Spruce Up Corp.

National Labor Relations Board - Board Decisions

Feb 22, 1974

209 N.L.R.B. 194 (N.L.R.B. 1974)

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spruce Up Corporation and David Brown , Hector
Hunt, Jesse Womble
Cicero Fowler t/a Fowler 's Barber Shops and Jour-
neymen Barbers, Hair Dressers , Cosmetologists
and Proprietors ' International Union of America,
AFL-CIO, Local 844. Cases 11-CA-3949-1, -2,
-3, and 1 l-CA-4198
February 22, 1974
SUPPLEMENTAL DECISION AND
ORDER
On January 5, 1972, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding,' finding, inter alia, that Respon-
dent Cicero Fowler engaged in certain conduct in
violation of Section 8(a)(5) and (1) of the National
Labor Relations Act, as amended, and ordering him
to cease and desist therefrom and to take certain
affirmative action, as set forth herein. Thereafter, the
Board applied to the United States Court of Appeals
for the Fourth Circuit for enforcement of its Order.
In the meantime, however, the United States
Supreme Court issued its decision in N.L.R B. v.
Burns International Security Services, Inc.2 On July 6,
1972,3 at the Board's request, the court of appeals
remanded the instant cases to the Board for
reconsideration in the light of Burns.
We have reconsidered our original findings in these
cases in light of the Burns decision, and the record as
a whole, and have determined that the principles
enunciated by the Supreme Court in Burns require
that we make certain modifications of those findings
as set forth below.
For many years the barbering at Fort Bragg, North
Carolina, has been handled by concessionaires
selected periodically by the Fort's exchange service
on the basis of competitive bids. From March 3,
1969, through March 2, 1970, Respondent Spruce Up
Corporation operated 19 of the 27 barber shops at
Fort Bragg; the remaining 8 shops were operated by
2 other concessionaires, Roscoe and Fisher. The
Charging Party, Journeymen Barbers, Hair Dressers,
Cosmetologists and Proprietors' International Union
of America, AFL-CIO, Local 844 (hereinafter
referred to as the Union), was certified in a unit of
the 19 Spruce Up shops on August 4, 1969. In late
1969, the exchange service reopened the bidding for
the operation of all of the barber shops at the Fort.
In early 1970, Respondent Cicero Fowler was
notified that he was the lowest bidder. On March 3,
1970. Fowler assumed operation of all the shops at
Fort Bragg.
194NLRB841
2 406 U S 272 (1972).
On February 6, 1970,' when the Union learned that
Fowler was the lowest bidder and likely to take over
the operation of the Spruce Up barber shops, it
requested Fowler to recognize and bargain with it.
Fowler refused, contending that he had no employ-
ees yet and in any event would have no duty to
bargain before March 3. Fowler testified that at this
meeting with the Union he told the union representa-
tives, when asked what his intentions were about
hiring barbers, that "all the barbers who are working
will work." He also told the union representatives
what he planned to pay the barbers. The Union
renewed its request to bargain at another meeting
with Fowler on February 26, but Fowler again
refused, giving the same reasons.
On February 27, in anticipation of his takeover on
March 3. Fowler distributed to the barbers of all 27
shops located at Fort Bragg individual form letters
setting forth the rates of commission he intended to
pay (which were different from those paid to the
barbers by Spruce Up Corporation) and requesting
that all those who desired to work for Fowler on that
basis return the letter with their signature. On March
2, at a meeting called by the Union and attended by
most of the barbers from all 27 shops, the men voted
not to sign the form letter and to withhold their
services and picket the base. The next day, a majority
of the barbers failed to report to Fowler and picket
lines were set up at the entrance to the post.
Eighteen of the former Spruce Up barbers crossed
the picket line and reported to work for Fowler on
March 3, on the basis of the new rates previously
announced by him. The next day Fowler began
hiring replacements for those failing to report and
after 2 weeks the replacements outnumbered the
former Spruce Up barbers. However, as time went by
and the strike continued, more and more of the
former Spruce Up barbers crossed the picket lines
and reported to work until, by April 14, a majority of
the barbers working for Fowler in the 19 former
Spruce Up shops (32 out of 55) were barbers who
had previously worked for Spruce Up, and such
barbers remained in the majority thereafter. After
March 3, on two separate occasions, April 3 and
April 11, the Union met with Fowler and requested
recognition, but Fowler refused and has continued to
refuse to recognize and bargain with the Union.
By May 28, about half of the strikers had returned
to work and on that date Fowler received a letter
from those remaining on strike unconditionally
offering to return to work. None of this latter group
has been rehired nor does the record show that any
other barber has been hired as of the date of the
hearing.
No 72- 1268 (unpublished)
Hereinafter, all dates refer to 1970 unless otherwise stated
209 NLRB No. 19
SPRUCE UP CORPORATION 195
In our original decision,-, we adopted the Adminis-
trative Law Judge's findings that Respondent Cicero
Fowler violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Union representing the
former Spruce Up employees since February 26,
1970, by dealing directly with such employees on
February 27, and by unilaterally changing commis-
sion rates of such employees on March 3, 1970. We
ordered Fowler., inter alia, to reinstate and make
whole, as of May 28, 1970, those former Spruce Up
employees unconditionally offering to return to work
on that date, having found them to be unfair labor
practice strikers. We hereby modify those findings
for the reasons set forth below.
In Burns, the Supreme Court enunciated the
principle that, "a successor employer is ordinarily
free to set initial terms on which it will hire
employees of a predecessor" without first bargaining
with the employees' bargaining representative. In the
same paragraph, however, it recognized an exception
to that principle in "instances in which it is perfectly
clear that the new employer plans to retain all of the
employees in the unit. . .."6 Without delineating at
this time the precise parameters of that exception, we
are constrained to find the instant facts do not fall
within it.
Although, at the February meeting, Fowler ex-
pressed a genera l willingness to hire the barbers
employed by the former employer, he at the same
time indicated that he was going to be paying
different commission rates. Fowler thereby made it
clear from the outset that he intended to set his own
initial terms , and that whether or not he would in
fact retain the incumbent barbers would depend
upon their willingness to accept those terms. When
an employer who has not yet commenced operations
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 intended by the Supreme Court. The possibility
that the old employees may not enter into an
employment relationship with the new employer is a
real one, as illustrated by the present facts. Many of
the former employees here did not desire to he
employed by the new employer under the terms set
by him-a fact which will often be operative, and
which any new employer must realistically antici-
pate. Since that is so, it is surely not "perfectly clear"
to either the employer or to us that he can "plan to
retain all of the employees in the unit" under such a
set of facts.
We concede that the precise meaning and applica-
tion of the Court's caveat is not easy to discern. But
any interpretation contrary to that which we are
adopting here would he subject to abuse, and would,
we believe, encourage employer action contrary to
the purposes of this Act and lead to results which we
feel sure the Court did not intend to flow from its
decision in Burns. For an employer desirous of
availing himself of the Burns right to set initial terms
would, under any contrary interpretation, have to
refrain from commenting favorably at all upon
employment prospects of old employees for fear he
would thereby forfeit his right to unilaterally set
initial terms, a right to which the Supreme Court
attaches great importance in Burns. And indeed, the
more cautious employer would probably be well
advised not to offer employment to at least some of
the old work force under such a decisional precedent.
We do not wish-nor do we believe the Court
wished---to discourage continuity in employment
relationships for such legalistic and artificial consid-
erations. We believe the caveat in Burns, therefore,
should be restricted to circumstances in which the
new employer 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,7 or at least to
circumstances where the new employer, unlike the
Respondent here, has failed to clearly announce its
intent to establish a new set of conditions prior to
inviting former employees to accept employment.
For these reasons, we find that Fowler's expres-
sions to the old employees were not within the
Court's caveat, and we conclude that those expres-
sions did not operate to forfeit his right to set initial
terms. Accordingly, we find no violation of the Act
in his having done so.8
However, as in Burns, we find that Respondent did.
subsequently. employ a majority of the former
194NIRB841
The precise language of the Court was
Although a successor employer is ordinarily free to set initial terms
on which it will hire the employees 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 he
appropriate to have him initially consult with the employees' bargain-
ing representative before he fixes terms In other situations , however, it
may not be clear until the successor employer has hired his full
complement of cmp•oyces that he has a ditty to bargain with a union.
since it will not be evident until then that the bargaining representatn e
represents a majority of the employees in the unit as required by
Section 9(a) of the Act, 29 U S C Section 159(a) [406 U S 272 at
294-295]
7 Sec. for example , Howard Johnson Compam, 198 N LRB No 98, and
(,ood Foods Manufacturing 8 Processing Corporation, Chica o Lanth Packers,
Inc Division , 200 NLRB No 86, where the successor-employers , without
prior warning. unilaterally changed the terms and conditions of employ-
ment prevailing under the predecessor after already having committed
themselves to hire almost all of the old unit employees with no notice that
they would he expected to work under new and different terms In those
cases we found a violation of the respondents ' bargaining obligation
8 As noted in the concurring part of his separate opinion, Member
Kennedy joins Chairman Miller and Member Jenkins in the foregoing
interpretation of the pertinent Burns language and the application or that
interpretation to the facts here
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spruce Up barbers in his work complement in the
certified unit, at least by April 14. By that date
Fowler had in fact hired 32 out of 55 such former
employees in the certified unit. Thus, from that date,
the Union had, at the least, a presumption of
continuing majority status which Respondent failed
to overcome. Respondent was therefore obligated to
recognize and bargain with it.
