Harbert International Services

National Labor Relations Board - Board DecisionsAug 16, 1990

299 N.L.R.B. 472 (N.L.R.B. 1990)

472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Harbert International Services and National Asso- ciation of Government Employees, affiliated with Service International Union, AFL-CIO. Case 17-CA-13953 August 16, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On June 5, 1989, Administrative Law Judge Wil- liam N Cates issued the attached decision The Re- spondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order The judge found that the Respondent is a succes- sor employer to the United States Army and that it violated Section 8(a)(5) by refusing to recognize and bargain with the Union as the representative of a unit of the Respondent's employees who perform physical maintenance services at the United States Army base (the base) at Fort Leonard Wood, Mis- soun We disagree and find that the evidence does not establish that a majority of the Respondent's employees in the appropriate unit had been em- ployed in the unit represented by the Union prior to June 1, 1988 1 Prior to June 1, the Union represented approxi- mately 763 wage-grade employees who were em- ployed in certain general areas of the base, includ- ing the Army Training Center Wage-grade em- ployees in the Army Training Center functioned in separate, identifiable groupings of employees, re- ferred to as directorates, which may be likened to a division or department Wage-grade employees who performed maintenance on the buildings, grounds, and roads at the base operated within the Directorate of Engineering (DEH) Just prior to June 1, there were approximately 219 wage-grade employees employed in DEH The Respondent took over the DEH functions on June 1, having been selected to do so pursuant to a bid- ding process The Respondent employed approxi- mately 150 employees At issue is whether the Respondent is a succes- sor employer to the Army and thus obligated to recognize and bargain with the Union The judge found that the Respondent had a substantial and I All subsequent dates are in 1988 unless indicated otherwise representative complement of its work force on the job by June 202 and that a majority of the employ- ees working on June 20 were former DEH wage- grade employees represented by the Union We do not agree with the latter fmdmg The parties stipulated at the hearing to the status of 142 unit employees 72 employees were wage- grade employees who had formerly worked for DEH and 70 employees were new hires The status of an additional 14 employees was in dispute at the hearing The judge did not include six of the dis- puted employees in the bargaining unit because they were temporary or supervisory employees Of the remaining eight employees whom the judge in- cluded in the unit, four were former DEH wage- grade employees and four were newly hired by the Respondent Thus, according to the judge, there were 150 employees in the unit on June 20, and 76 (a majority) were former DEH wage-grade em- ployees The Respondent filed exceptions to the judge's findings as to Wood, Hazen, Brown, Aqui- lera, Madonna, Prince, Arnold, and French 3 We agree with the judge that employees George Wood and Ricky Hazen are to be included in the unit The Respondent contends that because Wood and Hazen were classified as temporary employees when they worked for DEH, they should not be included in the unit for successorship purposes Granville Jones, a labor relations specialist at Fort Leonard Wood, testified that a temporary employ- ee is one who is hired for a definite period of time, usually 1 year He further testified, however, that temporary appointments can be, and are regularly, extended in 1-year increments for up to 4 years In fact, Hazen worked for DEH from July 1985 to April 1988 Thus, the evidence .s insufficient to es- tablish that, when hired by DEH, Hazen and Wood had definite termination dates Both Wood and Hazen were included in the bar- gaining unit when employed by DEH Both em- ployees were hired by the Respondent as regular employees and were still employed by the Re- spondent at the time of the hearing We shall there- fore include them in the unit as former wage-grade employees represented by the Union We also agree with the judge that John Brown is not a supervisor and that he is to be included in the unit as a former DEH employee Brown held the position of lead pest controller, and the Respond- ent contends he is a supervisor The record is un- clear whether and, if so, when Brown had any em- 2 No party disputes this finding 3 No exceptions were filed as to Adams and Pearce, whom the judge did not include in the unit No exceptions were filed as to Parsons, Holts- man, Bledsoe, and Aikens, whom the judge included in the unit as new lures 299 NLRB No 64 HARBERT INTERNATIONAL SERVICES 473 ployees working for him To the extent there were other employees in the pest control department under his direction, however, it is clear that Brown assigned them work because of his expertise, not because he was exercising supervision on behalf of the Respondent We thus find that Brown is not a supervisor and that he is to be included in the unit as a former wage-grade employee The judge found that employees Aquilera and Madonna were temporary employees who should not be included in the unit We disagree with this finding Aquilera and Madonna, neither of whom had previously worked for DEH, were hired by the Respondent and began work in the shipping and receiving department on June 8 Neither had signed a "job offer acceptance/refusal form" prior to their June 8 employment date The Respondent used this form when it offered a prospective em- ployee an employment opportunity The form notes the job title, hourly wage, date of the job offer, and starting date and contains signature lines for the prospective employee to indicate his ac- ceptance or refusal of the job Aquilera signed a form on July 6 when she was offered and accepted a job as a material expediter Aquilera was em- ployed at the time of the hearing Madonna left the Respondent's employ on July 22 The judge, in determining that Aquilera and Ma- donna were temporary employees, relied on the fact that neither had signed a job offer acceptance/refusal form which, the judge found, was standard procedure for regular employees The judge's reliance on the absence of this form for Aquilera and Madonna is misplaced Project Man- ager Bennett admitted that the Respondent was not consistent in its use of the employee acceptance form and that, due to the chaotic hiring situation that existed at the time of the Respondent's takeov- er, not all personnel files were complete 4 Thus, because the Respondent's records are contradictory and its practice concededly inconsistent, we cannot rely solely on the absence of a job offer acceptance/refusal form to find an employee was temporary We conclude, contrary to the judge's fmdmg, that the evidence fails to show that Aquilera and Madonna were temporary employees Because they were both on the payroll on June 20, we shall in- clude them in the unit as new hires The judge included Ricky Prince in the unit as a former wage-grade employee, even though he was not employed on the date the judge considered critical in determining the successorship question We disagree Prince worked for the Respondent In fact, the record contains a form signed by a temporary employee from June 1 to 4 He was not in the Respondent's employ as of June 20 Because Prince was not an employee on June 20, he shall not be included in the unit In sum, we find there were 151 employees in the unit on June 20â€”the 142 to who status the parties stipulated plus Wood, Hazen, Brown, Aquilera, and Madonna and 4 new hires whom the judge includ- ed and to which no party has excepted Only 75 of the 151 were former wage-grade employees repre- sented by the Union 5 Because the record estab- lishes that on June 20 a majority of the Respond- ent's work force in the appropriate unit were not former DEH wage-grade employees represented by the Union, we find that the Respondent was under no obligation to recognize and bargain with the Union and that it did not violate the Act by refus- ing to do so 6 ORDER The complaint is dismissed The 75 includes the 72 stipulated employees plus Wood, Hazen, and Brown We find It unnecessary to determine if the judge was correct in excluding new hires Arnold and French from the unit as temporary em- ployees Their inclusion in the unit would not change our findmgs Â° See Base Services, 296 NLRB 172 (1989), enfd in