Eye Weather

National Labor Relations Board - Board Decisions

Jun 30, 1998

325 N.L.R.B. 973 (N.L.R.B. 1998)

973
325 NLRB No. 183
EYE WEATHER
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.
Further, in affirming the judge’s finding that the Respondent, as
a successor employer, violated Sec. 8(a)(5) and (1) of the Act by
refusing to recognize and bargain with the Union, we note that the
Respondent, at the time it began its operations, employed at the least
a substantial and representative complement of unit employees.
2 We shall amend the judge’s Conclusions of Law to correct an
inadvertent error and to accurately reflect the date the Union became
the exclusive bargaining representative of the Respondent’s employ-
ees.
Eye Weather, Sole Proprietorship and Service Em-
ployees International Union, Local 100, AFL–
CIO. Case 16–CA–18583
June 30, 1998
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
On March 2, 1998, Administrative Law Judge Rich-
ard J. Linton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 as modified and to adopt the recommended
Order.
In its exceptions, the Respondent contends, inter
alia, that it had no obligation to recognize and bargain
with the Union because the bargaining relationship be-
tween the Union and the predecessor employers was
tainted from the beginning. The Respondent argues
that the initial recognition of the Union by another
contractor about 6 years earlier was unlawful because
it was based on authorization cards solicited by a su-
pervisor.
We reject this defense. Section 10(b) of the Act con-
fines the issuance of unfair labor practice complaints
to events occurring during the 6 months immediately
preceding the filing of a charge. The Board has held,
in light of the Supreme Court’s decision in Local
Lodge No. 1424, IAM, AFL–CIO (Bryan Mfg. Co.) v.
NLRB, 362 U.S. 411 (1960), that a respondent may not
defend against a refusal-to-bargain allegation on the
ground that the original recognition, occurring more
than 6 months before charges had been filed in the
proceeding raising the issue, was unlawful. See North
Bros. Ford, Inc., 220 NLRB 1021 (1975), and cases
cited therein. Any such defense is barred by Section
10(b), which, as the Court explained in Bryan, was
specifically intended by Congress to stabilize bargain-
ing relationships.
Applying this principle to the instant case, we find
that the Respondent is barred by Section 10(b) of the
Act from attacking the validity of the predecessor em-
ployers’ relationships with the Union because such a
defense relies on alleged events that occurred outside
the 10(b) period. Accordingly, we agree with the judge
that the Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to recognize and bargain with the
Union.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 1:
‘‘1. The Respondent, Eye Weather, a Sole Propri-
etorship, is an employer within the meaning of Section
2(2), (6), and (7) of the Act.’’
2. Substitute the following for Conclusion of Law 4:
‘‘4. Since March 1, 1997, the Union has been the
exclusive bargaining representative of Eye Weather’s
employees in the following appropriate collective-bar-
gaining unit:
All employees employed by Eye Weather at the
Winkler County Airport in Wink, Texas, taking
weather observations, excluding supervisors.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Eye Weather, a Sole Pro-
prietorship, Wink, Texas, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Robert G. Levy II, Esq. for the General Counsel.
Polly K. Montgomery, Owner, of Palacios, Texas, for the Re-
spondent, Eye Weather.
Kenneth J. Schneider Jr., Union Representative, of New Or-
leans, Louisiana, for the Charging Party, Local 100.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This is a
successorship case. On March 1, 1997, under a contract with
the FAA, Eye Weather took over the work of taking weather
observations at the Winkler County Airport at Wink, Texas.
The work previously had been performed by Midwest
Weather, Inc., also under contract with the FAA. Midwest
Weather had a collective-bargaining agreement with the
Union. On March 1–2, 1997, Eye Weather hired Midwest’s
bargaining unit personnel and continued the operation unin-
terrupted. On April 12, 1997, the Union orally demanded
recognition. By letter dated April 16, Eye Weather declined
to recognize and bargain. Finding Eye Weather to be a suc-
cessor employer of the business enterprise, an enterprise that
also carried with it the obligation for the successor employer
to recognize and bargain with the incumbent Union, I find
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974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are for 1997 unless otherwise indicated.
