority status would continue” in the new
work force. Galloway School Lines, 321 NLRB 1422,
1426–1427 (1996); Spitzer Akron, Inc., 219 NLRB 20,
22 (1975), enfd. 540 F.2d 841 (6th Cir. 1976), cert. de-
nied 429 U.S. 1040 (1977). See also Adams & Associ-
ates, Inc., 363 NLRB No. 193, slip op. at 3 (2016); Hos-

6 The General Counsel and the Charging Party request that the Board
overrule Spruce Up. We decline to rule on this issue at this time.
DATA MONITOR SYSTEMS, INC. 3
pital Pavia Perea, 352 NLRB 418, 418 fn. 2 (2008), in-
corporated by reference 355 NLRB 1300 (2010).7
Applying the above principles to the facts of this case,
we find that the Respondent did not become a perfectly
clear successor when it (through WSI managers) in-
formed employees that those interested in working for
the Respondent should obtain and complete an applica-
tion and sign up for an interview with the Respondent.8
We find that the Respondent’s distribution of applica-
tions to WSI employees was not the equivalent of an
invitation to accept employment, as argued by the Gen-
eral Counsel. We also find that the Respondent did not
“either actively or, by tacit inference” mislead employees
into believing they would be retained without changes in
their wages, hours, or terms and conditions of employ-
ment. Spruce Up, supra, 209 NLRB at 195.
The record shows that, at the time the Respondent in-
vited WSI employees to obtain applications and sign up
for an interview, the Respondent was in the preliminary
stages of its hiring process and had not yet decided which
WSI employees it intended to hire.9 The application
packets themselves reflected that the Respondent had not
yet made hiring decisions. The documents in the appli-
cation package stressed individuals’ status as “appli-
cants,”10 and did not in any way indicate that simply
completing the application was sufficient to guarantee
employment with the Respondent.11 Further, the WSI

7 For this reason, the judge’s finding that the Respondent was not a
“perfectly clear” successor because it did not intend to hire all of WSI’s
employees was an error. We also do not rely on the judge’s citation to
Paragon Systems, Inc., 362 NLRB No. 166 (2015), in his “perfectly
clear” successor analysis. The issue in Paragon was whether Paragon
lawfully implemented a particular unilateral change as part of its initial
terms and conditions of employment, but the General Counsel did not
allege that Paragon was a “perfectly clear” successor. See id., slip op.
at 2, 6–7.
8 Unlike the judge, we do not consider the communications that the
Respondent made to the Union on August 8 or to applicants at their
interviews because the General Counsel alleges that the Respondent
become a “perfectly clear” successor prior to these communications.
9 The Respondent made its decision about the number of employees
it viewed as necessary for its operations when it submitted its bid for
the contract. After being awarded the contract, the Respondent was
informed of the number of bargaining-unit employees currently em-
ployed by WSI and determined that it would not hire the entire com-
plement of WSI employees.
10 For example, the cover sheet explained that the Respondent would
be “interviewing applicants” and stated that it included forms necessary
to “complete the application process.” The packet also included an
acknowledgement form that individuals were required to sign. The
form included statements that the individual understood that “as an
applicant for a position with this company,” the individual must
demonstrate that he or she is capable of performing tasks which are
pertinent to the job and attesting that the individual is “a genuine appli-
cant for employment.”
11 The Respondent did not distribute or ask applicants to complete
any forms, such as W-4s, suggesting that the Respondent had already
managers who distributed the application packets did not
indicate that completing an application was the only hir-
ing requirement imposed by the Respondent. In fact,
WSI employees were told that employees interested in
retaining their employment had to sign up for an inter-
view time, indicating to employees that the Respondent
was in preliminary stages of the transition process and
had not yet decided which employees to retain.12 In
short, there was nothing about the application packets or
the Respondent’s associated conduct that suggested that
completing the applications was simply an administrative
formality that would ensure continued employment.