unpublished opin- ion, No 89-2499 (8th Or 1990) We find it unnecessary to decide other issues the judge discussed Richard C Auslander, Esq , for the General Counsel Lawrence D Levien and Dawn E Starr, Esqs (Akin, Gump, Strauss, Hauen & Feld), of Washington, D C, for the Respondent Brent J Jamzes, Esq , of St Louis, Missouri, for the Charging Party DECISION STATEMENT OF THE CASE WILLIAM N CATES, Administrative Law Judge I heard this case in Mission (Kansas City), Kansas, and Fort Leonard Wood, Missouri, on February 21 and 22, and March 13, 1989 1 On November 22, 1988, 2 the Re- gional Director for Region 17 of the National Labor Re- lations Board (the Board) issued a complaint and notice of hearing (complaint), based on an unfair labor practice charge filed on July 18, alleging violations of Section 8(a)(5) and (1) of the National Labor Relations Act, 29 U S C Â§ 151 et seq (the Act or NLRA) All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- amine witnesses, and to file bnefs Based on the entire record, on the briefs filed by the parties, and on my observation of the demeanor of the witnesses, I make the following 1 The instant case was consolidated for tnal purposes with Base Serv- ices, Inc (Base), Case 17-CA-13954, however, upon good cause shown, I granted Base's motion to sever the cases 2 Unless otherwise stated, all dates occurred in 1988 474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I JURISDICTION At times material, Harbert International Services (Har- bert or the Company) has been a corporation duly orga- nized and existing by virtue of the laws of the State of Delaware and has been, and is, engaged in the physical maintenance of military bases including the United States Army base (the Army) in Fort Leonard Wood, Missou- ri 3 Since on or about June 1, Harbert, in the course and conduct of its business operations, has performed serv- ices valued in excess of $500,000 for the Army at its Fort Leonard Wood, Missouri base, and has purchased and re- ceived products, goods, and materials at that facility valued in excess of $50,000 directly from points outside the State of Missoun The complaint alleges, and I find, that Harbert is, and at times material has been, an em- ployer engaged in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATION The complaint alleges, the evidence establishes, 4 and I find, the Union is, and at times material has been, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Issues and Background The fundamental issues may, for discussion purposes, generally be described as follows 1 Whether Harbert hired, as a majority of its employ- ees, the former unionized predecessor's employees 2 Whether Harbert is a successor under the Act to the Army, thereby having an obligation under the Act to recognize and bargain with the Union which had been the collective-bargaining representative of certain of the maintenance employees of the Army 3 Whether there has been fragmentation of the Army bargaining unit such as to preclude imposing successor- ship obligations on Harbert 4 Whether the Union has committed an "overt act" that would be inconsistent or in conflict with its position as the exclusive representative of Harbert's employees 5 Whether the presumption that the employees contin- ue to desire to be represented by the Union is valid in light of the fact their employment status changed from the public sector to the pnvate sector B Facts On October 29, 1968, the Army voluntarily recognized the Union as the collective-bargaining representative of all wage-grade employees employed at Fort Leonard Wood, Missouri Thereafter, an amendment of recogni- tion issued amending the unit description to conform to the requirements of Executive Order 11491 These em- ployees have been covered by a series of labor agree- 3 The Fort Leonard Wood facility is the only one involved 4 Evidence on the Union's status as a labor organization within the meaning of the Act is more fully addressed later in this decision ments between the Union and the Army The most recent agreement by its "roll-over" provisions is effective until November 1990 Pnor to June 1, the Union repre- sented approximately 763 wage-grade employees in cer- tain general areas at the base namely, Headquarters, U S A Medical Department Activity, U S Army Com- missary, U S Army Communications Command-Fort Leonard Wood, and U S Army Training Center Engi- neer, and Fort Leonard Wood There were approximate- ly 171 job classifications covered in the agreement be- tween the Union and the Army The wage-grade employees in the Army Training Center functioned in separate identifiable groupings of employees Those wage-grade employees that were uti- lized to perform maintenance on buildings, roads, and grounds at the base operated under the Directorate of Engineering (DEH) 5 There are approximately 12 differ- ent directorates at the base 6 Harbert was selected, after a cost effective study and pursuant to a bidding process, to be the contractor to perform the functions previously performed at the Army Training Center by the employ- ees in DEH 7 On June 1, Harbert commenced perform- ing the same maintenance functions previously per- formed by DEH Harbert has the same facilities, utilizes the same equipment, and services the same customerâ€” the Armyâ€”as did DEH Just prior to June 1, there were approximately 219 wage-grade employees employed in DEH DEH utilized its work force in 56 different job classifications and had a supervisory force of approximately 17 to 18 Harbert em- ploys approximately 150 workers in approximately 30 job classifications and utilizes 7 supervisors, 3 of whom had worked previously for DEH DEH utilized its work force in various shops that generally followed craft lines, such as for example, plumbing, electrical, heating, car- pentry, welding, sheet metal, and preventive maintenance shops DEH had a supervisor in charge of each of its shops Former DEH Preventive Maintenance and cur- rent Harbert Supervisor Doyle Meredith testified that the employees 8 in DEH's preventive maintenance shop performed their functions across craft lines on a regular- ly scheduled basis throughout the base Service orders that were received from the base when DEH performed the work were assigned to the particular craft shops in- volved Harbert functions with two overall shops, namely, a preventive maintenance shop and a service order shop Harbert's preventive maintenance shop em- 5 Employees of DEH also maintained the utility systems at the base in- cluding the electrical distribution system They also maintained the water and sewer systems and serviced the heating and air conditioning equip- ment on base Directorates at the base may generally best be described as depart- ments or bureaus of the base with certain distinct functions or missions to accomplish At approximately the same time and pursuant to the same process base was selected as the contractor to perform the functions of the Direc- torate of Logistics (DOL) The wage-grade employees in DOL per- formed maintenance on equipment and issued supplies to and provided transportation for the Army troops at Fort Leonard The matter related to base is covered in a companion case (Case 17-CA-13954) I Issued my decision in base on May 22, 1989 (JD(ATL)-17-89) 8 DEH had approximately 12 employees in its preventive maintenance shop HARBERT INTERNATIONAL SERVICES 475 ployees9 perform all scheduled preventive maintenance throughout the base Harbert's service order shop, which has employees of all needed trades and crafts, receives all other service orders and the orders are assigned to the employees felt to be capable of performing the serv- ices requested Harbert cross-trains its employees to the extent practical and possible The Union, while representing employees at DEH and other directorates, did not have the authonty to bargain with the Army concerning, among other things, wages, cost-of-living increases, overtime pay, pension or retire- ment plans, health or life insurance coverage, vacation pay, holidays, or the accrual of sick leave The Union was permitted to, and did in fact, bargain with the Army concerning the taking of sick and vacation leave as evi- denced by the collective-bargaining agreement that cov- ered, among other employees, those employed in DEH The management-rights provisions of the Federal Labor Relations Authonty (FLRA) that governed the relation- ship between the Union and the Army also placed re- stnctions on the bargaining powers of the Union For ex- ample, under the FLRA management is exempt from having to bargain over