Brockelman Brothers, Inc.

ROYAL BRAND CUTLERY COMPANY 901 Royal Brand Cutlery Company, a Division of Brockelman Brothers, Inc. and United Electrical, Radio and Machine Workers of America, UE. Case No. 1-CA-2419. January 12, 1959 DECISION AND ORDER On June 27, 1958, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Royal Brand Cutlery Company, A Division of Brockelman Brothers, Inc., New Bedford, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, or other conditions of employment with United Electrical, Radio and Machine Workers of America, UE, as exclusive representative of all production and maintenance employees, including shippers, receivers, packers, warehouse employees, drivers and drivers' helpers of the Respondent, employed at its New Bed- ford plant, exclusive of office clerical employees, designers, craftsmen, professional employees, salesmen, watchmen, guards, and all super- visors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organi- zation, to form labor organizations, to join or assist the above- named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such rights may be affected by an agree- 122 NLRB No. 104. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Electrical, Radio and Machine Workers of America, UE, as the exclusive rep- resentative of all employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours of employment, or other condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in New Bedford, Massachusetts, copies of the notice attached to the Intermediate Report marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after having been duly signed by Respondent, be posted by Respondent immediately upon receipt thereof, and maintained by it for a period of not less than sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN LEEDOM and MEMBER BEAN took no part in the con- sideration of the above Decision and Order. 1 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the:words "Pursuant to a Decision and Order," the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been duly filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Respondent Company, a hearing involving allegations of unfair labor practices in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended (61 Stat. 136), was held in New Bedford, Massachusetts, on April 17, 1958, before the duly designated Trial Examiner. All parties were represented at the hearing. In lieu of testimony, a stipulation of facts bearing upon the issues raised in the complaint and answer was received in evidence. Oral argument was waived. Briefs have been received from all parties. Upon the entire record in the case, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Royal Brand Cutlery Company is a division of Brockelman Brothers, Inc., which is a Massachusetts corporation. At all times since January 8, 1,958, the Respondent ROYAL BRAND CUTLERY COMPANY 903 has maintained its principal office and place of business in New Bedford, Massa- chusetts, where it is engaged in the manufacture, sale, and distribution of cutlery, silverware, and related products. In the course of its business, the Respondent annually causes such products valued at more than $50,000 to be sold and trans- ported from its New Bedford plant to States of the United States other than the Commonwealth of Massachusetts. The Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Electrical, Radio and Machine Workers of America, UE, is a labor organization admitting to membership employees of the Respondent's New Bedford plant. III. THE UNFAIR LABOR PRACTICES A. The issues In substance, it is claimed in the complaint that: (1) on January 8, 1958, the Respondent became a successor to National Silver Company which, prior to that date, operated the business described above; (2) pursuant to a Board-conducted election the Charging Union became, on June 4, 1957, the exclusive bargaining representative of all the Respondent's employees in an appropriate unit; (3) on January 13, 1958, and on various dates thereafter, despite request by said Union, the Respondent refused to bargain collectively with it as required by the Act; and (4) by such refusal the Respondent has restrained and coerced employees in the exercise of rights guaranteed by the Act. The Respondent denies that it is a successor, as alleged in the complaint, to National Silver and claims, in effect, that it is under no legal obligation to bargain with said Union. B. The facts As noted above, all evidence pertinent to the issues was introduced by way of a written stipulation of facts (amended in minor respects orally, as shown in the official record). The Trial Examiner adopts the said stipulation as his findings. They are quoted in full, herewith: I 1. The Sale 1. On January 8, 1958 the sale by National Silver Company to National Associates of certain machinery and equipment and inventory was consum- mated. These assets had previously been part of the seller's inventory and other property located at its factory' in New Bedford, Massachusetts. 2. The seller, National Silver Company, was a New York corporation hav- ing its principal office in the city and state of New York. 3. The buyer, National Associates, was a Massachusetts business trust, having its principal office in the City of Boston, Massachusetts. 