2 References to the one-volume transcript of testimony are by vol-
ume and page. Exhibits are designated G.C. Exh. for the General
Counsel’s and R. Exh. for Respondent’s. There are no union exhib-
its.
3 NLRB Form 4668, the summary of standard Board procedures
for unfair labor practice trials, attached to the complaint, begins the
fifth paragraph with this sentence: ‘‘An official reporter will make
the only official transcript of the proceedings, and all citations in
briefs and arguments must refer to the official record.’’ (Emphasis
added.)
that, as alleged, Eye Weather violated Section 8(a)(5) and (1)
of the Act on April 16, 1997 when it refused to recognize
and bargain with the Union. I order it to do so.
I presided at this 1-day trial (Sep. 2, 1997) in Odessa,
Texas. Trial was pursuant to the July 22, 1997 complaint and
notice of hearing (complaint) issued by the General Counsel
of the NLRB through the Regional Director for Region 16
of the Board. The complaint is based on a charge filed, and
thereafter twice amended, by Service Employees Inter-
national Union, Local 100, AFL–CIO (Union or Local 100),
against Eye Weather, the Respondent. Although the charge,
as amended, alleges violations of Section 8(a)(1), (3), and (5)
of the Act, the Government’s complaint contains only a sin-
gle violation allegation, that being the allegation that Eye
Weather violated Section 8(a)(5) and (1) of the Act when,
by its letter of April 16, 1997, it refused to recognize and
bargain with the Union. Admitting the refusal, Eye Weather
denies violating the Act.1 Presumably the 8(a)(1) and (3) al-
legations of the charge were either withdrawn or dismissed,
but no amended charge, with such matters deleted, was filed.
As amended at trial (1:10–14), the pleadings, both com-
plaint and answer, were amended so as to establish that the
Board has both statutory and discretionary jurisdiction over
Eye Weather and that Eye Weather is a statutory employer
and that the Union is a statutory labor organization. As the
amended pleadings further establish, Eye Weather, a sole
proprietorship located at Palacios, Texas, operates weather
observatory stations, one of which (the operation involved
here) is located at the Winkler County Airport at Wink,
Texas.
Five witnesses testified before me. The General Counsel
called Polly K. Montgomery (Respondent’s owner), Union
Representative Kenneth J. Schneider Jr., and Judy Whitson
(a former weather observer at Wink, and terminated by Eye
Weather on May 2; 1:73, Montgomery).2 The Government
then rested, as did the Charging Party. (1:160–161.) Eye
Weather then called Eddie Brite (an official with the Na-
tional Weather Service at Midland, Texas), Sylvester Hernan-
dez (Eye Weather’s supervisor at Wink), and Owner Mont-
gomery (questioned by her trial assistant, Dean Haney). Eye
Weather then rested. (1:269.) There was no rebuttal stage.
The General Counsel and Eye Weather filed posthearing
briefs. Because I strike Eye Weather’s brief as untimely
filed, I do not reach certain statements in Eye Weather’s
brief, including the several references to matters outside the
official record.3 Although the briefs were not due until Tues-
day, October 7, 1997 (1:270), the General Counsel mailed
his brief on Friday, October 3. Eye Weather’s brief, however,
by Montgomery’s own certificate of service, shows that she
did not mail Respondent’s brief until the due date itself. As
shown by the date stamp on the face of the document, Eye
Weather’s brief was not received at the office of the Atlanta
Judges Division until (Friday) October 10, 1997—3 days
late. The Board’s rules consider a brief timely filed if it is
mailed before the due date even though it is not received
until after the due date. Delta Mechanical, 323 NLRB No.