such things as the decision to hire or assign work to employees, discipline employees, con- tract out work, or to formulate performance evaluation standards The Union could not call for or participate in a strike against the Army The Union did have the au- thority to bargain with the Army concerning training provided employees with DEH Furthermore, the Union could challenge the compelling need for Army-wide di- rectives that affected DEH or other covered employees before such directives or regulations were instituted, however, once the Army established a compelling need for any regulations the Union's right to challenge the di- rectives or regulations ended The Union could thereaf- ter only bargain with the Army about the implementa- tion of such directives or regulations The Army was not required to bargain with the Union concerning the need for layoffs among, for example, the employees in DEH, however, certain of the procedures to be followed in re- ductions in force were subject to negotiations The Union through its various locals represents Feder- al sector employees pursuant to the FLRA, private sector employees pursuant to NLRA, and state employ- ees pursuant to statutes of the States involved The scope of the Union's bargaining authority is governed by the employment status (i e, Federal, State, or private enter- prise), of the employees involved The Union asked for recognition and bargaining on June 1 Harbert Project Manager John Bennett rejected the Union's request on that same date, stating such could only happen after a Board-conducted election had been held in which the employees selected the Union as their bargaining representative Â° Harbert has approximately 37 employees in its preventive mainte- nance shop B Discussion 1 Analysis and conclusion It is settled law under the Board's and Court's tradi- tional test that when a new employer takes over the busi- ness of a formerly unionized operation and does so with a substantial and representative complement of bargain- ing unit employees, a majority of whom had been simi- larly employed by the predecessor, the new employer will be considered a "successor employer" and will in- hent certain of the predecessor's bargaining obligations The obligations the successor inherits includes recogniz- ing and bargaining in good faith with the union, but does not bind it to the predecessor's collective-bargaining agreement with the union NLRB v Burns Security Serv- ices, 406 U S 272 (1972), Fall River Dyeing Corp v NLRB, 482 U S 275 (1987) In determining whether there is "substantial continuity" between the enterprises the Court-approved approach has been to consider the totality of the circumstances with consideration given, but not limited to, the following factors, (1) whether there has been a continuation of the same business oper- ations, (2) whether the new employer utilizes the same facilities as the previous employer, (3) whether the new employer utilizes the same or substantially the same work force, (4) whether the same jobs exist under the same working conditions, (5) whether the new employer utilizes the same or substantially the same supervisors, (6) whether the new employer utilizes the same machinery, equipment, and/or methods of production, (7) whether the new employer manufactures the same products, offers the same services, and/or has the same customers, and (8) whether there has been a hiatus between the pre- vious and the new employer's operations None of these factors is dispositive See NLRB v Band-Age, Inc , 534 F 2d 1 (1st Cir 1976), cert denied 429 U S 921 (1976) These factors must be viewed from the employee's prospective, that is whether their job situ- ation has so changed that they would change their atti- tudes about being represented See Derby Refining Co, 292 NLRB 1015 (1989), see also NLRB v Security-Co- lumbian Banknote Go, 541 F 2d 135 (3d Cir 1976) A mere change in ownership without an essential change in working conditions would not be likely to change em- ployee attitudes about representation NLRB v Burns Se- curity Services, supra at 278-279 The presumption about employee attitudes toward representation is necessary to promote stability during changes of employers and to reduce industrial strife As the Board stated in Derby Re- fining Go, supra at 1015 I Both the union and the employees are vulnerable during this period and hard-earned bargained-for rights can easily be diminished Fall River Dyeing Corp v NLRB, 482 U S 27, 39 (1987) Employees, especially during such times, are worried about re- taining their jobs and may shun the union if they feel it will help their chances of doing so If no pre- sumption existed, corporate transformation could be used to avoid the union and exploit employees' 476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fears Id Such a situation would not be conducive to industrial peace The significant time for determining what percentage of the new employer's employees was former employees of the predecessor is when a demand for bargaining has been made and "a substantial and representative comple- ment" of the new employer's work force is on the job Fall River Dyeing, supra The Board is not precluded from finding that succes- sorship status exists simply because the predecessor was not covered by the Act, cf Boeing Co, 214 NLRB 541, 548, 559 (1974) Likewise the Board has held that a mere diminution in the employee complement of the bargain- ing unit does not relieve the successor from its duty to bargain, Lloyd Flanders, 280 NLRB 1216, 1219 (1986) Nor does the fact the successor only takes over a portion of the operations of the predecessor preclude a succes- sorship findmg See G T & E Data Services Corp, 194 NLRB 719, 720-721 (1971) As noted in Stewart Granite Enterprises, 255 NLRB 569 at 573 (1981), and alluded to in Louis Pappas' Restaurant, 275 NLRB 1519 (1985) [I]t is established that successorship obligations are not defeated by the mere fact that only a portion of a former union-represented operation is subject to the sell or transfer to a new owner, so long as the employees in the conveyed portion constitute a sep- arate appropriate unit, and they comprise a majority of the unit under the new operation [case citation omitted] Before focusing on the successorship issue it is helpful to address Harbert's contention that the Union is not a labor organization within the meaning of the Act Section 2(5) of the Act defines a "labor organization" as Any organization of any kind, or any agency or em- ployee representation committee or plan, in which employees participate and which exists for the pur- pose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work Thus, a labor organization must be one in which employ- ees participate and which exists for the purpose of dealing with employer's concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work See, e g, United Truck & Bus Service Co, 257 NLRB 343 (1981) It is clear that the Union admits to membership and represents employees from, among other sectors, the private sector Thus, it exists, in part, as an organization in which employees, within the mean- ing of the Act, participate, and it deals with employers, within the meaning of the Act, concerning the requisite matters outlined in Section 2(5) of the Act The particular Local-R14-32-that the Union had des- ignated to deal with the predecessor (the Army) has pro- visions in its constitution and bylaws relating to member- ship qualifications The membership qualifications set forth at Article II are Section 1 Qualifications Any person, male or female, who is presently employed by the Federal Government of the United States or retired from government service (as provided for in the National Constitution and By-laws) shall be eligible to join or maintain membership in the National Association of Government Employees regardless of creed, race, color, age, or national origin Thus, at first glance it would appear that Local R14-32 does not admit non-Federal Government employees to membership and as such would not be an organization in which employees, as defined in the Act, participate However, the provision in question for membership by Federal Government employees is not exclusive as was the case in United Truck & Bus Service Co, supra, where the Board found the union in that case not to be a labor organization within the meaning of the Act, because pri- vate sector employees were prohibited from membership in that union There is nothing in Local R14-32's consti- tution and bylaws that absolutely prohibits membership by non-Federal