Compare Cadillac Asphalt, 349 NLRB at 10 (successor
expressed intent to hire predecessor’s employees when it
asked employees to complete applications and W-4
forms “to update [successor’s] records”); Canteen Co.,
317 NLRB 1052, 1053 (1995) (finding successor “per-
fectly clear” where it “effectively and clearly” communi-
cated its plan to retain employees). The Respondent
simply invited incumbent WSI employees to apply with-
out stating or otherwise indicating that completing appli-
cations would guarantee employment. Because it did
not, in any way, communicate or demonstrate an intent to
retain the employees, the Respondent was under no obli-
gation at that point to make a simultaneous announce-
ment of its intent to change terms and conditions of em-
ployment in order to avoid “perfectly clear” successor
status. Compare Hilton’s Environmental, 320 NLRB
437, 437–438 (1995) (finding “perfectly clear” status
where successor solicited applications from incumbent
employees and stated it intended to hire all employees
without making clear announcement that it intended to
establish new terms and conditions of employment).
Contrary to the General Counsel, we further find that
the obligations imposed by E.O. 13495 do not warrant a
contrary result in the circumstances presented here.13

decided which applicants to hire. Compare Cadillac Asphalt Paving
Co., 349 NLRB 6, 11 (2007).
12 Contrary to the General Counsel’s assertion, no employee testified
that any prior contractor had conducted interviews with the predeces-
sor’s employees prior to beginning operations.
13 As the Board explained in GVS Properties, LLC, employers sub-
ject to “worker retention” statutes such as E.O. 13495 can avoid “per-
fectly clear” successor status by announcing new terms and conditions
of employment prior to or simultaneously with the expression of intent
to retain their predecessors’ employees, consistent with the require-
ments of Spruce Up, supra. See 362 NLRB No. 194, slip op. at 5–6
(2015).
The judge did not mention E.O. 13495 in his analysis, but elsewhere
in his decision he stated that, “[w]hether or not the Respondent violated
[E.O. 13495] or the DOL regulations, is not for me or the Board to
decide. If the Union feels that the Order or the regulations have been
violated, it should refer the matter to the DOL.” The General Counsel
and the Union both except to these statements. While the judge may
have erred in failing to discuss the implications of E.O. 13495 in his
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although the Respondent had a legal obligation to offer
WSI employees the right of first refusal of suitable em-
ployment, E.O. 13495 allows for successors to hire fewer
employees than their predecessors had employed and
gives successors the authority to choose which employ-
ees to hire.14 As discussed above, at the time the applica-
tions were distributed to WSI employees, the Respondent
had not yet determined which WSI employees it was
going to offer the right of first refusal. Nor did it know
which employees, if any, would accept jobs once offers
were made. Given these facts, the Respondent’s distribu-
tion of application packets and its invitation to WSI em-
ployees to apply cannot be viewed as the equivalent of
affirmatively offering employees the right of first refusal.
Again, the Respondent’s actions reflected the fact that it
had not yet made its hiring decisions and did not express
an intent to retain WSI’s employees.
Although there is no evidence that WSI employees
knew of the Respondent’s legal obligations under E.O.
13495, some former WSI employees testified that they
had been through transitions from one contractor to an-
other before and that prior contractors had decided which
employees to retain based solely on seniority. This tes-
timony suggests that some employees might have be-
lieved that the Respondent would decide which employ-
ees to retain based purely on seniority considerations, as
prior contractors had done. However, this mistaken im-
pression was not the result of any affirmative action by
the Respondent.15 Further, we do not think that employ-
ees could reasonably conclude they would be retained
when the Respondent required that employees sign up for
an interview time, a requirement that no prior contractor
had imposed.
In sum, we find that at the time the job applications
were distributed by WSI, the Respondent had not yet
made its hiring decisions and did not express an intent to
retain a majority of WSI’s employees. Accordingly, the
Respondent did not forfeit its right to unilaterally set
initial terms and conditions of employment.
Because we find that the Respondent was not a “per-
fectly clear” successor as alleged in the complaint, we,
like the judge, dismiss the allegations that the Respond-
ent violated Section 8(a)(5) and (1) by failing to utilize
seniority with regard to the layoff of employees and the
assignment of hours of work.

analysis, his statement that the Department of Labor is charged with
overseeing compliance with E.O. 13495 and its associated regulations
is correct. See 29 CFR §§ 9.21–9.24 (2013).
14 There are a limited number of exceptions that are not applicable
here.
