Road & Rail Services

National Labor Relations Board - Board Decisions

Nov 30, 2006

348 N.L.R.B. 1160 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 77
1160
Road & Rail Services, Inc. and Automobile Transport
Chauffeurs, Demonstrators and Helpers, Local
Union No. 604, affiliated with International
Brotherhood of Teamsters1 and Shopmen’s Lo-
cal 518, Party to the Contract. Cases 14–CA–
27983 and 14–CA–28026
November 30, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On March 7, 2005, Administrative Law Judge George
Carson II issued the attached decision. The Charging
Party filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, cross-exceptions, and
a motion to strike the Charging Party’s exceptions,2 and
the Charging Party filed a memorandum in opposition to
the Respondent’s motion.
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 decided to
affirm the judge’s rulings, findings,3 and conclusions and
to adopt the recommended Order as modified.4
The main issue presented here is whether the judge
properly dismissed the complaint allegations that the
Respondent, a successor employer,5 violated Section
8(a)(2) and (3) of the Act by recognizing the Union and
entering into a collective-bargaining agreement with it
prior to the hiring of the Respondent’s work force and
the commencement of its operations. The judge found

1 We have amended the caption to reflect the disaffiliation of the In-
ternational Brotherhood of Teamsters from the AFL–CIO effective July
25, 2005.
2 The Respondent has moved to strike the Charging Party’s excep-
tions on the grounds that they do not comply with Sec. 102.46(b) of the
Board’s Rules and Regulations. We deny the Respondent’s motion
because the Charging Party’s exceptions adequately set forth the find-
ings and conclusions to which the Charging Party has excepted.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative 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.
We correct the judge’s inadvertent error in finding that the Respon-
dent’s threat to terminate employees who did not execute dues-check-
off authorizations violated Sec. 8(a)(1) and (3) of the Act. The threat
violated Sec. 8(a)(1) only.
4 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language. We shall also substitute a new
notice.
5 There were no exceptions to the judge’s findings that there was a
“substantial continuity” of operations between the Respondent and its
predecessor and that the Respondent is a successor employer.
that the Respondent was a “perfectly clear” successor
within the meaning of NLRB v. Burns Security Services,
406 U.S. 272 (1972), and subsequent Board precedent.
As a “perfectly clear” successor, the judge reasoned, the
Respondent did not violate Section 8(a)(2) and (3) by
recognizing and bargaining with the Union and executing
a contract memorializing the terms and conditions of
employment for the unit employees. We agree.
In affirming the judge’s decision, we emphasize that
the Respondent never expressed any intention to invoke
the right of an “ordinary” Burns successor to establish its
own initial terms and conditions of employment. In-
stead, shortly after obtaining the contracts to perform the
work in question, the Respondent expressed its clear in-
tention to staff the facilities with the predecessor’s em-
ployees and to bargain with the employees’ designated
representative, thereby securing a skilled and experi-
enced work force and avoiding the uncertainty of at-
tempting to recruit new employees based on unilaterally
established employment terms. Thereafter, the Respon-
dent did not, in fact, unilaterally set initial terms, but
instead met with the Union for the purposes of collective
bargaining and executed a contract that included the ini-
tial terms to be effective the date the Respondent was to
begin operations. When it commenced operations, the
Respondent did so with a work force of 23 employees,
20 of whom (87 percent) worked for its predecessor im-
mediately before the takeover.6 At no point during the
parties’ negotiations or these proceedings was there ever
evidence of a loss of majority support for the Union or
evidence that the negotiations were anything other than
bona fide, arm’s-length dealings between the parties.
With particular emphasis on these facts, we agree with
the judge that the Respondent was a “perfectly clear”
successor within the meaning of Burns.
Facts
The Respondent cleans and prepares railroad cars used
to transport newly manufactured vehicles for the automo-
tive industry. In March 2004,7 the Respondent was
awarded the contracts to perform cleaning and prepara-
tion work at a number of Norfolk Southern Railroad fa-
cilities, including facilities in Wentzville, Missouri;
Hazelwood, Missouri; and Venice, Ohio—the only three
locations at issue.
The work at these facilities had previously been per-
formed by Caliber Mechanical Prepping, Inc. (Caliber).
Caliber’s cleaning and preparation employees had been

6 An additional employee hired by the Respondent was a former em-
ployee of the predecessor, but was not working for the predecessor at
the time of the takeover.
7 All dates hereafter are in 2004.
ROAD & RAIL SERVICES 1161
represented for purposes of collective bargaining by
Shopmen’s Local 518 (the Union). At the time that the
Respondent took over for Caliber, there was a collective-
bargaining agreement in effect between Caliber and the
Union that governed the employees’ terms and condi-
tions of employment.
On April 15, the Respondent met with the Union’s
business manager, Duane Raab. During this meeting, the
Respondent orally informed Raab of its intention to staff
the Wentzville, Hazelwood, and Venice facilities with
Caliber’s existing employees. In response, Raab re-
quested that the Respondent recognize the Union, and the
Respondent agreed to do so. Afterward, the Respondent
stated that it “desired to negotiate changed terms and
conditions of employment” from those existing under the
Caliber collective-bargaining agreement. At no time
during this meeting did the Respondent announce that it
was setting new terms and conditions of employment, or
give any indication that it planned to unilaterally set new
terms in the future.
On May 10, the Respondent sent a letter to the Union
confirming its “intention to retain a substantial portion of
the complement of those employees you presently repre-
sent” at the three locations. As before, the Respondent
gave no indication that it planned to unilaterally set new
terms and conditions of employment. Instead, the Re-
spondent acknowledged an obligation to recognize the
Union and emphasized its desire to quickly reach a mu-
tually acceptable agreement on terms and conditions of
employment. Thereafter, on May 19, the Respondent
solicited applications from all Caliber’s existing cleaning
and preparation employees.
The Respondent and the Union commenced bargaining
on May 13. On June 14, the parties finalized their nego-
tiations and executed a collective-bargaining agreement
that was to become effective July 10, the date the Re-
spondent planned to begin work at the Wentzville loca-
tion. As the judge found, the terms of the new collec-
tive-bargaining agreement were substantially similar to
those that had existed under the Caliber agreement.8
The Respondent made offers of employment to the
Caliber employees about a week before commencing
operations at each of the three facilities. The Respondent
began work at Wentzville on July 12, at Hazelwood on
July 26, and at Venice on July 31. Of the 23 employees
the Respondent hired to staff the three facilities, 20 had

8 The employees’ hourly wage remained the same, as did the em-
ployees’ health insurance contributions. One difference was that the
employees had received 4 holidays and 7 personal days with Caliber,
while under the new agreement the employees would receive 7 holidays
but no personal days.
been employed by Caliber immediately before the Re-
spondent commenced operations.
Discussion
In NLRB v. Burns Security Services, supra, the Su-
preme Court stated that although a successor “is ordinar-
ily free to set initial terms on which it will hire the em-
ployees of a predecessor, there will be instances in which
it is perfectly clear that the new employer plans to retain
all of the employees in the unit and in which it will be
appropriate to have him initially consult with the em-
ployees’ bargaining representative before he fixes
terms.” 406 U.S. at 294. As further explicated by the
Board, the “perfectly clear” caveat, while restrictive,
should apply “to circumstances in which the new em-
ployer has either actively or, by tacit inference, misled
employees into believing they would all be retained
without change in their wages, hours, or conditions of
employment, or at least to circumstances where the new
employer . . . has failed to clearly announce its intent to
establish a new set of conditions prior to inviting former
employees to accept employment.” Spruce Up Corp.,
209 NLRB 194, 195 (1974), enfd. mem. 529 F.2d 516
(4th Cir. 1975) (emphasis added).
The particular circumstances of the present case bring
it within the Burns “perfectly-clear” caveat. The Re-
spondent clearly informed the Union of its intent to staff
the three facilities with Caliber’s existing employees,
which, in fact, it did. At the same time, the Respondent
gave no indication that it intended to invoke a right to
unilaterally establish initial terms and conditions of em-
ployment. Although the Respondent indicated a desire to
make some changes to the existing employment terms,
the Respondent repeatedly made clear that it intended to
negotiate any such changes with the Union.9 Again, in
fact, that is precisely what the Respondent did: it did not
unilaterally set any initial terms, but instead negotiated
an agreement with the Union, which was in effect at the
time employees were to report to work. Accordingly,
this is not a case where the employees’ continued em-
ployment was contingent on their acceptance of a succes-
sor’s unilateral changes to their employment terms. In

