VOITH INDUSTRIAL SERVICES, INC.

National Labor Relations Board - Board Decisions

Feb 17, 2016

363 NLRB No. 116 (N.L.R.B. 2016)

363 NLRB No. 116
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Voith Industrial Services, Inc. and General Drivers,
Warehousemen & Helpers, Local Union 89, af-
filiated with The International Brotherhood of
Teamsters and International Union, United Au-
tomobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL–CIO
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, Local Union 862,
AFL–CIO and General Drivers, Warehousemen
& Helpers, Local Union 89, affiliated with The
International Brotherhood of Teamsters. Cases
09–CA–075496, 09–CA–078747, 09–CA–082437,
09–CB–075505, and 09–CB–082805
February 17, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On December 21, 2012, Administrative Law Judge
Bruce D. Rosenstein issued the attached decision. Re-
spondent Voith filed exceptions and a supporting brief.
The General Counsel filed an answering brief, and Re-
spondent Voith filed a reply brief. The General Counsel
and the Charging Party each filed limited cross-
exceptions and supporting briefs. Respondent Voith
filed an answering brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs2 and has decided to
affirm the judge’s rulings, findings,3 and conclusions as

1 No exceptions were filed to the judge’s findings that Respondent
UAW and its Local 862 (collectively, the UAW) violated Sec.
8(b)(1)(A) of the Act by accepting assistance and support from Re-
spondent Voith in order to meet with employees and solicit member-
ship applications and checkoff authorizations, and by prematurely
accepting recognition from Respondent Voith. In addition, no excep-
tions were filed to the judge’s dismissal of allegations that Respondent
Voith (1) unlawfully told an employee at an orientation session on
April 10, 2012, that new hires were represented by the UAW and would
receive UAW insurance, and (2) unlawfully instructed employees in a
staff meeting to report other employees’ union activities.
2 Respondent Voith has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
3 Respondent Voith has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
modified,4 and to adopt the recommended Order as modi-
fied and set forth in full below.5
The judge found, and we agree, that Respondent Voith
entered into an unlawful scheme enabling it to underbid
other contractors seeking to provide vehicle staging,
shuttle, and yard/inventory management services (vehicle
processing work) for Ford Motor Company at Ford’s
Louisville Assembly Plant (the LAP). Those services
had previously been performed by Auto Handling, Inc.,

(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 We have amended the judge’s conclusions of law consistent with
our findings.
5 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language, correct inadvertent errors and
omissions, and remedy the violations found. We shall further order
Respondent Voith to file a report with the Social Security Administra-
tion allocating backpay to the appropriate calendar quarters, and to
compensate the affected employees for the adverse tax consequences, if
any, of receiving lump-sum backpay awards. We shall also delete the
portion of the judge’s recommended Order that permits Respondent
Voith, under Planned Building Services, Inc., 347 NLRB 670, 675–676
(2006), to limit its liability by showing in compliance that it would not
have agreed to the monetary provisions of the predecessor’s collective-
bargaining agreement. Subsequent to the judge’s decision, the Board
overruled this portion of Planned Building Services in Pressroom
Cleaners, 361 NLRB No. 57 (2014), motion for reconsideration denied
361 NLRB No. 133 (2014). In Pressroom Cleaners, the Board held
that an “employer may no longer attempt to prove what the terms and
conditions would have been if it had complied with its obligation to
bargain.” Slip op. at 6. We have modified the judge’s recommended
Order to accord with Pressroom Cleaners.
The judge recommended that a responsible management official be
required to read aloud the notice to employees, and permit a representa-
tive of Teamsters Local 89 to be present at the reading. The judge,
however, failed to include this provision in his recommended Order.
We agree with the judge that this remedy is appropriate in light of the
pervasiveness of the Respondent’s unlawful scheme and the seriousness
of the unfair labor practices. Accordingly, we shall modify the judge’s
recommended Order to include a notice-reading provision. We shall
also substitute new notices in accordance with our decision in Durham
School Services, 360 NLRB No. 85 (2014), and to conform to the Order
as modified.
We shall also require Respondent Voith to post Respondent UAW’s
notice to employees. Although our colleague claims that ordering an
employer to post a union’s remedial notice only if the employer is
“willing” is “[c]onsistent with the Board’s standard practice,” the
Board’s practice in consolidated CA and CB cases is not uniform. For
example, in Alliant Food Service, Inc., 335 NLRB 695, 698 (2001), the
Board ordered the employer to post the union’s notice and did not
include “if willing” language in the employer’s order. Consistent with
Alliant, we believe that in cases such as this one, where the respondents
schemed together in the commission of the unfair labor practices, and
the employer committed the bulk of the unfair labor practices, it is
appropriate to require that the employer post the union’s notice along
with its own. See also Interstate Bakeries Corp., 357 NLRB 15, 20
(2011) (ordering respondent employer, which joined with respondent
union in discriminating against an employee, to separately post its own
and the union’s notice as part of its own remedial obligations), affd.
488 Fed. Appx. 280 (10th Cir. 2012), cert. denied 133 S.Ct. 1458
(2013).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whose vehicle processing employees had been represent-
ed by Teamsters Local 89 (the Teamsters). In order to
underbid Auto Handling, Respondent Voith informed
Ford that the work force would be represented by the
UAW and based its projected labor costs on the UAW
tier 2 wage scale, which is far below that which Auto
Handling had paid to its Teamsters-represented employ-
ees. Ford awarded Respondent Voith the vehicle pro-
cessing contract. Respondent Voith then entered into a
contract with Aerotek Inc., a labor staffing company, to
assist in hiring permanent vehicle processing employees,
and subcontracted to Aerotek the hiring of temporary
employees to perform some of the vehicle processing
work under the joint supervision of Voith and Aerotek.
To avoid incurring a successorship obligation that
would require it to recognize and bargain with the Team-
sters and pay the Teamsters wages and benefits, Re-
spondent Voith engaged in an unlawful course of con-
duct designed to ensure that its employees would be rep-
resented by the UAW rather than the Teamsters. First, it
limited its hiring of the Teamsters-represented former
Auto Handling employees and other Teamsters-
represented applicants, and it transferred inexperienced,
UAW-represented janitorial employees to vehicle pro-
cessing positions. It then unlawfully assisted the UAW
in organizing that work force and unlawfully recognized
the UAW as the representative of its vehicle processing
employees based on the authorization cards that were
obtained as a result of the unlawful assistance.6
We also agree with the judge’s finding that but for
Voith’s unlawful intent and actions, it would have hired
predecessor Auto Handling’s Teamsters-represented
work force, resulting in a successorship obligation to
recognize and bargain with the Teamsters as the repre-
sentative of the employees performing the vehicle pro-
cessing work. The judge further determined, and we
agree, that because of Voith’s unlawful hiring scheme,
Voith lost its entitlement to set initial terms and condi-
tions of employment for the vehicle processing employ-
ees, and it was not entitled to make any unilateral chang-
es in their terms and conditions of employment, includ-

6 Voith’s unlawful scheme began in October 2011, when Voith sub-
mitted its bid to Ford declaring that its “hourly employees will be UAW
employees.” In February 2012, while Voith ignored the numerous
applications it received from skilled Teamsters-represented employees,
it augmented its janitorial work force, and then unlawfully assisted the
UAW in organizing and obtaining card signatures from janitors and
began the process of transferring unskilled UAW-represented janitors
to vehicle processing positions. On February 22, Voith unlawfully
recognized the UAW. Voith’s subcontracting of temporary unit work
to Aerotek in March 2012 was also part of Voith’s unlawful hiring
scheme.
ing unilaterally contracting out some of the unit work to
Aerotek.
In sum, we agree with the judge’s findings in all re-
spects. Specifically, we adopt the judge’s findings, for
the reasons set forth in his decision as well as those dis-
cussed below, that Voith violated Section 8(a)(3) and (1)
of the Act by implementing a plan to avoid hiring former
employees of predecessor Auto Handling, Inc. or mem-
bers of the Teamsters and by refusing to hire those indi-
viduals because they engaged in concerted activities or in
order to avoid a successorship obligation to recognize
and bargain with the Teamsters; Section 8(a)(5) and (1)
by refusing, as a successor to Auto Handling, to recog-
nize and bargain with the Teamsters as the representative
of the unit employees; Section 8(a)(5) and (1) by unilat-
erally setting initial terms and conditions of employment
for unit employees without first giving notice to and bar-
gaining with the Teamsters about those changes; Section
8(a)(5) and (1) by unilaterally entering into the contract
with Aerotek to hire individuals other than former Auto
Handling employees to perform bargaining unit work
without notifying and bargaining with Teamsters Local
89;7 Section 8(a)(2) and (1) by rendering assistance and

7 Our dissenting colleague disagrees with our finding that Voith was
not entitled to unilaterally set the initial terms and conditions of em-
ployment for the unit employees. Although it is well settled that a
successor employer is not bound by the substantive terms of the prede-
cessor’s collective-bargaining agreement and is ordinarily free to set
initial terms and conditions of employment, NLRB v. Burns Security
Services, 406 U.S. 272, 284 (1972), that right is forfeited where, as
here, the successor unlawfully refuses to hire the predecessor’s em-
ployees. See Pressroom Cleaners, 361 NLRB No. 57, slip op. at 1–2;
Advanced Stretchforming International, Inc., 323 NLRB 529, 530–531
(1997), enfd. in relevant part 233 F.3d 1176 (9th Cir. 2000), cert. de-
nied 534 U.S. 948 (2001); Love’s Barbeque Restaurant No. 62, 245
NLRB 78, 82 (1979), enfd. in relevant part sub nom. Kallmann v.
NLRB, 640 F.2d 1094 (9th Cir. 1981). “In such cases, the successor
must, as a matter of law, maintain the status quo by continuing the
predecessor’s terms and conditions of employment (as distinct from
assuming an existing collective-bargaining agreement) until the parties
have bargained to agreement or impasse.” Pressroom Cleaners, 361
NLRB No. 57, slip op. at 1. As we stated in Pressroom Cleaners, the
rationale for holding that the successor in such circumstances has for-
feited his right to set initial terms was explained in Love’s Barbeque.
In CNN America, Inc. and Team Video Services, LLC, 361 NLRB No.
47, slip op. at 43–44 (2014), and again here, our dissenting colleague
states his disagreement with the rule of Love’s Barbeque. As we did in
CNN America, and again in Pressroom Cleaners, we adhere to Love’s
Barbeque, which “has not been questioned by any Board or judicial
decision” in the 35 years since it was decided. Pressroom Cleaners,
361 NLRB No. 57, slip op. at 2 fn. 5. Accordingly, we agree with the
judge that in light of its unlawful hiring scheme, Voith forfeited its
right to set unit employees’ initial terms and conditions of employment.
Our dissenting colleague’s argument that Voith’s subcontracting of a
portion of bargaining unit work to Aerotek did not violate Sec. 8(a)(5)
fails for the same reason. The dissent argues that because there is no
evidence that Voith had employed a substantial and representative
complement of employees or had begun normal operations at the time
VOITH INDUSTRIAL SERVICES, INC. 3
support to the UAW by allowing the UAW to meet with
employees during orientation sessions and worktime in
order to urge the employees to sign membership applica-
tions and checkoff authorizations; Section 8(a)(2) and (1)
by granting recognition to the UAW when the UAW did
not represent an uncoerced majority of the vehicle pro-
cessing employees or at a time before the commence-
ment of Voith’s normal vehicle processing operations
when it did not employ a representative segment of its
ultimate vehicle processing employee complement; Sec-

of the Aerotek subcontract, it had no obligation to bargain over subcon-
tracting this unit work. Voith did not assert this defense and we reject
it in any event.
As stated above, the subcontracting to Aerotek was part of Voith’s
unlawful scheme to limit the hiring of Teamsters-represented employ-
ees in order to avoid an obligation to bargain with the Teamsters and to
ensure that the UAW, and not the Teamsters, would be the employees’
bargaining representative. The dissent cannot, and does not, dispute
that the subcontracting of unit work to Aerotek involved a term and
condition of employment pertaining to who would perform unit work.
If Voith had “conducted itself as a lawful Burns successor,” it would
have been privileged to initially set this term of employment. State
Distributing Co., 282 NLRB 1048, 1049 (1987). As indicated above,
however, it forfeited that right in conducting itself as an unlawful Burns
successor by engaging in the discriminatory hiring scheme of refusing
to hire almost all of the Teamsters-represented employees of predeces-
sor employer Auto Handling. Thus, the “substantial and representative
complement” defense that our colleague attempts to apply to the
Aerotek subcontract fails because the work force to which he applies
that defense was one that was unlawfully hired.
As we explained in CNN America, supra, where, as here, “an em-
ployer is found to have discriminated in hiring, the Board assumes that,
but for the unlawful discrimination, the successor would have hired the
predecessor employees in their unit positions,” and further “assumes
that the union would have retained its majority status” in that unit. Id.,
slip op. at 18. Accordingly, to allow the “substantial and representative
complement” defense here would be contrary to this well-established
principle and would confer on Voith a Burns right that it forfeited when
it embarked on its unlawful hiring scheme.
The dissent contends that because the Aerotek subcontract is found
to violate only Sec. 8(a)(5), and there is no complaint allegation that the
subcontract was also unlawful under Sec. 8(a)(3), there is no basis for
our finding that the subcontract was part of Voith’s unlawful hiring
scheme. The record refutes this contention. Par. 6 of the complaint
alleges that Aerotek was an agent of Voith for purposes of hiring
Voith’s employees, and the judge so found. Thus, as Voith’s agent in
filling positions with non-Teamsters workers, Aerotek actively partici-
pated in the 8(a)(3) conduct by Voith to avoid hiring Teamsters-
represented employees of predecessor employer Auto Handling. See,
e.g., fn. 17, infra.
Contrary to our colleague, the positions that Aerotek assisted in fill-
ing pursuant to the 8(a)(3) hiring scheme were not limited to the 85
positions that he agrees were unlawfully denied to discriminatees. The
hiring scheme also included contracting out some of the unit work to
Aerotek. In these circumstances, there was no need to allege the sub-
contract as a separate 8(a)(3) violation. The fact remains that by engag-
ing in its unlawful hiring scheme, which included the subcontracting to
Aerotek, Voith did not conduct itself as a lawful Burns successor and
therefore, as discussed above, it was not entitled to rely on the “sub-
stantial and representative complement” defense that our colleague
seeks to apply to the 8(a)(5) subcontracting allegation.
tion 8(a)(1) by telling an applicant that if he was hired,
he would have to become a member of the UAW; Sec-
tion 8(a)(1) by informing an applicant that in order to be
hired, he would have to refrain from engaging in Section
7 activity; and Section 8(a)(1) by denying the Teamsters
access to its employees while granting access to the
UAW.
For the reasons set forth below, we also find, contrary
to the judge, that Respondent Voith violated Section
8(a)(1) by threatening to discharge employees if they did
not wear safety vests bearing the UAW logo. In addi-
tion, we agree with the General Counsel and the Charg-
ing Party that the judge’s decision should be clarified
with respect to which employees are entitled to remedial
relief in this case. We find, consistent with our reading
of the judge’s findings concerning unfair labor practices,
that reinstatement and backpay remedies should be
awarded to all 166 employees on Auto Handling’s sen-
iority list, not just the 85 employees listed in the com-
plaint and attachment A of the judge’s decision, as well
as to any Teamsters Local 89-affiliated individuals who
were not on the Auto Handling seniority list but who
filed individual applications with Voith. We also grant
the General Counsel’s request that Voith be ordered to
make whole any employees whose hiring was delayed on
account of its discriminatory hiring scheme for any loss-
es resulting from the delay in hiring them. We shall,
however, deny the General Counsel’s and the Charging
Party’s request that Voith be ordered to remit to the
Teamsters dues that would have been deducted and re-
mitted to it had Voith recognized the Teamsters as the
employees’ bargaining representative.
1. As stated above, we find that Voith unlawfully
threatened to discharge employees if they did not wear
Voith/UAW safety vests. On May 31, 2012, Voith Re-
gional Manager Bret Griffin met with a number of full-
time Voith employees and informed them that they
would be required to wear new safety vests emblazoned
with a Voith/UAW logo. Employee Brenda Helm ob-
jected, pointing out that she was a Teamsters member
and preferred to wear her old safety vest. Griffin replied,
“You will go home, if you do not wear the vest.” All of
the employees who attended the May 31 meeting ulti-
mately accepted the proffered UAW safety vests and
wore them for the remainder of the workday.
At a meeting the next day, Griffin informed the em-
ployees that they were no longer required to wear the
Voith/UAW safety vests. Griffin then stated that he had
been told by a representative of the NLRB that the Re-
gion intended to issue a complaint alleging that Voith
had an obligation to recognize the Teamsters as the ex-
clusive collective-bargaining representative of the vehi-
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cle processing employees. Griffin told the employees
that no one was going to tell him who would represent
Voith employees, but that employees should call the
NLRB if they had any questions. He told the employees
that in his experience there had to be a secret-ballot elec-
tion conducted by the Board to determine the bargaining
representative, and that if anybody approached the em-
ployees about a union and they felt uncomfortable,
please let him know. After the meeting, the employees
who were Teamsters members removed their
Voith/UAW safety vests and no longer wore them.
The judge found, and we agree, that Griffin’s state-
ment to Helm was inherently coercive, and that because
the UAW was not the duly constituted exclusive collec-
tive-bargaining representative, requiring employees to
wear safety vests with the Voith/UAW logo would vio-
late the Act.8 Nevertheless, the judge dismissed the alle-
gation, finding that Voith effectively repudiated the vio-
lation under Passavant Memorial Area Hospital, 237
NLRB 138 (1978). The judge found that Griffin cured
the violation by countermanding the vest-wearing re-
quirement within 24 hours. The judge noted that Helm
was not disciplined nor sent home on May 31, and that
former Auto Handling employees and Teamsters mem-
bers continue to wear Teamsters T-shirts while at work
without retaliation by Voith.
The General Counsel and the Charging Party except to
the judge’s dismissal, arguing that the Passavant re-
quirements were not satisfied. We agree. Under
Passavant, repudiation must be timely, unambiguous,
specific in nature to the coercive conduct, and free from
other proscribed illegal conduct. Here, although the at-
tempted repudiation was timely and specific in nature to
the coercive conduct, it was not unambiguous. Voith did
not admit any wrongdoing, nor did Voith make clear that
employees have the right to refrain from engaging in
union activity. See Holdings Acquisition Co. L.P. d/b/a
Rivers Casino, 356 NLRB 1151, 1152–1153 (2011) (em-
ployer did not effectively repudiate its misconduct be-
cause it “did not admit any wrongdoing” and failed to
assure employees that it “would not interfere with em-
ployee rights in the future”). Further, the attempted re-
pudiation on June 1 was clearly not free from other pro-
scribed conduct. During the meeting at which the at-
tempted repudiation occurred, Griffin informed the em-

8 Citing Lee v. NLRB, 393 F.3d 491 (4th Cir. 2005), our colleague
finds that this threat would have been unlawful even if the UAW had
been the representative of Voith’s employees at the time the threat was
made. We find it unnecessary to decide that issue. We are not, as our
dissenting colleague suggests, implying that Voith would not have
violated the Act had the UAW been the employees’ duly constituted
collective-bargaining representative. As stated above, we are not pass-
ing on that issue.
ployees that he had been told by the NLRB that the Re-
gion intended to issue a complaint alleging that Voith
had an obligation to recognize the Teamsters as the ex-
clusive collective-bargaining representative of the vehi-
cle processing employees, but that no one was going to
tell him who would represent Voith employees. In addi-
tion, later that day, Griffin unlawfully denied Teamsters
Local 89’s request for access to employees. In these
circumstances, we cannot find that the repudiation of the
vest requirement occurred in an atmosphere free from
proscribed conduct. Accordingly, we reverse the judge’s
dismissal of this complaint allegation and find that Voith
violated Section 8(a)(1) by threatening to discharge em-
ployees if they did not wear a safety vest bearing a UAW
logo.
2. We also agree with the judge that Voith unlawfully
recognized the UAW as the representative of the vehicle
processing employees. The judge found, and we agree,
that the February 22 recognition was based on authoriza-
tion cards that were tainted by Voith’s unlawful assis-
tance and the UAW’s coercive methods in obtaining
them, and recognition was premature because, as of that
date, the employees were not yet performing vehicle pro-
cessing work and Voith had not yet hired a representative
complement of vehicle processing employees. We agree
with the judge that there is no merit in Voith’s claims
that it was required to recognize the UAW on February
22, 2012, under various theories relating to accretion and
after-acquired clauses.
We also agree with the judge that Voith was not re-
quired to recognize the UAW under the Board’s Gitano
“relocation of work doctrine.”9 Voith asserts that, by
using janitorial employees from a preexisting UAW-
represented unit to fill the initial vehicle processing posi-
tions, Voith transferred a portion of the janitorial unit to
a new facility, and the transferred janitorial employees
then constituted the majority of the employees who were
to perform vehicle processing work. In response, the
General Counsel asserts that the janitorial employees
were not actually transferred to vehicle processing posi-
tions as of February 22 and, in any event, that the trans-

9 Gitano Group, Inc. and U.S. Outerwear, Single and Joint Employ-
ers, d/b/a Gitano Distribution Center, 308 NLRB 1172, 1175 (1992).
Under Gitano, when an employer transfers a portion of its unit employ-
ees from one location to a new location, there is a rebuttable presump-
tion that the unit at the new facility constitutes a separate appropriate
unit. If this presumption is not rebutted, the Board applies a “simple
fact-based majority test” to determine whether the employer is obligat-
ed to recognize and bargain with the union as the representative of the
unit at the new facility. If a majority of the employees in the unit at the
new facility are transferees from the original bargaining unit, the Board
will presume that those employees continue to support the union and
will find that the employer is obligated to recognize and bargain with
the union as the representative of the employees in the new unit.
VOITH INDUSTRIAL SERVICES, INC. 5
fers were part of its unlawful scheme to avoid hiring the
predecessor’s employees, and that there was no new fa-
cility and no relocation of janitorial work. Although
Voith hired employees as janitors and then eventually
transferred them into vehicle processing positions, no
work was relocated from the janitorial operation inside
the LAP to the vehicle processing operation in the yard.
For all these reasons, Gitano is inapplicable here, and we
adopt the judge’s finding that Voith’s recognition of the
UAW was invalid and violated Section 8(a)(2) and (1) of
the Act.
3. Relying on Anthony’s Painting, LLC, 357 NLRB
No. 62 (2011) (not reported in Board volumes), the Gen-
eral Counsel and the Charging Party except to the
judge’s failure to order Voith to reimburse the Teamsters
for dues that would have been withheld and remitted had
Voith recognized the Teamsters as bargaining representa-
tive, as it was legally required to do. Respondent Voith
argues that a dues reimbursement remedy is not appro-
priate here. It maintains that a successor employer is not
obligated to adopt or be bound by the predecessor’s col-
lective-bargaining agreement, and that absent a collec-
tive-bargaining agreement, an employer may not remit
money to a union in the form of employee union dues.
For the following reasons, we find that the requested
dues reimbursement remedy is not appropriate in this
case.
Anthony’s Painting, supra, relied on by the General
Counsel and the Charging Party as their sole support for
the requested dues reimbursement remedy, was not a
successorship case. In that default judgment case, the
complaint alleged that the employer violated Section
8(a)(5) and (1) by withdrawing recognition from the un-
ion and repudiating an 8(f) collective-bargaining agree-
ment during the term of the agreement. The complaint
specified that the repudiation included, inter alia, the
failure to deduct and/or remit union dues pursuant to
employee checkoff authorizations. The Board’s Order
included a provision requiring the employer to deduct
and remit to the union any dues that should have been,
but were not, deducted from employee paychecks pursu-
ant to valid dues-checkoff authorizations.
Unlike in Anthony’s Painting, the complaint in this
case did not allege the failure to withhold and remit dues
to the Teamsters as a separate 8(a)(5) violation. Moreo-
ver, the General Counsel and the Charging Party have
not cited any successorship-avoidance cases in which a
dues reimbursement remedy has been included as part of
the status quo ante remedy for the unlawful setting of
initial terms and conditions of employment.10 Accord-
ingly, we decline to include lost Teamsters dues as part
of the status quo remedy for Voith’s unlawful unilateral
changes.
4. The remaining issues concern the scope of the
8(a)(3) findings and related remedies. It is clear from the
judge’s decision that his refusal-to-hire findings and rec-
ommended instatement and backpay remedies apply to
the former Auto Handling employees who filed employ-
ment applications with Voith. Those 85 individuals are
listed on attachment A of the judge’s decision. The Gen-
eral Counsel and the Charging Party except to the
judge’s failure to clearly find refusals to hire and provide
reinstatement and backpay remedies for two additional
categories of discriminatees: (1) the remaining 81 appli-
cants on the Auto Handling seniority list, who did not
file separate applications with Voith, and (2) 101 addi-
tional Teamsters-affiliated applicants who had not previ-
ously been employed by Auto Handling. Although it
appears that the judge intended to find violations and
provide remedies for all of those individuals, we agree
with the General Counsel and the Teamsters that the
judge’s decision needs clarification.11 For the following
reasons, we find that the two additional categories of
employees are properly encompassed in the 8(a)(3) find-
ings and entitled to instatement and backpay.