15 Nor was it a requirement imposed by E.O. 13495 which, as men-
tioned above, allows successors to determine to which employees it
will offer employment.
ORDER
The National Labor Relations Board orders that the
Respondent, Data Monitor Systems, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with Teamsters
Local Union No. 957, General Truck Drivers, Ware-
housemen, Helpers, Sales and Service and Casino Em-
ployees by failing and refusing to furnish it with request-
ed information that is relevant and necessary to the Un-
ion’s performance of its functions as the collective-
bargaining representative of the Respondent’s unit em-
ployees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Union in a timely manner the infor-
mation requested by the Union on September 15, 2014.
(b) Within 14 days after service by the Region, post at
its facilities at the Wright Patterson Air Force Base in
Fairborn, Ohio, copies of the attached notice marked
“Appendix.”16 Copies of the notice, on forms provided
by the Regional Director for Region 9, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since September 15, 2014.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

16 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading, “Posted by Order of the
National 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.”
DATA MONITOR SYSTEMS, INC. 5
Dated, Washington, D.C. May 31, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with
Teamsters Local Union No. 957, General Truck Drivers,
Warehousemen, Helpers, Sales and Service and Casino
Employees (the Union) by failing and refusing to furnish
it with requested information that is relevant and neces-
sary to the Union’s performance of its functions as the
collective-bargaining representative of our unit employ-
ees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on September 15,
2014.
DATA MONITOR SYSTEMS, INC.
The Board’s decision can be found at
www.nlrb.gov/case/09–CA–145040 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273–1940.
Julius Emetu, Esq. and Eric Brinker, Esq., for the General
Counsel.
John Doll, Esq. (Doll Jansen & Ford), for the Charging Party.
Robert Norman, Esq. (Cheek & Falcone, PLLC), for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on December 2 and 3, 2015, in Cincinnati,
Ohio. The complaint, which issued on August 26, 2015, and
was based upon an unfair labor practice charge filed on January
23, 2015, by Teamsters Local Union No. 957, General Truck
Drivers, Warehousemen, Helpers, Sales and Service and Casino
Employees, herein called the Union, alleges that Data Monitor
Systems, Inc., herein called the Respondent, was awarded a
contract by the Department of the Air Force effective Septem-
ber 1, 2014,1 to provide supply and transportation services at
Wright Patterson Air Force Base, herein called the Base, re-
placing WSI All Star, LLC, herein WSI, which had a contract
with the Union, the exclusive collective-bargaining representa-
tive of the unit employees. It is alleged that since that date, the
Respondent has continued as the employing entity and is a
successor, and/or a perfectly clear successor to WSI and that on
about August 13, the Respondent failed to utilize seniority
when laying off unit employees, and in assigning hours of work
to the unit employees, without prior notice to the Union, result-
ing in the Respondent laying off eleven named employees and
assigning seven named employees to part-time positions, in
violation of Section 8(a)(1)(5) of the Act. It is further alleged
that the Respondent failed to provide the Union with relevant
and necessary information that it requested on about September
15, also in violation of Section 8(a)(1)(5) of the Act.
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent admits, and I find, that it has been an employer
engaged in commerce within the meaning of Section 2(2), (6),

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2014.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and (7) of the Act and that the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE FACTS
Pursuant to its contract with the Air Force, WSI provided
supply and transportation services for the Air Force at the Base
until about September 1. WSI had four identical collective-
bargaining agreements with the Union covering its maintenance
employees, its transportation department employees, its supply
department employees and its personal property employees.
These agreements were effective for the period October 1,
2013, through September 30, 2014.
John Sook, the senior vice president of the Respondent, is
involved in the bidding process for new contracts as well as the
startup of contracts that the Respondent is successful in obtain-
ing. The Respondent put in a bid for the contract to perform
the work that WSI had been performing at the Base and was
awarded the contract on about July 18 to be effective August 1;
the transition period for the Respondent to become familiar
with the Base operation and to interview and hire employees
was August 1 through 31. The Respondent contacted the WSI
project manager and asked him to distribute employment appli-
cations and to set up an initial schedule for employment inter-
views with the incumbent employees for the Respondent. He
testified: “That’s a common courtesy that’s done throughout the
industry.”