9 In his decision, the judge placed considerable weight on the Re-
spondent’s notification to the Union that it “desired to negotiate
changed terms and conditions of employment.” (Emphasis in the
judge’s decision.) In adopting the judge’s decision, we express no view
on the question whether such a statement, without more, would neces-
sarily dictate a “perfectly clear” finding in every case. In this case, of
course, the Respondent does not contend that it was free to unilaterally
establish terms and conditions of employment. We also note that the
applicability of the “perfectly clear” successor doctrine largely “‘rests
in the hands of the successor.’” Canteen Corp. v. NLRB, 103 F.3d 1355,
1364–1365 (7th Cir. 1997), quoting Fall River Dyeing Corp. v. NLRB,
482 U.S. 27, 41 (1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1162
these circumstances, we agree with the judge that the
Respondent was a perfectly clear successor and, there-
fore, did not violate the Act by recognizing and bargain-
ing with the Union prior to hiring employees and com-
mencing operations.10
Our dissenting colleague misinterprets the Respon-
dent’s statements about negotiating with the Union over
any changes in the employees’ terms and conditions of
employment as equivalent to a clear statement of the
Respondent’s intention to set new terms and conditions
of employment. The two types of statements are funda-
mentally different. The Respondent’s statements, unlike
our colleague’s interpretation of them, contain no men-
tion or reservation of the right to act unilaterally—the
basic right assured to Burns successors. Indeed, the
more reasonable interpretation of the Respondent’s re-
peated expressions of its desire to negotiate with the Un-
ion is that the Respondent had rejected unilateral action.
As a result, we find that the present case is distinguish-
able from Spruce Up, supra, where the employer “made
it clear from the outset that he intended to set his own
terms.” 209 NLRB at 195.
The dissent claims that under the “analytic test” of
Spruce Up “it makes no difference whether the changes
are unilateral or negotiated.” We disagree. The Spruce
Up test focuses on gauging the probability that employ-
ees of the predecessor will accept employment with the
successor. 209 NLRB at 195. Where, as here, a succes-
sor commits to conducting its hiring from the predeces-
sor’s work force and announces that any changes to ini-
tial terms are to be made not unilaterally but only
through negotiation with the employees’ designated bar-
gaining representative, there is a much greater likelihood
that employees will choose to remain with the successor
because they have a voice, through their representative,
in establishing the terms and conditions under which they
will work.11 Moreover, a successor’s decision to negoti-

10 Cf. Hilton’s Environmental, Inc., 320 NLRB 437, 438 (1995)
(“perfectly clear” successor status established where employer’s entire
course of conduct indicated that the Respondent did not intend to uni-
laterally establish new terms and conditions of employment); Canteen
Co., 317 NLRB 1052, 1052–1053 (1995), enfd. 103 F.3d 1355 (7th Cir.
1997) (employer was a “perfectly clear” successor where it announced
its intention to retain the predecessor’s employees and then began nego-
tiating with the employees’ union); C.M.E., Inc., 225 NLRB 514 (1976)
(employer was a “perfectly clear” successor where it told union repre-
sentatives that it intended to rehire all of its predecessor’s employees
and, although contract changes were discussed, no conclusions were
reached).
11 Our dissenting colleague asserts that negotiations with a non-
majority union are inconsistent with the right of employees to choose or
reject union representation. Here, however, the predecessor’s employ-
ees freely exercised that right and had designated the Union as their
collective-bargaining representative. As noted above, at no point dur-
ing the parties’ negotiations or these proceedings was there ever evi-
ate changes in employment terms with the employees’
representative leaves intact one of the employees’ most
important employment “terms”—the process of collec-
tive bargaining itself—and the “industrial peace and sta-
bility” fostered by that process. Auciello Iron Works,
Inc. v. NLRB, 517 U.S. 781, 785–786 (1996). This at-
mosphere of stability naturally enhances the probability
that employees of the predecessor will stay on with the
successor. For one thing, the employees’ existing em-
ployment terms may remain in place for some time be-
fore any changes are made. See, e.g., Elf Atochem North
America, Inc., 339 NLRB 796 (2003) (employer was a
“perfectly clear” successor where it announced its inten-
tion to hire the predecessor’s employees and to maintain
their employment terms while negotiating with their un-
ion).12 In addition, the employees will have an opportu-
nity, through their union, to have the successor consider
their interests and concerns before changes actually oc-
cur. These stabilizing factors, which are absent when a
successor undertakes unilateral action, tend to temper the
uncertainty occasioned by a change in ownership. In
such circumstances, there simply is less reason to assume
that employees of the predecessor will refuse to work for
the successor. Indeed, 20 of the 23 employees who ac-
cepted employment with the Respondent worked for its
predecessor immediately prior to the takeover.13
Finally, the dissent’s contrary construction of the
Burns caveat is inconsistent with the very language of
that case. In Burns, the Supreme Court recognized that
there will be instances “in which it will be appropriate”
to have the successor “initially consult with the employ-
ees’ bargaining representative before he fixes terms.”
406 U.S. at 294. This language plainly contemplates
situations in which a successor will discuss with the em-
ployees’ union proposed changes in initial terms and
conditions of employment. However, under the dissent’s
interpretation of the Burns caveat, the moment the suc-

dence of a loss of majority support for the Union. Thus, our col-
league’s professed concern is misplaced in the context of this case.
12 Although the Respondent did not explicitly state that it would
maintain the former Caliber employees’ existing terms and conditions
of employment while it negotiated with the Union, as the employer did
in Elf Atochem, this was implicit in its repeated statements seeking
agreement with the Union.
13 Contrary to our dissenting colleague, it is not speculative to con-
sider various factors that are reasonably likely to raise, or lower, the
probability that a predecessor’s employees will accept employment
with a successor. The perfectly-clear successor caveat inherently de-
mands an inquiry into the “degree of likelihood that incumbents will
work for the successor.” Machinists v. NLRB, 595 F.2d 664, 673 fn. 45
(D.C. Cir. 1978). In addition, the fact that the Respondent was able to
satisfy its staffing needs almost exclusively with incumbent employees
of course is not determinative, but it surely provides some indication
that the factors considered above are not speculative.
ROAD & RAIL SERVICES 1163
cessor discusses such changes with the union, the caveat
becomes inapplicable and the successor commits an un-
fair labor practice. This construction subverts an elemen-
tal purpose of the caveat: to provide for a discussion be-
tween a successor employer and the employees’ repre-
sentative when it is the successor’s announced plan to
retain the unit employees.
Accordingly, for these reasons, we affirm the judge’s
finding that the Respondent’s conduct did not violate
Section 8(a)(2) or (3) as alleged.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Road &
Rail Services, Inc., Louisville, Kentucky, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) Within 14 days after service by the Region, post at
its facilities in Wentzville and Hazelwood, Missouri, and
Venice, Illinois, copies of the attached notice marked
“Appendix.”14 Copies of the notice, on forms provided
by the Regional Director for Region 14, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since December 7, 2004.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
CHAIRMAN, BATTISTA, dissenting in part.
Contrary to my colleagues, I find that the Respondent
violated Section 8(a)(2) and (3) by recognizing the Union
and entering into a collective-bargaining agreement with
it prior to hiring any of the predecessor employer’s em-
ployees.
The Respondent is engaged in the cleaning and prepa-
ration of railroad cars. Prior to July 2004, Caliber Me-

