Glebe Electric

National Labor Relations Board - Board Decisions

Jun 15, 1992

307 N.L.R.B. 883 (N.L.R.B. 1992)

883
307 NLRB No. 137
GLEBE ELECTRIC
1 Aneco’s requests for oral argument are denied because the
record, the exceptions, and briefs adequately present the issues and
the positions of the parties.
2 No exceptions were filed to these findings.
3 Golden State Bottling v. NLRB, 414 U.S. 168 (1973).
4 In light of our disposition of the successorship issue, we find it
unnecessary to address Respondent Aneco’s contention that it was
denied due process because it had insufficient notice to defend
against a nonpurchase theory of successorship.
5 All dates refer to 1989.
6 At the time, Aneco had five offices and approximately 315 em-
ployees working on various projects throughout the State of Florida.
7 At this time, Glebe also had one or two other construction
projects on which it was working. The record does not indicate
whether Glebe’s offer to Aneco involved any aspect of these other
projects.
8 Aneco had previously sought work from Centex without success.
9 Aneco declined to accept a faxed assignment of Glebe’s sub-
contract from Centex. The Aneco-Centex contract’s sole reference to
Glebe reads:
CRCC [Centex] has agreed with Glebe Electric for Aneco Elec-
trical Contractors to complete all remaining electrical work at J-
1153, Memorial Hospital, Ormond Beach, Florida, effective on
or about September 5, 1989. Aneco and Glebe have agreed on
an amount of $130,902 for this work.
10 Centex was adamant in its position not to pay Aneco a ‘‘dime
more’’ than the amount left in the original subcontract.
11 Centex agreed not to require a bond from Aneco but to hold
back moneys from Glebe because of Aneco’s refusal to accept liabil-
ity, or put its bonding company at risk, for the work performed by
Glebe.
12 It is unclear when Glebe went out of business entirely. Although
the total complement of Glebe employees at this time is unknown,
the evidence does indicate that Glebe employed an average of about
35 employees and that during the summer of 1989 it was engaged
in other jobs.
Glebe Electric, Inc. and Aneco Company, successor
employer and International Brotherhood of
Electrical Workers, Local Union 756, AFL–
CIO. Case 12–CA–13329–3
June 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 21, 1990, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. Re-
spondent Aneco filed exceptions and a supporting
brief,1 and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order, and to adopt the recommended Order
as modified and set forth in full below.
The judge found from unrebutted evidence that Re-
spondent Glebe’s officials threatened, interrogated, and
discharged Glebe employees in violation of Section
8(a)(1) and (3) of the Act.2 He further found Respond-
ent Aneco to be a Golden State3 successor to Glebe
and thus jointly and severally liable for remedying
Glebe’s unfair labor practices, even though Aneco did
not contract with Glebe to acquire either its assets or
business. Aneco has excepted to the judge’s findings
against it, and we find merit in those exceptions.4
Evidence Concerning Successorship
Undisputed evidence shows that in August 1989,5
Glebe decided that it would go out of business, and
that it would not complete the fifth and final phase of
its electrical subcontract on a hospital addition and ren-
ovation job for general contractor Centex-Rodgers
(Centex). The basis for this decision was that it was
losing money and could not afford to renew its con-
struction bond in September, a precondition for com-
pleting the hospital project. Glebe President Peter
Bourassa and Vice President Mario Garcia met with
Robert Taylor, president of Aneco, another electrical
contractor,6 to offer Glebe’s business for sale to
Aneco.7 Taylor declined the offer, saying that Glebe
had nothing of value to sell. Taylor was then informed
that Glebe expected to leave the hospital project
around Labor Day, and there was a possibility that
Aneco could take over and complete the electrical
work on that job. Aneco thereafter reviewed the blue-
prints of the hospital job and determined that there was
approximately $130,000 worth of work left in the elec-
trical subcontract, which in the context of Aneco’s op-
erations, was a small project. However, Aneco consid-
ered taking on the job in the hope of obtaining future
work from Centex.8
On August 11, the Union wrote Aneco, addressing
it as the purchaser of Glebe’s business, to advise it that
a complaint had issued against Glebe in Case 12–CA–
13329–3, and to warn that Aneco would be held ac-
countable for Glebe’s unfair labor practices. Aneco
consulted with its attorney about the Union’s letter and
was informed by Glebe officials that Glebe was taking
care of those charges. On August 25, Aneco entered
into a contract with Centex9 to complete the final
phase in accordance with terms identical to those in
Centex’s original subcontract with Glebe.10 On the
same day, Centex and Glebe modified their contract to
relieve Glebe of its performance obligations and to au-
thorize Centex to hold back $30,000 of the original
contract price to cover Glebe’s potential warranty li-
ability.11
Glebe went off the hospital job just before Labor
Day,12 and a few days later Aneco resumed the elec-
trical contract work for Centex. Aneco hired an 11-
man crew: two of its own employees, seven former
Glebe employees, all of whom had worked at the job-
884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Aneco hired two other former Glebe employees for a project in
Seminole County and former Glebe Vice President Garcia, who had
not worked on Glebe’s hospital project, to work in Aneco’s Miami
office. In fact, Garcia served as Aneco’s project manager for the
hospital job for 2 months before moving to the Miami office.
14 Citing Aircraft Magnesium, 265 NLRB 1344, 1345 (1982), enfd.
730 F.2d 767 (9th Cir. 1984); and NLRB v. Burns Security Services,
406 U.S. 272 (1972).
15 Citing Golden State, supra, in which the Supreme Court adopted
the Board’s remedy in Perma Vinyl Corp., 164 NLRB 968 (1967),
enfd. sub nom. United States Pipe Co. v. NLRB, 398 F.2d 544 (5th
Cir. 1968), holding a successor with knowledge of its predecessor’s
violations liable for them.
16 Citing Am-Del-Co, 234 NLRB 1040 (1978), which noted at
1044 fn. 12:
the Board has indicated that the principle [of holding a bona fide
purchaser liable for remedying a predecessor’s unfair labor prac-
tices] also applies where the successor is a replacement with no
direct relationship or dealings with the predecessor. Mansion
House Center Management Corporation, 208 NLRB 684 (1974);
Eastman Kodak Company, et al., 194 NLRB 220 (1971).
17 Citing Hot Bagels & Donuts, 244 NLRB 129, 131 (1979); Ponn
Distributing, 232 NLRB 312 (1977); Am-Del-Co, Inc., 234 NLRB
1040, 1044 (1978); Evans Plumbing Co., 278 NLRB 67 (1986),
enfd. 810 F.2d 1089 (11th Cir. 1987); Martin J. Barry Co., 278
NLRB 393 (1986).
18 The General Counsel asserts that although the money paid to
Aneco came from Centex rather than Glebe, the amount Centex paid
to Aneco to complete the hospital job was deducted from Glebe’s
subcontract.
19 Citing Perma Vinyl, supra at 969. The General Counsel addi-
tionally cites Eastman Kodak Co., 194 NLRB 220, 227 (1971), and
Ponn Distributing, supra, as examples of the Board’s ordering liabil-
ity against employers who became successors involuntarily and with-
out any realistic possibility of indemnification, and argues therefrom
that imposing liability on Aneco for voluntarily assuming Glebe’s
subcontract is justified.
site, and former Glebe supervisors Drummond and
Lowdermilk.13 Aneco hired only those Glebe employ-
ees who applied for employment. Aneco did not pay
any money to or purchase any assets from Glebe.
However, it occupied two construction trailers at the
hospital site which Glebe had abandoned. Aneco con-
tinued to provide the former Glebe employees the
same terms and conditions of employment as had
Glebe.
The Judge’s Findings
The judge found that Aneco’s continuation of
Glebe’s electrical work on the hospital project without
interruption, and with essentially Glebe’s same work
force, supervision, and working conditions constituted
substantial continuity between the two enterprises,14
and that Aneco’s prior notice of Glebe’s unfair labor
practices subjected Aneco to liability for remedying
them.15 Finally, the judge rejected Aneco’s conten-
tion—that it should not be held accountable for the
unremedied unfair labor practices because it did not
purchase Glebe’s business—citing Board decisions in
which nonpurchaser successors were found jointly and
severally liable for their predecessor’s wrongdoings.16
Contentions of the Parties
Aneco denies being a Golden State successor, argu-
ing that its contract with Centex for a discrete new
phase of construction was not a continuation of
Glebe’s business, that it could not have negotiated a
reduced purchase price, and that its lack of any con-
tractual relationship with Glebe precluded any oppor-
tunity for it to protect itself from liability through ne-
gotiation for an indemnification clause. Aneco further
points out that the retained former Glebe employees
were not misled into believing that their employment
would go beyond Aneco’s contract with Centex. Aneco
claims that the net effect of the judge’s decision is to
improperly signal prospective employers to avoid suc-
cessor liability by refusing work begun by another em-
ployer or by blacklisting that employer’s employees.
The General Counsel argues that although ‘‘no pur-
chase per se’’ is required to impute liability to the suc-
cessor under Board precedent,17 Aneco had, but did
not avail itself of, the same opportunity to protect itself
against potential liability in the contract price with
Centex or by an indemnification agreement from
Glebe.18 Moreover, the General Counsel contends that
Aneco should be liable because it became ‘‘the bene-
ficiary of [Glebe’s] unremedied unfair labor prac-
tices,’’19 i.e., (1) a desired contract relationship with
Centex, (2) the profit from the subcontract itself, and
(3) a jobsite free of a union organizational drive which
Glebe had stifled.
Discussion
The issue in this case is whether Aneco has the re-
sponsibility to remedy the unfair labor practices pre-
viously committed by Glebe. That issue turns solely on
whether Aneco is a Golden State successor, as opposed
to whether it might qualify as a successor for other
purposes and under other precedent. As the Supreme
Court stated in Howard Johnson Co. v. Detroit Joint
Board, 417 U.S. 249, 262–263 at fn. 9 (1974):
[T]he real question in each of these
‘‘successorship’’ cases is, on the particular facts,
what are the legal obligations of the new em-
ployer to the employees of the former owner or
their representative. The answer to this inquiry re-
quires analysis of the interests of the new em-
ployer and the employees and of the policies of
the labor laws in light of the facts of each case
and the particular legal obligation which is at
issue, whether it be the duty to recognize and bar-
gain with the union, the duty to remedy unfair
labor practices, the duty to arbitrate, etc. There is,
and can be, no single definition of ‘‘successor’’
which is applicable in every legal context. A new
employer, in other words, may be a successor for
885GLEBE ELECTRIC
20 Therefore, we in no way disturb Burns successorship precedents,
such as Houston Building Service, 296 NLRB 808 (1989), enfd. 936
F.2d 178 (5th Cir. 1991), cert. denied S.Ct. No. 91–597 (Feb. 24,
1992).
