Delta Carbonate

National Labor Relations Board - Board Decisions

Apr 16, 1992

307 N.L.R.B. 118 (N.L.R.B. 1992)

118
307 NLRB No. 18
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 agree with the judge that the Respondent is a successor em-
ployer. We disavow, however, the judge’s statement that the Su-
preme Court in Fall River Dyeing Corp. v. NLRB, 482 U.S. 27
(1987), attached a certain ‘‘importance . . . to unbroken representa-
tion,’’ which suggested (to the judge) that ‘‘the right to representa-
tion ‘as quickly as possible,’ consistent with the attainment of ‘sub-
stantially normal production’ and other relevant factors, should re-
ceive the greater emphasis.’’ Contrary to the judge’s suggestion, we
did not endorse the judge’s comments drawn from his reading of
Fall River in two recent cases—Williams Enterprises, 301 NLRB
167 fn. 1 (1991), and Bendix Transportation Corp., 300 NLRB 1170
fn. 1 (1990).
3 As discussed infra, we affirm the judge’s finding that the Re-
spondent violated Sec. 8(a)(5) and (1) of the Act by generally refus-
ing to recognize and bargain with the Union, and also by specifically
failing and refusing to bargain with the Union about the Respond-
ent’s decision to subcontract its quarry operations and about the ef-
fects of that decision.
In their joint motion to correct the judge’s recommended Order,
the General Counsel and the Charging Party Union assert that the
judge inadvertently failed to include in his recommended Order cer-
tain cease-and-desist as well as affirmative action language to rem-
edy these unfair labor practices.
We find merit in this motion, and we shall modify the judge’s rec-
ommended Order accordingly.
Also, the judge’s recommended Order includes broad cease-and-
desist language requiring the Respondent to cease and desist from
violating the Act ‘‘in any other manner.’’ We find that a broad pro-
scription is not warranted here. Hickmott Foods, 242 NLRB 1357
(1979).
4 All dates are 1989 unless otherwise stated.
5 In affirming the judge’s finding that the Respondent was a suc-
cessor employer to Bestone, we do not rely on his remark in the pe-
nultimate paragraph of sec. I,B (‘‘Analysis’’) of his decision, that
‘‘[a] quarry is a quarry, a whiting mill is a whiting mill, a truck is
a truck.’’
Delta Carbonate, Inc. and United Steelworkers of
America, AFL–CIO–CLC. Case 5–CA–20419
April 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 14, 1991, Administrative Law Judge Ber-
nard Ries issued the attached decision. The Respondent
and the Charging Party filed exceptions and supporting
briefs, and briefs in response to each other’s excep-
tions. Also, the General Counsel and the Charging
Party filed a joint motion to correct the judge’s rec-
ommended Order.
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, briefs, and the motion
and has decided to affirm the judge’s rulings, findings1
and conclusions2 as modified herein and to adopt the
recommended Order as modified and set forth in full
below.3
1. We agree with the judge that as of the date of
the Union’s February 27, 19894 request to the Re-
spondent that it recognize and bargain with the Union
as the certified collective-bargaining representative of
the unit employees, the Respondent had hired a sub-
stantial and representative complement of employees,
all 21 of whom had been represented by the Union as
unit employees of the Respondent’s predecessor,
Bestone, and all of whom were hired by the Respond-
ent without any break in service between their employ-
ment with Bestone and their subsequent employment
with the Respondent.
Accordingly, we also agree with the judge that the
Respondent was not justified in delaying its recogni-
tion of the Union past February 27 on the asserted
grounds that the Respondent planned substantially to
diversify its product line and expand its customer base,
with an anticipated resultant increase in production and
in the work force. We find that these plans for diver-
sification and expansion were not so certain and pre-
dictable in terms of timing and scope as to warrant the
Respondent’s delaying its recognition of the Union
past the Union’s February 27 demand for recognition.5
In so finding, we note, in addition to the consider-
ations discussed by the judge, the testimony of the Re-
spondent’s director of sales and marketing, Jerry
Gauntt, summarized below.
When the Respondent took over from Bestone on
February 18, it was producing only one type of cal-
cium carbonate filler (designated YS35), about 90 per-
cent of which was being sold under contract to one
customer, Armstrong World Industries, which was in
the floor covering industry. Also, a relatively small
amount of YS35 byproduct (designated YS35F) was
being sold to two other companies in the same indus-
try.
Gauntt testified that almost every application for cal-
cium carbonate filler has its own particular set of spec-
ifications, that there are at least 13 major industrial
markets for the various types of calcium carbonate
fillers, that each market industry requires a different
set of product characteristics, that even particular cus-
tomers within an industry may have different product
specification requirements, and that, therefore, a prod-
uct sold in one market generally cannot be sold in an-
other. By way of example, Gauntt testified that the
product being sold to Armstrong at the time of the Re-
spondent’s purchase of Bestone was not salable in
other markets.
119DELTA CARBONATE
6 Gauntt also described, in essentially the same terms, the Re-
spondent’s development of another new product and new customer
in the roofing industry during the same general March-July time
frame.
7 The instant situation is significantly different from the one ad-
dressed in the Board’s recent decision in Cascade General, 303
NLRB 656 (1991). There, the Board found that the employer had
violated Sec. 8(a)(2) by recognizing a union as the collective-bar-
gaining representative of its employees before the employer had
hired a substantial and representative complement of unit employees.
Unlike the Respondent, the employer in Cascade, as the result of its
acquisition of another, much larger company, had certain and nec-
essary plans to expand its operations immensely and quickly to in-
crease its work force by many times more than the number of em-
ployees it had employed at the time it recognized the union. Thus,
the employer in Cascade had only 14 employees in the bargaining
unit when it recognized the union, but because of its vastly changed
operational and economic situation, the evidence showed that the
employer’s planned expansion would require employing hundreds of
unit employees.
Gauntt further testified that the market for the Re-
spondent’s principal product, calcium carbonate, in the
Respondent’s geographical area was extensive—‘‘al-
most unlimited.’’ He also testified, however, that such
mineral fillers are essentially commodities, albeit rel-
atively specialized ones, and that most customers who
purchase mineral fillers such as calcium carbonate are
interested in obtaining or identifying alternate sources
of supply of equivalent quality product at a lower
price. Thus, Gauntt testified that his primary respon-
sibilities upon arriving at the Respondent in early
March were to develop new customers, to diversify the
product line, and to expand the Respondent’s business
beyond that which existed under the predecessor,
Bestone.
Gauntt described the process of developing new
products and new customers generally as follows.
After an initial contact with a potential customer, the
Respondent would provide the prospect with a sample
of the proposed new product. If the initial sample was
approved by the prospect’s research and development
department, then the Respondent would provide pro-
gressively larger samples. Depending upon the size of
the prospective customer and the industry involved, up
to 40 truckloads of the new product might have to be
provided on a trial basis to determine its acceptability
to the prospective customer. According to Gauntt, ‘‘[i]t
is basically a process of incrementally larger samples
for the evaluation of the material.’’ Along with the ini-
tial 10- to 15-pound sample of the proposed product,
the Respondent generally also provided basic technical
information about the new product’s physical charac-
teristics and chemical analysis. Gauntt testified that
under this process it takes a minimum of 3 months to
develop a new customer.
In recounting the development of a particular new
customer in the roofing industry, for example, Gauntt
testified that he first contacted the customer by tele-
phone in March. About 2 months later, he was able to
provide the new prospect with a sample of a proposed
new product. After the prospect’s research and devel-
opment laboratory had analyzed the sample, with posi-
tive results, Gauntt traveled to the prospect’s plant,
where he had an all day meeting with the prospect’s
purchasing agent. Once the prospect’s laboratory had
agreed theoretically that the proposed new product
could be used, Gauntt then turned his attention to ‘‘the
commercial side of it, where the economics make
sense for them.’’ Gauntt explained that most prospec-
tive customers did not want to proceed with a further
evaluation of the proposed new product after the re-
search and development analysis step, unless it ap-
peared that it would be economically beneficial for
them to do so.
In the particular example described by Gauntt, the
potential for economic success was considered to be
favorable, and in late May the Respondent embarked
on the next phase of new customer and product devel-
opment, which was to provide a truckload sample of
the proposed new product for the prospect to process
through its plant. Ultimately, the prospect accepted the
new product, and in early July the Respondent and the
new customer entered into a contract.6
Gauntt also described the Respondent’s experience
in the development of new products and new cus-
tomers in the cement industry as being very similar to
that in the roofing industry, as described above. By
August, the Respondent had a contract to supply its
first customer in the cement industry, and was also en-
gaged in continuing discussions and new product eval-
uations for other prospective customers in that indus-
try.
In sum, the record establishes that the Respondent’s
immediate postpurchase February plans for extensive
diversification of its product line and significant ex-
pansion of its customer base, with an anticipated re-
sultant substantial increase in production, were depend-
ent on the vagaries of new product development and
new customer cultivation.
There was no timetable in February for the Re-
spondent’s anticipated expansion—nor could there rea-
sonably have been one. Thus, we find that the Re-
spondent’s February plans for diversification of prod-
ucts and expansion in customers were too uncertain
and unpredictable to justify its refusal to recognize the
Union on February 27 on the asserted grounds that it
had not yet hired a substantial and representative com-
plement of employees.7
2. Contrary to the judge, we find that Shift Super-
visors Raymond Hearn, Larry Teal, and Joseph
Kershner are supervisors within the meaning of Sec-
tion 2(11) of the Act and therefore should be excluded
120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 At the time of the Union’s February 27 request for recognition,
Hearn, Teal, and Kershner had not yet been promoted to supervisory
positions, and were among the 21 unit employees that we have
found to constitute a substantial and representative complement of
employees. Consequently, our determination that Hearn, Teal, and
Kershner subsequently became statutory supervisors when they were
promoted in mid-March does not affect our affirmation of the
judge’s finding that the Respondent unlawfully refused to recognize
and bargain with the Union as of February 27.