Member Kennedy, in dissent, expresses the view
that there was a substantial change in the unit arising
out of the fact that Spruce Up had operated 19
barber shops at Fort Bragg whereas Fowler contract-
ed to operate all 27 shops located at the Fort.
Member Fanning, in his separate opinion, has stated
the view, subscribed to by Member Penello in his
dissent, that the addition of these eight shops did not
destroy the appropriateness of the certified bargain-
ing unit and constituted only "an expansion of the
bargaining unit." We agree, essentially, with the view
of Members Fanning and Penello. This addition of a
few more shops does not destroy the basic continuity
of the employing industry, which is the keystone of
our successorship doctrine. We here speak of what
the Supreme Court in John Wiley & Sons, Inc. v.
Livingston, 376 U.S. 543, 551 (1964), refers to as "a
substantial continuity of identity in the business
enterprise." There can be no doubt that, had the
predecessor acquired the contract to operate these
eight additional shops, we would have treated the
addition of these like facilities and similarly classified
employees as an accretion to the certified unit. It
seems reasonable to apply the same doctrine to the
successor.
Had there been a substantial alteration in the basic
character of the unit, as in Atlantic Technical Services
Corporation" (from a 14.000-plus multilocation unit
to only a single mailroom employing 41 employees),
the situation would be quite different and, as we held
there, there would then he no successorship at all in
any event. That is an entirely different situation from
the one presented here. where the only addition to
the unit would, had it been added by the predecessor,
clearly have been an accretion.
Member Kennedy is of the further view that the
majority must be measured in the "new" unit
consisting of the 19 Spruce Up shops plus the 8
additional shops on the base which Fowler contract-
ed to operate. Members Fanning and Penello, on the
other hand, are of the view that only "a legally
significant portion of the successor's employment
force" must consist of employees previously em-
ployed by the predecessor.
We believe the position of Members Fanning and
Penello to be at odds with the clear import of the
Supreme Court 's decision in Burns which has
recently been reiterated by a unanimous Court in
Golden State Bottling Co. v. N. L.R.B., 414 U.S. 168
(1973), where the Court said in footnote 6:
. . . the purchaser, if it does not hire any or a
majority of those employees, will not be bound
. .. by any order tied to the continuance of the
bargaining agent in the unit involved.
But we also believe Member Kennedy to be in
error with respect to the unit in which the majority
must, under Burns, be tested. As we have pointed out
.supra, had the predecessor acquired the additional
eight shops, there can be no doubt that this Board
would have treated such an addition of like facilities
and similarly classified employees as an accretion to
the extant unit, and such an accretion would have
given the predecessor no right to question the
continuing majority status of the Union. Neither,
then, do we understand why the successor to the
bargaining obligation should be permitted to do so, if
it becomes clear on the record evidence that his hires
from the predecessor's work force meet the test
announced by the Supreme Court-i.e., that the
majority status of the Union in the preexisting unit
has been reestablished. At the least, we would find
that at such time as the hiring engaged in by the
successor results in a reestablishment of a majority in
the preexisting unit there arises a presumption of
continuing majority status. If, after that point has
been reached, new facts and circumstances arise
which under our usual tests would provide the
Employer with objective evidence casting doubt on
the continuance of the majority status, he might be
justified in putting the Union to the test of demon-
strating its majority through a Board election or
otherwise.
But, as pointed out by Member Fanning in his
dissent at footnote 34, Fowler does not appear to
have asserted any such defense herein. To the extent
that we have any evidence with respect to the effect
on majority status of the added 8 shops it tends to
reaffirm, rather than to negate, the presumption
which we are here applying. Thus, barbers employed
in the former Roscoe and Fisher shops attended and
participated in the union meeting of March 2, and
some barbers joined the Spruce Up barbers in
picketing the Fort and were included in the Union's
"return to work" offer of May 28. Under all of these
circumstances we see no reason not to rely on the
presumption of continuing majority status, and we
find that, on and after April 14, the Union represent-
ed a majority of Fowler's work force and he was
thereupon obligated to recognize and bargain with it.
v 202 NLRB 169, cited in Member Kennedy's dissent.
SPRUCE UP CORPORATION
Although the record does not reflect that the
Union expressly requested Fowler to bargain after
April 14, the Board has long held that a union is not
obligated to repeatedly renew its request to bargain
when it would be futile to do so, particularly when
the circumstances of previous requests are such as to
put the employer on notice that the union is desirous
of representing the employees and where no inter-
vening disclaimer of that interest has been made or
can reasonably be inferred from the union's conduct.
As noted above, here the Union has requested
recognition only 3 days earlier, on April 11, and gave
every indication , by its continued picketing, that it
was still claiming to represent the employees in the
certified unit on and after April 14. Accordingly, we
find that the Union's request to bargain on April I1
was of the nature of a continuing request, and should
reasonably have been understood by Fowler to he
such.
We turn now to yet another knotty problem-i.e.,
the status of the persons formerly employed by
Spruce Up who withheld their services from Fowler,
and who made an unconditional offer to accept
employment with Fowler on May 28. They are
referred to by the Administrative Law Judge as
"claimants ." The Administrative Law Judge rejected
General Counsel's contention that all former Spruce
Up employees were discriminatorily denied employ-
ment , and we agree. He also held that the 24
"claimants" could not be treated as unfair labor
practice strikers because they had never become
employees of Fowler. In support of this finding, he
cited Joliet Contractors Association, 99 NLRB 1391,
affd. 202 F.2d 606 (C.A. 7), in which we held that a
concerted withholding of services from a prospective
employer was not a strike. We agree that his holding
in this regard is consistent with our precedent.
He then went on to find, however, that Respon-
dent's unlawful direct dealings with employees,
unilateral conduct, and refusals to bargain caused
the loss of employment of the "claimants ," and, as a
remedy for these violations, he ordered reinstatement
and backpay and directed that any persons hired
after March 3 be displaced, if necessary, in order to
permit the full effectuation of his order. As authority
for applying this remedy, he cited Chemrock Corpora-
tion, 151 NLRB 1074. The rationale there, and the
Administrative Law Judge's rational here, is to the
effect that the loss of employment: was caused by
respondent's failure to fulfill its bargaining obliga-
tion.
The Administrative Law Judge found a violation of
Respondent's bargaining obligation to have com-
menced on March 3, and that Respondent on that
date violated the Act by unilaterally changing wages
and improperly dealing with individuals. We have
197,
rejected those findings as being precluded by our
understanding of the principles of Burns, but we have
found a violation of Respondent's bargaining obliga-
tions to have commenced on April 14-also based on
our understanding of the principles of Burns.
But we must now determine whether Respondent's
unlawful refusal to bargain on and after April 14
may fairly be said to have caused a loss of
employment by the "claimants." If so a reinstate-
ment and hackpay order is appropriate to restore the
status quo but if not, such a remedy would not be
warranted.
This is a much more difficult question to answer in
the present posture of this case than it was in the pre-
Burns posture in which the Administrative Law
Judge below decided it. For we have now held that
the Respondent properly offered employment to the
former Spruce Up employees at terms unilaterally set
by him. And it is quite clear from the record that any
of the claimants could have had employment at all
times relevant hereto, had they seen fit to go to work
on those terms. But to what extent were the
claimants deterred from seeking such employment by
the lawful new terms, and to what extent were they
deterred by Respondent's refusal to recognize the
Union --a refusal which, under Burns, was lawful
prior to April 14 but unlawful thereafter?
We believe we are entitled to resolve the doubts
against the wrongdoer, with due respect to the
requirements of supporting record evidence. We
cannot say with absolute certainty how many of the
claimants would have accepted employment with
Fowler on April 14 had he consented to recognize
the Union and commence bargaining on that date. It
seems reasonable to us that they might have. Even
though they would have had to accept new terms
which they obviously found undesirable, they would
at least then have had an opportunity to seek to
better those terms through the collective bargaining
to which they were lawfully entitled. It is clear that
they cherished that right to representation, and that
Respondent's refusal to grant it was a significant
motivating factor in their unwillingness to accept
employment.
But we are unwilling to rely solely on inferences on
the basis of our expertise so to find. Instead, we turn
to the record evidence, which shows that all doubts
as to this were removed by the events of May 28,
1970, when, through their Union, the claimants
offered unconditionally to accept employment. This
constitutes clear and unrefuted evidence that as of
that date the claimants were not motivated by the
unacceptability of Respondent's terms, and it is clear
that from that date forward the claimants were
entitled to any available jobs on a preferential basis,
and any continuing loss of employment thereafter
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was, demonstrably, a result of Respondent's unlaw-
ful continuing refusal to recognize their bargaining
agent.
Accordingly we find that from and after May 28
any and all former employees of Spruce Up suffered
a loss in employment as a direct result of Respon-
dent's continuing unlawful refusal to bargain with
their chosen representative. And we shall therefore
order reinstatement and backpay commencing on
that date. Fowler will be ordered to offer such former
Spruce Up employees immediate placement in the
positions they formerly held with Spruce Up, or, if
such positions no longer exist, in substantially
equivalent positions, dismissing, if necessary, any
persons hired on or after May 28 to fill such
positions.
Since it appears likely that there will not be
sufficient jobs for all of the foregoing claimants and
the remaining employees, we shall require that all
available jobs be distributed in accordance with such
nondiscriminatory practice as has been followed in
the past in effecting layoffs, and that any employees
for whom jobs are still unavailable shall be placed on
a preferential hiring list, their position on such list to
be determined in accordance with such prior prac-
tice.