21 The Court referred to indemnification as a common device in
commercial law for protecting corporate purchasers from known or
unknown potential liability associated with transfers of businesses,
and noted that Golden State had given such an indemnification to
its purchaser.
22 Such as the interests of the victims of Glebe’s unfair labor prac-
tices and the uncertainty whether its assets are sufficient to provide
a monetary remedy for the employees who suffered a loss of earn-
ings or benefits as a result of its unlawful conduct.
23 The only relevance to Aneco of Glebe’s going out of business
before finishing the hospital job is that it presented Aneco with a
fortuitous opportunity to establish a working relationship with
Centex, which, as noted, Aneco had previously attempted to do with-
out success.
24 We find that the statement in the Aneco-Centex contract, that
‘‘Aneco and Glebe have agreed on an amount of $130,902 for this
work,’’ is a reference only to the fact that Centex separately con-
tracted both with Aneco and with Glebe for the performance of the
work in question at a uniform price.
Our dissenting colleague argues that tripartite negotiations were
held among Glebe, Aneco, and Centex. He bases this claim on the
‘‘parallelism’’ in Aneco’s and Glebe’s separate agreements of Au-
gust 25 and vague record references to summer conversations be-
tween officials of Glebe and Aneco as well as their concurrent pres-
ence on August 25. In fact, there is neither specific testimony about
the nature of those conversations between Glebe and Aneco nor evi-
dence concerning the purpose of their presence on August 25, apart
Continued
some purposes and not for others. [Citations omit-
ted.]
We accordingly note at the outset the absence of any
allegation that Aneco is a Burns successor, i.e., one
who has a duty of its own to bargain with the Union.
We do not address that separate issue, and place no re-
liance on the parties’ and the judge’s citations to au-
thority pertinent only to the Burns issue of
successorship.20
For the reasons which follow, we find that on the
facts of this case there is insufficient basis either under
the principles set forth in Golden State or the Board’s
subsequent application of those principles to warrant
imposition of liability on Aneco for remedying Glebe’s
unfair labor practices. We start by examining the Su-
preme Court decision in Golden State.
In Golden State, the Supreme Court upheld the
Board’s ruling that a purchaser, who had acquired an
enterprise with knowledge of the seller’s unremedied
violations, was jointly and severally liable for the sell-
er’s wrongdoing. In terms much like those subse-
quently expressed in Howard Johnson, above, the
Court explained that in finding a bona fide purchaser-
successor liable for remedying the known unfair labor
practices of the seller-predecessor it was striking a bal-
ance among the legitimate conflicting interests of (1)
bona fide successors, (2) the affected employees, and
(3) the public. In considering the legitimate interests of
the successor, the Court adopted the Board’s require-
ment that in order to be liable, the successor must be
on notice of the predecessor’s prior unfair labor prac-
tices. It thereby agreed with the Board’s rationale in
Perma Vinyl, supra, that a purchaser-successor who is
on notice is in the best position to redress the viola-
tions without being unduly burdened because it has the
ability to reflect its potential liability in the purchase
price from, or other indemnification by, the offending
seller.21 In assessing the interests of the affected em-
ployees, the Court noted the expectation of employee-
victims of unfair labor practices that the violations be
remedied, and the likely perception that a successor
employer which has acquired the assets of the prede-
cessor-wrongdoer should also be responsible for reme-
dial action. In the absence of an effective remedial ob-
ligation, the Court noted the possibility of labor unrest
to force the successor to remedy the violation, and the
possibility that a successor’s labor policies may be
identified with that of the predecessor and may result
in a continuing deterrent effect on the employees’
union activities. Finally, the Court noted the statutory
interests in avoiding labor strife, the chilling of the ex-
ercise of employees’ Section 7 rights, and the protec-
tion of victimized employees.
Although some of the policy considerations men-
tioned in Golden State which favor making a successor
remedially liable are present in this case,22 a close ex-
amination of the facts reveals that this case is distin-
guishable from those cited by the judge and the Gen-
eral Counsel in which Golden State principles have
been applied.
The principal distinction between this case and those
cited is the total absence of any business relationship
between Glebe and Aneco. The facts show that Aneco
held one meeting with Glebe in August, in which it
ascertained that Glebe had nothing of value to sell and
would be going out of business around Labor Day
without completing its electrical subcontract for
Centex.23 Aneco decided to approach Centex directly
concerning the possibility of its completing the elec-
trical work on the hospital project. Inasmuch as Aneco
was already known to Centex, it did not need any in-
troduction or assistance from Glebe in approaching
Centex about the hospital job; and in fact it received
none. Aneco’s only further contact with Glebe was its
inquiry about the unfair labor practice complaint
against Glebe, which it was told was being taken care
of by Glebe.
Aneco’s dealings with Centex similarly reflect
Aneco’s lack of business relationship with Glebe.
Thus, Aneco met with Centex, reviewed the blueprints,
and acceded to Centex’s insistence that the price of
completing the hospital electrical work would not ex-
ceed ‘‘by a dime more’’ the approximately $130,000
left in the original contract.24 Aneco, in arranging
886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from signing their separate agreements with Centex. In these cir-
cumstances, we find that such ‘‘parallelism’’ in the written agree-
ments is more readily explained by Centex’s ability to set the terms
of each agreement regarding a single construction project. In any
event, our dissenting colleague’s suggestion that there was a tri-
partite negotiation or a business relationship between Glebe and
Aneco appears to be based almost entirely on speculation rather than
evidence.
25 In light of Aneco’s refusal to bond any portion of the work per-
formed by Glebe, Centex elected to hold back $30,000 from Glebe
to cover Glebe’s potential warranty liability.
26 Our dissenting colleague errs by reducing that rationale to a
mere evidentiary factor and citing cases in support of that premise
in which successors in the role of ‘‘purchaser’’ (which Aneco is not)
are held liable for their seller’s wrongdoing whether or not they ex-
ercised their right to obtain insulation through negotiation. We note
in this connection that there is no contention that Centex has any
obligation to remedy Glebe’s unfair labor practices, and that it is
thus Aneco’s relationship with Glebe, if any, rather than its dealings
with Centex, that is relevant in deciding Aneco’s liability.
27 See, e.g., Hot Bagels, supra (successor was former predecessor
who returned as lessee after bank foreclosure because successor was
personal guarantor on foreclosed loan, and who upon payment of the
balance of the loan amount would acquire the property formerly
owned by the predecessor); Ponn Distributing, supra (successor can-
celed its security interest, which Board found was analogous to a
purchase, and retook distributorship); Martin J. Barry, supra at 394
fn. 4 (substantial reduction in management fee constituted effective
payment for business). Evans Plumbing Co., supra (predecessor and
successor were alter egos).
28 To the extent that earlier Board decisions indicate otherwise, we
conclude that they represent a misconception of the Board’s findings
in Eastman Kodak. Assuming arguendo, however, that the Board
adopted the judge’s Golden State analysis sub silentio, Eastman
Kodak is factually distinguishable. Eastman had contracted with
Hudson to construct a plant for it, and when it terminated that con-
tract, it resumed construction with Caddo, its own subsidiary, hiring
Hudson’s former employees and supervisors. The judge found that
Eastman and Caddo constituted a single employer for purposes of
the case, calling such entity, Eastman-Caddo. In light of that finding,
and the facts supporting it, Eastman itself in effect succeeded Hud-
son as the contractor of its own building project and for its own
business interests and benefit. In such circumstances, a sufficient
business relationship or nexus exists between Hudson and Eastman-
Caddo to support a Golden State successorship finding. That finding
is also made apt by the finding of the judge that Eastman-Caddo
used a former supervisor of Hudson who was implicated in Hud-
son’s unfair labor practices and whom it hired, to convey to its em-
ployees, who were also former employees of Hudson, that it shared
Hudson’s aversions to unions. The likely effect of that action was
to renew the impact of Hudson’s unlawful conduct among Eastman-
Caddo’s employees, thereby making it a direct beneficiary of such
conduct.
terms with Centex, specifically declined to accept an
assignment of Glebe’s subcontract with Centex, and
also refused to become a surety for any portion of the
already completed portion of the electrical sub-
contract.25
We find that the lack of any business relationship
between Aneco and Glebe is the crucial factor in this
case. It belies the General Counsel’s contention that
Aneco could have, in its dealings with Glebe, insulated
itself from liability for Glebe’s unfair labor practices.
We likewise find no merit in the General Counsel’s
implication that Aneco could somehow have looked to
Centex for indemnification or other consideration for
potential liability arising from Glebe’s unfair labor
practices. As earlier noted, the Perma Vinyl rationale
adopted by the Court in Golden State for holding a
purchaser responsible for the seller’s unfair labor prac-
tices is predicated on the purchaser’s ability to reflect
that potential liability in the negotiated purchase price
or through indemnification by the seller. Golden State,
supra at 185.26 Further, in light of the absence of a
business relationship between Aneco and Glebe, we do
not attach special significance to the fact that former
Glebe employees constituted a majority of Aneco’s
work force on the hospital job, although we note that
that factor would be relevant with respect to other
successorship issues not raised here.
Although the General Counsel accurately contends
that Board precedent following Golden State has im-
posed remedial liability on employers that had not pur-
chased the assets or business of predecessors who had
engaged in unfair labor practices, each of those cases
is distinguishable.27 Thus, in the cases cited below at
footnote 27, unlike the instant one, some pecuniary or
security interest existed between the successor and
predecessor which served as a substitute for a pur-
chase. Taking our cue from those cases, we find that
some such interest or relationship, or some other clear-
ly identifiable and connecting interest, is critical to es-
tablish a Golden State successorship and thereby visit
liability on one employer for another’s unfair labor
practices; and we find that the Board cases discussed
below that were cited by the General Counsel or the
judge are not to the contrary.
One such case, Eastman Kodak, supra, is inapposite
for the simple reason that there the Board never passed
on the judge’s findings of successorship because it dis-
missed the underlying 8(a)(3) violation which he found
and to which he addressed his remedial successorship
discussion and findings. Indeed, the only successorship
reference made by the Board is contained in the first
paragraph of its decision in which, in setting forth the
procedural history of the case up to that point, the
Board merely recited that the judge found that East-
man-Caddo, as the successor of Hudson-Hychem, was
responsible for remedying the latter’s unfair labor prac-
tices. Nowhere in the substantive portion of its deci-
sion did the Board so much as mention successorship.