9 Hearn’s testimony was uncontradicted and was not specifically
addressed by the judge.
10 The judge erroneously found that there was no evidence that
Hearn was replaced as day-shift supervisor following his promotion
to production superintendent.
11 The judge found that when the Respondent began operations (in
mid-February), it had not yet decided to subcontract the quarry oper-
ations. In this regard, the judge found that ‘‘the evidence, while in-
consistent, discloses that the earliest date given for such a decision
[i.e., to subcontract] was ‘late March.’’’ Respondent Official William
Vest testified, however, that although the Respondent did not specifi-
cally decide on Rockcrest Contracting as the particular subcontractor
until late March, the Respondent made its general decision to sub-
contract in early March.
from the appropriate unit in which bargaining is or-
dered.8
John Lizak, the Respondent’s acting general man-
ager at the time in question, testified that Hearn, Teal,
and Kershner were responsible for, inter alia, directing
and disciplining the employees on their shifts, and rec-
ommending to Lizak applicants for hiring. Lizak testi-
fied that Hearn was actively involved in the inter-
viewing and hiring process and that Teal and Kershner
were less involved because they worked on the later
shifts.
Lizak also testified that these three new supervisors
had authority to recommend discharge, although, as
with hiring, Lizak retained final authority over dis-
charge. They also had authority to give employees un-
scheduled time off from work and to discipline em-
ployees as they found it necessary to do so in their
judgment.
Hearn testified that as a shift supervisor he directed
and assigned the three employees on his shift.9 More
specifically, he testified that he approved vacations and
personal days off, determined the need for overtime on
his shift depending upon situations that arose during
the shift, and assigned particular employees to work
overtime. He interviewed applicants for employment
and made recommendations for hiring which were gen-
erally approved by the Respondent.
Hearn testified that he verbally reprimanded em-
ployee Gregory Roehm for repeated tardiness. He also
testified that he recommended the discharge of a plant
operator for poor performance, and that his rec-
ommendation was approved.
Also during his tenure as day-shift supervisor, Hearn
effectively recommended promotions and raises for
employees Steve Guiffrida and Terrance Bowman.
In April 1990, Hearn was promoted again, this time
to production superintendent. At that time, he rec-
ommended to higher management that Ted Halloran be
promoted to replace him as first-shift supervisor. This
recommendation was approved.10 Although neither
Teal nor Kershner testified, the preponderance of the
evidence establishes that their supervisory duties and
responsibilities as second- and third-shift supervisors
were essentially the same as Hearn’s as first-shift su-
pervisor.
In this regard, Hearn testified that after he was pro-
moted to production superintendent in April 1990, he
was the immediate supervisor of Shift Supervisors
Teal, Kershner, and Halloran. Hearn testified that as
shift supervisors, Teal and Kershner made their own
determinations about rewarding or disciplining employ-
ees on their shifts. More specifically, Teal and
Kershner made recommendations to Hearn for pro-
motion or for discipline of particular employees, and
Hearn would simply ‘‘verify’’ the appropriate per-
sonnel forms, by countersigning them, i.e., he made no
independent investigation. Hearn testified that he re-
garded their recommendations for personnel actions
‘‘very highly.’’ Although this testimony pertains to su-
pervisory authority of Teal and Kershner a year after
their promotion to shift supervisor jobs, there is noth-
ing in the record to suggest that Teal and Kershner did
not possess from the time of their promotion in March
1989 the supervisory authority for effectively recom-
mending personnel actions that Hearn specifically testi-
fied they possessed as his subordinates after April
1990. Rather, the clear weight of the evidence is that,
like Hearn, they possessed such supervisory authority
at all material times starting with their promotions to
shift supervisor in March 1989.
Here, the uncontradicted evidence establishes that
Hearn, Teal, and Kershner had the authority, in the ex-
ercise of their independent judgment, to discipline em-
ployees, give them unscheduled time off, and effec-
tively to recommend hiring, promotion, and discharge.
The evidence expressly establishes that Hearn also had
authority to determine whether overtime was required
on his shift, and to assign employees to work overtime.
Accordingly, we find that Hearn, Teal, and Kershner
possessed supervisory authority sufficient to warrant
their exclusion from the unit referred to in the bar-
gaining Order.
3. We agree with the judge, for the reasons he sets
forth, and for the reasons set forth below, that the Re-
spondent unlawfully subcontracted its crushing and
hauling quarry operations to Rockcrest Contracting, a
sister company (but did not unlawfully subcontract its
major stripping requirements), and in conjunction
therewith unlawfully terminated its quarry operations
employees.11
121DELTA CARBONATE
The judge also found that Vest gave conflicting testimony about
whether the Respondent had made its decision to subcontract before
or after it had received certain cost comparison information from
Frederick Barton, owner of the Respondent’s predecessor, Bestone
Corporation. The record shows, however, that the testimony that the
judge found to be in conflict with Vest’s testimony was given not
by Vest but by another Respondent official, Conrad Eiben.
Our clarification of these factual matters does not, however, affect
the result which we reach in this case.
a. The complaint, as amended, alleges (1) that both
the subcontracting of quarry operations and the termi-
nations of quarry operations employees were
discriminatorily motivated in violation of Section
8(a)(3) of the Act, and (2) that the Respondent failed
to bargain with the Union about both the decision to
subcontract and its effects, and about the terminations,
in violation of Section 8(a)(5).
Although the judge found that the terminations of
the quarry-operations employees were discriminatorily
motivated in violation of Section 8(a)(3), and that the
failure to bargain about the decision to subcontract the
quarry operations (i.e., crushing and hauling, but not
major stripping) and its effects violated Section
8(a)(5), he did not make an express finding that the
decision to subcontract the quarry operations in ques-
tion was itself discriminatorily motivated in violation
of Section 8(a)(3), as alleged.
The record establishes that the issue of the Respond-
ent’s motivation for the subcontracting was fully liti-
gated during the hearing, and the judge thoroughly
analyzed the evidence on this issue. He found that the
seven quarry employees who were terminated in con-
junction with the subcontracting were terminated be-
cause of their status as former Bestone employees who
had been represented by the Union, and because of the
Respondent’s desire to reduce the number of such for-
merly represented employees in its work force so as to
avoid a successorship bargaining obligation upon the
Respondent’s attainment of a substantial and represent-
ative complement of employees.
We find that the evidence establishes that the Re-
spondent’s decision to subcontract its crushing and
hauling quarry operations was discriminatorily moti-
vated in violation of Section 8(a)(3), that the judge’s
analysis of the evidence supports that finding, and that
his failure to make an express finding was an over-
sight.
b. In affirming the judge’s finding that the General
Counsel made a prima facie showing that the Respond-
ent was discriminatorily motivated in its decision to
subcontract the quarry operations and to terminate the
quarry-operations employees, we note particularly that
the judge credited the testimony of the Respondent’s
general manager, Kenneth Musselman, about state-
ments made to him by both William Vest (then vice
president for operations of Millington Quarry, Inc.,
which was in effect the Respondent’s parent company
during the startup period in question, with Vest in day-
to-day operational control of the Respondent) and
Thomas Brown (a Millington administrative official
who was active in the day-to-day administration of the
Respondent during this startup period). According to
Musselman’s credited testimony, he heard several
times from Vest and Brown that they did not want to
deal with the Union and that that was the main reason
Rockcrest was there. We find that the statements of
Vest and Brown to Musselman demonstrate the Re-
spondent’s union animus in deciding to subcontract the
quarry operations in question.
c. As further evidence of the Respondent’s union
animus in terminating the quarry-operations employees,
the judge found, and we affirm, that the Respondent
induced the quarry operations employees, all former
Bestone employees represented by the Union, to reject
the Respondent’s offers of other jobs with the Re-
spondent, and to accept instead offers of employment
from the subcontractor, Rockcrest (one of the Re-
spondent’s sister companies within the Millington cor-
porate family). More specifically, the Respondent of-
fered its quarry-operations employees the choice of ac-
cepting lower paying jobs with the Respondent in lieu
of indefinite layoff, or of applying to Rockcrest for
jobs that provided employment at the same rate of pay
as the employees had earned with the Respondent.
None of the seven chose to accept the lower paying
jobs with the Respondent, and all instead applied for
and were immediately hired by Rockcrest to continue
performing essentially the same job duties, with no
interruption in employment or reduction in wage rates.
The Respondent excepts to, inter alia, the judge’s
finding that it induced the quarry-operations employees
to reject its offers of other jobs with the Respondent
by offering less pay. The Respondent argues that the
judge erroneously failed to find that the Respondent
had repeatedly assured all former Bestone employees
working for the Respondent that they would not suffer
any reduction in wages as a result of transferring to
different jobs within the Respondent, and that therefore
the seven quarry employees in question were in fact
not faced with the prospect of lower paying jobs with
the Respondent as an alternative to either indefinite
layoff or employment by Rockcrest.
