Riccelli Enterprises, Inc.

National Labor Relations Board - Administrative Judge Opinions

Sep 21, 2015

03-CA-130137 (N.L.R.B. Sep. 21, 2015)

JD(ATL)–18–15
Syracuse, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
RICCELLI ENTERPRISES, INC.
and Case 03-CA-130137
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 158-C
Jesse S. Feuerstein and Jessica L. Noto, Esqs.,
for the General Counsel.
Donald J. Vogel, Esq. (Scopelitis, Garvin, Light,
Hanson & Feary, P.C.), for the Respondent.
Nathaniel G. Lambright and Bryan T. Arnault, Esqs.
(Blitman & King LLP), for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case was heard in Syracuse,
New York from April 20 to 23, 2015. The complaint alleged that Riccelli Enterprises, Inc. (REI
or the Respondent) violated Section 8(a)(1), (3), (4) and (5) of the National Labor Relations Act
(the Act).1 On the entire record,2 including my observation of the demeanor of the witnesses,
and after thoroughly considering the parties’ post-hearing briefs, I make the following
FINDINGS OF FACT3
I. JURISDICTION
At all material times, REI, a corporation with an office and place of business in Syracuse,
New York, has been a stone and gravel supplier, and commercial hauler. Annually, it performs
services valued in excess of $50,000 outside of New York. It, thus, admits, and I find, that it is
an employer engaged in commerce, within the meaning of Section 2(2), (6) and (7) of the Act. It
also admits, and I find, that the International Union of Operating Engineers, Local 158-C

1 The General Counsel withdrew the allegations covering Donald Wallace’s discharge. (Tr. 392-398).
2 Several discovery disputes delayed the closure of the record, which did not close until July 6, 2015.
3 Unless otherwise stated, factual findings arise from joint exhibits, stipulations and undisputed evidence.
JD(ATL)–18-15
2
(the Union) is a labor organization, within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction5
This case involves REI’s May 2014 acquisition of the Northern Group.4 Its asset
purchase resulted in it acquiring the Northern Group’s mines, equipment, fleet, truck repair shop
and offices in Fulton, New York (the Fulton facility),5 customers and employees, including a
unit of mechanics and operators represented by the Union at the Fulton facility (the unit). 10
The main issue in this case is the validity of REI’s failure to recognize the Union as the
unit’s collective-bargaining representative. The answer to this issue, thus, hinges upon whether
REI is a successor under NLRB v. Burns Services Inc., 406 US 272, 280, 281 (1972).
15
B. The Northern Group
Before REI’s takeover, Thomas Venezia ran the Northern Group, which was
headquartered at the Fulton facility. The Northern Group mined sand, rocks and other materials,
produced concrete and related products, and provided trucking and hauling services. Its mines 20
and processing facilities were located in and around the Syracuse area. It, consequently, owned
and maintained a large fleet of trucks for delivery and hauling, which were repaired by unit
mechanics at the Fulton facility.
1. Mechanics25
Unit mechanics performed automotive repairs and maintenance on trucks, vehicles and
other equipment. They used hand tools, which were personally-owned, as well as company-
owned equipment. They were paid an hourly wage ranging from $17.28 to $17.44 per hour, and
received overtime after 40 hours per week. They worked an 8-hour shift from Monday to Friday, 30
and received two 15-minute breaks and a 30-minute meal period. Although assigned to the
Fulton facility, they were periodically dispatched to the field to make repairs.
2. Operators
35
Operators worked at mines and processing facilities located in central New York.6 They
ran bulldozers, pay loaders and other equipment. They also performed some light repairs,
fabrication and maintenance. They worked day-shift hours on a seasonal basis from April to
November. They worked from Monday to Friday with some Saturdays, were paid roughly $17
per hour, received overtime, and were placed on layoff over the winter.40

4 All dates herein refer to 2014, unless otherwise stated.
5 The Fulton facility is located at 32 Silk Road in Fulton, New York.
6 Mines were located in Fulton, Oswego, Phoenix, Cortland, Pulaksi, Rome and Panther Lake, New York.
JD(ATL)–18-15
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3. Unit
The Union had a longstanding collective-bargaining relationship with the Northern Group
in the unit, which covered the 18 operators and mechanics employed at the Fulton facility.7
(GC Exh. 2). This recognition was embodied in successive contracts, with the most recent 5
running from November 1, 2012 to October 31, 2015 (the CBA). This chart identifies the unit:
Position Total Employees
Operators 10
K. Crouch B. Richardson D. Samson D. Noble D. Wallace
T. Demperio W. Lewis M. Osbourne J. Phillips R. Canale
Mechanics 8
D. Connor W. Johnson D. Melfi J. Melfi S. Reynolds
M. Ray D. Smith C. Tyrell
(Tr. 1054–1055).
10
C. REI: Before the Asset Purchase
REI similarly hauled commodities and materials, and extracted rock and other materials
from its surface mines. Although headquartered in Syracuse, where it performed the bulk of its
operations, it also maintained facilities throughout upstate New York. Its fleet of roughly 300 15
trucks and trailers were repaired at shops in Syracuse, Geneva, and Rochester, New York and
Mansfield, Pennsylvania. Richard Riccelli was its President, while Sam Chiodo was its Senior
Vice President of Risk. It also had several affiliated enterprises, which operated surface mines.
Syracuse Sand and Gravel (SSG), for example, ran approximately 40 surface mines, where rock,
sand, gravel and other materials were extracted.8 SSG was similarly run by Riccelli. 20
D. Events Leading Up To REI’s Acquisition of the Northern Group
In late 2013, Venezia solicited Riccelli about possibly acquiring the Northern Group. His
inquiry resulted in the parties executing a letter of intent. 25
1. February 7 – Letter of Intent Executed
Their letter of intent covered the purchase of the Northern Group’s assets and began a 90-
day due diligence period. (R. Exh. 9). During this period, REI evaluated the Northern Group’s 30
fleet of trucks, mines, acreage, plants and financial data. On February 20, by email, Riccelli and
Chiodo discussed their due diligence goals, which included reviewing the CBA. (GC Exh. 33).9

7 Operators working near the Fulton facility were included in the unit, while remote operators were not.
8 Chiodo testified that SSG and the Northern Group performed analogous work.
9 REI was told to review, “collective bargaining agreements, … with the Union.” (GC Exh. 34); see also (GC
Exh. 35; R. Exh. 18 (January 31 email citing need to review “labor contracts.”)).
JD(ATL)–18-15
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2. March – Due Diligence Activity
a. Initial Investigation of the Union and CBA
On March 6, Chiodo audited the Fulton shop and confirmed that it was a “Union Shop,” 5
with a “3 year Union contract [that] Expires [on] 10/31/2015,” with “$28.50 per hour [in]
average costs-labor & benefits.” (GC Exh. 16). On the same date, the Northern Group
forwarded the CBA to Chiodo, and explained that Riccelli was previously given detailed
information about the unit. (GC Exh. 44, 44a).
10
b. March 14 Meeting
Union District Manager Theron Hogle and Business Agent Carl Button met with
Venezia, Riccelli and Chiodo at the Fulton facility. There is a central dispute over this meeting.
15
i. General Counsel’s and Union’s Position
Hogle recollected this exchange at the meeting:
[Venezia] said …. we're considering a sale…. [W]hat do we have to do[?] …. 20
I said, … the first thing … is get a calculation on your unfunded liability ….
And he said … that's not my problem …. I said … that's something that you
certainly want to look into ….
25
And I said … we've got a collective bargaining agreement that's good through the
end of next year…. [T]hat's when Rich [Riccelli] said … when that agreement's
up and we renegotiate it, there's going to be major changes. And then he [said]
… he … reviewed the documents from the Company, and some parts … were
profitable [and] some parts were not….30
And then … he started … talking about positive changes that he wanted to make
… including a possible night shift and an addition of … twenty employees.
(Tr. 52–53) (emphasis added). Hogle stated that REI never announced an intention to set initial 35
terms and conditions of employment for the unit at this meeting.
ii. REI’s Stance
Chiodo testified that only unfunded pension liability was discussed, and denied any 40
discourse about the CBA. He averred that neither he nor Riccelli had even reviewed the CBA at
that time, which made it impossible for them to pledge adoption of something yet unseen.10 He
claimed that Venezia arranged this meeting on an “impromptu” basis.11 (Tr. 637). When asked
whether REI could have placated the Union at this meeting with false pledges about the CBA’s

10 See (Tr. 632 (“I knew there was a unit. I didn’t know if there was a collective bargaining agreement.”)).
11 He added that “everyone just happened to be there at the same time.” (Tr. 638).
JD(ATL)–18-15
5
adoption, in order to prevent possible sabotage, he denied such concerns.12 (Tr. 639). His denial
was, however, contradicted by his own email shortly thereafter to a security contractor, where he
lamented about, “anticipate[d] retaliation – [and the] need [for] cameras … ASAP.” (GC Exh.
23). Riccelli testified that, besides informal introductions, only unfunded pension liability was
discussed. He similarly denied having reviewed the CBA at that point, or discussing its terms or 5
adoption.
iii. Credibility Resolution
Given that Hogle stated that Riccelli told him that the CBA would be renegotiated after 10
its expiration, and Riccelli and Chiodo denied this comment, a credibility resolution is needed.
Chiodo’s and Riccelli’s denial essentially hinges on their claim that they had not yet seen the
CBA and, thus, could not have discussed adopting a CBA yet unseen. Chiodo embellished this
inductive argument by adding that he did not even know that there was a CBA at that point,
which, as will be explained, is wholly incredible. 15
For several reasons, I credit Hogle. First, Chiodo’s and Riccelli’s joint claim that they
had not seen the CBA before the meeting was contradicted by documents predating the meeting,
which either: discuss their joint agenda to review the CBA (GC Exhs. 33–35; R. Exh. 18);
concede its existence (GC Exh. 16); or enclose the CBA for their review (GC Exh. 44, 44a).20
Their joint claim of ignorance is, thus, untenable.13 Second, Chiodo’s testimony was marred by
other inconsistencies and implausibility. Although he denied concern over Union retaliation (tr.
640), he contradictorily emailed otherwise. (GC Exh. 23). His characterization of the meeting
as “impromptu” is also implausible (tr. 637–38),14 given that REI was clearly too busy with due
diligence and business operations for happenstance meet and greets .15 Third, Chiodo was a glib 25
witness, who appeared hostile, condescending and unreliable. Hogle, on the other hand, was
forthright and cooperative. Finally, other portions of Riccelli’s testimony were implausible. For
instance, he remarkably stated that he did not even recall telling the Union that REI was
considering an asset purchase, which would have rendered the meeting meaningless. (Tr. 1053).
30
3. April – Decision to Deny Union Recognition and Hire All Employees
On April 2, Riccelli emailed Chiodo and said that the Union has “move[d] … from [a]
major issue … into a non-issue.” (GC Exh. 33). On April 22, Chiodo emailed Riccelli that, “we
[should] … contact the Union and tell them … no thanks.” (GC Exh. 24). Chiodo related that 35
REI decided to hire all of the Northern Group’s employees in March or April. (Tr. 630).
4. May 1 Union Meeting
Hogle, Button, Riccelli and Venezia again met at the Fulton facility. Hogle recalled that: 40