Employees Although Local R14-32's President Leonard Johnson testified that in order to be a member of Local R14-32 one had to be employed by or retired from the Federal Government such overall exclu- sion of non-Federal employees is not set forth in or re- quired by the Local's constitution and bylaws Further- more, the Union, including Local R14-32 has by its ac- tions, clearly expressed a willingness to represent the em- ployees in question It is this willingness and desire to represent the employees in question that is the control- ling factor, rather than Local R14-32's constitutional ability to do so See Gino Morena Enterprises, 181 NLRB 808 (1970) Thus, I conclude that the Union (including designated Local R14-32) is a labor organization within the meaning of the Act 10 Turning now to the successor issue I shall consider that issue under the traditional approach to such cases before addressing the Company's contention the Board's legal presumption of successorship should not apply where the predecessor was the Federal Government and the new employer is from the private sector In applying the traditional successorship test, I am not unmindful that some of the various factors overlap I have, where it has been appropnate for discussion and analysis purposes, consolidated factors Although Harbert began its operations on June 1 it is necessary to determine when it had a representative complement of its work force employed so as to deter- mine if it hired as a majority of its employees the former unionized predecessor's employees I am persuaded Harbert had a substantial and repre- sentative complement of its work force on the job by June 20 " The parties are in disagreement as to the 10 In any event, the evidence indicates the Union designates its locals depending on the employment sector of the employees Involved Thus, no impediment to the Union representing the employees in question exists " I note the Union made a demand for recognition and bargaining on June 1 HARBERT INTERNATIONAL SERVICES 477 status of some employees They are, however, in agree- ment about the status of 142 employees that were em- ployed as of June 16 They agree that 72 of them had worked for DEH and 70 had not There are nine em- ployees that were employed by Harbert as of that same date (June 16) about which the parties are in dispute as to whether any or all of them should be included in the unit 12 The parties are at odds over whether one em- ployee who only worked for the Company from June 1 until 4 should be considered for majority status with re- spect to the successorship issue 13 Four other employees about whose status the parties could not agree had ac- cepted employment with Harbert on or before June 16 but did not actually start work until June 20 14 The dispute with respect to employees Adams, Aqui- lera, Arnold, French, and Madonna centers around whether they were temporary or permanent employees of Harbert None of the five had worked for the prede- cessor Counsel for the General Counsel and the Union con- tends the five were temporary employees who could not be included in a unit of employees at the successor and as such should not be counted for successorship pur- poses Harbert, on the other hand, contends the record simply does not support a finding that these employees were anything other than regular employees and as such should be counted for successorship purposes The five employees, who were not called to testify at the trial, worked in shipping and receiving Employee Adams commenced working for Harbert on June 9 as an inventory clerk in shipping and receiving Adams' personnel file, which was examined at trial, did not contain a "job offer acceptance refusal form" which is a Harbert document that employees sign after being interviewed and offered a job by the Company 15 Adams' personnel file did contain a "yellow sticky note" that reflected "no application, temporary employees" Harbert's Project Manager Bennett stated Adams' job duties were to receive incoming supplies then unpack, and store them in bins With respect to supplies Bennett testified "there was a period when we brought people on board to get our materials and Company supplies ready for June 1" and added, "[I]f you call that a transition period, yes it was" In this regard Bennett stated the Company sized its work force for whatever was needed and that some such employees were no longer with the Company Adams was terminated on or about August 19 Employee Aquilera commenced working for the Com- pany on June 8 as an inventory clerk in shipping and re- ceiving where she worked along side and performed the same type work as employee Adams Aquilera did not sign a job offer acceptance refusal form for her job in shipping and receiving, however, she did sign such a job 12 The nine are Ronda Adams, Margarita Aquilera, Jerry Arnold, Harvey French, Christina Madonna, Ricky Hazen, George Wood, Alvin Pearce, and John Brown 13 The individual in question is Ricky Prince " The four are Michael Parsons, Fred Holtsman, Jimmy Bledsoe, and Larry Alkins ' 6 The document reflects that an employee has been offered and ac- cepted a job and has agreed to a date to report for work offer form on July 6 when she was offered and accepted a different job as a "material expeditor" for the Compa- ny Aquilera was still employed at the time of the trial Employee Arnold commenced working in the ware- house on or about May 31 His job duties included "pick- ing up and delivering materials" around the Base Arnold was terminated on July 1 Project Manager Bennett, as well as Warehouse Supervisor Pearce, testified Arnold was discharged because he could not handle the duties of his job The termination report in his personnel file re- flects as a reason for his termination "instructed by Cor- porate to begin cutting back on temporary help" Ar- nold's personnel file also contained a notation that there was no job application form m his file Employee French began his employment with the Company on June 8 in the warehouse as a shipping and receiving clerk where he worked along side employees Adams, Aquilera, and Madonna French did not sign a job offer acceptance refusal form until October 3 French's personnel file reflects a reason for the change in his status at that time as follows "Job status has been changed from a temporary to permanent one This does not change his rate of pay or job classification" As of the trial, French was still employed by the Company Employee Madonna commenced working for the Company on June 8 as a shipping and receiving clerk She ceased working there on July 22 There was no job offer acceptance refusal form in Madonna's personnel file Warehouse Supervisor Pearce testified Madonna would have been discharged for making too many mis- takes in the performance of her duties if she had not quit working on or about July 22 A number of factors persuades me the five employees in question were temporary employees at Harbert with no reasonable expectancy of continued employment at any time up to and including June 20 As temporary em- ployees they would not be eligible for mclusion in a bar- gaining unit, thus they cannot be counted in determining majority status for successorship purposes First, none of the five was required at the time they commenced work for the Company to sign a job offer acceptance refusal form which was standard procedure for regular employ- ees Secondly, Project Manager Bennett acknowledged that employees were hired to get the Company's materi- als and supplies ready for operation and further acknowl- edged that could be called a transition period Thirdly, employee Adams' personnel file contained a notation that she was a temporary employee with no job application, certainly she could not have had any reasonable expecta- tion of continued employment with the Company Fourthly, employees Aquilera and French only signed job offer acceptance refusal forms after they were as- signed to different jobs ,In fact, it is noted in French's personnel file at approximately the time (October 3) he signed his job offer acceptance refusal form that his status was being changed from "a temporary to a perma- nent one" Fifthly, the official reason given for employee Arnold's termination was "instructed by Corporate to began cutting back on temporary help" Sixthly, it is quite evident that employee Madonna was not asked to sign a job offer acceptance refusal form 478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In summary all these factors make it clear that the five employees in question could not at any time up to and