14 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
chanical Prepping, Inc. (Caliber) and the Union were
parties to a collective-bargaining agreement under which
the Union was recognized as the exclusive representative
of all hourly Caliber employees performing railroad
cleaning and preparation work at three St. Louis area
locations.1 In March 2004,2 the Respondent was
awarded the contracts at these three facilities (Wentz-
ville, Hazelwood, and Venice).
The Respondent and the Union met on April 15. Dur-
ing this meeting, the Respondent informed the Union that
it “inten[ded] to staff . . . these . . . three facilities . . .
with the existing employees,” and that it desired to nego-
tiate different terms and conditions of employment than
those in the Union-Caliber collective-bargaining agree-
ment.
On May 10, the Respondent wrote the Union, confirm-
ing its intentions of retaining a substantial portion of
predecessor employees and negotiating a new agreement
prior to commencing operations at the facilities.3 Nego-
tiations commenced on May 13. While the Respondent
and Union were engaged in negotiations, the predecessor
employees were permitted to submit employment appli-
cations to the Respondent on May 19. On June 14, the
Respondent and the Union executed a collective-
bargaining agreement, set to take effect on July 10, the
date on which the Respondent was scheduled to com-
mence operations at the first of the three facilities.
The Respondent hired the Wentzville employees on
July 12, the Hazelwood employees on July 26, and the
Venice employees on July 31. At the end of July, the
Respondent’s combined work force at the three facilities
consisted of 20 of the predecessor’s employees and 3
employees who had never worked for Caliber.
Under these facts, it is evident that the Respondent
commenced bargaining with the Union before it was
clear that the Union would have majority status. At the
time of the negotiations, i.e., beginning on May 13, it
was not clear whether the Union would be the representa-
tive. As of that time, given the Respondent’s announced
intention to change terms and conditions of employment,
it was unclear how many predecessor employees would
apply. Indeed, employees were not even permitted to
apply before May 19. Thus, the Respondent was negoti-
ating with the Union at a time when the Union’s majority
status was not established, actually or prospectively. It is
axiomatic that a nonconstruction employer violates Sec-

1 The three facilities constituted one bargaining unit.
2 All dates hereafter refer to 2004.
3 The Respondent’s operation would be somewhat smaller, and thus
some predecessor employees would not be retained.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1164
tion 8(a)(2) if it negotiates with a union at a time when
that union does not have majority status.4
Contrary to the majority’s assertion, I recognize that,
under the “Burn’s caveat,” there can be circumstances
where a successor employer can negotiate with the
predecessor union, even before employees begin work.
Thus, if the successor employer makes clear its plans to
retain the predecessor’s employees as his work force, and
does not indicate that there will be changes in terms and
conditions of employment, it may well be “perfectly
clear” that the new employer will be a successor, and it
may be appropriate to negotiate with the predecessor
union, even before employees begin work.5 However,
where the matter is not “perfectly clear,” a different re-
sult obtains. As the Board stated in Spruce Up, 209
NLRB 194, 195 (1975):
When an employer who has not yet commenced opera-
tions announces new terms prior to or simultaneously
with his invitation to the previous work force to accept
employment under those terms, we do not think it can
fairly be said that the new employer ‘plans to retain all
of the employees in the unit,’ as that phrase was in-
tended by the Supreme Court. The possibility that the
old employees may not enter into an employment rela-
tionship with the new employer is a real one.
In the instant case, when the Respondent announced its
intention to hire the predecessor’s employees it simulta-
neously expressed its intention of changing terms and
conditions of employment. As noted above, on April 15,
the Respondent informed the Union that it desired to
negotiate different terms and conditions of employment
than those that were in the Union’s collective-bargaining
agreement with Caliber. There is no evidence that the
predecessor’s employees would in fact go to work for the
Respondent under changed terms and conditions of em-
ployment. Thus, when the Respondent began negotiating
with the Union, it was not clear that the Union would
have majority status.6
The majority acknowledges that the Respondent told
the employees that it contemplated changes in terms and
conditions of employment. However, for my colleagues,
it is significant that the Respondent said that such
changes would be negotiated. I disagree. The signifi-
cance of contemplated changes is that they render uncer-

4 Ladies Garment Workers (Bernard Altman Corp.) v. NLRB, 366
U.S. 731 (1961).
5 NLRB v. Burns Security Service, 406 U.S. 272, 294–295 (1972).
6 Compare Canteen Co., 317 NLRB 1052 (1995), where the em-
ployer announced its intention to hire the predecessor employees, and
did not say at that time that it intended to change terms and conditions
of employment. In that case, there was an obligation to bargain as of
the date of the announcement.
tain whether the predecessor employees will accept an
employment offer made by the Respondent, where the
terms and conditions will differ from those that the em-
ployees enjoyed under the predecessor. In that funda-
mental sense, it makes no difference whether the changes
are unilateral or negotiated.
The majority misses the central point that, under either
unilateral or negotiated changes, there is no way of
knowing whether the predecessor’s employees would in
fact work for the Respondent. My colleagues speculate
that employees are more likely to accept employment by
the new employer if they are told that changes will be
negotiated with their union. There is no evidence to sup-
port this speculation. It may be that an employee is will-
ing to accept an adverse change in employment terms if
that change has been negotiated with the union, but it
may also be that some employees are more interested in
the substantive terms offered by the new employer, as
distinguished from the manner in which these terms
come about. In short, my colleagues rely upon pure
speculation.7
My colleagues also say that the Respondent made it
clear that the predecessor’s terms would remain in effect
pending negotiations with the Union. Again, this is pure
speculation.
My colleagues appear to say that an employer’s plan to
offer employment to the predecessor’s employees per-
mits that employer to negotiate any changes with the
union. However, until those new terms are set, and the
predecessor employees accept employment under those
terms, it is not perfectly clear that the Union will remain
the majority representative. Negotiations with a non-
majority union are inconsistent with the right of employ-
ees to choose or reject union representation. Accord-
ingly, in terms of the analytic test, it is not “perfectly
clear” that predecessor employees will be in the unit un-
der the successor. Thus, recognition of the Union, prior
to hire, is premature.
My colleagues say that the Union ultimately did ac-
quire majority status, inasmuch as the predecessor’s em-
ployees ultimately constituted a majority of the Respon-
dent’s work force. However, my colleagues’ point
misses the mark. The issue is whether the Respondent