The record does establish that the Bestone employ-
ees who accepted employment with the Respondent at
the time of the Respondent’s mid-February purchase of
Bestone continued to be paid at the same rates as they
had been paid by Bestone. The Respondent also told
the former Bestone employees at the time of their hire
by the Respondent and in at least two subsequent
group meetings in March and early April (the record
is not more specific), that they would not take a cut
in pay if they were subsequently transferred to a job
122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Although the judge did find that there was record evidence that
the Respondent generally told its former Bestone employees that
they would not receive pay reductions if they transferred from one
job to another with the Respondent, he incorrectly implied that the
crucial focus in this aspect of the case was what, if anything, the
Respondent told its employees about what they would be paid by
Rockcrest if they accepted employment there. But the crucial inquiry
in this aspect of the case is what the Respondent told these employ-
ees about what they would be paid by the Respondent if they stayed
with the Respondent by accepting transfers to the vacant positions
offered to them on April 5.
with the Respondent that called for a pay rate lower
than what the transferee was already earning.12
Those oral statements were, however, contradicted
by a subsequent letter to each employee describing the
jobs to which they could transfer within the Respond-
ent’s own operation. On April 5, the Respondent noti-
fied the quarry-operations employees in writing that
the quarry operations were going to be subcontracted
to Rockcrest effective April 17, that the Respondent
would thereafter have no work for the quarry-oper-
ations employees, but that these employees would be
given the opportunity to transfer into vacant positions
within the company. The vacant positions and their
pay rates were set forth on a form enclosed with the
April 5 letter. The letter further stated that those not
wishing to transfer, or not qualifying for one of the va-
cant jobs, would be placed on indefinite layoff, with
1 week’s severance pay. Finally, the letter advised the
employees that it was ‘‘possible’’ that Rockcrest might
be hiring employees to work under its new subcontract
with the Respondent, and that anyone who was inter-
ested in pursuing a job with Rockcrest should imme-
diately contact that employer. Notwithstanding the Re-
spondent’s earlier general oral assurances of no loss of
pay resulting from job transfers within the Respondent,
the pay rates for the vacant positions shown on the
form enclosed with the April 5 letter were lower than
those which the quarry-operations employees were al-
ready receiving and were lower than the rates then
being paid by the Respondent for comparable jobs, as
specified in the Union’s collective-bargaining agree-
ment with Bestone. With regard to the vacant positions
being offered in lieu of indefinite layoff, the letter stat-
ed, ‘‘Pay rates will be as shown on the enclosed
form,’’ and the form itself states ‘‘Pay rates are as
shown.’’
There is no elaboration or qualification in the April
5 letter or on the enclosed form about the pay rates
shown for the vacant positions listed. Nor does it con-
tain any reference to the oral ‘‘no-loss-of-pay’’ transfer
policy discussed above. Further, the record does not
show that the employees in question were told any-
thing other than what is contained in the letter and the
enclosed form about the particular pay rates for the va-
cant positions.
Thus, whatever general oral assurances the Respond-
ent had given its work force about not suffering a loss
of pay through transferring to jobs with a lower pay
rate, those assurances were substantially negated with
regard to the transfers to the lower paying jobs offered
to the seven quarry-operations employees whose jobs
were being eliminated by the subcontracting. The em-
ployees in question therefore had reasonable grounds
to believe that they would suffer reductions in pay if
they accepted the vacant positions being offered. Their
only apparent alternatives to acceptance of such trans-
fers were either indefinite layoff, or employment with
Rockcrest with no loss of pay or employment. Accord-
ingly, contrary to the Respondent’s contention, the evi-
dence establishes that the laid-off quarry operations
employees were not promised that their wages would
remain the same if they accepted another job with the
Respondent.
4. The judge also found that the Respondent violated
Section 8(a)(5) by failing and refusing to bargain with
the Union about the Respondent’s decision to sub-
contract the quarry operations in question and about
the effects of that decision. We affirm the judge’s find-
ing of this 8(a)(5) violation. In doing so, however, we
do not rely on the reasons set forth by the judge in the
final paragraph of section I,B (‘‘Analysis’’), of his de-
cision. Rather, because the decision to subcontract
quarry operations was discriminatorily motivated in
violation of Section 8(a)(3), we find that it also vio-
lated Section 8(a)(5). Where, as here, such a decision
is motivated by antiunion reasons, an employer is not
exempt from a bargaining obligation under First Na-
tional Maintenance Corp. v. NLRB, 452 U.S. 666,
687–688 (1981). Discrimination on the basis of union
animus cannot constitute a lawful entrepreneurial deci-
sion. Continental Winding Co., 305 NLRB 122 (1991);
Strawsine Mfg. Co., 280 NLRB 553 (1986).
SUPPLEMENTAL REMEDY
We affirm the judge’s recommended remedy, as
supplemented below.
Because the Respondent discriminatorily subcon-
tracted bargaining unit work and unlawfully failed to
bargain with respect to its decision to subcontract that
unit work, we shall require the Respondent to restore
the status quo ante as it existed prior to the unlawful
subcontracting of unit work effective April 17, 1989,
reincorporate into the jurisdiction of the bargaining
unit the subcontracted work previously performed by
unit employees, and make whole those employees who
suffered a loss of wages and benefits as a result of the
unlawful subcontracting. Westinghouse Broadcasting,
285 NLRB 205, 218–219 (1987), enfd. 849 F.2d 15
(1st Cir. 1988); Griffin-Hope Co. 275 NLRB 487,
503–504 (1985). Backpay is to be computed in accord-
ance with F. W. Woolworth Co., 90 NLRB 289 (1950),
123DELTA CARBONATE
13 The remedy applies to both the 8(a)(3) and 8(a)(5) violations,
although it is an appropriate remedy for each violation itself.
14 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
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.’’
with interest computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).13
ORDER
The National Labor Relations Board orders that the
Respondent, Delta Carbonate, Inc., York, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Subcontracting bargaining unit work because its
employees are represented by a union.
(b) Refusing to recognize and bargain with United
Steelworkers of America, AFL–CIO–CLC as the ex-
clusive collective-bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees and
truck drivers at the Respondent’s York, Pennsyl-
vania, facility, excluding office and clerical em-
ployees, executives, professional employees,
watchmen, salesmen, guards, and all supervisors
as defined in the National Labor Relations Act.
(c) Failing or refusing to bargain with the Union
about the March 1989 decision to subcontract quarry
operations and the effect of that decision on the unit
employees.
(d) Discriminating against employees so as to
foreseeably cause discouragement of membership in
labor organizations.
(e) In any like or related manner interfering with, re-
straining, or coercing its 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) Offer Ben R. Myers, Albert E. Ruppert Jr.,
Bruce W. Toomey, Walter L. Elicker, Ira Avery Jr.,
Willard L. Hutson, and Samuel L. Robertson imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights and privileges previously enjoyed, and
make them whole for any loss of earnings and other
benefits suffered as a result of the discrimination
against them, with interest, in the manner set forth in
the remedy section of the decision.
(b) On request, bargain collectively with United
Steelworkers of America, AFL–CIO–CLC as the ex-
clusive representative of all employees in the appro-
priate unit described above, with regard to rates of pay,
hours of employment, and other terms and conditions
of employment and, if an understanding is reached,
embody it in a signed agreement.
(c) Return the work performed by the foregoing em-
ployees (not including any major stripping work) to
the jurisdiction of the bargaining unit and, on the
Union’s request, reinstate the terms and conditions of
employment that existed prior to the Respondent’s
April 17, 1989 subcontracting of unit work.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Post at its place of business in York, Pennsyl-
vania, copies of the attached notice marked ‘‘Appen-
dix.’’14 Copies of the notice, on forms provided by the
Regional Director for Region 5, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained 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.
(f) Notify the Regional Director in writing within 20
days from the date of the receipt of this Order what
steps the Respondent has taken to comply.
MEMBER OVIATT, concurring.
I certainly agree with the view that the Supreme
Court in Fall River Dyeing Corp. v. NLRB, 482 U.S.
27 (1987), rejected any rule that the moment of truth
in determining whether a successor assumes the bar-
gaining obligation of his predecessor is at the moment
of initial operation after the transfer of assets. I also
agree with my colleagues that the Respondent did not
meet the burden of establishing that at that moment of
transfer (or at any time before the request for recogni-
tion) the Respondent had developed an operational or
business plan which detailed the steps the new man-
agers would be taking in the imminent future to create
an enterprise which changed its entrepreneurial core or
character. There was no evidence of a business plan or
a reorganization plan with appropriate time targets es-
tablished for near-term implementation. No market
study was submitted to support any change much less
to support any business plan written or otherwise. The
evidence presented merely shows that operational
changes had occurred, but the evidence is insufficient
to support the claim that those changes were made ac-
cording to a formulated plan to change the operation.
The fact that the employees were hired on a proba-
tionary basis is inconsequential. In short, the proof that
a plan to change the business of the company was in
place on February 27, 1989, the day when the Union
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The initial charge was filed on April 25, 1989; the original com-
plaint was issued on September 29, 1989; an amended charge was
filed on March 7, 1990; and the complaint was amended on March
26, 1990.
demanded recognition, falls far short, in my view, of
the evidence needed to overcome the presumption of
continued representational status expressed in Fall
River.
Even if proof that the Respondent had a legitimate
plan to subcontract were arguably present, as it is not
here, the balance tilts toward finding a violation when
the credited testimony of General Manager Musselman
that the Respondent intended to subcontract to avoid
the Union is added to the scale. Thus I join my col-
leagues in finding the violations here.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT subcontract bargaining unit work be-
cause our employees are represented by a union.
WE WILL NOT discriminate against any employees so
as to foreseeably cause discouragement of membership
in labor organizations.
WE WILL NOT fail or refuse to bargain with United
Steelworkers of America, AFL–CIO–CLC, about our
March 1989 decision to subcontract our quarry oper-
ations and about the effects of that decision.
All production and maintenance employees and
truck drivers at our York, Pennsylvania, facility,
excluding office and clerical employees, execu-
tives, professional employees, watchmen, sales-
men, guards, and all supervisors as defined in the
National Labor Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer to Ben R. Myers, Albert E. Ruppert
Jr., Bruce W. Toomey, Walter L. Elicker, Ira Avery
Jr., Willard L. Hutson, and Samuel L. Robertson im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to subtantially equivalent
positions, without prejudice to their seniority or any
other rights and privileges previously enjoyed, and WE
WILL make them whole, with interest, for any loss of
earnings and other benefits suffered as a result of the
discrimination against them.