10 Auto Handling’s collective-bargaining agreement with the Team-
sters, the National Master Automobile Transporters Agreement, Central
and Southern Area Supplemental Agreements and Local Rider
(NMATA), expired by its terms in 2011, before Voith took over the
LAP vehicle processing work. Under Bethlehem Steel Co. (Shipbuild-
ing Division), 136 NLRB 1500 (1962), remanded on other grounds sub
nom. Industrial Union of Marine & Shipbuilding Workers of America,
AFL–CIO v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S.
984 (1964), any dues-checkoff obligation under that collective-
bargaining agreement also would have expired in 2011, before Voith
incurred its successorship obligation. Although Bethlehem Steel was
subsequently overruled in Lincoln Lutheran of Racine, 362 NLRB No.
188 (2015), that decision was applied prospectively only and is not
applicable to this case. Id., slip op. at 9.
11 In his decision, the judge was inconsistent in how he referred to
the discriminatees and those individuals covered by the remedial provi-
sions of his recommended Order. For example, at various points in his
decision, recommended Order, and notice, the judge referred to the
discriminatees as “the former Auto Handling employees who were
members of the Charging Party”; “the former Auto Handling employ-
ees”; “applicants who were former employees of Auto Handling or
members of the Teamsters”; “the individuals listed in Attachment A”;
“numerous Teamster affiliated employees [who] submitted applications
to Voith” but were “not former Auto Handling employees”; “the em-
ployees set forth in Attachment A, and other similarly situated employ-
ees”; “applicants, including former employees of the predecessor em-
ployer, Auto Handling, Inc.”; “the employees of the predecessor Auto
Handling, Inc., named on Attachment A”; and “other applicants whose
applications were submitted to us by the Teamsters for vehicle pro-
cessing work.”
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Teamsters Local 89-Affiliated Applicants
Not on Auto Handling Seniority List
We agree with the General Counsel and the Charging
Party that the Board should grant a remedy to those
Teamsters Local 89-affiliated applicants who filed appli-
cations with Voith but were not on Auto Handling sen-
iority list. Paragraph 9(a) of the complaint alleges that
Voith unlawfully “established a hiring procedure and
engaged in other conduct designed to exclude and/or
limit the hiring of applicants who were former employees
of Cooper Transport [Auto Handling’s parent company]
or members of Teamsters Local 89.” (Emphasis added.)
Thus, paragraph 9(a) covers any Teamsters Local 89-
affiliated applicant, as well as any applicant who was
employed by the predecessor, Auto Handling.12
The judge found that “while not former Auto Handling
employees, numerous Teamster affiliated employees
submitted applications to Voith but were not hired or
considered for hire.” He further found that those em-
ployees “should have been considered” for the approxi-
mately 300 permanent and temporary vehicle processing
positions available during the April 2012 startup period
and subsequent months. It also appears that the judge
was contemplating instatement and make-whole reme-
dies for those additional Teamsters Local 89-affiliated
applicants because in his recommended notice to em-
ployees, after providing a remedy for the former Auto
Handling employees, he included a provision requiring
that Voith “offer, in writing, immediate and full em-
ployment to the other applicants whose applications
were submitted to us by the Teamsters for vehicle pro-
cessing work . . . and make them whole for any loss of

12 Our dissenting colleague argues that the phrase “or members of
Teamsters Local 89” is “most naturally” read as an alternative descrip-
tion of the “former employees” of Auto Handling. The complaint is not
a model of clarity, but we find it reasonable to read it to encompass
Teamsters Local 89-affiliated applicants, particularly in light of the
General Counsel’s opening statement, which began with the statement
that “this trial is about Respondent Voith’s actions in seeking to avoid a
bargaining obligation with Teamsters 89, and to establish a bargaining
relationship with its preferred union, the UAW.” Our colleague be-
lieves that this statement does not reasonably convey that the General
Counsel was alleging discrimination against Teamsters-affiliated appli-
cants who had never worked for the predecessor. This statement, how-
ever, is not limited to a bargaining obligation arising from
successorship, but is reasonably read to encompass discrimination
against Teamsters-affiliated applicants who could be expected to sup-
port the Teamsters and enable Teamsters Local 89 to achieve majority
status even if Voith were not a successor to Auto Handling. We disa-
gree with our colleague’s view that this reading is foreclosed by the
General Counsel’s failure to respond when the judge suggested, when
ruling on the General Counsel’s motion to add Patsy Bowman-Miles as
an alleged discriminatee, that her status as a discriminatee was depend-
ent on the General Counsel’s showing that she had been employed by
Auto Handling.
earnings they may have suffered by reason of our unlaw-
ful failure to hire them.” (Emphasis added.)
In support of its argument that the Teamsters Local 89-
affiliated applicants who were not previously employed
by predecessor Auto Handling should not receive a rem-
edy, Voith asserts that the class of discriminatees in the
complaint is “narrowly drawn” and is “limited to former
AHI employees only who filed an employment applica-
tion with Voith.” (Voith Ans. Br. 10.) However, as ex-
plained above, the complaint is not so limited. In our
view, the complaint allegations are broad enough to in-
clude those Teamsters Local 89-affiliated applicants who
were not on Auto Handling’s seniority list among those
who were discriminated against by Voith and should be
included in the remedy.
Moreover, the General Counsel argues, and we agree,
that because the record contains the applications of the
Teamsters Local 89-affiliated applicants, Voith was fully
apprised that they were among the class of potential
discriminatees.13 We agree with the General Counsel
that this issue was fully and fairly litigated and that the
General Counsel met his burden of showing that those
employees were unlawfully discriminated against be-
cause of their Teamsters affiliation.14 Accordingly, we
shall include the Teamsters Local 89-affiliated applicants

13 Our dissenting colleague argues that the fact that the applications
of the Teamsters Local 89-affiliated applicants were entered as exhibits
at the hearing did not reasonably inform Voith that those applicants
were at issue. Our colleague suggests that because there could be other
reasons for placing such applications in the record, they could not have
provided Voith with notice that those applicants were at issue. We find
otherwise. Par. 9(a) of the complaint refers in the disjunctive to appli-
cants who were members of Teamsters Local 89, and the General
Counsel’s opening statement clarifies the theory of the case: that the
motivation for Voith’s unlawful hiring scheme and course of conduct
was to ensure that the employees would be represented by the UAW
and not the Teamsters. In this context, the placement of applications by
Teamsters Local 89- affiliated employees into the record was sufficient
to provide notice to Voith that the discriminatory failure to hire or
consider those applicants was at issue.
14 Although Planned Building Services, Inc., 347 NLRB 70 (2006),
established that Wright Line is the appropriate framework for analyzing
the discrimination against the former Auto Handling employees, FES, a
Division of Thermo Power, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d
Cir. 2002), is the appropriate framework for analyzing the discrimina-
tion against the approximately 101 Teamsters-affiliated applicants who
were not employees of Auto Handling. Applying FES, we find that
there are sufficient positions for these discriminatees when the entire
vehicle processing work force is considered. By May 23, 2012, the
combined Voith and Aerotek work force reached 272 employees and
increased thereafter. We further find that the Teamsters Local 89-
affiliated applicants were qualified for the positions. Because Voith
hired employees for vehicle processing yard positions without any prior
experience in performing the work, it is clear that no specialized quali-
fications or experience were required. Accordingly, we find that the
General Counsel has met his FES burden to show a discriminatory
refusal to hire the Teamsters Local 89-affiliated applicants.
VOITH INDUSTRIAL SERVICES, INC. 7
who were not previously employed by Auto Handling
among those receiving instatement and make-whole rem-
edies for Voith’s unfair labor practices.15
B. Employees on the Auto Handling Seniority List
who did Not File Individual Applications
Paragraph 9(b) of the complaint alleges that Respond-
ent Voith unlawfully “failed and refused to hire or con-
sider for hire the former employees of Cooper Transport
[Auto Handling’s parent company] listed on exhibit A
[of the complaint] . . . and others similarly situated.” In
our view, all of the employees on the Auto Handling
seniority list, even those former Auto Handling employ-
ees who did not file individual applications with Voith,
are “similarly situated” within the meaning of the com-
plaint.
The vehicle processing work at the LAP was previous-
ly performed by the employees on the Auto Handling
seniority list, and those employees were covered by the
NMATA. Historically, when a new contractor took over
the vehicle processing work at the LAP, that new con-
tractor acquired the predecessor contractor’s seniority
list. Teamsters Local 89 President Fred Zuckerman ex-
plained that the NMATA seniority provisions (art. 5, sec.
5) require a successor contractor to utilize the predeces-
sor’s seniority list and that when a new contractor takes
over, “You don’t have to fill out applications. They have
to take you by virtue of the provisions that are contained
in the Collective Bargaining Agreement.” (Tr. 830.)
Zuckerman further testified that successor contractors
must “offer employment to everybody that was on [the
predecessor employer’s seniority] list.” (Tr. 836.) Based
in part on that evidence, we find that the employees on
the Auto Handling seniority list reasonably expected to
retain their positions on the seniority list no matter which
entity received the vehicle processing contract, even
without filing individual applications with the new con-
tractor. In these circumstances, we conclude that all of

15 Our colleague contends that the Board cannot require instatement
and backpay for applicants not previously employed by Auto Handling
because Voith’s unlawful conduct could not plausibly have contributed
to their lack of employment. He asserts that the record fails to establish
general antiunion hostility as a motivating factor in Voith’s hiring
decisions regarding those applicants. We disagree. Voith’s entire
course of conduct was designed so that the UAW, and not the Team-
sters, would be the bargaining representative of the unit employees.
Discriminating against Teamsters-affiliated applicants was part of that
scheme. Even if the General Counsel’s main theory of the case in-
volved discrimination against predecessor employees to avoid an im-
mediate successorship obligation, that did not preclude the General
Counsel from also alleging broader discrimination against Teamsters-
affiliated employees, in order to avoid any future bargaining obligations
and to ensure that the employees would be represented by the UAW
and not the Teamsters. As discussed above, we find that the complaint
encompasses such a theory.
the employees on the Auto Handling seniority list are
“similarly situated” to the former Auto Handling em-
ployees listed in the complaint who filed applications
with Voith.
We also find that Voith was fully apprised that these
employees were in the class of potential discriminatees
because the record contains the full Auto Handling sen-
iority list, which was attached to the Teamsters’ February
14, 2012 letter to Voith requesting that each of those
employees be notified about any opportunities for em-
ployment with Voith. Thus, Voith was clearly on notice
that Teamsters Local 89 was seeking employment for all
of the former Auto Handling employees and that the al-
legations concerning an unlawful plan to discriminate in
hiring to avoid successorship obligations involved the
entire predecessor work force.
Voith argues that expanding the class of discriminatees
to those who did not file applications would necessitate a
finding that Voith made known to prospective applicants
that it would be futile to apply. Kessel Food Markets,
287 NLRB 426, 431 (1987), enfd. 868 F.2d 881 (6th Cir.
1989), cert. denied 493 U.S. 820 (1989); State Distributing
Co., 282 NLRB 1048 (1987). Pointing out that numer-
ous Teamsters members filed applications and some
were hired, Voith asserts that here there is no “smoking
gun” and “no evidence in the subject case which would
have demonstrated that filing an employment application
with Voith was an act in futility.”16
Contrary to Voith’s contention and that of our dissent-
ing colleague, we find that Voith’s course of conduct
engendered a “climate of futility” sufficient to excuse the
failure of some of the former Auto Handling employees
to submit applications to Voith. State Distributing Co.,
supra, 282 NLRB at 1048. As early as October 2011,
Voith determined that the vehicle processing employees
would be represented by the UAW, and it was evident
that Voith would not generally be hiring former Team-
sters-represented Auto Handling employees to perform
vehicle processing work. Voith was repeatedly informed
that the skilled and experienced employees on the Auto
Handling seniority list were available to fill the positions,
but Voith never contacted Auto Handling or Teamsters
officials about hiring the experienced Auto Handling
work force, and did not solicit applications from employ-
ees on the Auto Handling seniority list. It was clear
when Voith ignored Zuckerman’s February 14, 2012
letter, as well as the many applications submitted by
former Auto Handling employees, that all of the individ-
uals on Auto Handling’s seniority list were being dis-
criminated against as a class. Instead of contacting and

16 Voith Ans. Br. 8.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hiring experienced employees on the Auto Handling sen-
iority list, Voith decided to transfer inexperienced UAW
janitorial employees to perform vehicle processing work.
At the same time, applications from former Auto Han-
dling employees were in fact being disregarded as a
class.17 Although many former Auto Handling employ-
ees did file applications despite Voith’s unlawful con-
duct, and a few were hired, this is insufficient in our
view to dispel the “climate of futility” engendered by
Voith’s conduct as a whole, including its premature and
unlawful grant of recognition to the UAW on February
22, 2012. In light of this “climate of futility,” as well as
the former Auto Handling employees’ reasonable expec-
tation that they would retain their positions on the Auto
Handling seniority list without filing individual applica-
tions with Voith, we find, contrary to our dissenting col-
league, that the former Auto Handling employees on the
Auto Handling seniority list who did not file individual
applications with Voith are within the class of
discriminatees entitled to a remedy for the violations
committed by Voith,18 along with those former Auto
Handling employees listed in Attachment A of the
judge’s decision who did file individual applications.19
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 4.
“4. Respondent Voith engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by tell-
ing an applicant that if he was hired, he would have to
become a member of the UAW; informing an applicant

17 On March 6, 2012, Sarah Curry Martinez, an account manager at
Aerotek, Inc. who was acting as Voith’s agent for hiring purposes, sent
an email to Voith’s people services manager, Timothy Bauer, notifying
him that they were “not considering” the “well over 100 people” who
applied from the Auto Handling job. GC Exh. 102. In addition, in
April 2012, when seeking applications for the temporary batch and hold
positions, instead of seriously considering the numerous applications
from employees on the Auto Handling list that it had on hand, Martinez
sought applications at a job fair and told a former Auto Handling appli-
cant that he would be hired only if he promised to refrain from striking.
Martinez also stated that she would hire “all of you” if she did not fear
that Teamsters employees would engage in strike activity.
18 Our dissenting colleague argues that providing a remedy for
nonapplicants is punitive. As noted above, however, the Board has
found it appropriate to grant remedies to nonapplicants where, as here,
an employer’s course of conduct engenders a “climate of futility” suffi-
cient to excuse the failure of a predecessor’s employees to submit ap-
plications to the successor. State Distributing Co., supra, 282 NLRB
1048.
19 As noted above, Voith hired a small number of Teamsters-
affiliated or former Auto Handling employees. The General Counsel
requests that to the extent that those employees were “belatedly hired,”
they should be made whole for any losses resulting from that delay.
We shall modify the recommended Order accordingly. Although the
record before us does not indicate whether any such losses were in-
curred, the General Counsel may raise and litigate those issues at the
compliance stage.
that in order to be hired, he would have to refrain from
engaging in Section 7 activity such as striking; threaten-
ing to discharge employees if they did not wear a safety
vest bearing the UAW logo; and denying Teamsters Lo-
cal 89 access to its employees while granting access to
the UAW.”
2. Substitute the following for Conclusion of Law 5.
“5. Respondent Voith engaged in unfair labor practices
within the meaning of Section 8(a)(2) and (1) of the Act
by rendering assistance and support to the UAW by al-
lowing the UAW to meet with employees during orienta-
tion sessions and worktime in order to urge the employ-
ees to sign membership applications and checkoff au-
thorizations; and assisting, recognizing, and bargaining
with the UAW as the collective-bargaining representative
of the employees who are employed at the Ford Motor
Company, Louisville, Kentucky assembly plant perform-
ing vehicle processing including staging, shuttle and
yard/inventory, and batch and hold work, when the UAW
did not represent an uncoerced majority of the unit em-
ployees or at a time before the commencement of Voith’s
normal vehicle processing operations when it did not
employ a representative segment of its ultimate vehicle
processing employee complement.”
3. Substitute the following for Conclusion of Law 6.
“6. Respondent Voith engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act
by implementing a plan to avoid hiring former employ-
ees of predecessor Auto Handling, Inc. or members of
the Teamsters, and discriminating against or refusing to
hire those individuals because of their concerted activi-
ties or Teamsters affiliation, or in order to avoid a
successorship obligation to recognize and bargain with
the Teamsters.”
4. Substitute the following for Conclusion of Law 7.
“7. Respondent Voith engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act
by refusing, as a successor to Auto Handling, Inc., to
recognize and bargain with the Teamsters as the repre-
sentative of the employees at the Ford Motor Company,
Louisville, Kentucky assembly plant performing vehicle
processing including vehicle staging, shuttle and
yard/inventory, and batch and hold work, concerning
their terms and conditions of employment; unilaterally
setting initial terms and conditions of employment for
unit employees without first giving notice to and bargain-
ing with the Teamsters about those changes; and unilat-
erally entering into a contract with Aerotek, Inc. to hire
individuals other than former Auto Handling employees
to perform bargaining unit work without notifying and
bargaining with Teamsters.”
5. Add the following as Conclusion of Law 9.
VOITH INDUSTRIAL SERVICES, INC. 9
“9. By the foregoing conduct, Respondent Voith has
engaged in unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.”
ORDER
A. The National Labor Relations Board orders that the
Respondent, Voith Industrial Services, Inc., Louisville,
Kentucky, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Implementing a plan to avoid hiring former em-
ployees of predecessor Auto Handling, Inc. or members
of the Teamsters, and discriminating against or refusing
to hire those individuals because of their concerted activ-
ities or Teamsters affiliation, or in order to avoid a
successorship obligation to recognize and bargain with
the Teamsters.
(b) Refusing, as a successor to Auto Handling, Inc., to
recognize and bargain with the Teamsters as the repre-
sentative of the employees at the Ford Motor Company,
Louisville, Kentucky assembly plant performing vehicle
processing including vehicle staging, shuttle and
yard/inventory, and batch and hold work, concerning
their terms and conditions of employment.
(c) Unilaterally setting initial terms and conditions of
employment for unit employees without first giving no-
tice to and bargaining with the Teamsters about those
changes.
(d) Unilaterally entering into a contract with Aerotek,
Inc. to hire individuals other than former Auto Handling
employees to perform bargaining unit work without noti-
fying and bargaining with Teamsters.
(e) Rendering assistance and support by allowing the
UAW to meet with employees during orientation ses-
sions and worktime in order to urge the employees to
sign membership applications and checkoff authoriza-
tions.
(f) Assisting, recognizing and bargaining with the
UAW as the collective-bargaining representative of the
employees who are employed at the Ford Motor Compa-
ny, Louisville, Kentucky assembly plant performing ve-
hicle processing including staging, shuttle and
yard/inventory, and batch and hold work, when the UAW
did not represent an uncoerced majority of the unit em-
ployees and at a time before the commencement of
Voith’s normal vehicle processing operations when it did
not employ a representative segment of its ultimate vehi-
cle processing employee complement.
(g) Telling an applicant that if he was hired, he would
have to become a member of the UAW.
(h) Informing an applicant that in order to be hired, he
would have to refrain from engaging in Section 7 activity
such as striking.
(i) Threatening to discharge employees if they did not
wear a safety vest bearing the UAW logo.
(j) Denying Teamsters Local 89 access to its employ-
ees while granting access to the UAW.
(k) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with Teamsters
Local 89 as the exclusive representative of the employees
in the following appropriate unit concerning terms and
conditions of employment and if an understanding is
reached, embody the understanding in a signed agree-
ment:
All employees as set forth in Article 3 of the National
Master Automobile Transporters Agree-ment, Central
and Southern Area Supplemental Agreements and the
Job Descriptions provisions of the Local Rider.
(b) Notify Teamsters Local 89 in writing that it recog-
nizes that Union as the exclusive representative of its
unit employees under Section 9(a) of the Act and that it
will bargain with that union concerning terms and condi-
tions of employment for employees in the unit.
(c) At the request of Teamsters Local 89, rescind any
departures from terms and conditions of employment that
existed immediately prior to Respondent Voith’s takeo-
ver of predecessor Auto Handling’s operation, retroac-
tively restoring preexisting terms and conditions of em-
ployment, including wage rates and benefit plans, until it
negotiates in good faith with Teamsters Local 89 to
agreement or to impasse.
(d) Make the unit employees whole, in the manner set
forth in the remedy section of the judge’s decision as
modified herein, for any losses caused by Respondent
Voith’s failure to apply the terms and conditions of em-
ployment that existed immediately prior to its takeover of
predecessor Auto Handling’s operation.
(e) Withdraw and withhold all recognition from the
UAW and its Local 862 as the exclusive collective-
bargaining representative of its vehicle processing em-
ployees unless and until the UAW has been certified by
the National Labor Relations Board as the exclusive col-
lective-bargaining representative of those employees.
(f) Within 14 days from the date of this Order, offer
employment to the former unit employees of Auto Han-
dling named in attachment A to the judge’s decision as
well as the other similarly situated employees on the Au-
to Handling seniority list, including those who did not
file individual applications with Respondent Voith, and
to any other Teamsters-affiliated applicants who filed
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
applications with Respondent Voith and would have
been hired but for its unlawful discrimination against
them, in the positions previously held by Auto Handling
employees or, if such positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed, discharging if necessary any full-time or tempo-
rary employees hired in their place. Positions shall be
offered to employees on the former Auto Handling sen-
iority list in the order they appear on that list, followed
by the other Teamsters-affiliated applicants according to
the dates appearing on their applications. If there are
insufficient positions available, the remaining employees
shall be placed on a preferential hiring list.
(g) Make the employees referred to above in paragraph
2(f) whole for any loss of earnings and other benefits
they may have suffered by reason of Respondent Voith’s
unlawful refusal to hire them, in the manner set forth in
the remedy section of the judge’s decision as modified
herein.
(h) Within 14 days from the date of this decision, re-
move from its files any reference to the unlawful refusal
to hire the employees described above in paragraph 2(f),
and within 3 days thereafter, notify them in writing that
this has been done and that the refusal to hire them will
not be used against them in any way.
(i) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters for each employee.
(j) Make whole any Teamsters-affiliated employees
who were “belatedly hired” as a result of Respondent
Voith’s discriminatory failure to timely hire them, for
any loss of earnings and other benefits they may have
suffered by reason of Respondent Voith’s unlawful re-
fusal to timely hire them, plus interest.
(k) Rescind its contract with Aerotek, Inc. to perform
work which otherwise would have been performed by the
employees on the Auto Handling seniority list or other
Teamsters-affiliated applicants, and offer any jobs creat-
ed by this rescission to the employees described above in
paragraph 2(f), as set forth therein.
(l) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(m) Within 14 days after service by the Region, post
copies of the attached notice marked “Appendix A.”20
Copies of the notice, on forms provided by the Regional
Director for Region 9, after being signed by Respondent
Voith’s authorized representative, shall be posted by Re-
spondent Voith and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent Voith to ensure that the
notices are not altered, defaced, or covered by any other
material. If Respondent Voith has gone out of business
or closed the facility involved in these proceedings, Re-
spondent Voith shall duplicate and mail, at its own ex-
pense, a copy of the notice to all employees on the Auto
Handling seniority list and all current employees and
former employees employed by Respondent Voith at any
time since January 31, 2012.
(n) Post at the same places and under the same condi-
tions, copies of Appendix B as soon as it is forwarded by
the Regional Director.
(o) Within 14 days after service by the Region, hold a
meeting or meetings, scheduled to ensure the widest pos-
sible attendance, at which the attached notice, Appendix
A, is to be read to the employees by a responsible man-
agement official or, at Respondent Voith’s option, by a
Board agent in that official’s presence. Respondent
Voith shall also afford Teamsters Local 89, through the
Regional Director, reasonable notice and opportunity to
have a representative present when the notice is read to
employees.
(p) Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
B. The National Labor Relations Board orders that the
Respondent, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, AFL–CIO and

20 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
VOITH INDUSTRIAL SERVICES, INC. 11
Local 862, their officers, agents, and representatives,
shall
1. Cease and desist from
(a) Accepting assistance and support from Respondent
Voith in order to meet with employees to urge them to
sign membership applications and checkoff authoriza-
tions.
(b) Obtaining recognition from Respondent Voith at a
time that the UAW does not represent an uncoerced ma-
jority in the unit and when Respondent Voith has not
started normal vehicle processing operations nor em-
ployed in the unit a representative segment of its ultimate
vehicle processing employee complement.
(c) Accepting recognition from Respondent Voith un-
less it is certified by the National Labor Relations Board
as the exclusive collective-bargaining representative of
its vehicle processing employees.
(d) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its offices and meeting halls copies of the attached notice
marked “Appendix B.”21 Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the UAW’s authorized representative,
shall be posted by the UAW and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees and members are customari-
ly posted. Reasonable steps shall be taken by the UAW
to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(b) Within 14 days after service by the Region, sign
and return to the Regional Director sufficient copies of
Appendix B for posting by Respondent Voith at all plac-
es where notices to employees are customarily posted.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 9 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