In any event, final proof that the Board did not reach
the successorship issue considered by the judge, and
that the single reference to it was but a recitation of
part of the case’s history, is that the Board’s Order
was directed solely at Hudson-Hychem and its 8(a)(1)
interrogation and threat of reprisal violations. Thus, we
find that Eastman Kodak does not have any preceden-
tial value for finding a Golden State successor.28
887GLEBE ELECTRIC
29 We note that, in the backpay case, Mansion House filed an an-
swer asserting that its operation of the complex had been terminated.
It also filed a motion seeking dismissal of the proceeding as to it
on the ground that, on August 1, 1972, it had turned over control
of the complex to Remsco and while it continued as a legal entity,
it had no assets, real or personal. The motion was denied by an ad-
ministrative law judge and the answer later was struck by the same
judge. Consequently, Mansion House’s assertions concerning its lack
of assets and any questions these two legal documents may have
raised as to whether Mansion House continued as owner, were never
put to proof. In any event, even the assertions in the motion indicate
that Remsco directly dealt with Mansion House in taking over the
operation of the complex.
30 We reject our dissenting colleague’s charge that we are engag-
ing in improper post hoc rationale. As explained above, the rationale
on which our colleague would rely was a passing observation made
by an administrative law judge at the beginning of her discussion of
a dispute over whether a putative successor knew of the prede-
cessor’s unfair labor practices, and there is no indication in the
Board’s opinion that this footnote was a focus of the respondent’s
exceptions. As we show below, given the facts of the case, that
statement was simply unnecessary to the decision.
31 Our dissenting colleague concedes as he must that the Board in
Am-Del-Co did not give the backpay remedy that would be appro-
priate if a normal Golden State successorship were involved (i.e., a
monetary recovery for all losses suffered as a result of the putative
predecessors’ unfair labor practices). The Board, adopting the rem-
edy recommended by the administrative law judge, limited Mer-
chant’s liability to that of (1) reinstating the employees who had
been discriminatorily laid off by Compton/Am-Del-Co to any vacant
positions that might exist, or (2) placing them on a preferential re-
hire list if none existed. Backpay was limited to any that might ac-
crue after Merchants made such a reinstatement offer. 234 NLRB at
1044–1045. The Board imposed a further limitation by providing
that the reinstatement order was not to be construed as requiring
Merchants ‘‘to offer the discriminatees positions as drivers and help-
ers if it does not currently employ individuals in those job classifica-
Continued
The General Counsel’s reliance on Mansion House
Center Management, supra, is also misplaced, because
of the distinguishable factual situation in that backpay
proceeding, as becomes evident by reading it in con-
junction with its underlying unfair labor practice case,
reported at 195 NLRB 250 (1972). The unfair labor
practice decision reveals that Mansion House Center, a
complex of apartment towers, office buildings, shops,
promenades, and an underground garage, was both
owned by Mansion House Center Management Cor-
poration (Mansion House) and managed by that cor-
poration when, in 1971, the unfair labor practices oc-
curred and were committed by it and its garage lessee,
Central Parking System of St. Louis, Inc. The backpay
decision discloses only that Mansion House contracted
its managing agent function to Remsco on August 1,
1972, and proceeds to find the latter a successor and
thus hold both jointly liable for Mansion House’s un-
fair labor practices. Because Mansion House, as the
owner of the complex, maintained an ongoing relation-
ship with Remsco as its managing agent, we do not
find the Board’s decision in the backpay case to have
any precedential value as a per se application of Gold-
en State liability to nonpurchasers.29
Finally, Am-Del-Co, supra, on which the judge prin-
cipally relied, is also distinguishable. In particular, the
judge and our dissenting colleague point to a footnote
in the judge’s decision in Am-Del-Co (234 NLRB at
1044 fn. 12) stating that ‘‘the Board has indicated’’
that Golden State successorship applies even in the ab-
sence of a purchase by the putative successor and cit-
ing Mansion House and Eastern Kodak for this propo-
sition. We note, however, that the Board’s own opin-
ion focused solely on the question whether, at the time
it took over a subcontracted delivery operation, Mer-
chants had knowledge of the unfair labor practices
committed by Am-Del-Co. It adopted without comment
the judge’s finding that Merchants was successor to
Am-Del-Co with respect to this operation. Further, that
footnote in the judge’s decision was itself appended to
a discussion of the issue whether Merchants had the
requisite knowledge. Because, as explained above,
Mansion House and Eastern Kodak provide no gen-
uine precedential authority for the footnote proposition,
we find its rationale less than persuasive. In any event,
we believe it may properly be treated as dictum, be-
cause the holding in Am-Del-Co can be fully explained
on other, solid grounds.30
To understand the Board’s Golden State
successorship finding in that case, it is necessary to re-
view the underlying unfair labor practice proceeding
against Merchants, reported at 230 NLRB 290 (1977),
in which Merchants was found to be a Burns successor
to Am-Del-Co. As found therein, Merchants submitted
a proposal to become the replacement for an existing
unionized delivery service for J. C. Penney Co. in the
St Louis area by offering better service, lower cost and
‘‘No unions’’—by using owner-operators. As a reac-
tion to this proposal, the unionized delivery service,
Compton Service Co., formed an alter ego, Am-Del-
Co, which submitted to Penney its own proposal to re-
tain the delivery work based on making its drivers
owner-operators, as was the case with Merchants’ pro-
posal. Although Compton/Am-Del-Co was initially
successful in retaining Penney’s work, the reorganiza-
tion and attempted conversion of its employees to
independent contractors, designed to enable it to oper-
ate nonunion, caused it to discriminatorily lay off
many of its employees. During the unfair labor prac-
tice proceeding that ensued from that reorganization
and conversion (225 NLRB 698), Penney canceled its
delivery contract with Am-Del-Co and gave a new
contract to Merchants that included an indemnification
clause protecting Merchants from liability for
Penney’s, Compton’s, Am-Del-Co’s and their succes-
sors’ unfair labor practices. Merchants proceeded to
perform under this contract on a nonunion basis, using
the former Am-Del-Co owner-operators, who, the
Board found, were employees of Merchants and not
independent contractors.31
888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions to perform its delivery work for Penney.’’ Because Merchants’
contract with Penney involved only owner-operators so far as the
judge’s factual findings indicate, it would appear that Merchants had
no obligation to offer the discriminatees their original positions un-
less it happened to convert its owner-operators to employees in the
future or add employees to the owner-operator complement working
on the Penney delivery contract. This can reasonably be viewed as
an unusual remedy in an unusual case, given Merchant’s role in in-
spiring the discriminatory layoffs and its lack of one or more of the
elements normally present in a Golden State successorship.
Our colleague’s contention that Merchant’s actions did not result
in what could properly be called a ‘‘relationship’’ between Mer-
chant’s and Compton strikes us as raising a semantic dispute. We
agree that there was no ‘‘relationship’’ that would warrant a standard
make-whole remedy in that case and, as noted, the Board gave none.
We disagree that Merchant’s indisputably more active role there in
suggesting that the job in question be done with nonunion labor fails
to distinguish that case at all from this. We regard Am-Del-Co as
simply an unusual case in which a correspondingly unusual remedy
was given. For the reasons stated in fn. 33 below, we see no com-
pelling reason for granting a similar remedy here.
32 No claim is made in this proceeding that Glebe’s unfair labor
practices had any influence on its decision to cease operations.
33 Because Aneco hired all who applied and because it was offer-
ing the same terms and conditions that the former employees had en-
joyed with Glebe, the discriminatees had a much greater inducement
for seeking employment here, than did those in Am-Del-Co, in
which, as noted (fn. 31, supra), the putative successor had sup-
planted the predecessor with a nonunion operation using owner-oper-
ators. Indeed, compared with the discriminatees in Am-Del-Co who,
under the Board’s order, could secure positions substantially similar
to those from which they were discharged only if Merchants chose
to incorporate driver and helper job classifications in its transport
operations for Penney, the employees unlawfully discharged by
Glebe who chose not to apply to Aneco hardly seem helpless victims
for whom Aneco should now bear backpay liability.
34 There is some indication in the record that tools which formerly
had been Glebe property were acquired directly by the former Glebe
employees.
In light of the above, it is clear that Merchants was
in no sense an uninvolved, disinterested employer in
the congery of events that led to its becoming Am-Del-
Co’s successor under both Burns and Golden State
principles. Its ‘‘no-unions’’ alternative to the initial
Penney delivery arrangement with Compton, induced
Penney to request an owner-operator bid from Comp-
ton and the latter to embark on its course of operating
an owner-operator delivery service with its alter ego,
Am-Del-Co, and unlawfully laying off its employees in
order to retain the Penney contract. And Merchants
itself was the ultimate beneficiary of its proposal and
the events it had set in train when it obtained the
Penney contract and unsuccessfully attempted to per-
petuate the nonunion owner-operator operation that
Am-Del-Co had first established. In such cir-
cumstances, Merchants initially played the role of cata-
lyst and eventually that of principal in the string of
events that included its predecessor’s unfair labor prac-
tices—roles that Merchants itself appears to have real-
ized left it vulnerable to future liability claims against
it, as reflected by its negotiations of the broad indem-
nification clause in its contract with Penney.
The General Counsel’s claim that Aneco was simi-
larly a beneficiary of Glebe’s unfair labor practices
fails to recognize that the nexus that existed between
Am-Del-Co and Merchants is essentially missing from
the relationship of Glebe and Aneco. The General
Counsel’s assertions that, as a result of Glebe’s unfair
labor practices, Aneco obtained a desirable and profit-
able contract relationship with Centex is wholly with-
out record support. It is apparent that Aneco’s contrac-
tual relationship with Centex and profits, if any, re-
sulted from Glebe’s lawful cessation of business
caused solely by its poor economic condition.32 As for
the General Counsel’s additional claim that Aneco
benefited from Glebe’s unfair labor practices, we find
in the circumstances of this case that any such benefit
was at best of marginal significance, even from the
perception of the seven former Glebe employees that
Aneco hired. The record shows that Aneco extended
direct employment offers to all Glebe employees who
applied for employment; and there is no indication that
the four former unlawfully discharged Glebe employ-
ees sought employment with Aneco on the hospital
project or elsewhere.33 Further, Aneco’s assertion that
the seven former Glebe employees hired to finish up
the project had no reasonable expectation of employ-
ment with Aneco beyond completion of the hospital
job is unrefuted. Consequently, to the extent that Gold-
en State bases the liability of a successor on the em-
ployees’ perception that there has been no change in
the business operations between the predecessor and
the successor, the facts here reveal that the former
Glebe employees knew, or should have known, that
Glebe had gone out of business, that Aneco had not
actually acquired anything of substance from Glebe,34
and that their jobs with Aneco were of finite, relatively
short, duration. The residual impact of Glebe’s unfair
labor practices on the former Glebe employees was
therefore limited and attenuated; and it was nonexistent
as applied to the rest of Aneco’s work force of over
300 employees employed at other locations. (The
record does not indicate whether any portion of this
work force is unionized.) Moreover, there is no indica-
tion that Aneco had ever engaged in activity indicative
of union animus or otherwise took a position on orga-
nizing activity among its employees, including those
working at the Centex site. In this context, we cannot
find that Aneco derived any significant benefit from
Glebe’s unfair labor practices.