WE WILL, on request, bargain collectively with
United Steelworkers of America, AFL–CIO–CLC as
the exclusive representative of all employees in the ap-
propriate unit described above, with regard to rates of
pay, hours of employment, and other terms and condi-
tions of employment and, if an understanding is
reached, embody it in a signed agreement.
WE WILL return the work performed by the fore-
going employees (excluding any major stripping work)
to the jurisdiction of the bargaining unit, and WE WILL,
on the Union’s request, reinstate the terms and condi-
tions of employment that existed prior to our April 17,
1989 subcontracting of unit work.
DELTA CARBONATE, INC.
James P. Lewis, Esq., for the General Counsel.
J. Anthony Messina, Esq., Raymond Kresge, Esq., and Louis
L. Chodoff, Esq. (Pepper, Hamilton & Scheetz), of Phila-
delphia, Pennsylvania, for the Respondent.
David I. Goldman, Esq., of Pittsburgh, Pennsylvania, for the
Charging Party.
DECISION
BERNARD RIES, Administrative Law Judge. This case was
tried in York, Pennsylvania, on April 16–19 and May 23,
1990. Because of the pendency of appeals to the Board of
various of my rulings on subpoena issues, I did not close the
record until September 28, 1990, when the Board had finally
disposed of the appeals. Due to unopposed requests for ex-
tensions of the date for filing briefs, the parties did not file
briefs until on or about January 10, 1991.
The basic issues presented by the amended complaint1 are
(1) whether Respondent was a ‘‘successor employer’’ which,
by refusing since February 27, 1989, to recognize the Charg-
ing Party as the bargaining representative of its production
employees, violated Section 8(a)(5); (2) whether, by subcon-
tracting certain of its work on or about April 17, 1989, with-
out having afforded the Charging Party an opportunity to
bargain about the decision to engage in, and the effects of,
such subcontracting, Respondent also violated Section
8(a)(5); and (3) whether, by terminating the employees en-
gaged in the subcontracted operation for reasons proscribed
by the Act, Respondent violated Section 8(a)(3) of the Act.
I have given careful consideration to the testimony and ex-
hibits presented at trial, although I may not, of necessity,
make express reference to all such material in this decision;
I have taken into account my recollection of the impression
made on me by the witnesses; and I have considered with
care the briefs submitted by the parties. Having done so, I
125DELTA CARBONATE
2 Errors in the transcript have been noted and corrected.
3 All dates hereafter refer to 1989 except as otherwise indicated.
4 Bestone’s four production supervisory employees also transferred
to Delta.
5 The dates I assign to personnel actions hereafter are mostly de-
rived from R. Exh. 10, a summary of personnel actions which does
not pinpoint specific dates on its graph-like format. However, since
we were told that the placement of the data on the exhibit was in-
tended to coincide as nearly as possible with the actual dates, I shall
attempt to guess what those precise dates were. I will not repeat ‘‘on
or about’’ in each such instance, but I intend to imply those words.
make the following findings of fact, conclusions of law, and
recommendations.2
I. THE ALLEGED VIOLATIONS
A. The Facts
In York, Pennsylvania, successive businesses have for
years mined a quarry, 303 acres in size, which principally
produces a mineral called calcium carbonate. Depending on
its purity, color, and the extent of the fineness to which it
is ground by the processing operation, calcium carbonate has
a wide variety of uses, ranging from roof tiles to paint. We
are, at first, most interested in the quarry as operated by Re-
spondent’s predecessor, Bestone Corporation, whose owner
was Frederick L. Barton.
Two methods of mining were used in the quarry by
Bestone: underground mining, which, Barton estimated, con-
stituted 50 percent of the work at the time he sold the com-
pany to Respondent on February 17, 1989;3 and open pit
mining, which accounted for the other half. Underground
gaining is ‘‘significantly’’ more costly than open pit mining.
Had Barton wished to engage in more open pit mining, he
would have been required to ‘‘strip’’ additional layers of
‘‘overburden’’ away from the surface of the quarry in order
to have access to the underlying white rock, which would
then have been ground up as filler according to the specifica-
tion of fineness needed.
Nonetheless, the evidence shows that, at the time of the
gale of assets to Respondent, there were in fact a total of
seven Bestone employees engaged in ‘‘quarry operations’’
(in addition to the three ‘‘underground miners’’). Their duties
are minimally described in the record, and it may fairly be
deduced that they did stripping, using some small stripping
equipment owned by Bestone, and that they operated hauling
equipment to carry exploded rock to the crushing and drying
process after the rock had been blasted by drilling sub-
contractors under contract with Bestone. There, they crushed
and dried the rock.
In addition to the three underground miners and the seven
‘‘quarry operations’’ employees working for Bestone on Feb-
ruary 17, the day before Respondent took over the operation,
Bestone also employed on that date other classifications of
employees: four truckdrivers; six ‘‘milling/sort’’ operators,
who ran the machinery at the ‘‘whiting plant’’ which pulver-
ized the broken rock into various degrees of fineness; and
one full-time rank-and-file maintenance employee.
These 21 employees constituted the production, mainte-
nance, and truckdriver collective-bargaining unit represented
by the Charging Party at Bestone since July 1985, which re-
lationship had produced two successive bargaining agree-
ments. Asked to describe the work of the Bestone employees,
Barton testified that they ‘‘mined and quarried rock, proc-
essed the rock into several products and several byproducts
and further processed certain of the rocks into specialized
fillers.’’ The record shows that most of the fillers produced
by Bestone was gold, for incorporation into flooring prod-
ucts, to Armstrong World Industries, Inc. (‘‘AWI’’), its larg-
est customer, with which Bestone had entered a supply con-
tract for a 20-year term. Bestone also had contract relation-
ships of relatively substantial size with such companies as
General Felt Industries and Owens Corning Fiberglass Cor-
poration, and altogether apparently dealt regularly with a
total of about 10 buyers.
Respondent Delta Carbonate, Inc. is a closely held, newly
created corporation controlled by a firm called Millington
Quarry, Inc. The president and effective owner of both
Millington and Delta is one Gary Mahan, whose Millington
headquarters are located in New Jersey. Millington also con-
trols other affiliates, including Rockcrest Contracting, Inc., of
Blandon, Pennsylvania, to which reference will later be
made.
There seems to be no need to get out the details in stating
that the purchase of Bestone by Delta Carbonate was, due to
an unexpected and brief business opportunity, an extraor-
dinarily hasty piece of work for this type of purchase. Nego-
tiations between the two began in January and were con-
summated in February. However, when the smoke cleared on
February 18, 1989, the day of the takeover date, 21 Bestone
employees continued to work as the sole rank-and-file em-
ployees of Delta Carbonate (they were hired on a proba-
tionary basis, but Respondent’s brief makes no issue of this
fact); one other employee chose to retire.4
Moreover, at least until on or about March 18,5 the Re-
spondent did not hire any employees (B. Estes, a mainte-
nance employee, was the first), although it began to advertise
as early as February 24 in local newspapers for ‘‘laborers,
maintenance personnel, mechanics, and truckdrivers.’’ There-
after, Respondent hired new employees, discharged or laid
off old ones, had a few employees quit, and transferred oth-
ers (some of these actions will be discussed in more detail
subsequently), so that by the week ending April 15, there
were at least 29 employees in the former bargaining unit, and
by April 7, 1990, the last week as to which we have evi-
dence, that number had risen to 38 (21 of which were main-
tenance employees, as compared to only 1 such employee as
of February 1989; this remarkable increase will also be dis-
cussed hereafter).
B. Analysis
The record makes clear that Respondent took over the
Bestone quarry and equipment with the intention of increas-
ing output and expanding the range of carbonate products.
To this end, it hired a sales director and two customer liaison
assistants, made changes in the production and maintenance
processes, spent some serious money in buying and/or acti-
vating equipment which Bestone had not completed installing
or had not used, and, eventually, doubled the capacity of the
quarry to produce crushed carbonate. In addition, Respondent
markets a much larger range of products than Bestone had,
and distributes them over much greater distances than had
Bestone.
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 While the Board in both cases found it ‘‘unnecessary to rely on’’
certain statements made in my analysis, Williams Enterprises, supra
at fn. 1, Bendix Transportation Corp., supra at fn. 1, it refrained
from expressing disapproval of those comments; I do not find, in
any event, that the matters there addressed are of controlling con-
sequence here.
7 ‘‘Stripping the overburden’’ contemplates removing the top layer
of rock to get to the ore valuable ‘‘Super B’’ rock below. The
‘‘whiting plant’’ is where the rock, having gone through the crusher,
is turned into the filler products and graded into various degrees of
fineness for the individual needs of customers.
8 This figure excludes three employees who were assertedly pro-
moted to supervisory status on March 20.
9 The Court distinguished Fall River, the more usual kind of case,
from NLRB v. Burns Security Services, 406 U.S. 272 (1972), in
which there had been no changes except the identity of the em-
ployer.
Despite the gradual changes effected by Respondent in the
operational modes and business orientation of the facility, it
is clear from the precedents that Respondent should be con-
sidered a ‘‘successor’’ employer to Bestone, as the Board
and the courts use the term. I see no need to dwell here on
the legal authorities, since I have attempted to analyze them
recently and at some length in Williams Enterprises, 301
NLRB 167 (1991), and more succinctly in Bendix Transpor-
tation Corp. 300 NLRB 1170 (1990).6 As noted in those
cases, and elsewhere in Board jurisprudence, the material
factor, which the Board reviews in considering the issue of
employment continuity (as opposed to work force con-
tinuity), as the Supreme Court recently stated in Fall River
Dyeing Corp. v. NLRB 482 U.S. 27, 43 (1987):
[W]hether 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; and whether the new entity
has the same production process, produces the same
products, and basically has the same body of customers.
