Prime Equipment

National Labor Relations Board - Board Decisions

Mar 10, 2000

330 N.L.R.B. 815 (N.L.R.B. 2000)

PRIME EQUIPMENT 815
Prime Service, Inc. d/b/a Prime Equipment and Op-
erating Engineers Local Union No. 3, Interna-
tional Union of Operating Engineers, AFL–CIO.
Case 32–CA–17101
March 10, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND
HURTGEN
On September 24, 1999, Administrative Law Gerald
A. Wacknov issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Prime Services, Inc. d/b/a
Prime Equipment, Houston, Texas, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order.

George Velastegui, Esq., for the General Counsel.
Kathrin E. Sears, Esq. (Gibson, Dunn & Crutcher), of Palo
Alto, California, for the Respondent.
Paul D. Supton, Esq. and Mary M. Leichliter, Esq. (Van Bourg,
Weinberg, Roger & Rosenfeld), of Oakland, California, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice of hearing in this matter was held before me in Oak-
land, California, on May 27 and 28, 1999. The charge was
filed on November 12, 1998, by Operating Engineers Local
Union No. 3, International Union of Operating Engineers,
AFL–CIO (the Union). On January 22, 1999, the Regional
Director for Region 32 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing alleging
violations by Prime Service, Inc., d/b/a Prime Equipment (the
Respondent) of Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act) and on April 22, 1999, following the
filing of an amended charge by the Union on April 16, 1999,
the Regional Director issued an amended complaint and notice
hearing. The Respondent, in its answer to the complaint, duly
filed, denies that it has violated the Act as alleged.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 199 F.3d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We find no need to rely on the judge’s suggestion that the Respon-
dent was a “perfectly clear” successor within the meaning of NLRB v.
Burns Security Services, 406 U.S. 272 (1972), inasmuch as this case
does not involve the issue of Respondent’s obligation to bargain with
the Union about the initial terms and conditions of employment for
bargaining unit employees.
The parties were afforded a full opportunity to be heard, to
call, examine and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel) and counsel for the Respondent. On the entire
record, and based on my observation of the witnesses and con-
sideration of the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation with its corporate
office located in Houston, Texas, and with offices and places of
business in San Mateo, San Francisco, Sacramento, San Jose,
and Berkeley, California, where it is engaged in the rental and
sale of construction and industrial equipment. In the course and
conduct of its business operations the Respondent annually
sells and ships goods and provides services valued in excess of
$50,000 directly to customers located outside the State of Cali-
fornia. It is admitted and I find that the Respondent is engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues in this proceeding are (1) whether the
Respondent is a successor to Clementina, Ltd., an employer
with whom the Union maintained a collective-bargaining rela-
tionship, and (2) whether the Respondent, as a successor em-
ployer, has failed and refused to recognize and bargain with the
Union, and furnish the Union with requested bargaining infor-
mation, in violation of Section 8(a)(1) and (5) of the Act.
B. The Facts
The facts are not in material dispute. On Friday, August 28,
1998,1 the Respondent took over the operations of Clementina,
Ltd. (Clementina), an employer engaged in the maintenance,
repair, rental, and sale of construction and industrial equipment
at five California locations involved herein: San Mateo, San
Francisco, Sacramento, San Jose, and Berkeley.2 Prior to this
date the Respondent interviewed and offered continued em-
ployment to each of Clementina’s 17 unit employees3 as well
1 All dates or time periods herein are within 1998 unless otherwise
specified.
2 The Respondent also apparently acquired and took over two addi-
tional California facilities of Clementina at the same time, namely the
Stockton store and the Martinez Refinery; these two facilities are not
involved herein.
3 Clementina and the Union had maintained a collective-bargaining
relationship since the 1950s, and the most recent contract extended
330 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 816
as, apparently, the remainder of Clementina’s hourly employees
including truckdrivers. The transition was “seamless” and, as
several unit employees testified, they left work on Thursday,
August 27, under Clementina’s employ, and returned to work at
the same location the next morning, August 28, as employees
of the Respondent, where they continued performing the identi-
cal work, under the same supervisors and managers, using the
same tools, trucks, and equipment, and for the same customers,
as they had previously performed for Clementina. The only
noteworthy difference they could recall was that they began
answering the phone as “Prime/Clementina” rather than
“Clementina.”
Believing that it would have a sufficient work force to com-
mence operations, the Respondent did not interview or adver-
tise for any other applicants prior to August 28. However,
within a few days prior to August 28, five employees (four
mechanics and the parts clerk) quit Clementina’s employ, and
announced that they would not be going to work for the Re-
spondent. Thus, on August 28, the Respondent commenced
operations with 12 unit employees ( 8 mechanics, 2 mechanics
helpers, 1 mechanic/foreman, and 1 steam cleaner). On August
30, the Respondent began advertising in local newspapers for
additional employees.
Two additional unit employees, including Don Southern, the
mechanic/foreman, resigned shortly thereafter. Immediately on
Southern’s departure, one mechanic, Terry Wilmoth, was alleg-
edly assigned managerial responsibilities which had not been
part of Southern’s prior job as mechanic/foreman, and was
therefore, according to the Respondent, no longer a unit em-
ployee.4 Thus, by September 4, the unit employee complement
consisted of either 9 or 10 employees (depending on Wilmoth’s
contested status herein), consisting of 8 (or 9) former
Clementina employees and 1 new hire; by September 11, there
were 7 (or 8) former Clementina employees and 3 new hires; by
September 18, there were 7 (or 8) former Clementina employ-
ees and 4 new hires; and by September 25, there were 7 (or 8)
former Clementina employees and 8 new hires. The record
evidence shows that beginning on September 25, and continu-
ing thereafter, the bargaining unit no longer consisted of a ma-
jority of former Clementina employees. On October 28, there
were 18 (or 19) unit employees, and on December 31, there
were 21 (or 22) unit employees.
Despite the fact that the Respondent, under the name
Prime/Clementina, engaged in extensive advertising in local
newspapers and at job fairs for both truckdrivers and mechanics
or equipment technicians/yardpersons,5 and even offered cur-
rent employees a bonus if they would refer qualified applicants,
the Respondent was unable to fill the available positions. Until
it did so, the Respondent brought in temporary employees from