including June 20 have had a reasonable expectancy of continued employment with the Company Accordingly, I find they were temporary employees As temporary employees they would not be eligible for inclusion in a bargaining unit, thus they cannot be counted in determin- ing majority status for successorship purposes Employees Wood and Hazen were employed at DEH on a temporary basis It is undisputed they commenced working for the Company on June 1 as regular full-time mechanics and remained in that status at relevant times thereafter Both signed job offer acceptance refusal forms The Company argues that since their employment status with DEH was for a definite term they could not reasonably have assumed their employment with DEH would have continued beyond that fixed term Further- more, the Company asserts, and correctly so, that as temporary employees Wood and Hazen did not share in all the benefits accorded permanent employees The Company contends that since temporary employees do not share in the community of interest of permanent em- ployees and are excluded from bargaining units, they should not be counted for successorship purposes The Union contends that Hazen and Wood both of whom were former employees of DEH and were hired as per- manent employees of Harbert, should be considered for successorship purposes The Union argues the fact they were classified as temporary employees at the predeces- sor is irrelevant because in determining whether employ- ees are to be counted for successorship purposes the Board only looks at whether the employees worked for the predecessor and were hired as permanent employees by the successor Counsel for the General Counsel would have Wood and Hazen counted as permanent em- ployees of Harbert for successorship purposes I am persuaded Wood and Hazen would be included in an appropriate unit at Harbert and as such they must be counted for successorship purposes in determining if Harbert hired as a majority of its employees those that had previously been employed by the predecessor Wood and Hazen are regular employees of Harbert and they had worked for the predecessor Furthermore their status as temporary employees at the predecessor was more so in name than in actuality Temporary employees em- ployed by the Army at Fort Leonard Wood may be em- ployed for up to 365 days and their employment status may thereafter be renewed for three additional periods up to 365 days Thus, employees such as Wood and Hazen could have reasonably expected that their em- ployment with DEH would have continued for extended periods of time notwithstanding their status as temporary employees 16 Additionally, Wood and Hazen were both included in the bargaining unit at DEH and could have, for example, filed grievances under the collective-bar- gaining agreement between the Union and the Army The parties are at odds over whether Alvin Pearce and John Brown are supervisors of Harbert within the 16 It appears Hazen, for example, worked for DEH from 1985 until 1988 meaning of the Act The Union contends they were em- ployees of the predecessor that were hired into bargain- ing unit positions at Harbert, whereas Harbert contends they are supervisors and thus may not be counted in the unit Counsel for the General Counsel submits the record supports a finding that Pearce is a supervisor within the meaning of the Act, but that Brown is not It is undis- puted that both had worked for the predecessor Supply warehouse leader Pearce commenced working for the Company on or about May 16 He has a ware- house office and he assigns work to approximately six warehouse employees Pearce evaluates the work per- formance of the warehouse employees He attends super- visor meetings once or twice a week Pearce testified he reviews all timecards of the warehouse employees before such cards are submitted to payroll He determines the need for overtime worked in the warehouse Pearce testi- fied, without contradiction, that he interviewed and hired employees William Humes, Charles Caldwell, and Ivan Crews Section 2(11) of the Act defmes a supervisor as fol- lows The term "supervisor" means any mdividual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or re- sponsibility to direct them, or to adjust their griev- ances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judg- ment It is well settled that the possession of any one of the mdicia of supervisory authority outlined above in Sec- tion 2(11) of the Act, if exercised with independent judg- ment for and on behalf of management, is sufficient to 'confer supervisory status on an employee See, e g, Call- fornza Beverage Go, 283 NLRB 328 (1987) It is clear that Pearce interviewed and hired employees for Harbert Those actions alone would establish he is a supervisor of Harbert within the meaning of the Act Additionally, Pearce assigns work to others in the warehouse and in- sures such work is performed to the standards required by the Company Pearce, of his own judgment, deter- mines the need for overtime worked in the warehouse and only checks with higher management to insure the extra costs associated there with are within the Compa- ny's operating budget I find Pearce is a statutory super- visor who would not be mcluded in the bargaining unit and will not be considered in determining the Union's majority status for successorslup purposes Lead person 17 Brown commenced working for the Company on June 1 Project Manager Bennett testified Brown was hired to run the Company's pest control functions Brown voluntarily quit his employment on 17 Project Manager Bennett described a lead person at the Company as, among other things, "the senior person in his classification" Bennett further stated a lead person was the one that workers went to with ques- tions about their jobs HARBERT INTERNATIONAL SERVICES 479 July 12 because he feared his license to operate a private- ly owned pest control business might be jeopardized if he continued to work for Harbert According to Bennett it was difficult to find pest control employees and as a result Brown only "partially" had employees working under him Bennett testified that when the Company had pest control employees 18 Brown assigned them their work Brown informed the Company's purchasing agent of needed pest control supplies and those supplies were thereafter purchased by that agent for the Company Brown was the only employee who knew what specific materials were needed for pest control Project Manager Bennett testified that Brown's higher pay scale was based on the Company's perception of the work required of and the skills expected from him I am persuaded the evidence fails to establish that Brown was a supervisor of Harbert within the meaning of the Act He may have assigned work to any worker that may have been in the pest control area but it ap- pears that if he did so, it was as a result of his expertise and not as a result of exercising independent judgment on behalf of the Company Inasmuch as I find the Com- pany has failed to demonstrate that Brown possessed or exercised even one of the mdicia of supervisory status enumerated in Section 2(11) of the Act, I conclude he was a unit employee and I shall count him in determin- ing the Union's majority status for successorship pur- poses There is no factual dispute with respect to the employ- ment status of employee Pnnce He worked for the pred- ecessor and for Harbert from June 1 until on or about June 4 as a small engine mechanic The Union and counsel for the General Counsel urge that Prince be counted in the unit, while Harbert con- tends he should not be based on the fact he only worked such a short period of time for the Company I consider Prince to have been a unit employee at Har- bert for successorship purposes He met the requirements for inclusion in the unit namely, he was an employee of the predecessor who was hired into the bargaining unit by the successor on or before the date for determining majority status The fact he only worked at the successor for a few days is of no moment Finally, the parties are in disagreement with respect to whether employees Jimmy Bledsoe, Fred Holtsman, Mi- chael Parsons, and Larry /titans should be counted in the unit for majority status purposes These four employ- ees were not prior employees of DEH They each ac- cepted employment in the bargaining unit at Harbert on or before June 16 but did not start working at the Com- pany until June 20 Harbert would have them counted, while counsel for the General Counsel and the Union would not The reason advanced by counsel for the Gen- eral Counsel and the