5, slip op. at 2 (Feb. 26, 1997). I so commented on the
record, and Montgomery indicated her understanding. (1:8,
270–271.) In short, Montgomery is in no position to plead
ignorance of the rules. In fact, the circumstances give all the
appearances that Montgomery, rather than mailing Eye
Weather’s brief on Monday, October 6 (which would have
rendered her filing timely even if not received until Friday,
October 10), deliberately delayed the mailing an extra day
(to the due date of October 7) so that she could have time
to reply to points made in the Government’s brief, a brief
she apparently received that Monday, October 6.
In Delta Mechanical, as I there recite, I accepted and con-
sidered the Respondent’s brief even though it, too, was not
sent (by Federal Express) until the due date. The big dif-
ferences there, however, are that Respondent caused a cour-
tesy copy to be hand-delivered to me on the due date, and
nothing indicated that the delay was deliberate and for the
purpose of reading or responding to the Government’s brief.
So far as is shown there, the General Counsel mailed the
Government’s brief the day before the due date. Thus, noth-
ing indicates that the Respondent there was able to receive,
read, reply to in Respondent’s brief, and mail Representa-
tive’s brief, including the copy hand delivered to me, all in
the same day. In short, Respondent’s mistake there appears
to have been innocent and resulting in no advantage for the
Respondent.
Here the General Counsel’s brief was mailed a bit early.
Whether that slightly early mailing can be treated as an invi-
tation for the opponent to read and reply in the opponent’s
brief, I need not decide, because Eye Weather was not able
to insert her reply pages and get her brief postmarked by the
day before the due date. In short, by delaying her mailing
in order to reply, Eye Weather’s brief was mailed late and
filed late. [Oddly, the General Counsel did not file a motion
for leave to file his own reply brief, which a party, with
leave, may do. See Fruehauf Corp., 274 NLRB 403, JD fn.
2 (1985).]
Because Respondent’s brief here was filed untimely, and
because, unlike in Delta Mechanical, it appears that Eye
Weather deliberately delayed filing its brief in order to take
advantage of the Government’s early filing, and to reply to
points made in the Government’s brief, I shall not consider
Eye Weather’s posthearing brief which was not filed until
October 10, 1997—3 days late—and I shall strike it.
On the entire record, including my observation of the de-
meanor of the witnesses, and after consideration of the brief
filed by the General Counsel, I make these
FINDINGS OF FACT
A. Facts
1. Continuation of the work force
For some years before March 1, 1997, Midwest Weather,
Inc. was the Federal Aviation Administration’s (FAA) con-
tract weather service observer for the airport at Wink, Texas.
(1:11, 130.) Midwest’s contract ended at the close of Friday,
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975EYE WEATHER
February 28 when the hands of the clock struck midnight. At
that same moment, as Saturday, March 1, 1997, began, Eye
Weather took over the operation of observing the weather at
the Wink airport for the FAA. (1:11.) This was pursuant to
the FAA’s November 26, 1996 solicitation of bids, Eye
Weather’s December 5, 1996 bid, and the FAA’s February
10 award to Eye Weather. (G.C. Exh. 2 at A1.)
During its tenure at Wink, Midwest had enjoyed contrac-
tual relations with the Union. A copy of the January 1, 1994
through December 31, 1996 collective-bargaining agreement
is in evidence as one of the several attachments to the FAA’s
solicitation. (G.C. Exh. 2 at J44; R. Exh. 12.) As reflected
by the amended pleadings (1:14–15), the following described
employees constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act:
All employees employed by Eye Weather at the
Winkler County Airport in Wink, Texas, taking weather
observations, excluding supervisors.
Other than the name of Eye Weather, the stipulated bar-
gaining unit is the historical bargaining unit represented for
years by the Union. (G.C. Exh. 2 at J45; R. Exh. 12 at 2.)