In sum, notwithstanding our agreement with the pol-
icy reasons enunciated in Perma Vinyl and Golden
State for protecting victimized employees, we find that
it would be imprudent to impose on Aneco liability for
Glebe’s unlawful conduct, given the lack of a material
connection or relationship between the two. The impo-
sition of such liability on Aneco would unfairly penal-
ize it for offering employment to Glebe’s former em-
889GLEBE ELECTRIC
35 See Burns, 406 U.S. at 280 fn. 5, noting that the successor em-
ployer has an obligation only to provide offers of employment on
a nondiscriminatory basis.
36 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.’’
ployees on an individual basis, when it never had an
obligation to hire the employees of Glebe.35 Finally,
we reject a per se approach that would impose Golden
State liability on Aneco or any other construction sub-
contractor, merely because it replaced the offending
subcontractor on a construction project. The imposition
of such derivative liability would unfairly encumber
the ability of a general contractor in that particular sit-
uation to obtain a subcontractor to complete the overall
construction project, and would likely cause a subcon-
tractor to forgo hiring the former employees of the
other contractor.
Accordingly, we cannot discern any statutory policy
or public interest or any other equitable basis for hold-
ing Aneco liable for Glebe’s violations, and we shall
modify the judge’s recommended Order and notice by
deleting any reference to liability against Aneco.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that
the Respondent, Glebe Electric, Inc., West Palm
Beach, Florida, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Unlawfully interrogating employees concerning
their union membership and sympathies.
(b) Threatening employees with unspecified reprisals
because of their engagement in union activities.
(c) Threatening employees with the futility of their
support for the Union.
(d) Discharging and refusing to reinstate employees
because of their engagement in union activities.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the unlawful discharges of Daniel A.
Reuther, George C. Hopper, Stephen A. Perry, and
Joshua A. Raver Jr., offer them full reinstatement to
their former positions or to substantially equivalent po-
sitions if their former positions no longer exist, and
make them whole for all loss of wages and benefits
sustained by them with interest and full restoration of
all seniority rights and privileges as set out in the rem-
edy section of this decision.
(b) Remove from its files any reference to the un-
lawful discharges and inform the employees in writing
that this has been done and that the unlawful dis-
charges will not be used against them in any manner.
(c) Preserve and, on arequest, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel record and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its office in Ormond Beach, Florida, and
its home office in Miami, Florida, copies of the at-
tached notice marked ‘‘Appendix.’’36 Copies of the
notice, on forms provided by the Regional Director for
Region 12, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER RAUDABAUGH, dissenting.
My colleagues have refused to grant any meaningful
remedy to the discriminatees. As discussed below,
there is clear precedent for granting such a remedy. In
addition, as also discussed below, I believe that such
a remedy would not place a significant burden on the
successor employer. Hence, I dissent from the major-
ity’s failure to grant a meaningful remedy.
In brief, the facts are as follows. In 1989, Glebe was
the electrical subcontractor on a hospital construction
project. The general contractor was Centex. The fifth
and final phase of the electrical subcontract was sched-
uled to begin in September. Glebe was losing money
and could not afford to post the construction bond
which it needed to post in order to continue working.
Its officials determined in August to cease doing busi-
ness. They approached Aneco’s president directly
about purchasing Glebe’s business. He declined, based
on the observation that Glebe had nothing of value to
sell. Aneco later refused to accept from Glebe a pur-
ported assignment of the subcontract. On August 14,
Aneco received notice from the Union that a complaint
had issued against Glebe and that the Union would
hold Aneco accountable for Glebe’s unfair labor prac-
tices. On August 25, Centex and Aneco contracted for
Aneco to complete the work for $130,902. On the
same day Centex and Glebe modified their contract.
The modification reduced the amount of their original
contract by $130,902. In both contracts, the figure of
890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 E.g., Fall River Dying Corp. v. NLRB, 482 U.S. 27 (1987).
2 E.g., NLRB v. Burns Security Services, 406 U.S. 272 (1972).
3 164 NLRB 968 (1967), enfd. sub nom. United States Pipe Co.
v. NLRB, 398 F.2d 544 (5th Cir. 1968).
4 Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).
5 The judge cited two cases for this proposition. Mansion House
Management Corp., 208 NLRB 684 (1974); Eastman Kodak Co.,
194 NLRB 220 (1971).
6 ‘‘[The successor’s] potential liability for remedying the unfair
labor practices is a matter which can be reflected in the price he
pays for the business, or he may secure an indemnity clause in the
$130,902 was said to have been agreed on by Aneco
and Glebe.
Aneco commenced work at the hospital jobsite in
early September. It employed a work crew of two cur-
rent Aneco employees along with seven former Glebe
employees and two former Glebe supervisors who had
been working at the hospital site. This work crew con-
tinued to perform the same electrical work in the same
manner and under the same terms and conditions of
employment prevailing when Glebe performed the
work.
The crux of the controversy about Aneco’s alleged
successorship is the undisputed fact that it did not pur-
chase any assets directly from, or pay any money di-
rectly to, Glebe. In successorship cases where the issue
concerns imposition of a continuing bargaining obliga-
tion, the law does not distinguish between bona fide
purchaser situations1 and situations in which one busi-
ness entity replaces another as a subcontractor without
any transaction between the two.2 In successorship
cases where the issue concerns imposition of remedial
liability, the seminal Perma Vinyl3 and Golden State4
cases both involved bona fide purchasers. However,
the Board has subsequently held that such
successorship does not depend on contractual privity,
or indeed any relationship, between the successor and
the predecessor. In Am-Del-Co, 234 NLRB 1040, 1044
fn. 12, the administrative law judge’s opinion stated
that: ‘‘Although Golden State involved a bona fide
purchaser successor, the Board has indicated that the
principle also applies where the successor is a replace-
ment with no direct relationship or dealings with the
predecessor.’’5 The Board did not indicate any dis-
agreement with this statement in adopting the judge’s
decision.
Relying on traditional evidentiary factors relevant to
the analysis of continuity of the employing entity, the
judge here found that Aneco was a successor. Relying
on Am-Del-Co, he rejected Aneco’s argument that it
could not be a Golden State successor because it was
not the bona fide purchaser of Glebe’s business. Ac-
cordingly, the judge found that Aneco had joint and
several liability for Glebe’s unfair labor practices.
The majority opinion clearly and accurately summa-
rizes the reasons set forth in Golden State and Perma-
Vinyl for imposing liability on a successor which has
prior knowledge of a predecessor’s unlawful conduct
and which, viewed from the perspective of affected
employees, continues the operations of an employing
entity in an essentially unchanged manner. In reversing
the judge, however, the majority holds that some ‘‘pe-
cuniary or security interest . . . or some other clearly
identifiable and connecting interest, is critical to estab-
lish a Golden State successorship and thereby visit li-
ability on one employer for another’s unfair labor prac-
tices.’’ My colleagues are less than clear in explaining
why the Board should so limit an important equitable,
remedial doctrine. However, two assertions appear
paramount: (1) they assert that Am-Del-Co and related
precedent involve situations in which there is some
nexus between the successor and the predecessor; (2)
they assert that the lack of any business relationship
between Glebe and Aneco precluded the latter from
protecting itself against monetary liability for the
former’s unfair labor practices.
As to the first assertion, the simple fact is that there
was no nexus between predecessor and successor in
Am-Del-Co. Predecessor Compton (a unionized com-
pany) made deliveries for J. C. Penney. Merchants told
Penney that it could do the same work on a cheaper,
nonunion, owner-operator basis. Compton then sought
to retain the delivery business by forming an alter ego,
Am-Del-Co. In the process, Compton/Am-Del-Co
committed unfair labor practices. Penney thereafter ter-
minated its relationship with Compton/Am-Del-Co and
brought in Merchants to perform the delivery work.
Based on these facts, the judge found: ‘‘There is no
relationship between Respondent [Compton/Am-Del-
Co] and Merchants, and they have never had any busi-
ness dealings with each other.’’ Indeed, it was that
finding that prompted the judge to cite the principle,
noted above, that a relationship is not a necessary
predicate for remedial successorship. Perhaps in rec-
ognition of this fact, the majority here seeks to supply
a post hoc rationale for Am-Del-Co. It relies on the
fact that Merchant’s competitive bid to perform
Penney’s delivery business on a nonunion, owner-oper-
ator basis ‘‘induced’’ the predecessor to unlawfully
convert unit employees to independent contractor sta-
tus. The post hoc rationale does not withstand scrutiny.
The fact that Merchants’ bid may have prompted
Compton to engage in unlawful conduct does not es-
tablish, or even suggest, a relationship of any kind be-
tween Merchants and Compton. In sum, the majority
has read into Am-Del-Co a rationale that is not ex-
pressed there, and that rationale does not withstand
scrutiny. Furthermore, that rationale is without prece-
dent or statutory support.
As to my colleague’s second assertion, the ability of
a successor to insulate itself against potential monetary
liability was an evidentiary factor relied on by the
Court in Golden State.6 However, the Court did not in-
891GLEBE ELECTRIC
sales contract which will indemnify him for liabilities arising from
the seller’s unfair labor practices.’’ 414 U.S. at 185.
7 E.g., Bellingham Frozen Foods, 237 NLRB 1450, 1466 fn. 26
(1978), enf. denied on other grounds 626 F.2d 674, 681 (9th Cir.
1980); Ponn Distributing, 232 NLRB 312, 314 (1977). Cf. Sheet
Metal Workers Local 75 (Owl Constructors), 290 NLRB 381, 387
(1988).