4. National Associates, in turn transferred the assets to its wholly owned subsidiary, Brockelman Brothers, Inc., which began to utilize them immedi- ately on January 9, 1958, operating them as a separate division known as Royal Brand Cutlery Company. 5. National Silver Company and National Associates were strangers to each other. Negotiations for the transaction began early in December 1957 and continued until just prior to Christmas when they reached such a point of tentative understanding that a physical inventory was taken. The taking of inventory began on December 26, 1957 and continued through Decem- ber 28, followed by a pricing and computation of values which was completed on January 6, 1958 when a final price was presented to the prospective buyer. 6. The purchase price paid by National Associates to National Silver Company was in excess of one million dollars, of which eighty (80%) percent was cash and the remainder was the assumption of a loan secured by a mortgage held by the Massachusetts Business Development Corporation. Brockelman Brothers, Inc., in turn, paid its parent company the same purchase price when the assets were transferred to it. 7. National Silver has several plants and warehouses at different locations across the country. Its New Bedford plant represented about twenty-five (25%) percent of its total sales. In the January 8, 1958 transaction with 1 Although a summary of the essential facts might well be made, it is believed that all facts agreed to by the parties should be included in the form submitted. To summarize in the text and quote the stipulation in an appendix would be a needless waste of space. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Associates, National Silver disposed of only part of its New Bedford operation, retaining in its entirety the warehouse and importing business which it has continued to operate and in which it employs some sixteen (16) persons.2 8. A copy of the sales agreement , consisting of a formal AGREEMENT between National Silver Company and National Associates dated January 8, 1958 and a letter of agreement dated January 8, 1958, addressed to National Associates from National Silver Company, are attached hereto marked Ex- hibit A and Exhibit A-1. II. Commencement of Operations. 1. Production operations, which had been shut down for the Christmas holiday, were not resumed pending the negotiations until January 9, 1958, immediately after the completion of the sale on January 8, 1958. 2. Upon commencement of operations on January 9, 1958 factory personnel was recruited from former employees of National Silver Company; operating management personnel from the plant superintendent down was taken over from National Silver Company ; but top management above the production and administrative level were all newly assigned by the new ownership and management group of National Associates and its subsidiary, Brockelman Brothers, Inc. 3. Specifically, under National Silver's ownership Mr. Stanley Lipman was general manager of both the manufacturing and warehouse divisions at New Bedford as well as being sales manager. His second in command at the warehouse was a foreman. In the manufacturing operation his assistants were Mr. Stephen Belejack, plant superintendent, and Mr. J. P. Kibbee, controller. Administratively, everything was accounted for and paid out of the New York office with the exception of the plant payroll. Sales were conducted through a sales organization that was national in scope and which sold not only the products of New Bedford plant but also the imported ware- house items and the products of other plants and warehouses of National Silver throughout the country. 4. When Royal Brand commenced operations Mr. Lipman left 3 and Mr. Maurice Burnett was appointed sales manager. Under the prior ownership he had previously been an assistant to Mr . Lipman charged with the process- ing of incoming orders and the procurement of production . As Royal Brand's sales manager he undertook the administration of a new sales program through manufacturer's representatives whom he appointed throughout the Country on a straight commission basis. 5. Mr. Belejack came into Royal Brand's management as production super- intendent and Mr. Kibbee came in as controller with substantially increased duties and responsibilities, having charge of all office and accounting functions now concentrated in New Bedford , whereas under National Silver their administration had been largely in the New York office. 6. Mr. H. H. Wolfert of National Associates assumed the top management position as Executive Vice President. Mr. William Keating, also from Na- tional Associates, joined the management group as assistant general manager to Mr. Wolfert , in charge of day to day operations. III. Identity & Status of New Hires 1. On March 21, 1958, the last payroll date prior to the issuance of the Complaint, the Respondent had 134 employees on its hourly plant payroll. On December 13, 1957 and December 20, 1957, the last two pay days prior to the Christmas shutdown National Silver had 332 and 296 employees, re- spectively, on the hourly plant payroll. 2. Of the said 134 employees of the Respondent on the March 21, 1958 payroll, 132 had been on National Silver's December 13 and December 20, 1957 payroll. 3. There were 456 employees of National Silver eligible to vote at the May 9, 1956 representation election conducted under the supervision of the Regional Director . Of the 134 present employees of the Respondent 99 were eligible to vote at the May 9, 1956 election. 