Midwest staffed its operation with five unit employees, plus
one supervisor. (Charles Cooper, 1:50, 55.) The bargaining
unit workforce consisted of Sylvester Hernandez, Ruben
Lujon, Benjamin F. Pierce (a part-time employee), Kenneth
Wheeler, and Judy Whitson. (1:134, Whitson.) As described
by Montgomery, during the evening hours just before March
2, and into the first hours of March 2, she met with the em-
ployees, they applied for work with Eye Weather, Montgom-
ery hired the five, with a probationary period of 90 days, and
explained the pay and benefits to them. She told them that
a Clifton Green would be the new supervisor, and that addi-
tional employees would be reporting for work. (1:48–55, 81,
92, 233–235, 249.) Within a day or two, Montgomery
learned that Green would not be available to work at Wink,
and she therefore appointed Sylvester Hernandez as the su-
pervisor. (1:92.)
According to Montgomery, she hired several other em-
ployees, including Dean Haney (1:42, 232), around February
20, but for various reasons they were not available to start
work until much later, with Haney’s first day at work (1:42,
256, 267) at Wink, not being until May 8. Indeed, Montgom-
ery fixes May 8 as the date when she finally had her ‘‘full
complement’’ of weather observers, full time and part time,
in place. (1:252–253, 257–259.) This is based on her pref-
erence of having some six to eight, including part time, rath-
er than the required minimum of five, so that she would not
have to pay any overtime. ‘‘Sometimes I have eight; some-
times I have six. You know, it just depends.’’ (1:82–88, 257,
259.)
I do not credit Montgomery regarding the hiring she
claims to have done in February. No documents were offered
(such as employment applications, letters of hire, W–4 forms,
I–9 forms, insurance forms) and none of the claimed hirees,
including Dean Haney, testified in corroboration—and Haney
was present at the trial assisting Montgomery. The first out-
sider who came in and worked did not begin work until
April 3. Haney apparently was employed elsewhere for Eye
Weather, and also served as Eye Weather’s representative in
communicating with the Union (as I discuss shortly). Mont-
gomery may well have had some generalized idea of later
hiring some additional weather observers at Wink. But as
Montgomery admits (1:89–90), when Eye Weather took over
the operation at Wink, the only workers Eye Weather had on
duty for the first 3 weeks of operation were the same five
who had been working for Midwest: Sylvester Hernandez
(the supervisor), Ruben Lujon, Benjamin F. Pierce, Kenneth
Wheeler, and Judy Whitson.
Respecting the matter of the employees hired by Eye
Weather, I note that Eye Weather’s contract with the FAA
contains a paragraph of some relevance under the heading,
‘‘Contract Employees.’’ That paragraph reads (G.C. Exh. 2
at H3):
The contractor shall submit a list of all employees by
name who are to work at this site no later than fifteen
(15) days after receipt of contract award. A list of all
employees is required quarterly, or immediately when
there is a change. The list must contain the date of em-
ployment and the date of termination of each employee.
A copy of the list shall simultaneously be mailed to the
System Requirements Branch, and the Contracting Offi-
cer’s Representative. See Section J, Attachment J–3,
List of Contract Employees. The Contractor and his
employees shall be subject to all rules and regulations
relative to entering and leaving the buildings and
grounds.
Attachment J–3, List of Contract Employees, apparently
what would be pages J28–29, are missing from General
Counsel Exhibit 2. Although Attachment J–3 would be a
blank form, presumably Eye Weather complied with the re-
quirement specified by the contract and submitted a com-
pleted Attachment J–3 to the FAA ‘‘no later than fifteen (15)
days after receipt of contract award.’’ That receipt appears
to have been around Tuesday, February 18. (1:34, 38–39,
Montgomery.) Two weeks from then would have been Tues-
day, March 4, a date following the hires Montgomery made
the evening of March 1/March 2. In short, that completed
document, presumably on file with the FAA, should show,
according to the contract, the names of employees who had
been hired by March 4 or 5, 1997. None of the parties, ap-
parently, saw fit to subpena this document from the FAA.
Based on the findings I have made, I further find that the
completed Attachment J–3, which presumably is on file with
the FAA, shows only the names of those whom Montgomery
hired on March 1 and March 2, and none of those whom she
contends that she hired in February 1997.
There is no dispute that the continuing work force used the
same weather observation equipment and instruments under
Eye Weather as they had been using as employees of Mid-
west. Eye Weather did use some forms that were different.