THE REMEDY
Having found that Fowler violated Section 8(a)(5)
and (1) of the Act in refusing to recognize and
bargain with the Union after April 14, we shall order
Fowler to recognize and bargain with the Union
upon request.
Having found the former Spruce Up employees
who were not employed by Respondent after May 28
suffered a loss of employment because of Respon-
dent's unlawful refusal to bargain, we shall order
Fowler to offer these employees reinstatement to
their former positions, or, if those positions are no
longer available, to substantially equivalent posi-
tions, dismissing, if necessary, any persons hired after
May 28. If there are still not sufficient positions to
reinstate all the employees, we shall order Fowler to
place those remaining on a preferential hiring list.
We shall also order Fowler to make whole those
employees entitled to reinstatement for any earnings
they may have lost during the period commencing
10 As noted in their separate opinions , Members Fanning and Penello
would find that the refusal to bargain occurred at earlier times than is found
by Chairman Miller and Member Jenkins, a circumstance which would
enlarge the reinstatement and backpay rights of the striking unit employees
beyond that afforded by this order. Their view, however, does not command
a majority. Accordingly, they join in the order providing the remedial relief
set forth above.
11 I disagree with the conclusion of Members Fanning and Penello that
Fowler forfeited his right under Burns " to set initial terms on which it will
hire the employees of a predecessor " because he expressed a general
May 28, 1970, to the date that he offers them
reinstatement. 10
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dents, Spruce Up Corporation and Cicero Fowler t/a
Fowler's Barber Shops, Fort Bragg, North Carolina,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Delete paragraph B 1(b), (c), and (d).
2. Substitute the following for paragraph B 2(b)
and (c):
"(b) In the manner outlined in the Remedy section
of the Board's Supplemental Decision, offer all those
named in the attached notice marked "Appendix B"
reinstatement, without prejudice to their seniority or
other rights and privileges.
"(c) In the manner detailed in the Remedy section
of the Board's Supplemental Decision, make whole
the foregoing employees for any loss of earnings
suffered from Fowler's failure to offer them reins-
tatement on and after May 28, 1970."
3. Delete paragraph B 2(f) and reletter the
succeeding paragraphs accordingly.
4. Substitute the attached notice for the Adminis-
trative Law Judge's Appendix B.
MEMBER KENNEDY, concurring in part and dissenting
in part:
I agree with Chairman Miller and Member Jenkins
(hereinafter referred to as the majority) that the
Supreme Court's decision in Burns requires us to
vacate our earlier decision in which we found that
Respondent Fowler violated Section 8(a)(5) and (1)
of the Act by refusing to recognize and bargain with
the Union on February 26, 1970, by dealing directly
with the former Spruce Up employees on February
27, 1970, and by unilaterally changing commission
rates of such employees on March 3, 1970.11 I do not
agree with the majority that Fowler violated Section
8(a)(1) and (5) of the Act when he failed to bargain
with the Union on and after April 14, 1970. In my
view, there is no evidence in this record to support a
willingness to hire all barbers then working for Spruce Up who were willing
to accept his commission rates which were different from those of Spruce
Up. Surely, the Supreme Court did not mean that a general expression of
willingness to hire the old employees on his terms defeated the very right of
the new employer to set terms and conditions of employment . Fowler made
clear to the union representatives on February 6 and to the Spruce Up
barbers employed on February 27, 1970 , that he would continue with the
old work force only if they accepted the new commission rates which he
proposed to them . The Howard Johnson case involved unilateral changes
after the employees were hired.
SPRUCE UP CORPORATION
finding that Fowler committed any unfair labor
practices. Accordingly, the makewhole and reinstate-
ment order of the majority is without legal support.
The majority properly relies on Burns to find that
Fowler lawfully set the terms and conditions of
employment of his employees without bargaining
with the Union. In finding an unlawful refusal to
bargain on April 14, however, they ignore the crucial
observation of the Supreme Court in Burns that the
bargaining obligation passed to the new employer in
that case because the bargaining unit remained
unchanged. The record herein establishes that there
was indeed a substantial change in the bargaining
unit. Furthermore, there is no proof that the Union
was supported by a majority of employees in an
appropriate unit of Fowler's employees, and the
Union never requested Fowler to bargain on April
14, or thereafter, the date on which the majority finds
that Fowler refused to bargain.
There Was a Substantial Change in the Unit
for Bargaining
It is clear that approximately one-half of the
Spruce Up barbers have never been employed by
Fowler. As found by the Administrative Law Judge,
most of the barbers formerly employed by Spruce Up
met on March 2, 1970. and voted not to accept
Fowler's terms of employment. They voted "to
withhold their services and picket the base." The
picketing continued until May 27 when "about half
of these barbers had returned to work, and on that
date the rest offered to return but none of the latter
group has been hired." If the Board majority is
correct in construing Burns to teach that Fowler
lawfully set terms and conditions of employment
when he commenced operations, it necessarily
follows that Fowler was not obliged to discharge his
non-Spruce Up barbers on May 28 to make room for
those Spruce Up barbers who then indicated their
willingness to accept Fowler's terms. Since it is clear
that "about half" of the Spruce Up barbers have not
been hired by Fowler, it cannot be said that there has
been sufficient continuity of employment to make
Fowler a successor to Spruce Up. It is inaccurate to
suggest that Fowler has continued with basically the
same work force.
The majority opinion correctly points out that prior
to March 3, 1970, Spruce Up operated 19 of the 27
barber shops at Fort Bragg. The eight other barber
shops at the Fort had been operated by two other
concessionaires; namely, Roscoe and Fisher. The
Union had not been recognized or certified at any of
12 202 NLRB 169.
11 The majority's characterization of the eight additional shops of
Roscoe and Fisher as an accretion to the certified unit of Fowler is
tantamount to recognition that there has been a substantial change in the
199
these eight shops. On March 3, 1970, Fowler
commenced operations of all 27 shops at Fort Bragg.
We have recently had occasion to examine the
principles governing cases where the transfer of a
business from one employer to another has resulted
in a substantial change in the scope of the unit. Ir.
Atlantic Technical Servicer Corporation,12 Trans
World Airlines had performed mail and distribution
support services at the Kennedy Space Center under
a contract with NASA. After obtaining the contract,
TWA voluntarily agreed to extend its basic compa-
nywide collective-bargaining agreement, which cov-
ered some 14.000 employees, to the 41 employees
performing mail and distribution functions. There-
after, the Respondent Atlantic Technical Services
Corporation obtained the contract to perform the
mail and distribution functions formerly performed
by TWA and hired 27 of the 41 employees then
performing these duties. The Respondent ATSC
thereafter refused to bargain with the Union assert-
ing, inter alia, that the unit requested was inappropri-
ate and that it doubted the Union's majority status.
We found that the Respondent ATSC was not a
successor-employer to TWA relying, in part, on the
fact that "the diminution in the scope of the unit .. .
is a relevant factor to be considered, among others,
in determining whether or not a new employer is a
successor." Accordingly, we found that Respondent
ATSC was not bound by TWA's obligation to
bargain with the union on the successorship theory.
In the case before us we have, not a diminution of
the former bargaining unit, but a substantial expan-
sion of the unit from the 19 shops operated by Spruce
Up to the 27 shops operated by Respondent
Fowler. 13 The applicable principles remain the same.
The crucial question is whether the transfer of the
business from one employer to another has brought a
substantial change in the unit.
In my view, all of my colleagues fail to give
sufficient weight to the fact that Fowler took over
operation of all the shops at Fort Bragg and not just
those previously operated by Spruce Up. If we were
called upon to decide in a representation case the
appropriate unit among Fowler's employees, Board
standards would not permit us to find a separate unit
limited to the 19 shops previously operated by Spruce
Up. Our precedent would dictate that the Board find
that either all 27 shops constitute an appropriate
unit, or that each individual shop constitutes an
appropriate unit. It has long been recognized that the
Board has wide discretion in establishing the permis-
sible limits of bargaining units, but I think it would
bargaining unit. Similarly, the characterization of Members Fanning and
Penello that the "additional shops simply amount to an expansion of the
bargaining unit" is tantamount to recognition by them that there has been a
substantial change in the bargaining unit.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be an abuse of discretion to establish a unit
comprised of Fowler's employees in the 19 shops
operated formerly by Spruce Up. For the same
reason we cannot establish in this unfair labor
practice proceeding a unit limited to the 19 shops
formerly operated by Spruce Up. Manifestly, the
change in the scope of the unit and the substantial
differences in the employee complement do not
require Fowler to honor the Spruce Up certification.
There Is no Proof That a Majority of
Fowler's Employees Were Represented by the
Union
There is no basis on this record for finding that the
Union represented a majority of employees of
Fowler in an appropriate bargaining unit. If the
substitution of Fowler to operate the 27 shops
formerly operated by 3 concessionaires had involved
no substantial change in the scope of the unit and if
the substitution had involved no substantial change
in the employee complement, it could be argued that
the Board certification covering Spruce Up's employ-
ees was binding upon Fowler. As noted earlier. I
believe that any such argument must be rejected on
the facts disclosed by this record. This is particularly
true in view of the fact that it was a decision of the
Defense Department (and not Respondent) to
consolidate operation of all barber shops under a
single concessionaire. Similarly, it was the rejection
of terms which Fowler set lawfully that resulted in
the substantial change in the employee complement.
We would be presented with a different legal
problem if the changes in the employee complement
in this case had resulted from improper or unlawful
conduct by Fowler.