4. A comparative schedule of hourly paid employees of National Silver and of the Respondent is attached marked EXHIBIT B. 2 At the hearing this figure was amended to "between 14 and 18." s Although the transcript is not entirely clear on the point , it appears that the parties agreed that Mr. Lipman actually left on February 17, 1958. ROYAL BRAND CUTLERY COMPANY 905 5. A graph showing the trend in employment under both ownerships from January 1956 to the present is attached marked EXHIBIT C. IV. Use of Trademarks and Enjoyment of Good Will 1. The transaction between National Silver and the Respondent consisted of the sale of certain specified portions of the Seller's inventory and other property located at its factory in New Bedford. It specifically included trademarks and trade names applied by the Seller to items manufactured by it at the New Bedford factory and by that division of its business operating under the name Royal Brand Cutlery Company, including said name, but specifically excluding the name "National Silver Company." 2. The prohibition as to the Respondent's use of the name "National Silver" has been interpreted by the parties to deny to the Respondent the right to refer to itself as "Formerly a Division of National Silver Company." The position of National Silver, acquiesced in by the Respondent is set forth in EXHIBIT D attached hereto. 3. The sale did not include "good will." The agreement itself makes no mention of good will. During negotiations the Seller took the position that good will was not involved in the transaction since all orders for the products of the Royal Brand plant were addressed to and received by National Silver Company, usually at its New York office. Since the sale the conduct of the parties has borne out this original concept. The Respondent has no right to orders received by National Silver for items produced at the Royal Brand plant. It acquired no continuity of business through repeat orders or cus- tomer good will. 4. The trademarks, trade names and pattern names formerly used by Na- tional Silver Company fall roughly into two major classifications as follows: i. Those that were identified with contract customers and normally have significance to or are owned by contract customers, and, ii. Those that had been the property of National Silver Company and became the property of Royal Brand Cutlery Company subsequent to the sale. 5. With reference to the marks for contract customers, there are, of course, several that were used in the past by National Silver Company and are still used by the Respondent and will be used by it until such time as it no longer makes the product or the customer designates otherwise. The following are a few typical examples within that classification: i. Stanley Home Products ii. Tupperware iii. Alcoa 6. With reference to those trade names or trademarks and pattern names, that were formerly the property of National Silver Company and were used with their standard products, a list of representative examples follows: i. "King Edward Silverplate"-This was used for a particular grade of silverplate that came in several patterns. ii. "Royal Brand Cutlery Company"-This brand was formerly used on medium or better grades of kitchen cutlery and kitchen tools. The Respondent is using this particular brand name. It is estimated that of its total units of manufacture, not more than ten percent is so branded. iii. "National Silvertone Stainless"-This was used by National Silver on medium grades of stainless steel flatware. The Respondent is pro- hibited from using the designation "National" even though "Silvertone" became its property. iv. "National Guildcraft"-This brand name was used with the more expensive grades of silverplate by National and, more recently still by National, on the more expensive or best grades of stainless steel flatware. Again, Respondent is prohibited from using the word "National" even though it acquired ownership of the trade name "Guildcraft." v. "NASCO" (Contraction of National Silver Company)-This trade name was used by National on a very great many stainless and silver- plate flatware pieces. The Respondent is prohibited from using same except on the inventory purchases and on the raw materials or goods in process purchased. vi. "N.S.CO." (Contraction of National Silver Company)-This, also, was used on very many stainless steel and silver-plated products and falls within the same prohibition as does "NASCO." 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. In addition to the representative group of trademarks or names listed above, there are a great many patterns or product names formerly used by National Silver Company that now are owned by Royal Brand Cutlery Company. Typical of some of these pattern or product names are: KENT, PRISTINE, POSY, MONTEREY, ASTRID, CONCERTO, LEAF, TRACERY and literally hundreds of others. However, since these names usually are identified with particular patterns or products they have significance only insofar as such products are continued in manufacture. 8. There are literally thousands of items previously listed as being manu- factured by National Silver Company that are being closed out and disposed of. This means, in turn, that the use of these names and their previous identity are rapidly disappearing. 