(1:130–134, Whitson.) Indeed, the contract provides for the
FAA to provide all the equipment used for observing the
weather. (G.C. Exh. 2 at G1–2.)
2. The request for recognition
When Midwest lost the contract for Wink, Midwest and
the Union, who were in the process of negotiating new wage
rates for a renewal contract, terminated their negotiations.
(1:116, Schneider.) [Although Union Representative Schnei-
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976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
der recalls that this was on March 1 (1:117), it more likely
was some days earlier, in February, after Midwest presum-
ably received a notice that it was not the successful bidder.]
Schneider testified that Dave Capasso, the Union’s represent-
ative who had been negotiating with Midwest, advised him
[and this possibly was on March 1] to write Eye Weather to
introduce himself and to request negotiations. (1:95.) On
April 2, Schneider sent Montgomery a letter (1:56, 95), the
text of which reads (G.C. Exh. 3):
This letter is to inform you that we have a majority
of the workers that are employed as Weather Observers
at the Wink, Texas station.
These employees have expressed a desire to become
Union, and we are very happy to have them as our
members.
Your cooperation and immediate attention to this
matter is [are] deeply appreciated. We would like to re-
solve this issue within five (5) days.
If you need any more information, you may reach
me at (504) 943–8864, Ex. 156.
For some reason, Schneider’s letter does not identify
Schneider (other than at the closing) or expressly request bar-
gaining, the topics suggested by Capasso. The additional fail-
ure to mention successorship has a probable explanation, one
which I reach in the next paragraph.
As Schneider testified, after the 5 days had elapsed, and
he had not heard from Montgomery, he went to his superior,
Chief Organizer Wade Rathke, and asked whether he should
file for an election or do something else. ‘‘I didn’t know
what to do. I was a new representative.’’ (Emphasis added.)
Rathke told Schneider that there already was a contract there
and that, if Eye Weather was not going to negotiate, Schnei-
der should file charges with the Board. (1:98–99, 120–121.)
This conversation, I find, was about Friday, April 11.
About, as I find, Saturday, April 12, Schneider telephoned
Eye Weather and spoke with Montgomery. (1:58, Montgom-
ery; 1:95-96, 115, Schneider.) The content of that conversa-
tion is disputed. Schneider testified that, on reaching Mont-
gomery, he introduced himself, as a representative of the
Union representing the employees, ascertained that she had
received his letter, and gave a short speech about what the
Union had done in fighting ASOS. (1:96.) [ASOS is an acro-
nym for Automated Surface Observation System, a comput-
erized instrument system that can be used in lieu of human
observers. (1:29–32, Montgomery.)] Schneider then said that
he had spoken to his chief organizer and learned that Mid-
west had a collective-bargaining agreement before Eye
Weather had taken over, and that the Union wanted to re-
negotiate the contract Eye Weather, keeping the language,
but renegotiating on wages and health and welfare and the
duration.
Montgomery said that she knew of no union members at
the station, and that she preferred that he discuss the matter
with Dean Haney who, while not an attorney, would be rep-
resenting her. Montgomery added that she thought it inappro-
priate to discuss wages and other matters ‘‘if we don’t even
have union members here.’’ Schneider assured her that there
were union members at Wink. Montgomery said that if the
Union had members then why was Schneider scared of a
vote. Schneider said he was not scared of a vote, but that
had already been done in the past and now there was no
need to do it again because there is a successorship. In any
event, there was a collective-bargaining agreement and all
the Union wanted to negotiate was wages and to do it quick-
ly. Schneider offered to fax a proposal, but Montgomery in-
sisted that he speak to Haney. She gave Schneider Haney’s
phone number. That ended the call. (1:97–98, 106–107,
Schneider.)