12 He said, “I never went … to the Stephen King scenario about the union … and them doing stuff.” (Tr. 640).
13 Chiodo’s audacious add-on that he was unaware of the CBA’s existence furthers this credibility divide,
given that he expressly cited the existence of the CBA following his March 6 audit. (GC Exh. 16).
14 He likely thought that calling it “impromptu” supported his claim that he never prepared and reviewed the
CBA.
15 This claim is rendered dubious by Riccelli’s declaration of an 80-hour workweek. (Tr. 1037).
JD(ATL)–18-15
6
[T]hey received the unfunded liability calculation …. [Venezia] wanted to know
if there was a way … to make this work without triggering this million dollars ….
And I told them that …. [we] wanted to find a way to meet their needs …. 5
(Tr. 56–57).16

5. May 15 – Asset Purchase Finalized
10
The asset purchase agreement resulted in REI acquiring the Northern Group’s Fulton
facility, employees, mines, fleet, concrete and blacktop plants, and customers.17 REI did not
assume the CBA or recognize the Union as the unit’s representative. Neither REI nor the
Northern Group notified the Union about the transaction. (GC Exhs. 5-7). Unit employees were
informed on May 14, via a bulletin board notice about the transaction, and asked to bring 2 forms 15
of identification to work the next day.
E. REI’s Acquisition of the Northern Group
1. May 15 – Hiring of the Unit and Meeting20
a. Job Offers
When unit employees arrived at the Fulton facility, REI provided each with a hiring
packet containing: a Northern Group termination letter effective May 14; a job offer from REI25
effective May 15;18 notice of their pay rates; health insurance enrollment forms; and a drug
testing waiver. (GC Exhs. 3, 9). These packets were distributed in a conference room. Scott
Reynolds, a unit employee, testified that, when he asked an unidentified human resources official
whether his pay and benefits would change, he was told that, “everything was going to stay the
same.” (Tr. 152). Unit mechanics were also administered tests, which gauged their mechanical 30
acumen.19 (R. Exh. 12). With the exception of Monroe Osbourne and Donald Wallace, who
rejected their employment offers, REI hired and retained all unit employees.

b. Unit Operator Monroe Osbourne’s Resignation
35
Osbourne, stated that Chiodo said that he would no longer be working under the CBA.
He stated that, due to the absence of Union representation, and the substantial changes in his
terms and conditions of employment, he rejected REI’s job offer.20
40

16 As of March 31, the Northern Group’s withdrawal liability was $1,015,617. (GC Exh. 24; R. Exh. 5).
17 The asset purchase resulted in REI, which already employed roughly 475 workers, adding about 120 former
Northern Group employees, who were mainly drivers, mechanics and operators.
18 This offer was subject to a reference check and completion of “pre-employment screening.” (GC Exh. 3).
19 Although scores ran from 30 to 65 percent, all unit mechanics received job offers, without any loss in pay.
20 Melissa Gentile, Human Resources Representative, confirmed his account.
JD(ATL)–18-15
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c. Chiodo Meeting
i. General Counsel’s and Union’s Position
Reynolds testified that unit mechanics were addressed by Chiodo and Gentile. He 5
recalled Chiodo stating that, if they wanted a job, one was waiting for them. They were told,
however, to now report to work at the REI’s mechanical repair shop on Taft Road in Syracuse,
New York (the Syracuse shop). He said that Chiodo stated that, “we’re not taking the union with
us.” (Tr. 153); see also (Tr. 270). Dennis Samson, a unit member, confirmed that Chiodo stated
that there would be no union. (Tr. 409). Joe Melfi, another unit member, stated that Chiodo10
announced that:
[T]here w[ere] … positions available …. They would be non-union and … a
decision [was] … made … not to go ahead with accepting the union.
15
(Tr. 350).
ii. REI’s Stance
Chiodo testified that he solely related that REI was not a signatory to the CBA. He 20
denied being asked whether REI would recognize the Union, or honor the CBA. He stated that
“non-signatory” was his own vernacular, even though he admitted no prior labor relations
experience. Gentile testified that Chiodo said that REI was a “non-signatory.” (Tr. 496). She,
surprisingly, added that employees did not ask anything further about this topic. (Tr. 507).
25
iii. Credibility Resolution
Inasmuch as Reynolds, Samson and Melfi testified that Chiodo said that there would be
no union, whereas Chiodo and Gentile recalled him stating that REI was a “non-signatory,” a
credibility determination must be made. I credit Reynolds, Samson and Melfi. First, as noted, 30
Chiodo was an incredible witness with a poor demeanor, whose testimony on other critical points
was marred by inconsistency and implausibility. Second, Chiodo’s testimony that he only said
that REI was a “non-signatory” is implausible. It’s highly unlikely that someone who professes a
complete lack of labor relations expertise, who testified in a very plain-spoken manner, would
use such legalistic jargon, when speaking to a blue collar audience. Third, it’s highly probable 35
that, if Chiodo had used the unique term, “non-signatory,” one of the unit employee witnesses
would have recalled such usage. Finally, Reynolds, Samson and Melfi were all reliable
witnesses, with strong demeanors. Melfi and Samson have been afforded significant weight,
inasmuch as they are current employees, who subjected themselves to potential risk by providing
testimony against REI. 40
2. May 15 - Fulton Facility Closure and Transfers
Upon its takeover, REI temporarily shut down the garage at the Fulton facility for
renovation. (R. Exh. 16). All unit mechanics were, consequently, transferred to the Syracuse 45
shop. REI failed to notify the Union or bargain with it concerning this decision or its related
JD(ATL)–18-15
8
effects. Unit operators, however, continued to perform services at various mines and facilities in
or about the Fulton and Syracuse region.
3. June and July Transfers21
5
In approximately June, REI unilaterally transferred certain unit operators to the following
affiliates: SSG; Northern Asphalt, LLC (No. Asphalt); Northern Ready, LLC (No. Ready); and
Northern Aggregates (No. Aggregates). At this time, certain unit mechanics were also
transferred to SSG, although most remained employed by REI at its Syracuse shop.22 In July, all
No. Aggregates employees, who performed mining, were then transferred to SSG.23 (Tr. 589). 10
This merger effectively ceased No Aggregates’ operations. (Tr. 603, 651). Regarding the
interrelationship between REI and SSG, Chiodo explained that, “[SSG] was a part of R.E.I. [and]
…. [u]nder Riccelli’s umbrella performed mining and aggregate work.” (Tr. 662-663). REI
failed to notify to Union or bargain with it concerning these several transfer decisions or
connected effects. 15
a. Resulting Unit Assignments
This chart describes where the unit was assigned following REI’s restructuring:
20
Name Title Affiliate Location Prior Wage New Wage Supervisor
Canale Operator No. Asphalt Fulton Facility $16.94 $18.50 Riccelli
Demperio Operator No. Ready Oswego, NY $17.44 $17.44 M. McCraith
Lewis Operator No. Ready Varies $17.44 $17.44 M. McCraith
Samson Operator No. Ready24 Fulton Facility $16.78 $16.78 T. Lund
Crouch Operator SSG Fulton Facility $17.28 $17.28 T. Harris
Noble Operator SSG Fulton Facility $17.28 $16.00 T. Lund
Phillips Operator SSG Fulton Facility $17.28 $17.28 T. Lund
Richardson Operator SSG Fulton Facility $17.28 $17.28 T. Lund
Ray Mechanic REI25 Syracuse Shop $17.44 $17.44 J. Poquadeck
Reynolds Mechanic REI Syracuse Shop 26 $17.44 $17.44 Nipper
Smith Mechanic REI Syracuse Shop $17.44 $17.44 J. Poquadeck
Tyrell Mechanic REI Syracuse Shop $17.44 $17.44 J. Poquadeck
J. Melfi Mechanic SSG27 Syracuse Shop $17.44 $17.44 T. Harris
D. Melfi Mechanic SSG Syracuse Shop $17.44 $17.44 T. Harris
Johnson Mechanic REI Fulton Facility28 $17.44 $17.44 T. Lund
Connor Mechanic REI Fulton Facility29 $17.44 $17.44 T. Lund
(GC Exhs. 21, 36; R. Exhs. 10, 21; tr. 1054-1055).

21 J. Melfi estimated that this date occurred during the summer. (Tr. 358, 366).
22 Chiodo described SSG, as a separate legal entity, falling “under the banner” of REI. (Tr. 531, 556).
23 This resulted in 4 unit operators being transferred; i.e. Crouch, Noble, Phillips and Richardson. (Tr. 655).
24 R. Exh. 21 describes him as working for No. Ready, whereas GC Exh. 21 describes him working for SSG.
25 R Exh. 21 describes him as working for REI, whereas GC Exh. 21 describes him as working for SSG.
26 He initially started at the Syracuse shop, and then transferred to the Fulton facility, upon its reopening.
27 GC Exh. 21 describes him as working for REI, whereas R Exh. 10 describes him as working for SSG.
28 He initially started at the Syracuse shop, and then transferred to the Fulton facility, upon its reopening.
29 He initially started at the Syracuse shop, and then transferred to the Fulton facility, upon its reopening.
JD(ATL)–18-15
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b. Unit Terms and Conditions of Employment
i. Mechanics
Reynolds, a unit employee, testified that he continuously used the same tools and 5
equipment at his new REI position that had been used at the Northern Group to service a
constant set of trucks and equipment on an unchanged shift over an identical workweek. He
stated that, although some of the machinery and tools at REI was newer, he essentially
performed the same truck repair job. He stated that his days of work remained constant. He
stated that he worked alongside of mechanics, who had previously been employed by the 10
Northern Group, and who performed the same work. He stated that his former supervisor was
not retained. He added that his new supervisor at the Syracuse shop was Keith Spencer.
Johnson, another unit employee, testified that mechanics performed the same type of work for
REI. Melfi, another unit mechanic, stated that, “the only real thing that changed … was the
name on my uniform.” (Tr. 375). REI did not dispute at the hearing, or in its brief, that unit 15
mechanics performed the same kind of work under comparable working conditions.
ii. Operators
Samson, a unit operator, stated that he performed the same position after REI took over at 20
the Fulton facility, with the same machinery, equipment and tools. He continued to be
supervised by Lund, a former Northern Group supervisor. Reynolds related that he worked
alongside unit operators, who continued to perform the same work. REI did not dispute at the
hearing, or in its brief, that unit operators performed the same work under analogous conditions.
25
iii. Health Benefits
Unit employees previously received health benefits under the Union’s Welfare and
Pension Fund. (GC Exh. 2). Following REI’s takeover, they were placed into an Excellus Blue
Cross Blue Shield plan. See (GC Exhs. 3, 9, 45). The Union was not notified about this 30
decision, or afforded an opportunity to bargain over the change in insurance carriers.
4. Union’s May 20 Letter Requesting Recognition and Information
On this date, the Union asked REI to recognize it as the unit’s collective-bargaining 35
representative, and sought bargaining. (GC Exh. 8). The Union warned REI that it, “is
prohibited from altering the … unit employees' terms and conditions of employment … in the
[CBA] … without bargaining.” (Id.). The Union requested the following information: any
unions REI has had agreements with over the last 5 years; a list of mechanics and operators, and
their duties; a list of their terms and conditions of employment; a detailed explanation of how the 40
unit’s seniority will be applied; correspondence with the Northern Group regarding the unit; a list
of each unit employee hired; and unit work locations. (Id.). REI never replied, or otherwise
recognized the Union.30
45