Union for excluding these four em- ployees is they contend that in all discussions with the 19 Bennett stated Harbert hired "a fellow named McKinsey" to work pest control but McKinsey failed to show for work Another employee was conditionally hired Into the pest control area but failed to pass a mandatory drug screening test and was not retained by the Company Another employee Bailey was lure to work in pest control, however, the record does not reflect his work history Company regardmg the date for determining majority status they always referred to June 16 I find no valid reason for excluding these four employ- ees from consideration for majority status purposes Ac- cordingly, I shall consider them I reject the contention the parties had always considered June 16 as the date for determining majority status I find there is simply no per- suasive record evidence the parties ever formally agreed to that date as the date for determining majority status Even if there had been an agreement with respect to June 16 as the date for determining majority status I note each of the four employees referred to above, accepted employment with the Company on or before that date In light of the above findings, I am persuaded that as of June 20, Harbert had hired as a majority of its em- ployees the former unionized predecessor's employees 19 Having found that a majority of Harbert's employees were employees of the unionized predecessor I shall now consider whether there otherwise is substantial continui- ty between the enterprises I am persuaded the employ- ees viewed Harbert's operation from its inception as a continuation of the services performed by DEH In that regard, Harbert provides the same services to the same customerâ€”the Armyâ€”that DEH provided Harbert op- erates out of the same facilities utilizing the same equip- ment and working essentially the same hours as had the predecessor DEH Close examination of the organiza- tional differences established by Harbert persuades me the Company was looking to accomplish the same work that DEH had performed but at a lower cost DEH had 56 different job classifications and a supervisory work force of approximately 17 to 18 DEH utilized its em- ployees in various shops following craft lines, whereas Harbert utilizes its employees in two shops, one of which is a service order shop which has workers that are trained and cross-trained in various crafts Thus, the crafts are simply consolidated from various shops into one large shop Viewed from the employees perspective these types of changes are not so dramatic as to likely affect their views or attitudes about being represented by the Union DEH had a preventive maintenance shop that performed its functions throughout the base and across craft lines on a scheduled basis Harbert, although utihz- mg a somewhat larger work force in its preventive main- tenance shop, performs all scheduled preventive mainte- nance throughout the base with employees in that shop Thus the employees would not perceive an appreciable difference between DEH's and Harbert's scheduled pre- ventive maintenance work I am persuaded the overall method of servicing its customerâ€”the Armyâ€”is substan- tially the same at Harbert as it had been at DEH Har- bert's methods may be more centralized but not other- wise substantially differ from those utilized by the prede- cessor Harbert's combining of job classifications was 19 The parties were in agreement on 142 employees-72 that had been former employees of DEH and 70 that had not Of those in dispute I ex- cluded six employees (five temporary employeesâ€”Adams, Aquilera, Arnold, French, and Madonna and one supervisorâ€”Pearce) I Included eight employees four of whom (Hazen, Wood, Brown, and Pnnce) had been former employees of DEH and four (Bledsoe, Holtsman, Parsons, and Ailuns) that had not Therefore there were 76 unit employes at Har- bert that had been employees of the predecessor and 74 that had not 480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD motivated by efficiency considerations and not due to changes in the type of work performed or services pro- vided Harbert's use of productivity standards in evaluat- ing its employees does not appear to be significantly dif- ferent from the performance evaluations outlined in the collective-bargaining agreement that DEH utilized I do not view as negating a finding that Harbert is the succes- sor of DEH the fact that Harbert utilizes a smaller super- visory force (seven) than DEH had or that only three of Harbert's supervisors had previously worked for DEH The overall continuity of the business operation viewed from the employees' perspective remains substantially unchanged I find no dramatic changes that would likely affect employees views or attitudes about being repre- sented by the Union Finally, I note Harbert commence providing the serv- ices DEH had provided without a hiatus between oper- ations The unit of all employees performing physical maintenance at Harbert is classically appropriate Ac- cordingly, under the traditional approach to successor cases, I conclude and find Harbert is the successor of DEH and as such has an obligation to recognize and bar- gain m good faith with the Union I shall now consider whether the traditional successor- ship doctrine, under which I find Harbert to be a succes- sor, should apply in a situation such as herein, where the predecessor was the Federal Government and the suc- cessor is from the private sector I am persuaded the traditional successorship test is the proper one to be applied m the instant case notwithstand- ing the fact the predecessorâ€”the Armyâ€”was not an em- ployer within the meaning of the Act Imposing succes- sorship in the instant situation fulfills the purposes of the Act by fostering stability and harmony in labor relations for an employer (Harbert) who is covered by the Act and which renders services to a customer (the Army) that directly affects national defense To fail to apply the traditional successorship test m the instant case, merely because the predecessor was from the public sector, would place form over the substantive goals of the Act Stated differently, the employees of Harbert which are currently covered by the Act may not be denied the ben- efits that arise under the successorship doctrine simply because their former employer was from the public sector Emphasis in successorship cases must be placed on a determination of continuity of the enterprise rather than on the source of such employment In summary, I find that the fact the predecessor and the Union's labor agreement was covered by the FLRA does not vitally impede the finding, which I make, that Harbert is the successor of the Army I shall next consider whether there has been fragmen- tation of the unit such as would preclude imposing a successorship obligation on Harbert First, I note succes- sorship obligations are not defeated simply by the fact that only a portion of a former unionized operation is taken over by a new employer so long as the employees in the conveyed portion constitute a separate appropriate unit and they comprise a majority of the unit under the new operation In the case sub judice there were ap- proximately 763 employees in the overall unit at the base with bargaining unit employees working in approximate- ly 12 different directorates As is noted throughout this decision the directorate involved here is DEH Just prior to June 1 there were approximately 219 wage-grade em- ployees in DEH As of June 20, Harbert employed ap- proximately 150 workers (plus supervisory personnel) It is clear that DEH functioned as a separate and identifia- ble work group of the overall unit at the base and had a clearly established work objective which was to perform maintenance on the buildings, roads, and grounds at the base as well as to maintain the utility systems Harbert assumed those same functions for the Army at the base Although Harbert only acquired a portion of the func- tions of the overall unit at the predecessor it nonetheless assumed a separate and distinct portion The unit of em- ployees at Harbert is not that significantly smaller than the directorate (DEH) it replaced Thus, I conclude and find there was not an inappropriate fragmentation of the previously homogeneous grouping of employees such as to preclude imposing successorship obligations on Har- bert Harbert contends the Union has a conflict of interest fatal to its representation of its employees because of the Union's efforts to damage Harbert's business and because of its continuing duty to represent