In Montgomery’s version, which I do not credit to the ex-
tent it is materially different from Schneider’s, the ASOS
topic was discussed, and Schneider said the Union rep-
resented a majority of the Wink employees, and that Eye
Weather had two options, either to recognize the Union and
negotiate, or to take a vote. [Schneider specifically denies de-
scribing such as options. 1:106] Montgomery said she had no
problem with a vote. She does not recall Schneider’s ever
mentioning the labor agreement between Midwest and the
Union, and she knows that Schneider never used the term
‘‘successor.’’ She asked that Schneider speak with Dean Har-
vey. (1:58–63, 67.)
In crediting Schneider over Montgomery, I count his ad-
mitted inexperience as support for the less than smooth man-
ner in which the Union’s approach developed. First, Schnei-
der’s April 2 letter, already delayed from Capasso’s March
1 suggestion that he write Eye Weather, does not expressly
mention the introduction which Capasso suggested. Second,
the letter’s second-paragraph references to ‘‘have expressed’’
and ‘‘we are very happy’’ could be interpreted as meaning
that Schneider had been busy persuading the majority at
Wink to sign membership cards before he sent his letter to
Eye Weather. Third, his April 2 letter does not expressly re-
quest negotiations. Fourth, the letter does not mention the
concept of successorship. The latter two major discrepancies
are explained by his inexperience, and he apparently was
educated in his April 11 session with Chief Organizer
Rathke. The first item also can be attributed to someone who
is new at his job. As for taking the time to organize, that
is what union organizers do. The important factors are that,
in his April 12 telephone conversation with Montgomery
(following Schneider’s schooling the day before), Schneider
requested bargaining and expressly relied on successorship.
Finally, and of great importance, Schneider appeared to be
a sincere witness. By contrast, Montgomery appeared insin-
cere and, at times, evasive. At other times Montgomery an-
swered questions calling for simple answers with vague and
ever-changing responses. She gave the impression that she
was calculating the impact of her answers on the merits of
her case, and, if perceived to be necessary, responding in a
disingenuous manner in order to avoid divulging information
that she perceived might damage her defense.
A few days after his April 12 telephone conversation with
Montgomery, Schneider reached Haney by telephone.
(1:101.) Haney said he was aware of the earlier conversation.
Schneider asked to negotiate. Haney said that Eye Weather
wanted an election. Schneider said no because the Union had
a contract and simply wanted to open it up to renegotiate the
wages. Haney said that Montgomery reported that Schneider
had offered options, one being an election. Not so, Schneider
replied, stating to Haney that, while he had explained to
Montgomery that there are such things as elections where
employees (vote to) determine whether there is going to be
a union, here there had already been an election and that the
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977EYE WEATHER
4 As Schneider later explains, his reference to a previous election
was based solely on the fact that his chief organizer so told him.
(1:110.) It appears, however, that there was never an election, and
that recognition was by one of the earlier contractors based on cards
solicited by a supervisor. (1:227–230, Hernandez.)
5 It does mention ‘‘Successor Contract’’ in sec. I (G.C. Exh. 2 at
I7, at sequential p. 29), but that is in terms of sequence, not in the
labor-law concept.
Union has a collective-bargaining agreement. Haney said that
Eye Weather preferred to have an election. Schneider replied
that ‘‘an election is not even an option with us. We already
had an election.4 We already have a union in place there. We
have a collective-bargaining agreement in place.’’ Schneider
went on to say that the contract mentions successorship5 and
that there ‘‘are rules of successorship if you hire the major-
ity,’’ and that the ‘‘Union has successorship’’ because Eye
Weather took over a successor contract, and that Midwest’s
contract (with the FAA) ‘‘had a union agreement,’’ an agree-
ment which Eye Weather had used in calculating [as Mont-
gomery concedes, 1:38] wages and benefits for its bid, and
now the Union wanted to renegotiate those wages because
there were none expressed for the years 1997 through 2000.
Haney said he would give his answer in writing. (1:102–
105.)
By letter dated April 16 (a letter approved by Montgom-
ery, 1:62), Haney wrote Schneider the following text (G.C.