A determination that a ‘‘substantial continuity’’ exists does
not, however, require that the new operation replicate the old
one in all respects; rather, the ‘‘totality of the circumstances
of a given situation’’ will be assessed from the perspective
of whether ‘‘those employees who have been retained will
understandably view their job situation as essentially
unaltered,’’ id. at 43, quoting Golden State Bottling Co. v.
NLRB, 414 U.S. 168 (1973). In Derby Refining Co., 292
NLRB 1015 (1989), the Board reemphasized the importance
of this approach: ‘‘In the successorship situation, the events
must be viewed from the employees’ perspective, i.e., wheth-
er their job situation has so changed that they would change
their attitudes about being represented.’’
In the present case, it is most difficult to conclude that the
employees who came en masse from Bestone to Delta, with-
out losing a day’s pay or changing their work functions or
supervisors (at least for a while), would have changed their
‘‘attitude about being represented,’’ even after some time had
elapsed and some changes had occurred. The employing in-
dustry—the production of fillers from calcium carbonate—
continued in all its essentials without interruption. Employees
still separated and removed rock from earth, hauled it to
processing machinery, ground it into various products, and
transported the output to purchasers. There is nothing here to
persuade that employees would have considered that ‘‘their
job situation has so changed that they would change their at-
titude about being represented.’’ As the Court of Appeals for
the Third Circuit stated in Systems Management v. NLRB,
901 F.2d. 297, 304 (1990), ‘‘In order to prevent the label,
and consequent obligations of, ‘successor employer’ from at-
taching, a fundamental change in the nature of the business
enterprise must occur. It must be more than a mere restruc-
turing of the hours or conditions of employment.’’ (Footnotes
omitted; emphasis in original.)
It is the primary position of the General Counsel and the
Charging Party that when the Union wrote to Respondent on
February 27 to request bargaining (referring to Respondent
as the ‘‘successor employer to Bestone Corp.’’), a bargaining
obligation arose. Respondent did not reply until March 8, at
which time it wrote that the Union’s request was ‘‘pre-
mature.’’ Due, Respondent stated, to the ‘‘rapid and sudden
pace of the transaction’’ by which it had acquired the prop-
erty, it had only begun to ‘‘review the operations and formu-
late our business plans,’’ as well as being in but the ‘‘early
stages’’ of interviewing and hiring employees. While ex-
pressing a desire to ‘‘honor any legal duties we may have,’’
Respondent opined that it was ‘‘simply too early for us to
be able to tell whether or not there are successorship obliga-
tions’’ which needed to be met: ‘‘Our business plans are not
formulated, and we have not yet hired a substantial and rep-
resentative complement of employees.’’ The letter promised,
however, to treat the demand for recognition as a continuing
one, ‘‘and we will respond to it at the appropriate time.’’
The appropriate time turned out to be April 19, when, ac-
cording to a letter of that date from Respondent, ‘‘[a]lthough
the hire of new employees is not complete and there remain
some positions still open, we believe that our staffing levels
are such that we have now reached a substantial and rep-
resentative complement of employees for our ongoing busi-
ness purposes,’’ and, ‘‘upon review of the employee com-
plement, it is clear that the former employees of Bestone
comprise a distinct minority of the work force.’’ This letter
was written 2 days after Respondent’s sister company
Rockcrest Contracting, Inc., had begun operating, under an
unwritten subcontract with Respondent, to strip the overbur-
den in the quarry, to load rock at the quarry or mine, to haul
it to the crusher, to perform the crushing, to haul to the
dryer, and to then haul to the whiting plant.7 The subcontract
to Rockcrest led to the discharge of all former Bestone em-
ployees involved in ‘‘quarry operations’’ (as later discussed,
they were all then hired by Rockcrest and basically continued
without interruption to do the work that they had been
doing). The termination of these 7 employees on April 17
meant that for the first time since the takeover of the oper-
ation on February 18, the Bestone-old-employee/Delta-new
employee ratio arguably fell from a Bestone majority (178–
12) to a Bestone old-employee minority (10-12).
In Fall River, supra, the Supreme Court made reasonably
clear that the determination of successorship is not nec-
essarily made on the first day on which the new enterprise
in launched, but may rather relate to some (variable) time
after the ship has sailed.9 In finding a successorship, the
Court, as has the Board in countless cases before and after
Fall River, examined such factors as ‘‘[The new employer]
introduced no new product line’’; it ‘‘abandoned converting
127DELTA CARBONATE
10 See Fall River, supra: after holding that the new employer was,
in law, a ‘‘successor’’ to the old one, the Court turned to consider-
ation of the ‘‘substantial and representative complement’’ rule with
the prefatory comment: ‘‘We must thus consider if and when peti-
tioners duty to bargain arose.’’ (Emphasis added.)
11 Respondent cites cases which, while factually distinguishable,
stand for the foregoing principle. See, e.g., Galis Equipment Co.,
194 NLRB 799 (1972): ‘‘Rather, the determination must be made on
the basis of all relevant facts and among the matters to be considered
are whether the situation at the moment of transfer is intended to
be permanent or temporary, and if temporary, how different the per-
manent situation will be’’; Myers Custom Products, 278 NLRB 636
(1986) (‘‘When a new employer expects, with reasonable certainty,
to increase its employee complement substantially within a reason-
ably short time, it is appropriate to delay determining the bargaining
obligation for that short period.’’).
12 I note that, in Fall River, the Court approved a Board-selected
‘‘representative date’’ of mid-January 1983, at which time the em-
ployer had hired a shift of 55 employees (36 of them had worked
for the previous employer) rather than the mid-April 1983 date urged
by the successor, which had by then employed the ‘‘full’’ com-
plement for which it had ‘‘hoped,’’ consisting of 107 employees,
less than a majority of whom had been employed by the predecessor.
dying in exclusive favor of commission dyeing’’; and ‘‘Peti-
tioner’s change in marketing and sales . . . .’’ 482 U.S. at
46 fn. 11. All such considerations necessarily refer to some
point in time after the change of employers has first been ac-
complished, and yet they are factored into the overall deci-
sion as to whether the employer is a successor. The perspec-
tive for this determination may therefore be one oriented to
the future.
At the same time, the desideratum of making union rep-
resentation available as soon as fairly possible has given rise
to a rule which may require the extension of recognition at
a time before a new employer has given full effect to his
plans for operational and personnel changes. This doctrine,
referred to as the ‘‘substantial and representative com-
plement’’ rule, can apply in such a manner that even where
a new employer is a ‘‘successor’’ for purpose of ‘‘work con-
tinuity,’’ the old union may not lay claim to a bargaining ob-
ligation if, at the time that a ‘‘substantial and representative
complement’’ came into being, the employees it formerly
represented did not constitute a majority of the unit employ-
ees.10
The Charging Party argues that certain of the Court’s lan-
guage, as well as the rule’s origination in the context of ini-
tial representation elections, makes clear that the doctrine ap-
plies only to fact patterns in which the employer undertakes
a rebuilding process (482 U.S. at 47):
In other situations, as in the present case, there is a
start-up period by the new employer while it gradually
builds up its operations and hires employees. In these
situations, the Board, with the approval of the Courts
of Appeals, has adopted the ‘‘substantial and represent-
ative complement’’ rule for fixing the moment when
the determination as to the composition of the succes-
sor’s work force is to be made. [Emphasis added.]
While Charging Party then proposes that this is not such a
case, and therefore the rule does not apply, the Respondent
vigorously urges the adoption of some such approach in this
case.
I think that the argument advocated by the Respondent re-
flects the correct doctrine. The Fall River opinion authori-
tatively construes the Board’s application of the rule as an
examination into when ‘‘the job classifications designated for
the operation were filled or substantially filled and whether
the operation was in normal or substantially normal produc-
tion,’’ as well as considering the ‘‘size of the complement
on [the Board-selected date] and the time expected to elapse
before a substantially larger complement would be at work
. . . as well as the relative certainty of the employer’s ex-
pected expansion’’ (quoting Premium Foods v. NLRB, 709
F.2d 623, 628 (9th Cir. 1983). The reference to the requisite
‘‘normal or substantially normal production’’ standard, and,
indeed, the contextual implication of one employer taking
over the assets and (most of) the employees of another, indi-
cate that, in all asserted successorship situations, future pros-
pects may have to be taken into account.11 It should also be
noted that the First Circuit Court of Appeals in Fall River
accurately stated that ‘‘[i]n a successorship situation, the bar-
gaining obligation can normally be determined at the time of
transfer or when operations begin.’’ 775 F.2d 425, 430.
The representative rule, stated the Supreme Court in Fall
River, at 47, constitutes an effort to balance ‘‘the objective
of insuring maximum employee participation in the selection
of a bargaining agent against the goal of permitting employ-
ees to be represented as quickly as possible.’’ The impor-
tance which the Court attaches to unbroken representation in
its earlier analysis in Fall River suggests that the right to rep-
resentation ‘‘as quickly as possible,’’ consistent with the at-
tainment of ‘‘substantially normal production’’ and the other
relevant factors, should receive the greater emphasis.12
On brief, Respondent asserts that it had a ‘‘game plan’’
for the York site at the commencement of operations:
[I]t is undisputed that Delta had plans for major, perma-
nent operational and business changes by the beginning
of its operations, all of which were absolutely certain
and all of which implicated major changes in the work
force. More specifically, it is undisputed that when
Delta began its operations, it planned, among other
things, to develop and implement a detailed computer-
ized preventative maintenance program with a large
maintenance hourly staff; to expand and improve the
whiting plant operations by increasing the number of
shifts for plant operators, the number of plant operators,
the number of operator classifications and the direct su-
pervision of the operators; to engage in extensive open
pit development which entailed subcontracting of work
that Delta was unable to do because of the undisputed
lack of necessary equipment and trained manpower; to
expand volume of product sold and to sell 100% of the
product; and to change and diversify the product line
that would be sold to new customers in new markets.