9. The Respondent is presently engaged in a program to register a sub- stantial number of new brand names which will establish a fresh identity for its products. Names already submitted for registration are: Ii-Glo, Naushon and B.B. Stainless. 10. The Respondent has already for a number of weeks now, used its own new trademark "B.B. Stainless" on all its new tools, dies and other fixtures used in the production of stainless steel flatware. This same practice will be followed in the use of the new trademark "Naushon" for silver plate, the new trademark "Hi-Glo" for a particular grade of stainless steel flatware, and other new trademarks as they are registered. It is also under considera- tion to substitute the Respondent's own new mark "Hi-Glo" for "Silvertone." 11. The Respondent estimates that upon conclusion of its program of dis- continuing the use of the marks "National," "Nasco" and "N.S.Co." and substituting its own newly registered marks no more than five percent of the total units manufactured by the Respondent will be directly identified with registered trade names formerly owned by National Silver Company. 12. At the present time the Respondent is operating at a rate approxi- mately one half that attained by National Silver during the last year of its ownership. V. Status of Existing Liabilities 1. The Respondent did not assume the liabilities of a going business. It assumed only the specific obligations, (a) to pay for outstanding purchase commitments, namely "to assume the liability for the Seller's outstanding purchase commitments of raw materials, components and supplies for mer- chandise manufactured by the Seller and the Seller represents and warrants that such commitments were made in the usual course of business and are in total amount not in excess of the Seller's normal operating requirements" and (b) to accept certain returned merchandise, namely to assume the liability to reimburse customers of the Seller who return to the New Bedford factory merchandise purchased on a "guaranteed sale" basis, so-called, to the extent of the purchase price thereof only, provided that this assumption of liability shall be limited to returns received within six months from the date hereof and which do not exceed in the aggregate the sum of $200,000; and (c) to assume the mortgage held by Massachusetts Business Development Corpora- tion; and (d) to pay certain salesmen's commissions earned on or after December 26, 1957. VI. Intervening Circumstances 1. On May 9, 1956 a National Labor Relations Board representation elec- tion was held to determine the question of union representation of the pro- duction and maintenance employees of National Silver Company at its New Bedford plant. A total of 411 out of 456 employees eligible to vote at that election did so, resulting in 217 votes for the United Electrical Workers, 123 for the Teamsters, and 71 votes for "no union." 2. A period of approximately 13 months-from May 9, 1956 to June 4, 1957-elapsed between the election and certification of the United Electrical Workers as bargaining representative. During this period of delay, which was caused by disputes over the conduct and validity of the election, the United Electrical Workers Union was active in organization activities at the New Bedford plant and attempted to represent the employees at the New Bedford plant in pressing wage and other demands with the management of National Silver Company. 3. Under the leadership of the UE, but before its certification as bargain- ing representative of the New Bedford plant employees of National Silver Company, some of the employees went out on strike and established a picket line at the plant on September 5, 1956 without satisfaction of their demands ROYAL BRAND CUTLERY COMPANY 907 and without any formal settlement of the dispute. During this strike trucks of the Morse Transportation Company driven by members of the Teamsters Union entered and left the plant without recognizing the picket line. 4. Two groups of employees attempted to negotiate with management dur- ing this strike. One group, the strikers, were represented by what was termed by Douglas N. Perry, the UE organizer, as a "non-partisan" com- mittee of nine employees, three of whom represented the Teamsters Union, three the UE and three favoring no union. The second group was the non- striking employees who continued to work. This group, by petition to the Company, requested representation before management by a committee of five employees to be elected by secret ballot to be held under the supervision of an impartial body such as the American Arbitration Association. Man- agement endorsed this suggestion of the non-strikers by public statement in the press and otherwise. 5. Subsequent to certification of the UE on June 4, 1957, and until the present date, no collective bargaining agreement has been executed between the Union and management of National Silver Company, no portion of any such agreement has been drafted or tentatively agreed upon, no meetings between a union negotiating committee and the management of National Silver Company for the purpose of negotiating such a bargaining agreement has been held, and as of December 31, 1957 the membership and makeup. of such a union negotiating committee, if one ever existed, were not known to the management of National Silver Company. 