8 My colleagues are unsuccessful in their efforts to distinguish Am-
Del-Co. First, they state that Merchants (the successor held liable in
that case) employed only owner-operators and hence had no obliga-
tion to reinstate the discriminatees. However, the fact is that the
Board ordered Merchants to reinstate the discriminatees if and when
it had appropriate employee positions to offer. In the instant case,
my order would do precisely the same thing, i.e., it would require
Aneco to reinstate the discriminatees if and when it has appropriate
employee positions to offer. Second, my colleagues assert that Mer-
chants was responsible for ‘‘inspiring’’ the predecessor’s discrimina-
tory actions. However, the fact is that Merchants’ predecessor, acting
alone, engaged in these actions. The fact that the predecessor did so
in order to win a competitive battle against Merchants is hardly a
basis for suggesting wrongdoing on the part of Merchants. Indeed,
there was not even a hint of a finding of wrongdoing by Merchants.
To the contrary, there was a finding that there were no dealings or
relationships between Merchants and its predecessor.
In sum, there is no principled basis for distinguishing Am-Del-Co.
Accordingly, unless my colleagues wish to overrule that case, they
should adhere to it.
dicate that this factor was a prerequisite to the imposi-
tion of monetary liability on a successor. Indeed, sub-
sequent precedent indicates that the presence of this
factor is not a prerequisite to a finding of monetary li-
ability on the part of the successor.7 However, there is
no need to rely on, or even adopt, this precedent in the
instant case. For, as explained below, the remedy that
I would order, consistent with Am-Del-Co, does not
impose a monetary liability on Aneco unless Aneco
fails to honor a Board order to reinstate the employees.
In Am-Del-Co, as noted above, there was no rela-
tionship between the predecessor and successor. Fur-
ther, the successor did not hire all the predecessor’s
work force. Hence, it could not be said that, absent the
8(a)(3) discharges by the predecessor, the discrim-
inatees would have been hired by the successor. Be-
cause of these circumstances, the Board simply ordered
the successor to offer the discriminatees reinstatement
to their former or substantially equivalent positions. If
there were no such positions, the successor had to
place them on a preferential hiring list and hire them
when positions became available. As to backpay, there
was no liability if the successor reinstated the employ-
ees or placed them on a preferential hiring list as or-
dered.
Similarly, in the instant case, there is no relationship
between the predecessor and successor. In addition, the
successor did not hire all the predecessor’s employees.
Hence, it cannot be said that, absent the 8(a)(3) dis-
charge by the predecessor, the discriminatees would
have been hired by the successor. Accordingly, I
would order the remedy ordered in Am-Del-Co.8
In view of this remedy, it is not critical to determine
whether Aneco could have been protected from poten-
tial monetary liability. For, as discussed above, there
will be no monetary liability at all if Aneco offers the
discriminatees employment in an appropriate position.
In sum, Aneco took over the job that Glebe had per-
formed and Aneco had notice of Glebe’s unfair labor
practices. In these circumstances, it is clear that Aneco
was a successor for remedial purposes. The extent of
a successor’s remedial obligation may vary from case
to case. In the instant situation, I would impose only
the narrow remedy imposed in the analogous case of
Am-Del-Co. That remedy: (1) gives some relief to the
victim of discrimination; (2) imposes no monetary li-
ability on the successor unless it disobeys a Board
order; (3) imposes no other hardship on the successor;
it simply tells the successor that, if there be an appro-
priate job, it should go to the discriminatee rather than
someone else.
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 interrogate you concerning your
membership in a union or your union sympathies.
WE WILL NOT threaten you with unspecified repris-
als because of your engagement in union activities or
other protected concerted conduct.
WE WILL NOT threaten you with the futility of sup-
port for a union.
WE WILL NOT discharge you because of your en-
gagement in union activities or other protected con-
certed activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights under Section 7 of the Act.
WE WILL offer Daniel A. Reuther, George C. Hop-
per, Stephen A. Perry, and Joshua A. Raver Jr. imme-
diate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Respondent Glebe filed an answer to the original complaint
wherein it admitted the allegations with respect to service and filing
of charges and jurisdiction, and I find them binding on said Re-
spondent notwithstanding its failure to file an amended answer to the
amended complaint. Auburn Die Co., 282 NLRB 1044 (1987).
2 All dates are in 1989 unless otherwise stated.
equivalent positions without prejudice to their seniority
or any other rights or privileges previously enjoyed
and will expunge from our files any reference to their
unlawful discharges and notify them in writing of this
and that their discharges will not be used against them
in any manner.
WE WILL make employees whole for all loss of
wages and benefits sustained by them by reason of our
unlawful discharges of them, with interest.
Our employees have the right to join and support
International Brotherhood of Electrical Workers, Local
Union 756, AFL–CIO or to refrain from doing so.
GLEBE ELECTRIC, INC.
Michael Maiman, Esq., for the General Counsel.
J. Bruce Harper, Esq. (MacPherson, Harper, Kynes, Geller,
Watson & Buford, P.A.), of Clearwater, Florida, for Re-
spondent Aneco Company.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on June 15, 1990, at Daytona
Beach, Florida. The hearing was held pursuant to an amend-
ed complaint issued by the Regional Director for Region 12
of the National Labor Relations Board (the Board) on May
7, 1990. The complaint is based on an amended charge filed
by the International Brotherhood of Electrical Workers, Local
Union 756, AFL–CIO (the Union), on May 25, 1989. The
complaint alleges that Respondent, Glebe Electric, Inc.,
(Glebe) violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act) by interrogating its employees on or
about March 28 and 29, 1989, regarding their union member-
ship, activities, and sympathies and the union membership,
activities, and sympathies of their fellow employees; and by
on or about March 29, 1989, informing its employees that it
would be futile for them to select the Union as their bar-
gaining representative; and by threatening its employees with
discharge on or about April 4 and 13, 1989; and by threat-
ening its employees with unspecified reprisals on or about
April 3, 1989; and by impliedly threatening its employees
with discharge on or about March 31, and April 3, 1989; and
by impliedly threatening its employees with unspecified re-
prisals by calling them troublemakers on or about March 31,
1989; and by on or about April 14, 1989, informing an em-
ployee that his discharge was caused by his activities on be-
half of the Union, all the foregoing because of the union ac-
tivities of the employees. The complaint also alleges that
Glebe discharged its employees, Daniel A. Reuther, George
C. Hopper, Stephen A. Perry, and Joshua A. Raver Jr., on
or about April 4, 1989, because they joined, supported, or as-
sisted the Union, and engaged in concerted activities for the
purpose of collective bargaining or other unilateral aid or
protection, and in order to discourage employees from engag-
ing in such activities or other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion, all in violation of Section 8(a)(1) and (3) of the Act.
The complaint further alleges that on or about August 29,
1989, the Aneco Company (Aneco) purchased Respondent’s
business and assets, including a subcontract between Centex
and Respondent, and since that date has continued to carry
on the Respondent’s business without interruption or substan-
tial changes in the method of operation or employee com-
plement. The complaint also alleges that prior to the fore-
going, Aneco was put on notice of Glebe’s potential liability
in this case by certified letter from the Union to Robert K.
Taylor, Aneco’s president, on August 11, 1989, and that
Aneco has accordingly continued the employing entity with
actual notice of Glebe’s liability to remedy its unfair labor
practices, and is thereby a successor to Glebe. Respondent
Glebe did not file an answer to the complaint or appear at
the hearing. Respondent Aneco filed an answer dated May
18, 1990, wherein it stated it was without knowledge of the
substantive allegations of violations of the Act and therefore
denied them. It further specifically denied having purchased
Respondent Glebe’s business or assets or having purchased
Glebe’s contract with Centex and denied all allegations of
successorship.
On the entire record in this proceeding, including my ob-
servations of the witnesses who testified herein, and after due
consideration of the briefs filed by the General Counsel and
Respondent Aneco, I make the following
FINDINGS OF FACT
I. JURISDICTION
A. The Business of Respondent1
The complaint alleges that at all times material herein, Re-
spondent Glebe was a Florida corporation with an office and
place of business in West Palm Beach, Florida, where it was
engaged in the electrical contracting business and that in the
course and conduct of its operations it provided services val-
ued in excess of $50,000 for enterprises within the State of
Florida, including Centex Rodgers Construction Company
(Centex), each of which enterprises meets a direct standard
for assertion of the Board’s jurisdiction and that at all times
material herein, Glebe has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
B. The Labor Organization
The complaint alleges that the Union was at all times ma-
terial a labor organization within the meaning of Section 2(5)
of the Act and I so find in reliance on the record in Case
12–RC–7139, a representation case wherein Glebe stipulated
that the Union was a labor organization within the meaning
of Section 2(5) of the Act.
Facts
Stephen Perry testified he was employed by Glebe as a
journeyman electrician on February 12, 1989,2 to work on
the Memorial Hospital addition in Ormond Beach where
893GLEBE ELECTRIC
3 In its original answer, Glebe admitted the supervisory status of
Bourassa and Drummond and I find them to have been 2(11) super-
visors.
4 The record establishes that Lowdermilk was a supervisor within
the meaning of Sec. 2(11) of the Act. Specifically, Foreman Mack
Pellicer testified that Lowdermilk did not carry tools, had a two-way
radio as did Drummond and Pellicer only, discharged an employee,
attended supervisory meetings, reassigned employees work, and
could come and go as he wished and only Lowdermilk and Drum-
mond had keys to the job trailer.
Glebe was an electrical subcontractor to Centex Rodgers.
During his employment with Glebe, Perry was never rep-
rimanded or disciplined and was complimented about his
work by his foreman, Mack Pellicer, and Tim Drummond,
the project supervisor, and by Pete Bourassa, the president of
Glebe.3 He also unexpectedly received a raise of 50 cents per
hour on March 31. On Tuesday, March 28, the Union estab-
lished an area standards picket line and Glebe’s foreman,
Tom Lowdermilk, asked him what his position was on the
Union and Perry replied he was in favor of the Union.4 On
Wednesday, March 29, Lowdermilk again approached him
and asked him what his position was on the Union. Perry
again replied he was in favor of the Union. Lowdermilk then
asked Perry whether he was a member of the Union and
Perry replied that he was. Lowdermilk then said if the Union
attempted to have an election, that Glebe would load the job
with other Glebe employees from other jobs around the state
to avoid a favorable result for the Union. Lowdermilk also
said that Glebe would not sign a union contract.