In my opinion, any inquiry as to whether the
Union enjoyed majority support among Fowler's
employees must be directed at the employment
complement in all 27 shops operated by Fowler and
not just the 19 shops previously operated by Spruce
Up. The record establishes that on March 2, 1970,
the day preceding Fowler's takeover of the 27 shops,
there were 13 barbers employed in the Fisher shops,
10 barbers employed in the Roscoe shops, and 60
barbers employed in the Spruce Up shops. It makes a
substantial difference whether the inquiry is directed
to a majority of 83 employees or only 60. In this
connection, we cannot overlook the fact that some of
the barbers who formerly worked in Spruce Up
shops returned to work for Fowler in shops previous-
ly operated by concessionaires Roscoe and Fisher.
Furthermore, some of the former Spruce Up barbers
14 1'his is further evidence that a unit limited to former Spruce Up shops
ceased to be appropriate under 1Yowler's operation
15 Apparently the Firchau Logging Company, Inc, case was not the
initially returned to work in Fisher shops and
thereafter transferred at a later date to one of the
shops which had been previously operated by Spruce
Up. 14
Members Fanning and Penello state in their
dissents that "successorship does not depend on the
employment of a majority of the predecessor's
employees, but on whether a legally significant
portion of the successor 's employment force consists
of employees previously employed in the bargaining
unit." Chairman Miller and Member Jenkins are
clearly correct in stating that such a view is contrary
to the decisions of the Supreme Court in both Burns,
supra, and Golden State Bottling Co., supra. Such a
view also represents a sharp departure from long-
standing Board precedent. This Board has consist-
ently refused to find successorship and a duty to
bargain where a majority of the new employer's work
force was not composed of the employees of the old
employer. Professor Stephen Goldberg points out in
"The Labor Law Obligations of a Successor Employ-
er," 63 Nw. U.L. Rev. 735, that he could find only
two cases over a 20-year period in which the Board
imposed a duty to bargain when there was no such
majority; namely, Firchau Logging Company, Inc.,
126 NLRB 1215 (1960),i5 and John Stepp's Friendly
Ford, Inc., 141 NLRB 1065, enforcement denied 338
F.2d 833, 836 (C.A. 9, 1964). The decision of the
Court of Appeals for the Ninth Circuit reversing the
Stepp's case has been cited with approval by the
Board.i6 The court stated:
The problem we face is that which apses when
we have both a new owner and a substantial
change in the personnel of the employee unit.
While other courts have wrestled with this
problem the situations before them have been
confused by the fact that in most cases either the
change in ownership or the change in the
employee personnel has been brought about
under circumstances suggesting a lack of good
faith and an attempt, on the part of the employer,
to avoid the effect of the certification. Here there
is no such suggestion.
The controlling question here, it would seem to
us, is whether the new owner may rationally he
said in substance, as to the unit in question, to
have taken over and succeeded to his predeces-
sor's employees. If he has not-if, on the
contrary, he has within the unit in question
secured his own employees-then he is not, as to
the employees in question, a successor. He is their
original employer. In such case both the employer
subject of judicial review
16 Federal Electric Corporation. 167 NLRB 469 , Tallakson Ford. Inc, 171
NLRB 503
SPRUCE UP CORPORATION
and the employee unit are strangers to the
certification and to the election upon which it was
based. Nothing remains of the relationship to
which the certification [is] attached. Under such
circumstances, in our judgment, the certification
cannot stand.
In the case before us it cannot rationally be
said that the company has taken over and
succeeded to Westward's salesman unit. Out of
the twelve Westward salesmen only three, after
interviews, were employed. It is clear from the
record that they were not employed because of
their Westward connection but because Stepp
thought that they were the best he could get to fill
out his sales force. Furthermore, half of the new
employee unit consisted of men who already were
Stepp employees. Even assuming that a Westward
employment status continued to attach to the
three Westward salesmen , still the character of
the new unit clearly was more Stepp than
Westward. [Footnotes omitted.]
The Fifth Circuit has also quoted with approval
from the Ninth Circuit's decision in the Stepp's
Friendly Ford case. See N. L. R. B. v. United Industrial
Workers of the Seafarers International Union of North
America, etc. [Port Richmond Elevator], 422 F.2d 59
(C.A. 5, 1970).
We have said that in determining whether the
"employing industry" remains substantially the same
we inquire, inter alia, as to whether the new employer
"has the same or substantially the same work-
force." 17 See Georgetown Stainless Mfg. Corp., 198
NLRB No. 41. Can it be said that the new employer
"has the same or substantially the same workforce" if
he hires less than a majority of the old employer's
employees? I think not. Indeed, it has been pointed
out that "The cases involving the presumption of full
majority status for a certified union are primarily
instances where the purchasing enterprise has re-
tained all or most of the old employees." See the
concurring opinion of Judge Leventhal in Interna-
tional Association of Machinists, District Lodge 94,
AFL-CIO, et al. v. N.L.R.B., 414 F.2d 1135
(C.A.D.C., 1969). In this connection, I think the
Sixth Circuit Court of Appeals was clearly correct in
N.L.R.B. v. Wayne Convalescent Center, Inc., 465
F.2d 1039 (C.A. 6, 1972), that the "single factor"
relied on to find successor status in John Wiley &
Sons v. Livingston, 376 U.S. 543 (1964), was that 80
17 In his speech to the Labor Law Section of the "texas Bar Association
on July 7, 1967 , Member Fanning coircctly stated that the Board has
relied upon a set of criteria to determine whether the "employing
industry" remains substantially the same The questions asked by the
Board are - ( 1) whether there has been a substantial continuity of the
same business operations , (2) whether the new employer uses the same
201
percent of the predecessor's employees had been
hired by the new employer.
I disagree with the view of Members Fanning and
Penello that all that is required for successorship is
that a "legally significant portion of the successor's
employment force must consist of employees previ-
ously employed in the bargaining unit."
I also disagree with the view of the majority
(Chairman Miller and Member Jenkins) that the
eight Roscoe and Fisher shops are an accretion to the
old unit but the test of majority should be measured
in the "pre-existing unit." Contrary to the suggestion
of the majority, Burns does not support such a test
because the Burns decision is predicated upon the
stated premise that the "bargaining unit remains
unchanged." Notwithstanding the fact that the unit
in Burns remained unchanged , four of the Justices
(Burger , Rehnquist , Brennan , and Powell ) declined
to find successorship. They reasoned that Burns'
hiring a majority of Wackenhut employees did not
establish that the union represented a majority of
Burns' employees. They stated (406 U.S. at 297):
First, it is by no means mathematically de-
monstrable that the union was the choice of a
majority of the 42 employees with which Burns
began the performance of its contract with
Lockheed. True, 27 of the 42 had been represent-
ed by the union when they were employees of
Wackenhut, but there is nothing in the record
before us to indicate that all 27 of these
employees chose the union as their bargaining
agent even at the time of negotiations with
Wackenhut. There is obviously no evidence
whatever that the remaining 15 employees of
Burns, who had never been employed by Wack-
enhut. had ever expressed their views one way or
the other about the union as a bargaining
representative It may he that, if asked, all would
have designated the union. But they were never
asked. Instead, the trial examiner concluded that
because Burns was a "successor" employer to
Wackenhut, it was obligated by that fact alone to
bargain with the union.
The dissenters in Burns concluded that the imposi-
tion of the bargaining obligation under the circum-
stances of that case (27 of Burns' 42 employees had
worked for Wackenhut) "sacrificed needlessly" the
"Important rights of both the employee and employ-
plant , (3) whether he has the came or cubctannatty the came work force,
(4) whether the same jobs exist under the same working conditions, (5)
whether he employs the same supervisors, ( 6) whether he uses the same
machinery, equipment , and methods of production , and (7) whether he
manufactures the same product or offers the same services [Emphasis
supplied I
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er." But the imposition of a bargaining duty here in
the expanded unit the moment (April 14, 1970) a
majority of old employees were hired from the
preexisting unit constitutes an unreasonable exten-
sion, I believe, of the majority opinion of the
Supreme Court in the Burns case.
Our statute guarantees employees the right to
choose their bargaining representative. There is
nothing in the statutory language empowering this
Board to impose upon all of Fowler's employees in
the 27 shops a bargaining agent the moment the old
employees from Spruce Up constituted a bare
majority in the 19 shops previously operated by
Spruce Up. There is a fundamental fallacy in our
doing that for it is based on the unsupported
assumption that every former Spruce Up employee
who went to work for Fowler was a union supporter.
We do not know how any of the old employees hired
by Fowler voted in the Spruce Up election.18 If,
however, a single one of those old employees voted
against the Union the basis for presuming "contin-
ued majority status" disappears because we do not
know the view of any of the new employees. There is
no evidence whatever that the new employees of
Fowler in either the 19 shops or the 27 shops "had
ever expressed their views one way or the other about
the Union as a bargaining representative." As in
Burns, "they were never asked." 19 In my view, we
"sacrifice needlessly" the statutory rights of all the
new employees of Fowler by imposing a bargaining
duty on Fowler.
Assuming, arguendo, that Chairman Miller and
Member Jenkins are correct in their view that
majority status must, under Burns, be tested in the
"pre-existing unit" of 19 shops, it is unrealistic to
presume that every former employee of Spruce Up
hired by Fowler wanted the Union as his bargaining
agent while employed by either Spruce Up or
Fowler. As noted above, we do not know how any of
the old employees voted in the Spruce Up election.
We do know that 18 of those 32 former employees of
Spruce Up ignored the Union's picket line to report
to work on March 3, 1970, when Fowler commenced
operations. Indeed, on April 14, all 32 of the barbers
who had formerly worked for Spruce Up (as well as
the remaining 23 barbers who were then working in
the 19 former Spruce Up shops) were crossing the
Union's picket line to work for Fowler.