In late July or early August, the employees were told by their
project managers that WSI had lost the contract at the Base,
that the Respondent would be taking over the contract effective
September 1, and those interested in working for the Respond-
ent could obtain employment applications from his secretary.
They were also told that the Respondent would be conducting
employment interviews in the area on August 6, 7, or 8, and
that they should sign up for a specific time and to complete
their employment applications by that time.
The interviews were conducted individually by Sook, James
Gustafson, president and owner of the Respondent, and Harvey
Watson, vice president of operations, at a hotel near the Base
on August 7. Roxanne James, who was number two in seniority
in her department, was interviewed by Sook; he asked her about
her work and her family and whether she had any questions for
him, and she said that she didn’t. They shook hands and he said
that the company would be sending letters out in a few days.
Dorothy Washington was interviewed by Gustafson on August
7; he asked her about her job qualifications and what she did
during her leisure time. She asked him if the Respondent would
be hiring by seniority and she testified that he said that he
didn’t know at that time, but that they would be looking at qual-
ifications. Debra Nichols was interviewed by Gustafson on
August 7; he asked her about her experience and she told him
about the work that she performed. At the conclusion of the
interview, he told her that she would be receiving a letter stat-
ing whether they would be hiring her.
Michael Hardin was interviewed on August 8 by Gustafson,
who asked him about his work experience as well as some other
questions. He also asked Hardin if he had any questions for
him, and at the conclusion of the interview, Gustafson told him,
“We’ll be sending out notification letters to inform you whether
or not you’ve got a job.” James Williams was interviewed by
Sook; he explained his qualifications and that he had been em-
ployed at the facility since 2004. Sook told him that he would
be receiving a letter from the company in the mail. James Bea-
ver was interviewed by Sook, who asked about his background
and what work he performed at the Base. Beaver told him of his
background and work experience. At the conclusion of the
interview, Sook told him that he would receive notification
from the company by mail. Thomas Franjesevic was inter-
viewed on August 6 by Watson, who asked him to tell him
something about himself and Franjesevic told him about the
work that he had performed for WSI and that he was good at
what he did. Watson asked if he had any questions for him and
he said that he didn’t. The interview lasted about ten minutes,
they shook hands and he left. Other than Washington, none of
the applicants were told that there would be any change in the
terms and conditions of employment or whether seniority
would be used in selecting employees for employment. On
about August 13, each of these applicants received a letter from
the Respondent saying that they would not be offered employ-
ment at that time.
Sook testified that interviews were scheduled for the evening
of August 6 through the morning of August 8 for the WSI em-
ployees who were interested in continuing their employment at
the facility with the Respondent. Based upon their bid, the Re-
spondent knew that they would require fewer employees than
were employed by WSI and, therefore, they would not be hiring
all of the WSI employees. For each of the employees inter-
viewed, he, Gustafson, and Watson employed general interview
questions that was generated by the company and scribbled
notes on the applicant’s response. At the conclusion of each
interview:
We told them that we’re taking all the interviews today, no-
body is being hired today. What we’re doing is we’re going to
try to make an assessment of the personnel that are available
for inteviews relative to the positions in the organization, that
we would be back in touch with them as soon as possible to
know whether or not we were going to be able to offer them
employment . . .