6. On February 12, 1958 representatives of the Respondent met with Mr. Douglas N. Perry, representing the UE, and stated its position. Subsequently, under date of February 28, 1958 the Respondent posted a notice to all per- sonnel, confirming the position it had previously taken with Mr. Perry. A copy of the notice is attached hereto marked EXHIBIT E. 7. On January 29, 1958 Local 59, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America filed a petition for an investigation and certification of representatives under Section 9(c). Following due investigation the petition was dismissed .4 Subsequently upon a Request for Review the dismissal was found to be warranted. (See Royal Brand Cutlery Company-Case No. 1-RC-5171.) 5 8. UE has continued to assert that it remains the certified bargaining representative for National Silver employees engaged in the warehouse opera- tion, and has persisted in its efforts to bargain with National Silver on behalf of the sixteen employees of National Silver who continue to work there. 9. In February 1958 UE filed charges of refusal to bargain in good faith with the National Labor Relations Board against the National Silver Company. The foregoing is in the language of the written stipulation, as amended in minor respects orally during the hearing. Other stipulations of fact, stated orally, are as follows: (1) On January 7, 1958, Mr. Wolfert, vice-president of National Associates, executive vice-president of several companies held by National Associates, and who was to be executive vice-president of Royal Brand Cutlery, called at the plant in New Bedford with Mr. Andres and conferred with Mr. Belejack and Mr. Walgren, counsel for National Silver Company. The purpose of the call was to explore what problems were going to arise when National Cutlery took over the operation within the next few days. At that time Mr. Wolfert was informed of the existing certification, and at that time was advised by his counsel, Mr. Andres, as to what his obligations, or what the obligations of Royal Brand Cutlery were, or would be, under that certification, if any. (2) The written stipulation, G. C. Exhibit 5, recites that negotiations for the purchase of National Silver's operations, or that portion of it which was purchased, consumed the period of four weeks. During the course of those negotiations, Royal-the purchasers, rather, National Associates, was repre- * Case No. 1-RC-5171. 5 At the hearing, it was further stipulated that parties to this matter were informed by a letter of April 8, 1958, from the Board's Assistant Secretary, as follows : "The Board has carefully considered your request for a review of the Regional Director's Dismissal of the Petition in the above case, and decided that in view of the issuance of the Com- plaint in Case No. 1-CA-2449, allegations and [of] violations of Section.8(a) (5), in that the Employer has refused to bargain with the UE, the Regional Director's action in dis- missing the instant petition was warranted." 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sented by the following principal negotiators, Mr. Friedlander, who was the principal negotiator, and who was an officer of National Associates; Mr. Needham, who was his counsel; and Mr. Babbit, President of National Associates. If any one or all of these three gentlemen are (were) called to testify, they would testify that they, the principal negotiators, had no knowledge of the certification of the UE, prior to the consummation of the sale on January 8. (3) The written stipulation will show to the Examiner that the operations, that part of the operations, formerly conducted by National Silver in New Bedford, were purchased on January the 8th, by National Associates, which in turn, sold it, or turned it over to Royal Brand Cutlery. The stipulation will also show that of the 136 employees hired to start operations by Royal Brand Cutlery, 134 were former employees of National Silver. National Silver, prior to January 8, as part of its operations in New Bedford, conducted an import business, using for that purpose a location or building as a warehouse. That portion of National Silver's business, which at that time employed approximately 55 persons in the categories of warehousemen, shippers and receivers, was not purchased or taken over by National Asso- ciates; but was retained , and is still operating by National Silver. National Silver, as . . . recited, prior to the sale of its production depart- ment, had in this warehouse importing business approximately 55 employees. After the sale that complement was reduced to from 14 to 18 at the time of the sale, and these employees were retained by National Silver. There was a continuity of their employment, of the balance of the 55, 39 to be exact, 12 were in the categories known as shipping and receiving. Of those formerly employed by National Silver, at least 4 continued their employment with Royal Brand, that is, were picked up or taken over by- not necessarily the same categories, not necessarily as shippers and receivers. Royal Brand as of now has three or four, perhaps four or five, shippers and receivers, the majority of whom were formerly employees of National Silver. Those likewise, not necessarily employed as shippers and receivers. It is certain that all of the shippers and receivers now employed by Royal Brand were not formerly employees of National