other employees still working for the Army In obtaining its contract at Fort Leonard Wood, Harbert, like other interested contrac- tors, responded to a June 1986 United States Office of Management and Budget Circular No A-76 (hereinafter the A-76 program) m which it was requested that pro- posals for performing certain functions at the base be submitted for consideration and evaluation by the Feder- al Government The purpose of the A-76 program was to effect cost savings to the Federal Government by con- tracting to private enterprises certain functions hereto- fore performed by Federal employees As is noted throughout this decision Harbert's proposal related to the work previously performed by DEH Other private en- terprises as well as the Army responded to the A-76 pro- gram In its proposal the Army sought to have the work continue to be performed by Federal employees working for the Army In November 1987, the Federal Govern- ment issued a notice setting forth the cost comparison re- sults of the responses to the A-76 program The Federal Government signed a contract with Harbert on or about April 1, 1988, with performance to start on or about that same time Harbert was delayed in starting performance under the contract until June 1 because protests were filed against the award being made to it On or about mid-January Local Union R14-32 (with the assistance of a private accounting firm) filed one such appeal with the Directorate of Contracting, Fort Leonard Wood, Mis- souri The Umon in its approximately 170-page appeal of the award asserted it had reviewed the cost study results comparing the economic benefits of contracting out the functions of DEH to retaining those functions in house (with Federal employees) and had concluded the con- tract should not be awarded to the outside contractor The Union outlined for the Army the following execu- tive summary of its appeal HARBERT INTERNATIONAL SERVICES 481 I The A-76 cost comparison process as histori- cally applied produces results that are economically unsound 2 The A-76 cost comparison process applied at Fort Leonard Wood using reasonable methodology illustrates that the government will lose $18,104,103 from contracting out, rather than realizing the $7,462,342 savings in the government's cost compar- ison 3 Awarding the contract will result in the dete- rioration of the quality of facility maintenance and probably will cause serious interruptions of vital services because the contractor will not have suffi- cient numbers of adequately skilled people 4 This contractor's proposals should not have been considered responsive primarily due to numer- ous and obvious pricing errors Union Local R14-32's chief steward Gary Chance tes- tified that the entire focus of the Union's appeal was to have the work that had been performed by DEH remain in house with the Army because of the "improper meth- odology" utilized by the Federal Government in the A- 76 program Chance testified the Union's primary prob- lem with the A-76 program was that it "did not address the issues of the work to be performed by the contractor, versus the work done by the employees of government" Chance further elaborated that the Union's protest cen- tered around the fact "[t]he solicitation [in the A-76 pro- gram] did not properly or adequately define the quantity of work or types of work to be done," and as such was invalid Chance also stated that another major point in the Union's appeal was that the bid put out by the Gov- ernment for the DEH work did not match all of the work that had been performed at DEH Chance testified the Union attempted to make it clear in its appeal that if it was "cheaper" to have the work performed by non- government enterprises that was fineâ€”that the Govern- ment should save money where possibleâ€”but that the methodology utilized in the A-76 program did not by any means assure that goal The Union asserted in its appeal that the unreasonable and unacceptable methodol- ogy utilized by the Government in the bidding process may have resulted from "extreme political pressure on the military to contract out" certain work the Army had previously been performing The Union also asserted in its appeal that if the functions performed by DEH were converted to contract operations the results would be unsatisfactory because in order for the contractor to "buy in" it would have to utilize too few skilled or ade- quately trained employees and as a result It could only deliver untimely, improper, and substandard services to the Army The Union contended all these flaws were di- rectly related to the "inaccurate contract specifications" set forth in the A-76 program The Union also asserted in its appeal that because it expected there would be a deterioration in the quality and delivery of services if the contract was awarded to an outside contractor such would result in "an immediate and adverse Impact on the health and welfare of the installation" Finally, the Union asserted that similar errors in contract specifications at other government locations (Fort Belvoir, Fort Gordon, and the Red Stone Arsenal) had lead to what it contends were disastrous results and strongly urged the Federal Government to reject the award of the DEH functions to Harbert The Board in Garrison Nursing Home, 293 NLRB 122 (1989), restated the principles with respect to when a conflict of interest exists such that it precludes a union from representing employees in a given unit as follows The Board has long held that a union may not represent the employees of an employer if a conflict of interest exists on the part of the union such that good-faith collective bargaining between the union and the employer could be jeopardized The em- ployer bears the burden of showing that such a con- flict of interest exists and that burden is a heavy one There is a strong public policy favoring the free choice of a bargaining agent by employees This choice is not lightly to be frustrated There is a considerable burden on a nonconsentmg em- ployer, in such a situation as this, to come for- ward with a showing that danger of a conflict of interest interfering with the collective bargaining process is clear and present [footnotes omitted] Harbert contends that Local R14-32's protest of the A- 76 program evidences a conflict of interest that disquali- fies it from representing Harbert's employees In this regard Harbert argues the Union cannot fairly represent its employees because the Union's interests are divided among Harbert's employees and the civilian employees of the Army still represented by Local Union R14-32 Harbert argues that since the interests of the two groups are antithetical the Union is incapable of adequately rep- resenting Harbert's work force Harbert points out it is engaged in performing work previously done by employ- ees of the Army represented by Local R14-32 Harbert asserts the diversion of the DEH work to it pursuant to the A-76 program arguable brought economic harm to the employees represented by Local R14-32 whose jobs with the Army were eliminated Harbert contends the return of the DEH work to the Army, as urged in the Union's protest, would create similar economic hardships for Harbert's work force which the Union also seeks to represent The Union, while not disputmg it filed the appeal in question, argues there is no ongoing conflict of interest that would preclude it from representing Harbert's em- ployees The Union points out that at the time it filed the appeal it had no relationship with Harbert and that the appeal was filed only in furtherance of the Union's ongo- ing duty to its members The Union argues the any ac- tions taken by it that might have been contrary to the in- terests of Harbert were taken at a time when it owed no duty whatsoever to Harbert Counsel for the General Counsel contends there is no conflict of interest such that would preclude the Union from representing Harbert's employees Counsel for the General Counsel argues all the Union did was to point out to the Government that it would not be beneficial or 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at a cost savings to award the contract to Harbert Coun- sel for General Counsel argues there could not have been any "coerciveness" in the appeal because it was filed at a time when the Union did not represent any of Harbert's employees I am persuaded the Union (including Local R14-32) should not be disqualified from representing Harbert's employees by reason of a conflict of interest arising out of its filing an appeal of the award of the DEH work to Harbert The