30 It is undisputed that REI received this letter and discussed its terms. (GC Exhs. 31–32).
JD(ATL)–18-15
10
5. June 23 –Fulton Facility’s Mechanical Shop Reopens
On this date, the mechanical shop at the Fulton facility reopened. Supervisor James
Nipper ran this facility, where most work involved repairing the Northern Group’s former fleet.
Johnson and Connor, two unit mechanics, were reassigned there. Connor worked with 2 non-5
unit mechanics on the first shift, while Johnson worked with 2 non-unit mechanics on the second
shift. The non-unit mechanics had been transferred in from REI’s Syracuse shop.
a. 2-to-1 Mechanic Ratio
10
Reynolds testified he was repeatedly told by Supervisor Spencer that, once the repair
shop at the Fulton facility reopened, it was would be staffed with a ratio of 1 unit mechanic for
every 2 non-unit mechanics. W. Johnson corroborated that Spencer told him that, “starting back
it’d be two Riccellis for one Northern guy.” (Tr. 309).
15
Chiodo related, however, that mechanics were reassigned to the Fulton facility on the
basis of their skill set, as assessed by Cimilluca. He averred that ratios played no role in their
assignments. Cimilluca testified that, although unit mechanics were poorly trained, they were
retained because mechanics were in short supply. He related that he did not transfer all unit
mechanics back to the Fulton facility because they lacked sufficient training. He said that he 20
only transferred “A technicians.” Spencer denied mentioning a staffing ratio. Nipper also
denied the existence of a ratio, but, conceded that he has since hired outside mechanics to work
at the Fulton facility, who were never previously employed by either REI or the Northern Group
(i.e. Lucas Reynolds, Chris Stoker and Josh White), which undercut Cimilluca’s contention that
only highly experienced “A mechanics” were permitted to work at the Fulton facility.31 25
Inasmuch as Reynolds and Johnson testified that Spencer described a staffing ratio, and
Spencer denied such commentary, a credibility finding must be made. Reynolds and Johnson
have been credited. First, Reynolds and Johnson were consistent and credible witnesses, with
stellar demeanors. Their testimony about a ratio was further supported by the actual existence of 30
such a ratio. Second, Cimilluca’s claim that the ratio coincidentally resulted from the unit’s poor
qualifications was undercut by the fact that the unit performed equally complex work at both the
Syracuse shop and Fulton facility. This claim is also implausible, given that REI hired a newly-
educated mechanic, Reynolds, who was unlikely an “A technician,” for the Fulton facility.
35
b. Operations at the Fulton Facility’s Mechanical Shop
The Fulton facility ran 2 shifts, day and evening, which were analogous to the shifts
worked by the Northern Group’s unit mechanics. Johnson stated that he performed his usual job
and shift, once returning to the Fulton facility. Reynolds testified that he continued to perform 40
the same position, under the same conditions at the Fulton facility.

31 Lucas Reynolds, a newly-minted technician, who had just graduated from technician school, was assigned
to the Fulton facility.
JD(ATL)–18-15
11
F. Reynolds’ Tenure
1. July – Transfer to the Fulton Facility
On July 14, Reynolds told Spencer that he was resigning for a better-paying job. Spencer 5
told him to temporarily hold off, in order to permit REI to address his concerns. On July 16,
Spencer informed Reynolds that, although he could not offer a raise, he would permit him to
return to the Fulton facility, which was accepted. Reynolds testified that, on this date, Spencer
relayed that Cimilluca told him that he could not address any pay issues, until after the “union
business was over.”32 (Tr. 176). On July 28, Reynolds was transferred back to the Fulton 10
facility.
Spencer said that he told Reynolds that he could not offer a raise because he was a new
employee. He denied stating that his inability to provide a raise was connected to the Union.
15
Inasmuch as Reynolds testified that Spencer stated that he could not be granted a pay
raise “until the Union business was over,” and Spencer denied such commentary, I must make a
credibility resolution. I credit Reynolds, who was a straightforward, candid and consistent
witness, who was equally helpful on direct and cross. Spencer, on the other hand, appeared less
than forthright.33 Additionally, his denial regarding the ratio issue deeply undermined his 20
credibility.
2. Unfair Labor Practice Charge Identifying Reynolds
On July 28, the Union filed a second amended charge against REI, which identified 25
Reynolds witnessing Spencer’s allegedly unlawful comments about pay raises not being issued
because of the Union. (GC Exh. 1(e)). This charge was served upon Riccelli and counsel on the
same date. Riccelli confirmed its receipt and dispatch to Chiodo.34 (Tr. 1026, 1029). Chiodo
acknowledged receipt before Reynolds’ firing, but, denied telling Cimilluca or Nipper.
Cimilluca and Nipper each denied knowing about the charge before his firing. 30

3. Reynolds’ Termination
a. General Counsel’s and Union’s Position
35
i. Friday, August 8
Reynolds stated that, on August 8, before his scheduled shift, his brother-in-law appeared
at the Fulton facility and sought help with a flat truck tire. He said that he asked Nipper whether
he could buy a tire plug from REI for the repair, which he estimated to be worth $2. He related 40
that Nipper gave him the part and told him that, “we’ll figure out how to bill you later.” He then
helped his brother-in-law with the repair, and reported to work at his normal start time, without

32 REI provided Spencer’s time card, which demonstrated that he did not work on July 16. (R. Exh. 13).
33 Although Spencer was on leave on July 16, I find that Reynolds is confused about the date, but, not the
comment itself, inasmuch as is undisputed that a conversation over his resignation took place.
34 On July 24, the Union sent Riccelli a copy of this charge. (GC Exh. 39).
JD(ATL)–18-15
12
consequence or connected discipline.
Later that day, Reynolds’ brother-in-law pulled up again, and now asked him to help with
a damaged hydraulic hose. Reynolds said that he clocked out, and searched for Nipper, who was
not to be found. He said that he then went to the shop, repaired the hose, and recorded the part 5
number for payment purposes. He then described this exchange with Nipper and Cimilluca:
[They] came out. [Cimilluca] … told me to go home and call … on Monday. He
told my brother-in-law that the garage was not for personal use…. I went inside
and started cleaning up. I picked up my tools and … got changed. I walked into 10
their office to … talk to him. My brother-in-law was in the office … trying to pay
for the part. They made him leave [and] … told him that they didn't want him to
pay … just to not come back. I walked in there to explain … why I thought it was
okay … and [said that] I just bought a tire plug earlier that day [and] had the part
number in my hand still. I tried giving it to him [but] … don't recall if he took it 15
…. I told him that I felt like he was calling me a thief and that I didn't want to
work for somebody who was accusing me of being a thief. [I said that] … if he
was accusing me of being a thief I was going to put in my two weeks' notice,
[and] that I didn't want to work for somebody who treated me that way.
20
(Tr. 186). He stated that he then departed. He related that, at the Northern Group, mechanics
were allowed to purchase parts, and said this was a common industry practice. Osbourne
credibly confirmed that he previously purchased a brake chamber from the Northern Group,
without issue.
25
ii. Saturday, August 9 to Sunday, August 10
Reynolds telephoned Cimilluca and Nipper over the weekend, and left multiple messages
seeking to discuss his employment, which were not returned. See (GC Exh. 10). Reynolds also
telephoned Chiodo, explained what had transpired, stated that he never believed that he had 30
resigned, and expressed sadness over being called a thief. He said that Chiodo replied that he
wanted to investigate the matter further, but, never called back.
iii. Monday, August 11
35
Reynolds said that he was telephoned by Nipper in the morning, who told him to pick up
his last check and tool box. He said that Nipper offered an employment reference for Penn
Detroit, another garage. He stated that Nipper was not upset, and that he later received
unemployment benefits, which were not challenged by REI. REI issued an Employee Notice of
Termination that Nipper signed, which described his separation as “involuntary,” and cited “theft 40
of property.” (R. Exh. 14). On August 13, REI issued a letter to Reynolds that, “confirm[ed]
terminat[ion] effective August 11.” (Id.).
b. REI’s Position
45
Cimilluca prepared a statement, which stated as follows:
JD(ATL)–18-15
13
On 8/8 … Nipper approached me [about] … Reynolds making a hose … using
Riccelli parts. I questioned [Reynolds] … and he said he was "just making" a
hose for his brother in law. I asked … who gave him permission …. He brought
up that earlier [that day] he had [repaired] … a tire [without issue].... I said … 5
I was not asking … about a tire …. [Reynolds] said that when he was with
"Northern" he would do it …. I informed him that this was not Northern and that
it was theft …. I told him to punch out … and I would contact him Monday….
When I went back into the parts room with [Nipper]…, [Reynolds] came in and
gave his 2 week … notice ..... [He said] he didn't want anyone to think he was a 10
thief. I responded[,] "exactly what do you call taking company parts?" ….
I accepted his notice and said I would contact him Monday and tell him his fate.
He … then left ….
(R. Exh. 14). He testified that Reynolds tried to call him over the weekend, but, explained that 15
he did not reply because the matter was closed. He said that he directed Nipper to tell Reynolds
on Monday that he was “all done.” (Tr. 781). He added that, even if Reynolds did not resign
and returned on Monday, he still would have likely fired him. (Tr. 783). He agreed, on cross,
however, that Reynolds was a generally good employee, who lacked prior discipline. (Tr. 821).
20
Nipper testified about the incident that led to Reynolds’ termination:
And when [Cimilluca and I] … got back, … Scott was not working on … [his]
job …. He had just come from … the parts room … and [had a] … hose and …
fittings. And I asked … the job you're doing doesn't require that hose, what are 25
you doing with that …[?] [A]nd [he said] … I'm making it for my brother-in-law,
he needs one for his truck…. And I explained … we don't sell parts…. Everything
… in this parts room is … for Riccelli …. I'm paying you to work on our vehicles,
not make hoses for your brother-in-law.
30
(Tr. 864). He recalled a similar discussion with Reynolds earlier that day about a tire plug. He
conceded that he permitted him to take the tire plug, without issue or warning. (Tr. 865). He
said that he did not consider the tire plug theft, but thought that the hose was both theft of a part
and stealing time. He said that, on this basis, Cimilluca told Reynolds to take the rest of the day
off and call back on Monday. He said that Reynolds took offense and resigned, which was 35
accepted. He said that he and Cimilluca had this dialogue regarding Reynolds on Monday:
And that discussion was Monday, … when he calls, we'll talk to him, … we'll
explain our situation .... [D]epending on his reaction … if he still wants to quit,
then we'll … go from there. If he has a change of heart, … we'll go from there….. 40
(Tr. 869). He then recollected his conversation with Reynolds as follows:
And on Monday, Scott called before he came to work, like he was told and the
first question I asked Scott was are you still giving your two-weeks' notice, do 45
you still want to quit. And he said yes. I go okay, then you still want to quit, we
JD(ATL)–18-15
14
don't need your employment for the next two weeks, you are terminated.
(Tr. 869); but see (R. Exh 14 (describing termination as involuntary)). On cross, however, he
contrarily related that, on Monday, he still wanted Reynolds to work 2 more weeks. (Tr. 920).
He agreed that he gave him an employment reference, and added he felt that the situation 5
“could’ve have been resolved” on Monday, but, Reynolds opted to quit. (Tr. 872). Although he
first said that Reynolds was on the clock when the incident occurred, he agreed that he never
verified whether this was true.35 (Tr. 896).
Chiodo confirmed receiving a call from Reynolds over the weekend. He said that he did 10
not call him back because there was no need. He averred that REI handled theft with extreme
prejudice and cited the prosecution of a former employee, who was required to pay restitution.
(R. Exh. 17). He added that theft is a terminable offense, even if only a pencil were involved.
(Tr. 625).
15
c. Findings
Although it is clear that Reynolds initially resigned on August 8, I find, for several
reasons, that he subsequently rescinded his resignation. First, he left multiple voicemails for
Nipper and Cimilluca over the weekend seeking to “talk … about the situation,” “explain why … 20
[he] thought it was okay to buy the part,” and “even apologize for being wrong if [he] was
wrong.” (Tr. 193-195). Second, he successfully contacted Chiodo and explained that his
resignation was “emotional” because he felt that he was being falsely accused of stealing. He
said that Chiodo said that that “he wanted to get more information about the situation,” and
would call him back, which was never done. (Tr. 193). Chiodo did not dispute his account. 25
Third, REI did not classify his actions as a resignation; it, instead, listed his removal as an
“involuntary” firing for “theft.” (R. Exh. 14). If REI truly considered his resignation to be
unrescinded and effective, it would have identified his separation as a “voluntary” resignation in
its records. Ironically, REI, which was flatly unwilling to accept Reynolds’ resignation less than
a month earlier, was now steadfast in its refusal to permit him to rescind this resignation and 30
amicably resolve a matter that it primarily engineered. I find, on these bases,36 that REI refused
to accept Reynolds’ rescinded resignation.37