7 My colleagues cite Machinists v. NLRB, 595 F.2d 664 (1978).
That case actually supports my position. The court there made it clear
that a change from the predecessor’s terms creates the “possibility” that
the predecessor employees may not wish to be employed by the succes-
sor. Thus, it is not “perfectly clear” that they will work for the succes-
sor. The sentence that is partially quoted by my colleagues, when read
in full, says that there may not be that perfect clarity even if the succes-
sor offers the same terms as those of the predecessor. I need not go that
far. The Respondent’s terms here differed from those of the predeces-
sor.
ROAD & RAIL SERVICES 1165
could lawfully negotiate with the Union before the em-
ployees were hired and therefore before the Union ob-
tained majority status.
Similarly, my colleagues misstate my position. I do
not say that the Respondent committed a violation where
it “expresses a desire” to negotiate changes with the Un-
ion. Rather, the violation occurred when the Respondent
actually negotiated those changes, a time when the Union
did not have majority status.
Under these circumstances, I find that the Respondent
was not a “perfectly clear” successor. Accordingly, I
find that the Respondent violated Section 8(a)(2) by
prematurely recognizing the Union. It also violated Sec-
tion 8(a)(3) because the negotiated agreement contained
a union-security clause.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with termination if you do
not fulfill your obligation to tender dues to Shopmen’s
Local 518 by executing dues check-off authorizations.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
ROAD & RAIL SERVICES, INC.
Paula B. Givens, Esq., for the General Counsel.
James N. Foster Jr., Daniel R. Begian, and Geoffrey M. Gil-
bert, Esqs., for the Respondent.
Mark Potashnick, Esq., for the Charging Party.
Jeffery E. Hartnett, Esq., for the Party to the Contract.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in St. Louis, Missouri, on January 10 and 11, 2005,
pursuant to a consolidated complaint that issued on November
22, 2004.1 The complaint, as amended on December 20 and at
the hearing, alleges threats of discharge to employees if they
did not sign dues check-off authorizations in violation of Sec-
tion 8(a)(1) of the National Labor Relations Act and the unlaw-
ful recognition of, and maintenance of a contract with, Shop-
men’s Local 518 thereby unlawfully assisting the Union in
violation of Section 8(a)(2) of the Act, and encouraging mem-
bership in that labor organization in violation of Section 8(a)(3)
of the Act. The Respondent’s answer denies all violations of
the Act. I find that the recognition of, and maintenance of a
contract with, Shopmen’s Local 518 did not violate the Act.
The Respondent did, on one occasion, threaten termination for
failure to execute dues check-off authorizations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respon-
dent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Road & Rail Services, Inc., is a Kentucky
corporation headquartered in Louisville, Kentucky, engaged in
the cleaning and preparation of railroad cars to transport newly
manufactured automobiles at various locations including three
locations in the vicinity of St. Louis, Missouri, the only location
involved in this proceeding. The Company, in conducting its
business, annually provides services valued in excess of
$50,000 directly to customers located outside the State of Ken-
tucky. The Company admits, and I find and conclude, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Auto-
mobile Transport Chauffeurs, Demonstrators and Helpers, Lo-
cal Union No. 604, affiliated with International Brotherhood of
Teamsters, AFL–CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
The Respondent admits, and I find and conclude, that Shop-
men’s Local 518, affiliated with International Association of
Bridge, Structural, Ornamental and Reinforcing Iron Workers
(the Union), is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Unlawful Recognition
1. Facts
This proceeding involves employees who work at three St.
Louis area locations at which the railroad cars that they clean
and prepare for the shipment of new vehicles are located. Gen-
eral Motors’ vehicles are assembled and shipped from Wentz-
ville, Missouri, and Ford vehicles are assembled and shipped
from Hazelwood, Missouri. Daimler Chrysler products are
assembled at Fenton, Missouri, and transported by truck across
the Mississippi River to Venice, Ohio, from which they are