At the conclusion of the interviews, Gustafson told Sook and
Watson that one applicant, Washington, asked him if seniority
would be employed in the hiring process and he told her that
seniority was not being used because they were going to be
employing fewer people than the incumbent workforce. Gus-
tafson testified that the company’s HR Department gave them a
list of ten questions to ask the applicants, and he followed that
pattern. He specifically remembered interviewing Washington
because she repeatedly asked him if they were going to hire by
seniority, and he responded, “No, we are going to hire based on
qualifications, who we felt the best were because we don’t have
to hire by seniority. We don’t have jobs for everybody at that
site.” He told all those that he interviewed that they were going
to offer employment to the best people they can find. While the
Respondent interviewed all WSI employees who were interest-
DATA MONITOR SYSTEMS, INC. 7
ed in working for the Respondent, it initially offered employ-
ment to sixty of approximately ninety WSI employees.2
On July 23, Donald Minton, business agent for the Union,
received notification from the Air Force that the Respondent
had been awarded the contract to service the Base. On July 24,
he called Watson and told him that he had learned that they had
obtained the contract and asked him for dates for negotiations,
but Watson replied that he wasn’t willing to set up dates yet
because they had not received anything in writing from the Air
Force. Minton then wrote to Watson requesting that he contact
him to set a date prior to the takeover date for them to negotiate
a contract for the employees at the base. Watson did not reply
to this letter. Minton first met Gustafson, Sook and Watson at
the Union hall in Dayton on August 8. He told them that he
would like to schedule dates for the parties to meet and bargain
about a contract and Gustafson told him that they service other
Air Force bases and that they have contracts with Teamster
unions in New Mexico and Oklahoma. He also told Minton
that they were not going to hire the same number of people that
were presently employed by WSI and Minton told him that
WSI had recently rehired twelve “junior people” who were laid
off by seniority about 6 months earlier. Minton testified that
there was no discussion of whether the Respondent was going
to hire employees by seniority or any discussion of the employ-
ee interviews that the Respondent had conducted on the prior
days.
Sook testified that at this meeting, they told Minton that they
had been interviewing employees and they recognized the need
to bargain with the Union for a new contract. Minton asked if
they had completed interviewing employees and they said that
they had. Minton then asked if seniority was going to be used in
determining who would be hired and they said, “that they were
going to hire the best qualified candidates, that we were hiring
less than the total incumbent workforce.” When asked again
what the response was to Minton’s question, Sook testified,
“His answer was no, we are not using seniority as a basis be-
cause we’re hiring less than the full workforce out there.” Gus-
tafson testified that after they had completed the interviews,
they met with Minton in his office on August 8. After the in-
troductions, Gustafson told him that some people had called
him asking about seniority, and Minton asked whether Dorothy
Washington was one of those people. Minton then asked if the
company was going to hire by seniority and Gustafson said no,
that they were going to hire the best applicants that they could
find because they didn’t have jobs for everybody, and that their
bid was for fewer people than had been employed by WSI.
They discussed dates to meet to negotiate a new contract, and
left. On August 12 and August 13, Minton sent emails to Gus-
tafson asking for copies of the employment or non-employment
letters that were sent to the applicants; he testified that he
“eventually” received this information. Beginning shortly after
August 13, when the Respondent’s letters of employment and
non-employment are dated, Minton received telephone calls
from some of the applicants saying that they had received a

2 The WSI seniority list contains the names of ninety employees in
the four departments and there were sixty employment offer letters sent
out as well as ten non-employment letters.
letter from the Respondent saying that they were not being
hired. As some of these applicants were high on the WSI sen-
iority list, he called Gustafson and told him that he can’t violate
seniority in hiring, and Gustafson told him that he could hire
whomever he chooses.
On August 19, Minton sent Gustafson an email stating:
“Please sign extension agreement, date and return to me by
email:”
Dear James:
1. The parties will adhere to all the terms and conditions of the
current Collective Bargaining Agreement and agree to an ex-
tension period of six (6) months ending March 31, 2015: and
2. The Employer will retro any wages and benefits back to the
expiration date of the current Collective Bargaining Agree-
ment; and
3. The Company will continue to negotiate in good faith dur-
ing this period of an extension.
Minton signed the agreement and there was a line for Gustafson
to sign as well. On August 21, Gustafson emailed Minton tell-
ing him that his attorney was reviewing the extension agree-
ment. Later that day, Minton emailed Gustafson saying, “I
thought you told me if I took out number 2 on first extension
you would be ok to sign it and send back to me. Please ad-
vise.” Gustafson responded two hours later: “I sent it over to
the attorney as he wanted to see it. I’m still waiting on his re-
sponse.” The Extension Agreement, as signed by Minton and
Gustafson on August 29, states:
1. Effective as of the date of the last signature below, the par-
ties will adhere to all the terms and conditions of the current
Wright Patterson Air Force Base Collective Bargaining
Agreements between WSI All Star LLC and Teamsters Local
Union No. 957, and agree to an extension period of six (6)
months ending March 31, 2015;
2. Nothing in this letter shall be construed to retroactively
bind Data Monitor System, Inc. to the terms and conditions of
the current Collective Bargaining Agreements; and
3. The parties shall continue to negotiate in good faith during
this period of an extension.