21 See fn. 20, supra.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. February 17, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring in part and dissenting in
part.
In this case, the Board finds that Voith Industrial Ser-
vices, Inc. (the Respondent or Voith) attempted to avoid
becoming a legal “successor” by refusing to hire 85
Teamsters-represented applicants who previously worked
for its predecessor, Auto Handling, Inc.1 I agree that
Voith should be considered a legal successor whose re-
fusal to recognize and bargain with Teamsters Local 89
(the Union) violated Section 8(a)(5) of the National La-
bor Relations Act (the NLRA or the Act). I also agree
that Voith’s discriminatory refusal to hire the 85 appli-
cants violated Section 8(a)(3). However, my colleagues
and I part ways regarding three aspects of this case.
First, I believe my colleagues violate due process prin-
ciples and exceed the Board’s remedial authority. Rather
than imposing the standard remedies formulated by the
judge by requiring Voith to make whole and offer em-

1 Successorship cases are those involving a transition in employers,
most often caused by the sale of a business or contract rebidding. For
example, here, Auto Handling, Inc. provided vehicle processing and
inventory management services at Ford Motor Company’s, Louisville,
Kentucky assembly plant under a contract with Ford, and in 2012 Ford
awarded the contract to Voith. In these cases, the new employer must
recognize and bargain with the predecessor’s union if there is sufficient
business continuity and a “workforce majority,” i.e., if a majority of the
successor’s work force consists of represented employees who were
previously employed by the predecessor. NLRB v. Burns Security
Services, 406 U.S. 272 (1972); Fall River Dyeing & Finishing Corp. v.
NLRB, 482 U.S. 27 (1987). However, even if the new employer is
considered a legal “successor” obligated to recognize and bargain with
the union, the Supreme Court has held it has the right to unilaterally set
different initial employment terms, and it is not required to adopt the
predecessor’s collective-bargaining agreement. Id. If the new employ-
er engages in antiunion discrimination during hiring to avoid having a
work force majority in an effort to defeat “successor” obligations, this
violates Sec. 8(a)(3) of the Act, and the Board will require the succes-
sor to recognize and bargain with the union. Love’s Barbeque Restau-
rant No. 62, 245 NLRB 78, 81–82 (1979), enfd. in relevant part sub
nom. Kallmann v. NLRB, 640 F.2d 1094 (9th Cir. 1981).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployment to the 85 applicants it unlawfully refused to
hire, my colleagues order Voith to provide these same
remedies to 182 additional beneficiaries even though (i)
none of these 182 additional beneficiaries were identified
in the complaint; (ii) 101 of the additional beneficiaries
never worked for the predecessor, Auto Handling; and
(iii) 81 of the additional beneficiaries never applied for
employment with Voith. I believe the inclusion of these
182 additional individuals in the Board’s remedy violates
fundamental principles of due process. I also believe
their inclusion exceeds the Board’s remedial authority,
and the evidence is insufficient to establish an independ-
ent finding of liability as to these individuals.
Second, for reasons that I previously explained in CNN
America, Inc. and Team Video Services, LLC,2 I dissent
from the majority’s finding that the Respondent violated
Section 8(a)(5) by unilaterally establishing initial terms
and conditions of employment. Under well-established
Supreme Court precedent, a successor employer has the
right to set different initial employment terms even
though it must otherwise recognize and bargain with the
predecessor’s union. NLRB v. Burns Security Services,
supra; Fall River Dyeing & Finishing Corp. v. NLRB,
supra.3
Third, I disagree with my colleagues’ finding that
Voith violated Section 8(a)(5) by failing to give the Un-
ion notice and the opportunity for bargaining over the
outsourcing of certain work to another company,
Aerotek, Inc.4 When this subcontracting decision was
made, Voith did not yet have a “substantial and repre-
sentative complement” of employees, one of the condi-
tions that must be satisfied before a new employer will
have 8(a)(5) “successorship” obligations. Thus, in my
view, the Board cannot properly find that Voith violated
Section 8(a)(5) when it outsourced work to Aerotek.5

2 361 NLRB No. 47, slip op. at 43–44 (2014) (Member Miscimarra,
concurring in part and dissenting in part).
3 As explained below and in my partial dissent in CNN America, I
disagree with this aspect of Love’s Barbeque Restaurant No. 62, supra,
where the Board held that a successor that engages in antiunion dis-
crimination in an effort to avoid successorship obligations forfeits its
legal right to unilaterally set different initial employment terms.
4 A decision to engage in outsourcing—to have work performed by a
third-party contractor—is also sometimes referred to as subcontracting.
Although these terms might sometimes have different meanings, I use
the two terms interchangeably in this opinion.
5 I agree with my colleagues that Voith violated Sec. 8(a)(1) by
threatening to send employees home if they refused to wear a safety
vest bearing the logos of the United Auto Workers (the UAW) and
Voith. However, my colleagues base their finding on the fact that “the
UAW was not the duly constituted exclusive collective-bargaining
representative” of Voith’s employees, implying that Voith would not
have violated the Act had the UAW been the employees’ duly consti-
tuted bargaining representative. I do not agree that Voith’s conduct
would have been lawful if the UAW had been the representative of
Discussion
A.The Board Cannot Order Relief for Individuals
who were Not Identified in the Complaint,
who did Not Work for the Predecessor, or
who did Not Apply for Employment with Voith
“‘To satisfy the requirements of due process, an ad-
ministrative agency must give the party charged a clear
statement of the theory on which the agency will proceed
with the case.’” Lamar Central Outdoor d/b/a Lamar
Advertising of Hartford, 343 NLRB 261, 265 (2004)
(quoting Yellow Freight System, Inc. v. Martin, 954 F.2d
353, 357 (6th Cir. 1992)); see also KenMor Electric Co.,
Inc. and H&J Electric Co. and Louis P. Lee d/b/a L.L.
Electric Co. and Independent Electrical Contractors of
Houston, Inc., 355 NLRB 1024, 1029 (2010) (“Due pro-
cess requires that a respondent have notice of the allega-
tions against it so that it may present an appropriate de-
fense.”), enf. denied sub nom. Independent Electrical
Contractors of Houston, Inc. v. NLRB, 720 F.3d 543 (5th
Cir. 2013); The Earthgrains Co., 351 NLRB 733, 735
(2007) (“The fundamental elements of procedural due
process are notice and an opportunity to be heard.”).
Typically, appropriate notice is furnished by the allega-
tions set forth in the complaint. KenMor Electric, supra.
However, the Board will also consider any representa-
tions made by the General Counsel on a timely basis dur-
ing the course of litigation concerning the theory of the
alleged violation. See Ozburn-Hessey Logistics, LLC,
362 NLRB No. 180, slip op. at 4 (2015); Iron Workers
Local 118, International Association of Bridge and
Structural Ironworkers, AFL–CIO (Pittsburgh Des
Moines Steel Co.), 257 NLRB 564, 565–566 (1981),
enfd. 720 F.2d 1031 (9th Cir. 1983).
Here, neither the charge, the complaint, nor any repre-
sentation made by attorneys representing the General

Voith’s employees at the time. Sec. 7 protects the right of employees
to refrain from wearing union insignia, and this right is unaffected by
whether or not the union is a certified or recognized representative. See
Lee v. NLRB, 393 F.3d 491 (4th Cir. 2005) (holding that employer and
lawful collective-bargaining representative violated the Act by entering
into an agreement requiring bargaining unit employees to wear a uni-
form bearing union and company logos).
I also believe my colleagues erroneously state that Voith is required
to post Respondent UAW’s notice to employees. Consistent with the
Board’s standard practice, the UAW should be ordered to sign and
return to the Regional Director sufficient copies of the notice for post-
ing by the respondent employer if it is “willing” to do so. See, e.g., CC
1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers, 362
NLRB No. 125, slip op. at 5 (2015); Dean Transportation, Inc., 350
NLRB 48, 62 (2007); Northwest Protective Service, Inc., 342 NLRB
1201, 1212 (2004); North Hills Office Services, 342 NLRB 437, 447
(2004); St. Helens Shop ‘N Kart, 311 NLRB 1281, 1288 (1993); New-
port News Shipbuilding and Dry Dock Company, 253 NLRB 721, 734
(1980).
VOITH INDUSTRIAL SERVICES, INC. 13
Counsel put Voith on notice that it was alleged to have
discriminated in hiring against 182 individuals who ei-
ther never applied for employment with Voith or never
worked for Voith’s predecessor, Auto Handling. From
the filing of the unfair labor practice charges to the close
of the hearing, the 8(a)(3) hiring allegations were framed
and litigated exclusively on the theory that Voith en-
gaged in hiring discrimination against applicants (i.e.,
individuals who submitted employment applications to
Voith) who had previously worked for Auto Handling.
The charge filed on April 12, 2012, alleged that Voith
“refused to hire, or consider for hire, the employees of its
predecessor employer at that location, Auto Handling,
Inc., a subsidiary of Jack Cooper Transport Company,
because such employees are Teamsters members and
have designated Teamsters Local Union No. 89 as their
collective-bargaining representative, in order for Voith to
attempt to avoid its bargaining obligations regarding the
terms and conditions of employment of such employees
as the successor Employer at that location.”
Similarly, the complaint alleged that Voith unlawfully
refused to hire applicants who had worked for the prede-
cessor employer in an attempt to avoid a successor bar-
gaining obligation:
9 (a) About January 31, 2012, Respondent Voith im-
plemented a plan to hire about 84 employees and estab-
lished a hiring procedure and engaged in other conduct
designed to exclude and/or limit the hiring of applicants
who were former employees of Cooper Transport6 or
members of Teamsters Local 89.
(b) Since about February 17, 2012, Respondent Voith
has failed and refused to hire or consider for hire the
former employees of Cooper Transport listed on Exhib-
it A attached hereto, who were members of the [Team-
sters Local 89] bargaining unit described below in par-
agraph 10, and others similarly situated.
(c) Respondent Voith engaged in the conduct de-
scribed above in paragraphs 9(a) and (b) because the
former employees of Cooper Transport were members
of Teamsters Local 89, engaged in concerted activities,
and to discourage employees from engaging in these
activities and in order to avoid an obligation to recog-
nize and bargain with Teamsters Local 89 as the exclu-
sive collective-bargaining representative of the em-
ployees described below in paragraph 10.7

6 Predecessor Auto Handling was a subsidiary of Cooper Transport.
7 Complaint pars. 9(a)-(c) (emphasis added).
Even more explicit is appendix A to the complaint, as
amended at the hearing, which is referred to in complaint
paragraph 9(b) above. Appendix A identifies 85 alleged
discriminatees by name, all of whom have two attributes
in common, consistent with the premise of the unfair
labor practice charges and the text of the complaint: (i)
each listed discriminatee previously worked for prede-
cessor employer Auto Handling, and (ii) each listed
discriminatee submitted an application for employment
to the Respondent. Appendix A of the complaint, as
amended, does not name a single person in either of the
two large groups added to the Order by the majority to-
day. As noted previously, these 182 additional individu-
als include 101 Teamsters-affiliated individuals who
never worked for predecessor Auto Handling (I call these
individuals the “101 nonpredecessor applicants”) and 81
former employees of Auto Handling who never applied
for employment with Voith (I call these individuals the
“81 nonapplicants”).
There is no doubt that the General Counsel knew the
identities of the 101 nonpredecessor applicants and the
81 nonapplicants at the time of the hearing. This is clear
because the General Counsel introduced into evidence (i)
Auto Handling’s seniority list, which contained the
names of the 81 nonapplicants (as well as the names of
the 85 Auto Handling employees who did apply for jobs
with Voith), and (ii) the employment applications sub-
mitted to Voith, which included the 101 nonpredecessor
applicants.
Not only did the General Counsel fail to put Voith on
notice that he was seeking relief for individuals in addi-
tion to the discriminatees named in appendix A to the
complaint, the attorneys representing the General Coun-
sel at the hearing confirmed that only former employees
of Auto Handling who applied to Voith for employment
were at issue. Thus, during the hearing, the General
Counsel moved to amend appendix A to add one more
individual, Patsy Bowman-Miles, to the list of alleged
discriminatees. The Respondent’s counsel objected to
the proposed amendment, arguing that he was “unaware
of any basis to support the notion that she was an em-
ployee of Auto Handling, Inc. as alleged . . . in the Com-
plaint with respect to the remainder of Appendix A.”
The judge responded that the General Counsel would
bear the burden of proving that Bowman-Miles had been
an employee of the predecessor and granted the motion
to amend the complaint “with that understanding.”
Counsel for the General Counsel never argued it was
immaterial whether Bowman-Miles worked for the pre-
decessor, which it would have been if the General Coun-
sel was also alleging unlawful discrimination against
persons who had never been employed by Auto Han-
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dling. This reinforces the fact that the General Counsel’s
hiring discrimination allegations were limited to alleged
antiunion discrimination against former employees of
Auto Handling, perpetrated by Voith in an attempt to
avoid a successor bargaining obligation. Only after the
hearing’s conclusion did the General Counsel make any
argument—in his posthearing brief to the judge—that
Voith also engaged in unlawful antiunion discrimination
against the 81 nonapplicants and the 101 nonpredecessor
applicants.
Any theory of 8(a)(3) discrimination regarding the 101
nonpredecessor applicants and the 81 nonapplicants
would have to involve questions of proof materially dif-
ferent from those relevant to the complaint’s 8(a)(3) alle-
gations, which related exclusively to former Auto Han-
dling employees who applied for positions with Voith.
The General Counsel’s theory alleged in the complaint
and litigated at the hearing involved alleged discrimina-
tion by Voith to avoid a finding of successorship. Under
Burns and Fall River Dyeing, supra, a new employer’s
potential 8(a)(5) bargaining obligations depend in part on
whether a majority of the successor’s employees consist-
ed of union-represented employees who worked for the
predecessor. Under this theory, the only potential
discriminatees encompassed by the complaint were for-
mer employees of Auto Handling (the predecessor)
whose applications for employment with Voith were un-
lawfully denied.
Had the General Counsel put forward at the hearing
any theory of discrimination regarding the 101
nonpredecessor applicants (people who applied to Voith
but were never employed by Auto Handling), Voith
would have had an opportunity to introduce evidence
regarding why particular nonpredecessor applicants were
not hired. However, this opportunity was denied to
Voith, since it had no notice that these individuals were
at issue. Voith had no reason to introduce evidence re-
garding the 101 nonpredecessor applicants because the
theory of the complaint did not pertain to these individu-
als.
Regarding the 81 nonapplicants (former Auto Han-
dling employees who never applied for Voith positions),
I have difficulty understanding how the General Counsel
could even claim hiring discrimination by Voith, since
they did not even apply for positions with Voith. The
General Counsel’s theory through the end of the hearing
clearly did not encompass the 81 nonapplicants. As not-
ed previously, a Burns/Fall River “successorship” analy-
sis turns on whether Voith hired, as a majority of its
work force, applicants who previously worked for prede-
cessor Auto Handling. This analysis would be complete-
ly unaffected by former Auto Handling employees who
did not even submit applications to Voith. Had such a
theory been introduced before the close of the hearing,
Voith would have had an opportunity to explain why
hiring decisions were limited to individuals who submit-
ted applications, or it could have otherwise introduced
evidence regarding why it did not hire the nonapplicants.
Again, these opportunities were denied to Voith based on
the absence of notice that the 81 nonapplicants were at
issue.
My colleagues recognize they have a due process
problem in awarding a remedy based on violations that
(i) were not alleged in the complaint; (ii) were not the
subject of timely representations by the General Coun-
sel’s attorneys at the hearing modifying the theory of the
General Counsel’s case; and (iii) more than tripled the
number of individuals who must be hired (or placed on a
preferential hiring list) with backpay by the Respondent.
To deal with this problem, the majority embraces three
arguments that, in my view, are strained to a degree that
reinforces a much more obvious point: neither the com-
plaint, nor the hearing, nor the evidentiary record pro-
vides reasonable support for the posthearing remedial
expansions sought by the General Counsel and granted
by the majority. Nonetheless, I will briefly address each
of the three arguments in turn.
First, my colleagues look in isolation at complaint par-
agraph 9(a), which states in part that Voith “established a
hiring procedure . . . designed to exclude and/or limit the
hiring of applicants who were former employees of [Au-
to Handling] or members of Teamsters Local 89.” Ac-
cording to the majority, Voith should have realized from
the word “or” that the complaint alleges discrimination
against all “members of Teamsters Local 89,” even if
those members were never Auto Handling employees
(i.e., the 101 nonpredecessor applicants), and even if
those members never even applied for jobs with Voith
(i.e., the 81 nonapplicants). I believe this interpretation
is unreasonable. Viewed in context, the phrase “or
members of Teamsters Local 89” in subparagraph 9(a) is
most naturally read as an alternative description of the 85
alleged discriminatees named in appendix A—i.e., the
“former employees” of Auto Handling, who could also
accurately be referred to as “members of Teamsters Lo-
cal 89,” who Voith refused to hire in an attempt to avoid
legal “successor” status. This mirrors the structure of
subparagraph 9(b), which states Voith unlawfully refused
to hire “the former employees of Cooper Transport listed
on Exhibit A attached hereto, who were members of the
[Teamsters Local 89] bargaining unit,” and of subpara-
graph 9(c), which states the unlawful refusals occurred
“because the former employees of [Auto Handling] were
members of Teamsters Local 89.”
VOITH INDUSTRIAL SERVICES, INC. 15
The majority’s interpretation of the word “or” and the
phrase “or members of Teamsters Local 89” in subpara-
graph 9(a) disregards the fact that the entire theory of
violation expressed in the charge and in paragraph 9 of
the complaint was premised on Voith’s alleged effort to
avoid having a successor “obligation to recognize and
bargain” (par. 9(c)), which (as noted above) had no logi-
cal connection to the 101 nonpredecessor applicants or
the 81 nonapplicants. The majority’s interpretation also
disregards the exchange during the hearing about the
newly identified alleged discriminatee, Bowman-Miles,
in which the judge indicated that the General Counsel
would have to prove that Bowman-Miles had worked for
Auto Handling. Finally, the majority’s interpretation
also disregards the fact that the alleged discriminatees
were identified by name, in exhibit A attached to the
complaint, and described in subparagraph 9(b) as the
“former employees of [Auto Handling] . . . who were
members of the [Teamsters Local 89] bargaining unit.”
Given these considerations, I believe the majority goes
too far in suggesting the phrase “or members of Team-
sters Local 89” in subparagraph 9(a) placed Voith on
notice that this litigation involved three times the number
of discriminatees listed in exhibit A, including individu-
als who—unlike the discriminatees listed in appendix
A—never worked for Auto Handling (the 101
nonpredecessor applicants) or never applied for jobs with
Voith (the 81 nonapplicants). Even giving the most lib-
eral interpretation possible to the phrase “or members of
Teamsters Local 89,” the majority’s interpretation does
not pass the test of fundamental fairness because these
words do not constitute the required “clear statement of
the theory on which the agency will proceed with the
case.” Lamar Advertising of Hartford, supra.8
Second, my colleagues find that the phrase “and others
similarly situated” at the end of subparagraph 9(b) placed
Voith on notice that the General Counsel sought instate-

8 In his opening statement at the hearing, the General Counsel stated
that “in its essence, this trial is about Respondent Voith’s actions in
seeking to avoid a bargaining obligation with Teamsters 89, and to
establish a bargaining relationship with its preferred union, the UAW.”
Contrary to the majority, that opening statement does not reasonably
convey that the General Counsel was alleging that the Respondent
violated Sec. 8(a)(3) and (1) by discriminatorily refusing to hire 101
applicants who never worked for the predecessor and were not named
in the complaint. Given that every individual identified in appendix A
is an applicant who formerly worked for the predecessor, Voith would
have reasonably understood that the referenced “actions in seeking to
avoid a bargaining obligation with Teamsters 89, and to establish a
bargaining relationship with its preferred union, the UAW” were its
unlawful refusals to hire those 85 named individuals. Nothing in the
General Counsel’s words reasonably informed Voith that it was alleged
to have discriminated against anyone other than applicants formerly
employed by the predecessor employer.
ment of and make-whole relief for the 81 nonapplicants.
Again, subparagraph 9(b) states:
(b) Since about February 17, 2012, Respondent Voith
has failed and refused to hire or consider for hire the
former employees of [Auto Handling] listed on Exhibit
A attached hereto, who were members of the [Team-
sters Local 89] bargaining unit described below in par-
agraph 10, and others similarly situated.9
To state the obvious, the phrase “others similarly situated”
contains the word “similarly.” Thus, it refers to anyone
similarly situated to the alleged discriminatees listed in ex-
hibit A—namely, “former employees of [Auto Handling] . .
. who were members of the [Teamsters Local 89] bargain-
ing unit” who Voith refused to hire. The discriminatees
listed in exhibit A shared three key characteristics: (1) they
all worked for Auto Handling (unlike the 101
nonpredecessor applicants); (2) they all applied for jobs
with Voith (unlike the 81 nonapplicants);10 (3) they all logi-
cally would have been disfavored by Voith to avoid a suc-
cessor bargaining obligation (unlike the 101 nonpredecessor
applicants and the 81 nonapplicants, none of whom logical-
ly would have been disfavored because of Voith’s desire to
avoid legal successorship). In short, the 81 non-applicants
are not “similarly situated” to the exhibit A discriminatees
in any manner that is consistent with the charge, the com-
plaint, or the General Counsel’s theory of the case through-
out the hearing. Therefore, I believe the Board cannot rea-
sonably find that the phrase “similarly situated” reasonably
placed Voith on notice that this litigation encompassed these
additional individuals.11

