Redok Enterprises, Inc.

National Labor Relations Board - Board Decisions

Dec 9, 1985

277 N.L.R.B. 1010 (N.L.R.B. 1985)

1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Redok Enterprises , Inc. and Dairy & Beverage Em-
plox-ees Local Union No. 361 , a/w International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case 8-CA-
16821
9 December 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 28 September 1984 Administrative Law
Judge Irwin H. Socoloff issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel and the
Charging Party filed answering briefs.
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 briefs' and
has decided to affirm the judge's rulings, findings,2
and conclusions3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Redok En-
terprises, Inc., Toledo, Ohio, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
i The General Counsel has requested that we strike from the Respond-
ent's exceptions and brief certain references to facts that were not intro-
duced as evidence in this case. The General Counsel correctly points out
that there is no evidence in the record concerning a local bank's secured
interest in Babcock Dairy Company's accounts receivable, a custom in
the dairy industry as to the transfer of retail home delivery routes, or the
media coverage in local newspapers of Babcock's closing, Therefore, we
grant the General Counsel's motion to strike any references in the Re-
spondent's exceptions and brief to these matters.
2 The Respondent has excepted implicitly to some of the judge's credi-
bility findings The Board's established policy is not to overrule an ad-
ministrative law judge's credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d
Cir 1951) We have carefully examined the record and find no basis for
reversing the findings.
3 In concluding that the Respondent had an obligation to recognize
and bargain with the Union, the judge neglected to state the date when
this duty to bargain began. The record establishes that the Respondent
received the Union's letter demanding recognition and negotiations for a
contract about 21 April 1983. The record also shows that as of 21 April
1983 the Respondent had hired a full complement of 16 route distribution
employees, including I i employees who were formerly unit employees of
Babcock until Babcock closed on 8 April 1983. Therefore, we find that
the Respondent's duty to recognize and bargain with the Union began on
21 April 1983. Premium Foods, Inc., 260 NLRB 708, 718 (1982), enfd. 709
F 2d 623 (9th Cir 1983).
Mary G. Balazs, Esq ., for the General Counsel.
Carl Y. Bruggeman, Esq., of Toledo, Ohio, for the Re-
spondent.
Tobie Braverman, Esq., of Toledo, Ohio, for the Charging
Party. -
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. On
charges filed on June 15 and July 25, 1983, by Dairy &
Beverage Employees Local Union No. 361, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America (the Union), against
Redok Enterprises, Inc. (Respondent), the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 8, issued a complaint dated
July 29, 1983, alleging violations by Respondent of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act. Respondent, by its answer,
denied the commission of any unfair labor practices.
Pursuant to notice, trial was held before me in Toledo,
Ohio, on December 14, 1983, at which the General
Counsel, the Charging Party, and Respondent were rep-
resented by counsel and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce evidence. Thereafter, the parties filed briefs
which have been duly considered.
On the entire record and from my observations of the
witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Ohio corporation engaged, at its
Toledo, Ohio facility, in the distribution of dairy prod-
ucts. Annually, it will receive, at the facility, goods and
materials valued in excess of $50,000 from other enter-
prises located within the State of Ohio, which enter-
prises, themselves, have received said products, goods,
and materials, in an unchanged form, directly from
points located outside the State of Ohio. I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
For many years, The Babcock Dairy Company of
Ohio was engaged, at its Toledo, Ohio plant, in the busi-
ness of processing and delivering dairy products. The
Union, for some 40 years, served as collective-bargaining
representative of the Babcock employees in a unit of
plant workers, wholesale route drivers, and commission
277 NLRB No. 101
REDOK ENTERPRISES
route drivers.' At the conclusion of the parties' contract,
which ran from April 1, 1980, to March 31, 1983, they
were unable to reach agreement on a new contract and,
therefore, they decided to extend the old agreement until
April 6.
At an April 6 meeting, Robert Koder, the president
and sole shareholder of Babcock, informed the Union
that Babcock would cease its plant operations as of April
8, 1983. The Union was further advised that Koder
would sell the commission routes to his son, Timothy
Koder, who had, theretofore, served in a supervisory po-
sition for Babcock. Thereafter, Babcock and the Union
met to discuss the effects of the closing upon the 70 or
so unit employees. However, later that same month, Bab-
cock resumed a limited processing operation and it con-
tinued to deliver to its wholesale route customers. It
reached agreement with the Union on a new contract
covering the remaining Babcock employees, some 25 to
27 in number.
On April 8, 1983, Timothy Koder, as president and
sole shareholder of Redok Enterprises, Inc., began oper-
ations as a deliverer of dairy products to the commission
route or retail customers formerly served by Babcock.
By letter dated April 20, 1983, the Union asserted to
Redok that it, Redok, was engaged in the same retail
dairy delivery business previously run by Babcock, with
the same equipment and a substantial number of former
Babcock employees. Therefore, the Union stated Redok
is a successor employer obligated to recognize and bar-
gain with the Union as collective-bargaining representa-
tive of its drivers. Accordingly, the Union asked for a
meeting to begin contract negotiations. Redok did not re-
spond.