35 He insisted that it would have been stealing time, even if Reynolds was on break time (tr. 897), but then,
after considerable leading by REI’s counsel, agreed that it was not be stealing time under those
circumstances. (Tr. 937).
36 The General Counsel submitted REI’s disciplinary records, which demonstrated that certain employees
have: resigned with 2 weeks’ notice and were not discharged; received multiple warnings before being
fired; and separated via mutual agreement. (GC Exh. 14). In other cases, however, REI did not accept a 2
week notice period, and fired workers immediately. (Id.). REI submitted disciplinary records from 2012
through 2015, which demonstrate terminations based upon attendance issues, negligence, failure to take a
drug test, performance and other reasons, but, do not show any discipline for theft or using parts on a
personal vehicle. (R. Exh. 21). Such records were not relied upon, pro or con, in making this finding.
37 I do not credit Nipper’s testimony that he asked Reynolds on Monday whether he still wanted to quit and
Reynolds restated his resignation. First, this testimony is wholly inconsistent with Reynolds several calls
to Chiodo, Nipper and Cimilluca over the weekend, which sought to resolve the situation. If Reynolds
truly wanted to resign, he would not have called repeatedly, and, if Nipper truly sought a resolution as
stated, he and his colleagues would have replied. Second, Nipper’s contention that he offered Reynolds a
chance to rescind his resignation on Monday was flatly contradicted by Cimilluca, who said that he
JD(ATL)–18-15
15
III. Analysis
A. 8(a)(1) Allegations38
5
1. Chiodo’s Comments
Chiodo’s commentary that “we’re not taking the union with us,” there will be no union,
and other similar statements was unlawful. Such statements unlawfully condition employment
upon refraining from union activities. See, e.g., Smoke House Restaurant, 347 NLRB 192, 203 10
(2006) (stating company was non-union); Eldorado Inc., 335 NLRB 952, 953 (2001)
(announcing company was non-union); Concrete Co., 336 NLRB 1311, 1316 (2001) (saying
there would be no union, and “union is gone”).
2. Spencer’s Comments15
Spencer’s July comments to Reynolds that REI would not grant him a pay raise “until the
Union business was over” was unlawful. Threatening lost benefits and less favorable treatment
because of union activities is prohibited. Wellstream Corp., 313 NLRB 698, 707 (1994); More
Truck Lines, Inc., 336 NLRB 772 (2001), enfd. 324 F.3d 735 (D.C. Cir. 2003)20
B. 8(a)(5) Allegations39
1. REI as a Successor
25
a. Legal Framework
An employer becomes a successor, which must recognize a union that represented a unit
in a predecessor’s workforce, when these elements are satisfied: it employs a majority of
predecessor employees in an appropriate unit at, or after, the time of the union’s bargaining 30
demand; and its business is a “substantial continuity” of the predecessor’s operations. Capital
Steel, 299 NLRB 484, 485 (1990); Fall River Dyeing v. NLRB, 482 U.S. 27, 41-43 (1987). The
Board considers the totality of the circumstances, when assessing “substantial continuity.”
Fall River, supra, 482 U.S. at 43. The Board, as a result, evaluates these factors: whether the
successor’s and predecessor’s businesses are alike; whether unit employees perform similar jobs, 35
under comparable working conditions with unchanged supervision; and whether production
processes, product lines and clientele are uniform. Id. Such factors are, generally, gauged from
the perspective of the unit employees involved, with great deference being afforded to “whether
the employees, who have been retained, will understandably view their job situation as
essentially unaltered.” Id.; see also Nephi Rubber Products Corp., 303 NLRB 151, 152 (1991).40

accepted the resignation and would have likely fired him in its absence, and Chiodo’s testimony that all
thefts are terminable offenses. Third, Nipper’s testimony is contradicted by him recording this transaction
as an “involuntary” firing. (R. Exh. 14).
38 These allegations are listed under complaint pars. 7 and 16.
39 These allegations are listed under complaint pars. 5, 10-15 and 19.
JD(ATL)–18-15
16
b. Analysis
i. Substantial Continuity
REI is a “substantial continuity” of the Northern Group’s operations. Unit mechanics 5
continue to repair trucks and other equipment in a garage, while using the same tools and
machinery. Unit operators continue to run pay loaders, bulldozers and other machinery at their
assigned mines and plants; they similarly use the same tools and equipment. All unit employees
generate the same overall product, and complete the same steps in the production process. Unit
employees also continue to: work analogous shifts; receive identical hourly wages; obtain 10
overtime after 40 hours; and encounter seasonal ebbs and flows in their workload. REI retained
the Northern Group’s customers. Consequently, Samson, a unit operator, and Melfi and
Reynolds, unit mechanics, all credibly testified that their jobs are unchanged. There was also no
hiatus between the Northern Group’s cessation of, and REI’s commencement of, unit operations.
Nephi Rubber Products Corp., supra. REI’s operations are, therefore, a “substantial continuity.”15
ii. Hiring a Majority of the Unit and Bargaining Demand
On May 15, REI retained 16 of 18 unit members. See (GC Exhs. 10, 28, 30, 36; R. Exhs.
10, 21; tr. 1054–55). On May 20, the Union requested recognition and sought bargaining. 20
(GC Exh. 8). REI, thus, employed a majority of the unit following this bargaining demand.
iii. Appropriateness of the Resulting Unit
REI contends that its bargaining obligation must be excused because the unit is no longer 25
appropriate. This contention is unpersuasive.
Regarding this matter, the Board has held as follows:
Critical to a finding of successorship is a determination that the bargaining unit of 30
the predecessor employer remains appropriate for the successor employer.…
In Burns, … the Supreme Court found that the successor employer (Burns) was
obligated to bargain with the union that represented the employees of the
predecessor (Wackenhut). The Court observed however: “It would be a wholly
different case if the Board had determined that because Burns' operational 35
structures and practices differed from those of Wackenhut, the Lockheed
bargaining unit was no longer an appropriate one.” Id. at 280. The Board's
longstanding policy is that “a mere change in ownership should not uproot
bargaining units that have enjoyed a history of collective-bargaining unless the
units no longer conform reasonably well to other standards of appropriateness.” 40
Indianapolis Mack Sales & Service, 288 NLRB 1123 fn. 5 (1988)…. [T]he Board
has consistently held that long-established bargaining relationships will not be
disturbed where they are not repugnant to the Act's policies… The Board places a
heavy evidentiary burden on a party attempting to show that historical units are no
longer appropriate. See Columbia Broadcasting System, 214 N LRB 637, 642-45
643 (1974) (“compelling circumstances” must be shown ….).
JD(ATL)–18-15
17
Banknote Corp. of America, 315 NLRB 1041, 1043 (1994).
REI has not sustained its heavy evidentiary burden of showing that the unit is no longer
appropriate. First, the unit is the byproduct of a longstanding collective-bargaining relationship
with the Northern Group, which is a factor that heavily supports the continued appropriateness of 5
the unit. See Banknote Corp., supra, 315 NLRB at 1043. Second, the Board generally deems a
unit of operators and mechanics to be appropriate. See, e.g., Kane Steel Co., 355 NLRB No. 49
(2010); Hanson Aggregates BMC, Inc., 353 NLRB 287 (2008). Third, unit employees continue
to perform the same duties at the same worksites. REI failed to adduce that unit mechanics or
operators perform modified duties, or that there is significant interchange, which are 10
circumstances that might show that the unit is no longer appropriate. Moreover, REI continues
to operate the Syracuse shop and Fulton facility as stand-alone repair centers, without
interchange. Finally, in arguing that the unit is no longer appropriate, REI essentially contends
that the unit is not appropriate due to its unlawful unilateral restructuring, which created a
conspicuously convenient scenario where the unit no longer enjoys majority status at any locale. 15
REI is, however, precluded from relying upon evidence flowing from the derogation of its
bargaining obligation. See Banknote Corp., supra, 315 NLRB at 1043.40 Accordingly, its
unlawful structural changes, which will be analyzed shortly, were akin to “fruit of the poisonous
tree,” and are irrelevant to this analysis.
20
iv. Conclusion
REI is a successor to the Northern Group, and unlawfully refused to recognize and
bargain with the Union as the exclusive collective bargaining representative of unit. REI
employs a majority of unit employees in an appropriate unit, and its business remains a 25
“substantial continuity” of the Northern Group’s operations.
2. Forfeiture of Right to Make Unilateral Changes
a. Legal Framework30
A successor is, generally, not bound by the substantive terms of the predecessor’s
collective bargaining agreement and is, ordinarily, free to set its own initial terms and conditions
of employment. Burns, supra, 406 US at 281; Love’s Barbeque, 245 NLRB 78, 82 (1979), enfd.
in relevant part 640 F.2d 1094 (9th Cir. 1981); Spruce Up, 209 NLRB 194, 195 (1974). This 35
right may, however, be forfeited in several ways, which are present herein. For example, it can
be forfeited, when a successor informs employees that it intends to operate as a non-union
enterprise. See, e.g., Advanced Stretchforming International, 323 NLRB 529, 530-531 (1997),