9 Complaint par. 9(b) (emphasis added).
10 A failure to apply is excused only where an alleged successor em-
ployer has conveyed to employees of the predecessor that submitting an
application would be futile. See, e.g., Shortway Suburban Lines, 286
NLRB 323, 326 (1987). Thus, the 81 nonapplicants are not “similarly
situated” to the individuals named in app. A because finding the Re-
spondent’s rejection of the former group unlawful would require a
significant legal analysis not applicable to the latter group. The evident
purpose of adding the phrase “others similarly situated” to subpar. 9(b)
was to preserve the General Counsel’s right to amend app. A by adding
one or more individuals previously employed by predecessor Auto
Handling who applied for employment with Voith.
In fact, as noted in the text, the General Counsel at the hearing
moved to augment exh. A with another alleged discriminatee, Patsy
Bowman-Miles, and it is significant that (i) Bowman-Miles submitted
an application to Voith (unlike the 81 nonapplicants), and (ii) the judge
granted this motion conditioned on the General Counsel proving that
Bowman-Miles had been employed by Auto Handling (unlike the 101
nonpredecessor applicants). This reinforces the fact that the 81
nonapplicants cannot reasonably be considered “similarly situated” to
the exh. A discriminatees.
11 The individuals in the group of 81 did not apply for employment
with the Respondent merely by virtue of appearing on the predecessor’s
seniority list. As the majority notes, Teamsters Local 89, by letter
dated February 14, 2012, urged the Respondent to reach out and notify
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Third, the majority finds that Voith was “fully ap-
prised” that the 101 nonpredecessor applicants were al-
leged discriminatees because their employment applica-
tions were entered as exhibits at the hearing. Including
employment applications in the record does not reasona-
bly inform Voith that the 101 nonpredecessor applicants
were at issue as claimants here. It is well established that
“the simple presentation of evidence important to a . . .
claim does not satisfy the requirement that any claim at
variance from the complaint be ‘fully and fairly litigated’
in order for the Board to decide the issue without trans-
gressing . . . due process rights.” NLRB v. Quality
C.A.T.V., Inc., 824 F.2d 542, 547 (7th Cir. 1987).12 In a
case involving alleged antiunion discrimination, the rec-
ord often contains employment applications submitted by
persons not alleged to be discriminatees. These other
employment applications are frequently used as a basis
for comparison when evaluating the reasons provided by
the employer for failing to hire the alleged
discriminatees.13 The “simple presentation” of these
additional employment applications, and their admission
as exhibits, does not reasonably provide notice of com-
pletely new or different theories that were not articulated
in the charge or complaint, nor did this reasonably place
Voith on notice that the General Counsel was seeking
instatement of and make-whole relief for more than three

the predecessor’s employees about hiring opportunities and attached the
predecessor’s seniority list. However, the Union’s letter does not con-
stitute any sort of group “application,” and there is no evidence that
Teamsters Local 89, before sending its letter, conferred with any of the
81 nonapplicants or inquired whether they wished to be employed by
the Respondent. For all the record shows, the 81 nonapplicants had
moved on to new endeavors and were not interested in working for the
Respondent.
Additionally, the majority errs in concluding that the predecessor’s
employees reasonably expected to be hired by the Respondent without
submitting an employment application simply because the president of
Teamsters Local 89 testified that the predecessor’s collective-
bargaining agreement required a successor employer to utilize the pre-
decessor’s seniority list. The predecessor’s collective-bargaining
agreement does not bind the Respondent. NLRB v. Burns International
Security Service, 406 U.S. at 281–290.
12 See also Conair Corp. v. NLRB, 721 F.2d 1355, 1372 (D.C. Cir.
1983) (“[T]he presence of evidence in the record to support a charge
unstated in a complaint or any amendment thereto does not mean the
party against whom the charge is made had notice that the issue was
being litigated.”); Cioffe v. Morris, 676 F.2d 539, 542 (11th Cir. 1982)
(“[T]he introduction of evidence relevant to an issue already in the case
may not be used to show consent to trial of a new issue absent a clear
indication that the party who introduced the evidence was attempting to
raise a new issue” (internal quotations omitted).).
13 For example, the other application, if submitted by someone who
was not hired, may support the employer’s defense if it was similar to
an application from one of the alleged discriminatees. By the same
token, the other application, if submitted by someone who was hired,
may undermine the employer’s defense if it was similar to an applica-
tion submitted by one of the alleged discriminatees.
times the number of alleged discriminatees in this case.
Satisfying the requirements of due process is critically
important, but it is not difficult: the General Counsel
must provide a “clear statement of the theory on which
the agency will proceed with the case.” Lamar Advertis-
ing of Hartford, supra. The General Counsel did so with
regard to the 85 applicants who previously worked for
Auto Handling. I believe he clearly did not do so with
regard to the 101 nonpredecessor applicants and the 81
nonapplicants.
Putting aside the due process question, I believe the
Board also exceeds its remedial authority by ordering
hiring and make-whole relief for the 81 nonapplicants
and the 101 nonpredecessor applicants. As I discussed in
HTH Corp., Pacific Beach Corp., and KOA Manage-
ment, LLC, a Single Employer, d/b/a Pacific Beach Ho-
tel,14 the Board’s remedial authority, though broad, is
strictly limited to measures that are remedial, not puni-
tive. See Republic Steel Corp. v. NLRB, 311 U.S. 7, 11–
12 (1940) (citing Consolidated Edison Co. of New York
v. NLRB, 305 U.S. 197, 235–236 (1938)); NLRB v. Penn-
sylvania Greyhound Lines, 303 U. S. 261, 267–268
(1938). The Board is not “free to set up any system of
penalties which it would deem adequate” to “have the
effect of deterring persons from violating the Act.” Re-
public Steel, 311 U.S. at 12. The Board’s authority to
devise remedies “does not go so far as to confer a puni-
tive jurisdiction enabling the Board to inflict upon the
employer any penalty it may choose because he is en-
gaged in unfair labor practices, even though the Board be
of the opinion that the policies of the Act might be effec-
tuated by such an order.” Consolidated Edison, 305 U.S.
at 235–236 (emphasis added). As the Supreme Court
stated in Republic Steel: “We do not think that Congress
intended to vest in the Board a virtually unlimited discre-
tion to devise punitive measures, and thus to prescribe
penalties or fines which the Board may think would ef-
fectuate the policies of the Act.” 311 U.S. at 11 (empha-
sis added).
In the instant case, I believe there is no plausible basis
for fashioning a remedy, logically connected to Voith’s
status as a legal “successor,” for the 101 nonpredecessor
applicants and the 81 nonapplicants. Based on the theory
of the case, the General Counsel alleged in the complaint
and litigated at the hearing—that Voith manipulated its
hiring decisions to defeat “successor” status—Voith
would have an incentive to hire the 101 nonpredecessor
applicants. Again, “successor” status under Burns and
Fall River Dyeing arises only if, among other prerequi-

14 361 NLRB No. 65, slip op. at 19 (2014) (Member Miscimarra,
concurring in part and dissenting in part).
VOITH INDUSTRIAL SERVICES, INC. 17
sites, a majority of the successor’s work force consists of
employees of the predecessor. Therefore, hiring the 101
nonpredecessor applicants—individuals who did not
work for predecessor Auto Handling—would have
helped Voith establish that it lacked a work force majori-
ty consisting of former Auto Handling employees. Stat-
ed differently, the Board cannot require Voith to hire and
give backpay to the 101 nonpredecessor applicants as a
“remedy” for Voith’s unlawful discrimination in hiring
to avoid successor status because Voith’s unlawful con-
duct could not plausibly have contributed to their lack of
employment. To the contrary, Voith’s unlawful discrim-
ination, if anything, militated in favor of their being hired
by Voith.15
The “remedy” fashioned by my colleagues is even
more clearly inappropriate in relation to the 81
nonapplicants. Again, if one accepts the theory that
Voith manipulated its hiring decisions to defeat “succes-
sor” status, Voith was only in a position to make such
decisions regarding Auto Handling employees who ap-
plied for positions with Voith. Under the General Coun-
sel’s theory of liability, the Board must fashion a remedy
for Voith’s discriminatory decisions not to hire employ-
ees of predecessor Auto Handling. This remedy can only
appropriately require Voith to hire and provide backpay
to individuals as to whom Voith actually made such “de-
cisions.” Regarding the 81 nonapplicants, Voith made
no decisions at all, since these individuals did not even
apply for jobs with Voith.16

15 As explained in the text, hiring the 101 nonpredecessor applicants
would have advanced Voith’s efforts to avoid a successor obligation
under Burns and Fall River Dyeing because their hiring would have
reduced the ratio of predecessor employees in Voith’s work force.
Putting aside Voith’s unlawful discrimination for the purpose of avoid-
ing a successor bargaining obligation, the record is devoid of evidence
sufficient to establish that general antiunion hostility was a motivating
factor in Voith’s hiring decisions regarding the 101 nonpredecessor
applicants. See Wright Line, a Division of Wright Line, Inc., 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982); see also NLRB v. Transportation Management
Corp., 462 U.S. 393 (1983).
16 As to the 81 nonapplicants, I disagree with the majority’s finding
that the Respondent conveyed to the predecessor’s employees that it
would be futile for them to submit applications. The majority seems to
suggest that the Respondent’s discriminatory hiring decisions regarding
individuals who applied for jobs with Voith imposed on it a duty to
persuade other Auto Handling employees to apply as well—and then
the majority presumes that if the nonapplicants had applied, Voith
would have discriminatorily failed to hire them. As a factual matter,
the record renders indefensible the majority’s “futility” finding because
so many of the predecessor’s employees did submit applications, and
several of these predecessor employees were hired. Moreover, as a
legal matter, this theory is unreasonable because it effectively creates a
type of “class action” litigation regarding 8(a)(3) discrimination claims,
where an employer’s discrimination regarding certain employees be-
comes the basis for finding 8(a)(3) liability regarding other employees
as to whom the employer made no hiring decision at all.
B. Voith was Not Bound by Auto Handling’s CBA
and had the Right to Unilaterally Set Different
Initial Terms of Employment
The Supreme Court has repeatedly held that a succes-
sor employer, though obligated to recognize and bargain
with the union that represented the predecessor’s em-
ployees, has no obligation to adopt the predecessor’s
collective-bargaining agreements. Fall River Dyeing
Corp. v. NLRB, 482 U.S. at 40; NLRB v. Burns Security
Services, 406 U.S. at 272. Additionally, a successor em-
ployer obligated to recognize and bargain with the prede-
cessor’s union is free to unilaterally establish its own
initial terms of employment. Id.17
I agree that Voith was a legal successor obligated to
recognize and bargain with the Union, and it unlawfully
failed to do so. I believe, however, that Voith still had a
right to unilaterally set different initial terms and condi-
tions of employment. In reliance on Love’s Barbeque,18
my colleagues find that Voith forfeited this right by en-
gaging in hiring discrimination against its predecessor’s
employees. However, as stated in my separate opinion in
CNN America, Inc.,19 I disagree with this aspect of
Love’s Barbeque because it inappropriately deviates
from the Supreme Court’s holdings in Burns, supra, and
Fall River Dyeing, supra, that a predecessor’s contractual
obligations do not bind a legal successor. If an employer
engages in discriminatory hiring in an effort to defeat
legal successor status, the appropriate remedy is to order
the employer to hire the discriminatees and make them
whole. The Board can also appropriately require a legal
successor to recognize and bargain with the predeces-
sor’s union, but the successor remains free to unilaterally
set different initial employment terms. Regarding these
issues, I believe the Board is constrained by Burns and
Fall River Dyeing, in addition to Section 8(d) of the Act,
from imposing substantive contract terms on the succes-
sor.20 See also H. K. Porter Co. v. NLRB, 397 U.S. 99,

17 In Burns, the Supreme Court recognized a limited exception to the
successor’s right to unilaterally set different initial terms of employ-
ment where “it is perfectly clear that the new employer plans to retain
all of the employees in the unit,” in which case “it will be appropriate
to have him initially consult with the employees’ bargaining representa-
tive before he fixes terms.” 406 U.S. at 294–295. The General Counsel
does not contend that the “perfectly clear” exception applies in this
case.
18 245 NLRB at 82.
19 361 NLRB No. 47, slip op. at 43–44. See also Pacific Custom
Materials, Inc., 327 NLRB 75, 75–76 (1998) (Member Hurtgen, dis-
senting).
20 Sec. 8(d) defines the obligation to “bargain collectively” as “the
performance of the mutual obligation of the employer and the repre-
sentative of the employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms and conditions
of employment, or the negotiation of an agreement or any question
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
107–108 (1970) (“It is implicit in the entire structure of
the Act that the Board acts to oversee and referee the
process of collective bargaining, leaving the results of
the contest to the bargaining strengths of the parties.”).
In this respect, I also agree with the reasoning of former
Member Hurtgen in Pacific Custom Materials, who stat-
ed: “The 8(a)(3) violations yield their own compensato-
ry remedy of reinstatement and backpay. It is excessive
and punitive to use those 8(a)(3) violations to take away
the legitimate defense to an 8(a)(5) allegation concerning
the setting of initial terms. . . . In addition, even if the
Board’s position [in Love’s Barbeque] is a permissible
one, it would seem that the position set forth herein is a
more prudent one, more balanced concerning a successor
employer’s obligations, and is more consistent with the
Supreme Court’s language.” 327 NLRB at 75–76
(Member Hurtgen, dissenting) (paragraph structure mod-
ified).21
C. Voith had No Obligation to Engage in Bargaining
Over the Aerotek Subcontracting
As a final matter, I disagree with my colleagues’ find-
ing that Voith violated Section 8(a)(5) based on a failure
to give the Union notice and the opportunity for bargain-
ing over the subcontracting of certain work to Aerotek,
Inc.22 In successorship cases, the successor employer’s

arising thereunder, and the execution of a written contract incorporating
any agreement reached if requested by either party, but such obligation
does not compel either party to agree to a proposal or require the
making of a concession . . . .” (Emphasis added.)
21 To the extent the Board continues to apply Love’s Barbeque’s
holding that a successor employer forfeits its right to set its own initial
terms when it engages in hiring discrimination, I would permit a re-
spondent to limit its make-whole liability by proving at the compliance
stage that it would not have agreed to the monetary provisions of its
predecessor’s collective-bargaining agreement and the date when and
terms on which it would have bargained either to an agreement or im-
passe. See Pressroom Cleaners, 361 NLRB No. 57, slip op. at 6–12
(2014) (Members Miscimarra and Johnson, dissenting).
22 In finding that Voith violated Sec. 8(a)(5) when it decided to sub-
contract certain work to Aerotek, my colleagues reason that this deci-
sion was part of Voith’s “discriminatory hiring scheme.” I note that the
complaint alleges that Voith’s subcontracting was unlawful because it
was done unilaterally in violation of Sec. 8(a)(5) and (1) of the Act.
See Complaint pars. 12(b) – (d), 26. The complaint does not allege that
Voith’s subcontracting was unlawful under Sec. 8(a)(3) and (1) because
Voith’s decision to subcontract was unlawfully motivated. To be sure,
as my colleagues note, par. 6 of the complaint alleges that Aerotek was
Voith’s agent for purposes of hiring Voith’s employees—and as stated
above, I join the majority in finding that Voith, through Aerotek, vio-
lated Sec. 8(a)(3) by refusing to hire the 85 individuals listed in app. A
of the complaint to avoid a successorship bargaining obligation with the
Teamsters. But the complaint’s allegations of hiring discrimination are
clearly limited to those 85 individuals. The Aerotek subcontract was
not similarly limited. In addition to screening applicants for positions
with Voith, Aerotek also supplied Voith with temporary employees
under the subcontract. The General Counsel challenged Voith’s deci-
sion to subcontract all this work solely as an unlawful unilateral action
obligation to recognize and bargain with the union com-
mences only if and when two conditions are met: (1) the
union demands recognition or bargaining; and (2) the
successor is engaged in normal operations with a “sub-
stantial and representative complement” of employees, a
majority of whom were employed by the predecessor.23
The record here establishes that, on March 1, 2012,
Voith contracted with Aerotek, a staffing agency, to fur-
nish Voith with employees to perform vehicle processing
and inventory management services, i.e., yard work.24
There is no evidence that the Respondent had begun
normal operations with a substantial and representative
complement of employees in the yard before it contract-
ed with Aerotek. Indeed, the record affirmatively estab-
lishes that Voith did not commence normal operations in
the yard until sometime between April 9 and May 1. By
the time normal operations commenced, Voith employed
approximately 300 yard workers, the vast majority of
whom had been referred to Voith by Aerotek pursuant to
the March 1, 2012 Voith-Aerotek contract. Thus, I be-
lieve the record establishes that Voith had no obligation
to provide the Union notice and the opportunity for bar-
gaining over the Aerotek subcontracting arrangement
because when this arrangement was entered into, Voith
was not engaged in normal operations with a substantial
and representative complement of employees.25

under Sec. 8(a)(5), not as a discriminatorily motivated decision under
Sec. 8(a)(3). To afford Voith due process, I believe the Board must
limit its analysis of the subcontracting allegation to established 8(a)(5)
principles. And as explained below, no 8(a)(5) violation lies here be-
cause Voith was not yet obligated to recognize and bargain with the
Teamsters when it contracted with Aerotek.
23 St. Elizabeth Manor, Inc., 329 NLRB 341, 344 fn. 8 (1999) (citing
Royal Midtown Chrysler Plymouth, 296 NLRB 1039, 1040 (1989));
Local Union No. 274, Hotel Employees & Restaurant International
Union, AFL–CIO (Stadium Hotel Partners), 314 NLRB 982, 986
(1994) (“The determination of successorship is made when the succes-
sor has begun normal operations with a substantial and representative
complement of employees.”) (internal citations omitted); Butera Finer
Foods, 296 NLRB 950, 953 (1989) (“A representative complement
exists when the successor’s job classifications have been substantially
filled and the successor is conducting normal or substantially normal
operations.”).
24 Aerotek performed two services for the Respondent. First,
Aerotek screened applicants who were ultimately hired and employed
directly by the Respondent. Second, Aerotek supplied the Respondent
with hundreds of temporary employees who were paid by Aerotek and
jointly supervised by the Respondent and seven onsite Aerotek supervi-
sors. Voith contracted with Aerotek to supply both permanent and
temporary employees well before it began normal operations with a
substantial and representative complement.
25 My colleagues note that Voith did not assert this defense. Voith
did, however, except to the judge’s finding that it had a duty to bargain
over the Aerotek subcontracting arrangement. The General Counsel, of
course, bears the burden of proving all his unfair labor practice allega-
tions, including that Voith violated Sec. 8(a)(5) by failing to give the
Union notice and opportunity to bargain over the Aerotek subcontract-
VOITH INDUSTRIAL SERVICES, INC. 19
I disagree with the majority’s finding that Voith’s suc-
cessor bargaining obligation attached before Voith began
normal operations with a substantial and representative
complement of unit employees. According to my col-
leagues, the successor bargaining obligation attached at
some earlier, unspecified point in time when Voith
hatched or began implementing its unlawful plan to dis-
criminate against applicants formerly employed by the
predecessor employer. Such a finding is contradicted by
longstanding, well-established successorship principles
that, for good reason, identify the precise point in time
when a legal successor is required to recognize and bar-
gain with the union. See, e.g., Fall River Dyeing Corp.
v. NLRB, 482 U.S. at 52 (union recognition is “prema-
ture” if demanded before the successor has retained a
“substantial and representative complement” of employ-
ees; “when a union has made a premature demand that
has been rejected by the employer, this demand remains
in force”; and the duty to recognize and bargain with the
union does not attach “until the moment when the em-
ployer attains the substantial and representative comple-
ment”) (internal quotations omitted; emphasis added).
Again, the majority here improperly commingles (i)
bargaining doctrines under Section 8(a)(5) and (ii) non-
discrimination principles under Section 8(a)(3). As ex-
plained above in part B, I would find that a successor’s
hiring discrimination yields its own backpay and hiring
remedies—the standard relief for unlawful hiring dis-
crimination in violation of Section 8(a)(3)—for appli-
cants who were unlawfully denied employment; and I do
not believe it is appropriate for the Board to effectively
create and impose an additional “remedy” for the hiring
discrimination by making the successor’s setting of ini-
tial terms and conditions of employment a violation of
Section 8(a)(5) and thus negating the Supreme Court’s
unequivocal holding in Burns that a successor has the
right to set initial terms and conditions. For similar rea-
sons, it is equally inappropriate for the Board to create
and impose an additional “remedy” for Voith’s hiring
discrimination that completely disregards detailed and
well-established principles approved and applied by the
Supreme Court, establishing the precise “moment” when
a predecessor’s union may lawfully be recognized and
engaged in bargaining by a successor employer. Id.26

ing decision, and this burden requires the General Counsel to prove that
Voith had an obligation to provide the Union notice and opportunity to
bargain at the relevant time. Because Voith excepted to the judge’s
finding that it had a duty to bargain over the subcontracting decision, I
find it appropriate to analyze whether the General Counsel has satisfied
his burden of proving that a successorship bargaining obligation had
attached before Voith decided to enter into the Aerotek subcontract.
26 Although I disagree with the holding of Love’s Barbeque, 245
NLRB at 82, that an employer that engages in discriminatory hiring in
Conclusion
Accordingly, as set forth above, I respectfully concur
in part and dissent in part.
Dated, Washington, D.C. February 17, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT implement a plan to avoid hiring former
employees of predecessor Auto Handling, Inc. or mem-
bers of the Teamsters, and WE WILL NOT discriminate
against or refuse to hire those individuals because of
their concerted activities or Teamsters affiliation, or in
order to avoid a successorship obligation to recognize
and bargain with the Teamsters.
WE WILL NOT refuse, as a successor to Auto Handling,
Inc., to recognize and bargain with the Teamsters as the

an effort to defeat legal successor status forfeits its Burns right to set
initial terms and conditions of employment, I recognize that Love’s
Barbeque exists and that my colleagues, in following Love’s Barbeque,
adhere to that precedent. But nothing in Love’s Barbeque or any other
case supports my colleagues’ finding that Voith’s unlawful hiring dis-
crimination permits the Board to disregard other black-letter
successorship principles, which establish that Voith did not violate Sec.
8(a)(5) by declining to recognize and commence bargaining with the
Union before Voith attained a substantial and representative comple-
ment of employees engaged in normal operations. In this regard, the
majority is discarding decades of case law without any explanation in
order to augment the standard remedies that exist for the violations at
issue here. I believe this does violence to the Board’s obligation to
promote stability in the law and to refrain from ordering relief that is
punitive rather than remedial.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representative of the employees at the Ford Motor Com-
pany, Louisville, Kentucky assembly plant performing
vehicle processing including vehicle staging, shuttle and
yard/inventory, and batch and hold work, concerning
their terms and conditions of employment.
WE WILL NOT unilaterally set initial terms and condi-
tions of employment for unit employees without first
giving notice to and bargaining with the Teamsters about
those changes.
WE WILL NOT unilaterally enter into a contract with
Aerotek, Inc. to hire individuals other than former Auto
Handling employees to perform bargaining unit work
without notifying and bargaining with Teamsters.
WE WILL NOT render assistance and support to the
UAW by allowing the UAW to meet with employees
during orientation sessions and worktime in order to urge
the employees to sign membership applications and
checkoff authorizations.
WE WILL NOT assist, recognize and bargain with the
UAW as the collective-bargaining representative of our
employees who are employed by us at the Ford Motor
Company, Louisville, Kentucky assembly plant, per-
forming vehicle processing including staging, shuttle and
yard/inventory, and batch and hold work, when the UAW
did not represent an uncoerced majority of the unit em-
ployees or at a time before the commencement of our
normal vehicle processing operations when we did not
employ a representative segment of our ultimate vehicle
processing employee complement.
WE WILL NOT tell applicants that if they are hired, they
would have to become a member of the UAW.
WE WILL NOT inform applicants that in order to be
hired, they would have to refrain from engaging in Sec-
tion 7 activity such as striking.
WE WILL NOT threaten to discharge employees if they
do not wear a safety vest bearing the UAW logo.
WE WILL NOT deny Teamsters Local 89 access to our
employees while granting access to the UAW.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL recognize and, on request, bargain with
Teamsters Local 89 as the exclusive representative of the
employees in the following appropriate unit concerning
terms and conditions of employment and if an under-
standing is reached, embody the understanding in a
signed agreement:
All employees as set forth in Article 3 of the National
Master Automobile Transporters Agreement, Central
and Southern Area Supplemental Agreements and the
Job Descriptions provisions of the Local Rider.
WE WILL notify Teamsters Local 89 in writing that we
recognize it as the exclusive representative of our unit
employees under Section 9(a) of the Act and that we will
bargain with it concerning terms and conditions of em-
ployment for employees in the unit.
WE WILL, at the request of Teamsters Local 89, rescind
any departures from terms and conditions of employment
that existed immediately prior to our takeover of prede-
cessor Auto Handling’s operation, and WE WILL retro-
actively restore preexisting terms and conditions of em-
ployment, including wage rates and benefit plans, until
we negotiate in good faith with Teamsters Local 89 to
agreement or to impasse.
WE WILL make the unit employees whole for any loss-
es caused by our failure to apply the terms and conditions
of employment that existed immediately prior to our
takeover of predecessor Auto Handling’s operation.
WE WILL withdraw and withhold all recognition from
the UAW and its Local 862 as the exclusive collective-
bargaining representative of our vehicle processing em-
ployees unless and until the UAW has been certified by
the National Labor Relations Board as the exclusive col-
lective-bargaining representative of those employees.
WE WILL, within 14 days from the date of the Board’s
Order, offer employment to the former unit employees of
Auto Handling named in attachment A to the judge’s
decision as well as the other similarly situated employees
on the Auto Handling seniority list, including those who
did not file individual applications with us, and to any
other Teamsters-affiliated applicants who filed applica-
tions with us and would have been hired by us but for our
unlawful discrimination against them, in the positions
previously held by Auto Handling employees or, if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, discharging if
necessary any full-time or temporary employees hired in
their place. Positions shall be offered to employees on
the former Auto Handling seniority list in the order they
appear on that list, followed by the other Teamsters-
affiliated applicants according to the dates appearing on
their applications. If there are insufficient positions
available, the remaining employees shall be placed on a
preferential hiring list.
VOITH INDUSTRIAL SERVICES, INC. 21
WE WILL make the employees referred to in the pre-
ceding paragraph whole for any loss of earnings and oth-
er benefits they may have suffered by reason of our un-
lawful refusal to hire them, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusals to hire the employees described above, and
WE WILL, within 3 days thereafter, notify the affected
employees in writing that this has been done and that the
refusal to hire them will not be used against them in any
way.
WE WILL compensate the affected employees for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file a report with the So-
cial Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.
WE WILL make whole any Teamsters-affiliated em-
ployees who were “belatedly hired” as a result of our
discriminatory failure to timely hire them, for any loss of
earnings and other benefits they may have suffered by
reason of our unlawful refusal to timely hire them, plus
interest.
WE WILL rescind our contract with Aerotek, Inc. to
perform work which otherwise would have been per-
formed by the employees on the Auto Handling seniority
list or other Teamsters-affiliated applicants, and WE WILL
offer any jobs created by this rescission to those employ-
ees.
WE WILL, within 14 days after service by the Region,
hold a meeting or meetings, scheduled to ensure the wid-
est possible attendance, at which this notice, Appendix
A, is to be read to the employees by a responsible man-
agement official or, at our option, by a Board agent in
that official’s presence. WE WILL also afford Teamsters
Local 89, through the Regional Director, reasonable no-
tice and opportunity to have a representative present
when the notice is read to employees.
VOITH INDUSTRIAL SERVICES, INC.
The Board’s decision can be found at
www.nlrb.gov/case/09-CA-075496 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT accept assistance and support from
Voith Industrial Services, Inc. in order to meet with em-
ployees to urge them to sign membership applications
and checkoff authorizations.
WE WILL NOT obtain recognition from Voith Industrial
Services, Inc. at a time that we do not represent an
uncoerced majority in the unit and when Voith Industrial
Services, Inc. has not started normal vehicle processing
operations nor employed in the unit a representative
segment of its ultimate vehicle processing employee
complement.
WE WILL NOT accept recognition from Voith Industrial
Services, Inc. unless we are certified by the National
Labor Relations Board as the exclusive collective bar-
gaining representative of our vehicle processing employ-
ees.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights listed
above.
UNITED AUTOMOBILE AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, AFL–CIO AND LOCAL 862
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board’s decision can be found at
www.nlrb.gov/case/09-CA-075496 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Eric A. Taylor, Esq., Jonathan D. Duffey, Esq., and Daniel
Goode, Esq., for the Acting General Counsel.
Gary A. Marsack, Esq. and Stephen Richey, Esq., of Milwau-
kee, Wisconsin, and Cincinnati, Ohio, for Respondent
Voith.
Michele Henry, Esq., Irwin H. Cutler, Esq., and William J.
Karges, Esq., of Louisville, Kentucky, and Detroit Michi-
gan, for Respondent UAW.
James F. Wallington, Esq. and Robert M. Colone, Esq., of
Washington, D.C., and Louisville, Kentucky, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
BRUCE D. ROSENSTEIN, Administrative Law Judge. This case
was tried before me on August 21 through 24, August 27, 28,
and 30, September 19 through 21, and October 1 through 3,
20121 in Louisville, Kentucky, pursuant to a Amended Second
Consolidated Complaint and Notice of Hearing (the complaint)
issued by the Regional Director for Region 9 of the National
Labor Relations Board (the Board) on August 3. The com-
plaint, based upon original and amended charges in the above-
noted cases filed by General Drivers, Warehousemen & Help-
ers, Local Union 89, affiliated with the International Brother-
hood of Teamsters (the Charging Party or the Teamsters), al-
leges that Voith Industrial Services, Inc. (Respondent Voith or
Voith),2 and International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America, AFL–
CIO and Local 862 (Respondent UAW or the UAW), has en-
gaged in certain violations of Section 8(a)(1), (2), (3), and (5)
and Section 8(b)(1)(A) of the National Labor Relations Act (the
Act).