Gustafson testified about why he did not sign the extension
agreement that Minton sent him on August 19:
Because I know that once I sign that, that I have to follow the
terms and conditions of that contract, and I know that before
that happens, I have the right to choose who I’m going to hire
because I’m not going to hire all the employees. I don’t have
to follow seniority, so I wait until I get that all settled and
done before I sign that.
He testified that he does not recall whether he and Minton had
any discussions about the terms of the extension agreement.
Prior to signing the extension agreement on August 29, all of
the interviews had taken place and the employment letters had
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gone out. The parties entered into collective-bargaining agree-
ments effective from December 22, 2014, through August 31,
2018 covering the unit employees.
There is a disagreement among the parties regarding Execu-
tive Order 13495 and Department of Labor regulations as to the
obligations of a successor employer in selecting employees.
Whether or not the Respondent violated this Executive Order,
or the DOL regulations, is not for me or the Board to decide. If
the Union feels that the Order or the regulations have been
violated, it should refer the matter to the DOL.
The complaint also alleges that the Respondent refused to
provide the Union with the information that it requested on
about September 15, which was necessary for, and relevant to,
the Union as the collective-bargaining representative of the
Respondent’s employees, in violation of Section 8(a)(1)(5) of
the Act. Minton testified that after he was informed by em-
ployees who were high on the seniority lists that they had not
been offered employment by the Respondent and that others
with less seniority had been offered employment, he called the
Respondent and spoke to Frank Anderson, Respondent’s pro-
ject manager at the Base and told him that the Respondent
should have laid off the least senior employees and Anderson
replied that the Respondent had the right to hire anybody that it
wanted. Minton had all those who had not been offered em-
ployment out of seniority (Franjesevic, Williams, Hardin, Bea-
ver, Beryl McNabb, Nichols, James, Washington, Wendy
Ligas, and Alex Yones) file grievances alleging that this refusal
to offer them employment violated the contract because it was
not done pursuant to their seniority. In its response to these
grievances, the Respondent stated that at the time that it made
its hiring decisions, it was not bound by the seniority provisions
of the WSI contract with the Union, and that as the grievants
are not employed by the Respondent, they have no legal stand-
ing or contractual right to bring the grievances against the Re-
spondent. By letter to Anderson dated September 15, Minton
wrote:
In order to evaluate the merits of these grievances Local 957
requests the following be produced by the Company:
1. A copy of the Scope of Work document used by the Com-
pany to submit its bid;
2. A copy of the Company’s proposal to the Government to
perform the work covered by the Scope of Work document;
3. A copy of all information, if any, provided to the Company
by the prior employer that relates in any way to the job per-
formance of the bargaining unit employees of the prior em-
ployer, personnel files of the bargaining unit employees of the
prior employer and any other information or documents, in-
cluding electronic documents, received by the Company from
the prior employer that relates in any way to the bargaining
unit employees of the prior employer.
4. All correspondence, including electronic correspondence
between any representative and/or employee of the Company
and any representative, employee and/or former employee of
the prior employer that relates in any way to the bargaining
unit employees of the prior employer.
5. All correspondence between and /or among representatives
and/or employees of the Company that in any way relate to
the bargaining unit employees of the prior employer and/or
relate to the employment decision made by the Company of
bargaining unit employees of the prior employer.
Minton testified that this information was relevant to the Union
in processing these grievances on behalf of these employees.
Gustafson responded to this request by letter dated October 15,
stating, inter alia:
DMS made and implemented a decision not to hire these ap-
plicants prior to the time DMS agreed to be bound by the
terms of the CBA. The request for information therefore re-
lates to persons who are not and never have been bargaining
unit employees of DMS. Such a request for information is not
presumptively relevant.
Additionally, Gustafson alleged that Items 1 and 2 were confi-
dential matters concerning its bid to the Federal Government.