overall purpose of the A-76 program, which resulted in the award, was to effect cost savings to the Federal Government The thrust of the Union's appeal was that the methodology utilized in making the award was defective That it was the methodology uti- lized in the A-76 program that the Union was protesting is demonstrated by the fact the Union enlisted the help of a private accounting firm to assist it in its attempt to demonstrate to the Federal Government that the cost savings goals of the A-76 program were not assured in light of the "inaccurate contract specifications set forth in that program" The Union involvement of Harbert in its appeal was somewhat incidental to its overall purpose in making the appeal In summary I am persuaded the Union's appeal was di- rected against the A-76 program and not against Harbert per se As such the Union's one time appeal of the award does not in my opinion create a proximate danger of poi- soning the bargaining process I am convinced the Union will be able to approach the bargaining table with the single minded purpose of protecting and advancing the interests of Harbert's employees and without any ulterior purposes Even if the actions the Union took were con- trary to Harbert's interests it took the actions it did at a time when it owed no duty to Harbert or any future Harbert employees The appeal by the Union was noth- ing more than a legally permissible action in furtherance of its obligations to its then current members working at the base Harbert's contention that since its award of the contract is renewable at the option of the Army on an annual basis the Union's continued opposition to the A- 76 program presents a continuing threat to Harbert's business activities and its employees Such contention is without merit The Union's appeal has, as a matter of law, become void in that the Union has no standing to challenge the award or the decision to contract the work other than its initial appeal which it lost See Maritime Union v Military Sealift Command, 824 F 2d 1228 (D C Or 1987) The instant case is distinguishable from the two principle cases on which Harbert would rely to es- tablish its contention the Union has a disqualifying con- flict of interest The union in Catalytic Industrial Mainte- nance Go, 209 NLRB 641 (1974), sought to have another employer (Oxochem) diminish and eventually eliminate its practice of subcontracting out routme maintenance work to Catalytic Catalytic at the time had a contract with Oxochem to do most of the latters maintenance work The union therein represented the maintenance employees of both employers The union in Catalytic published a leaflet that outlined its intent to negotiate an agreement with Oxochem that would force Oxochem to do all its own maintenance work the effect of which would eliminate Catalytic as a subcontractor of the work The Board concluded the union acted in substantial con- flict of its obligations to the employees of Catalytic and held Catalytic was justified in refusing to bargain with the union as a representative of its employees Valley West Welding Go, 265 NLRB 1597 (1982), involved a very similar factual situation The union in Valley West sought to and was successful in having another employ- er, Conalco, withdraw work from Valley West that had previously been subcontracted to Valley West The union represented the employees at both employers The effect of the union's actions was that Valley West and therefore its employees lost work The Board agreed with an ad- ministrative law judge that the union's actions amounted to a substantial conflict of its duty to the Valley West em- ployees whom it represented and as such Valley West was justified in refusing to bargain further with the union as the representative of its employees In the case sub judice the Union did not negotiate with one employer in an effort to diminish or eliminate the work of another employer whose employees it also represented Rather, all the Union did was appeal or protest the tentative award of the work in question to an outside contractor at a time when the outside contractor (Harbert) had no employees Where there is substantial continuity between the em- ploying enterprises and a successor (such as Harbert) hires a majority of the predecessor's (the Army's) union- ized work force a continuing desire for representation is presumed A question, however, arises m the instant case as to whether there is anything that would rebut that presumption I find there is insufficient evidence to over- come the presumption In attempting to rebut the pre- sumption Harbert contends there are such drastic differ- ences between the bargaining rights of Federal sector and private sector employees that it is simply inappropri- ate to assume that workers who selected a Federal union would desire to have that same organization represent them in the private sector Harbert points out (as out- lined earlier in this decision) what it asserts are some of these drastic changes Harbert notes the Union did not have the right to call a strike against the predecessor (the Army) and argues it would be unreasonable to assume that the employees would now desire to have an exclu- sive bargaining agent with that authority Harbert argues that because the Union did not have the authority to bar- gain with the predecessor concerning such essential sub- jects as wages, hours of work, and retirement benefits that it simply would be inappropriate to presume the em- ployees would still desire union representation by an or- ganization with the enhanced bargaining rights this Union would have in the private sector I reject the Company's contentions because they are invalid and speculative While bargaining in the Federal sector is much narrower than the obligations imposed upon pri- vate employers by the NLRA, I am nonetheless persuad- ed no reason exists to presume these former public sector employees would reject having the Union as their bar- gaining representative simply because the representative's bargaining powers would be increased The contention that expanded bargaining rights under the Act was not contemplated by the former public sector employees and HARBERT INTERNATIONAL SERVICES 483 as such might cause them to reject the Union is specula- tive Simply stated, I find no reason to conclude that an increase in the bargaining rights and powers of the Union would cause the employees of Harbert to reject the Union as their bargaining representative In summary I find Harbert, as the successor of the Army, is obligated to recognize and bargain with the Union for its employees in the unit which is appropriate for collective-bargaining purposes CONCLUSIONS OF LAW 1 Harbert International Services is an employer en- gaged in commerce within the meaning of Section of 2(2), (6), and (7) of the Act 2 National Association of Government Employees, af- filiated with Service Employees International Union, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 Harbert International Services is the successor of the physical maintenance employing entity (DEH) of the United States Army at Fort Leonard Wood, Missouri 4 All employees of Harbert performing physical main- tenance of the United States Army base at its facility in Fort Leonard Wood, Missoun, but excluding office cleri- cal employees, professional employees, guards, supervi- sors as defined in the Act, and all other employees con- stitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act 5 National Association of Government Employees af- filiated with Service Employees International Umon, AFL-CIO has been, and is, the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act 6 By refusing on or about June 20, 1988, and at all times thereafter to recognize and bargain collectively with the above-named labor organization as the exclusive representative of all it employees in the appropriate unit Harbert has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that Harbert has engaged in certain unfair labor practices, I shall order it to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act I shall order Harbert to recognize and, on request, to bargain with the Union as the exclusive representative of all its employees in the appropriate unit, which unit is described elsewhere in this decision I shall also order that Harbert post a notice to employees attached hereto as "Appendix" for a period of 60 days in order that em- ployees may be apprised of their rights under the Act and Harbert's obligation to remedy its unfair labor prac- tices [Recommended Order omitted from publication ]