from July 1, 1998, through June 30, 2000. The appropriate unit is
described as follows:
All full-time and regular part-time employees performing work
previously performed in the Clementina unit; excluding all other
employees, guards, and supervisors as defined in the Act. These
employees consist of mechanic (12), mechanic/foreman (1), me-
chanic helper (2), steam cleaner (1), and parts clerk (1).
4 Wilmoth’s status as a supervisor or unit employee is an issue in this
proceeding.
5 It is clear that equipment technicians and yardpersons are the same
as mechanics and mechanics helpers, and that the Respondent was not
seeking new classifications of employees.
other stores in Oregon, Utah, Texas, and California,6 at consid-
erable expense: four employees during the week of September
5; four employees during the week of September 12; four em-
ployees during the week of September 19; four employees dur-
ing the week of September 26; two employees during the week
of October 3; two employees during the week of October 10;
and one employee during the week of October 17. Throughout
this period of time, according to Ted Tassone, Respondent’s
regional operations manager, there were simply not sufficient
employees to perform the necessary equipment repairs and
maintenance work in an appropriate manner at each of the five
locations, and to provide customers with the services that they
required.
Tassone also testified, in very abbreviated fashion and with-
out explanation, that at the time of the acquisition the five
stores were “imbalanced with regard to personnel,” and the
Respondent was attempting to “build up” the personnel at the
San Francisco and San Mateo stores, and “to some degree” the
San Jose store, apparently, “in part at least,” because of work
being shifted to those stores from other locations, primarily the
Stockton store, which the Respondent had apparently also taken
over. According to Tassone, the employees at the Stockton
store, who are not involved in this proceeding, were employed
by a different entity, “Wilkerson,” but the store was neverthe-
less owned by Clementina. Despite this testimony, Tassone, on
cross-examination, agreed that the reason the Respondent felt
itself “shorthanded” after the acquisition was “because of the
resignations which had occurred both before the acquisition and
after the acquisition . . . among the mechanics and drivers . . .
because [the Respondent] anticipated that the mechanics and
drivers were going to accept employment.”
Rick McCurry, western division general manager for the Re-
spondent, testified that as of the date of the acquisition “most of
the operations were done out of the Stockton facility, and so we
had to reorganize all of the things down in the San Francisco,
San Mateo, San Jose area . . . get the facilities capable of tak-
ing care of the business that was there. We needed a lot of
people.”
By letter dated August 7, Respondent, by James Turpin, di-
rector of human resources, advised the Union that it would be
acquiring the assets of Clementina and that it would “be meet-
ing with the employees of Clementina next Tuesday and
Wednesday, August 11 and 12, 1998, to discuss the transition
to new ownership and introduce the Clementina employees to
PRIME Equipment.” Special Representative Tom Bailey re-
plied on August 11, stating the Union’s position that the Re-
spondent must assume Clementina’s contract with the Union,
and that, “We look forward to a long and mutually beneficial
relationship with Prime, as we have had with Clementina.
Please call me to arrange a meeting.”
Turpin replied by letter dated August 13, and stated that the
Respondent disagreed with the Union’s position that the exist-
ing contract would continue to remain in force after the acquisi-
tion, that, “Although all Clementina employees are being con-
sidered for employment with Prime, we have not guaranteed,
nor can we guarantee, that all Clementina employees will be
offered positions,” and that “Prime is, of course, committed to
compliance in good faith with all applicable labor laws, includ-
6 The Respondent is a nationwide company with some 2750 employ-
ees at numerous facilities.
PRIME EQUIPMENT 817
ing those that would be applicable after Prime has consum-
mated this asset acquisition.”
Bailey, by letter dated August 14, cautioned the Respondent
about changing the terms and conditions of employment of the
unit employees without giving the Union an opportunity to
negotiate such changes, and suggested that a meeting be held
“to discuss a way to make the transition fruitful and mutually
productive.”
Ronald Katz, formerly contracts manager/attorney for the
Union, testified that on either August 25, 26, or 27, he and two
other union representatives, Myron Pederson, Oakland district
representative, and Joe Galicia, business representative, met
with three representatives of the Respondent, namely, Turpin,
McCurry, regional manager, and Stanton Eigenbrodt, in-house
counsel for the Respondent. This was primarily a get-
acquainted meeting and very little of substance was discussed.
However, according to Katz, during the meeting Turpin, stated,
“That [the Respondent] could set initial terms, but it was their
understanding that under the law they would have to recognize
us if a majority of the employees were former Clementina em-
ployees. And if that was the case, they would do so.” It was
also stated, according to Katz, that there was a desire by both
Clementina and Prime to “have a seamless transition,” and that
the Respondent was thinking of calling itself “Clemen-
tina/Prime” at least initially. Then there was some discussion
about who would be doing the anticipated negotiations for the
Union and the Respondent and whether the negotiations would
take place at the Respondent’s Houston office or at some other
geographical location more convenient to the union representa-
tives.
While there is some dispute as to what was said during this
face-to-face meeting,7 it is clear that Turpin understood that the
Union had made a request for recognition. Thus, in a letter
dated September 14, Turpin wrote to Katz as follows:

I would like to thank you for a most excellent lunch and as-
sure you that I enjoyed meeting Myron Pederson, Joe Galicia
and yourself. Mr. Katz, I would like to clarify one point in
your letter. We continue to have a disagreement on your posi-
tion that PRIME is bound to your agreement with Clementina,
LTD. I indicated to you PRIME would honor all legal obliga-
tions and negotiate with Local No. 3 if legally required to do
so.

On September 25, Katz wrote to Turpin stating that as the
majority representative of the unit employees it was the Un-
ion’s desire to begin negotiations. The letter further requests
the following information:

1. The name, address, phone number and social secu-
rity number of each employee PRIME has hired to do bar-
gaining unit work who was not included in the list you
sent me with your September 14, 1998, letter if there are
any.
2. The job title, job description and rate of pay for
each employee in the bargaining unit.

7 Turpin and McCurry, characterized the meeting as simply a socia-
ble affair consisting of the exchange of pleasantries, and were unable to
recall whether anything of substance was discussed. I credit the testi-
mony of Katz, as he appeared to have a clear recollection of the meet-
ing, and it is certainly probable that there was at least some discussion
of the transition and the Union’s bargaining demand, as this was the
reason for the meeting.
3. A copy of all work rules applicable to the employ-
ees in the bargaining unit that are not included in the em-
ployee handbook, if there are any.

Katz testified that he waited “a full week, plus a few days
into the next week” and then, having received no response to
his letter, phoned Turpin. During this phone call Turpin said,
according to Katz, “that things were in a state of flux out there
. . . and things were a moving target,” and reiterated his prior
statement that it was the Respondent’s position that it would
recognize the Union if the Union represented a majority of the
unit employees. Katz, understanding from Turpin’s remarks
that the majority of the unit employees were indeed former
Clementina unit employees, sent Turpin a confirmation letter
on October 20, stating:

This will confirm our recent telephone conversation during
which you acknowledged that PRIME recognizes Operating
Engineers Local Union No. 3 as the exclusive representative
for the employees in the bargaining unit Local No. 3 repre-
sented when the employees in the unit were employed by the
predecessor employer, Clementina, Ltd. Please let us know
when company representatives are available to begin negotia-
tions.