1 All dates are in 2012, unless otherwise indicated.
2 Voith was previously known as Premier Manufacturing Support
Services. Premier purchased Voith around 2007 and changed its name
to Voith in October 2010.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the Acting General Counsel (AGC), Respondent Voith,
Respondent UAW, and a posthearing statement of the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Voith has been a corporation with an office and
place of business in Louisville, Kentucky, and is engaged in the
business of cleaning and providing transportation and logistic
services to customers in the automobile manufacturing indus-
try. During the past 12 months, Respondent Voith in conduct-
ing its business operations, purchased and received at its Louis-
ville, Kentucky facility goods valued in excess of $50,000 di-
rectly from points outside the Commonwealth of Kentucky.
Respondent Voith admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Teamsters and the UAW are
labor organizations within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Background and Facts
Since October 2007, Voith has had a contract with Ford Mo-
tor Company (Ford) to provide cleaning and janitorial services
at the Louisville Assembly Plant (the LAP). The UAW has
represented Voith’s cleaning employees since approximately
2008. The current National Collective-Bargaining agreement
covering 16 Ford plants was effective October 3, 2008, to Oc-
tober 3, 2011, but has been extended by its terms and remains
currently in effect (GC Exh. 84; R. Voith Exh. 2).
Since about January 31, Respondent Voith implemented a
plan to hire approximately 84 employees in anticipation of
entering into agreements with Ford that subsequently were
executed on February 13 and March 1, respectively, to provide
vehicle processing and inventory management services that
were previously performed by Auto Handling, Inc., a wholly
owned subsidiary of Jack Cooper Transport Company (Auto
Handling).
Since about 1952, the Teamsters have been the designated
exclusive collective-bargaining representative of the unit, and
during that time the Teamsters were recognized as the repre-
sentative by Auto Handling and its predecessors (GC Exh. 9).
This recognition has been embodied in successive collective-
bargaining agreements, the most recent of which is effective
from June 1, 2011, to August 31, 2015. The employees of Re-
spondent Voith, as set forth in article 3 of the National Master
Automobile Transporters Agreement, Central and Southern
Area Supplemental Agreements and the job descriptions provi-
sions of the Local Rider (NMATA), constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
By letter dated February 14, Charging Party President Fred
Zuckerman informed Voith that the Teamsters are the exclusive
collective-bargaining representative of bargaining unit employ-
ees recognized under the NMATA covering employees of Auto
Handling at the LAP. Zuckerman further stated that the Team-
VOITH INDUSTRIAL SERVICES, INC. 23
sters have represented the employees working at the LAP in the
vehicle loading and distribution classifications for a succession
of employers to Ford for more than 60 years. Attached to the
letter were the names and contact information for more than
165 skilled employees and members of the Charging Party who
possess many years of experience performing work at the LAP.
Zuckerman noted that he had learned through industry sources
that Voith has been awarded a contract with Ford to provide
services identical to the operations historically performed at the
LAP by NMATA bargaining unit employees of Auto Handling.
In addition, he demanded entity access to meet and communi-
cate with any prospective employee or newly-hired employees
being assigned to the LAP operations (GC Exh. 6).
On or about February 22, Respondent Voith granted recogni-
tion to Respondent UAW as the exclusive collective-bargaining
representative of the unit (GC Exhs. 31 and 32).
By letter dated April 9, Voith informed International UAW
Representative George Palmer that effective immediately it was
maintaining a “neutrality policy” and that Voith was withdraw-
ing its February 22 recognition of the UAW as the bargaining
representative of the LAP vehicle processing employees be-
cause such recognition was granted prematurely (GC Exh. 17).
Between April 9 and May 1, Voith commenced normal oper-
ations at the LAP under its contracts with Ford.
By letter dated April 10 to Voith’s director of labor relations,
Erwin Gebhardt, Zuckerman demanded that Voith recognize
and bargain with the Teamsters in an appropriate bargaining
unit of Voith vehicle processing employees at the LAP (GC
Exh. 18). He noted that the employees have designated the
Teamsters as the exclusive collective-bargaining representative
of bargaining unit employees of Auto Handling as evidenced by
the seniority lists and timely employment applications that were
previously provided.
By letter dated April 18 to Gebhardt, Zuckerman renewed
the Teamsters demand for recognition and bargaining, and fur-
ther requested equal access at the LAP to meet with bargaining
unit employees (GC Exh. 49).
On or about May 1, pursuant to a card check that was veri-
fied by an independent third party, Voith granted recognition to
Respondent UAW (R. Voith Exh. 43).
B. Agency Allegations
The AGC alleges in paragraph 6 of the complaint that since
March 1, to the present, Aerotek, Inc. (Aerotek) has been an
agent of Respondent Voith for purposes of hiring employees
within the meaning of Section 2(13) of the Act.
Sarah Curry Martinez, an account manager at Aerotek, testi-
fied that on March 1, she met with Voith’s peoples services
manager, Timothy Bauer, who requested that Aerotek supply
full-time permanent and temporary employees at the LAP to
augment their work force under its recently acquired vehicle
processing contract with Ford. Bauer’s request for manpower
was made pursuant to the current existing National Services
Agreement between Aerotek and Voith (GC Exh. 81).3 During

3 Respondent Voith did not inform the Teamsters concerning the
contract with Aerotek nor did it engage in bargaining with respect to
this conduct or the effects of this conduct.
the meeting, Bauer provided a box of applications that Voith
had received for vehicle processing positions at the LAP (GC
Exhs. 13 and 16).
In accordance with the existing Agreement, and continuing
from early March 2012 to the present time, Aerotek has
screened applications submitted by prospective applicants in-
cluding former Auto Handling employees, conducted inter-
views of applicants at Aerotek’s offices, and completed a suita-
bility analysis as to each applicant it recommended to Voith for
a vehicle processing position at the LAP (GC Exh. 77).
Martinez confirmed that Aerotek has referred to Voith ap-
proximately 11 full-time permanent vehicle processing em-
ployees who are Teamster members and up to 300 temporary
employees who are presently working at the LAP on two shifts.
Approximately 8 to 10 of the temporary employees have been
converted into permanent employees; however, temporary em-
ployees with a Teamster affiliation have not been converted to
permanent status. While Aerotek prepares and issues the
paychecks for the 300 temporary employees, they are jointly
supervised by Voith and seven on-site Aerotek supervisors.
Based on the forgoing, I find that Aerotek is an agent for the
purposes of hiring Voith employees within the meaning of Sec-
tion 2(13) of the Act. Diehl Equipment Co., 297 NLRB 504,
504 fn. 2 (1989).
C. The 8(a)(1) Allegations
(a) The AGC alleges in paragraph 15 of the complaint that
about March 5, Respondent Voith, by Bauer, during an em-
ployment interview at the offices of Aerotek, told an employee
that if the employee was hired the employee would have to
become a member of Respondent UAW.
Facts
Tiffany Byers testified that she received a Voith employment
application from UAW District Committeeman Dennis Skaggs
and during a Teamster union meeting on February 12. Subse-
quently, both applications were submitted to Voith.
On March 3, Byers received a telephone call from Aerotek
recruiter Megan Carter inquiring whether she was interested in
working for $11 per hour at the LAP (GC Exh. 45). Carter
further informed Byers that if she was interested in the position
she should be present on March 5 at Aerotek’s offices for an
interview. Byers went to Aerotek’s offices on March 5, and
interviewed with recruiter Steve Shelbourne who informed her
that the vehicle processing position for which she applied
would be a UAW job. Shortly after her meeting with Shel-
bourne, Byers interviewed with Bauer. After describing the
job, Bauer confirmed that the position would be a UAW job
and did Byers have a problem with it.
Gregory Johnson submitted a Voith application to Aerotek
and was directed to appear for an interview on March 5. He
met with Bauer on that date and during the course of the inter-
view Bauer informed Johnson that the bargaining agent for the
vehicle processing position for which he applied was the UAW.
Both Byers and Johnson, who previously worked at the LAP
performing vehicle processing responsibilities, are members of
the Charging Party. On April 10, they commenced permanent
employment with Voith.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Discussion
By letter dated February 22, Gebhardt stated that the UAW
has demonstrated majority status (through a card check) for the
vehicle processing work at the LAP (R. Voith Exh. 40). That
statement was incorrect for the following reasons. First, while
the card check conducted on February 22 examined each new
employee’s signature with Voith’s employee sign-in sheet and
the 50 submitted UAW applications for membership and check-
off authorization cards (R. Voith Exh. 39), those cards were
executed by employees who applied for and were hired solely
for janitorial and cleaning positions. On February 20, the new-
ly hired janitorial employees attended an orientation at the LAP
conducted by Voith’s facilities manager, Doug Couch, and
were exclusively trained on subjects related to their janitorial
and cleaning duties. Second, while Couch inquired at the ori-
entation whether the newly hired employees were interested in
hourly openings for vehicle processing positions, it was not
until mid-March 2012 that approximately 25 of the janitorial
and cleaning employees were transferred to vehicle processing
positions.4 Accordingly, when Bauer made the statement on
March 5 that applicants for vehicle processing positions would
have to become members of the UAW and inquired whether the
employees had a problem with this, such statements are inher-
ently coercive for a number of reasons. First, as found below,
the 50 authorization cards executed by the janitorial employees
were obtained by UAW representatives using coercive meth-
ods, and therefore were tainted. Second, at the time the author-
ization cards were solicited on February 20 none of the newly
hired employees were performing vehicle processing duties,
and therefore the UAW did not represent an uncoerced majority
of the unit. Third, pursuant to my finding that the authorization
cards were obtained through coercion, there was no exclusive
collective-bargaining representative for any vehicle processing
employees on February 22.
For all of the above reasons, I find that when Bauer made the
statement alleged in paragraph 15 of the complaint, it was an
intrusion on employee’s Section 7 rights and violated Section
8(a)(1) of the Act.
(b) The AGC alleges in paragraphs 22(a) and (b) of the com-
plaint that Respondent Voith, by Sarah Curry Martinez, on or
about April 9 informed an employee that he would only be
hired if he promised to refrain from engaging in lawful Section
7 activity, and that other members of the Teamsters would be
hired if she did not fear that they would engage in lawful Sec-
tion 7 activity.
Facts and Discussion
Wayne Grether, a former employee of Auto Handling and a
Teamster member, learned in early April 2012 that Aerotek was
seeking applicants to serve as temporary employees for Voith.
Grether contacted Martinez by telephone who confirmed that
she was recruiting personnel to work at the LAP in the classifi-
cation of temporary vehicle processing positions for up to 6

4 By memorandum dated February 13, Couch informed the incum-
bent Voith janitorial and booth paint cleaning employees of job open-
ings for vehicle processing positions and set a deadline for those em-
ployees to sign a posting (R. Voith Exh. 31).
weeks of employment.5 Grether filled out paperwork at
Aerotek and subsequently took a drug and personality test.
During their telephone conversation, Grether testified that
Martinez told him that he would only be hired if he promised to
refrain from striking, and that other members of the Teamsters
could be hired if she did not fear that they would engage in
strike activity. Martinez denied the statements attributed to
here by Grether.
Grether, who ultimately decided to accept other permanent
employment and did not reply to several voice mail messages
left by Aerotek representatives offering him a temporary posi-
tion with Voith at the LAP, was precise and direct in his testi-
mony. He did not exhibit mannerisms as one who manufac-
tured such testimony, especially noting the specificity in de-
scribing Martinez’ responses. Martinez, who initially denied in
her testimony that she did not exclude former Auto Handling
employees from the screening process for employment with
Voith, had to grudgingly admit that she did engage in such
conduct (GC Exh. 102). Under these circumstances, I am in-
clined to credit Grether and find that Martinez made the state-
ments attributed to her in the complaint.
Based on the foregoing, and particularly noting my finding
that Aerotek is an agent of Respondent Voith, I find the state-
ments made by Aerotek’s account manager, Martinez, are vio-
lative of Section 8(a)(1) of the Act. Albertson’s, Inc., 344
NLRB 1172 (2005).
(c) The AGC alleges in paragraph 16 of the complaint that
on April 10, Respondent Voith by Facilities Manager Doug
Couch during an orientation session told an employee that new
hires were represented by the UAW and would receive UAW
health insurance.
Facts
Patti Murphy, who previously worked for Auto Handling and
is a Teamster member, submitted Voith employment applica-
tions to the UAW, Teamsters, and Aerotek.
Murphy interviewed at Aerotek in late March 2012 with
Couch, and successfully passed the personality/behavior, drug,
and physical tests. She was hired by Voith and reported for
work on April 10 to attend an orientation conducted by Couch.
Murphy testified that during the orientation Couch informed the
newly hired permanent employees that the UAW would be their
bargaining representative and they would receive UAW insur-
ance. Couch denied that he made the statements attributed to
him by Murphy. He asserts that since Voith provides insurance
to its employees pursuant to the janitorial and cleaning collec-
tive-bargaining agreement between Voith and the UAW, the
testimony of Murphy that new hires would receive UAW insur-
ance is incorrect.

5 Martinez confirmed in her testimony that she is an accounts man-
ager for Aerotek, and has the authority to hire, fire, discipline, and
makes work assignments to the two recruiters on her team that she
directly supervises. Martinez, since March 1, was designated by
Aerotek to manage the Voith account for the hiring of full-time and
temporary employees at the LAP. Accordingly, I find that Martinez is
a supervisor within the meaning of Sec. 2(11) of the Act and an agent
of Respondent Voith within the meaning of Sec. 2 (13) of the Act.
VOITH INDUSTRIAL SERVICES, INC. 25
Discussion
As found below, the showing of interest obtained by the
UAW on February 20–22 was tainted, and therefore Voith’s
February 22 grant of recognition to the UAW was null and
void. Moreover, on April 9, Voith withdrew its recognition due
to the fact that Voith had not commenced normal business op-
erations and did not employ in the unit a representative segment
of its ultimate employee complement (GC Exh. 17).
I note that only one other employee was called to testify by
the AGC, other than Murphy, to support the allegation in para-
graph 16 of the complaint.6 Indeed, record evidence establishes
that 20–30 employees attended the April 10 orientation meeting
conducted by Couch. I am circumspect of Murphy’s testimony
for two reasons. First, Respondent Voith withdrew its recogni-
tion of the UAW the day before the April 10 orientation. Se-
cond, Voith rather than the UAW provides insurance to its em-
ployees under the existing janitorial collective-bargaining
agreement between it and the UAW (R. Voith Exh. 2). Thus, I
am hard pressed to credit Murphy’s testimony particularly not-
ing that the UAW was not the employee’s collective-bargaining
representative on April 10, and incumbent Voith employees do
not receive UAW life or health insurance.
Based on these circumstances, I find that Couch did not
make the statement on April 10 that new hires were represented
by the UAW and would receive UAW insurance. Therefore, I
recommend that paragraph 16 of the complaint be dismissed.
(d) The AGC alleges in paragraph 21(a) of the complaint that
Regional Manager Bret Griffin, on May 31, threatened to dis-
charge employees if they did not wear a Voith/UAW safety
vest.
Facts
On May 31, in a meeting with a number of full-time Voith
employees, Griffin informed the participants that they would be
required to wear new safety vests that displayed a Voith/UAW
logo on the front of the vest. Voith employee Brenda Helm
objected to wearing such a vest pointing out that she is a Team-
ster member and preferred to wear her old safety vest that she
had been wearing since her hiring in April 2012. Griffin re-
plied, “You will go home, if you do not wear the vest.”
Coworkers Kelly Stein and Brenda Swift both testified that they
heard Griffin make those remarks to Helm. Employee Patti
Murphy, who also attended the May 31 meeting, testified that
she heard Griffin state to Helm that if you do not wear the safe-
ty vest with the Voith/UAW logo you will be violating a direct
order and will not be allowed to work. All of the employees
who attended the May 31 meeting ultimately signed for the new
safety vests and wore them during the remainder of the work-
day.
On June 1, under 24 hours from the 1:30 p.m. meeting on
May 31, Griffin informed the employees that he was retracting
the directive to wear the Voith/UAW safety vests. The Team-
ster members including Stein, Swift, Murphy, and Helm re-
moved their Voith/UAW safety vests and no longer wore them

6 The AGC called Aaron Schott as a witness, who also attended the
April 10 orientation, but elicited no testimony about the Couch state-
ment alleged in par. 16 of the complaint.
at any time after June 1. Some employees, however, voluntari-
ly continued to wear the safety vests with the Voith/UAW logo.
Discussion
Based on the above recitation and the credible testimony of
the above employees, I find that Griffin’s statement to Helm
was inherently coercive. Additionally, since Voith’s recogni-
tion of the UAW on May 1 was null and void as discussed be-
low, and in the absence of a duly constituted exclusive collec-
tive-bargaining representative on May 31, the requirement to
wear safety vests with the Voith/UAW logo is violative of the
Act.
However, considering the particular circumstances of this al-
legation, I find that Voith, by Griffin, within 24 hours of the
requirement to wear the safety vests and making the coercive
statement to Helm, cured the violation by no longer requiring
the employees to wear the Voith/UAW safety vests. Moreover,
Helm was not disciplined nor sent home that day. Further sup-
port for this finding is confirmed by the former Auto Handling
employees and Teamster members testifying (Swift, Sandra
Rhodes, Stein, Murphy, Helm, and Adam Schott) that they
continue to wear Teamster T-shirts while at work without retal-
iation by Voith. Thus, I find no evidence of discrimination
against these employees because of their Teamster affiliation
and wearing such clothing. Moreover, since June 1, no Voith
employee has been required to wear a safety vest with the
Voith/UAW logo nor have any threats or coercive remarks been
directed at these employees. See Passavant Memorial Area
Hospital, 237 NLRB 138 (1978) (such repudiation must be
timely, unambiguous, specific in nature to the coercive conduct,
and free from other proscribed illegal conduct).
Accordingly and particularly noting that the Passavant re-
quirements were followed, I do not find that Respondent Voith
violated Section 8(a)(1) of the Act as alleged in paragraph 21(a)
of the complaint.
(e) The AGC alleges in paragraph 21(b) of the complaint that
on June 1, Brett Griffin instructed employees in a staff meeting
to report other employees’ union activities.
Facts and Discussion
Employee Deborah Cheatham testified that on June 1, Grif-
fin came into an ongoing meeting around 11 a.m. and informed
the employees that he had recently received a telephone call
from a representative of the NLRB. The representative in-
formed Griffin that the Board had made a decision that Voith
had an obligation to recognize the Teamsters as the exclusive
collective-bargaining representative of the vehicle processing
employees. Griffin stated that no one was going to tell him
who would represent Voith employees but if the participants in
the meeting had any questions they should call the NLRB. He
concluded his remarks by telling the employees that in his ex-
perience there had to be a secret-ballot vote conducted by the
Board to determine the bargaining representative at an employ-
er and that if anybody approached the employees about a union,
and you feel uncomfortable, please let him know.
In direct questions by Respondent Voith’s counsel and me
regarding the statement attributed to Griffin in paragraph 21(b)
of the complaint, employees Cheatham, Gregory Johnson, and
Rhodes all denied that Griffin instructed employees at the staff
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meeting to report other employees’ union activities. Moreover,
I credit Griffin’s testimony that he followed a script with de-
tailed talking points that he prepared in advance of the meeting.
Those talking points make no reference to reporting other em-
ployees’ union activities (R. Voith Exh. 47).
Under these circumstances, I find that the AGC did not es-
tablish that Griffin made the statement attributed to him. Thus,
I recommend that paragraph 21(b) of the complaint be dis-
missed.
(f) The AGC alleges in paragraph 21(c) of the complaint that
Brett Griffin, on June 1, denied Teamsters access to employees’
while extending access to Respondent UAW.
Facts
Teamster Vice President Avral Thompson testified that he
received a telephone call from one of his members who had
attended a meeting at Voith on June 1 in which he alleged be-
ing harassed. Additionally, the member informed Thompson
that Griffin had informed employees that he had received a
telephone call from the NLRB that they intended to issue a
complaint seeking that the Teamsters be certified as the exclu-
sive collective-bargaining representative of the Voith employ-
ees.
Based on the conversation with the Teamster member,
Thompson and Zuckerman went to the LAP in an effort to seek
equal access and to meet with Voith employees. After waiting
at the entrance having made the request to a Voith employee,
Griffin arrived and engaged in a dialogue with Thompson and
Zuckerman. Griffin informed the Teamster representatives that
since they were not the exclusive collective-bargaining repre-
sentative of Voith’s vehicle processing employees, he would
not permit them to come into the building to meet with Voith
employees. Voith Supervisor Jason Wilson, who was present
during the discussion between the Teamster representatives and
Griffin, confirmed the events in question.
Discussion
Based on my below finding that the May 1 grant of recogni-
tion to the UAW was null and void, I find that in the absence of
an exclusive collective-bargaining representative on June 1, it
was unlawful for Voith to grant the UAW access to its employ-
ees while denying access to the Teamsters.
Therefore, I find that when Voith, by Griffin, denied access
to the Teamsters on June 1, it violated Section 8(a)(1) of the
Act.
D. The 8(a)(1) and (2) Allegations
(a) The AGC alleges in paragraph 13 of the complaint that
about February 20, Respondent Voith rendered assistance and
support to Respondent UAW by allowing the UAW to meet
with its employees during their orientation in order to urge the
employees to sign membership applications and checkoff au-
thorizations.
Facts
Teresa Ceesay was hired by Voith to perform housekeeping
duties in February 2012. She attended an orientation with other
newly hired housekeeping/janitorial employees on February 20
at the LAP. At the lunchbreak, the employees were escorted to
the cafeteria by Voith supervisors but the supervisors did not go
inside. Once entering the cafeteria, the employees were ap-
proached by several UAW representatives and Ceesay signed a
UAW authorization card.
Ceesay worked for approximately 2 weeks when she was ap-
proached by an individual wearing a Voith shirt who informed
her that it would be necessary to drive vehicles. She further
testified that all of her coworkers who were hired solely to per-
form housekeeping or janitorial duties were told that if you did
not sign up to drive cars you might not have a job. Ceesay,
who did not want to drive vehicles, submitted her resignation to
Voith.
Keith Robinson applied for a cleaning/janitorial position
with Voith and interviewed with Couch in early February 2012.
He commenced work on February 17 as a janitor and was told
by Couch that he could advance to a driver position if one be-
came available.
Robinson, along with 30 to 40 other employees, attended an
orientation on February 20 that was conducted by Couch. Dur-
ing the orientation session, Couch informed the newly hired
janitors that there was an opportunity to become drivers and if
anyone was interested they should sign a list that would be
distributed.
Voith supervisors escorted the employees to the cafeteria for
lunch but they did not go inside. Upon arriving in the cafete-
ria, Robinson was approached by several UAW representatives
who informed him if he wanted to join the Union he was free to
do so. Robinson signed a UAW authorization card on February
20, and observed a UAW representative witness his signature.
Shortly after February 20, Robinson took a physical to quali-
fy for a driver position. He was unable to pass the physical,
and was permitted to return to his janitorial duties. Presently, he
remains a full-time Voith employee in the janitorial bargaining
unit.
Cody Jaggers interviewed for a janitorial position with Voith
on February 17, and attended an orientation with approximately
30–40 employees on February 20 at the LAP run by Couch.
Just prior to the lunchbreak, Couch informed the newly hired
janitorial employees that they would be meeting with repre-
sentatives of the UAW in the cafeteria, and you need to talk
with them before filling out cards. Couch further stated, ac-
cording to Jaggers, that he along with other Voith supervisors
would escort the employees to the cafeteria but they were not
permitted to be present when the employees talked with the
UAW repre-sentatives.
When Jaggers entered the cafeteria, he along with the other
employees, were approached by a number of UAW representa-
tives who were wearing shirts with the UAW logo. The lead
UAW representative informed the employees that you do not
have to join or sign an authorization card but if you don’t sign
you might not have a job.7 Jaggers signed a UAW authoriza-