1 All dates are in 2004 unless otherwise indicated. The charge in
Case 14–CA–27983 was filed on August 16, and was amended on
November 17. The charge in Case 14–CA–28026 was filed on Sep-
tember 20, and was amended on November 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1166
shipped by railroad. Prior to July 2004, the cleaning and prepa-
ration of the railroad cars at these locations was being per-
formed by employees of Caliber Mechanical Prepping, Inc.
(Caliber). Caliber performed this work pursuant to a contract
with Norfolk Southern Railroad. Caliber and Shopmen’s Local
518 were party to a collective-bargaining agreement recogniz-
ing the Union as the exclusive collective-bargaining representa-
tive of all hourly employees at the foregoing three locations
that was effective by its terms from January 14, 2002, through
January 31, 2007.
On January 12, Norfolk Southern issued a request for pro-
posals to perform the cleaning and preparation work at 19 loca-
tions that it served. Road & Rail was performing this work at 6
of the locations, and, on March 31, obtained the contracts to
perform this work at all 19 locations. Road & Rail’s Vice
President Robert Armine explained that the rebidding occurred
in connection with an industrywide change pursuant to which
the contractors would be paid a flat rate for each railroad car
cleaned and prepared for loading, rather than an estimate of the
number of hours of work that needed to be performed based
upon Norfolk Southern’s estimate of the number of railcars at a
particular location. Of the 19 locations at which Road & Rail
obtained the contracts, 14 were unionized.
The prebid documents provided to Road & Rail reported that
the employees were represented by Iron Workers Local 518,
actually Shopmen’s Local 518. On April 6, Attorney James N.
Foster, counsel for the Respondent, contacted Duane Raab,
business manager of Shopmen’s Local 518, to confirm that it
did represent the employees of Caliber and to determine
whether there was an existing collective-bargaining agreement.
On April 15, Vice President Armine and Attorney Foster met
with Business Manager Raab. Armine stated that it was Road
& Rail’s “intention to staff . . . these three facilities . . . with the
existing employees.” Business Manager Raab requested that
Road & Rail recognize Shopmen’s Local 518, and Armine
agreed to do so. Road & Rail informed the Union that it “de-
sired to negotiate changed terms and conditions of employment
from those existing under the Caliber . . . collective bargaining
agreement.” Thereafter, on May 10, Armine wrote Raab stat-
ing, in pertinent part:
Following our meeting of April 15, 2004, I am for-
warding this letter to you to confirm the fact that it is our
intention to retain a substantial portion of the complement
of those employees you presently represent at those loca-
tions we have sought contractually. As a condition of fur-
ther employment, however, we recognize that we have an
obligation [to] recognize the Iron Workers union as the
exclusive collective bargaining agreement in that regard.
Obviously the sooner we can reach agreement, the
sooner copies of the agreement can be prepared and dis-
tributed to those employees in advance of our assumption
of operation date which is tentatively set for early July
2004.
Raab responded by letter dated May 11:
I received your correspondence dated May 10, 2004. I am
available over the next several weeks on Thursday, May 13th
and May 20th to meet and begin negotiations in regard to an
agreement concerning those employees whom you intend to
retain as well as those which you intend to hire at locations in
St. Louis where the Iron Workers presently have a collective
bargaining agreement. We appreciate this good faith effort on
your part and also appreciate the effort on your part to reach
an agreement in an expeditious manner to ensure the rights of
those employees we represent. If you have any questions
please do not hesitate to call me as well.
Armine and Foster met again with Raab on May 13 for 2 or 3
hours. Road & Rail presented Raab with a contract that the
company had typically used, and Raab presented the Shop-
men’s contract. Thereafter, Attorney Foster and Raab met “for
purposes of collective bargaining” on June 9, 11, and 14. On
June 14, Road & Rail and the Union executed a collective-
bargaining agreement effective July 10, the date that Road and
Rail was to begin work at the Wentzville location. The basic
terms of employment were not changed. The hourly wage for
“preppers” remained at $9.55 per hour and the employee con-
tribution for health insurance remained the same, 20 percent.
The record does not establish whether the total premiums for
the coverage provided by Road & Rail differed from the costs
under Caliber. Caliber gave four holidays, Thanksgiving,
Christmas Eve, Christmas Day, and New Years Day plus 7
personal days, a total of 11. Road & Rail gave 7 holidays but
no personal days. Although the brief of the Charging Party lists
drug testing and the requirement that employees have a driver’s
license as a change in conditions of employment, section 24.2
of the contract between Caliber and Shopmen’s Local 518 es-
tablishes that Caliber employees were subject to drug testing
and employee Edward Morton testified that employees had “to
be able to drive.”
David Lawshe, area manager for Road & Rail, coordinated
the hiring of employees. All Caliber employees were given the
opportunity to submit applications on May 19, and, of the 43
individuals employed by Caliber, 38 did so. Actual offers of
employment were not made until about a week before Road &
Rail assumed the operations at the separate St. Louis area loca-
tions. Wentzville employees were hired on July 12, Hazelwood
employees began on July 26, and Venice employees began on
July 31. The employees were not advised of the terms and
conditions of their future employment when they submitted
applications. They were informed that Road & Rail would
require them to take a drug test and would perform a back-
ground check. When employee Darrell Essex filled out his
application he asked the Road & Rail representative “about
benefits and insurance, . . . vacation and stuff like that.” The
representative replied that “he didn’t know.” Essex asked
whether Road & Rail would “hire back all employees from
Caliber” and was told that, although there was no guarantee,
“we would get first consideration at the job before they put an
ad in the paper, . . . that, in order to get the job, we would have
to pass . . . a background test and a drug screen.” No adver-
tisements for these positions were ever placed.
Vice President Armine explained that the background check
was a motor vehicle record check to assure that all applicants
correctly reported any violations and to assure that all had a
valid driver’s license. Employee Edward Morton confirmed
ROAD & RAIL SERVICES 1167
that possession of a valid driver’s license was a job requirement
with Caliber, “we have to be able to drive,” and that the em-
ployees at Hazelwood, where he worked, were specifically told
that that they needed to take care of any problem with a “sus-
pended license or anything like that.” Section 24.2 of the con-
tract between the Union and Caliber provided that Caliber had
the right to “formulate and enforce programs consistent with
the ‘Drug Free Workplace Act’” and would require preem-
ployment drug tests. Armine testified that Road & Rail had the
same preemployment requirements at all its locations, that
“Caliber’s . . . hiring policies . . . were very similar to ours,”
and that he, therefore, “had a high degree of confidence” that
the Caliber employees would meet the foregoing prerequisites
for employment. Road & Rail followed the same procedure
that it followed in St. Louis at the other locations where it ob-
tained the Norfolk Southern contract, including locations where
employees were represented, one of which was at Wayne,
Michigan, where the employees are represented by a Teamsters
local.
Area Manager Lawshe admitted that some Caliber employ-
ees were found not to be qualified for employment with Road
& Rail. Employee Darrell Essex asked Supervisor Parnell
Walker why four individuals whom he named had not been
hired, and Walker told him that two had failed the drug test and
the two others had invalid driver’s licenses. Essex testified that
Walker said that he received his information from Supervisor
Bob Murphy, but Murphy denied knowing the reason for rejec-
tion or giving such information to Walker. Walker did not
testify. Whether true or not, I credit Essex that he was told that
the four employees had failed.
Vice President Armine explained that Road & Rail planned
to reduce staffing at the Norfolk Southern facilities that it had
previously served as well as at the ones it had obtained and that
this was dictated by pricing because Norfolk Southern would be
paying only for cars cleaned rather than for estimated hours on
the basis of projected volume. Caliber had operated with 45
employees. Road & Rail staffed the locations with 23 employ-
ees. Two Caliber employees, Parnell Walker at Hazelwood and
Kenneth Tourville at Venice, were hired as supervisors by
Road & Rail. At Wentzville, instead of the 19 employees
working for Caliber, Road & Rail hired 12, 11 of whom had
been working for Caliber. At Hazelwood, instead of 21 em-
ployees, 8 were hired, 6 of whom had been working for Cali-
ber, plus Walker who had been an employee but was hired as a
supervisor. Of the two employees hired at Hazelwood who
were not working for Caliber, one had worked for Caliber in
the past. At Venice, instead of the five employees working for
Caliber, three employees were hired, all of whom had been
working for Caliber, plus Tourville who had been an employee
but was hired as a supervisor. As the above totals reflect, 20 of
the 23 employees hired by Road & Rail, plus two new supervi-
sors, had been working for Caliber immediately prior to Road
& Rail commencing operations.
On July 12, the day Road & Rail hired employees at Wentz-
ville, Area Manager Lawshe informed the employees that they
continued to be represented by Shopmen’s Local 518, that
“they were still in the same union that they had [been] with
Caliber.” Employees signed a receipt for the associate hand-
book that they received. The receipt acknowledges that the
employee understands that “the terms and conditions of my
employment are as set forth in the collective bargaining agree-
ment between the company and the union” and that the hand-
book does not alter those terms “unless specifically set forth.”
Lawshe recalled that, on July 12, former employee Larry Vin-
cent complained that “their representative wasn’t answering
their calls.” Lawshe suggested that the employees go to the
next union meeting. Vincent did not state that the Wentzville
employees did not want to be represented by Shopmen’s Local
518.
Vincent testified that, as early as May, employees at Wentz-
ville expressed dissatisfaction with the representation that they
were receiving from the Union, but he did not state the basis for
their dissatisfaction. Vincent recalled that, after he was hired
by Road & Rail, Supervisor Steve Mills advised employees that
they needed to elect a shop steward. In a pretrial affidavit, Vin-
cent stated that this occurred on July 13 and that, on that date,
the employees “deliberated and decided they wanted to vote
Local 518 out.” He admitted that there was no communication
with any supervisor or manager regarding any employee dissat-
isfaction.
On July 21, Vincent attended a Shopmen’s Local 518 meet-
ing and, at that meeting, informed Local 518 President Mark
McGilvray that “we were dissatisfied with their representation
and that we had vote[d] them out.” There is no evidence of a
formal vote. Regardless of when the dissatisfaction with Shop-
men’s Local 518 among the Wentzville employees was first
expressed, there is no evidence that it was expressed to the
Union prior to July 21. There is no evidence that a desire not to
be represented by Shopmen’s Local 518 or any reference to a
vote by the Wentzville employees was ever communicated to
the Respondent. Employee Vincent had no contact with the
Teamsters Union until August 11 or 12.
Employees Edward Morton and Darnell Essex, notwithstand-
ing contradictory recollection of the dates, place themselves
together in two conversations among second-shift employees at
Hazelwood while Parnell Walker was present in the same 30-
by-20 foot room doing paperwork. The employees discussed
dissatisfaction with Shopmen’s Local 518. The same five or
six employees, including Morton and Essex, were involved in
both conversations, the first of which occurred prior to Walker
being hired as a supervisor by Road & Rail on June 28. Walker
went to training in Kentucky and returned on July 3. During
the week of July 5–8, when Hazelwood was still being operated
by Caliber, Walker worked at Wentzville as a supervisor on
first shift and then worked for Caliber as an employee for 29
hours. The second conversation occurred after Walker returned
from training and would have occurred between July 5 and 8.
After the second conversation, Essex spoke alone with Walker,
stating that the employees did not want to be represented by
Shopmen’s Local 518. Walker replied that Essex needed to get
in touch with Shopmen Business Agent Raab before the St.
Louis area employees “missed out on better pay, benefits, [the
cleaning of] uniforms . . . things like that that they had at other
facilities.” Essex made no effort to contact the Union. Morton
testified that he also spoke separately to Walker. When initially
asked what he told him, Morton answered, “Just that none of us
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1168
wanted the Union.” I do not credit his later embellishment of
this testimony.
Essex recalled that Walker was at the same table as the em-
ployees when the first conversation occurred. I find that he was
mistaken in this regard. The fact that both he and Morton
spoke directly to Walker establishes that neither was certain
that Walker either overheard the conversations among the sec-
ond-shift employees or understood any comments to mean that
the employees did not want to be represented by the Union
rather than that they disagreed with some union action or inac-
tion. Walker did not testify. I find that Essex and Morton did
tell Walker that the employees did not want to be represented
by the Union. There is no probative evidence that their com-
ments related to any employees other than the five or six sec-
ond-shift employees at Hazelwood.
After being hired by Road & Rail on July 26, Essex called
Teamsters Local 604 on July 27. After speaking with a Team-
sters’ representative, Essex began soliciting authorization cards
on behalf of that Union on August 2. Teamsters Local 604
filed a petition for an election in a unit consisting of 10 em-
ployees, presumably the Hazelwood location, on August 11. A
separate petition for the Wentzville location was filed on Au-
gust 16. When Local 604 learned that the petitions were being
dismissed because of Road & Rail’s collective-bargaining
agreement with Shopmen’s Local 518, the Teamsters represen-
tative advised Essex of this fact.
Essex contacted President McGilvray on August 23, who
confirmed that there was a contract. McGilvray testified that he
provided a copy of it from his file to Essex. Essex acknowl-
edges receipt of the contract but testified that it was not imme-
diately provided because it had been sent to Washington D.C.
for approval by the International Union. Counsel for the
Charging Party questioned President McGilvray regarding the
requirement of approval by the International Union as reflected
on 4 pages of its constitution and bylaws.2 The Charging
Party’s brief does not mention this matter presumably because
the Charging Party is aware that the Board holds that approval
by an international union “as to form” is “merely a perfunctory
or ministerial act” and that “an otherwise valid agreement will
be binding on the parties regardless of whether the approval is
actually secured.” Buschman Co., 334 NLRB 441, 443 (2001).
2. Analysis and concluding findings
The complaint alleges that the Respondent granted recogni-
tion to, and maintained a contract with the Union “even though
Shopmen’s Local 518 did not represent a majority of the Unit”
and “even though Respondent had yet to employ any Unit em-
ployees or commence normal business operations” thereby
assisting the Union in violation of Section 8(a)(2) of the Act
and encouraging membership in the Union in violation of Sec-
tion 8(a)(3) of the Act.
There is no evidence that the Union did not represent a ma-
jority of the unit employees at any time. Prior to Road & Rail’s
commencement of operations, all hourly employees of Caliber