All of these plans represented major changes when
compared to Bestone’s operations and business.
These assertions scarcely square with Respondent’s March
8 letter, supra, which insisted that its ‘‘business plans’’ were
still ‘‘not formulated’’ as of that date. Respondent’s own tes-
timony (about which more later) also shows that it is not true
that when Respondent ‘‘began its operations,’’ it planned to
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The record is quite clear, as Respondent’s own witnesses testi-
fied, that Respondent’s officials were extremely conscious of the
‘‘representative complement’’ rule and of the need to keep careful
track of the proportion of old and new employees in the unit. Many
discussions were held among the management representatives on this
subject. Vest testified that they kept a ‘‘running total’’ of the two
categories, to ‘‘know if we would be in a position to have to bar-
gain.’’ This need not be evidence of an intention to manipulate the
work force for purposes of successorship, but in the present case, I
believe that Respondent entertained such an intent.
The record shows that, under Bestone, three milling operators were
employed on each of two 10-hour shifts, supervised only by Jeff Ar-
nold, the superintendent who worked the first shift. Respondent de-
cided that three shifts would be more appropriate. Operators Hearn,
Teal, and Kershner were then promoted, on or about March 21,
within their probationary 90-day period, to ‘‘supervisory’’ status,
with each assigned to one of the new three shifts. But, until April
11, when the third of three new operators began work, at least one
or more of the three new ‘‘supervisors’’ were ‘‘supervising’’ only
one employee (a former Bestone employee), and thereafter, var-
iously, perhaps two or three at a time. I am most suspicious of the
decision to appoint the three new supervisors so hurriedly. As the
court of appeals noted in Systems Management, supra, 901 F.2d at
305, vigilance must be maintained against the ‘‘intentional manipula-
tion of a work force so as to eliminate the ‘successor employer’s’
obligation to negotiate.’’
I find that Hearn, Teal, and Kershner should not have been consid-
ered 2(11) supervisors during the material period, although Hearn
may later have become one. The evidence as to Teal and Kershner
(who did not even testify) in reference to the initial stages of their
‘‘supervisory’’ roles is general, theoretical, usually conclusionary,
and, at best, demonstrates the sort of leadman-like authority which
fails to satisfy Sec. 2(11). Distillery Workers v. NLRB, 298 F.2d 297,
303 (D.C. Cir. 1961); NLRB v. Security Guard Service, 384 F.2d
143, 146–149 (5th Cir. 1967). Accordingly, I would not find that
Teal and Kershner were removed from the bargaining unit as of
April 19, the date upon which Respondent wrote its letter pro-
claiming the existence of a ‘‘substantial and representative com-
plement.’’ I note that in ‘‘early April of 1990,’’ Hearn was promoted
again, this time to production superintendent. There is no evidence
that his ‘‘day shift supervisor’’ slot was even filled, which further
suggests the jejune quality of the other two ‘‘supervisory’’ positions.
engage in subcontracting in the open pit; the evidence, while
inconsistent, discloses that the earliest date given for such a
decision was ‘‘late March.’’ The cases show that the other
matters are irrelevant, since they only amounted to a ‘‘con-
templated expansion of production capacity not materially al-
tering the nature, purpose, or structure of the employing en-
terprise.’’ Hudson River Aggregates, 246 NLRB 192, 197
(1979), enfd. 639 F.2d 865 (2d Cir. 1980). Whether a pur-
chaser is a successor ‘‘does not focus on whether the new
employer has become a bigger or better business . . . .
Standing alone, the magnitude of change is irrelevant. Unless
the changes affect employees’ attitudes toward representa-
tion, they do not undermine the presumption that the old
union should bargain with the new employer.’’ NLRB v.
Jeffries Lithograph Co., 752 F.2d 459, 465–466 (9th Cir.
1985), enfg. 265 NLRB 1499 (1982), cited with approval in
Fall River, supra.
To determine, however, ‘‘if and when’’ (Fall River, supra)
a bargaining relationship took effect, we must apply the
‘‘substantial and representative’’ doctrine in those cases in
which, from the beginning, the new employer has made defi-
nite plans to increase its complement substantially within a
reasonably short period of time. Miner Industries, 285 NLRB
234, 239 (1987); Myers Custom Products, 278 NLRB 636,
637 (1986). The same approach would logically be called for
when an employer has decided substantially to vary the na-
ture of the employee skills required or the fundamental char-
acter of its operation.
It does not seem to me, however, that the record supports
a showing that, at the commencement of business, Respond-
ent could make any such claim. It is true that Respondent
hoped and intended to increase the scope, both in quantity
and quality, of Bestone’s operation, but, as we have seen,
that general expectation does not suffice to delay recognition
until all of Respondent’s hopes are realized. Looked at more
microscopically, the record shows that Respondent did not
begin business with the sort of predetermined radical
changes, destined to occur within a reasonably brief period
of time, which would warrant fixing the ‘‘substantial and
representative’’ date at a time later than February 27.
Respondent did plan to expand its maintenance staff so
that a preventative maintenance policy could be instituted,
but the timing and need for that expansion was obscure, de-
pendent on the initial installation and repair of machinery
and equipment. While there is no contradiction (and could
not likely be) of the testimony given by William H. Vest,
currently the vice president and general manager of Respond-
ent, that the decision to change from two 10-hour shifts in
the whiting will to three 8-hour shifts was made ‘‘before we
closed the deal,’’ the change was not effected, said Vest,
until ‘‘approximately’’ late March or early April; this again
depended on need, and was also, I think, relatively insignifi-
cant and probably inspired in part by a desire to affect the
composition of the work force by creating, along with the
three shifts, three new ‘‘supervisors’’ who would not be
counted as members of the former-Bestone-employee major-
ity.13
One of the two groups of employees about which discus-
sion is warranted is the ‘‘quarry operations’’ group. As noted
above, this group of seven employees was discharged from
their positions on April 17; the amended complaint alleges
that these discharges violated Section 8(a)(3) of the Act.
Principally, the General Counsel and Charging Party theorize
that the discharges were motivated by a desire to engage in
‘‘intentional manipulation’’ of the work force, Systems Man-
agement, supra.
The record is less than completely explicit as to what sort
of work was performed by the Bestone quarry operations em-
ployees, but it may be deduced that they had done a certain
amount of stripping in the quarry, operated a crushing plant,
dried crushed rock, run front end loaders, operated a water
truck, hauled rock from the mine and the quarry to the crush-
ing plant, and then hauled the product of those labors to the
whiting plant for further disposition. Respondent presented
testimony that since it intended eventually to engage in con-
siderably more stripping than Bestone had, and since major
stripping requires the use of very large and expensive ma-
chines, it was thought to be economical to subcontract the
work to its corporate sibling, Rockcrest Contracting. The evi-
dence shows that it was common to have such stripping per-
formed by a subcontractor.
The problem with Respondent’s explanation, however, is
that the record offers no coherent justification for discharging
the seven quarry operations personnel. According to the
129DELTA CARBONATE
14 The transcript refers to the employee as Allen, but the records
in evidence show that his first name is Ira.
15 No representative of Rockcrest testified at the hearing.
16 This testimony, in turn, contradicts Vest’s later testimony that
owner Mahan made the ‘‘actual decision that Rockcrest would do
it’’ in ‘‘late March.’’
17 In fact, applications for Rockcrest were placed in the pay enve-
lopes of the seven employees.
uncontradicted and credited testimony of Ira14 Avery Jr., he
(as a member of the quarry crew) had been a crusher oper-
ator under Bestone and continued to do similar work when
he went to work for Delta. When he and the other six quarry
workers became employed by Rockcrest, about April 18,
they performed more or less the same work as they had done
for Delta. Moreover, Avery testified that the new equipment
brought into the quarry by Rockcrest was usually operated
by other Rockcrest employees, not the former Bestone-Delta
employees.
At the hearing, Respondent exerted such effort (success-
fully, I thought) in attempting to establish that it was both
reasonable and customary in the industry to subcontract out
stripping work. But examination of John Lizak Jr., a
Millington employee who served as the acting general man-
ager of Respondent for the first 7 or 8 weeks of its existence,
showed that the ‘‘major stripping’’ in which Respondent in-
tended to engage was accomplished in a matter of 3 or 4
months, with a seemingly insignificant amount of ongoing
stripping thereafter.
The question thus arises: since Rockcrest could perform
the bulk of the stripping in a few months with its own ex-
pensive equipment, and since the Delta quarry employees
who transferred to Rockcrest evidently played no part in the
major stripping work but instead, under the banner of
Rockcrest, continued to perform essentially the same duties
that they had done for Delta, why was it necessary, or sen-
sible, to contract out the crushing and hauling and related
work, ultimately to be done by the former Delta employees
now employed by Rockcrest?
Respondent would presumably answer this question by,
inter alia, pointing to the March 20 written bid purportedly
submitted by Rockcrest,15 which provides prices for equip-
ment and labor for ‘‘Stripping Overburden,’’ ‘‘Load at quar-
ry or Mine,’’ ‘‘Haul to Crusher,’’ ‘‘Crushing,’’ ‘‘ Haul to
dryer,’’ and ‘‘Haul to Whiting Plant,’’ and further pointing
to an estimate, dated April 13, made by Barton in answer to
an earlier request by Conrad Eiben, Respondent’s comp-
troller, for a cost breakdown of what Bestone’s expenses
would have been in 1988 for the same work. Barton’s re-
sponse, while noting that Bestone’s records were not main-
tained so as to provide accurate figures for the categories re-
quested, attempted, ‘‘based upon standard estimated equip-
ment costs,’’ to compile a ‘‘reasonably accurate estimated
cost breakdown for the various activities.’’ On the same day,
after hand-delivery of Barton’s letter, Eiben drew up a com-
parison between ‘‘Bestone Cost’’ and ‘‘Rockcrest Quote’’
which showed the latter costing less than the former in all
six operational categories shown, by an overall per-ton dif-
ference in excess of 27 percent.