7 On cross-examination, counsel for Respondent Voith established
that Jaggers did not include the statements attributed to the UAW rep-
resentative in his pretrial affidavit. Jaggers responded that the Board
agent who took his statement did not ask questions as to what the UAW
representative said in the cafeteria. I fully credit Jaggers’ testimony as
he impressed me as a sincere witness whose testimony had a ring of
VOITH INDUSTRIAL SERVICES, INC. 27
tion card and observed that all of his fellow coworkers that
attended the orientation also signed UAW authorization cards.
After completing the lunchbreak, the employees returned to the
orientation session.
During the afternoon orientation, Couch distributed a list for
employees to sign if they were interested in driving vehicles.
Jaggers signed the list and took a physical exam but did not
pass. Voith then terminated his employment after 3 days on the
job.
On February 17, Reginald Farrell was hired as a janitor for
Voith. He attended, on February 20, along with the other new-
ly hired janitors and cleaning personnel an orientation at the
LAP conducted by Couch. Just before the lunchbreak, Couch
informed the employees that they would be meeting with UAW
representatives in the cafeteria. Voith supervisors escorted the
employees to the cafeteria but they did not go inside.
Upon entering the cafeteria, Farrell was approached by sev-
eral UAW representatives who were wearing shirts with the
UAW logo. One of the UAW representatives stated to the em-
ployees that you do not have to join or sign an authorization
card but if you don’t sign you might not have a job. Farrell
testified that he felt pressured signing the UAW card, and also
observed other employees signing membership authorization
cards.
Approximately 4–6 weeks after Farrell commenced work,
Couch informed him that he would be considered for a driving
position. Farrell replied that he did not want to drive vehicles.
Couch said you have to take the physical to start driving vehi-
cles since we do not have anybody out there, and if you do not
take the driving test you will not have a job. Farrell took the
driving test and after passing was trained for 1 week on the
requirements of the position. He drove and shuttled vehicles
for 5–7 days until a family situation prevented him from con-
tinuing his driving duties and he was permitted to return to his
janitorial position. Farrell performed his janitorial duties for a
short time until he became allergic to the paint and cleaning
chemicals he was working with. Farrell briefly returned to
performing janitorial functions until he was laid off on May 16
due to performance deficiencies.
Respondent UAW Union Steward Sharita Blackmon, who
attended the February 20 orientation as an incumbent Voith
janitorial employee, testified that she rather than Couch escort-
ed the employees to the cafeteria for their lunchbreak, and that
she sent a text message to UAW LAP Building Chairman Steve
Stone that the employees would be on their lunchbreak in the
main cafeteria. Couch testified that while he did not personal-
ly escort the employees to the cafeteria, several of the supervi-
sors and incumbent janitorial employees were requested to do
so. Couch denied that he informed the employees during the
orientation that UAW representatives would be in the cafeteria
and the employees should meet and talk with them.

truth to it and was fully consistent with the testimony of coworker
Farrell who attended the orientation and was present in the cafeteria.
Discussion
I find that the AGC has conclusively established the allega-
tions alleged in paragraph 13 of the complaint for the following
reasons.
First, the weight of the evidence establishes that Respondent
Voith, by Couch, had knowledge that the UAW representatives
would be present in the cafeteria to meet with the newly hired
janitorial and housekeeping employees to urge them to sign
membership applications and checkoff authorizations. Indeed,
the testimony of the above-noted employees has a ring of truth
to it particularly noting that they testified that Couch stated that
they should meet and talk with the UAW representatives in the
cafeteria but Voith supervisors could not be present when this
occurred. I therefore conclude that the meeting in the cafeteria
was prearranged between Respondent Voith and Respondent
UAW for the sole purpose of permitting Respondent UAW
representatives to urge employees to sign membership applica-
tions and checkoff authorizations.
Second, I find the statements made by the UAW representa-
tives to the employees, that you do not have to join or sign a
union card but if you don’t sign you might not have a job to be
inherently coercive. Thus, I find that those statements taint the
validity of each authorization card signed on February 20.8
Third, it is apparent to me that Respondent Voith forced a
number of the janitorial and housekeeping employees to under-
take driving duties or suffer the loss of their jobs. I find such
actions, in using untrained and inexperienced janitorial and
housekeeping employees to perform driving responsibilities, to
be inherently discriminatory with the obvious intent of exclud-
ing or limiting the hiring of former Auto Handling employees
and members of the Teamsters who previously performed the
vehicle processing responsibilities at the LAP.
Lastly, in an email dated February 21, Voith Regional Man-
ager Elam Barnett requested Couch to make sure that 11 Voith
employees resign UAW membership cards (GC Exh. 100).
Such instructions clearly establish that Voith was aware that
membership cards were executed by its employees on February
20, and conclusively establishes that Voith rendered assistance
and support to Respondent UAW. Indeed, it substantiates the
credible testimony provided by the above-noted employees who
attended the February 20 orientation.
For all of these reasons, I find that Respondent Voith violat-
ed Section 8(a)(1) and (2) of the Act as alleged in paragraph 13
of the complaint.9
(b) The AGC alleges in paragraph 17 of the complaint that
about April 11, Respondent Voith, by Services Line Manager
for Vehicle Processing Dennis Frank, rendered assistance and
support to Respondent UAW to meet with its employees during

8 Record evidence establishes that 39 of 50 authorization cards were
signed on February 20, and were witnessed by UAW Representatives
Stone, Mike Parker, and Jeffrey Hale (GC Exh. 111). Stone was the
only witness who testified for Respondent UAW regarding the execu-
tion of authorization cards on that date.
9 While the authorization cards were signed during nonworktime
(lunchbreak), the factors set forth in Midwestern Personnel Services,
331 NLRB 348, 353 (2000), when considering the record evidence
convinces me that Voith provided assistance and support to the UAW.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
worktime in order to urge them to sign membership applica-
tions and checkoff authorizations.10
Kelly Stein testified that she previously worked for Auto
Handling prior to being laid off in December 2010 when the
LAP shut down for retooling. As a Teamster member, and an
employee of Auto Handling, she regularly drove vehicles on
and off site, loaded vehicles on rail cars, and scanned vehicles
for inventory purposes.
In February 2012, Stein learned that Auto Handling lost the
contract with Ford at the LAP. She obtained several Voith
employment applications while attending a Teamster meeting
on February 12, and after completing them filed an application
with the UAW (GC Exh. 39) and another with Aerotek (GC
Exh. 48).
Stein interviewed at Aerotek on March 5 with former Auto
Handling Supervisor Miller who is presently a manager with
Voith, and ultimately was hired. She reported to work and
attended an orientation on April 11 conducted by Couch. After
watching safety videos for the majority of the day, Couch took
the approximately 15–20 newly hired employees to the LAP
yard, and introduced them to Voith Supervisors Frank and Mil-
ler. Frank informed the employees that someone wants to talk
with them, and he and the other supervisors separated them-
selves from the group and walked approximately 20–50 feet
away.
Within several minutes, an individual in a motorized cart ap-
proached the group of employees and introduced himself as
Ted Hunt, a UAW representative. He told the employees that
this is UAW work and our yard. UAW Shop Steward Black-
mon arrived in the yard and assisted Hunt in distributing UAW
authorization cards to the employees. Hunt informed the group
of employees that you have to sign these cards or you will not
work here.
Stein further testified that the work she previously performed
for Auto Handling at the LAP is identical to the work she pres-
ently performs for Voith. Presently, Stein works side by side
with temporary Voith employees who perform the same work
as Voith permanent employees with the exception of loading
vehicles on rail cars.11
Brenda Swift, a Teamster member and former Auto Han-
dling employee, interviewed with Miller in early April 2012 at
Aerotek and was hired by Voith shortly thereafter. Swift re-
ported to work on April 11 and attended an orientation with 15–
20 newly hired employees that was conducted by Couch. After

10 While not specifically alleged in the complaint, record evidence
establishes that in a meeting held with Voith employees in the
breakroom on April 11, UAW Representatives Hunt, Blackmon, and
Stone solicited authorization cards from 23 employees’ at a time that
recognition had been withdrawn by Voith (GC Exh. 111). Indeed, Hunt
testified that Stone called him on the telephone and instructed him to
proceed to the breakroom to solicit Voith employees to sign UAW
authorization cards. Thus, such actions in addition to denying access to
the Teamsters for the same purpose in light of the withdrawal of recog-
nition by Voith, violates Sec. 8(a)(1) and (2) of the Act.
11 Permanent employees Swift, Rhodes, Cheatham, and Flanagan all
testified consistently with Stein that the work at the LAP that they
previously performed while employed at Auto Handling is identical to
the work they presently perform for Voith.
watching safety videos the majority of the day, Couch escorted
the employees to the LAP yard and introduced them to Voith
Supervisors Frank and Miller. According to Swift, she heard
Frank mention to the supervisors that they had a situation and
they immediately separated from the group standing about 20–
50 feet away. Within a few minutes, UAW Representative
Hunt accompanied later by Shop Steward Blackmon arrived
and Hunt told the employees that they needed to sign UAW
authorization cards. Although Swift declined to sign a UAW
authorization card, she observed seven employees in the group
that signed them.
Deborah Cheatham, a Teamster member and former Auto
Handling employee, interviewed with Miller in early April
2012 at Aerotek and was hired by Voith shortly thereafter.
Cheatham reported to work on April 11, and attended an orien-
tation. In the afternoon, Frank and Miller drove the employees
to the LAP yard (GC Exh. 55). Shortly after arriving in the
yard, Cheatham heard Frank state that we have a situation here
and the supervisors separated from the group of employees
remaining about 25–50 feet away. Within a few minutes,
UAW Representative Hunt and Shop Steward Blackmon ap-
proached the employees and Hunt said the Teamsters are trying
to get people to sign up. This is a one shop yard with the
UAW. He pulled out UAW authorization cards and asked the
employees whether they wanted to sign them. Hunt further
stated if you sign the cards, the better it would be for you.
While Cheatham declined to sign a UAW authorization card,
she observed four–six coworkers in the group that signed the
cards.
Sandra Rhodes, a Teamster member and former Auto Han-
dling employee, interviewed at Aerotek for a vehicle processing
position for Voith in early April 2012. She was ultimately
hired by Voith and reported for work on April 11. Rhodes
attended an orientation on that day with approximately 15–20
newly hired employees including coworkers Stein, Swift,
Flanagan, and Cheatham. After watching safety videos in the
morning, the employees were escorted to the LAP yard and met
with Voith Supervisor Frank. Shortly thereafter, UAW Repre-
sentative Hunt arrived and demanded that the employees sign
UAW authorization cards. While Rhodes declined to sign the
authorization card, she observed several coworkers sign the
cards while leaning on the motorized vehicle that Hunt used to
arrive in the yard.
James Flanagan, a Teamster member and former Auto Han-
dling employee, interviewed at Aerotek for a position with
Voith and commenced work on April 11. He attended an orien-
tation on that day along with coworkers Stein, Swift, and
Cheatham that was conducted by Frank.12 During the after-
noon, Frank escorted the employees to the yard and shortly
after they arrived UAW Representative Hunt arrived and brief-
ly spoke with Frank who informed the employees that the
UAW representative has something to say to them. Frank and

12 Flanagan stated that Couch introduced a Voith secretary during the
orientation that passed out a UAW Fact Sheet that explained the history
of the organization and its accomplishments (GC Exh. 56). Helm testi-
fied similarly and received the same Fact Sheet in a packet of materials
at her April 10 orientation session.
VOITH INDUSTRIAL SERVICES, INC. 29
the other supervisors separated themselves from the employees
and stood approximately 20–50 feet away. Hunt then ap-
proached the employees and said they had to sign union author-
ization cards right away. He also stated to the 17–18 employ-
ees that the Teamsters were trouble makers. Shop Steward
Blackmon arrived and distributed UAW authorization cards to
the employees. Flanagan observed Frank pointing to the for-
mer Auto Handling employees and mouthing the words, “They
are Teamsters.”
Aaron Schott, a Teamster member, interviewed with Bauer
at Aerotek in March 2012, and ultimately was hired by Voith.
He attended an orientation on April 10.
On April 11, Schott was assigned along with approximately
15 coworkers to perform cleanup work in the yard. While he
was working, two individuals appeared on a motorized vehicle
and introduced themselves as UAW Representatives Stone and
Barry Ford. Stone said, “We are from the UAW and we want
you to sign an authorization card.” Schott declined to sign the
card but observed other coworkers sign the cards that were then
collected by Stone.
Discussion
I find that the AGC has conclusively established the allega-
tions alleged in paragraph 17 of the complaint. In this regard,
six Voith employees testified credibly and consistently that
Couch along with other Voith supervisors escorted the employ-
ees who attended the April 11 orientation to the LAP yard.
Couch then introduced the employees to Frank and two other
supervisors (Tom Baker and Scott Board) who would be con-
ducting additional training in the yard. Within a few minutes,
UAW Representative Hunt arrived along with Shop Steward
Blackmon and distributed UAW authorization cards. Hunt
made intimidating statements to the Voith employees such as
this is UAW work and our yard. He further demanded that the
employees sign the authorization cards or you will not work
here, and if you sign the cards the better it would be for you
because the Teamsters are trouble makers. Flanagan testified,
without contradiction, that he observed Frank pointing toward
the former Auto Handling employees and mouthed the words
“They are Teamsters.”
Frank’s testimony was disjointed, argumentative, and be-
yond belief.13 In this regard, he denied talking to Hunt and
represented that he did not observe either Hunt or Blackmon
arrive in the yard or that he had ever met either of these indi-
viduals before. His testimony was contradicted by fellow Su-
pervisors Baker and Board who both testified that they along
with Frank witnessed the arrival of Hunt and Blackmon in the
yard and observed the UAW representatives engaging in dis-
cussions with the employees. Baker also confirmed that he
knew who Blackmon was and that Frank had recently been
introduced to her. Significantly, Hunt’s testimony contradicted
Frank. In this regard, Hunt testified that he approached Frank
immediately upon arriving in the yard on his motorized vehicle,
and they briefly conversed about whether he could meet with
the employees. All of the employee’s testimony noted above

13 On cross-examination, the AGC established numerous inconsist-
encies between Frank’s record testimony and statements previously
provided in his pretrial affidavit.
comports with this sequence of events and it is reasonable to
conclude that after Hunt spoke with Frank, the supervisors
separated from the group and Hunt met with the employees.
I conclude, based on the above evidence, that Respondent
Voith established a prearranged time with the UAW representa-
tives to meet with the employees’ in the yard. It was no coinci-
dence that Hunt and Blackmon arrived in the yard to meet with
the employees during the middle of the afternoon as the em-
ployees were approximately a mile from their training indoor
classroom. The record further establishes that the UAW repre-
sentatives met with the employees for the sole purpose of urg-
ing the employees to sign UAW authorization cards and
checkoff forms. I also find that the authorization cards that the
UAW obtained on April 11 were tainted by the assistance and
support rendered by Respondent Voith and the coer-
cive/threatening remarks and methods used by UAW Repre-
sentative Hunt in soliciting and obtaining signatures from em-
ployees in a pressured atmosphere.
Accordingly, I find the AGC has sustained the allegations in
paragraph 17 of the complaint, and therefore, determine that
Respondent Voith violated Section 8(a)(1) and (2) of the Act.
(c) The AGC alleges in paragraph 18 of the complaint that
about April 16, Respondent Voith, by Tom Baker and Dennis
Frank, rendered assistance and support to Respondent UAW by
allowing Respondent UAW to meet with Respondent Voith’s
employees during worktime in order to urge its employees to
sign membership applications.
Facts
The AGC presented three witnesses to support the allegation
alleged above. Murphy, Cheatham, and Helm testified that
they were working off-site on April 16, and were informed by
Baker that he was driving them to the breakroom in order to
attend a meeting. Upon arriving late at the meeting location,
the employees observed that UAW Representative Stone was
addressing their coworkers. They all testified that they heard
Stone inform the employees that the Teamsters had filed unfair
labor practice charges with the NLRB concerning who repre-
sented the yard employees but it could take years for this to be
resolved. Additionally, Stone stated that the UAW would be
the collective-bargaining representative in the yard, and we will
get everyone signed up soon. Shortly after Stone finished his
presentation, Frank came into the breakroom and said it was
time for the employees to go back to work.
Baker, while admitting that he drove the above employees to
the breakroom on April 16, asserted that is was for the sole
purpose of permitting them to attend there afternoon break
rather than to attend a required meeting.
Discussion
It strains credulity to believe that Baker drove the employees
to the breakroom solely to have lunch when upon arriving there
were 25–30 employees presently in the breakroom listening to a
presentation delivered by Stone and other UAW representa-
tives. I find, as testified to by Murphy, Cheatham, and Helm,
that Baker informed them that a meeting was being held in the
breakroom and their presence was required. Likewise, I credit
the employees’ testimony that they were not on a designated
break when the meeting occurred specifically noting that before
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
arriving at the breakroom from working off-site, Baker permit-
ted them to take their regular scheduled break. I further note
that prior to April 16, Respondent Voith had withdrawn recog-
nition from the UAW, and any meeting that was held either on
work or breaktime with UAW representatives was a breach of
their neutrality pledge. Thus, requiring the attendance of em-
ployees on April 16 at a time that there was no exclusive col-
lective-bargaining representative representing the employees,
and denying the same access to the Teamsters is violative of the
Act.
Under these circumstances, and particularly noting that Re-
spondent Voith required the employees to be in the breakroom
while UAW representatives made a presentation, such actions
are tantamount to rendering assistance and support to the UAW
and therefore violates Section 8(a)(1) and (2) of the Act.14
E. The 8(a)(3) and (5) Violations
1. Successorship allegations
The AGC alleges in paragraph 3 of the complaint that Re-
spondent Voith has operated the prior business of Auto Han-
dling in basically unchanged form and but for its illegal con-
duct in violation of the Act would have employed as a majority
of its employees individuals represented by the Teamsters.
Under those circumstances the AGC asserts that Voith is a
successor to Auto Handling.
Facts
The Charging Party is the exclusive collective-bargaining
representative of bargaining unit employees recognized under
the NMATA who work at the Ford LAP (GC Exhs. 2 and 3).
They have represented these employees at the facility in the
vehicle loading and distribution classifications for a succession
of employers operating as vendors to Ford for approximately 60
years (GC Exh. 9).
Between 2008 and December 2010, Auto Handling was the
employer that operated as a vendor to Ford and performed the
vehicle processing responsibilities at the LAP. Auto Handling
recognized the Charging Party as the exclusive collective-
bargaining representative of the unit within the meaning of
Section 9(a) of the Act.
The agreement between Auto Handling and Ford terminated
in October 2010, and Ford concurrently announced that it in-
tended to shut down the LAP for retooling in anticipation of
producing a new Ford Escape model. Between October and
December 2010 the Auto Handling employees were gradually
laid off for lack of work (R. Voith Exh. 24).
Around September 2011, Ford issued an invitation to inter-
ested vendors to bid and submit quotes for vehicle processing
and car hauling work that it planned to reinstitute once the LAP
reopened. Four companies including Auto Handling and Voith
submitted quotes to Ford and a bid meeting took place on Oc-
tober 6, 2011, that was attended by the four companies and a

14 While the AGC’s proffered witnesses to this allegation did not
confirm that authorization cards or checkoff authorizations were solic-
ited by UAW representatives during the meeting, nevertheless, I find
that the actions of Respondent Voith as described above constitute
rendering assistance and support to the UAW within the meaning of
Sec. 8(a)(1) and (2) of the Act.
UAW representative.15 The Charging Party was not invited to
participate in the meeting.
On February 10, Zuckerman and Thompson traveled to De-
troit, Michigan, to meet with high-level Ford representatives.
During the course of the meeting, the Teamster representatives
were informed that the vehicle processing work at the LAP has
been awarded to Respondent Voith rather than Auto Handling.
According to the Ford representative, the decision to award the
bid to Voith primarily centered on their ability to perform the
work at a savings of between $7–$8 million in comparison to
the bid submitted by Auto Handling. The Ford representative
stated that Voith would be awarded the initial contract on Feb-
ruary 13, and the employees would be represented by the
UAW.
On February 12, the Charging Party conducted a meeting at-
tended by approximately 200 members and informed those in
attendance that Respondent Voith had been awarded the LAP
vehicle processing work rather than their former employer Auto
Handling. Thompson distributed Voith employment applica-
tions to the membership and requested the members to return
the completed applications so he could submit them to Voith
and the UAW.
By letter dated February 14, Zuckerman informed Voith that
it was his understanding that the proposed operations at the
LAP will be identical to the operations historically performed at
that location by NMATA bargaining unit employees of Auto
Handling and similar predecessor employers. Zuckerman de-
manded that Voith notify the Charging Party and the165 skilled
yard employees on the list attached to his letter of all hiring
opportunities for the staffing of projected operations at the LAP
(GC Exh. 6).
By letter dated April 10, Zuckerman demanded that Voith
recognize and bargain with the Charging Party in an appropri-
ate bargaining unit of Voith employees performing vehicle
processing duties at the LAP. Zuckerman pointed out that to
date Voith has refused to hire or consider for hire the Auto
Handling bargaining unit employees that were identified on the
seniority and address list that was provided as an attachment to
his prior letter dated February 14 (GC Exh. 18).
The record evidence establishes that Voith commenced the
hiring of janitorial and cleaning personnel in early to mid-
February 2012 in anticipation of getting the LAP facility ready
to fulfill its contractual responsibilities effective in April 2012.
Credible testimony was provided by former employees of
Auto Handling that the vehicle processing work performed by
them for Voith is identical to the work performed while they
worked for Auto Handling at the LAP. Indeed, the record es-
tablishes that four former supervisors of Auto Handling were
hired by Voith when they commenced operations at the LAP
(Steve Tingle, Jason Miller, Dennis Frank, and Caleb Wil-
liams). Testimony was also elicited that Voith hired 11 former
Auto Handling employees in April 2012, with 10 of these em-
ployees still being employed as of August 2012.