By letter dated October 28, Turpin replied as follows:

First, we have never orally recognized Local 3 as the collec-
tive bargaining agent for mechanics employed by Prime. In
fact, as explained below, we have been concerned, and con-
tinue to be concerned, about whether it is appropriate for our
company to recognize and bargain with Local 3. It is our un-
derstanding that we are legally required to do so only if we are
a successor employer. We now have hired what we believe is
a substantial and representative complement of employees,
and it appears that only six of the 18 mechanics currently em-
ployed at our San Francisco, Berkeley, San Jose, San Mateo
and Sacramento locations were formerly employed by
Clementina LTD and represented by Local 3. As you know, a
number of Clementina mechanics represented by Local 3
elected no to accept our offers of employment, and still others
resigned their employment with Prime after working only
short periods of time. Under these circumstances, we do not
believe Prime would be considered a successor employer.
More importantly, we are concerned that inappropriate or
premature recognition could put Prime in the position of vio-
lating the rights of Prime employees and the federal labor
laws. If you disagree, and would like to provide us with au-
thority which supports some other position, we would be
pleased to review it with our advisors. As we have stated
from the beginning, Prime is committed to compliance in
good faith with applicable labor laws.

Ted Tassone, Regional Operations Manager for Prime and
formerly the operations manager for Clementina, testified that
when Don Southern, shop foreman at the Berkeley store, re-
signed his employment on August 31, Jerry Wilmouth not only
assumed Southern’s position, but moreover was immediately
placed in the position of service manager at the Berkeley store.
In this capacity Wilmouth was responsible for interfacing with
the branch manager regarding the availability of equipment,
scheduling the work of some nine store employees, and insur-
ing that the parts manager was ordering the proper parts, and
that work orders were being processed correctly. Part of Wil-
mouth’s new responsibilities, according to Tassone, included
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 818
issuing warnings or reprimands to employees if necessary.
However, Tassone did not know whether Wilmouth had ever
prepared an employee evaluation, or whether he had ever is-
sued a warning or written warning. Thus, Tassone testified that
it is possible Wilmouth may never have given any warnings as,
“[Wilmouth] wasn’t the kind of guy that would walk around
issuing warnings to people. He would work stuff out before it
got to that point.”
Tassone testified that while his salary negotiations with
Wilmouth commenced “relatively soon” after Wilmoth was
given his additional responsibilities, nevertheless the appropri-
ate internal company documents for Wilmouth’s promotion and
increase in salary were not prepared until November, and that it
took a while for the papers to be processed. Thus, until some-
time in November, Wilmouth was hourly paid and continued to
be earning the same wages he had formerly received from
Clementina, as were, apparently, all of the other employees
who had formerly worked for Clementina.
Tassone, asked what the work situation was like in the five
stores immediately after the acquisition, testified: “Well, we
were shorthanded due to the resignations. So, we were having
difficulty, you know, meeting the requirements of our custom-
ers, which is having equipment ready for them to rent, and get-
ting it delivered on time.” Thus, according to Tassone, there
were customer complaints regarding late deliveries and late
service calls, and there was simply not enough equipment
available to rent out because of the lack of personnel.
C. Analysis and Conclusions
The record evidence is abundantly clear that the Respondent
planned for, anticipated, and expected a “seamless transition”
on its assuming and continuing the operations of the five facili-
ties of its predecessor, with no hiatus, no startup transitional
period, and no plans for expansion or other operational changes
of any significance. A major consideration in accomplishing
this goal was the hiring and expected continuation, without
interruption, of the employment of 100 percent of the predeces-
sor’s work force, including the 17 unit employees represented
by the Union. To this end the Respondent notified the Union of
its intentions well prior to the takeover, thereafter communi-
cated with the Union and, shortly before August 28, the date of
the Respondent’s physical takeover of the facilities, met with
the Union and assured the union representatives that, as stated
in Turpin’s September 14 confirmation letter, “ I indicated to
you PRIME would honor all legal obligations and negotiate
with Local No. 3 if legally required to do so.”8 On August 28,
the Respondent commenced its operations with 12 of the prede-
cessor’s employees who represented each job classification
with the exception of the parts clerk.9
Under these circumstances, the Respondent became obli-
gated to bargain with the Union even prior to the actual physi-
cal takeover, as it was “perfectly clear” that a majority of the
Respondent’s work force would be made up of the predeces-