Silver, within the unit found by the Board to be appropriate for the purposes of collective bargaining. A minimum of four of the twelve were picked up in one capacity or another by Royal Brand. Prior to January 8, prior to the sale of production and maintenance processes to Royal Brand Cutlery, shipping and receiving was carried on at National Silver physically by there being three receiving bays into which trucks arrived and unloaded their goods, two of which were assigned to im- porting into the warehouse, generally speaking, and one which was assigned, generally speaking, for production processes. If employees who did the receiving and shipping to some extent, to the extent made necessary by the fact that they worked side by side, assisted or interchanged between each other, an internal audit assigned so much.of the payroll to that business, and that same internal audit charged the balance of the payroll, of course, to the production unit. Prior to the sale there were shipping and receiving operations, and persons engaged in those endeavors, for both the importing section of the business and the manufacturing section of the business. C. Conclusions As noted heretofore, the one prime question here is whether or not the successor- ship described in such detailed fashion in the stipulation is of a nature from which it may reasonably be concluded that the Respondent has the legal obligation to bargain collectively with the Charging Union. In his comprehensive brief, counsel for the Respondent urges dismissal of the complaint, and contends that the Respondent is fully justified in declining to recognize and bargain with the Union until another election is conducted by the Board. In support of his position he cites, in summary, "the multitude of unusual circumstances involved reflecting confusion and lack of stability in the bargaining relationship, the change of ownership and resulting substantial change in the scope of operations and number of employees , the retention by the seller of its name, good will and a portion of its prior operation , the certified union's claim as representative in respect thereto, the good faith and well-founded doubt of the Respondent as to the majority status of the UE." On the other hand, General Counsel , in urging that clear successorship exists, points to the following facts, among others , amply established in the voluminous ROYAL BRAND CUTLERY COMPANY 909 stipulation of facts: (1) practically all of the employees of the Respondent were employees of National Silver; (2) there was no change in the supervision below the position of General Manager-and that change did not occur until some weeks after the transaction; (3) the nature of the industry is the same, and the premises are the same (except for retention of the warehouse by National Silver). In the opinion of the Trial Examiner merit must be found in General Counsel's argument. The essential and basic fact is that the employing industry remains the same-and not that some registered trade name for some product has been dropped, altered, or may be changed. Human employees, not Madison Avenue concocted contractions of names, were accorded certain rights by Congress, and employees, not syllables, engage in strikes disturbing industrial peace. As the Court of Appeals, Sixth Circuit, said in Colten and Coleman, d/b/a Kiddie Kover Mfg. Co., 105 F. 2d 179: It is the employing industry that is sought to be regulated and brought within the corrective and remedial provisions of the Act in the interest of industrial peace. The term "co-partners" may not then be regarded as more than a term of description, or as denoting a legal entity which alone is subject to the command of the order. It needs no demonstration that the strike which is sought to be averted is no less a subject of legislative solicitude when contract, death, or operation of law brings about a change of ownership in the employ- ing industry. In agreement with General Counsel, the Trial Examiner believes that N.L.R.B. v. Albert Armato and Wire & Sheet Metal Specialty Co., 199 F. 2d 800 (C.A. 7) is here controlling. There the court said: The crucial question presented is whether the certification of the union, issued by the Board during Krantz' ownership of the business, continued to be binding on Armato and the subsequently formed corporation. The very nature of the certification of a union as bargaining agent for a group of employees impels the conclusion that a mere change in employers does not operate to destroy the effectiveness of the certification. It is an official pronouncement by the Board that a majority of the employees in a given work unit desire that a particular organization represent them in their dealings with their employer. There is no reason to believe that the employees will change their attitude merely because the identity of their employer has changed. In Cruse Motors, 105 NLRB 242, the Board said, in part: a mere change of ownership of the employment industry is not so un- usual a circumstance as to affect the certification. Where the enterprise remains substantially the same, the obligation to bargain of a prior employer devolves upon his successor in title. A purchaser in such a situation is a successor employer. . . . In short, the Trial Examiner concludes and finds that the Respondent has the legal obligation to recognize and bargain with the