III. ANALYSIS
It is initially alleged that the Respondent failed to utilize sen-
iority when laying off unit employees and when assigning
hours of work to unit employees, in violation of Section
8(a)(1)(5) of the Act. Actually, the alleged violation is the fail-
ure to utilize seniority in choosing which of the WSI employees
it would hire. The Union contract with WSI provides that
layoffs and the assignment of “available work” will be deter-
mined on the basis of classification seniority. The Respondent
did not select employees for employment based upon seniority.
The issue is whether it was obligated to do so.
As the Respondent, in its Answer, admits that it is a succes-
sor to WSI, the real issue is whether it is a “perfectly clear”
successor to WSI as is also alleged in the complaint. In NLRB
v. Burns Intl. Security Services, 406 U.S. 272, 294–295 (1972),
the Court stated:
Although a successor employer is ordinarily free to set initial
terms on which it will hire the employees of a 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 con-
sult with the employees’ bargaining representative before he
fixes terms.
In Spruce Up Corp.,3 209 NLRB 194, 195 (1974), the Board
stated that this “perfectly clear” caveat established by Burns
should
[B]e restricted to circumstances in which the new employer
has either actively or, by tacit interference, misled employees
into believing they would all be retained without change in
their wages, hours, or conditions of employment, or at least to
circumstances where the new employer . . . has failed to clear-

3 Counsel for the General Counsel, in his Brief, requests that I over-
turn the ruling in Spruce Up, supra. That issue is for the Board, not me,
to determine.
DATA MONITOR SYSTEMS, INC. 9
ly announce its intent to establish a new set of conditions prior
to inviting former employees to accept employment.
See also Banknote Corp. of America, 315 NLRB 1041 (1994);
Planned Building Services, Inc., 318 NLRB 1049 (1995); and
Hilton’s Environmental, Inc., 320 NLRB 437 (1995).
After it was awarded the contract, the Respondent requested
WSI to distribute employment applications to, and arrange a
time for interviews for, all employees who were interested in
continuing their employment with the Respondent at the Base
and on August 6, 7, and 8 the Respondent interviewed all of
these incumbent applicants. At the conclusion of these inter-
views, Sook, Gustafson, and Watson told the applicants that
they would be hearing from the Respondent shortly as to
whether they would be offered employment. Some of those
interviewed were at the top of the seniority lists and a rejection
of their applicant would violate the WSI contract’s seniority
provision. Washington, at her interview, asked if they would
be hiring by seniority; she testified that he responded that they
didn’t know at the time, but that they would be looking at quali-
fications. Gustafson testified that he told her that seniority
would not be used because they were hiring fewer people than
had been employed by WSI. Although I do not believe that it
makes much difference in the outcome of this matter, I would
credit Gustafson; the emails between he and Minton regarding
Minton’s insistence on him signing the interim agreement es-
tablishes that he was knowledgeable about the law and it would
be reasonable and prudent for him to tell applicants, who asked,
that they would not be hiring by seniority. For the same reason,
I would credit Gustafson’s testimony that, when asked, he told
Minton that they would not be hiring by seniority. Clearly, he
would not try to hide this fact from Minton; he would have no
reason to do so. The two requirements of “perfectly clear” are
missing: the Respondent told Minton that they would not be
hiring all the employees and told the applicants that they would
hear shortly from the Respondent as to whether they would be
hired. It was therefore not “perfectly clear” that the Respondent
intended to hire all of the WSI unit employees as required by
Burns; in fact, they sent employment offer letters to two-thirds
of the WSI employees. In addition, Gustafson told Minton and
Washington that seniority would not be used in deciding whom
to employ, and told the applicants that they would hear from
the company shortly as to whether they would be offered em-
ployment, which, at the least, is an inference to the applicants
that, at least at that time, it was not going to adopt the terms and
conditions of the WSI contract. I therefore find that the Re-
spondent is not a perfectly clear successor and that the Re-
spondent did not violate Section 8(a)(1)(5) of the Act by its
refusal to use seniority in determining whom to employ in Au-
gust. Paragon Systems, Inc., 362 NLRB No. 166 (2015).
It is further alleged that by failing and refusing to provide the
Union with the information that it requested on about Septem-
ber 15, the Respondent violated Section 8(a)(1)(5) of the Act.