Eiben testified that they had ‘‘been looking for this letter
from Mr. Barton for quite a while’’ because Respondent was
‘‘quite anxious to make the comparisons.’’ But he later testi-
fied that he had already discussed with Barton ‘‘the idea of
subcontracting out this part of the work’’ and had received
from Barton verbally ‘‘some numbers’’ which he asked Bar-
ton to put in writing so that he would have ‘‘a document to
make a comparison.’’ After receiving these numbers in writ-
ten form on April 13 and drawing up the comparison, he
conveyed the latter to General Manager Musselman and Vice
President Vest.
Vest’s testimony on this subject was quite inconsistent. At
first, he said that, after acquisition, the question of whether
to purchase the stripping equipment or to subcontract the
stripping was something that ‘‘they had to decide,’’ which is
why he asked Rockcrest for a quote. He did not explain why
he also had Rockcrest make a bid for the five other functions
named above. But the testimony given by Respondent’s wit-
nesses leaves no doubt that it would have been foolish to buy
the expensive equipment needed for just 3–4 months of
heavy stripping; that Vest would even consider that to be an
option is baffling.
Vest further testified that he had ‘‘already made the deci-
sion to subcontract before’’ he received Barton’s letter, and
that he just wanted it to ‘‘verify [his] own experience and
thoughts.’’ This testimony is in direct conflict with Vest’s
other indications that he ‘‘couldn’t make this business deci-
sion until Mr. Barton got [his] this information’’ and that
they were looking at the document he drew up on April 13
as ‘‘a basis for comparison for making a decision.’’16
That, contrary to this latter line of testimony, the decision
was made sometime before receipt of Barton’s April 13 letter
is clearly demonstrated by the following events. In a letter
dated April 5, distributed to all Delta employees, then-Gen-
eral Manager Musselman wrote, in part:
For the past several weeks, we have been reviewing the
open pit quarrying and primary and secondary crushing
operations to determine whether or not it is better to
subcontract these aspects of our operations to an out-
side subcontractor. Based upon our review of the oper-
ations and as part of our initial restructuring, we have
decided that it would be more efficient and economic
to subcontract these operations. We have received bids
for the subcontracting and have awarded a contract to
Rockcrest Contracting . . . .
The letter went on to say that the affected employees
would be given the opportunity to transfer into certain vacant
positions in other departments (as shown on an attached
form); that those who did not apply or qualify for a vacancy
would be placed on indefinite layoff and given a week’s sev-
erance pay; and that ‘‘[i]t is possible’’ that Rockcrest (which
was already performing ‘‘certain removal work’’ on site)
would hire the terminated personnel to do the Delta Car-
bonate work, a matter which, the employees were told,
should be taken up with Robert Forbes, president of
Rockcrest.17 The attached form showed that Respondent had,
by chance, exactly seven vacant positions as of April 5: three
plant helper jobs, at $8 per hour; two sorging plant operators,
paying $9.50; one over-the-road driver, compensated at ‘‘%
of haul + existing time rate’’; and a maintenance laborer po-
sition earning $10 an hour.
As matters turned out, however, all seven of the quarry
workers applied to and were hired by Rockcrest, and appar-
130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 R. Exh. 16, a list of cost savings for the period April 19–July
31 prepared by Vest allegedly in the course of business, shows a
saving (by subcontracting to Rockcrest) of $13,682 for stripping as
compared, e.g., to $108, 541 for crushing .
19 There were differences. Ira Avery, who offered the most de-
tailed testimony on this subject, testified that he and two other mem-
bers of the seven-man group performed short-distance rock hauling
when they began work for Rockcrest, whereas previously Avery had
been a rock crusher operator with Delta, another employee had driv-
en a water truck, and the third had driven a water truck and per-
formed other jobs. Rockcrest had brought four large trucks on the
site, and these were used for rock hauling. There is some second-
hand evidence by a consultant named Keating who had heard that
the Bestone trucks were in bad shape and beyond resurrection, but
the fact is that Delta bought the trucks and Delta used them until
April 17. The record does not support a conclusion that the hauling
had to be subcontracted in April because of the condition of the
Delta trucks.
20 If he were to be believed, Musselman gave testimony that would
itself make General Counsel’s case. Musselman testified that
Millington official Thomas Brown told him in early April about his
concern that Respondent maintain a majority of new employees, and
that Brown also expressed his belief that the seven quarry crew
members would not be interested in taking the proffered jobs with
Respondent, but would rather work for Rockcrest. Musselman also
testified, inter alia, that he had heard ‘‘several times from Mr. Vest
and from Mr. Brown that they didn’t want to deal with the Union
and that was the main reason why Rockcrest was there’’; present at
one of the conversations was Robert Stewart, president of York
Building Products Company. Brown denied the substance of
Musselman’s testimony. Vest and Stewart similarly denied the por-
tion of the testimony involving them.
The credibility resolution is not an easy one. Musselman was dis-
charged by Respondent and, at the time of the hearing, had filed suit
claiming nonpayment of a promised bonus. He needed to be re-
freshed by his affidavit to recall some of his testimony, and I was
made uneasy by the vacillation in other testimony by him about the
extent to which he played a part in the decision to subcontract. On
the surface, however, he seemed a most reliable and honest citizen.
I thought that the demeanor of Brown and Vest was somewhat less
impressive. Seemingly the most credible witness in the group was
York Building’s Robert Stewart, who made an excellent impression,
but even he worried me: after saying that he did not recall that Vest
had told him the reason for subcontracting and that if Vest had men-
tioned the purpose of avoidance of the union, he believed he would
have recalled that, he replied less than decisively, when again asked
if Vest had made such a statement, ‘‘Not that I know of, no.’’
I do not think that a resolution of Musselman’s credibility is re-
quired in order for General Counsel to prevail on this issue. If, how-
ever, I felt obliged to make such a resolution, I would favor
Musselman, not only because of his demeanor, not only because of
ently continued to work for Rockcrest at least until the hear-
ing (there is nothing in the record to suggest the contrary).
Leading the list of suspicious features here is the contrast
between Vest’s testimony that he had decided upon subcon-
tracting before he received Barton’s April 13 letter, but none-
theless wanted that letter ‘‘to verify [his] own experience and
thoughts,’’ and then made up a comparison sheet showing
that Rockcrest’s offer was less expensive than Bestone’s esti-
mated experience; and the evidence that on April 5, Re-
spondent had already announced to its employees that it had
‘‘awarded a contract to Rockcrest Contracting’’ (which, in
fact, was currently performing ‘‘certain removal work’’ on
the site). What businessman, having already entered into
such a contract, would go through such a charade? Obvi-
ously, the Barton letter and the comparison sheet were
brought into being to serve as exhibits in this proceeding.
As for that comparison sheet, while it is somewhat opaque
to this layman and there is no record explication of the un-
derlying documents, it is not difficult to spot some very
anomalous figures. For example, Barton, using ‘‘standard es-
timated equipment costs,’’ somehow nonetheless arrives at
estimates which are consistently higher than Rockcrest’s
quotations, and Vest neatly displays these disparities (e.g.,
‘‘Hauling to dryer/fine plant Bestone Cost 1.30 ton Rockcrest
Quote .52 ton’’). What Vest fails to note here is that Bar-
ton’s $1.30 per ton estimate is based on hauling 125 tons per
hour, while Rockcrest’s 52 cents is predicated on 280 tons
per hour. It is clear from the way in which Barton gives al-
ternative prices, as well as other record sources, that the
price per ton decreases as the number of tons increase (for
this same work, Barton estimated that at 75 tons per hour,
the cost is $2.16 per ton). Vest, however, ignores this factor
in making his comparison.
Moreover, assuming the relative accuracy of Barton’s
‘‘standard estimated equipment costs,’’ the differences be-
tween the Barton and Rockcrest figures are inexplicable. For
instance, while Barton shows the basic cost of ‘‘Haul to
crusher’’ for two haulers and their drivers at a total of $150
per hour, Rockcrest’s figure is $l15 per hour. That is a stag-
gering difference of $1400 for a 40-hour week, or about
$70,000 a year, for the two haulers, and on its face is pro-
foundly suspicious.
In sum, taking this background into account, I entertain
grave doubts about the legitimacy of the motivation for dis-
charging the seven quarry operators. At the hearing, Re-
spondent concentrated on the cost of purchasing stripping
equipment, but stripping was, evidently, only a minor cost.18
No good reason appears for firing the seven employees, who
were then engaged by Rockcrest to perform essentially the
same basic functions they had done for Delta.19 The likely
reason, rather, is that Respondent was attempting to position
itself so that it could declare, as it did on April 19, that the
former Bestone employees constituted a minority.
Respondent contends that any such conclusion is improper,
particularly in view of the fact that it offered the seven em-
ployees the (coincidentally) seven jobs with Respondent that
were open then. There is force in this argument, but it seems
probable that Respondent thought it likely that most or all of
the seven employees would not accept the offers. As General
Manager Musselman testified, the seven employees had been
operating mobile equipment in the quarry and the new jobs
with Respondent would be located (with the obvious excep-
tion of the over-the-road driver) in the whiting plant. More-
over, the April 5 message made quite clear that the pay rates
for the seven Delta vacancies ranged only from $8 (for three
of the jobs) to $10, which rates were lower than those that
had been received by the employees under the Bestone bar-
gaining agreement (see Tr. 111, G.C. Exh. 7, p. 21, and G.C.
Exh. 17) and being offered by Rockcrest (see Tr. 371).