40 See also Dodge of Naperville, 357 NLRB No. 183, slip op. at 2 (2012) (“In determining whether an
established bargaining unit retains its distinct identity, we do not consider the effects of the Respondent’s
unlawful, unilateral changes to the existing unit employees' terms and conditions of employment, as giving
weight to such changes would reward the employer for its unlawful conduct.”); Comar, Inc., 349 NLRB
342, 357-358 (2007); Deaconess Medical Center, 314 NLRB 677, 677 fn. 1 (1994); Holly Farms Corp.,
311 NLRB 273, 279 fn. 25 (1993) (same).
JD(ATL)–18-15
18
enfd. in relevant part. 233 F.3d 1176 (9th Cir. 2000).41 This right may also be forfeited, when a
successor misleads employees into believing that they would all be retained without changes in
their employment conditions, or when a successor fails to clearly announce its intention to
establish new employment conditions prior to inviting former employees to accept employment.
See, e.g., Spruce Up, supra, 209 NLRB at 195; Windsor Convalescent Center of North Long 5
Beach, 351 NLRB 975, 980 (2007); Elf Atochem North America, Inc., 339 NLRB 796 (2003)
(informing employees that successor will adopt predecessor’s contract until such time as another
contract is negotiated).
b. Analysis10
REI forfeited its right to set initial terms and conditions of employment for the unit in
two, independent, ways. First, Chiodo’s comments that “we’re not taking the union with us,”
there will be no union, and other similar statements resulted in the forfeiture of REI’s right to set
initial terms and conditions of employment under the Advanced Stretchforming doctrine. 15
Second, REI actively mislead employees into believing that they would all be retained without
any change in their terms and conditions of employment, when Riccelli told Hogle on March 14
that, “when that agreement's up and we renegotiate it, there's going to be major changes …. [and
there were] positive changes that he wanted to make … including a possible night shift and an
addition of … twenty employees.” (Tr. 52–53). Riccelli’s claim that there would be major 20
changes, only after the contract expired, conveyed that REI would not make pre-expiration
changes.42 REI’s further commitment to add new workers,43 commentary about maintaining the
status quo, and subsequent decision to extend employment offers to the entire unit, amounted to
a blatant failure to announce an intention to establish a new set of conditions prior to inviting
former employees to accept employment. The fact that Riccelli made this comment to Hogle, a 25
Union representative, instead of directly to employees, does not detract from this conclusion.
See Elf Atochem North America, Inc., supra, 339 NLRB at 796, fn. 3 (in “perfectly clear” cases,
union communications are considered employee communications); Marriott Management
Services, Inc., 318 NLRB RB 144 fn. 1 (1995).
30
REI’s forfeiture of its right to set initial terms and conditions of employment has several
broad implications in this case. Most notably, REI has been precluded from the onset of its
employment relationship from making any changes in the unit’s terms and conditions of
employment, without affording the Union notice and an opportunity to bargain.
35
3. Unlawful Unilateral changes
Following its takeover, REI took several unilateral actions, which affected the unit’s
terms and conditions of employment. These unilateral changes included, inter alia: the

41 Under this doctrine, it would be contrary to statutory policy to “confer Burns rights on an employer that has
not conducted itself like a lawful Burns successor because it has unlawfully blocked the process by which
the obligations and rights of such a successor are incurred.” State Distributing Co., 282 NLRB 1048, 1049
(1987).
42 If Riccelli meant otherwise, he would have clearly announced that major changes would be immediately
implemented, as soon as REI took over the Northern Group’s operations.
43 REI made the decision in late-March to hire all unit workers, and did so when it took over.
JD(ATL)–18-15
19
temporary shutdown of the Fulton facility for renovation; the transfer of unit operators and
mechanics to and from the unit; the transfer of non-unit mechanics into the unit; and changing
the unit’s health insurance provider. REI failed to notify the Union about these changes, or
engage in bargaining with the Union, prior to implementation.
5
a. Legal Framework
i. Unilateral Changes in General
Under 8(a)(5) and 8(d), it is unlawful for an employer to refuse to negotiate over 10
mandatory bargaining topics. Fibreboard Paper Products v. NLRB, 379 U.S. 203, 209-210
(1964). It follows, accordingly, that unilateral changes in mandatory bargaining topics “is a
circumvention of the duty to negotiate which frustrates the objectives of §8(a)(5) much as does a
flat refusal [to bargain].” NLRB v. Katz, 369 U.S. 736, 743 (1962); see also N.K. Parker
Transport, Inc., 332 NLRB 547, 551 (2000). The duty of notice and bargaining requires 15
bargaining before implementation, while a union still has leverage, absent an emergency
situation not present herein. Metropolitan Teletronics, 279 NLRB 957 (1986); Willamette Tug &
Barge Co., 300 NLRB 282 (1990); Chrissy Sportswear, 304 NLRB 988 (1991).
ii. Subcontracting20
Subcontracting of unit work is generally a mandatory bargaining subject, which cannot
be unilaterally enacted without providing the union notice and a chance to bargain. Fibreboard,
supra. This obligation exists whether such subcontracting is to another company (e.g. transfer of
work from REI to SSG), as in Fibreboard, or whether the transfer is an in-house relocation of 25
work from a represented bargaining unit to another group as in Connecticut Color, 288 NLRB
699 (1988) (e.g. transfer of work from REI’s Fulton facility to its Syracuse shop). Such
bargaining is mandatory because work allocation is a fundamental condition of employment.
Road Sprinkler Fitters Local 669 (A-1 Fire Protection Co.) v. NLRB, 676 F.2d 826 (D.C. Cir.
1982). 30
The Board has, as a result, held that when an employer merely changes only the identity
of the employees performing the former unit work, while maintaining substantially the same
operations or production processes, this decision is not a change in the scope or direction of the
enterprise, but, remains a mandatory subject of bargaining under Fibreboard. See, e.g., Walt 35
Disney World Co., 359 NLRB No. 73, slip op. at 6 (2013) (eliminating banquet captain and bar
captain positions and reassigning such duties outside of the unit, where the same work continued
to be performed by others at the same locales with the same equipment); Regal Cinemas, Inc.,
334 NLRB 304 (2001) (transfer of unit work to managers or supervisors);
Geiger Ready Mix Co., 315 NLRB 1021 (1994), enfd. in relevant part 87 F.3d 1363 (D.C. Cir. 40
1996) (relocating unit work to non-unit employees employed by other affiliated entities);
Torrington Industries, 307 NLRB 809 (1992) (laying off unit drivers and replacing them with
non-unit employees at an affiliated enterprise and independent contractors, where the primary
change solely involved the identity of the personnel performing the work); United Technologies,
296 NLRB 571, 572 (1989).45
JD(ATL)–18-15
20
iii. Closure of Business Operations
The decision to close all or a part of a business (i.e. as opposed to subcontracting and
continuing an entity’s operations), and associated layoffs and transfers, may occur unilaterally,
as long as labor costs are not a factor. Dubuque Packing Co., 303 NLRB 386 (1991). If labor 5
costs are a factor, such decisions can remain unilateral, if the union is unable to offer cost
concessions, which might alter the decision. Under the Dubuque test, the General Counsel has
the initial burden of showing that the decision was a relocation of unit work “unaccompanied by
a basic change in the … employer’s operation.” The burden then shifts to the employer to show
that: the work performed at the new locale varies significantly from the former work; the work 10
performed at the former plant is to be discontinued entirely and not relocated; or the decision
involves a change in the scope and direction of the enterprise. Alternatively, in order to avoid an
obligation to bargain about the decision, an employer can show that: labor costs were not a
factor; or, even if such costs were a factor, the union could not have offered sufficient cost
concessions. However, even when, under exceptional circumstances, a decision to close a plant 15
and transfer unit work is excused from bargaining, an employer must still bargain over the
effects of a transfer. First National Maintenance Corp. v. NLRB, 452 U.S. 666, 681-682 (1981).
b. Workforce Restructuring44
20
i. Closure of the Repair Shop at Fulton Facility and Transfer of Unit Mechanics
Upon its takeover, the first unilateral change that REI implemented involved temporarily
closing its Fulton facility for renovation, and transferring all unit mechanics to the non-unit
Syracuse shop. This work relocation was temporary in nature and resulted in unit mechanics 25
performing their normal duties under constant working conditions at a non-unit site. This
temporary change did not represent an alteration of the scope of REI’s business, inasmuch as it
continued to repair trucks with in-house mechanics at its own garages, in furtherance of the same
operations and customers. REI did not permanently dismantle the Fulton facility, or sell or
relocate its assets. Under these circumstances, the Board has held that temporary relocations of 30
unit work are mandatory bargaining subjects, which require bargaining over the decision itself
and its connected effects. See, e.g., Geiger Ready Mix Co., supra, 315 NLRB at 1022 (given that
the company “intended that the plant's closure be temporary … [and did not] permanently
relocate the plant's physical assets” this decision and its effects are a mandatory bargaining
topic). Given that REI took such actions without notifying the Union about its decision or 35
engaging in pre-implementation bargaining, its unilateral action was unlawful.
ii. Transfer of Non-Unit Mechanics at Syracuse Shop to the Repair Shop at the
Fulton Facility, Transfer of Certain Unit Mechanics Back to the Repair Shop at the Fulton
facility, and Transfer of Certain Unit Mechanics from REI to its SSG, its Affiliate40
On June 23, when REI reopened the Fulton facility, it took several unilateral actions. It