Exh. 4):
This is in response to your letter of April 2 and your
follow-up telephone conversation with Ms. Montgom-
ery. During that conversation Ms. Montgomery asked
what you expected her to do concerning your letter. In
response, you informed her there were two options: one
was to take a vote and the other was to recognize you
as having a collective-bargaining agreement and nego-
tiate a contract.
Eye Weather respectfully declines your proposed op-
tion of recognition and negotiation. However, Ms.
Montgomery endorses conducting a vote. I am submit-
ting a petition to the NLRB for a secret ballot election
to determine if your majority claim is factual.
When shown this letter at trial, Schneider specifically de-
nied the first-paragraph claim that he had given Montgomery
two options, one being a vote. (1:106.) As mentioned, I have
credited Schneider, and I do so respecting his specific denial
as well as generally.
The original charge in this case, which was filed on April
4, complains of threats and a reduction of hours, all in viola-
tion of Section 8(a)(1) and (3). The first amended charge of
May 5, a date occurring after the April 16 refusal to recog-
nize and bargain, added the 8(a)(5) allegation (specifically
relying on ‘‘successorship’’). [While the charge was not filed
until something over 2 weeks would have elapsed after the
Union received Haney’s letter of April 16, I note that
Schneider signed the first amended charge of May 5 on April
22. Thus, the ‘‘successorship’’ allegation was no afterthought
by Schneider.]
3. Type of weather observer certification
At trial, Montgomery argued that Kenneth Wheeler and
Judy Whitson could not be part of the bargaining unit be-
cause they did not have the proper certificate for observing
the weather at Wink. (1:68, 76.) That is, the contract calls
for the observers to be certified by the NWS (National
Weather Service) ‘‘to take official aviation weather observa-
tions.’’ (G.C. Exh. 2 at C1.) Further, ‘‘c. It is the contrac-
tor’s responsibility to insure that all employees are certified
in taking weather observations.’’ (G.C. Exh. 2 at C3.)
Eddie Brite, the NWS official, testified that the certificate
required for weather observers at Wink is, and was during
the relevant time, an ‘‘aviation’’ certificate. (1:163, 167.) An
‘‘aviation’’ certificate, Brite testified, is different from a
SAWRS certificate which is not applicable to Wink. (1:167–
169.) Brite testified that a SAWRS observer was not legally
qualified to take weather observations at Wink. (1:171–172,
182.) To take official weather observations at Wink, the ob-
server must be properly certified by the FAA. (1:194; R.
Exh. 5.) During the relevant time, the certificates possessed
by Kenneth Wheeler (R. Exh. 6) and Judy Whitson (R. Exh.
2) were SAWRS certificates. Wheeler and Whitson, Brite
testified, were not legally qualified to take weather observa-
tions at Wink. (1:182–183.) Eye Weather therefore argues
that Wheeler and Whitson are not to be counted as part of
the bargaining unit. (1:179.)
Brite does not know whether the FAA expunges observa-
tions recorded by someone who was not properly certified.
(1:174.) Nor does he know what sanctions, if any, the FAA
imposes on a contractor who is employing an observer who
does not have the proper certificate. (1:194–195.) Brite has
not sought any sanctions against Eye Weather. (1:207.) If a
SAWRS observer were taking remedial training to upgrade
to an aviation certificate, whether that observer could remain
during training or have to be removed is a question to which
Brite has no answer. (1:208–209.)
Earlier I quoted from the contract about it being the con-
tractor’s responsibility to ensure that all employees are cer-
tified in taking weather observations. After an orientation pe-
riod by the FAA, when certification examinations can be ad-
ministered by the contract officer’s technical representative
(COTR) of the FAA, ‘‘if additional employees need to be
certified the Contractor shall make arrangements with the
COTR and shall have the certification examination and com-
petency tests administered to them.’’ (G.C. Exh. 2 at C3.)
Moreover, during operation of the contract, ‘‘the Contractor
is to take corrective action to assure [that quality control]
standards are maintained.’’