8 As the Respondent has consistently taken the position that it would
recognize the Union if legally required to do so, it appears unnecessary
to resolve the conflict in testimony regarding whether or not the Re-
spondent, through Turpin, did in fact verbally recognize the Union on
about October 6, as alleged “alternatively” in the complaint.
9 It seems clear that the parts clerk classification was either unneces-
sary or that the duties of the parts clerk were assumed by mechanics, as
the Respondent hired only mechanics thereafter and, insofar as the
Respondent’s evidence reflects, did not replace the parts clerk.
sor’s employees. NLRB v. Burns Security. Services, 406 US 272
(1972); Turnbull Enterprises, 259 NLRB 934 (1982).
After August 31, several more of the predecessor’s employ-
ees quit and the Respondent hired new employees; however, it
was not until about September 25 that former employees of the
predecessor no longer constituted a majority of the Respon-
dent’s unit employees.
I conclude that the Respondent was clearly the successor of
Clementina, that the Union made a bargaining demand prior to
August 28 which continued thereafter,10 that the Respondent
acknowledged this bargaining demand by assuring the Union
that it would honor all legal obligations to bargain, and that this
legal obligation to bargain attached no later than August 28
when the Respondent commenced operations with a substantial
and representative complement of 12 unit employees,11 all of
whom were former employees of the predecessor. The fact that
the Respondent experienced difficulties in taking care of its
customers and servicing its equipment because of staffing prob-
lems was simply a temporary, unanticipated exigency that,
under the circumstances, had no bearing on its duty to recog-
nize and bargain with the Union. In this regard, the Respondent
has not demonstrated that it sought to increase its work force at
the five locations in order to compensate for the work that had
formerly been performed by personnel working out of the
Stockton store. The sparse evidence provided by the Respon-
dent, with no underlying details or explanation, and with no
testimony regarding just how many additional employees it
allegedly believed were needed, is insufficient to warrant such
a conclusion. Further, Turpin’s October 28 letter to the Union
definitively states as follows:

We now have hired what we believe is a substantial and rep-
resentative complement of employees, and it appears that only
six of the 18 mechanics currently employed at our San Fran-
cisco, Berkeley, San Jose, San Mateo and Sacramento loca-
tions were formerly employed by Clementina LTD and repre-
sented by Local 3.

And, as demonstrated by the evidence presented by the Re-
spondent, the full and complete complement of employees at
the five stores, as late as March 31, 1999, ultimately consisted
of 22 unit employees. Accordingly, it is clear that the Union’s
majority on August 28 would have been sufficient to require
the Respondent to bargain with it even if the Respondent, at
that point, had anticipated a full employee complement of 22
employees.
Thus, the Respondent’s startup problems essentially required
the substitution of one new hire for each employee who quit,
rather than a substantial expansion of the work force that, under
the circumstances, would have had the foreseeable and prob-
able consequence of affecting the Union’s majority status.12
Accordingly, contrary to the position of the Respondent, it was
not entitled to a “waiting period” to decide whether to recog-
nize the Union at some indeterminate point in the future when,
in its estimation, its operations were running satisfactorily. Fall
River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987); Burns Secu-
rity Services, supra; Turnbull Enterprises, supra; Delta Car-
bonate, 307 NLRB 118 (1992).
10 See Williams Enterprises, 301 NLRB 167 (1991).
11 See M.U. Industries, 284 NLRB 388, 392 (1987).
12 Cf. Cascade General, 303 NLRB 656 (1991).
PRIME EQUIPMENT 819
It is the Respondent’s position that immediately after South-
ern, the mechanic/shop foreman at the Berkeley store, quit on
August 31, this position was given to Wilmouth, a mechanic,
and that Wilmouth was also given additional managerial re-
sponsibilities over the employees at the Berkeley shop. Tas-
sone indicated that Wilmouth’s new duties included evaluating
and issuing warnings to the some nine employees at that loca-
tion, but testified that he did not know whether Wilmouth had
ever, in fact, given employees written warnings. Nor did the
Respondent provide evidence that Wilmouth’s duties as a me-
chanic changed or were affected by his new alleged responsi-
bilities or elaborate on or introduce documentary evidence sup-
porting his assertion that Wilmouth evaluated employees.
Moreover, according to Tassone, Wilmouth’s hourly wage did
not change and he continued making the same hourly wage that
he had made with Clementina until some indefinite time in
November when Wilmouth became a salaried employee. Wil-
mouth did not testify in this proceeding.
I find that the evidence presented by the Respondent is insuf-
ficient to show that Wilmouth was made a supervisor within the
meaning of the Act on about September 1, and was therefore no
longer a unit employee as of that date. Rather, I find that if
Wilmouth did indeed become a supervisor within the meaning
of the Act, it was not until some time in November when he
apparently became a salaried employee.13
On the basis of the foregoing, I find that the Respondent has
violated Section 8(a)(1) and (5) of the Act as alleged by failing
and refusing to recognize and bargain with the Union as of
August 28 and, further, by failing and refusing to provide the
Union with the aforementioned requested information which is
necessary for and relevant to the Union’s performance of its
duties as the collective-bargaining representative of the unit
employees.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(5) and (1) of
the Act as alleged in the complaint and as found above.
THE REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(a)(5) and (1) of the Act, I recommend that it be
required to cease and desist therefrom and from in any like or
related manner interfering with, restraining, or coercing its
employees in the exercise of their rights under Section 7 of the
Act. The Respondent shall be required to recognize and bar-
gain in good faith with the Union and, if an understanding is
reached, to embody such understanding in a collective-
bargaining agreement. In addition, the Respondent shall be
required to furnish the Union with requested bargaining infor-
mation in a timely fashion. Also, the Respondent shall be re-
quired to post an appropriate notice at each of its stores in-
volved.14