In my view, we cannot presume majority support
for the Union in the 19 shop unit (or the 27 shop
unit) when every employee of Fowler had to cross
18 We cannot be certain as to how the 18 former Spruce Up barbers
voted in the earlier election Logic dictates , however , that the 18 Spruce Up
barbers who reported to work for Fowler on March 3 included the bulk of
the 13 barbers who voted against the Union in the Board election See
Spruce Up Corporation. 181 NLRB 721. which reflects that 63 ballots were
cast in the election among the barbers in the /9 shops then operated by
daily the Union's picket line to report to work.
Under such circumstances, we cannot presume that
the percentage of Fowler employees supporting the
Union was the same as the percentage of employees
who had voted for the Union in the election
conducted among Spruce Up's employees. My
colleagues err, I think, in presuming that the Union
here had majority support on April 14 simply
because the Board correctly has presumed in other
cases where substantially all of the former employees
had been hired by a new owner that the ratio of
union supporters to nonunion employees remained
the same. Where the proportion of Spruce Up's
employees is a bare majority in the 19 shop unit,
there is no reason to assume that a majority favors
union representation in the 27 shop unit
There is insufficient evidence to support a finding
or an inference that the majority of Fowler's
employees wanted the Union to act as their bargain-
ing representative on April 14.
The Absence of a Valid Request To Bargain
The majority finds that Respondent unlawfully
refused to bargain after April 14, 1970, "although the
record does not reflect that the Union expressly
requested Fowler to bargain" after that date. There is
no claim that Fowler made any unilateral changes on
April 14 or thereafter. Apparently, the majority is
holding that once Fowler had hired what they believe
to be a majority of his employees from the pool of
former Spruce Up employees, it was incumbent upon
Fowler to seek out the Union and volunteer to
bargain with it. Fowler's failure to volunteer to
bargain is held to be an unlawful refusal to bargain.
The majority reasons that it was unnecessary for
the Union to request bargaining after April 14
because the earlier requests made by the Union at a
time when Fowler had not even hired a majority of
his barbers in the former 19 Spruce Up shops was a
"continuing request." The majority concludes that it
would have been "futile" for the Union to have again
requested bargaining and the Union was therefore
relieved of this essential requirement to a finding of
an 8(a)(5) violation of the Act.
I fail to understand why it would have been
"futile" for the Union to have again requested
bargaining if it had obtained its alleged majority in
the 19 shop unit. On the occasions the Union had
made requests for bargaining prior to April 14, it did
not represent a majority of the employees. Fowler's
Spruce Up
VI Contrary to the suggestion of my colleagues. proof of majority status
was the burden of the General Counsel Fowler had no duty to assert a
defense until the General Counsel offered satisfactory proof of majority
The Spruce Up certification does not satisfy that burden
SPRUCE UP CORPORATION
refusal to recognize the Union on those occasions
was required by the Act. Otherwise, Fowler would
have dealt with a minority union in violation of
Section 8(a)(2) of the Act. While the picketing may
have demonstrated the Union's continuing interest in
representing the employees, it cannot be regarded, in
my opinion, as evidence that Fowler would not
bargain if requested to do so. In sum, I find the
factors relied on by my colleagues to show that a
request for bargaining would have been futile to be
wholly unconvincing.
There are positive reasons for believing that a
request for bargaining would not have been futile. At
the time of the last request for bargaining on April
11, Fowler told the Union that he "couldn't say
anything unless [his] attorney was there." This was
not only a lawful response but also indicated that
Fowler intended to abide by his legal obligations.
More importantly, there is no finding that Fowler
committed independent violations of the Act either
before or after April 14, and there is no claim that
Fowler made any unilateral changes in terms or
conditions of employment after April 14. There is no
reason for the Board to assume that a request for
bargaining would have been rejected by Fowler
because of a fundamental opposition to the purposes
of the Act or because his earlier refusal to recognize a
minority union stemmed from a desire to gain time
to dissipate the Union's support among the employ-
ees. On the contrary, his continued hiring of former
Spruce Up employees clearly evinces a lack of
hostility towards the rights of employees under the
Act.
I therefore cannot subscribe to the finding of my
colleagues that a request for bargaining by the Union
on and after April 14 would have been an exercise in
futility. My colleagues are here placing the burden
on the Respondent to determine if and when a union
represented a lawful majority of his employees and
further requires him to then seek out the union and
offer to bargain. In my opinion the statute imposes
no such burden. Accordingly, I would not find that
the Respondent violated Section 8(a)(5) of the Act on
and after April 14.
Conclusion
This case was fried on the theory that Respondent
Fowler violated Section 8(a)(5) of the Act when it
changed the commission rates of the former Spruce
Up employees without bargaining with the Union. In
the original decision I joined my colleagues in
finding the alleged violation on that theory. Our
earlier decision rests on a major premise rejected in
203
Burns. I think we are obliged to acknowledge that
our earlier finding that Fowler is a successor is
erroneous. The duty to bargain could arise only if the
record established the majority status of the Union in
an appropriate unit of Fowler's employees, a request
by the Union to bargain in that unit, and a refusal by
Fowler to bargain in response to such request. Since
there is insufficient evidence in the record with
respect to majority in an appropriate unit , no proof
of a request to bargain, and no proof of a refusal,
there is no basis for finding a refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act. Since I
do not find that Respondent refused to bargain
unlawfully, I disagree with the make-whole and
reinstatement order provisions which are predicated
upon the erroneous premise that Fowler was obliged
to dismiss any barber hired after May 28 when the 20
Spruce Up barbers "made an unconditional offer to
accept employment with Fowler."
The Supreme Court's decision in Burns requires
dismissal of the complaint in its entirety.
MEMBER FANNING, dissenting in part and concurring
in part:
Having reconsidered the issues in this case in the
light of the Supreme Court's decision in the Burns
case,20 I reaffirm the findings and conclusions set
forth in the Board's original decision herein, except
as modified herein.
The facts in this case are fairly straightforward and
not subject to substantial dispute. As noted by the
majority, for many years the barber shops at Fort
Bragg have been operated by concessionaires select-
ed through periodic competitive bidding. From
about March 1969 through March 1970, 19 of the
shops were operated by Respondent Spruce Up.
Eight other shops were operated by two other
concessionaires, Roscoe and Fisher. In early 1970
Cicero Fowler, a barber on the base, submitted the
low hid for the operation of all 27 shops. Respondent
Cicero Fowler, t/a Fowler Barber Shops, com-
menced operation of the shops on March 3, 1970.
Prior to that date, the Union had been certified by
the Board as the exclusive representative of Respon-
dent Spruce Up's employees. As a result of unfair
labor practices committed by Spruce Up, the Union's
certification had not resulted in any collective
bargaining at the time Fowler took over operation of
the shops.
As is clear from the record, Fowler took over the
operations with knowledge of the Union's represent-
ative status. Not only does the record reveal that he
had been employed as a barber on the base since
20 N L R B v. Burns International Security Services, Inc, 406 U S 272
(1972).
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1939, but he conceded on the record that, "I knew
that they had a union out there . . . ."21 Moreover,
on February 6, when it became apparent that Fowler
had submitted the low bid, the Union went to Fowler
and asked him whether he intended to hire the
barbers who were then working in the shops. Fowler
responded affirmatively, "All the barbers who are
working will work."22 However, he indicated that he
intended to change the commission by which their
wages were determined. The Union then requested
recognition as the barbers' bargaining representative
and demanded bargaining about the contemplated
changes. Fowler refused on the ground that the
barbers were not yet his employees and he had no
legal obligation to bargain until he took over the
operations. On February 26, the Union renewed its
request for bargaining. Fowler again refused, reiter-
ating that there was no "employment contract" at
that moment, and therefore nothing to bargain
about. The Union advised Fowler that all the barbers
desired to continue working at the base, but that it
could not tell how many would report to work if
Fowler continued his refusal to negotiate.
On February 27, Fowler had his son Charles
deliver a letter to each of the barbers working in the
shops which Fowler was to take over on March 3,
setting forth the commission rates he intended to pay
(these were different from the rates in effect during
Spruce Up's operation) and extending to the barbers
"the opportunity to work for me under the above
mentioned terms. If you are willing to work for me
please sign at the bottom of this statement and return
it to my office no later than 12:00 p.m., March 2nd,
1970." On March 2, the Union held a meeting to
discuss the letter The meeting was attended by most
of the barbers then working including barbers then
working for Roscoe and Fisher.
At this meeting the barbers voted not to sign the
individual form-letter contracts, to withhold their
services, and to picket the base. The next day a
majority of the barbers on the base failed to report to
work for Fowler and instituted a picket line. The
record clearly reveals that the barbers refused to
report to work because Fowler insisted on dealing
with them individually and not through the Union.
On March 3, 18 former Spruce Up barbers reported
21 Fowler's son , Charles , and brother, Edgar, had been employed in the
Spruce Up bargaining unit both reported to work for Fowler on March 3
Charles Fowler assists his father in the management of the business and was
present with his father at the February 6 meeting , discussed infra, between
Fowler and the Union
22 The concessionaire agreement signed by Fowler required him to give
first consideration to the employment of employees of the previous
concessionaire Through the years, the practice and custom at Fort Bragg
was for barbers to continue working despite the numerous changes in
concessionaires
23 For all shops the figures are Spruce-Up barbers, 20, new barbers. 17,
Roscoe barbers , 0, Fisher barbers, 0
24 For all shops the figures are Spruce Up barbers , 23, new barbers, 27,
to work along with 3 other barbers. Other former
Spruce Up barbers reported to work at various times
thereafter and, on May 28, the Union sent Fowler a
letter on behalf of 22 named barbers, including 4
barbers who had worked for Roscoe and Fisher,
containing an unconditional "offer to return to work
for you at Fort Bragg." Fowler did not reply to the
letter, and none of these were hired, except for two
who had already reported for work before the letter
was sent Fowler testified that his reason for not
hiring them was that "they had not come to him
personally and requested their jobs back," and "that
there was nobody refused" who came to him
personally and asked for employment.