15 The collective-bargaining agreement between Ford and the UAW
permits such participation (R. UAW Exh. 1).
VOITH INDUSTRIAL SERVICES, INC. 31
Discussion
A successor employer is obliged to bargain with the union of
its employees if “the bargaining unit remains unchanged and a
majority of employees hired by the new employer were repre-
sented by a recently certified bargaining agent.” NLRB v. Burns
Security Services, 406 U.S. 272, 281 (1972). Elaborating on
this principle, the Board has explained that there must be both
“continuity in the workforce” and “continuity of the business
enterprise” to trigger the obligations of a successor. E.g., Ma-
rine Spill Response Corp., 348 NLRB 1282, 1285 (2006).
With respect to continuity of the business enterprise, the Su-
preme Court prescribes a totality of the circumstances test. Fall
River Dyeing Corp. v. NLRB, 482 U.S. 27, 43 (1987). The
Board considers “whether the business of both employers is
essentially the same; whether the employees of the new compa-
ny are doing the same jobs in the same working conditions
under the same supervisors; and whether the new entity has the
same production process, produces the same products, and
basically has the same body of customers.” Id.
Continuity in the work force is established if a majority of
the successor’s employees were employed by the predecessor.
Id. at 41. The Board, with the approval of the Courts, gauges
the union’s majority status at the time when a “substantial and
representative complement” of employees has been hired.
Grane Healthcare Co., 357 NLRB 1412 (2011) (citing Fall
River, 482 U.S. at 40). To determine whether a substantial and
representative complement exists, the Board considers
“‘whether the job classifications designated for the operation
were filled or substantially filled and whether the operation was
in normal or substantially normal production.’” Fall River, 482
U.S. at 49 (quoting Premium Foods, Inc. v. NLRB, 709 F.2d
623, 628 (9th Cir. 1983)). It also looks at “‘the size of the
complement on the[e] date and the time expected to elapse
before a substantially larger complement would be at work . . .
as well as the relative certainty of the employer’s expected
expansion.’” Id. (quoting Premium Foods, 709 F.2d at 628).
In assembling its work force, a successor “may not refuse to
hire the predecessor’s employees solely because they were
represented by a union or to avoid having to recognize a un-
ion.” U.S. Marine Corp., 293 NLRB 669, 670 (1989), enfd. 944
F.2d 1305 (7th Cir. 1991). In judging discrimination by a suc-
cessor, the Board uses the familiar Wright Line test. Planned
Building Services, Inc., 347 NLRB 670 (2006) (citing Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981)). The General Counsel carries the initial burden of estab-
lishing that the successor failed to hire employees of its prede-
cessor and was motivated by antiunion animus. Id. at 673. The
burden then shifts to the employer to show that it would not
have hired the predecessor’s employees even in the absence of
an unlawful motive.
In the Wright Line context, the General Counsel demon-
strates antiunion animus by establishing three elements. As the
Board explained in Kentucky River Medical Center, 356 NLRB
6 (2010), “The elements commonly required to support such a
showing are union or protected concerted activity by the em-
ployee, employer knowledge of that activity, and union animus
on the part of the employer.” Animus and discrimination may
be inferred from the circumstances and need not be established
directly. E.g., Sunshine Piping, Inc., 351 NLRB 1371, 1390
(2007). In addition, the Board approves the use of the follow-
ing factors to establish an unlawful refusal to hire:
[S]ubstantial evidence of union animus; lack of a convincing
rationale for refusal to hire the predecessor’s employees; in-
consistent hiring practices or overt acts or conduct evidencing
a discriminatory motive; and evidence supporting a reasona-
ble inference that the new owner conducted its staffing in a
manner precluding the predecessor’s employees from being
hired as a majority of the new owner’s overall work force to
avoid the Board’s successorship doctrine. [Planned Bldg.,
347 NLRB at 673 (alteration in original) (quoting U.S. Ma-
rine, 293 NLRB at 670).]
If an employer is found to have discriminated in hiring, the
Board assumes that, but for the unlawful discrimination, the
successor would have hired the predecessor employees in their
unit positions. Id. at 674 (citing Love’s Barbeque Rest. No. 62,
245 NLRB 78, 82 (1979), enfd. in relevant part sub nom.
Kallman v. NLRB, 640 F.2d 1094 (9th Cir. 1981)). More to the
point, it also assumes that the union would have retained its
majority status. E.g., GFS Bldg. Maintenance, Inc., 330 NLRB
747, 752 (2000) (citing State Distributing Co., 282 NLRB 1048
(1987)). Consequently, if in the meantime the employer has
refused to recognize and bargain with the union, it will be held
to have violated Section 8(a)(1) and (5) of the Act. Id. Under
these circumstances, the successor is also disqualified from
setting initial terms and conditions of employment. Massey
Energy Co., 354 NLRB 687 (2009) (citing Love’s Barbeque,
245 NLRB at 82).
Assuming arguendo that the factors for successorship are
present, the subject case presents the situation that a majority of
former Auto Handling employees were not hired by Voith. The
Board has held that successorship will be found in such circum-
stances if the new owner fails to hire the predecessor’s employ-
ees because of their affiliation with the union. Love’s Barbeque
Restaurant No. 62, 245 NLRB 78 (1979). Thus, the central
question herein is whether Respondent Voith refused to hire a
majority of the former employees of Auto Handling for anti-
union reasons.
I find that a substantial number of factors exist for finding
that Voith is a successor to Auto Handling. For example, Voith
conducted essentially the same business at the same location as
Auto Handling and the majority of the newly constituted bar-
gaining unit employees would have consisted of former em-
ployees of the predecessor, absent Voith’s unlawful discrimina-
tion. Further, it is well settled that successorship will be found
in such circumstances if the new owner fails to hire the prede-
cessor’s employees because of their affiliation with a labor
organization.
Respondent Voith argues that in order to meet the contractu-
al staffing requirements under its contracts with Ford it filled
the 50 initial vehicle processing positions with then current
employees. It contends that the employees were transferred to
vehicle processing positions, and were employed under the
terms and provisions of the collective-bargaining agreement
between Voith and Respondent UAW covering the janitorial
employees at the LAP (R. Voith Exh. 2).
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Voith’s asserted basis for not hiring the former Auto Han-
dling employees, while alleged to be nondiscriminatory proved
otherwise. For example, it is noted that due to the anticipated
opening of the LAP in early 2012, Voith found it necessary to
increase its janitorial staffing as only a small contingent of
cleaning personnel remained employed during the 2010–2011
shutdown period of the LAP. For this purpose, an increase in
recruitment for janitorial positions occurred, and on or about
February 17, approximately 40–50 cleaning personnel were
hired. During the interview process, the successfully hired
employees were specifically informed by Couch that they were
solely being considered for janitorial positions. The newly
hired employees reported to the LAP and attended an orienta-
tion on February 20, in which they reviewed safety videos and
were only trained on the duties and responsibilities of their
janitorial positions.
Record evidence shows, however, that Voith classified the
janitorial employees effective February 20 as vehicle pro-
cessing employees with a designation code of 2031 (R. Voith
Exh. 53). That classification code conflicts with official payroll
records that show the janitorial employees, who were trans-
ferred to vehicle processing positions, were being paid under a
937 janitorial code, and continued to be paid under that code
long after February 20 (GC Exh. 23). The conflict, as de-
scribed above, is consistent with record testimony that the new-
ly hired janitorial employees were not assigned nor did they
engage in vehicle processing duties on February 20.16 Indeed, a
number of these employees testified that they were approached
by Voith supervisors in late February and early March 2012,
and were informed that they would be required to perform driv-
ing duties. If the employees refused, the supervisors informed
them they would not have a job.
Based on the above, I find that Respondent Voith deliberate-
ly utilized janitorial employees, all of whom had no previous
experience in driving vehicles or loading rail cars at the LAP,
to exclude or limit the hiring of former Auto Handling employ-
ees on or after February 17.
Additional evidence to support this finding is established by
the following factors. First, it is noted that Respondent Voith
by letter dated October 21, 2011, before it was awarded the
contracts to perform work at the LAP, informed Ford that it had
a national contract with the UAW for all related sites and if
awarded the LAP contracts, the hourly employees would be
represented by the UAW (R. Voith Exh. 11). Second, while
Martinez testified that she did not eliminate any former Auto
Handling employees from the screening process, record evi-
dence proves otherwise, Indeed, in an email communication
between Martinez and Bauer, Aerotek determined to eliminate
from consideration well over 100 former Auto Handling em-
ployees who had previously performed vehicle processing work
(GC Exh. 102). Bauer, at no time, repudiated the decision to

16 Respondent UAW Shop Steward Blackmon, as an incumbent jani-
torial employee, applied for a vehicle processing position on February
13 (R. Voith Exh. 31). Blackmon testified that she did not officially
commence vehicle processing duties until mid March 2012, and contin-
ued to work the day shift in her janitorial classification as of April 11.
Likewise, it is noted that Blackmon continued to be paid under janitori-
al code 937 beyond March 2012 (GC Exh. 23).
exclude or limit the hiring of the former Auto Handling em-
ployees. Record evidence confirms, although Voith hired 11
former Auto Handling employees in April 2012 (R. Voith Exh.
57), the number represents only a small fraction of the perma-
nent full-time complement of 72 employees on board during
mid-April and early May 2012 (R. Voith Exh. 62(b) – (q)).
Third, Respondent Voith did not provide to Aerotek the seniori-
ty list of former Auto Handling employees attached to the
Charging Party’s February 14 request to hire the experienced
and well-trained former employees who had performed the
identical work at the LAP nor did it respond to the letter (GC
Exhs. 6 and 7). Fourth, Voith did not request Aerotek, until
March 1, to begin the process of recruiting for vehicle pro-
cessing positions, and Couch, by email dated February 28 was
still considering employees for janitorial positions (GC Exh.
77).
Under these circumstances, it is apparent that but for Re-
spondent Voith’s unlawful conduct set forth above, the Team-
sters status as the exclusive collective-bargaining representative
would have survived Respondent Voith’s assumption of the
vehicle processing work at the LAP. I find, therefore, that Re-
spondent Voith has violated Section 8(a)(1) and (5) of the Act.
Mammoth Coal Co., 358 NLRB 1643 (2012).
2. Refusal to hire or consider for hire allegations
Respondent Voith denies that it has refused to hire or con-
sider for hire the former employees of Auto Handling due to
their union affiliation or for discriminatory reasons.
To support this defense, Respondent Voith presented a time-
line commencing with its execution of the February 13 contract
with Ford, and the requirements to launch and perform the con-
tractual provisions between March 12 and 20 (R. Voith Exh.
37). To this end, they assert that while they received the initial
batch of applications from former Auto Handling employees on
February 14, the time necessary to source the applications,
conduct interviews, complete drug, background, behavioral
assessment, and physical abilities tests, in addition to complet-
ing mandatory vehicle processing training, did not permit them
to meet the launch and performance deadlines. Therefore,
Voith argues that lawful business necessity rather than discrim-
inatory motivation prevented the hiring of the former Auto
Handling employees.
I reject this argument for the following reasons. First, Couch
testified that it was not until mid-March 2012 when 25 of the
janitorial and cleaning personnel were transferred to perform
vehicle processing duties, and a week or more of training was
required to familiarize these employees with vehicle processing
responsibilities. Second, by email dated March 27, Voith Re-
gional Manager Elam Barnett noted that the launch date had
been pushed back to April 9, and only a small number of em-
ployees would be needed to drive vehicles to the off-site stor-
age yards to hold until Ford gets the okay to ship the vehicles
(GC Exh. 103). Barnett further stated that it will be necessary
to increase production over the next several weeks and approx-
imately 75 full-time employees should be sufficient to get us
through the first 30 days of the project.
Accordingly, based on Couch and Barnett’s pronounce-
ments, it is readily apparent that if Respondent Voith had com-
VOITH INDUSTRIAL SERVICES, INC. 33
menced the process of sourcing and completing the required
tests to complete the hiring process shortly after the February
14 receipt of the Teamster applications, the former employees
of Auto Handling could have been hired. Moreover, record
evidence confirms that the former Auto Handling employees
had the requisite experience and previously performed the iden-
tical vehicle processing work. Thus, with little or no training,
they could have been ready to meet the required launch and
performance dates specifically noting that initially only a small
number of employees would be needed to perform contractual
requirements. In making this finding, I specifically note that
the hiring and screening process conducted by Aerotek for for-
mer Auto Handling employees Byers, Johnson, and Schott was
completed in 37 days, for Murphy in 16 days, and during a 10-
day period for Swift, Cheatham, and Rhodes. Such evidence
completely undermines the timeline defense proffered by
Voith.
Record evidence confirms that Voith was clearly aware of
the union affiliation of the predecessors’ employees. It is also
clear that Voith did not want to recognize the Teamsters as it
feared the economic package that they would demand knowing
that it would far exceed the wage rate presently paid to its in-
cumbent UAW represented janitorial employees. Additionally,
as found above, Voith engaged in 8(a)(1) conduct, rendered
assistance and support to the UAW, and denied access to the
Charging Party to meet with its employees while granting ac-
cess to the UAW. All of these factors support a finding of dis-
crimination that establishes Voith’s motives in not hiring the
former Auto Handling employees. New Concepts Solutions,
LLC, 349 NLRB 1136 (2007).
Based on the foregoing, I find that Respondent Voith estab-
lished a hiring procedure designed to exclude or limit the hiring
and consider for hiring the former Auto Handling employees
who were members of the Charging Party in violation of Sec-
tion 8(a)(1) and (3) of the Act. Custom Leather Designers,
Inc., 314 NLRB 413, 418 (1994) (The effect of not hiring for-
mer represented employees was to deny the union any possible
majority status in its complement of employees).
3. Refusal to bargain allegations
The AGC alleges in paragraph 12 of the complaint that Re-
spondent Voith has failed and refused to recognize and bargain
in good faith with the exclusive collective-bargaining repre-
sentative of its employees within the meaning of Section 8(d)
of the Act and unilaterally established initial terms and condi-
tions of employment. Additionally, Respondent Voith without
notice or bargaining with the Teamsters unilaterally contracted
with Aerotek, Inc. to perform bargaining unit work.
The evidence establishes that Voith’s assumption of the ve-
hicle processing and inventory management services work at
the LAP did not occasion a change in the yard work done or the
manner in which it was accomplished. Indeed, Voith hired a
number of former Auto Handling supervisors to perform the
same duties and responsibilities at the LAP that they previously
performed as employees of Auto Handling.
Based on the above recitation, I find that Respondent Voith
violated Section 8(a)(1) and (5) of the Act when it refused to
recognize and bargain with the Charging Party and unilaterally
established initial terms and conditions of employment for em-
ployees in the unit. Here, any uncertainty as to what Respond-
ent Voith would have done absent its unlawful conduct must be
resolved against them. In these circumstances, I find that Re-
spondent Voith would have hired the former Auto Handling
employees but for their union affiliation. Therefore, it was not
entitled to set initial terms of employment without first bargain-
ing with the Charging Party about the conduct and the effects of
the conduct. Mammoth Coal Co., 354 NLRB 687 (2009).
I also find that when Respondent entered into a contract with
Aerotek to hire individuals other then the former Auto Han-
dling employees to perform bargaining unit work, it did so
without notifying and bargaining with the Charging Party.
Therefore, it further violated Section 8(a)(1) and (5) of the Act.
F. The 8(b)(1)(A) Violations17
The AGC alleges in paragraph 19 of the complaint that about
February 20, April 11 and 16, Respondent UAW received assis-
tance and support from Respondent Voith which allowed Re-
spondent UAW to meet with Respondent Voith’s employees in
order to urge them to sign membership applications and
checkoff authorizations.
The AGC further alleges in paragraph 20 of the complaint
that about February 20 and May 1, Respondent UAW obtained
recognition from Respondent Voith as the exclusive collective-
bargaining representative of the unit even though they did not
represent an uncoerced majority of the unit, and on February
20, Respondent Voith had not started normal business opera-
tions and did not employ in the unit a representative segment of
its ultimate employee complement.
The AGC argues, in support of the above allegations, that
when recognition was granted on February 22 and May 1, the
UAW did not have a valid majority because the authorization
cards that were solicited were coerced by unlawful conduct,
and the February recognition was improper because Respond-
ent Voith had not commenced normal business operations nor
did they employ in the unit a representative segment of its ulti-
mate employee complement.
The record establishes that between February 20 and 22, a
total of 50 authorization cards were solicited by the UAW and
signed by employees of Respondent Voith. Specifically, 39
authorization cards were signed on February 20, 9 were signed
between February 21 and 22, and 2 authorization cards were
illegible (GC Exh. 111).

17 Respondent UAW argues that the International Union should not
be held responsible for allegations alleged in pars. 19 and 20 of the
complaint. I reject this argument for the following reasons. First,
Respondent UAW did not raise this defense in its answer (GC Exh.
1(LL), and it is noted that the answer refers to the International and its
Local 862 as “collectively union.” Second, exhibits in the record estab-
lish Voith’s continuing discussions with International UAW representa-
tives concerning the recognition of the UAW as the bargaining repre-
sentative of the Voith vehicle processing employees (see GC Exhs. 31
and 41; R. Exhs. 38, 40, and 41). Third, the existing collective-
bargaining agreement between Voith and the UAW (GC Exh. 84; R.
Exh. 2) is with the International UAW and covered the posting re-
quirement for incumbent Voith janitorial employees to bid for vehicle
processing positions (GC Exhs. 29, 30; R. Exh. 31).
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As I found above in my discussion regarding paragraph 13 of
the complaint, the statements of UAW representatives in the
cafeteria on February 20 were coercive. Indeed, informing
employees that if they did not execute an authorization card it
could impact their job leaves employees between a rock and a
hard place. It thus establishes that the 39 employees who signed
authorization cards on February 20 were pressured to do so, and
therefore, the resulting majority status was invalid because it
was coerced by the UAW’s unlawful conduct. Fountainview
Care Center, 317 NLRB 1286, 1289 (1995) (recognition based
on cards tainted by coercion establishes there was not an
uncoerced majority).
Likewise, the evidence is overwhelming that on February 20,
Respondent Voith had not commenced normal business opera-
tions. Indeed, many employees testified, in a mutually corrobo-
rative way, that normal production had not commenced on
February 20. It is apparent that the employees attending the
orientation were hired for and were being instructed regarding
their duties associated with janitorial and cleaning responsibili-
ties. On February 20, there was no finished Ford product mov-
ing off the assembly lines, and therefore, no vehicle processing
or inventory management services work was being performed
by Voith employees. Rather, during the month of February
2012 only cleaning and janitorial responsibilities were ongoing
with some vehicle processing training occurring later in the
month for a small group of employees. Indeed, the evidence
shows that Bauer did not request Aerotek to commence the
recruitment of vehicle processing positions until March 1.
Although the above finding that Voith was not engaged in
normal business operations on February 20–22 would alone
establish a violation, the evidence also shows that the employee
complement at the LAP fell far short of a substantial and repre-
sentative complement. In this regard, it is noted that the new
employee’s attending the orientation on February 20 were ex-
clusively hired to perform janitorial and cleaning responsibili-
ties. It was not until on or about May 1 that Voith reached its
vehicle processing permanent full-time complement of 72 re-
quired to fulfill the terms of the contracts it executed with Ford
on February 13 and March 1. Indeed, this was recognized by
Voith when it withdrew its previous grant of recognition to the
UAW on April 9 (GC Exh. 17; R. Voith Exh. 41).
As it concerns the recognition obtained on May 1, I also find
that the showing of interest was coercively obtained and the
authorization cards were tainted because of unlawful UAW
conduct. In this regard, as discussed above, I found that the 39
authorization cards signed on February 20 were coercively
obtained. By letter dated April 10, the UAW informed Voith
employees that while recognition has been withdrawn on April
9, we still have those authorization cards that were signed in
February 2012, and intend to use them to help prove majority
status when Voith reaches its normal business operations (GC
Exh. 40). The evidence shows that 23 authorization cards were
obtained on April 11. An additional six authorization cards
were signed on April 10, 17, 18, 19, and 20, however, no evi-
dence was presented addressing the circumstances on where
and how those cards were executed. With respect to the cards
obtained on April 11, of the 23 cards signed on that date, 17
were solicited by Hunt. As I found above regarding the discus-
sion in paragraph 17 of the complaint, the solicitation by Hunt
of those authorization cards was obtained under coercive condi-
tions. Therefore, when combining the 39 authorization cards
obtained under coercive conditions on February 20 with the
additional 17 tainted cards on April 11, I find that 56 authoriza-
tion cards must be excluded from a valid majority. The record
confirms that Voith’s full-time permanent complement of vehi-
cle processing employees reached 72 on or about May 1, after
Voith commenced normal business operations at the LAP. By
that time, Voith had transferred at least 25 of the janitorial and
cleaning employees, some of whom as discussed above were
coercively forced to do so, to vehicle processing positions. It is
also noted that included in the complement of 72 were 11 for-
mer Auto Handling employees and members of the Teamsters
who declined to execute UAW authorization cards. Therefore,
of the remaining 61 employees that executed UAW authoriza-
tion cards, at least 56 of those cards were obtained by coercive
methods and tainted the overall majority. Even if you only
consider the 39 authorization cards obtained on February 20
that were used to support the May 1 grant of recognition, there
still is not a valid majority.18
Accordingly, I find that on February 22 and on May 1, when
recognition was granted to Respondent UAW, it was not valid
because it was coerced by the UAW’s unlawful conduct, and
since they did not represent an uncoerced majority, Section
8(b)(1)(A) of the Act was violated. Additionally, I find that by
demanding and accepting recognition on February 22, at a time
that Voith was not engaged in normal business operations and
did not employ in the unit a representative segment of its ulti-
mate employee complement, the UAW also violated Section
8(b)(1)(A) of the Act. Hilton Inn Albany, 270 NLRB 1364,
1365 (1984), citing Herman Bros. Inc., 264 NLRB 439 (1982).
G. Respondent Voith’s Affirmative Defenses
Respondent Voith argues that it is not a successor employer
to Auto Handling based on a number of reasons that it articulat-
ed during the course of the subject hearing.
First, Voith argues that the car hauling operations at the LAP
ended in October 2010 with the termination of the contract
between Ford and Auto Handling.
While this assertion is technically correct, the issue presented
for consideration is whether after Voith was awarded the con-
tracts to manage the vehicle processing and inventory manage-
ment services at the LAP, it was violative of the Act for Voith
not to have hired the former employees of Auto Handling to
perform the identical work. As found above, Voith violated
the Act by its refusal to recognize and bargain with the Charg-
ing Party and not hire the former employees of Auto Handling.
Second, Voith asserts that Auto Handling prior to the LAP
shutdown performed the car hauling work in its entirety. Since
March 2012, when the car hauling work was reestablished, it

18 GC Exh. 111 represents that 21 authorization cards signed on Feb-
ruary 20 were used to support the second grant of recognition on May
1. Even if this number is used combined with the 17 authorization
cards solicited by Hunt on April 11, the result would be the same as the
UAW did not represent an uncoerced majority on May 1 (38 tainted
cards in a unit of 72).
VOITH INDUSTRIAL SERVICES, INC. 35
has been parsed and now there are six contractors performing
the work.
Voith’s argument attempts to lump the functions that were
created in 2012 as car hauling to the exclusion of the traditional
yard work that has been performed on a continuing basis at the
LAP for over 60 years. It is the yard work that the AGC and
the Charging Party argue should continue to be performed by
the former Auto Handling employees under the February 13
contract between Voith and Ford.
The evidence establishes that after March 2012, when the
LAP was reopened,19 Ford utilized a new Renaissance distribu-
tion lot that previously did not exist in 2008–2010 that is locat-
ed approximately 3 miles south of the LAP. Ford, in 2012,
also uses a lot in Shelbyville, Kentucky, as an off load rail loca-
tion. Prior to the shutdown of the LAP in 2010, Auto Handling
performed the entire car hauling work from the portal of the
LAP and the KTP to the ultimate dealer. After the reopening of
the LAP, the car hauling work has been awarded to six inde-
pendent contractors who each handle a portion of the work-
load.20 The Charging Party represents the drivers employed by
Allied Trucking,21 RCS Inc., and Cooper Transport but another
Teamsters local represents the Cassens drivers. AWC performs
inventory management at the Renaissance lot, using a sophisti-
cated soft ware program, and employs two individuals who are
not represented by any labor organization. Prior to the shut-
down in December 2010, Allied Trucking, RCS, and Cooper
Transport did not come to the LAP to perform car hauling re-
sponsibilities. After March 2012, RCS swaps vehicles between
the LAP and the KTP, and drives vehicles from the KTP to the
Shelbyville lot. They also drive single units from the Renais-
sance lot to the Shelbyville lot, a distance of approximately 33
miles, and load the vehicles on rail cars.22 Cooper Transport
performs car hauling and shuttle work at the Renaissance lot
and is responsible for placing vehicles driven to the lot by em-
ployees of Voith on car hauling trucks for delivery to the ulti-
mate dealers. Since March 2012, the above employers have
operated exclusively from the Renaissance lot performing car
hauling responsibilities. Since April 2012, Voith drives vehi-
cles from the LAP to the Renaissance lot and loads them on rail
cars. Auto Handling did the same type of rail loading work
prior to the shutdown but the lot was on the LAP premises ap-
proximately 50–100 yards away from the staging area that
stores the finished vehicles.
The record evidence is clear that the work being sought by
the Charging Party is the same work as was previously per-
formed at the LAP prior to the shutdown in December 2010.23