While Respondent’s brief repeatedly asserts that the employ-
ees were told that if they transferred from one job to another,
they would receive no lower pay, this argument is based on
testimony relating to what Bestone employees were told
about employment by Delta of former Bestone employees,
rather than employment by Rockcrest of former Delta em-
ployees.20
131DELTA CARBONATE
his willingness to make admissions in Respondent’s favor (such as
that relating to his understanding that Respondent intended from the
start to expand the facility), but also because the testimony of
Musselman is consistent with the other evidence, especially Re-
spondent’s conceded and intense interest in the composition of the
work force (Eiben testified that he was periodically asked during the
spring by Brown, Vest, and Musselman to calculate the relative pro-
portion of old and new employees in the unit, and that Brown called
him some five times from Millington to check the ratio while Re-
spondent might argue that it was merely complying with its promise
to the Union to track the elusive ‘‘substantial and representative
complement,’’ that is not what management was focused on; its con-
tinuing interest was in the proportion of new to old employees. How
it came about that Respondent wrote on April 19, 2 days after the
termination of the seven employees, that it had reached what it con-
sidered a ‘‘substantial and representative’’ complement, was never
explained.).
21 Cases replied on by Respondent are not in point in this respect.
In Galis Equipment Co., 194 NLRB 799 (1972), the Board found
that the succeeding employer’s employment of the complement was
‘‘only a temporary expedient to enable it to perform its undertaking
to complete [the predecessor’s] work in progress,’’ after which it in-
tended to use a different hourly work force to produce a different
kind of product. In St. John of God Hospital, 260 NLRB 905 (1982),
Continued
On the basis of the foregoing discussion, I conclude that
General Counsel has made a sufficient showing to support
the inference that the Union status of the seven employees
was a ‘‘motivating factor’’ in the Respondent’s decision to
terminate them, and I further conclude that Respondent has
not shouldered its burden of demonstrating that the same ac-
tion would have taken place in the absence of the protected
status of these workers. NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 401 (1983). The terminations
therefore violated Section 8(a)(3) and (1).
The remaining category of employees in the unit worth
discussing is the maintenance group. As earlier noted, Re-
spondent’s Exhibit 10 shows that Bestone employed only one
rank-and-file maintenance employee (and the testimony is
that there was a maintenance ‘‘supervisor’’ over him); em-
ployee Hearn, however, appearing for the Respondent, testi-
fied to three maintenance employees having worked for
Bestone. I am not sure what to make of this. As time passed
after the takeover, the maintenance force substantially in-
creased, according to Respondent’s Exhibit 10. That docu-
ment shows that nine more maintenance workers were hired
between March 15 and April 28. Through quits and, as well,
layoffs, the total number of maintenance employees plum-
meted to 4 by July 7, and then began gradually rising until,
as of April 7, 1990, there were 21 maintenance employees.
Testimony by former acting General Manager Lizak re-
ferred to Respondent’s ‘‘obsessive’’ concern with preventive
maintenance, which included a newly adopted computerized
program and which reflected an approach quite different
from that of Bestone. However, 21 maintenance employees
seem rather disproportionate to the equipment changes shown
in the record. The real explanation for the magnitude of the
increase appears to lie in the testimony of General Manager
Vest that Delta now services two sister companies, Rockcrest
and Penrock, for maintenance; Penrock’s former four mainte-
nance employees now work for Delta as part of the ‘‘central-
ized maintenance group’’ and Penrock rents maintenance em-
ployees from Delta; the same is apparently true for
Rockcrest. Thus, the figures are evidently inflated by the for-
mation of this ‘‘centralized group,’’ but we know little else
about it: how it operates, when it was formed, or the degree
of commitment of particular employees to particular compa-
nies.
I have concluded that, under the precedents, there existed
a ‘‘successorship’’ which required extension of recognition
by Respondent to the Union. In Fall River Dyeing, the Su-
preme Court approved the finding by the court of appeals
that a substantial and representative complement was reached
when the succeeding employer ‘‘had hired employees in vir-
tually all job classifications, had hired at least 50 percent of
those it would ultimately employ in the majority of those
classifications, and it employed a majority of the employees
it would eventually employ when it reached full com-
plement.’’ 482 U.S. 27, quoting 775 F.2d 425, 431–432 (em-
phasis added). In the present case, each element of those
tests (though they need not be the only ones) was met as of
February 18, and I further find that Respondent was in ‘‘sub-
stantially normal production’’ as of that day. The fact that
Respondent discharged the seven quarry operations employ-
ees on April 17 is irrelevant, especially in view of ny conclu-
sion that the discharge of all these employees was effected
with an eye toward doctoring the composition of the work
force and therefore violated Section 8(a)(3). Similarly, the
fact that over a year after the purchase of the quarry, the Re-
spondent finally closed out the underground mine (transfer-
ring two of the three miners to the whiting plant) is not rel-
evant to whether the former Bestone employees were entitled
to earlier representation; nor does the eventual expansion of
the maintenance group affect the right of the employees to
prompt recognition of their Union, for the reasons given
above.
The record discloses that Respondent invested considerable
sums in this project. In addition to the purchase of assets
from Barton, Respondent spent more than $1,411,000 on the
operation in 1989 and budgeted $2,300,000 for additional
capital investment in 1990. But the fact that Respondent ex-
pected to grow bigger and better does not, in and of itself,
preclude a finding of successorship. ‘‘Significant changes in
the scope of the new employer’s business are to be consid-
ered, but alone they do not negate the possible successorship
status of the new business,’’ 775 F.2d at 429. In Fall River,
as earlier indicated, the employee complement had doubled,
as the new employer had hoped, 3 months after the date cho-
sen by the Board as the ‘‘substantial and representative com-
plement’’ date. ‘‘The critical inquiry is whether any changes
in operation have significantly altered the employees’ work-
ing conditions, the employment relationship, and correspond-
ingly, the employees’ expectations and needs with regard to
representation.’’ Ibid. In my view, no such changes can rea-
sonably be said to have occurred. A quarry is a quarry, a
whiting mill is a whiting mill, a truck is a truck. The em-
ployees who left Bestone on February 17 and began work for
Respondent on February 18 saw no difference in their work
functions on the latter date or for many months thereafter;
even the employees who went to work for Rockcrest did not
leave the site; the major part of the stripping was finished
in 3 or 4 months; and life only changed in ways which, I
would surmise, could not reasonably have been anticipated
by the employer to have affected the employees’ desire for
representation.21
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a representation case, the employer had budgeted for specific num-
bers of classified employees whom it expected to hire within 4–5
months, after an unanticipated decline in employment in these
groups prior to the hearing. In Myers Custom Products, 278 NLRB
636, 637 (1986), it was held appropriate to delay determining the
bargaining obligation only when the ‘‘new employer expects, with
reasonable certainty, to increase its employee complement substan-
tially within a relatively short time’’ (the Board distinguished, id. at
637 fn. 3, Pacific Hide & Fur Depot, 223 NLRB 1029 (1976),
where ‘‘the record did not reveal that, when the respondent com-
menced operations, it knew how many employees it would need or
how long it would take to hire the work force.’’). A major difference
between the present case and Norton Precision, 199 NLRB 1003
(1972), is that the old employer manufactured valve lifters by an
automated method for a single buyer, while the new one, inter alia,
produced hand-assembled lifters for race cars. 22 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
Finally, I conclude that the subcontracting of the quarry
work (with the exception of major stripping) without bar-
gaining with the Union about this decision and its effects,
violated Section 8(a)(5) of the Act. As I understand Collat-
eral Control Corp., 288 NLRB 308 (1988), the Board holds
that in a situation similar to this one, the General Counsel
need not ‘‘sustain a burden of showing that the decision
turned on labor costs,’’ ibid., but rather that, for 8(a)(5) pur-
poses, Fiberboard Corp. v. NLRB, 379 U.S. 203 (1964), gov-
erns. While none of the parties argue the issue, it appears to
me that under Fiberboard, the duty to bargain on this subject
arose here. The remedy for the seven employees involved
does not differ from that arising from the 8(a)(3) finding, but
in addition the remedy for the 8(a)(5) violation also encom-
passes a formal reincorporation of the subcontracted work
into the jurisdiction of the bargaining unit. 288 NLRB at
311.
CONCLUSIONS OF LAW
1. Delta Carbonate, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. United Steelworkers of America, AFL–CIO–CLC is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By refusing, after February 27, 1989, to recognize and
bargain with the Union as the exclusive collective-bargaining
representative of the employees in the unit described below,
the Respondent has violated Section 8(a)(5) and (1) of the
Act.
4. The appropriate bargaining unit consists of:
All production and maintenance employees and truck
drivers at Respondent’s York, Pennsylvania, quarry, ex-
cluding employees working in and/or engaged as office,
clerical, watchmen, executives, salespersons, guards and
supervisors.
5. By discharging its quarry operations employees on April
17, 1989, for reasons proscribed by the Act, Respondent vio-
lated Section 8(a)(3) and (1) of the Act; and by failing and
refusing to bargain about the subcontracting decision which
resulted in these discharges, and about its effects, Respond-
ent violated Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
The customary cease-and-desist order should be entered
and the traditional notices should be posted.
Having found that Respondent, on April 17, 1989, unlaw-
fully discharged Ben R. Myers, Albert E. Ruppert Jr., Bruce
W. Toomey, Walter L. Elicker, Ira Avery Jr., Willard L.
Hutson, and Samuel L. Robertson, and failed to bargain
about the decision to subcontract and its effects, I shall rec-
ommend that it be ordered to offer them immediate and full
employment in their former jobs, without prejudice to their
seniority and other rights and privileges, and to make them
whole for any net loss of earnings and benefits they may
have have suffered from the above dates to the dates of Re-
spondent’s offers of employment, with interest, in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), and New
Horizons for the Retarded, 283 NLRB 1173 (1987).22
[Recommended Order omitted from publication.]