As indicated, on March 3, Fowler's work force in
the former Spruce Up shops consisted of 18 former
Spruce Up employees and 3 other barbers. Thereaft-
er, on March 10, the figures were 19 former Spruce
Up employees and 17 other barbers; 2,1 on March 17,
22 former Spruce Up employees and 26 other
barbers: 24 on March 24, 20 former Spruce Up
barbers and 28 new barbers; 25 on March 31, 21
former Spruce Up employees and 26 new barbers; 26
on April 7, 23 former Spruce Up employees and 25
new barbers; 27 and on April 14, 32 former Spruce
Up employees and 23 new barbers.28 Continually
thereafter, former Spruce Up employees outnum-
bered other barbers; on May 28, the ratio was 34
former Spruce Up employees to 18 new barbers29
and by December 4, the comparable figures were 32
to 730 At all times, the former Spruce Up employees
constituted the stable nucleus of the employment
force as the record shows that there was constant
turnover among the non-Spruce Up barbers, with
many of them remaining on the payroll for only a
matter of days.
It is on the basis of these facts that we must
determine (1) whether Respondent Fowler succeeded
to Respondent Spruce Up's bargaining obligation on
and after March 3, 1970, when it commenced
operating the -barber shops at Fort Bragg, and (2)
whether Respondent Fowler violated Section 8(a)(5)
and (1) of the Act by failing and refusing to bargain
with the Union concerning the fixing of the terms
and conditions of employment which were to obtain
upon the commencement of operations.
Roscoe barbers . 0, Fisher barbers. 0
21 For all shops the figures are Spruce Up barbers. 21, new barbers, 28.
Roscoe barbers, 1, Fisher barbers, 0
2b For all shops the figures are Spruce Up barbers. 22, new barbers, 26,
Roscoe barbers, 1. Fisher barbers, 0
27 For all shops the figures are Spruce Up barbers , 25. new barbers, 25,
Roscoe barbers , 3. Fisher barbers, 3
28 For all shops the figures are Spruce Up barbers , 36, new barbers, 25,
Roscoe barbers, 3, Fisher barbers. 4
n+ For all shops the figures are Spruce Up barbers , 36, new barbers, 18,
Roscoe barbers, 8. Fisher barbers. 7
311 For all shops the figures are Spruce Up barbers . 34, new barbers, 7,
Roscoe barbers. 8. Fisher barbers, 7
SPRUCE UP CORPORATION 205
Although it is apparent that an affirmative answer
to the second question would afford substantial
support for an affirmative answer to the first, I do
not believe the converse is true; that is, I believe the
successorship of Fowler has been established on this
record without regard to how one determines the
pretakeover bargaining issue, and I shall treat that
issue first.
I am satisfied that a realistic appraisal of the
foregoing evidence demonstrates that at all times
material herein Respondent Fowler intended to rely,
and did in fact rely, on former Spruce Up employees
to staff his barber shops.31 As such employees, at all
times after March 3, constituted the stable nucleus of
his employment force, constituting a majority of such
force at most times including the first 2 weeks of
operations and at all times after April 14, 1 find that
Fowler was a successor to Spruce Up and succeeded
to the latter's bargaining obligation under the
certification on and after March 3, 1970,32 and that
he violated Section 8(a)(5) by failing and refusing to
recognize and bargain with the Union pursuant to its
demand of February 26 which demand, the record
reflects, continued in effect thereafter.
I cannot agree with the Chairman and Member
Jenkins that Fowler did not succeed to Spruce Up's
bargaining obligation until April 14, the date that
Fowler had hired a majority (32 of 55) of former
Spruce Up employees. Successorship does not
depend on the employment of a majority of the
predecessor's employees, but on whether a legally
significant portion of the successor's employment
force consists of employees previously employed in
the bargaining unit.33 In making that determination,
the question of whether employees of the predecessor
actually predominate over other employees can
hardly be the acid test of successorship, although it
may be an important factor in determining whether
i1 Thus, Fowler not only assured the Union that " all the barbers who are
working will work ," he offered each barber employment; and though the
offer seemingly set a deadline for acceptance by noon on March 2, Fowler
continued to treat it as a ialid outstanding offer ey employing Spruce Up
employees who initially refused to report , but later gave up their protest of
his refusal to negotiate with the Union and indicated, on the record, that
even as late as May 28. he would have accepted personal unconditional
offers to return to work
32 Polytech, Incorporated, 186 NLRB 984.
33 N L.R B v Polv!ech, Incorporated, 469 F 2d 1226, (C A. 8. 1972).
enfg 186 NLRB 984. Here, of course, if a successorship was established as
of March 3, the Union's majority status would not be subject to question
during the remainder of the certification year
34 I do not regard the fact that Fowler is the operator of all 27 barber
shops on the base, whereas Spruce Up operated only 19, as destroying the
vitality of the certification of the Lmon as the exclusive representative of an
appropriate unit of all barbers employed by Fowler The additional shops
simply amount to an expansion of the bargaining unit during the
certification year. Assuming, arguendo, that such expansion might have
afforded Fowler a basis for doubting the Union's majority status in the
expanded unit , Fowler does not appear to have raised that defense herein
In any event , the record discloses that even considering all the shops
operated by Fowler, Fowler commenced operations with a work force in
which Spruce Up barbers constituted a majority, that Spruce Up barbers at
the successor employer has a basis for doubting the
Union's majority status. Here, of course, Fowler
began operations with a work force in which former
Spruce Up employees were in the majority for the
first 2 weeks of operations. During the next 4 weeks
of operations, there were fluctuations in the employ-
ment force resulting in a slight numerical minority of
former Spruce Up employees, and then a further
fluctuation after April 14 bringing them back into a
majority of the work force. One can not realistically
say that these fluctuations changed the character or
nature of the employing industry. The fact is that the
former Spruce Up employees did constitute the
stable nucleus of Fowler's employment force, as the
Board previously found, and Fowler did continue to
look to such employees for his permanent work force
to perform the same operations in the same locations
as they did for Spruce Up. There is nothing in the
Burns decision to require a different result now of
this aspect of the case,34 and, accordingly, I reaffirm
the original decision in this respect.35
On the question of whether Respondent Fowler
was obligated to bargain with the Union over the
fixing of his initial terms and conditions of employ-
ment, it seems to me entirely clear that Respondent
Fowler did plan to retain the former Spruce Up
employees. He not only told the Union that "all
barbers who are now working, will work," he offered
each of those barbers employment. He hired all those
who reported for work on March 3, and those who
thereafter crossed the picket line. Had each of those
barbers 'reported for work on March 3, there can be
no doubt but that Fowler would have put them all to
work. Surely, an employer who offers employment to
all the employees of a predecessor "clearly plans to
retain all of the employees in the unit . .. ." The
fact that some employees may refuse the offer of
employment has nothing to do with the "plans" or
all times constituted the stable nucleus of his work force and a clear
majority of the force when his operations stabilized . Moreover, the barbers
employed by Roscoe and Fisher attended and participated in the union
meeting of March 2, and they joined with Spruce Up barbers in refusing to
report for work on March 3. though by May 15, 8 of 10 Roscoe barbers had
reported for work and by April 21.7 of 13 Fisher barbers had done so The
record demonstrates that Roscoe and Fisher barbers intended to and did
make common cause with the Spruce Up barbers in refusing to report to
work on March 3 because of Fowlers refusal to bargain with the Union,
and that Fowler was aware of that fact, having been advised by the Union
that it was representing those barbers also pursuant to individual
authorizations and requests to do so. It seems clear to me, therefore, that the
Roscoe and Fisher shops merged with the Spruce Up shops to form an
expanded bargaining unit and that the principals on either side of this labor
dispute so viewed the matter and acted at all times in accordance with that
view . Accordingly. for all the foregoing reasons, I find that the Union's
certification as the exclusive representative of all barbers employed by
Respondent Spruce Up survived the change in concessionaires and retained
its vitality as to the expanded unit of barbers employed by Respondent
Fowler. N L R B v. J W Rev Co, 243 F 2d 356 (C A 3. 1957), enfg. 115
NLRB 775
dJ For reasons stated by Member Penello, the statement in fn . 6 of the
decision in Golden State Bottling Co v. N LR.B., 414 U S 168 (1973), does
not require a different result
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intent of the offering employer. It may be that he will
have to alter his plans, if the employees refuse the
offer of employment, but at the time of the offer, he
assuredly plans to retain those employees. Where
such is the case, and where the union representing
those employees has made an appropriate bargaining
demand, I agree with Member Penello that under
Burns the successor is obligated to consult with the
union "before he fixes terms." Construing the term
"fixes" in this context as the actual establishment of
those terms on the day the successor commences
operations, as the Burns decision seems to require,
would eliminate the fears of the majority that
successor employers would lose the right to use their
own business judgment in the establishment of initial
terms and conditions of employment, were they to
comment favorably upon the employment prospects
of the predecessors' employees. For as the Court
explicitly noted with respect to Burns in an obvious
effort to delineate the bargaining obligation arising
under its "clearly plans to retain" test,
Here, for example, Burns' obligation to bargain
with the union did not mature until it had selected
its force of guards late in June. The Board quite
properly found that Burns refused to bargain on
July 12 when it rejected the overtures of the
union. It is true that the wages it paid when it
began protecting the Lockheed plant on July 1
differed from those specified in the Wackenhut
collective-bargaining agreement , but there is no
evidence that Burns ever unilaterally changed the
terms and conditions of employment it had
offered to potential employees in June after its
obligation to bargain with the union became
apparent. If the union had made a request to
bargain after Burns had completed its hiring and if
Burns had negotiated in good faith and had made
offers to the union which the union rejected, Burns
could have unilaterally initiated such proposals as
the opening terms and conditions of employment on
July 1 without committing an unfair labor prac-
tice.36 [Emphasis supplied.]