19 The KTP did not close for retooling and remained open for all ma-
terial times manufacturing trucks.
20 The car hauling work is performed by Voith, Cassens Trucking,
Allied Motors, RCS Inc., AWC, and Cooper Transport.
21 Allied performs 70 percent and Cooper Transport 30 percent of
the car hauling work from the Renaissance lot.
22 RCS also drives single units from the LAP to the Shelbyville lot
but of the 55 jobs promised by Ford only 16 have materialized.
23 Voith’s argument that there was no reasonable expectation of re-
hiring the former Auto Handling employees due to the lengthy hiatus
between the shutdown and reopening of the LAP is rejected. In this
regard, the significance of a hiatus is whether it impacts the employees’
Indeed, the complaint allegations do not seek the car hauling
work that is performed by other independent contractors as
described above.
Therefore, I find that Voith has continued the employing en-
tity in basically unchanged form and is the successor to Auto
Handling for the yard work it presently performs at the LAP
facility.
Respondent Voith additionally asserts that the vehicle pro-
cessing work under its contract with Ford constitutes an accre-
tion to the existing janitorial bargaining unit established under
the terms of the collective-bargaining agreement between it and
the UAW (R. Voith Exh. 2; GC Exh. 84). It further argues that
the collective-bargaining agreements at other Ford locations
intended to extend and did extend to the vehicle processing
performed by it at the LAP. It also argues that it extended
recognition to the UAW on May 1 based on a card check which
obligates it to recognize and bargain with the UAW.
The Board follows a restrictive policy in finding accretion
because it forecloses the employees’ basic rights to select their
own bargaining representative. Towne Ford Sales, 270 NLRB
311 (1984); Melbet Jewelry Co., 180 NLRB 107 (1970).
Accretion is not applicable to situations in which the group
sought to be accreted would constitute a separate appropriate
bargaining unit. Passavant Retirement & Health Center, 313
NLRB 1216 (1994). The Board will find a valid accretion
when the extended recognition involves employees who have
little or no separate group identity and when the additional
employees share an overwhelming community of interest with
the pre-existing unit. Super Valu Stores, 283 NLRB 134, 136,
(1987); Safeway Stores, 256 NLRB 918 (1981).
The Board when considering the appropriateness of accreting
employees into an established bargaining unit evaluates the
following factors: “the integration of operations, centralization
of managerial and administrative control, geographic proximi-
ty, similarity of working conditions, skills and functions, com-
mon control over labor relations, collective-bargaining history
and interchange of employees.” TRT Telecommunications
Corp., 230 NLRB 139, 141 (1977).
Applying the above principles leads me to conclude that the
yard work that was previously performed by the former em-
ployees of Auto Handling is not an appropriate accretion to the
existing janitorial unit contained in the collective-bargaining
agreement between Voith and the UAW. In this regard, the
working conditions, skills and functions, and bargaining history
and interchange of employees are not found when comparing
the work history of the two units. For example, when the for-
mer employees of Auto Handling performed the yard work
prior to the shutdown and the janitorial unit existed at the LAP,
there was little or no interchange of personnel and the skills and
functions of both job descriptions are completely different.
When Voith was awarded the contract in February 2012 to
perform the yard work, the evidence establishes that the janito-

expectations of rehire. Record evidence confirms that prior to Voith’s
assumption of the yard work the successor companies at the LAP rou-
tinely hired the predecessor’s employees and recognized the Charging
Party. In similar circumstances, the Board has found violations of the
Act. Tree-Free Fiber Co., 328 NLRB 389 (1999).
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rial employees did not have the requisite skills or experience to
perform the vehicle processing duties. Moreover, the employ-
ees were presented with the choice of accepting the driving
responsibilities or losing their jobs. Therefore, I reject the ar-
guments advanced by Respondent Voith that the yard work its
current employees perform is an accretion to the existing janito-
rial bargaining unit contained in its collective-bargaining
agreement with the UAW.24 Further support for this finding is
Respondent UAW’s determination on February 20 that the
janitorial collective-bargaining agreement and the vehicle pro-
cessing work are independent entities of each other, and there-
fore, it was decided not to include the vehicle processing work
in the janitorial collective-bargaining agreement (GC Exh.
72).25
Likewise, I reject the other arguments advanced by Voith re-
garding the appropriateness of the unit. First, as I previously
found the showing of interest presented to Voith on May 1 was
tainted and therefore is null and void. Thus, on that date, there
was no legitimate collective-bargaining representative of the
Voith employees. Additionally, relying on one collective-
bargaining agreement in a Michigan Ford plant (MAP) to re-
quire the yard work to be extended to the UAW at the LAP is
misplaced (R. Voith Exh. 6). In fact, the MAP agreement spe-
cifically covers haul away services rather than yard work.
Likewise, the UAW has separate contracts for the janitorial and
vehicle processing work at the MAP, and the vehicle pro-
cessing work was not acquired until January 2011. Voith’s
argument that any new work that it obtains at any existing Ford
facility where they operate is included under its janitorial na-
tional collective-bargaining agreement based on the phrase
“work of a continuous nature” is unfounded. Record evidence
shows that janitorial and cleaning work is not of a continuous
nature when compared to the intricate and hazardous yard work
performed at the LAP. This is evident based on the existence
of separate collective-bargaining agreements at the LAP for
janitorial and vehicle processing duties since at least 2008, and
the rejection of this position by the UAW (GC Exh. 72).26
Likewise, arguments advanced with respect to collective-
bargaining agreements at a Springhill General Motors plant that
once included car hauling and rail loading work in the parties’
2005–2008 collective-bargaining agreement (R. Voith Exh. 4)
that subsequently was removed from the successor 2008–2011
agreement (R. Voith Exh. 3) is also unavailing. Lastly, the
reliance on a single Arbitration Award concerning the eligibil-
ity of laid-off employees for holiday pay and benefits to sup-
port the appropriateness of extending recognition in the subject

24 Gebhardt testified that Voith is not applying all the terms of the
UAW janitorial collective-bargaining agreement (R. Voith Exh. 2) to
the yard employees working at the LAP.
25 As noted in Respondent Voith’s posthearing brief, the Board lim-
ited the application of Gitano where the work does not constitute an
accretion. Coca-Cola Bottling Co. of Buffalo, Inc., 325 NLRB 312
(1998).
26 Voith’s reliance on the contractual “after-acquired provision” was
first raised in its answer and during the course of the hearing. This
defense, as admitted by Gebhardt, was not presented to the AGC during
the course of the investigation nor prior to the issuance of the subject
complaint.
case is misplaced (R. Voith Exh. 5). Moreover, a single award
of an Arbitrator is not binding on Board proceedings.
Accordingly, based on my findings above, the former em-
ployees of Auto Handling were not hired by Voith because of
their union affiliation and to avoid recognizing and bargaining
with the Teamsters.
CONCLUSIONS OF LAW
1. Respondent Voith is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Teamsters and Respondent UAW are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. The following employees’ constitutes a unit appropriate
for collective bargaining within the meaning of Section 9(b) of
the Act.
All employees as set forth in Article 3 of the National Master
Automobile Transporters Agreement, Central and Southern
Area Supplemental Agreements and the Job Descriptions
provisions of the Local Rider.
4. Respondent Voith engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act when in an employ-
ment interview on March 5, 2012, at the offices of Aerotek,
Inc., they told an employee that if the employee was hired the
employee would have to become a member of the UAW. Ad-
ditionally, Respondent Voith violated Section 8(a)(1) of the Act
when its agent at Aerotek informed an employee that in order to
be hired he would have to refrain from engaging in Section 7
activity and by denying Teamsters Local 89 access to its em-
ployees while granting access to the UAW.
5. Respondent Voith engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (2) of the Act by rendering
assistance and support to Respondent UAW by allowing the
UAW to meet with its employees during orientation sessions
and work time in order to urge the employees to sign member-
ship applications and checkoff authorizations. Additionally,
Respondent Voith granted recognition to Respondent UAW
even though the UAW did not represent an uncoerced majority
of the unit and at a time prior to the commencement of its nor-
mal business operations when it did not employ in the unit a
representative segment of its ultimate employee complement.
6. Respondent Voith engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act by imple-
menting a plan to hire 84 employees with the intention of ex-
cluding the hiring of applicants who were former employees of
Auto Handling or members of the Teamsters because they en-
gaged in concerted activities or in order to avoid an obligation
to recognize and bargain with the Teamsters.
7. Respondent Voith is a successor to Auto Handling, Inc.
with respect to the obligation to recognize and bargain with the
Teamsters representing employees in the above unit, and there-
fore violated Section 8(a)(1) and (5) of the Act by its refusal to
do so.
8. Respondent UAW engaged in unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act by receiving as-
sistance and support from Respondent Voith which allowed the
UAW to meet with its employees in order to urge the employ-
ees to sign membership applications and checkoff authoriza-
VOITH INDUSTRIAL SERVICES, INC. 37
tions. Additionally, Respondent UAW obtained recognition
from Respondent Voith even though they did not represent an
uncoerced majority in the unit and at a time Respondent Voith
had not started normal business operations nor employed in the
unit a representative segment of its ultimate employee comple-
ment.
REMEDY
Having found that Respondent Voith and Respondent UAW
have engaged in certain unfair labor practices, I shall recom-
mend that they be ordered to cease and desist and to take cer-
tain affirmative actions designed to effectuate the policies of
the Act.
Having found that Respondent Voith discriminatorily re-
fused to hire the former Auto Handling unit employees, I rec-
ommend that Voith be ordered to immediately offer to the indi-
viduals listed in attachment A employment in the positions for
which they would have been hired, absent Respondent Voith’s
unlawful discrimination, or if those positions no longer exist, to
substantial equivalent positions, discharging if necessary any
employees hired to fill those positions. The employees listed in
attachment A shall be made whole for any loss of earnings they
may have suffered due to the discrimination against them. The
backpay is to be calculated in accordance with the formula
approved in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons, 283 NLRB 1173 (1987).
In accordance with Kentucky River Medical Center, 356 NLRB
6 (2010), backpay and/or monetary awards shall be paid with
interest compounded on a daily basis.
Having found that Respondent Voith unlawfully refused to
bargain collectively with the Teamsters, I shall also recommend
that Voith be ordered to recognize and bargain with the Team-
sters concerning wages, hours, benefits, and other terms and
conditions of employment of bargaining unit employees, upon
request by the Teamsters. In addition, and in order to remedy
Respondent Voith’s unlawful unilateral changes to wages, ben-
efits, and terms and conditions of employment that went into
effect when they began to employ individuals to perform unit
work on April 9, 2012, I shall recommend that Respondent
Voith be ordered to rescind the unilateral changes and make the
employees whole by remitting all wages and benefits that
would have been paid absent Voith’s unlawful conduct, until
Respondent Voith negotiates in good faith with the Teamsters
to agreement or to impasse, subject to Respondent Voith’s
demonstration in a compliance hearing that had lawful bargain-
ing taken place, less favorable terms than had existed under
Auto Handling would have been lawfully imposed. Planned
Building Services, 347 NLRB 670, 674–676 (2006). This re-
medial measure is intended to prevent Respondent Voith from
taking advantage of their wrongdoing to the detriment of the
employees and to restore the status quo ante thereby allowing
the bargaining process to proceed. U.S. Marine Corp., 944
F.2d 1305, 1322–1323 (7th Cir. 1991), cert. denied 503 U.S.
936 (1992). Employees shall be made whole in the manner
prescribed in Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizon, supra.
Respondent Voith shall make whole the unit employees by
paying any and all delinquent employee benefit fund contribu-
tions, including any additional amounts due the funds in ac-
cordance with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). In addition, Respondent Voith shall reim-
burse unit employees for any expenses ensuing from the failure
to make required contributions, as set forth in Kraft Plumbing
& Heating, 252 NLRB 891 fn 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981), such amounts to be computed in the man-
ner set forth in Ogle Protection Service, supra, with interest as
prescribed in New Horizons for the Retarded, supra.
The AGC requests that Respondent Voith’s employees (not
the discriminatees) be compensated for any loss of wages or
benefits stemming from Respondent’s unilateral change to
terms and conditions of employment. I agree that this relief is
appropriate. See Love’s Barbeque Restaurant No. 62, 245
NLRB 78, 83 (1979) (ordering a like remedy). Likewise, while
not former Auto Handling employees, numerous Teamster
affiliated employees’ submitted applications to Voith but were
not hired or considered for hire. Based on record testimony
that approximately 300 permanent and temporary vehicle pro-
cessing positions were available during the April 2012 startup
period and subsequent months, a sizable pool of discriminates
existed that should have been considered for those positions.
The AGC also requests that a responsible management offi-
cial in a meeting or meetings be ordered to read aloud the no-
tice to employees in this case, and permit a representative of
Teamsters Local 89 to be present. I agree that Respondent
Voith should be required to do so. As the Board has explained,
the purpose of requiring a manager to read a notice aloud to
employees is to better impress upon the employees the fact that
the employer and its officials are bound by the Act. Marquez
Bros. Enterprises, Inc., 358 NLRB 509 (2012) (citing Federat-
ed Logistics & Operations, 340 NLRB 255, 258 (2003), enfd.
400 F.3d 920 (D.C. Cir. 2005)). The Board explained that it
will require a notice to be read aloud “where an employer’s
misconduct has been ‘sufficiently serious and widespread that
reading of the notice will be necessary to enable employees to
exercise their Section 7 rights free of coercion.’” Jason Lopez’
Planet Earth Landscape, Inc., 358 NLRB 383 (2012) (quoting
HTH Corp., 356 NLRB 1397 (2011)). In this case, the unfair
labor practices occurred on a large scale. There were numerous
discriminates and the unfair labor practices were very serious.
After executing the contracts with Ford on February 13 and
March 1, 2012, Respondent Voith, driven by antiunion animus,
discriminated against members of the bargaining unit in assem-
bling its work force. This is tantamount to an effort to wholly
dislodge the Teamsters from its statutory role as bargaining
representative of the employees. As a deliberate attempt to
deprive the Union of its role as bargaining partner, it strikes at
the heart of the national policy embodied in the Act, viz., “en-
couraging the practice and procedure of collective bargaining.”
The AGC requests that, as part of the make-whole remedy,
Respondent should be ordered to reimburse the difference in
taxes owed upon receipt of a lump-sum payment and to submit
documentation to the Social Security Administration so that
back pay would be allocated to appropriate periods. Since the
Board is presently considering this issue, I will not make a
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ruling regarding this request. Latino Express, Inc., 358 NLRB
No. 823 (2012).
In addition to physical posting of paper notices, notices shall
be distributed electronically, such as by email, posting on an
intranet or internet site, and/or other electronic means, if Re-
spondent Voith or Respondent UAW customarily communi-
cates with its employees or its members by such means. J.
Picini Flooring, 356 NLRB 11 (2010). The posting of the pa-
per notice by Respondent Voith and Respondent UAW shall
occur at all places where notices to employees and members are
customarily posted.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended27
ORDER
Respondent Voith, Louisville, Kentucky, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Informing employees that if they were hired the employ-
ees would have to become members of the UAW.
(b) Rendering assistance, support, and recognizing the UAW
at a time that the UAW did not represent an uncoerced majority
of the unit or at a time that it did not employ in the unit a repre-
sentative segment of its ultimate employee complement.
(c) Refusing to hire the former employees of the predecessor
Auto Handling, Inc. because they engaged in concerted activi-
ties or to avoid an obligation to recognize and bargain with the
Teamsters.
(d) Refusing to recognize and bargain in good faith with the
Teamsters as the exclusive collective-bargaining representative
of its employees in the following appropriate unit:
All employees as set forth in Article 3 of the National Master
Automobile Transporters Agreement, Central and Southern
Area Supplemental Agreements and the Job Descriptions
provisions of the Local Rider.
(e) Unilaterally setting initial terms and conditions of em-
ployment for employees in the unit without first giving notice
to and bargaining with the Teamsters about these changes.
(f) Granting the UAW access to its employees while denying
access to the Teamsters.
(g) Informing its employees as a condition of being hired
they would have to promise to refrain from engaging in Section
7 protected activity.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Notify the Teamsters in writing that it recognizes them as
the exclusive representative of its unit employees under Section
9(a) of the Act and that it will bargain with it concerning terms
and conditions of employment for employees in the unit.

27 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(b) Recognize and, on request, bargain with the Teamsters as
the exclusive representative of the employees in the unit con-
cerning terms and conditions of employment and if an under-
standing is reached, embody the understanding in a signed
agreement.
(c) At the request of the Teamsters, rescind any departures
from terms and conditions of employment that existed immedi-
ately prior to Respondent Voith’s takeover of predecessor Auto
Handling’s operation, retroactively restoring preexisting terms
and conditions of employment, including wage rates and bene-
fit plans, until it negotiates in good faith with the Teamsters to
agreement or to impasse.
(d) Make whole, in the manner set forth in the remedy sec-
tion of this decision, the unit employees for losses caused by
Respondent Voith’s failure to apply the terms and conditions of
employment that existed immediately prior to its takeover of
predecessor Auto Handling’s operation, subject to Respondent
Voith’s demonstrating in a compliance hearing that, had it law-
fully bargained with the Teamsters, it would have, at some
identifiable time, lawfully imposed less favorable terms than
those that had existed under its predecessor.
(e) Withdraw and withhold all recognition from the UAW
and its Local 862 as the exclusive collective-bargaining repre-
sentative of its employees unless and until the UAW has been
certified by the National Labor Relations Board as the exclu-
sive collective-bargaining representative of our employees.
(f) Within 14 days from the date of this Order, offer em-
ployment to the following named former unit employees of the
predecessor as set forth in attachment A, and other similarly
situated employees, who would have been employed by Re-
spondent Voith but for the unlawful discrimination against
them, in their former positions or, if such positions no longer
exist, in substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed, discharging if necessary any full-time or temporary em-
ployees hired in their place.
(g) Make the employees set forth in attachment A, and other
similarly situated employees whole for any loss of earnings and
other benefits they may have suffered by reason of Respondent
Voith’s unlawful refusal to hire them, in the manner set forth in
the remedy section of this decision.
(h) Within 14 days from the date of this decision, remove
from its files any reference to the unlawful refusal to hire the
employees set forth in attachment A, and within 3 days thereaf-
ter, notify them in writing that this has been done and that the
refusal to hire them will not be used against them in any way.
(i) Rescind its contract with Aerotek to perform work which
otherwise would have been performed by the former employees
of Auto Handling, and offer any jobs created by this rescission
to the employees set forth in attachment A or to other similarly
situated employees.
(j) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records, and reports, and all other
records, including an electronic copy of such records if stored
VOITH INDUSTRIAL SERVICES, INC. 39
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(k) Within 14 days after service by the Region, post copies
of the attached notice marked “Appendix A.”28 Copies of the
notice, on forms provided by the Regional Director for Region
9 after being signed by Respondent Voith’s authorized repre-
sentative, shall be posted by Respondent Voith immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent Voith to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, Respondent Voith
has gone out of business or closed the facility involved in these
proceedings, Respondent Voith shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by Respondent Voith at any time
since January 31, 2012.
(l) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent Voith has taken to comply.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended29
ORDER
Respondent United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL–CIO and Local 862, its
officers, agents, and representatives shall
1. Cease and desist from
(a) Accepting assistance and support from Respondent Voith
in order to meet with employees in order to urge them to sign
membership applications and checkoff authorizations.
(b) Obtaining recognition from Respondent Voith at a time
that we did not represent an uncoerced majority in the unit and
when Respondent Voith had not started normal business opera-
tions nor employed in the unit a representative segment of its
ultimate employee complement.
(c) Accepting recognition from Respondent Voith unless we
are certified by the National Labor Relations Board as the ex-
clusive collective-bargaining representative of its employees.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post copies at
its union office copies of the attached notice marked “Appendix
B.”30 Copies of the notice, on forms provided by the Regional
Director for Region 9, after being signed by the UAW’s author-
ized representative, shall be posted by the UAW immediately

28 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
29 See fn. 27, supra.
30 See fn. 28, supra.
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to members
are customarily posted. Reasonable steps shall be taken by the
UAW to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the UAW has gone out of busi-
ness or closed its office involved in these proceedings, the
UAW shall duplicate and mail, at its own expense, a copy of
the notice to all current members and employees and former
employees employed by Auto Handling, Inc. at any time since
February 20, 2012.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
UAW has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. December 21, 2012
ATTACHMENT A
Babbage, Terron Miguel McCrory, Timothy Kyle
Bassett, Angela Elizabeth McGee, Vivian J.
Bernard, Jason Neal Miller, Ralph C.
Blandford, Shawn K. Moon, Roy L.
Bowman-Miles, Patsy Morris, Tanitra Tonett
Bridges, Roy A. Murphy, Michael Ronald
Bridges, Paul M. Murphy, Patti Jo
Brooks, Lonnie Paul Murphy, Tammy Jo
Burden, Michael Norbury, Jason J.
Burkhart, Maranda Jane Page Jr., Marvin E.
Burton, Mark Anthony Pinkard, Cassandra
Burton, Richard D. Poland, Dathan L.
Byers, Tiffany L. Pope, Marcus D.
Byers, Jason P. Proctor, John A.
Cheatham, Deborah Susan Ragland, Rickey
Clark, Jewell Loury Rankin, Michael Lynn
Davis, Johnny Edward Rasool, Rasheed M.
Doss, Helen K. Rhodes, James Leroy
Downs, June Gail Rhodes, Sandra Darlene
Downs, William C. Rhodes, Tonya Lynett
Dudeck Jr., Joseph Charles Ruzanka, Robert John
Faulkner, Adam Troy Sawyer, Eric L.
Fenwick, Virginia Sue Schofield, Kathy Jane
Fields, Bronston Shane Schott, Aaron M.
Filburn, Adam Troy Scott, Gary M.
Flanagan, James Christopher Scott, Donna Sue
Flemming, Louis E. Shaw, Donald L.
Fluhr, Russell Glenn Shelburne, Angela R.
Gilkey, Richard Edward Smallwood, James
Timothy
Girdley, James Wayne Smith, Christopher S.
Goldsmith, Anthony Scott Stein, Kelly
Goodrich, Damon A. Stephenson, Alicesha
Grether, Wayne Henry Sullivan, Michael J.
Helm, Walter L. Swift, Brenda Fay
Helm, Brenda L. Tweedy, Bernard
Helm, Marcus D. Waddle, Jamie Glenn
Johnson, Greg C. Walker, Mickey David
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Kelley, Theoras Andre Whitley, Kelly Denise
Kelley, Bronda Wieseman, Emily K.
Lewter, Kimberly Dawn Willis, Kenneth B.
Lockard, Tammy Lou Womack, Tyrone M.
Lowery, Jermaine D. Wordlow, Darrick
McCray, Michael A.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT tell you that your employment is dependent on
becoming a member of the UAW or its Local Union No. 862.
WE WILL NOT assist the UAW by allowing them to use our
facilities to solicit our employees to become members of the
UAW while our employees are on worktime.
WE WILL NOT, tell you, or instruct our hiring contractor,
Aerotek, Inc., or any other hiring contractor, to tell you that you
cannot work for us unless you waive your right to engage in
lawful picketing or other Section 7 activity.
WE WILL NOT refuse to hire or otherwise discriminate against
applicants, including former employees of the predecessor em-
ployer, Auto Handling, Inc., a wholly owned subsidiary of Jack
Cooper Transport Company, to avoid bargaining with Team-
sters Local 89.
WE WILL NOT assist, recognize and bargain with UAW as the
collective-bargaining representative of our employees who are
employed by us at the Ford Motor Company Louisville Ken-
tucky Assembly plant, performing vehicle processing including
staging, shuttle and yard/inventory work, unless and until the
UAW has been certified by the National Labor Relations Board
as the exclusive collective-bargaining representative of these
employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of their rights under
Section 7 of the Act.
WE WILL, withdraw and withhold all recognition from the
UAW as the collective-bargaining representative for our em-
ployees at the Ford Motor Company Louisville Kentucky As-
sembly plant, performing vehicle processing including staging,
shuttle, and yard/inventory work, unless and until the UAW has
been certified by the National Labor Relations Board as the
exclusive collective-bargaining representative for these em-
ployees.
WE WILL notify the Teamsters in writing, that we recognize it
as the exclusive collective-bargaining representative of our
employees.
WE WILL, upon request, recognize and bargain with the
Teamsters as the exclusive representative of our employees
employed by us at the Ford Motor Company Louisville Ken-
tucky Assembly plant, performing vehicle processing including
vehicle staging, shuttle, and yard/inventory work, concerning
their terms and conditions of employment, and if an under-
standing is reached, embody the understanding in a signed
agreement.
WE WILL, at the request of the Teamsters, rescind any depar-
tures from the terms and conditions of employment that existed
immediately prior to our award of the predecessor Auto Han-
dling, Inc. vehicle processing operations, retroactively restore
preexisting terms and conditions of employment, including, but
not limited to wage rates and benefit plans, until we negotiate
in good faith with the Teamsters to agreement or to impasse.
WE WILL offer, in writing, immediate and full employment to
the employees of the predecessor Auto Handling, Inc., named
on attachment A, in the order of our receipt of their employ-
ment applications, without prejudice to their seniority and other
rights and privileges, discharging if necessary employees pre-
viously hired to make room for them, and make them whole for
any loss of earnings they may have suffered by reason of our
unlawful failure to hire them.
WE WILL offer, in writing, immediate and full employment to
the other applicants whose applications were submitted to us by
the Teamsters for vehicle processing work in the order of our
receipt of their employment applications, without prejudice to
their seniority and other rights and privileges, discharging if
necessary employees previously hired to make room for them,
and make them whole for any loss of earnings they may have
suffered by reason of our unlawful failure to hire them.
WE WILL rescind our contract with Aerotek, Inc. to hire em-
ployees at the Louisville Kentucky Assembly plant.
VOITH INDUSTRIAL SERVICES, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09-CA-075496 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.
VOITH INDUSTRIAL SERVICES, INC. 41
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.
WE WILL NOT accept assistance and support from Voith In-
dustrial Services, Inc. in order to meet with employees in order
to urge them to sign membership applications and checkoff
authorizations.
WE WILL NOT obtain recognition from Voith Industrial Ser-
vices at a time that we did not represent an uncoerced majority
in the unit and when Voith Industrial Services, Inc. had not
started normal business operations nor employed in the unit a
representative segment of its ultimate employee complement.
WE WILL NOT accept recognition from Voith Industrial Ser-
vices, Inc. unless we are certified by the National Labor Rela-
tions Board as the exclusive collective-bargaining representa-
tive of its employees.
WE WILL NOT in any like or related manner restrain or coerce
employees in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
UNITED AUTOMOBILE AEROSPACE AND AGRI-
CULTURAL IMPLEMENT WORKERS OF AMERICA, AFL–
CIO AND LOCAL 862
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/09-CA-075496 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.