The requested information relates to the Respondent’s bid sub-
mitted to the government, and other information that may have
been used by the Respondent in determining which employees
it would hire. Shortly before requesting this information, the
Union had filed grievances on behalf of the employees alleging
that the Respondent violated the contract by selecting employ-
ees for hire in violation of the contract’s seniority provisions.
Respondent’s principal reason for not providing the Union with
this information, as testified to by Gustafson, is: “I did not con-
sider them part of the bargaining unit because they were never
hired or employed . . . by Data Monitor.”
Section 8(a)(1)(5) of the Act requires an employer to furnish
the union representing its employees with information that is
relevant to the union in the performance of its collective-
bargaining responsibilities, either in the administration of the
existing contract, or in formulating proposals for a new con-
tract. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979).
Information about terms and conditions of employment of em-
ployees in the bargaining unit is presumptively relevant and
necessary and must be produced. However, when the union’s
request concerns information about non-unit employees or op-
erations, there is no such presumption of relevancy to the un-
ion’s representation status, and the union has the burden of
establishing the relevance of the requested information. Ohio
Power Co., 216 NLRB 987 (1975), enfd. 531 F.2d 1381 (6th
Cir. 1976); Duquesne Light Co., 306 NLRB 1042, 1043 (1992).
A union satisfies this burden by demonstrating a reasonable
belief supported by objective evidence for requesting the in-
formation, Knappton Maritime Corp., 292 NLRB 236, 238–239
(1988), and potential or probable relevance is sufficient to give
rise to the employer’s obligation to furnish the information.
Shoppers Food Warehouse Corp., 315 NLRB 257, 258 (1994).
I find that the requested information is clearly relevant to the
Union in processing the grievances and that the Respondent’s
defense that they are not obligated to provide the information
because they never employed the individuals involved has no
merit. This defense “begs the question” as the issue alleges that
the failure to employ them violates the seniority provisions of
the contract. It would be similar to a union arbitrating the dis-
charge of an employee and the employer defending that there is
no requirement to provide the information because he/she is no
longer employed by the company. I therefore find that by re-
fusing to provide the Union with the information requested on
about September 15, the Respondent violated Section 8(a)(1)(5)
of the Act.
CONCLUSIONS OF LAW
1. The Respondent has been 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 meaning of
Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1)(5) of the Act by
refusing to furnish the Union with the information that it re-
quested on about September 15, 2014, which was information
relevant to the Union as the collective-bargaining representative
of certain of its employees.
4. It is recommended that the remaining allegations of the
complaint be dismissed.
REMEDY
Having found that the Respondent violated the Act by refus-
ing to provide the Union with the information that it requested
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on about September 15, 2014, it is recommended that the Re-
spondent be ordered to provide this information to the Union
and to post a notice to this effect.
Upon the foregoing findings of fact, conclusions of law and
the entire record, I hereby issue the following recommended4
ORDER
Data Monitor Systems, Inc., its officers, agents, successors
and assigns, shall
1. Cease and desist from refusing to provide the Union with
the information that it requested on about September 15, 2014,
or in any like or related manner interfere with, restrain or co-
erce its employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action designed to effectu-
ate the policies of the Act.
(a) In a timely manner, provide the Union with the infor-
mation that it requested on September 15, 2014.
(b) Within 14 days after service by the Region, post at its
facilities at the Wright Patterson Air Force Base in Dayton,
Ohio, copies of the attached notice marked “Appendix.”5 Cop-
ies of the notice, on forms provided by the Regional Director
for Region 9, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since August 1, 2014.
(c) 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.
IT IS FURTHER ORDERED that portions of the complaint are
dismissed insofar as it alleges violations of the Act not specifi-
cally found herein.

4 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.
5 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Dated, Washington, D.C. January 19, 2016
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
Choose not to engage in any of these protected activities
WE WILL NOT refuse to provide Teamsters Local Union No.
97, General Truck Drivers, Warehousemen, Helpers, Sales and
Service and Casino Employees (“the Union”) with information
that is relevant and necessary to it in its role as your bargaining
representative.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL provide the Union with the information that it re-
quested on September 15, 2014.
DATA MONITOR SYSTEMS, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09–CA–145040 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.