Perry testified further that on Friday, March 31, he and
employees Dan Reuther and George Hopper appeared on the
job wearing union T-shirts with the Union Local’s name on
the front and the International Union’s seal on the back of
the shirts. They also handed out union information prior to
the start of the workday. Foreman Lowdermilk approached
Perry and employee George Hopper and held his hands
above Hopper’s head and told them they looked like puppets
with their union shirts and asked where their strings were.
Shortly thereafter that day, Lowdermilk again approached
Perry and asked him if he did not like his job, why he did
not quit. Perry responded he liked working there. On Mon-
day, April 3, the employees handed out union literature prior
to the start of the workday and Lowdermilk asked Perry why
he did not quit because everyone was getting sick and tired
of the things going on on the job. Later on that morning,
Tim Drummond, the project supervisor with Glebe, appeared
with a camera and began to take pictures of the work in the
area. Perry inquired why he was taking the pictures and
Drummond replied that the employees were doing sub-
standard work. On Tuesday, April 4, Perry and other em-
ployees again showed up at the job with information about
the Union. Project Supervisor Drummond told them that
there was going to be a company meeting before they went
to work. After the meeting, Drummond told Perry and em-
ployees Josh Raver, Dan Reuther, James Mack Pellicer, and
George Hopper not to go to work. At that point, Bourassa
exited from the job trailer and told Pellicer to return to work.
He then handed the remaining employees Perry, Raver, Reu-
ther, and Hopper their paychecks and told them they were
fired for performing substandard work. Perry asked if this
had anything to do with the Union and Bourassa replied in
the negative.
James Mack Pellicer was also called by the General Coun-
sel. He was hired as a foreman in February and left in April.
On his recommendation, Perry was hired by Respondent
Glebe. Pellicer who has 21 years’ experience as a journey-
man electrician and 15 years as a supervisor testified that
Raver, Reuther, Hopper, and Perry, all of whom were as-
signed to his crew, did excellent work and had not been the
subject of any disciplinary problems. On Tuesday, March 28,
the Union posted a picket line in front of the hospital. At the
end of the day, Owner Bourassa asked Pellicer whether he
or any of his crew members were union and Pellicer replied
in the negative, and Bourassa said ‘‘I sure hope not.’’ Earlier
that day, Superintendent Drummond had told Pellicer that
things were going well and the work was great and that he
had put the employees up for a raise which they would get
next week and that he was going to make Reuther a foreman.
Pellicer testified that on Friday, March 31, three members of
his crew, Perry, Reuther, and Hopper came into work wear-
ing the Union’s T-shirt. At that point, the employees who did
not favor the Union went on one side of the parking lot and
the prounion employees went on the other side of the parking
lot and ‘‘would not have anything to do with each other.’’
On Monday, April 3, Superintendent Drummond came to the
work area with a list of work errors he had allegedly found
and took pictures of the electrical work Pellicer’s crew had
performed. Drummond had never done this before. Prior to
March 31, he had received compliments on his work and that
of his crew and he and his crew had received a raise in
March. On the morning of Monday, April 3, a couple of
hours after Drummond had taken pictures, Drummond called
Pellicer off to the side and told him not to take it so hard
as the work was 95 percent correct and not to worry about
it. On Tuesday, April 4, when Pellicer arrived at work,
Bourassa met him and said he was going to talk to every-
body and he wanted Pellicer to hold his crew because he
wanted to talk to them privately after everyone else went to
work. He told Pellicer to go to work and get started and he
would talk to him later and in response to a question by
Pellicer as to whether this had anything to do with the
Union. Bourassa answered in the negative. Pellicer left to go
to work and later some of the other employees told Pellicer
that Bourassa had fired all of his crew, consisting of Perry,
Hopper, Reuther, and Raver. Bourassa then sent Pellicer two
laborers who were not familiar with the work and Pellicer
worked until noon when he told Bourassa he did not like
what was going on and quit.
Daniel Reuther was also called by the General Counsel.
Reuther was employed by Respondent Glebe from March
until April. He had received a raise the last week of March.
He had never been disciplined. He had received compliments
on his work from Drummond and Lowdermilk. Drummond
also told him he wanted to make him a foreman. On occa-
sion, he worked directly for Drummond. He has been a
member of the Union since November 1988. While em-
ployed by Glebe, he spoke to other employees at lunchtime
on behalf of the Union. He also wore the Union’s T-shirt the
last couple of days he worked there. He also gave out union
literature before work. On Tuesday, March 28, there was an
informational picket outside the gate conducted by the
Union. On that date, Drummond asked him why he had
crossed the picket line if he were ‘‘such a big union man.’’
Lowdermilk said that Glebe would never go union.
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lowdermilk asked him if he were in the Union and Reuther
‘‘kind of skirted the issue at that time.’’ On Wednesday,
March 29, Lowdermilk again asked Reuther if he was in the
Union. He told Lowdermilk he was interested in joining the
Union and had studied their benefits and health insurance.
On Friday, March 31, some of the employees wore the union
T-shirts. On that day, Lowdermilk said he had nothing
against the Union but that ‘‘Glebe would never be in the
union.’’ On that day, Lowdermilk held his hands over
Reuther’s head and said that the prounion employees were
union puppets. On Monday, April 3, Drummond came to
their work area and was there for hours taking pictures of
the work and when asked by the employees why he was tak-
ing pictures said ‘‘shoddy workmanship.’’ On Tuesday, April
4, all the employees signed into work and Drummond dis-
missed the crew to go to work and told several of the em-
ployees to stay behind. Pellicer came around and said this is
about the Union, but Drummond denied this and told Pellicer
to go to work. Then Bourassa came out of the trailer and
gave them a check and told them to get out. On April 13,
he and George Hopper were walking the picket line for the
Union at the Memorial Hospital site and Lowdermilk came
up against the chain link fence enclosing the jobsite and said,
‘‘As far as I’m concerned, Glebe got rid of four good guys.’’
The General Counsel also called Joshua Raver who was
employed by Glebe from March 21 to April 4 as a journey-
man electrician on the Memorial Hospital jobsite. During his
2-week period of employment, he received no discipline but
rather was complimented about his work by his foreman,
Pellicer, who said management was pleased with their work.
He did not engage in any union activities while employed
with Glebe. On Tuesday, March 28, the Union put up a pick-
et line around the jobsite. On Friday, March 31, Drummond
was taking pictures of the work performed by the crew on
the west end. Earlier that morning, his fellow crew members
Reuther, Hopper, and Perry were wearing union T-shirts. On
April 4, he reported to work and Pellicer told him, Reuther,
Hopper, and Perry to hang back and the other employees
went to work and then Drummond told them they were being
fired for faulty work and the four were handed a piece of
paper and an envelope. At that time, Reuther and Hopper left
and Perry was talking to Bourassa and Raver was talking to
Drummond and said that he was not in the Union and asked
why he was being fired and Drummond asked him whether
he could prove that. Raver then turned to Bourassa and said
this isn’t fair and Bourassa said, ‘‘I don’t know who is or
who isn’t in the Union. I had to get rid of you all. Once this
all blows over, please come back next week and reapply.’’
Raver said, ‘‘You can count on that sir and I left.’’ On April
13, he approached Drummond on the west end and said he
was there to talk about getting his job back. Drummond
agreed and Raver asked him if he had any problem with his
work. Drummond replied that Raver’s work had seemed sat-
isfactory to him and further stated that he had not expected
the ‘‘union matter to last as long as it had and he said he
thought that I was caught up in something that was very un-
fair.’’ Drummond also told him that since the union matter
had come up he no longer had the power to hire and fire,
that Bourassa was not there but would be in the following
day, and to come in and talk to him. Raver returned the next
day, April 14, and spoke to Drummond again who repeated
that he had not had any problem with Raver’s work but that
he did not have time to worry about the union matter and
that Bourassa was going to ask Raver questions about wheth-
er he had known anything about the Union and why he had
not told Bourassa about it. He then saw Bourassa who said
he was in a meeting and did not have time to talk. Later that
day at the end of the workday, he approached Drummond
and Bourassa. He asked Bourassa, ‘‘Peter, what’s the deal?’’
Bourassa said, ‘‘I can’t do anything with you now. I had to
get rid of you all. I didn’t know who was who. I just got
rid of you all.’’ He told Bourassa that this was not fair.
Bourassa said, ‘‘Well I’ve got a lawyer, you talk to him.’’
Raver then left.
The General Counsel also called George Hopper who was
employed by Glebe between the end of January and April 4
as a journeyman electrician. He worked in Pellicer’s crew the
last month of his employment there. He received a raise the
last week of March, had not received any discipline, and was
complimented on his work by Drummond. He has been a
member of the Union for about 3 years. On March 31, he,
Perry, and Reuther wore union T-shirts to work. On Tuesday,
March 28, the Union set up an informational picket line
around the jobsite. On that day, Lowdermilk asked Hopper
and Perry what they thought of the picket line. The question
was directed at Perry and Hopper ‘‘backed out of the con-
versation.’’ On the next day, March 29, Lowdermilk ap-
proached Perry and Hopper and asked Perry ‘‘if he was con-
nected with the Union. Perry said the Union had good ideas
and side stepped the question.’’ That afternoon Lowdermilk
again approached Perry and asked him if he was in the
Union and Perry replied that he was. On Friday, March 31,
when he, Perry, and Reuther wore the union T-shirts,
Lowdermilk said he liked the shirts but didn’t like the insig-
nia on them and gestured like a puppet over Reuther’s head
and said, ‘‘You all look like union puppets.’’ On Monday,
April 3, Drummond came out with a camera and was walk-
ing around taking pictures of work done on the west end of
the building. Perry asked Drummond why he was taking pic-
tures and Drummond ‘‘just smirked at us and said he was
taking care of us.’’ On Tuesday, April 4, Drummond,
Lowdermilk, and Bourassa came out of the trailer and told
everyone to go to work but Hopper, Reuther, Perry, and
Raver. Pellicer stayed behind and asked whether this was
union related. Bourassa said it was not and told him to go
to work. Bourassa then handed them their paychecks and ter-
mination slips. Raver inquired what it was about and
Bourassa said, ‘‘You are all fired, leave the property imme-
diately or I’ll call the police.’’ He left. On April 13, he and
Reuther were walking the picket line outside of the gate of
the Memorial Hospital property and Lowdermilk stated that
four good men had lost their jobs.