In short, the contract’s language suggests that, so long as
a contractor (Eye Weather, here) is taking steps to remedy
some deficiency, whether in the quality of observations being
made or in the type of certification held by a weather ob-
server, it appears (on this record) that the FAA would not
automatically declare the observations recorded, at Wink, by
a SAWRS observer to be invalid (much less to demand that
the contractor fire the observer). Accordingly, I find that
Kenneth Wheeler and Judy Whitson are properly counted in
the bargaining unit.
According to Montgomery, on April 3 Chester B. Alford
III and John McLaughlin began working for Eye Weather at
the Wink airport. (1:46–47, 257.) Dean Haney, as earlier
noted, began work on May 8. (1:42, 256.) May 8, 1997 is
when Montgomery considers that she had her ‘‘full com-
plement’’ of employees in place. (1:253, 257–259.)
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978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 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.’’
B. Discussion
Reference to when a ‘‘full complement’’ of unit employ-
ees is in place, or even of a ‘‘substantial and representative
complement,’’ is not relevant when the situation, as here, in-
volves an immediate, or near immediate, transfer of the work
force to the new employer and the business proceeds without
any interruption and without any ‘‘start up’’ time of stag-
gered hiring of the initial work force. See Banknote Corp. of
America v. NLRB, 84 F.3d 637, 644–647 (2d Cir. 1996);
Torch Operating Co., 322 NLRB 939 (1997). Accordingly,
I find, as alleged, that Eye Weather was a successor em-
ployer, in the labor-law sense, to Midwest Weather, and that
Eye Weather violated Section 8(a)(5) of the Act on April 16,
1997 it refused to recognize and bargain with the Union.
CONCLUSIONS OF LAW
1. The Respondent, Eye Weather, a Sole Proprietorship, is
an employer within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union, Service Employees International Union,
Local 100, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Eye Weather is a successor employer to Midwest
Weather, Inc.
4. Since January 1, 1994 the Union has been the exclusive
bargaining representative of Eye Weather’s employees in the
following appropriate collective-bargaining unit:
All employees employed by Eye Weather at the
Winkler County Airport in Wink, Texas, taking weather
observations, excluding supervisors.
5. Since April 16, 1997, Eye Weather has failed and re-
fused to recognize and bargain with the Union in the unit set
for above, in violation of Section 8(a)(5) and (1) of the Act.
6. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Eye Weather, a Sole Proprietorship,
Wink, Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with the
Union as the exclusive bargaining representative of its em-
ployees employed in the following unit:
All employees employed by Eye Weather at the
Winkler County Airport in Wink, Texas, taking weather
observations, excluding supervisors.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union as
the exclusive representative of the employees in the bargain-
ing unit, described above, concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement.
(b) Within 14 days after service by the Region, post at its
space at the Winkler County Airport, Wink, Texas, copies of
the attached notice marked ‘‘Appendix.’’7 Copies of the no-
tice, on forms provided by the Regional Director for Region
16, after being signed by Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained by
it for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business
or ceased its operation at the facility involved in this pro-
ceeding, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since April 16, 1997, the date of the unfair labor practice
found in this proceeding.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official, on a form provided by the Region, attesting to the
steps that the Respondent has taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.
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979EYE WEATHER
WE WILL NOT do anything that interferes with, restrains,
or coerces you with respect to these rights, and more specifi-
cally:
WE WILL NOT fail or refuse to recognize and bargain with
Service Employees International Union, Local 100, AFL–
CIO, (the Union) as the exclusive collective-bargaining rep-
resentative of the employees in the unit described below with
respect of wages, hours, working conditions, and other terms
and conditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain collectively
with the Union as the exclusive bargaining representative of
the employees in the bargaining unit regarding their wages,
hours, working conditions, and other terms and conditions of
employment and, if an understanding is reached, embody
such understanding in a signed agreement:
All employees employed by Eye Weather at the
Winkler County Airport in Wink, Texas, taking weather
observations, excluding supervisors.
EYE WEATHER, A SOLE PROPRIETORSHIP.
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