Charging Union.6 As alleged in the complaint, and as the certification by the Board establishes, the Trial Examiner concludes and finds that the appropriate unit is as follows: All production and maintenance employees, including shippers, receivers, packers, warehouse employees, drivers and drivers' helpers of the Respondent, employed at its New Bedford plant, exclusive of office clerical employees, designers, crafts- men, professional employees, salesmen, watchmen, guards, and all supervisors as .defined in the Act. The complaint alleges, the answer admits, and it is concluded and found that on or about January 13, 1958, and thereafter the Charging Union requested the Respondent to bargain collectively with it as the exclusive representative of all the employees in the above-described unit. Although the answer denies the allegation in the complaint that it has refused to bargain, it is clear that the denial is because of the language in the complaint, which refers to the Respondent as the "successor to National Silver." There is no dispute that the Respondent did refuse and has continued to refuse to bargain as a fact. The Trial Examiner further concludes and finds that by refusing to bargain with the Charging Union the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in the Act. For the most recent case bearing upon the issues, see Boyce Wallace and Louise M. Wallace, t/a Investment Building Cafeteria, 120 NLRB 38. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent , set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively as required by the Act with the chosen representative of its employees. It will there- fore be recommended that it bargain collectively and in good faith, upon request, with the Union as the exclusive representative of its employees in the appropriate unit. It will also be recommended that the Respondent cease and desist from in any like or related manner infringing upon the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Electrical, Radio and Machine Workers of America, UE, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees, including shippers, receivers, packers, warehouse employees , drivers and drivers' helpers of Respondent, em- ployed at its New Bedford plant, exclusive of office clerical employees, designers, craftsmen, professional employees , salesmen, watchmen , guards, and all supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. The above-named labor organization at all times since June 4, 1957, has been the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing on and after January 13, 1958, to bargain collectively with the aforesaid labor organization as the exclusive bargaining representative of all em- ployees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain collectively, upon request, with United Electrical, Radio and Machine Workers of America, UE, as the exclusive representative of all our employees in the unit described herein with respect to rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement . The bargaining unit is: All production and maintenance employees, including shippers, receivers, packers, warehouse employees, drivers and drivers' helpers employed at our New Bedford plant , exclusive of office clerical employees, designers, craftsmen, professional employees, salesmen, watchmen, guards, and all supervisors as defined in the Act. 1. NITED INSURANCE COMPANY 911 WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. ROYAL BRAND CUTLERY COMPANY, A DIVISION OF BROCKELMAN BROTHERS, INC., Employer. Dated-=----------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. United Insurance Company and Insurance Agents' International Union, AFL-CIO. Case No. 4-C,4-1576. January 14, 1959 DECISION AND ORDER On May 15, 1958, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case,' and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations.' r The Respondent's request for oral argument is denied, as the record, and the excep- tions and briefs, adequately present the issues and the positions of the parties. 2 We agree with the Trial Examiner's finding that paragraph 18 of the 1956 consent- election agreement did not foreclose the Respondent from raising the issue of the alleged independent contractor, status of its debit agents here. However, unlike -the Trial Examiner, we do not base our finding on an interpretation of paragraph 18 as being an intended waiver of the right to raise such issue only for. purposes of the representation case. Nor do we base our finding on the inference created by such an interpretation that a consent-election agreement is not binding in a companion refusal -to-bargain case arising therefrom where no Jurisdictional fact is involved, or on the further inference that the companion refusal-to-bargain case is a separate and independent proceeding from the representation case. See The Baker and Taylor Co., 109 NLRB 245 . See also Pittsburgh Plate Glass Company v. N.L.R.B., 313 U. S. 146 . We rather base our finding on the fact that independent contractors are statutorily excluded from the coverage of the Act. in Section 2(3), and for that reason the possible independent-contractor status of the debit agents, could not be waived and was subject to litigation before the consent-election certification could be conclusive. Cf. Montgomery Ward 4 Co ., Incorporated, 115 NLRB 645, 646, 647. 122 NLRB No. 112.