2 Although received as CP Exh. 1, the 4 pages of the Union’s consti-
tution and by-laws are not included as an exhibit because they were not
submitted to the reporter.
at the three St. Louis area locations were represented by the
Union pursuant to a contract that contained a valid union secu-
rity provision. Road & Rail hired its entire employee comple-
ment prior to August 1. The only evidence of disaffection of
any employees with Shopmen’s Local 518 prior to their em-
ployment by the Respondent is the statements by employees
Essex and Morton during the last week that they worked for
Caliber at the Hazelwood location. Essex and Morton, who had
been conversing with the three or four other second-shift em-
ployees, informed Parnell Walker, who was still working on
second shift for Caliber at Hazelwood, that the employees did
not want to be represented by Shopmen’s Local 518. Accept-
ing that statement as an expression of disaffection rather than
dissatisfaction, it related to a maximum of six employees out of
Caliber’s total complement of 21 employees at Hazelwood. No
employee had contacted Teamsters Local 604. At Wentzville,
where the Respondent hired 11 employees on July 12, em-
ployee Vincent, after being hired, informed Area Manager
Lawshe that “their representative wasn’t answering their calls.”
Vincent acknowledged that he made no statement to any man-
ager or supervisor of the Respondent regarding a desire not to
be represented by Shopmen’s Local 512. Expressions of dissat-
isfaction with the actions of a collective-bargaining representa-
tive do not establish disaffection. Torch Operating Co., 322
NLRB 939, 943 (1997).
The merit of the complaint allegation relating to recognition
of the Union prior to commencement of operations is dependent
upon the status of the Respondent as a “perfectly clear” succes-
sor under the principles enunciated in NLRB v. Burns Security
Service, 406 U.S. 272 (1972), and subsequent Board precedent.
The first issue to be determined is whether the new employer is,
in fact, a successor. Although the parties did not stipulate that
the Respondent was a successor to Caliber, they did stipulate,
and the record establishes, that the Respondent employed more
than 90 percent of Caliber’s employees, that those employees
perform the same jobs, using the same tools and equipment, in
the same working conditions, and are subject to similar super-
vision as when they were employed by Caliber. The parties
further stipulated that the Respondent performed services sub-
stantially similar to those provided by Caliber to Norfolk
Southern, the same entity for which Caliber had performed the
services. I find a “substantial continuity” of operations. Fall
River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987). The Re-
spondent is a successor to Caliber.
The Supreme Court, in NLRB v. Burns Security Service, su-
pra, held that, although a successor “is ordinarily free to set
initial terms on which it will hire the employees of a predeces-
sor, there will be instances in which it is perfectly clear that the
new employer plans to retain all of the employees in the unit
and in which it will be appropriate to have him initially consult
with the employees’ bargaining representative before he fixes
terms.” Id. at 294. (Emphasis added.) The Board, applying
Burns, holds that a successor’s obligation to bargain com-
mences when the successor announces its intention to retain the
existing employees. In C.M.E., Inc., 225 NLRB 514 (1976),
the Board modified the finding of the administrative law judge
who found that the successor’s obligation to bargain attached
when the union requested recognition. The Board, citing
ROAD & RAIL SERVICES 1169
Burns, held that the “obligation to bargain, including the setting
or altering of initial terms of employment” commences on the
date that the successor “made it ‘perfectly clear’ that it planned
to retain all or substantially all of the employees.” This princi-
ple has been applied in multiple cases including Helnick Corp.,
301 NLRB 128 fn. 1 (1991), in which the Board affirmed the
administrative law judge’s finding that the bargaining obliga-
tion attached on April 1 when the successor “informed employ-
ees that they could expect to be retained,” and New Breed Leas-
ing Corp., 317 NLRB 1011 (1995), where the new employer
failed to hire current employees in order to avoid a bargaining
obligation and, but for that action, the respondent “would have
hired” the predecessor’s work force and it was, therefore “obli-
gated . . . before it hired . . . to recognize and bargain with the
Unions representing the employees in the two bargaining units
. . . .” Id. at 1025.
C.M.E., Inc., 225 NLRB 514 (1976), was decided after the
Board’s decision in Spruce Up Corp., 209 NLRB 194 (1974),
enfd. on other grounds 529 F.2d 518 (4th Cir. 1975). In Spruce
Up, a divided Board, applying Burns, held that it was not “per-
fectly clear” that the work force would be retained when, on
February 6, 1970, the new employer, although stating that “all
the barbers who are working will work,” contemporaneously
refused to recognize the Union and “told the union representa-
tives what he planned to pay the barbers,” a lower commission
rate than they were currently receiving. Ibid. Members Fan-
ning and Penello, in separate minority opinions, found that “all
the barbers . . . will work” meant exactly that and, having ex-
pressed the intent to hire all of the barbers on February 6, the
bargaining obligation, consistent with Burns, began on Febru-
ary 6. Chairman Miller and Member Jenkins characterized the
“all the barbers . . . will work” statement as expressing only “a
general willingness to hire” that was not within the “perfectly
clear” caveat in Burns, and that the statement of the new em-
ployer “did not operate to forfeit his right to set initial terms.”
Id. at 195. Member Kennedy, who concurred with Chairman
Miller and Member Jenkins in this aspect of the decision but
otherwise dissented and found no bargaining obligation, found
that the statement of a general willingness to hire was not con-
trolling because the new employer “made clear to the union
representatives on February 6 and to the Spruce Up barbers . . .
that he would continue with the old work force only if they
accepted the new commission rates which he proposed to
them.” Id. at 203 and fn. 11. Member Penello commented that
the disregard of the “all the barbers . . . will work” statement by
the majority constituted “a strained legal psychoanalysis, [by
which] they contend that, despite the plain meaning of his
words, Fowler [the new employer] did not really intend to re-
tain the barbers.” Id. at 207. Chairman Miller and Member
Jenkins found that the new employer had no bargaining obliga-
tion until the employees accepted the new terms and constituted
a majority of the new employer’s work force. The February 6
inception of the bargaining obligation found by Members Fan-
ning and Penello was a continuing obligation. Therefore, a
majority of four Board members concurred that the new em-
ployer was obligated to bargain, but the earliest date upon
which they agreed the obligation attached was in April when
employees of the former employer constituted a majority of the
unit.
In this case the Respondent, with no equivocation, an-
nounced its intention to staff the three St. Louis locations with
employees represented by the Union. On April 15, Vice Presi-
dent Armine stated to the Union that it was Road & Rail’s “in-
tention to staff . . . these three facilities . . . with the existing
employees,” and, in response to the Union’s request, agreed to
recognize the Union. The plan to operate with fewer employ-
ees has no effect upon the Respondent’s bargaining obligation.
Shortly after the Burns decision, the Board held that the “plans
to retain all the employees in the unit” language in Burns would
cover not only the situation where the successor’s plan includes
“every employee in the unit, but also situations where it in-
cludes a lesser number but still enough to make it evident that
the union’s majority status will continue.” Spitzer Akron, Inc.,
219 NLRB 20, 22 (1975), enfd. 540 F.2d 841 (6th Cir. 1976),
cert. denied 429 U.S. 1040 (1977). The Board reaffirmed the
foregoing principle in Galloway School Lines, 321 NLRB 1422
(1996), in which it pointed out that the critical inquiry was
whether “the union’s majority status will continue.” Although
the new employer plans “to employ a smaller workforce,” the
employer is required to bargain when it is “apparent from the
new employer’s hiring plan that the union’s majority status will
continue.” Id. at 1427. The Respondent’s undisputed intention
to staff the St. Louis facilities from the cadre of existing em-
ployees, albeit with a smaller number than had been employed
by Caliber, established its obligation to bargain.
Unlike the situation in Spruce Up, Road & Rail expressed
more than a general willingness to hire existing employees.
Vice President Armine stated Road & Rail’s “intention to staff
. . . these three facilities . . . with the existing employees,” and,
consistent with Burns, C.M.E., Inc., and Galloway School
Lines, consulted with the Union and negotiated the initial terms