44 These allegations fall under complaint pars. 13 and 19, which broadly cover REI “restructur[ing] … by
transferring the former Northern employees from their Fulton, New York work location to other locations
and transferring non-unit employees to Fulton New York.” (GC Exh. 1). The complaint alleges that REI’s
failure to bargain both over the decision, and related effects, were unlawful.
JD(ATL)–18-15
21
transferred 2 unit mechanics from the Syracuse shop back to the repair shop at the Fulton
facility. It also transferred 4 non-unit mechanics from the Syracuse shop to the unit repair shop
at the Fulton facility. It further transferred at least 1 and possibly 2 unit mechanics (i.e. D. Melfi
and J. Melfi)45 from the Syracuse shop to SSG, which remains outside the unit (see (GC Exhs.
21, 36; R. Exhs. 10, 21). The transfers of unit mechanics back into the unit, non-unit mechanics 5
into the unit, and unit mechanics already working outside of the unit to another non-unit locale
were unaccompanied by a change in the scope of REI’s enterprise. Such mechanics continued to
perform constant repair and maintenance duties on REI’s, and its affiliates’, fleet and equipment,
and their transfers solely represented the substitution of one set of employees for another. As a
result, the failure to bargain over such decisions, and their associated effects, was unlawful. See, 10
e.g., Geiger Ready Mix Co., supra (unilateral transfer of work out of unit); Torrington Industries,
supra (unilateral transfer of work out of unit); United Technologies, supra (unilateral transfer of
work out of unit); Lexus of Concord, Inc., 343 NLRB 851 (2004) (unilateral transfer of non-unit
employee into unit to perform unit work).
15
iii. Transfer of Unit Operators Outside the Unit to SSG and No. Aggregates
Following its takeover, REI, which initially hired all unit employees,46 unilaterally
transferred all unit operators outside the unit to the following affiliates: SSG, No. Asphalt, No.
Ready, and No. Aggregates.47 REI’s transfer of unit operators did not result in a change in the 20
scope of its business operations (i.e. result in REI’s wholesale elimination of mining branch),
inasmuch as REI’s own records demonstrate that it continued to employ operators, who
performed mining activities at its Panther Lake, New York mining operation. See (R. Exh. 10).
REI’s transfer of unit employees was tantamount to a subcontract, where the scope of its
operations remained constant (i.e. it continued performing mining work at Panther Lake), 25
although the identities of those workers performing mining tasks (i.e. non-unit operators versus
unit operators) were changed.
REI’s unilateral transfer of unit operators outside the unit, under these circumstances, was
unlawful in two independent ways. First, by unilaterally removing and transferring unit operator 30
work from REI’s enterprise at the Fulton facility to its affiliated non-unit enterprises, REI
subcontracted out unit work. Given that this subcontract did not represent a change in the scope
of its operations, REI was required to engage in pre-implementation bargaining over its decision
and associated effects. Its failure to do so was, accordingly, unlawful.48 See, e.g.,
Geiger Ready Mix Co., supra; Torrington Industries, supra. Second, REI’s actions unilaterally 35
removed the operator position from the unit (i.e. transferred all operators outside of the unit),
which is unlawful. See., e.g., Walt Disney World Co., 359 NLRB No. 73, slip op. at 5 (2013)
(“[O]nce a specific job has been included within the scope of a bargaining unit … , the employer

45 This uncertainty is based on REI’s conflicting records regarding these employees.
46 Unit employees received REI’s offer letters and paperwork, and were hired by its officials. (GC Exh. 9,
11).
47 Beyond showing that REI initially hired these employees and transferred them shortly thereafter, the record
otherwise fails to adduce the exact dates of the transfers.
48 This finding is valid, irrespective of whether REI’s transfers of work to its affiliates are viewed as an in-
house transfer of unit work to non-unit employees (see Connecticut Color, supra), or a transfer of unit work
to a separate employer (see Fibreboard, supra).
JD(ATL)–18-15
22
cannot unilaterally remove or modify that position without first securing the consent of the union
or the Board.”) O.G.S. Technologies, Inc., 356 NLRB No. 92 (2011) (“A successor employer ….
[l]ike any other employer … may not remove job classifications from an existing bargaining unit
absent reaching agreement with the unit employees' collective-bargaining representative or
satisfying the conditions set by the Board.”).5
c. Consolidation of SSG and No. Aggregates49
Given that REI’s unilateral elimination of operators from the unit and initial transfer of
such employees outside the unit was already found to violate 8(a)(5), the finding that its failure 10
to bargain with the Union over the effects of its decision to consolidate SSG and No. Aggregates
and further transfer certain transfer of unit operators outside the unit also violated 8(a)(5) would
be cumulative, and would not alter the overall remedy. It is, therefore, unnecessary to decide this
connected issue. See, e.g., Sygma Network Corp., 317 NLRB 411 fn. 1 (1995); Pennsylvania
Energy Corp., 274 NLRB 1153 fn. 1 (1985).15
d. Changes to the Unit’s Health Insurance Coverage50
REI’s unlawfully changed the unit’s health insurance carrier from the Union’s Welfare
and Pension Fund in the CBA to Excellus Blue Cross Blue Shield. This changed was enacted 20
unilaterally, without notice or bargaining. Health insurance coverage and related benefits are
mandatory bargaining topics. Larry Geweke Ford, 344 NLRB 628 (2005). Generally, when an
employer fails to provide a union with notice and a meaningful opportunity to bargain about a
change in health insurance coverage, such unilateral action is unlawful. Mid-Continent
Concrete, 336 NLRB 258, 259 (2001); Pioneer Press, 297 NLRB 972, 976 (1990). REI, 25
therefore, violated the Act by unilaterally changing the unit’s health insurance coverage.
4. Information Requests51
a. Legal Framework30
In general, an employer must provide requested information to a union representing its
employees, whenever there is a probability that such information is necessary and relevant to its
representational duties. See NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). This duty
encompasses the obligation to provide relevant bargaining and grievance-processing materials. 35
See Postal Service, 337 NLRB 820, 822 (2002). The standard for relevancy is a “liberal
discovery-type standard,” and the sought-after evidence should solely have a bearing upon the
disputed issue. See Pfizer, Inc., 268 NLRB 916 (1984). Information, which concerns unit terms
and conditions of employment is, “so intrinsic to the core of the employer-employee
relationship” that it is presumptively relevant. York International Corp., 290 NLRB 438 (1988). 40

49 These allegations are listed under complaint pars. 14 and 19
50 These allegations are listed under complaint pars. 14 and 19.
51 These allegations are listed under complaint pars. 15 and 19.
JD(ATL)–18-15
23
b. Analysis
REI violated the Act by failing to respond to the Union’s May 20 information request.
This request sought, inter alia, information connected to the heart of the successor, work transfer
and subcontracting matters at issue herein. This request also sought information, which 5
described the unit’s current terms and conditions of employment, seniority, duties and other
representational issues. It was, as a result, necessary and relevant to the Union’s representational
duties, and straightforwardly met the Board’s broad discovery standards.
C. 8(a)(3) and (4) Allegations10
1. 8(a)(3) – Osbourne’s Constructive Discharge52
REI violated the Act by constructively discharging Osbourne. The Board has held that:
15
Employees who quit work as a consequence of an employer's unlawful
withdrawal of recognition from their collective-bargaining representative and
unilateral implementation of changes in their terms and conditions of employment
have been constructively discharged in violation of Section 8(a)(3) and (1) ….
The theory of this violation is that employees have the statutory right to union 20
representation as well as the contractual benefits negotiated by their
representative. They may not be forced to make the Hobson's choice of leaving
their jobs or forfeiting their statutory rights in order to remain employed under the
working conditions unlawfully set by their employer.
25
Goodless Electric Co., 321 NLRB 64, 67-68 (1996), enf. denied on other grounds, 124 F.3d 322
(1st Cir. 2002) (citations omitted).
Osbourne resigned, after being told that the Union had been ousted and that only his
wages would remain constant. Given that the Union’s ouster was unlawful, his connected 30
resignation constituted an unlawful constructive discharge.
2. 8(a)(3) – Reynolds’ Discharge53
REI unlawfully failed to permit Reynold’s to rescind his resignation. The framework for 35
analyzing alleged 8(a)(3) violations is provided under Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the
General Counsel must first demonstrate, by a preponderance of the evidence, that the worker’s
protected conduct was a motivating factor in the adverse action. The General Counsel satisfies
this initial burden by showing: the individual's protected activity; employer knowledge of such 40
activity; and animus. Terminations, which include the failure to permit an employee to rescind
their resignations, are considered under the Wright Line framework. See George Lee Memorial
Hospital, 348 NLRB 327, 331-332 (2006).

52 This allegation is listed under complaint pars. 8 and 17.
53 This allegation is listed under complaint pars. 9 and 17.
JD(ATL)–18-15
24
If the General Counsel meets his initial burden, the burden shifts to the employer to prove
that it would have taken the same adverse action, even absent the protected activity. Mesker
Door, 357 NLRB No. 59, slip op. at 2 (2011). The employer cannot meet its burden, however,
merely by showing that it had a legitimate reason for its action; rather, it must demonstrate that it
would have taken the same action, absent the protected conduct. Bruce Packing Co., 357 NLRB 5
No. 93, slip op. at 3-4 (2011). If the employer's proffered reasons are pretextual (i.e., either false
or not actually relied on), the employer fails by definition to show that it would have taken the
same action for those reasons regardless of the protected conduct. Metropolitan Transportation
Services, 351 NLRB 657, 659 (2007). On the other hand, further analysis is required if the
defense is one of “dual motivation,” that is, the employer defends that, even if an invalid reason 10
might have played some part in the employer’s motivation, it would have taken the same action
against the employee for permissible reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411
F.3d 212, 223 (D.C. Cir. 2005).
a. Prima Facie Case15
The General Counsel made a prima facie showing that REI’s failure to accept Reynolds’
rescission of his resignation was unlawfully motivated. Reynolds engaged in protected activity,
when he reported Spencer’s unlawful threat to the Union, was listed in its unfair labor practice
charge concerning this threat, and provided an accompanying affidavit to the Board. REI was 20
aware of the charge identifying Reynolds, and his complicity with the Union; both Riccelli and
Chiodo conceded knowledge of the charge. Finally, animus is demonstrated by Chiodo’s
unlawful comments that REI was non-union, Spencer’s unlawful threats, and REI’s wholesale
refusal to recognize the Union as the unit’s representative and connected unlawful activities.
Animus can also be gleaned from the close timing between charge identifying Reynolds and his 25
firing. La Gloria Oil & Gas Co., 337 NLRB 1120 (2002), enfd. 71 Fed. Appx. 441 (5th Cir.
2003).
b. Affirmative Defense
30
REI failed to demonstrate that it would not have accepted Reynolds’ rescission of his
resignation, in the absence of the protected conduct. First, REI completely failed to show that it
had a non-discriminatory policy of not accepting rescinded resignations. See George Lee
Memorial Hospital, 348 NLRB 327, 331-332 (2006) (company sustained its burden where it
demonstrated that it had a uniform policy of not rehiring employees, who provided less than 35
2- week notice). Second, REI’s handling of Reynolds situation was deeply suspect, given that it
initiated the chain of events that led to his resignation by sending him home for allegedly stealing
a part, under the same circumstances that were accepted as legitimate earlier the very same day.
REI also conspicuously failed to explain why such relatively equivalent incidents were handled
so differently. Reynolds was clearly laboring under the very reasonable impression that his 40
actions were accepted practice, acted transparently, and offered to pay for the part at issue.
REI’s unwillingness to permit him to rescind his resignation under such circumstances, or
engage in an open dialogue with an admittedly good employee smacks of invidious intent.54