In the instant case , the General Counsel contends that
Redok, as successor to Babcock, violated Section 8(a)(5)
of the Act when it refused to recognize and bargain with
the Union. Respondent asserts that it is not a successor
employer and that, in any event, there were, before it,
objective considerations justifying a reasonably based
doubt that the Union enjoyed majority status among the
Redok drivers. Finally, in light of the Union's May 31,
1983 claim that Redok is the alter ego of Babcock, Re-
spondent contends that it was not presented with a
proper demand for bargaining.
B. Facts2
Respondent commenced operations on April 8, 1983,
from a Toledo facility, located some 5 or 6 miles from
the Babcock plant. It purchased from Babcock the 10 de-
livery trucks which had been utilized by that company
for commission route deliveries. Following the sale to
Respondent, the trucks continued to bear the Babcock
logo and, as before, were parked, fueled, and serviced at
the Babcock facility. At a later date, Respondent pur-
' Wholesale route drivers made deliveries to large customers, such as
grocery stores Commission route drivers serviced small customers, in-
cluding home delivery customers The commission routes included some
80 percent of the total number of Babcock customers but gave rise to
only 20 percent of the revenue derived from delivery operations
2 The factfindings contained herein are based on a composite of docu-
mentary and testimonial evidence introduced at trial Where necessary to
do so, credibility resolutions have been set forth, infra
1011
chased five additional trucks from Babcock and those ve-
hicles also bore the Babcock logo. Respondent also pur-
chased certain office equipment from Babcock and took
transfer of the commission route accounts. It agreed to
make collections on money owed to Babcock by the
commission route customers.
Beginning April 8, Respondent engaged in the sale and
distribution of the same dairy products to the same retail
customers previously supplied by Babcock. The custom-
ers received service, without interruption and, indeed,
were not formally notified of the changeover. Some 80
percent of the former Babcock customers, about 400 ac-
counts, accepted the new arrangement. Respondent's
president, Timothy Koder, testified that, by mid-May, it
had added to the former Babcock customers only one to
three new accounts "of trivial value."
Until the fall of 1983, when it made an addition to its
product line, Respondent purchased all of its products,
except eggs, from Babcock, including products obtained
by Babcock from another supplier. All products sold by
Respondent bore either the Babcock label or the label of
the Babcock supplier.
By April 18, 1983, Respondent had hired some 14
drivers. It is undisputed that this was a full complement
or, at the least, a representative complement, of unit em-
ployees. Likewise, it is not disputed that, at all times ma-
terial herein, a substantial majority of Respondent's unit
employees were former employees of Babcock. In addi-
tion, the salesman and the office employees hired by Re-
spondent were also former Babcock workers. T. Koder
is Respondent's sole supervisor.
As noted, on April 20 the Union sent a letter to Re-
spondent demanding recognition and contract negotia-
tions, claiming that Respondent was the successor to
Babcock's retail dairy delivering operations. On May 26,
the Union met with Timothy Koder to explore the possi-
bility that Respondent was an alter ego of Babcock.
Thereafter, by letter dated May 31, 1983, the Union ad-
vised Respondent that it had concluded that Respondent
was an alter ego of Babcock and requested that Re-
spondent adhere to the contract then recently concluded
with Babcock. Respondent did not reply to the Union's
communication.
Respondent, by T. Koder, hired its initial complement
of 12 drivers during the period April 4 to 8, 1983. Koder
testified that, when he conducted employment inter-
views, he informed the applicants that there had not
been any contact by the Union. Koder further stated that
Respondent would start without a union and the employ-
ees could decide about unionization at a later date. Ac-
cording to Koder's testimony, employees Doris
Schliesser, Dan Wilhelm, Carl Morrison, and, possibly,
Frank O'Konski and Jeff Clay, told Koder that they did
not want a union. However, Morrison credibly testified
that he never spoke to Koder concerning whether or not
he, Morrison, wanted a union. The parties stipulated that
if O'Konski were available to testify, he would testify
that he had not, at any time, indicated his union prefer-
ences to Koder. In any event, as Koder's testimony was
decidedly confused on this matter, I have accorded it
little weight.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Koder and employee Doris Schliesser both testified
that in late June, or early July, Schliesser told Koder
that she had spoken to a majority of the other employees
and that they did not want a union. Schliesser did not
tell Koder which employees, by name, had voiced that
sentiment.
Koder testified that at a June meeting of the employ-
ees, after the charges giving rise to the instant matter
had been filed, employees Carl Morrison, Tim Mitten-
dorf, Dave DeWulf, and Doris Schliesser stated that
they did not desire union representation. In their testimo-
ny, DeWulf, as well as Morrison, credibly denied making
such statements to Koder.