and conditions of employment of the employees. Pursuant to
the foregoing precedent, the Respondent would have violated
Section 8(a)(5) of the Act if it had not consulted with the em-
ployees’ collective-bargaining representative regarding their
terms and conditions of employment. Upon reaching agree-
ment, the parties signed a contract reflecting the terms and con-
ditions of employment, effective on the date that the Respon-
dent was to begin operations.
The General Counsel and Charging Party argue that the obli-
gation to bargain did not occur until the employees were actu-
ally hired, noting Road & Rail’s required drug tests and motor
vehicle record checks. They cite the testimony of Lawshe,
who, upon cross-examination, agreed with the General Counsel
that, as a matter of logic, until they were actually hired, it was
not certain that former employees of Caliber would constitute a
majority of Road & Rail’s work force. As a matter of logic, it
is not absolutely certain that any event, whether it be the sun
rising tomorrow or airline flight 643 arriving safely at its desti-
nation, will occur until it has occurred. The requirement of
precedent is that it be “perfectly clear” that the new employer
intends to hire a majority of the former employer’s work force.
It was, as Lawshe testified, the Respondent’s intention to hire
its workforce, albeit a smaller work force than that of Caliber,
from the “most qualified” employees of Caliber. The preem-
ployment screening imposed no requirements that any Caliber
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1170
employee would not be expected to meet. Employee Morton
confirmed that, as Caliber employees, “we had to be able to
drive.” Caliber employees were subject to preemployment drug
testing pursuant to Section 24.2 of the contract between Caliber
and the Union. Vice President Armine was familiar with Cali-
ber’s employment practices and “had a high degree of confi-
dence” that the Caliber employees would be qualified. His
confidence was confirmed by the Respondent’s hire of two
Caliber employees as supervisors and the hire of 20 Caliber
employees, more than 90 percent of its work force of 23.
Under the theory of the General Counsel and the Charging
Party, the Respondent should have refused to bargain and as-
sumed that the Region would dismiss any 8(a)(5) charge filed
by Shopmen’s Local 518 because the Respondent was screen-
ing employees with regard to its minimal job-related precondi-
tions to employment, i.e., senses and reflexes undisturbed by
the ingestion of drugs and truthful reports of traffic violations.
I find that the foregoing is an assumption that the Respondent
was not required to make. Under the General Counsel’s theory,
the Respondent should have trusted that the Region would
credit a claim by the Respondent that it could not be certain that
its stated intention to hire from the current work force would be
realized because an insufficient number of Caliber employees,
all of whom were required to have a valid drivers license and
were subject to section 24.2 of their Union’s contract with
Caliber adopting the Drug Free Workplace Act, might not meet
those requirements so as to constitute a majority of the Respon-
dent’s work force. I reject that theory. I find that the Respon-
dent had no reason to suspect or believe that an insufficient
number of Caliber employees would qualify for employment so
as to constitute a majority of its work force.
The Charging Party, citing multiple cases, argues that the
Respondent had no obligation to bargain until it actually hired a
majority of the predecessor’s employees. I disagree. The cases
cited, including A to Z Maintenance Corp., 309 NLRB 672
(1992), which the Charging Party discusses, are all factually
distinguishable. In A to Z Maintenance, the new employer was
“to hire not only from those prospects suggested by [the union]
. . . but from other sources.” Id at 673. The prematurely recog-
nized union did not represent a majority of the unit employees
and there was a “significant difference” between the former
unit and the unit to which the employer granted premature rec-
ognition. Id at 674. There was “no successorship bargaining
obligation under Burns.” Id at 675. The Charging Party does
not cite or address Board precedent as stated in C.M.E., Inc.,
supra, and Galloway School Lines, supra.
The General Counsel, citing Marriott Management Services,
318 NLRB 144 (1995), argues that Road & Rail is precluded
from being a “perfectly clear” successor because it “announced
to Shopmen’s [Local 518] and therefore to employees, its intent
to establish a new set of conditions of employment before of-
fering a single employee a job.” In Marriott Management, the
Board acknowledged that communications with an incumbent
union are “regarded . . . as communications with the employees
through their representative.’” Id. at fn. 1. See also Elf Ato-
chem North America, Inc., 339 NLRB 796 fn. 3 (2003). In
Marriott, the new employer announced that the health and wel-
fare and pension plan in the incumbent union’s contract were
unacceptable, thus effectively stating its intention to establish
its own terms and conditions of employment. Id. at 144, 148.
In the instant case, the parties stipulated that, on April 15, the
Respondent “notified Shopmen’s Local 518 that it would hire a
majority of Caliber . . . employees, that it would recognize
Shopmen’s Local 518, and that it desired to negotiate changed
terms and conditions of employment. . . .” (Emphasis added.)
Significantly, the Respondent did not announce that it was go-
ing to unilaterally establish any term or condition of employ-
ment or state that any specific provision of the current contract
was unacceptable. It stated that it “desired to negotiate.” It did
so. In doing so, the Respondent abided by existing precedent
that makes it imperative that the Respondent bargain with the
incumbent collective-bargaining representative “prior to the
new employer’s extension of formal offers of employment to
the predecessor’s employees.” Canteen Co., 317 NLRB 1052,
1053 (1995).
The General Counsel, cites MV Transportation, 337 NLRB
770 (2002), in which the Board overruled its decision in St.
Elizabeth Manor, Inc., 329 NLRB 341 (1999), which provided
for an insulated period following successorship, and returned to
the “doctrine that an incumbent union in a successorship situa-
tion is entitled only to . . . a rebuttable presumption of continu-
ing majority status.” The Board, St. Elizabeth Manor, specifi-
cally noted that its discussion related to situations involving “an
ordinary successor—i.e., one that does not make it ‘perfectly
clear’ that it intends to retain its predecessor’s employee. . . .”
Id. at 343 fn. 6. MV Transportation does not mention the Burns
“perfectly clear” exception. The General Counsel, although
implicitly acknowledging that there is no probative evidence of
significant disaffection among the unit employees, refers to
“seeds of discontent” that “may have matured.” There is no
objective evidence rebutting the Union’s majority status. There
is no evidence that the Respondent was aware that any more
than the six employees on second shift at Hazelwood did not
desire to be represented by the Union at any time prior to Au-
gust 2 when the first authorization card for Teamsters Local
604 was signed. The filing of the representation petitions by
Teamsters Local 604 in August did not rebut the Union’s ma-
jority status. Marion Memorial Hospital, 335 NLRB 1016,
1018 (2001). MV Transportation is inapplicable in this “per-
fectly clear” successor case.
No party has cited, nor have I found, any case in which an
8(a)(2) violation has been litigated where the Respondent an-
nounced its plan to staff its work force with current employees,
did not announce that it was setting initial terms and conditions
of employment, and consulted with the employees’ collective-
bargaining representative and negotiated regarding the changes
it sought to institute that differed from the current contract.
Board precedent establishes that the Respondent would, in
these circumstances, have violated Section 8(a)(5) of the Act if
it had not consulted with the employees’ collective-bargaining
representative. The Respondent, having announced its hiring
plan, bargained with the employees’ collective-bargaining rep-
resentative and the parties agreed to certain changed conditions
of employment, including a reduced number of paid days off
and, presumably although not specifically stated, a change in
the identity of the insurance carrier, as well as various changes
ROAD & RAIL SERVICES 1171
of wording in the contract. They memorialized their agreement
in a collective-bargaining agreement to be effective upon the
date that the Respondent assumed operations. There was no
unlawful premature recognition. The memorialization of the
changed terms of employment, together with multiple un-
changed terms, is consistent with Section 8(d) of the Act, which
provides for the “execution of a written contract incorporating
any agreement reached if requested by either party.” I shall
recommend that the 8(a)(2) and (3) allegations relating to the
Respondent’s recognition of Shopmen’s Local 518 be dis-
missed.
B. The Allegations Relating to Union Security