54 REI’s handling of this matter becomes even more suspect, when one recognizes that less than a month
earlier, it graciously permitted Reynolds to rescind his resignation and offered him a transfer, in order to
retain his services.
JD(ATL)–18-15
25
Third, REI’s claims regarding Reynolds resignation were deeply inconsistent. For example,
although Nipper testified that he resigned, the resulting paperwork contrarily reported that he
was fired for theft.55 Moreover, if Reynolds had actually resigned, it is unlikely that REI would
have permitted him to receive unemployment benefits. Under these circumstances, REI wholly
failed to show that it would not have accepted Reynolds’ rescinded resignation, absent his 5
protected activity.
3. 8(a)(3) – Ratio of Non-Unit to Unit Mechanics at the Fulton Facility56
Given that REI’s unilateral transfer of non-unit mechanics into the Fulton facility violated 10
8(a)(5), and given that its initial transfer of unit mechanics away from the Fulton facility was
also found unlawful, the finding of an additional 8(a)(3) violation on the basis of a hiring ratio
involving unit mechanics would be cumulative, and would not impact the remedy. It is,
accordingly, unnecessary to decide whether this matter violated the Act. See, e.g., Tri-Tech
Services, Inc., 340 NLRB 894, 895-896 (2003); Sygma Network Corp., supra. 15
4. 8(a)(4) – Reynolds’ Discharge57
Given that REI’s refusal to accept Reynolds’ rescinded resignation violated 8(a)(3), the
finding of an added 8(a)(4) violation would again be cumulative and would not impact the 20
remedy. It is, thus, unnecessary. See United Parcel Service, 327 NLRB 317, 317 fn. 4 (1998).
Conclusions of Law
1. REI is an employer engaged in commerce within the meaning of Section 2(2), (6),25
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. REI violated Section 8(a)(1) of the Act by telling employees that it intended to 30
operate as a nonunion entity.
4. REI violated Section 8(a)(1) of the Act by telling employees that pay raises were
not being granted because of the Union, and by pledging pay raises, once the Union was purged.
35
5. REI violated Section 8(a)(1) and (3) of the Act by constructively discharging
Monroe Osbourne.
6. REI violated Section 8(a)(1) and (3) of the Act by refusing to permit Scott
Reynolds to rescind his resignation.40

55 In addition, although Cimilluca said that he willingly accepted Reynolds’ resignation, and would have
likely fired him even if he did not resign, Nipper contradictorily testified that Cimilluca told him to permit
Reynolds to rescind his resignation on August 11. Such actions are even further contradicted by Nipper’s
willingness to afford him an employment reference to an employee, who was allegedly a thief.
56 This allegation is listed under complaint pars. 13 and 17.
57 This allegation is listed under complaint pars. 9 and 18.
JD(ATL)–18-15
26
7. The Union has, since May 15, 2014, and at all times material herein, been and is
the exclusive representative of the employees employed by REI for purposes of collective
bargaining within the meaning of Section 9(a) of the Act in the following appropriate collective-
bargaining unit:5
All full-time mechanics and operators, and excluding all other employees,
clerical employees, managerial employees, guards and supervisors as
defined in the National Labor Relations Act, employed at the Fulton, New
York facility.10
8. REI violated Section 8(a)(1) and (5) of the Act by refusing to recognize the Union
as the exclusive representative of the unit and bargain with it following its May 20, 2014
demand.
15
9. REI forfeited its right to set initial terms and conditions of employment for the
unit.
10. REI violated Section 8(a)(1) and (5) of the Act by unilaterally closing the repair
shop at the Fulton Facility and by unilaterally transferring unit mechanics outside the unit to the 20
Syracuse shop on May 15, 2014, without prior notice to the Union and without affording it an
opportunity to bargain with respect to this decision and connected effects.
11. REI violated Section 8(a)(1) and (5) of the Act by unilaterally transferring non-
unit mechanics at the Syracuse shop to the Fulton facility on June 23, 2014, unilaterally 25
transferring certain unit mechanics at the Syracuse shop back to the Fulton facility on June 23,
2014, and unilaterally transferring certain unit mechanics at the Syracuse shop outside the unit to
its affiliated enterprise, SSG, without prior notice to the Union and without affording it an
opportunity to bargain with respect to these decisions and connected effects.
30
12. REI violated Section 8(a)(1) and (5) of the Act by unilaterally transferring unit
operators to its affiliated enterprises, SSG, No. Asphalt, No. Ready and No. Aggregates, without
prior notice to the Union and without affording it an opportunity to bargain with respect to these
decisions and connected effects.
35
13. REI violated Section 8(a)(1) and (5) of the Act unilaterally removing the operator
position from the unit, transferring such work outside the unit, and, thereby, altering the scope of
the unit, without the Union’s consent.
14. REI violated Section 8(a)(1) and (5) of the Act failing to supply to the Union the 40
information sought in its May 20, 2014 letter.
15. REI violated Section 8(a)(1) and (5) of the Act by unilaterally changing the unit’s
health insurance plan and other terms and conditions of employment, without prior notice to the
Union and without affording it an opportunity to bargain over this matter.45
JD(ATL)–18-15
27
16. The unfair labor practices set forth above affect commerce within the meaning of
Section 2(6) and (7) of the Act.
Remedy
5
Having found that REI committed unfair labor practices, it is ordered to cease and desist
and to take certain affirmative action designed to effectuate the policies of the Act.
REI, having unlawfully discharged Monroe Osbourne and Scott Reynolds, must offer
them reinstatement and make them whole for any loss of earnings and other benefits. Backpay 10
shall be computed on a quarterly basis from their discharges to proper offers of reinstatement,
less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB No. 8 (2010). REI shall also expunge from its
records any references to their discharges, provide written notice of such expunction, and inform 15
them that its unlawful conduct will not be used against them as a basis for any future personnel
related actions. REI will also compensate Monroe Osbourne and Scott Reynolds for the adverse
tax consequences, if any, associated with receiving lump-sum backpay awards, and file a report
with the Social Security Administration allocating backpay to the appropriate calendar quarters
for each. Don Chavas, LLC d/b/a/ Tortillas Don Chavas, 361 NLRB No. 10 (2014).20
REI shall recognize the Union as the exclusive collective-bargaining representative of
unit employees, and shall bargain collectively and in good faith with the Union concerning the
unit’s terms and conditions of employment and, if an understanding is reached, embody the
understanding in a signed agreement. REI shall rescind its unilateral transfers of non-unit 25
employees into the unit, and transfers of unit employees outside of the unit, and, henceforth,
bargain with the Union concerning any contemplated changes in the wages, hours, working
conditions, and other terms and conditions of employment of unit employees and will restore the
status quo ante existing prior to its takeover of the Northern Group’s operations. REI shall also
offer full and immediate reinstatement to all unit employees, who were displaced by virtue of its 30
unilateral transfers, to their former or substantially equivalent positions, dismissing, if necessary,
any temporary employees or employees hired subsequently, without prejudice to their seniority
or other rights and privileges previously enjoyed. REI shall also, on request of the Union,
rescind any departures from the terms of employment that existed before its takeover,
retroactively restore preexisting terms and conditions of employment, including wage rates, 35
health insurance carriers and coverage, and contributions to benefit funds, that would have been
paid, absent its unlawful conduct, until it negotiates in good faith with the Union to agreement or
to impasse. It shall also make employees whole for their losses resulting from such unlawful
unilateral changes. See New Concepts Solutions LLC, 349 NLRB 1136, 1161 (2007); Windsor
Convalescent Center of North Long Beach, 351 NLRB 975, 988 (2007); Planned Building 40
Services, 347 NLRB 670, 674 (2006); Regal Cinemas, Inc., 334 NLRB 304 (2001). The make-
whole remedy58 for these non-discharge violations shall be computed in accordance with Ogle

58 “The Board's traditional make-whole remedy runs from the date of the successor's unlawful refusal to
bargain until the successor … reaches a new agreement or bargains to a lawful impasse…. However, in a
compliance proceeding, the Respondent will be permitted to introduce evidence establishing that, had it
lawfully bargained with the Union, it would not have agreed to the monetary provisions of the predecessor
JD(ATL)–18-15
28
Protection Service, 183 NLRB 602 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest as
prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River
Medical Center, supra. REI shall also remit all payments owed to employee benefit funds in the
manner set forth in Merryweather Optical Co., 240 NLRB 1213 (1979), and reimburse its
employees for any expenses resulting from its failure to make such payments as set forth in Kraft 5
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981),
such amounts to be computed in the manner set forth in Ogle Protection Service, supra, with
interest as prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River
Medical Center, supra. REI shall supply to the Union the information sought by its May 20,
2014 letter. 10
REI shall distribute remedial notices electronically via email, intranet, internet, or other
appropriate electronic means to its employees, in addition to the traditional physical posting of
paper notices, if it customarily communicates with workers in this manner. J Picini Flooring,
356 NLRB No. 9 (2010).15
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended59
ORDER20
Riccelli Enterprises, Inc., Syracuse, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from25
a. Telling employees that it intends to operate as a nonunion business.
b. Telling employees that pay raises are not being granted because of the
Union, or promising them pay raises once the Union has been purged. 30
c. Constructively discharging, refusing to accept rescinded resignations,
terminating or otherwise issuing other discipline to employees because they have engaged in
union or protected concerted activities.
35
d. Failing and refusing to recognize, and bargain collectively with, the Union
as the exclusive collective-bargaining representative of the unit.