It is undisputed that in November 1983, a sheet, pur-
portedly signed by 19 employees, appeared at Respond-
ent's premises and was observed by T. Koder. It called
upon the NLRB to conduct an election.
C. Conclusions
Respondent, without hiatus, assumed operation, on
April 8, 1983, of the same commission route dairy deliv-
ery operation formerly run by Babcock. While conduct-
ing its business from a facility located 5 or 6 miles away
from that used by Babcock, Respondent continued to
park, fuel, and service its trucks at the Babcock facility.
The trucks continued to bear the Babcock logo. Re-
spondent utilized the same equipment formerly used by
Babcock in order to deliver the same products to the
same customers theretofore served by Babcock. A sub-
stantial majority of the drivers employed by Respondent
were, formerly, so employed by Babcock. In these cir-
cumstances , I find and conclude that Respondent is the
successor to Babcock despite the fact that Respondent
does not engage in dairy processing or wholesale cus-
tomer delivery, as did Babcock. For, "a change in scale
of operation must be extreme before it will alter a find-
ing of successorship." Mondovi Foods Corp., 235 NLRB
1080 (1978). Here, Respondent succeeded to a distinct
and significant portion of the former Babcock operation.
The Union enjoyed a presumption of continued majority
status. By failing and refusing to recognize and bargain
with the Union as the representative of the drivers, fol-
lowing the Union's April 20, 1983 demand, Respondent
violated Section 8(a)(5) of the Act.3
In reaching this conclusion, I reject Respondent's con-
tention that it was presented with objective consider-
ations justifying a good-faith doubt of the Union's con-
tinued majority status. The record evidence would, at
best, fairly support the argument that as many as three or
four employees voiced sentiments against representation
at the preemployment interviews and the late June meet-
ing. This was a small minority of the total number of
unit drivers. Employee Schliesser's report to Koder, that
a majority of employees, unnamed , desired not to have
representation, came almost 3 months after Respondent's
refusal to bargain. In any event, employer receipt of an
employee's unverified assertions, that the majority of em-
ployees no longer support their union representative, is
insufficient to create "a reasonably based conviction that
the claimed desire of those employees to be rid of the
union" is factual. Cornell of California, 222 NLRB 303
(1976). Finally, the sheet purportedly signed by 19 em-
ployees seeking an election appeared more than 6 months
after Respondent refused to recognize and bargain with
the Union and, for that reason alone , is irrelevant to a
determination of Respondent 's bargaining obligation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practice conduct in violation of Section
8(a)(5) and (1) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
1. Respondent Redok Enterprises, Inc. is an employer
engaged in commerce , and in operations affecting com-
merce, within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Dairy & Beverage Employees Local Union No. 361,
a/w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. All route employees and swing employees employed
by Respondent in Toledo, Ohio, but excluding all office
clerical employees, salespersons, professional employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein the Union has been, and
is now, the exclusive representative of all employees in
the aforesaid bargaining unit for the puposes of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing to recognize and bargain with the
Union, as exclusive representative of the bargaining unit
employees , concerning rates of pay , wages, hours, and
other terms and conditions of employment, Respondent
has engaged in unfair labor practice conduct within the
meaning of Section 8(a)(5) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
4 If no exceptions are filed as provided by Sec 102 46 of the Board's
It is of no moment that, on May 31, the Union also asserted to Re- Rules and Regulations , the findings, conclusions , and recommended
spondent that it believed that Respondent was the alter ego of Babcock Continued
REDOK ENTERPRISES 1013
ORDER
The Respondent , Redok Enterprises , Inc., Toledo,
Ohio, its officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively concerning rates of
pay, wages , hours, and other terms and conditions of em-
ployment with Dairy & Beverage Employees Local
Union No. 361 , a/w International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of Amer-
ica as the exclusive bargaining representative of its em-
ployees in the appropriate unit as described above.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of all employees in the aforesaid appropri-
ate unit with respect to rates of pay, wages , hours, and
other terms and conditions of employment and, if an un-
derstanding is reached , embody such understanding in a
signed agreement.
(b) Post at its Toledo , Ohio facility copies of the at-
tached notice marked "Appendix."s Copies of the notice,
on forms provided by the Regional Director for Region
8, after being signed by the Respondent 's authorized rep-
resentative , shall be posted by the Respondent immedi-
ately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted. Reasonable
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and con-
ditions of employment with Dairy & Beverage Employ-
ees Local Union No. 361, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representive of our
employees, in the appropriate bargaining unit. The unit
includes all route employees and swing employees em-
ployed by Redok Enterprises, Inc. in Toledo, Ohio, but
excluding all office clerical employees, salespersons, pro-
fessional employees, guards and supervisors as defined in
the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL, on request, bargain with the Union as the
exclusive representative of all employees in the appropri-
ate unit, described above, with respect to rates of pay,
wages, hours, and other terms and conditions of employ-
ment, and, if an agreement is reached, WE WILL embody
such agreement in a signed contract.
REDOK ENTERPRISES, INC.