The contract between the Respondent and the Union contains
a valid union-security provision. I have found that the Respon-
dent’s recognition of the Union and execution of a contract was
proper, I shall recommend that the 8(a)(3) allegations relating
to enforcement of the valid union-security provision be dis-
missed.
The complaint currently alleges five instances of 8(a)(1)
conduct relating to communications concerning the employees’
obligations under the union-security provision. Counsel for the
General Counsel’s brief withdraws subparagraph 5(A)(i). Sub-
paragraph 5(C) was withdrawn at the hearing. No evidence
was adduced with regard to either allegation.
Subparagraph 5(A)(ii) alleges a threat by Supervisor Mur-
phy, who oversaw Hazelwood and Venice, on September 20
after the Road & Rail corporate office forwarded to him dues
check-off authorization cards for Shopmen’s Local 518 with
the following explanation:
Enclosed please find authorizations for check-off dues which
can be distributed to the employees [on a voluntary basis
only] at the three locations covered by Local 518’s Agree-
ment. Employees should be told at some time, that they have
the right to decline to pay union dues, however, we are a shop
which is subject to a union dues requirement and that failure
to tender dues may result in the union’s request for their ter-
mination.
Murphy distributed the dues authorization cards. Employee
Darrell Essex testified that he informed Murphy that he would
not sign the card and that Murphy initially responded that he
would have to let him go. Shortly thereafter, Murphy made a
telephone call and then amended his response to Essex, stating
that he needed to report to the Union “anyone who won’t sign.”
Murphy testified that he simply read the document he was sent
from corporate headquarters.
Essex did not sign the card after the “let him go” statement.
He admits that Murphy amended his response after making a
telephone call, stating that he only needed to report to the Un-
ion those who had not signed. The threat of termination was
“effectively cured by [its] . . . prompt rescission.” Atlantic
Forest Products, 282 NLRB 855 (1987). The Union was enti-
tled to know which employees would be tendering their dues
rather than having them deducted by the Respondent. I shall
recommend that the foregoing subparagraph be dismissed.
Subparagraph 5(B) alleges that Area Manager Lawshe, on
September 28, threatened to discharge employees who did not
sign dues-check-off authorizations and told employees that any
employees who replaced them would be required to join the
Union before they were hired. Lawshe testified that he spoke
with the employees, referred to his prior union membership,
and stated that he “would think [that signing the check-off au-
thorization] . . . is something that they should do.” Employee
Larry Vincent, who went to the restroom in the course of Law-
she’s remarks, testified that he heard him mention “terminating
employees” starting at the bottom of some undefined list “if we
didn’t sign with 518” and that, for everyone terminated, “he
would have somebody in the office who will sign with 518.”
Vincent recalled that Lawshe mentioned getting “sound advice
from a lawyer.” Lawshe denied threatening termination for
failure to execute a dues-deduction card. He was aware of the
contractual obligation that employees tender dues to Shopmen’s
Local 518 and admits telling the employees that, if someone
was giving them advice, he hoped “that person does know what
they’re talking about.” I credit Lawshe. There is no probative
evidence of a threat to terminate for failure to sign a dues-
check-off authorization as opposed to failure to tender dues.
There is no evidence that any statement was made relating to
replacement employees being required to join the Union before
being hired. I shall recommend that subparagraph 5(B) be dis-
missed.
Subparagraph 5(D), amended into the complaint at the hear-
ing, alleges that, on August 3, Supervisor Ken Tourville threat-
ened to discharge employees if they did not sign dues check-off
authorizations. On August 3, employee Essex solicited cards
for Teamsters Local 604 at Hazelwood. Employee Edward
Morton testified that Supervisor Ken Tourville stated that Essex
was going to “get us fired” and if “you don’t sign the 518 [dues
deduction] card you’ll get terminated.” Tourville denies the
foregoing statement. There is no evidence of any solicitation
relating to dues-check-off authorizations for Shopmen’s Local
518 prior to September. I credit Tourville’s denial. I shall
recommend that this allegation be dismissed.
Subparagraph 5(E), amended into the complaint at the hear-
ing, alleges that Supervisor Bob Murphy, on December 7,
threatened to discharge employees if they did not sign dues-
check-off authorizations. In December, President Mark
McGilvray left dues-deduction authorization cards with Mur-
phy at Hazelwood and requested that Murphy post a letter in
the office. McGilvray stated that he would return the following
Friday to pick up the authorization cards. The posted letter
cites the provision of the collective-bargaining agreement that
requires membership in the Union and states that “[s]ince the
Company does withhold the initiation fee and monthly dues, it
is your responsibility to sign the application, dues authorization
and initiation authorization card so that the monthly dues . . .
[are] paid in to the office at the address listed above.” Thereaf-
ter, Murphy acknowledges having a conversation with em-
ployee Edward Morton. Morton testified that, in the presence
of Supervisor Tourville, Murphy told him that “corporate’s
breathing down my neck. I don’t want to fire everybody, but if
everybody doesn’t sign the union card, everybody will be ter-
minated.” Although Tourville did not recall being present
when Murphy “talked to employees about dues or dues authori-
zation cards,” he was not specifically asked and did not deny
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1172
being present at a conversation between Morton and Murphy.
Although Murphy denied that he spoke of termination, he ad-
mitted asking Morton if he had thought about signing the dues-
deduction authorization and telling him that “he was a good
employee, I didn’t want to lose him.” The foregoing admission
implies such a threat. Murphy had posted the letter stating that
it was the “responsibility [of each employee] to sign the . . .
dues authorization.” The letter does not acknowledge the right
of employees to tender dues without agreeing to the check-off
of dues. McGilvray was returning on Friday to pick up the
documents. I credit Morton and find that the Respondent
threatened termination if the employees did not sign dues-
check-off authorizations in violation of Section 8(a)(1) of the
Act. Rochester Mfg. Co., 323 NLRB 260, 262 (1997).
Subparagraph 5(F), amended into the complaint at the hear-
ing, alleges a threat to terminate employees who did not sign
check-off authorizations to Area Manager Lawshe on Decem-
ber 9. Essex testified that Manager Lawshe asked him whether
Hazelwood employees were signing the “union dues cards.”
Essex testified that Lawshe said that the “problem” was with
Local 518, that if the Union wanted employees who did not
sign cards to be terminated Road & Rail would have “no choice
. . . if the Union proposed that.” Lawshe denied threatening
any employee, including Essex, with termination for failing to
sign a check-off authorization. Essex acknowledged that he
was unaware that he could meet his dues obligation by paying
the dues without authorizing the deduction from his pay. Any
comments made by Lawshe relating to termination for failure to
tender dues pursuant to the valid union security provision in the
contract would, therefore, have been understood by Essex to
have related to the failure to sign a check-off authorization. I
credit Lawshe’s credible denial that he threatened termination
for failure to sign a check-off authorization. I shall recommend
that this allegation be dismissed.
CONCLUSION OF LAW
By threatening employees with termination if they did not
fulfill their obligation to tender dues to the Union by executing
dues check-off authorizations, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and post an appropriate notice.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Road & Rail Services, Inc., Louisville,
Kentucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees that they will be terminated if
they do not fulfill their obligation to tender dues to Shopmen’s
Local 518 by executing dues check-off authorizations.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cilities in Wentzville and Hazelwood, Missouri, and Venice,
Illinois, copies of the attached notice marked “Appendix.”4
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 14, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facilities involved in
these proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current employees
and former employees employed by the Respondent at any time
since December 7, 2004.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
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.
4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”