The General Counsel also called Robert Taylor, who had
been the president of Respondent Aneco, Incorporated, for a
week prior to the hearing as Aneco Company of which he
had also been president was recently purchased. On October
12, 1989, Aneco was performing electrical work at the Me-
morial Hospital jobsite at Ormond Beach, Florida. This work
had been commenced by Aneco on or about Labor Day. On
August 25, 1989, Aneco entered into a contract with Centex-
Rodgers, a general contractor to perform electrical work that
Glebe had been obligated to perform under its contract with
Centex-Rodgers as Glebe was going out of business. He had
initially been contacted by Aneco’s branch manager in West
895GLEBE ELECTRIC
Palm Beach, Florida, who told him that Glebe was going out
of business and that Glebe wanted to know if Aneco wanted
to buy them out. He replied that he did not want to buy them
out but that he would talk with them. He met with Peter
Bourassa and Mario Garcia who were the president and vice
president of Glebe and they offered to sell Aneco their busi-
ness. He declined. Aneco, an electrical contractor, had been
attempting to obtain work with Centex-Rodgers, a large gen-
eral contractor, but had been previously unsuccessful. He
told Bourassa and Garcia that they had no business to buy.
They told him there was a possibility Aneco could take over
the job around Labor Day as there were several phases of
the job and phase 4 would be completed around Labor Day
and there would be one phase left to do. Aneco representa-
tives went to the jobsite, examined the prints given to them
by Centex-Rodgers and there was approximately ‘‘one hun-
dred thirty thousand and some odd dollars left in the job.’’
Aneco reviewed it and determined they would undertake
what was a small job in the hope they would get additional
work from Centex-Rodgers in the future. On August 14, he
reviewed a letter from the Union dated August 11, which
talked about Aneco purchasing the business of Glebe and
warned that Glebe had committed unfair labor practices for
which Aneco would be held accountable. He reviewed the
letter with his attorney. At one point during his negotiations
with Centex, Taylor was faxed an assignment of Glebe’s
contract with Centex but he rejected the assignment because
he did not wish to assume any liabilities of Glebe. There was
no agreement between Glebe and Aneco. There was a con-
tract between Centex-Rodgers and Aneco for Aneco to per-
form the electrical work on the Memorial Hospital jobsite
and Aneco did the remaining phase that Glebe had originally
been obligated to perform under its contract with Centex-
Rodgers. Aneco also hired nine employees who had formerly
worked for Glebe including Lowdermilk and Drummond.
Aneco also hired Mario Garcia who had been Glebe’s vice
president but he had not been on the Memorial Hospital
project. Additionally, Aneco used 2 of their own employees
on this project for a total complement of 11 employees. The
former Glebe employees were hired to maintain continuity
on the job and were paid the same wages and worked the
same hours as they had for Glebe. At the time it was per-
forming work on the Memorial Hospital project, Aneco had
a total complement of 315 employees.
The General Counsel also called Mario Garcia who
worked for Aneco from September 1989 until March 1990
and who was formerly vice president of Glebe before that.
Garcia testified that Glebe was performing a multiphase job
of electrical work at the Memorial Hospital until the last
week of August or first week of September 1989. Garcia
served as the project manager for Aneco. He handled the
Memorial Hospital project for Aneco about 2 months and
after that he did estimating for Aneco in Miami. Glebe was
unable to finish the Memorial Hospital contract and closed
its business. Glebe had two trailers on the Memorial Hospital
jobsite which were later used by Aneco after Glebe left. The
employees of Aneco who were on the Memorial Hospital
jobsite did the same type of work (electrical installation) that
the Glebe employees did when they were employed by
Glebe. Garcia was never physically located at the Memorial
Hospital jobsite. Glebe negotiated a change order with
Centex eliminating the final phase from the contract and
there were then no other contracts outstanding held by Glebe.
Glebe went out of business and with the last paycheck in
August, the employees were terminated. The former Glebe
employees who were hired by Aneco were required to fill
out applications and be interviewed in Miami before being
hired by Aneco. Centex-Rodgers retained $30,000 for any
warranty work that might be required on any of the phases
Glebe had performed. Under the terms of the agreement’s
deductive change order, Garcia was to represent both Glebe
and Aneco in its dealings with Centex Rodgers. Glebe left
two trailers at the Memorial Hospital jobsite as they were
‘‘in pretty bad shape so, really, there was no value, there was
no resale value. It’s basically you use them on the job and
then you junk. It would cost more to move them, probably,
to another location than to try to sell them.’’ Glebe aban-
doned those trailers. Aneco did not acquire or receive any
property of Glebe.
The Respondent called Robert Taylor, Aneco’s president,
who testified that Aneco had approximately 315 employees
and 5 offices in the State of Florida where it does business
as an electrical contractor. Nine of Glebe’s former employees
were hired at the Memorial Hospital construction site and
two of Glebe’s former employees were hired for a project in
Seminole County, Florida. Aneco did not purchase any assets
from or pay any money to Glebe and has never had any
business relationship with Glebe prior to or after Aneco en-
tered into the contract with Centex-Rodgers to do the elec-
trical work for phase 5 of the Memorial Hospital project.
Aneco was not required to obtain a bond for the Memorial
Hospital project by Centex-Rodgers as it would not agree to
put its bonding company at risk for work performed by
Glebe. Aneco undertook no responsibility for work per-
formed by Glebe. Aneco did not receive any business records
of Glebe. Although Aneco used the two trailers which had
been abandoned at the Memorial Hospital by Glebe, it had
no agreement to do so with Glebe and has no claim to an
ownership interest in the trailers.
Analysis
A. The Alleged Unfair Labor Practices
I credit the entire testimony of the General Counsel’s wit-
nesses concerning the unfair labor practices committed by
Respondent Glebe all of which was unrebutted as Glebe did
not answer the amended complaint or appear or participate
at the hearing. Respondent Aneco disclaims knowledge of
the unfair labor practices and defends solely on the
successorship issue which will be treated hereinafter. I, ac-
cordingly, find that the General Counsel has established a
prima facie case of violations of Section 8(a)(1) and (3) of
the Act by Respondent Glebe which has been unrebutted and
that Respondent Glebe violated the Act as follows:
1. Respondent Glebe violated Section 8(a)(1) of the Act by
the interrogation of its employee Perry by its Supervisor
Thomas Lowdermilk on March 28 and 29, 1989, about his
union sentiments and by Lowdermilk’s statement to Perry on
March 29, 1989, that Glebe would pack the unit if the em-
ployees attempted to obtain an election and that Glebe would
never sign a union contract, thus threatening the employees
with the futility of supporting the Union and by
Lowdermilk’s question to Perry of March 31, as to why he
did not quit if he did not like his job after Perry and other
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees wore union T-shirts on the job, which constituted
an unspecified threat of reprisal because of Perry’s support
for the Union. It further violated Section 8(a)(1) of the Act
by Lowdermilk’s inquiry of Perry on April 3, 1989, as to
why he did not quit because everyone was getting sick and
tired of the things going on on the job as this constituted an-
other unspecified threat of reprisal in retaliation for Perry’s
support of the Union.
2. Respondent violated Section 8(a)(1) of the Act by the
taking of photographs by Superintendent Drummond of the
employees’ work and his comments that there was shoddy
workmanship which incident occurred on April 3, 1989, and
which actions and comments I find were in retaliation for the
employees’ support of the Union.
3. Respondent violated Section 8(a)(1) of the Act by
Lowdermilk’s inquiry of employee Daniel Reuther on April
28 whether he was in the Union and his statement that Glebe
would never go union, thus indicating the futility of the em-
ployee’s support of the Union. Respondent violated Section
8(a)(1) of the Act by Lowdermilk’s inquiry of Reuther on
April 29 whether he was in the Union and his statement that
Glebe would never be in the Union also indicating the futil-
ity of Reuther’s support for the Union.
4. Respondent violated Section 8(a)(1) of the Act by the
inquiry made by Superintendent Drummond on April 4,
1989, to employee Joshua Raver whether he could prove he
was not in the Union, and by Owner Bourassa’s statement
of April 4, 1989, ‘‘I don’t know who is or who isn’t in the
Union. I had to get rid of you all,’’ both of which comments
by Drummond and Bourassa immediately following the dis-
charge of Raver along with the three other employees after
Raver protested that he was unfairly discharged because he
had not been a union supporter. The initial inquiry by Drum-
mond constituted unlawful interrogation in which the state-
ment by Bourassa constituted an unlawful threat as employ-
ees had been discharged because of their union membership.
5. Respondent violated Section 8(a)(3) and (1) of the Act
by its discharge of employees Daniel A. Reuther, George C.
Hopper, Stephen A. Perry, and Joshua A. Raver Jr. because
of the employees’ support of the Union.
B. The Successorship Issue
The General Counsel contends that Aneco is a successor
of Glebe and that a finding of the foregoing violations should
accordingly, also be made against Aneco and that Aneco
should be required to remedy the aforesaid violations. The
Respondent defends on the ground that it is not a successor
and that even if it is found to be a successor, it should not
be required to remedy the violation.
Glebe was a subcontractor performing the electrical work
on the Memorial Hospital with the general contractor
Centex-Rodgers, but Glebe was losing money and decided to
go out of business. Its representatives contacted Aneco in an
attempt to sell its business to Glebe but Aneco refused. At
the time Glebe had one or two other jobs in the Florida area.
Glebe and Centex-Rodgers agreed to segregate out the final
phase of the electrical work from the contract. Aneco and
Centex-Rodgers agreed that Aneco would finish the final
phase of the work and entered into an agreement concerning
this which mentions an unwritten or tacit agreement between
Glebe and Aneco to this effect. At one point in the negotia-
tions between Aneco and Centex-Rodgers, Centex-Rodgers
sent Aneco an agreement assigning Glebe’s contract to
Aneco but Aneco refused to accept the assignment. Aneco
also refused to accept liability for any work performed by
Glebe, and Centex-Rodgers retained $30,000 due Glebe
under the contract for the completed work to cover any war-
ranty work that Glebe could no longer perform as it was
going out of business. It is undisputed that the Union put
Aneco on notice of the unfair labor practice charges filed
against Glebe. Aneco’s officials inquired of Glebe con-
cerning these charges and relied on the assurance of Glebe’s
officials that the charges were being taken care of but Aneco
did not otherwise attempt to protect itself against any liabil-
ity therefor. Glebe went out of business approximately Labor
Day or early September 1989 and Aneco took over the final
phase of the contract at that time. There was no purchase
agreement or any contract of any kind entered into between
Glebe and Aneco and Aneco did not acquire any assets of
Glebe but did use two trailers as an office and supply storage
which trailers had been abandoned by Glebe on the jobsite
because of their poor condition and the conclusion that it
would cost more to move them than it was worth. Aneco had
a total complement of over 300 employees in September
1989. It hired 11 employees to perform the Memorial Hos-
pital job, 7 of whom were the former employees of Glebe
on the jobsite and Glebe’s project superintendent, Drum-
mond, and foreman, Lowdermilk. It also hired Glebe’s
former vice president in its Miami operations. It is undis-
puted that Aneco performed the same type of work as Glebe
had performed and that it paid the employees hired to do this
work the same or similar wages and benefits as had Glebe.