13 Under the circumstances, Wilmouth’s inclusion or exclusion from
the unit does not affect the Union’s majority status.
14 On about May 24, 1999, the Respondent closed its Berkeley facil-
ity, after transferring the work and employees from Berkeley to its
newly established and nearby Oakland, California store. I find that the
Oakland facility simply replaced the Berkeley store, and that in these
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Prime Service, Inc. d/b/a Prime Equipment,
Houston, Texas, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with the
Union on request.
(b) Failing and refusing to provide the Union with requested
bargaining unit information.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them under Section 7 of the Act.
2. Take the following affirmative action that is necessary to
effectuate the purposes of the Act.
(a) Recognize and, on request, bargain with the Union in
good faith as the exclusive collective-bargaining representative
of the employees in the five store unit regarding rates of pay,
wages, hours of employment, and other terms and conditions of
employment and, if an understanding is reached, reduce the
agreement to writing and abide by its terms. The appropriate
unit is as follows:

All full-time and regular part-time employees, including me-
chanics, mechanics helpers, parts clerks, yardmen, and tech-
nicians, performing work previously performed by the bar-
gaining unit of Prime Equipment’s predecessor, who are cur-
rently employed at Prime Equipment’s San Francisco, San
Mateo, San Jose, Sacramento, and Oakland California stores,
excluding all other employees, guards, and supervisors as de-
fined in the Act.

(b) Within 14 days from the date of this Order, post at each
of the aforesaid Respondent’s stores copies of the attached
notice marked “Appendix.” 16 Copies of the notice, on forms
provided by the Regional Director for Region 32, after being
duly signed by Respondent’s representative, shall be posted
immediately upon receipt thereof, and be maintained by Re-
spondent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since November
12, 1998.

circumstances the employees at the Oakland location continue to be a
part of the appropriate collective-bargaining unit herein.
15 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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
16 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 820
(c) Within 21 days after service by the Region, file with the
Regional Director for Region 32 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

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 refuse to recognize and bargain with Operating
Engineers Local Union No. 3, International Union of Operating
Engineers, AFL–CIO as the exclusive representative of our
employees in the following collective-bargaining unit:

All full-time and regular part-time employees, including me-
chanics, mechanics helpers, parts clerks, yardmen, and tech-
nicians, performing work previously performed by the bar-
gaining unit of Prime Equipment’s predecessor, who are cur-
rently employed at Prime Equipment’s San Francisco, San
Mateo, San Jose, Sacramento, and Oakland California stores,
excluding all other employees, guards, and supervisors as de-
fined in the Act.

WE WILL NOT refuse to provide the Union with requested
bargaining information necessary for and relevant to the Un-
ion’s performance of its duties as the collective-bargaining
representative of the unit employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed to
them under Section 7 of the Act.
PRIME SERVICE, INC. D/B/A PRIME QUIPMENT