Inasmuch as Burns had completed its hiring
process sometime in June and as that hiring process
consisted of offers of employment at terms and
conditions of employment established unilaterally by
Burns , the Court's indication that the bargaining
obligation had then become apparent, and would
have been enforceable by timely demand for bar-
gaining by the union37 so as to require good-faith
bargaining over the terms and conditions of employ-
36 Burns, supra at 295.
37 The union did not demand bargaining before operations commenced
but waited until July 12
38 "One of the primary purposes of the Act is to promote the peaceful
ment already offered by Burns and accepted by the
employees, necessarily means that under the "clearly
plans to retain" test, it is the successor's intention to
hire, not its determination of the terms under which
it will hire, that determines whether or not he must
honor a timely demand for bargaining prior to the
commencement of operations. Nor can there be any
economic injury to the successor in bargaining in
good faith prior to the commencement of operations,
for, assuming good-faith bargaining on his part, if
the union can not persuade him that other terms are
more equitable, he is perfectly free to impose those
terms as the opening terms and conditions of
employment upon the commencement of operations.
The majority's contrary construction of this aspect
of the Burns decision leads to the anomalous, if not
absurd, result that a bargaining obligation over the
establishment of the successor's initial terms and
conditions of employment arises when the successor
plans to retain the former employees at the terms
their union had already established through collec-
tive bargaining with the predecessor employer but
not when he plans to retain them at terms different
from those previously established. The majority
would bring to bear "the mediatory influence of
negotiation" 311 where there is no controversy, but
deny its appropriate use where there is controversy.
They thus turn the Act on its head, and to no useful
end. For it is apparent, from the whole sequence of
events in this case, that once Respondent Fowler had
determined to rely on Spruce Up employees to
operate his shops, the bone of contention between
him and those employees was his refusal to deal with
them through their Union. When Fowler informed
the Union that "all the barbers who are not working
will work," almost a month remained before he was
to take over the operation of the barber shops. Had
he honored the Union's request to bargain over the
change in commission rates he intended to make, the
negotiation process would have had time to work out
an acceptable agreement without danger of work
stoppages during that process. Had good-faith efforts
failed to result in agreement in such circumstances,
Fowler would have been free to initiate the offered
terms as his opening terms. The decision of employ-
ees to work or to withhold their services would then
have been made in the light of Fowler's good-faith
dealing with their Union and vindication of their
exercise of Section 7 rights, not in the light of an
adamant denial of such rights.
Accordingly, for these reasons and those stated by
Member Penello, I join him in finding that Respon-
settlement of industrial disputes by subjecting labor-management contro-
versies to the mediatory influence of negotiation ." Fibreboard Paper
Products Corp v N L R B. 379 U S. 203, 211 ( 1964).
SPRUCE UP CORPORATION
dent Fowler violated Section 8(a)(5) and (1) of the
Act by failing and refusing to bargain on and after
February 6, 1970, with the Union over the fixing of
the initial terms and conditions of employment, and
in dealing directly with employees as to such matters
on February 27, 1970.
The remedy for this violation poses some difficul-
ties. On the one hand, Burns holds that the terms and
conditions of employment afforded by the predeces-
sor are not to be regarded as those of the successor,
who has the right to establish his own terms. Fowler's
exercise of the right to establish his own terms did
not, however, carry with it the right to refuse the
Union's timely demand to negotiate concerning
those terms. One can not know with any certainty
whether negotiations over the terms would have
resulted in changes therein. I believe, however, that
the record affords a basis for concluding that, had
such negotiations been conducted in good faith, the
Spruce Up barbers would have reported to work
even at Fowler's terms and worked thereunder
pending conclusion of collective bargaining, for the
record clearly reveals that those employees' reason
for failing to report to work under those terms was
Fowler's refusal to bargain with the Union concern-
ing them. In these circumstances, and as Fowler was
obviously willing at all times to hire them at such
terms, I believe the appropriate remedy for his
refusal to negotiate with the Union is to require him
to honor the employees' unconditional offer to report
to work made through their Union on May 28, 1970,
replacing if necessary those barbers not employed in
the bargaining unit prior to March 3, and to make
them whole by payments based on his commission
rate structure for loss of wages from 5 days after May
28 until such time as he offers them employment. I
would, of course, also include in the Order appropri-
ate cease-and-desist and affirmative bargaining
provisions to remedy the violations of Section 8(a)(5)
I find to have occurred herein. Accordingly, Ijoin in
the Order issued by Chairman Miller and Member
Jenkins to the extent it provides the relief indicated
above.
MEMBER PENELLr), dissenting in part, concurring in
part:
Contrary to the majority, I believe that a proper
application of the principles enunciated by the
Supreme Court in Burns requires a finding that
Respondent Fowler's conduct in refusing to bargain
with the Union prior to establishing his commission
rates initially, and in bypassing the Union and
dealing directly with the barbers as individuals,
violated Section 8(a)(5) and (1) of the Act. In Burns.
207
the Court held that in general a successor is free to
set the initial conditions of employment upon which
rehiring is conditioned without bargaining with the
Union, since prior to hiring a substantial proportion
of his predecessor's employees it will not be clear
that he has a duty to bargain with the Union. The
only instance in which the duty to bargain may
precede the formal rehiring of employees is where. as
Burns states, " 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. "39 This is such a
case.
The facts in this case are not disputed. The
majority agree that Fowler told the Union on
February 6, 1970, 111 when asked what his intentions
were about hiring barbers, "All the barbers who are
working will work." However, by strained legal
psychoanalysis, they contend that, despite the plain
meaning of his words, Fowler did not really intend to
retain the barbers.
Intent is the state of mind with which an act is
done. It is rarely susceptible of direct proof, but must
ordinarily be inferred from the surrounding facts.
Here, we have the rare instance in which direct
evidence is available. for the facts show that Fowler
specifically stated that he wanted to retain the
employees by his own words on February 6. He
communicated this desire to the employees by
individual form letters subsequently. Most impor-
tantly, his voiced intent to retain these barbers
eventually became a reality when they made up the
majority of his work force.
This analysis is consistent with the exact language
of the Court in Burns and is the only approach that
gives those words any significance. The Court there
said nothing about a conditional intent to hire. The
majority are attempting to revise substantially what
the Court said, for their view would, in effect,
abrogate the exception, as the only case when a
violation would occur under their test would be the
unlikely situation where a successor says he will
continue the employees under the exact terms and
conditions as existed before the takeover. If he says
that he "plans" to alter the status quo in any way,
while at the same time indicating a desire to retain
the old employees, they would find this amounts to a
conditional intent to hire. I cannot accept that the
Supreme Court would announce a rule of law that is
so restrictive as to amount to a nullity.
The majority opinion expresses great concern that
this position will have the undesirable result of
discouraging new employers "from commenting
s9 gums , supra at 294-295
40 All dates hereinafter are in 1970
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
favorably at all upon employment prospects of old
employees for fear [they ] would thereby forfeit [the]
right to unilaterally set initial terms ... ." However,
they seriously misread the Burns decision by even
suggesting such a consequence . The Court in Burns
did not forbid any successor from setting initial
terms on its own once it announces it intends to
retain its predecessor 's employees . The Court merely
said that in this situation "it will be appropriate to
have [the new employer ] initially consult with the
employees ' bargaining representative before he fixes
terms." (Emphasis supplied .) 1 regard this duty as
merely an obligation to refrain from dealing with the
unit employees individually concerning their future
working conditions until it has notified the union and
bargained to an impasse.ii
Having thus negotiated with the union , the succes-
sor is then free to fix his terms whether the union
agrees or not . In my view this is not too heavy a
burden to put on any employer in order to protect
the employees' Section 7 rights "to bargain collec-
tively through representatives of their own choosing"
with respect to matters affecting the employees'
interests . Certainly , to avoid the whole impact of
Burns any "well-advised" employer could refuse ever
to take over any employees of the predecessor and
thus it would never become a successor within the
meaning of the Act as this Board has defined
successorship . However , such refusal to employ the
existing complement has not occurred to my knowl-
edge judging by the number of cases in which the
Board has found a new employer to be a "successor"
and will not occur as long as many purchasers as a
practical matter need the experienced employees of
their predecessor to continue the business successful-
ly.