Based on the foregoing, the General Counsel contends that
Aneco is a successor to Respondent, and as such, is liable
to remedy Glebe’s unfair labor practices under Golden State
Bottling v. NLRB, 414 U.S. 168 (1973), in which the Su-
preme Court adopted the Board’s decision in Perma Vinyl
Corp., 164 NLRB 968 (1967), enfd. sub nom. United States
Pipe Co. v. NLRB, 398 F.2d 544 (5th Cir. 1968), which held
that an employer acquiring a business with knowledge of the
predecessor’s unfair labor practices that continues operating
the business ‘‘without interruption or substantial change’’
was liable to remedy the predecessor’s Section 8(a)(1) and
(3) violations. In determining whether there is ‘‘substantial
continuity,’’ the Board considers the continuity of the oper-
ation of the business (i.e., hiatus or not and if so was it sig-
nificant), plant, work force, jobs, ‘‘working conditions, su-
pervisors, machinery and equipment, methods of production,
products or services and customers,’’ citing Aircraft Magne-
sium, 265 NLRB 1344, 1345 (1982), enfd. 730 F.2d 767 (9th
Cir. 1984), cited in Fall River Dyeing Corp. v. NLRB, 482
U.S. 27, 43 (1987); Great Lakes Chemical Corp., 280 NLRB
1131, 1132 (1986).
Aneco argues that it is not a Golden State successor as it
made no purchase of any kind from Glebe and received no
assets from Glebe and rejected an assignment of Glebe’s sub-
contract which had been requested by Centex-Rodgers.
Aneco also asserts that it hired only 10 former employees of
Glebe which had an average of 35 employees when it went
out of business whereas Aneco had a total of 315 employees
at the time. Aneco further argues that since there was no pur-
chase of Glebe or its assets by Aneco. Aneco was unable to
reflect in the price paid for the business, the potential liabil-
ity for remedying the unfair labor practices as the Court
897GLEBE ELECTRIC
noted the employer could have done in Golden State. Aneco
argues further there was no business of Glebe to acquire and
that it did not have specific knowledge of Glebe’s unfair
labor practices. It also argues that whereas in Golden State
the employees continued to work in the plant, in the instant
case construction work is involved and such work is project
to project and phase to phase within a project. It also argues
that there was no evidence that the former Glebe employees
were not fully aware they were working under a new sepa-
rate contractor and that public policy would not have been
better served if the contractor and the hospital had been left
dangling in the wind with unfinished hospital construction or
if the former employees of Glebe had been denied rehire be-
cause of Aneco’s desire to protect itself from successorship
status. Aneco also attempts to distinguish the Supreme
Court’s decision in NLRB v. Burns Security Services, 406
U.S. 272 (1972), in which Burns won a contract to supply
security services to Lockheed from Wackenhut Corp. and
wherein Burns hired 27 of Wackenhut’s former employees
but refused to recognize the Union and to honor the contract
signed by the Union and Wackenhut, and in which the Court
held that Burns could be required to bargain with the Union
but held Burns could not be held to the terms of a contract
to which it had never agreed. Aneco argues that in the
Burns’ case the Union was certified unlike the instant case.
It further argues that the Burns case demonstrates that the
Board’s authority to impose a remedy does not extend as far
as that sought by the General Counsel in the instant case, cit-
ing Burns at 286:
Here there was no merger or sale of assets, and there
were no dealings whatsoever between Wackenhut and
Burns. . . . Burns purchased nothing from Wackenhut
and became liable for none of its financial obligations.
Burns merely hired enough of Wackenhut’s employees
to require it to bargain with the Union as commanded
(by § 8a(5) and § 9(a)). But this consideration is a
wholly insufficient basis for implying either in fact or
in law that Burns has agreed or must be held to have
agreed to honor Wackenhut’s collective bargaining
contract. [Emphasis added.]
Aneco further relies on Howard Johnson Co. v. Detroit
Joint Board, 417 U.S. 249 (1974), in which a subsequent
employer was held to have no duty to honor the arbitration
provisions of a prior contract based on the Burns rule that
substantive duties could not be enforced on a ‘‘successor’’
under the circumstances.’’
The General Counsel relies on Perma Vinyl, supra, in
which the Board held the offending employer and its suc-
cessor (by reason of a purchase) liable for remedying the
predecessor’s unfair labor practices by reinstating the
discriminatees and making them whole for any loss of pay
since the date it succeeded to the predecessor’s business and
wherein the Board stated at 969:
Especially in need of help, it seems to us, are the
employee victims of unfair labor practices who, because
of their unlawful discharge, are now without meaning-
ful remedy when title to the employing business oper-
ations changes hands.
We believe that the Board is empowered to require
some effective action in the matter of remedying unfair
labor practices and
We are persuaded that one who acquires and oper-
ates a business of an employer found guilty of unfair
labor practices in basically unchanged form under cir-
cumstances which charged him with notice of unfair
labor practice charges against his predecessor should be
held responsible for remedying his predecessor’s unlaw-
ful conduct.
The Board went on to state in Perma Vinyl that the bona fide
purchaser became the beneficiary of the predecessor’s unfair
labor practices and that his potential liability could be pro-
tected in the price he pays when acquiring the business. See,
also, Bell Co., 243 NLRB 977 (1979), in which suc-
cessorship was found by the Board where the new employer
succeeded to the business with knowledge of the prede-
cessor’s unfair labor practices and Aircraft Magnesium,
supra, in which the Board set out the traditional criteria for
the test of substantial continuity as follows:
(1) Business operations, (2) plant, (3) work force, (4)
jobs and working conditions, (5) supervisors, (6) ma-
chinery, equipment and methods of production, and (7)
product or services.
In Am-Del-Co., 234 NLRB 1040 (1978), cited by the Gen-
eral Counsel, relying on the Board’s decision in Merchants
Home Delivery Service, 230 NLRB 290 (1977), the adminis-
trative law judge found Merchants to be a successor to Am-
Del’s owner operator delivery contract with Penney and that
Merchants had knowledge of unfair labor practice litigation
involving its predecessor and was thus obligated to offer re-
instatement upon application to employees discriminatorily
laid off by Am-Del. In the Am-Del case, as in the instant
case, there was no contract or purchase of assets between
Merchants and Am-Del but the Board nonetheless found
Merchants to be a successor. In her decision, the administra-
tive law judge noted at footnote 12 that although Golden
State had involved a bona fide purchaser successor, ‘‘the
Board has indicated that the principle also applies where the
successor is a replacement with no direct relationship or
dealings with the predecessor.’’ Citing Mansion House Cen-
ter Management Corp., 208 NLRB 684 (1974); Eastman
Kodak Co., 194 NLRB 220 (1971).
After a review of all the foregoing, I find principally in
reliance on Golden State, Perma Vinyl, Burns, and specifi-
cally on Am-Del-Co., Inc. which involved a similar factual
situation to the instant case and the other cases cited by the
General Counsel that the facts in the instant case support a
finding that Aneco is a successor to Glebe in this case. In
the instant case, I find Aneco was clearly on notice of the
unfair labor practice charges against Glebe and did not elect
to investigate further or specifically to protect itself from po-
tential liability therefor although it clearly could have done
so. In virtually all other aspects than the purchase aspect,
Aneco meets the criteria set out in the Aircraft Magnesium
case and as Am-Del-Co. holds, it is not essential to be a pur-
chaser to be held a successor. Accordingly, I find Aneco is
a successor to Glebe and shall order the appropriate remedy
in accordance with Am-Del-Co., Inc. See also Capital Steel
& Iron Co., 299 NLRB 484, 485 (1990), in which the Board
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendments to 26 U.S.C. § 6621.
recently reiterated the Supreme Court’s position in Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27 (1987), that the criteria
demonstrating ‘‘substantial continuity’’ are ‘‘to be assessed
primarily from the perspective of the employees.’’
CONCLUSIONS OF LAW
1. Respondent Glebe Electric, Inc. is an employer within
the meaning of Section 2(6) and (7) of the Act.
2. Respondent Aneco Company is a successor to Glebe
Electric, Inc. and an employer within the meaning of Section
2(6) and (7) of the Act.
3. The International Brotherhood of Electrical Workers,
Local Union 756, AFL–CIO is a labor organization within
the meaning of Section 2(5) of the Act.
4. Respondent Glebe Electric, Inc. violated Section 8(a)(1)
of the Act by its interrogation of its employees concerning
their union membership and sympathies.
5. Respondent Glebe Electric, Inc. violated Section 8(a)(1)
of the Act by its issuance of unspecified threats of reprisal
and threats of futility of the employees support of the Union
because of the employees engagement in protected concerted
activities on behalf of the Union.
6. Respondent Glebe Electric, Inc. violated Section 8(a)(3)
of the Act by the discharge of employees Daniel A. Reuther,
George C. Hopper, Stephen A. Perry, and Joshua A. Raver
Jr. because of their engagement in union activities.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Glebe has violated Section
8(a)(1) and (3) of the Act, it shall be ordered to cease and
desist therefrom, and to take certain affirmative actions, in-
cluding the posting of an appropriate notice designed to ef-
fectuate the purposes of the Act. It shall also be ordered to
rescind its discharge of its employees Daniel A. Reuther,
George C. Hopper, Stephen A. Perry, and Joshua A. Raver
Jr., offer them full reinstatement to their former positions or,
if their former positions no longer exist, to substantially
equivalent positions, expunge its files of any reference to the
unlawful discharges and advise them in writing that said dis-
charges will not be used in any adverse manner against them
in any manner and make them whole for any loss of wages
or benefits sustained by them since the date of their unlawful
discharge with restoration of all seniority rights and privi-
leges. All backpay and benefits shall be with interest and
shall be computed in accord with F. W. Woolworth Co., 90
NLRB 289 (1950). Interest shall be computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).5 It is further recommended that Aneco Com-
pany as the successor of Glebe, Inc. shall be liable for all
of the foregoing remedy jointly and severally with Glebe,
Inc.
[Recommended Order omitted from publication.]