employer's collective-bargaining agreement, and further establishing either the date on which it would have
bargained to agreement and the terms of the agreement that would have been negotiated, or the date on
which it would have bargained to good-faith impasse and implemented its own monetary
proposals.” Windsor Convalescent Center, supra, 351 NLRB at 988.
59 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD(ATL)–18-15
29
e. Setting initial terms and conditions of employment for the unit, after
forfeiting its right to do so.
f. Failing and refusing to bargain collectively with the Union by:
5
i. unilaterally closing the repair shop at the Fulton Facility on a
temporary basis and transferring unit mechanics outside the unit to the Syracuse Shop on May
15, 2014, without prior notice to the Union and without affording it an opportunity to bargain
with respect to this decision and connected effects;
10
ii. unilaterally transferring non-unit mechanics at the Syracuse shop
into the unit at the Fulton facility on June 23, 2014, unilaterally transferring certain unit
mechanics at the Syracuse shop back to the unit at the Fulton facility on June 23, 2014, and
unilaterally transferring certain unit mechanics at the Syracuse shop outside the unit to its
affiliated enterprise, SSG, without prior notice to the Union and without affording it an 15
opportunity to bargain over these decisions and connected effects;
iii. unilaterally transferring unit operators to its affiliated enterprises,
SSG and No. Aggregates, without prior notice to the Union and without affording the Union an
opportunity to bargain with respect to these decisions and connected effects; 20
iv. unilaterally removing the operator position from the unit,
transferring such work outside the unit, and, thereby, altering the scope of the unit, without the
Union’s consent;
25
v. unilaterally changing the unit’s health insurance plan and other
terms and conditions of employment without first giving notice to, and bargaining with, the
Union about these changes; and
vi. failing and refusing to furnish the Union with requested 30
information described in its May 20, 2014 letter that is relevant and necessary its performance of
its functions as the collective-bargaining representative of the unit.
g. In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.6035
2. Take the following affirmative action necessary to effectuate the policies of the
Act
a. Within 14 days from the date of the Board’s Order, offer Monroe 40
Osbourne and Scott Reynolds their former jobs or, if their jobs no longer exist, offer them
substantially equivalent positions, without prejudice to their seniority or any other rights or
privileges previously enjoyed.

60 A broad order is warranted “when a respondent is shown to have a proclivity to violate the Act or has
engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the
employees' fundamental statutory rights.” Hickmott Foods, 242 NLRB 1357, 1357 (1979).
JD(ATL)–18-15
30
b. Make Monroe Osbourne and Scott Reynolds whole for any loss of
earnings and benefits suffered as a result of the discrimination against them, in the manner set
forth in the remedy section above.
5
c. Within 14 days from the date of the Board’s Order, remove from its files
any reference to Monroe Osbourne’s and Scott Reynolds’ unlawful discharges, and within 3 days
thereafter, notify them in writing that this has been done and that their discipline will not be used
against them in any way.
10
d. Compensate Monroe Osbourne and Scott Reynolds for the adverse tax
consequences, if any, associated with receiving lump-sum backpay awards, and file a report with
the Social Security Administration allocating backpay to the appropriate calendar quarters for
each.
15
e. 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 designated by
the Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the backpay amounts due under the terms of this Order.20
f. Bargain with the Union as the exclusive collective-bargaining
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 agreement:25
All full-time mechanics and operators, and excluding all other employees,
clerical employees, managerial employees, guards and supervisors as
defined in the National Labor Relations Act, employed at the Fulton, New
York facility.30
g. On request of the Union, rescind any departures from the terms and
conditions of employment that existed immediately prior to the takeover of predecessor the
Northern Group, including health insurance coverage and other terms and conditions of
employment, until it first negotiates in good faith with the Union to agreement or to impasse.35
h. Make whole the unit employees for losses caused by the failure to apply
the terms and conditions of employment that existed immediately prior to the takeover of
predecessor the Northern Group’s operation, subject to demonstrating in a compliance hearing
that, had it lawfully bargained with the Union, it would have, at some identifiable time, lawfully 40
imposed less favorable terms than those that had existed under its predecessor.
i. On request of the Union, rescind its unilateral transfers of unit employees
outside the unit, transfers of non-unit employees into the unit, and elimination of the operator
position from the unit. 45
j. On request by the Union, bargain collectively in good faith concerning the
decisions to transfer unit employees outside the unit, and non
k. On request of the Union,
employees who were permanently 5
former positions or, if such positions no longer exist, to substantially equivalent employment,
without prejudice to their seniority or to other rights and privileges previously enjoyed by them.
l. Make whole with interest all such
wages which they may have suffered as a result of the above described unlawful unilateral 10
transfers in the manner set forth in the remedy section of the decision.
m. Furnish to the Union
information sought by its May 20, 2014 letter.
15
n. Within 14 days after service by the Region, post at its
Fulton, New York facilities copies of the attached notice marked “Appendix.”
notice, on forms provided by the Regional Director for Region 3, after being signed by the
Respondent's authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all p20
customarily posted. In addition to physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. 25
the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current and former
Respondent at any time since Ma
o. Within 21 days after se30
a sworn certification of a responsible official on a form provided by the Region attesting to the
steps that it has taken to comply.
Dated Washington, D.C.
35

61 If this Order is enforced by a judgment of a United States
“Posted by Order of the National Labor Relations Board
United States Court of Appeals Enforcing an Order of the National Labor Relations Board.
JD(ATL)–18-15
31
-unit employees, into the unit.
offer immediate and full reinstatement to all unit
transferred outside the unit following REI’s takeover
displaced unit employees
, to the extent that it has not already done so,
laces where notices to employees are
If the Respondent has gone out of business or clos
unit employees employed by the
y 15, 2014.
rvice by the Region, file with the Regional Director
September 21, 2015
Court of Appeals, the words in the notice reading
” shall read “Posted Pursuant to a Judgment of the
to their
for any lost
the
Syracuse and
61 Copies of the

ed
”
JD(ATL)–18-15
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 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT tell employees that we are a nonunion business.
WE WILL NOT tell employees that pay raises are not being granted because of the
International Union of Operating Engineers, Local 158-C (the Union), or promise that such
raises will be granted, once the Union is gone.
WE WILL NOT fire you, refuse accept your rescinded resignation, constructively discharge
you, or otherwise discriminate against you because you support the Union or any other labor
organization, or engage in other protected concerted activity.
WE WILL NOT fail and refuse to recognize and bargain with the Union as the exclusive
collective-bargaining representative of our employees in the following appropriate bargaining
unit (the unit):
All full-time mechanics and operators, and excluding all other
employees, clerical employees, managerial employees, guards and
supervisors as defined in the National Labor Relations Act,
employed at the Fulton, New York facility.
WE WILL NOT unilaterally set initial terms and conditions of employment for the unit, after
forfeiting our right to do so.
WE WILL NOT fail and refuse to bargain collectively with the Union by unilaterally closing
our repair shop at the Fulton Facility and transferring all unit mechanics to the Syracuse Shop,
without giving prior notice to the Union and affording it an opportunity to bargain with us
concerning this decision and its effects.
JD(ATL)–18-15
WE WILL NOT fail and refuse to bargain collectively with the Union by unilaterally
transferring non-unit mechanics at the Syracuse shop into the unit at the Fulton facility,
unilaterally transferring certain unit mechanics at the Syracuse shop back to the unit at the Fulton
facility, and unilaterally transferring certain unit mechanics at the Syracuse shop outside the unit
to our affiliated enterprise, SSG, without prior notice to the Union and without affording it an
opportunity to bargain over these decisions and related effects.
WE WILL NOT unilaterally transfer unit operators to our affiliated enterprises, SSG and No.
Aggregates, without prior notice to the Union and without affording it an opportunity to bargain
with respect to these decisions and associated effects.
WE WILL NOT unilaterally remove the operator position from the unit, transfer such work
outside the unit or alter the scope of the unit, without the Union’s consent.
WE WILL NOT unilaterally change your health insurance coverage or other terms and
conditions of employment without first giving notice to, and bargaining with, the Union about
these changes.
WE WILL NOT fail and refuse to furnish the Union with requested information described in its
May 20, 2014 letter, which is relevant and necessary to its performance of its functions as the
collective-bargaining representative of the unit.
WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the
exercise of the rights set forth above.
WE WILL, within 14 days from the date of this Order, offer Monroe Osbourne and Scott
Reynolds full reinstatement to their former jobs or, if their jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make Monroe Osbourne and Scott Reynolds whole for any loss of earnings and other
benefits suffered as a result of our discrimination against 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 unlawful discharges of Monroe Osbourne and Scott Reynolds, and we will,
within 3 days thereafter, notify each of them in writing that this has been done and that their
dismissals will not be used against them in any way.
WE WILL compensate Monroe Osbourne and Scott Reynolds for the adverse tax consequences,
if any, of receiving one or more lump-sum backpay awards, and file a report with the Social
Security Administration allocating the backpay awards to the appropriate calendar quarters for
each of them.
JD(ATL)–18-15
WE WILL recognize and bargain with the Union as the exclusive collective-bargaining
representative of the unit and, if an understanding is reached, embody the understanding in a
signed agreement.
WE WILL, on request of the Union, rescind any departures from terms and conditions of
employment that existed immediately prior to our takeover of the predecessor the Northern
Group, including health insurance coverage and other terms and conditions of employment, until
we first negotiate in good faith with the Union to agreement or to impasse.
WE WILL make whole the unit employees for losses caused by our failure to apply the terms
and conditions of employment that existed immediately prior to our takeover of the Northern
Group’s operation, subject to demonstrating in a compliance hearing that, had we lawfully
bargained with the Union, we would have, at some identifiable time, lawfully imposed less
favorable terms than those that had existed under the Northern Group.
WE WILL, on request of the Union, rescind our unilateral transfers of unit employees outside
the unit, transfers of non-unit employees into the unit and elimination of the operator position
from the unit.
WE WILL, on request by the Union, bargain collectively in good faith concerning our decision
to transfer unit employees outside the unit, and non-unit employees, into the unit.
WE WILL, on request by the Union, offer immediate and full reinstatement to all unit
employees, who were permanently transferred outside the unit following our takeover to their
former positions or, if such positions no longer exist, to substantially equivalent employment,
without prejudice to their seniority or to other rights and privileges previously enjoyed by them.
WE WILL make whole, with interest, all displaced unit employees for any lost wages, which
they may have suffered as a result of our unlawful unilateral transfers.
WE WILL furnish to the Union, to the extent that we have not already done so, the information
sought by its May 20, 2014 letter.
RICCELLI ENTERPRISES, INC.
(Employer)
Dated: ________________ By: ________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
JD(ATL)–18-15
Niagara Center Building, 130 South Elmwood Avenue, Suite 630 Buffalo, New York 14202
(716) 551-4931, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03-CA-130137 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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (716) 551-4946.