Contrary to the majority, I believe that the present
case is analogous to Howard Johnson Company, 198
NLRB No. 98, a case that the majority agrees with
me fell within the Burns proviso, the only difference
being that there the employer had already taken over
the company and here the discussion with the Union
was in advance of takeover . There, the successor at
the time of his takeover announced his wages and
employee benefits , which were different from those
of the predecessor , at the same time that he reassured
the employees of their job . Yet, the Board did not
there find that the intention to retain the employees
was "conditional" upon their acceptance of the new
conditions, despite the fact that under the logic of the
majority, had any employees objected to the succes-
41 Certainly it is well established that after an impasse is reached, an
employer is then free to make unilateral changes in working conditions
consistent with his rejected offer to the union N LR B v. Crompion-
Highland Mills, Inr, 337 U S 217,224-225, N LR B v 'llmeida Bus Lines,
Inc, 333 F.2d 729 (C A 1. 1964), NLRB ^ Ter-7un, Inc ; 318 F 2d 472
sor's terms and conditions, the successor would
certainly not have retained these employees on their
own terms.
Moreover, my interpretation of the Court's lan-
guage in Burns accords with the Board's decision in
Chemrock Corporation, 151 NLRB 1074, where the
Board considered the same question of whether a
purchaser is obligated to bargain with the union
representing its predecessor's employees before it has
hired them and concluded in the affirmative.
In Chemrock, a newly formed company purchased
a growing plant during the term of the seller's
contract with the union as representative of his
truckdrivers. Although the purchaser continued
operations of the plant without change and with the
same production employees, it informed the drivers
that it would deal with them only as "free agents" on
an individual basis at a wage rate below the contract
rate. When the truckdrivers told the employer to
discuss the matter with the union it refused to do so,
hired new truckdrivers, and thereafter refused to deal
further with the former drivers. The Board held that
the drivers were employees of the purchaser even
though they had not been hired by the purchaser,
and thus the purchaser was obligated to bargain with
their union. In reaching this conclusion the Board
was guided by the decisions of the Supreme Court in
Phelps-Dodge42 and Hearst Publications43 holding
that the term "employee" must be given a broad
meaning in keeping with the statute's broad terms
and purposes. The Board in Chemrock stated that
where:
. . . the only substantial change wrought by the
sale of a business enterprise is the transfer of
ownership, the individuals employed by the seller
of the enterprise must he regarded as "employ-
ees" of the purchaser as that term is used in the
Act. Such individuals posses a substantial interest
in the continuation of their existing employee
status, and by virtue of this interest bear a much
closer economic relationship to the employing
enterprise than, for example, the mere applicant
for employment . . . . "The particular individuals
involved here were unquestionably "employees"
of the enterprise at the time of the transfer of
plant ownership. The work they had been doing
was to be continued without change. Clearly
employees in such a situation are entitled to seek
through bargaining to protect their economic
(C A 5, 1963), N L R B v Bradlet Washfountain Co. 192 F 2d 144 (C A 7),
N L. R B s Landis Tool Conipant. 193 F.2d 279 (C A 3)
12 Phelps-Dodge Corp v N I_ R B, 313 U S 177
ii N LR B v Hearst Publications, Inc , 322 L 5 I I1
SPRUCE UP CORPORATION 209
relationship to the enterprise that employs
them. 44
The Board also observed in that case that the
following language in the Supreme Court's opinion
in Wfley45 was pertinent to the issue:
Employees and the union which represents them,
ordinarily do not take part in negotiations leading
to a change in corporate ownership. The negotia-
tions will ordinarily not concern the well-being of
the employees, whose advantage or disadvantage,
potentially great, will inevitably he incidental to
the main considerations. The objectives of nation-
al labor policy, reflected in established principles
of federal law, require that the rightful preroga-
tive of owners independently to rearrange their
businesses and even eliminate themselves as
employers be balanced by some protection to the
employees from a sudden change in the employ-
ment relationship . . . .4h
In addition, the Board found an independent
8(a)(1) violation in the successor's bypassing the
Union and dealing directly with the individual
employees: 47
.. . As has been shown above, during the
interim period between the time it contracted for
the purchase of the plant and the time it took
physical possession, Respondent, deliberately
bypassing the Union, entered into direct dealings
with the drivers concerning their continued tenure
of employment and the terms and conditions of
such continued employment. It is undisputed that
the Union at least during that period still retained
its statutory status as the employees' duly desig-
nated bargaining agent in an appropriate unit.
Section 7 of the Act guarantees employees the
right, inter alia, "to bargain collectively through
representatives of their own choosing" with
respect to matters affecting their employee inter-
ests. And that right, in turn, exacts a correlative
obligation from one who would deal with repre-
sented employees as to such matters to deal with
them through their statutory representative and
not directly.
This cogent analysis applies with equal force to the
case at bar. Thus, on February 6 when Respondent
Fowler first manifested an intent to hire all of the
employees in the unit, he became obligated to
bargain with the Union prior to establishing his
commission rates. His refusal to do so constituted a
violation of Section 8(a)(5).48 Similarly, it is quite
clear that when Respondent Fowler sent a letter to
each of the barbers on February 27 setting out the
new commission rates which he intended to pay and
requesting any barber who desired to work for him
under those conditions to indicate his intention of
doing so by signing and returning the letter, he was
acting in an employer capacity and dealing with
them individually about matters as to the negotiation
of which the employees had a legitimate right and
interest to be represented by their bargaining agent,
and concerning which the Union had sought bar-
gaining on two occasions . Respondent Fowler's
insistence upon bypassing the Union and dealing
with the employees directly, in my view , was a clear
infringement of the employees ' Section 7 rights, and
as such was violative of Section 8(a)(I).
Accordingly, I find that the former Spruce Up
employees who concertedly refused to work for
Respondent Fowler on or about March 3 did so
because of Fowler 's unlawful conduct in refusing to
recognize and bargain with the Union, bypassing the
Union, and dealing directly with the barbers as
individuals regarding the barbers' terms and condi-
tions of employment. I thus find them to he unfair
labor practice strikers who were entitled to reinstate-
ment to their former positions or, if those positions
were no longer available, to equivalent positions, at
the time Respondent Fowler received their uncondi-
tional offer to return to work on May 28, replacing, if
necessary, those employees who were hired in the
unit after March 3. For the reasons set forth in our
original decision herein, I would order Respondent
Fowler to pay backpay to the unfair labor practice
strikers based on either the rate-price structure
prevailing under Spruce Up, or the new rate-price
structure established by Respondent Fowler, which-
ever results in the higher backpay to the individual
employees.
44 Chenirock, supra at 1078
4' John Wiley & Sons v Lrvin,Qston, 376 U.S 543 (1964).
46 Wiley, supra at 549, quoted in Chewrock, supra at 1078-79
it Chenirock , supra at 1080-81
411 In light of my view that the bargaining obligation of Fowler
commenced on February 6, 1970, 1 do not find it necessary to reach the unit
issue in any event , however. I share the view of Member Fanning that the
addition of eight shops to the unit did not substantially change the essential
nature of the unit as it constituted only "an expansion of the bargaining
unit " I also subscribe to Member Fannmg 's view that only "a legally
significant portion of the successors employment force" must consist of
employees previously employed in the bargaining unit, and that Fowler was
a successor to Spruce Up as of March 3, 1970. because "Fowler commenced
operations with a work force in which Spruce Up barbers constituted a
majority [and I Spruce Up barbers at all times constituted the stable nucleus
of his work force and a clear majority of the force when his operations
stabilized " I do not think that Chairman Miller and Members Jenkins and
Kennedy can derive much support from Golden State, supra , which deals
with the circumstances in which a successor will be required to bargain to
remedy the refusal to bargain of his predecessor The Court therein was not
speaking to a case where the employing industry survived the change in
ownership so as to impose a bargaining obligation upon the successor.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER Oi 114E
NATIONAL LABOR RE AIIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these things.
I WILL NOT do anything that interferes with
these rights.
I WILL bargain, upon request , with Journeyman
Barbers, Hair Dressers , Cosmetologists and Pro-
prietors ' International Union of America,
AFL-CIO, Local 844, as the exclusive representa-
tive of the employees in the unit described below
with respect to wages, hours, and all other terms
and conditions of employment , and, if an agree-
ment is reached , embody it in a signed contract.
The unit is:
reinstate all those listed below desiring reinstate-
ment , I will place any remaining employees on a
preferential hiring list and offer them jobs when
positions become available.
Allen, Christopher, Jr.
Bailey, Jimmie A.
Ballew , David G.
Bilbrey, Earl L.
Brown , David C.
Butler , Thaddeus L.
Cole, E. C.
Green, William Edward
Hall, Joe P.
Hargrove, Eugene D.
Hooper, Thomas, Jr.
Hudson, James
Hunt, Hector
Lee, Joseph M.
McCormick, George E.
Pridgen , Willie C.
Sinclair , Howard
Smith , James C.
Williams, Merriel B.
Womble, Jesse E.
I wiLL make whole the above-named employ-
ees for any earnings lost by them as a result of my
failure to reinstate them on and after May 28,
1970.
All my employees are free to belong, or not to
belong, to Journeymen Barbers, Hair Dressers,
Cosmetologists and Proprietors ' International Union
of America , AFL-CIO, Local 844.
CICERO FOWLER TEA
FOWLER'S BARBER SHOPS
(Employer)
All employees performing barbering serv-
ices, including shop managers and co-man-
agers, in the barber shops formerly operated
by Spruce Up Corporation at Fort Bragg,
North Carolina, excluding office clerical
employees, shoeshine employees, guards,
and supervisors as defined in the Act.
I WILL offer the persons named below their old
jobs, or if such jobs no longer exist , substantially
equivalent jobs, dismissing , if necessary, any
employees hired after May 28, 1970, to replace
these employees . If, after taking these measures,
there are still not enough positions available to
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office, 1624 Wachovia Building, 301 North
Main Street , Winston-Salem , North Carolina 27101,
Telephone 919-723-9211.