Baker Automation, Inc.

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Respondents in this report . The preventive purposes of the statute will be frus- trated unless the remedial action recommended in this case , and any order which may prove to be necessary , can be made coextensive with the threat . In order, therefore, to make the interdependent guarantees of Section 7 effective , prevent any recurrence of the unfair labor practices found, minimize industrial strife which burdens and ob- structs commerce, and thus effectuate the policies of the statute , it will be recom- mended that Respondents cease and desist from infringement , in any other manner, upon the rights guaranteed by the aforesaid statutory provisions. In the light of the foregoing findings of fact , and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Flora Construction Company and Argus Construction Company , Wyoming corporations doing business as a joint venture under the name of Flora and Argus Construction Company, are Employers within the meaning of Section 2 (2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. Casper Building and Construction Trades Council , AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act, as amended , composed of local labor unions admitting employees of Flora and Argus Construction Company to membership. 3. By interference with, restraint, and coercion of its employees in their exercise of rights guaranteed in Section 7 of the Act, Flora and Argus Construction Company engaged and has continued to engage in unfair labor practices within the meaning of Section 8 (a)(1) of the Act, as amended. 4. By the discharge or layoff of seven employees named below, and by its subse- quent failure or refusal to offer any of the designated employees effective and com- plete reinstatement, Flora and Argus Construction Company engaged in and have continued to engage in unfair labor practices within the meaning of Section 8(a) (1) of the Act, as amended: Steve Bolan D. R. McCaslin Jack Cuddy Herbert Schuchardt Vince Jahner Jerry Sutton Samuel J. Wilson 5. The unfair labor practices found are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act, as amended. [Recommendations omitted from publication.] Barker Automation, Inc., successor to Barker Poultry Equip- ment Company, Barker Egg Equipment Company' and Dis- trict 105, International Association of Machinists , AFL-CIO, Petitioner. Case No. 18-RC-4391. August 7, 1961 SUPPLEMENTAL DECISION, ORDER, AND SECOND DIRECTION OF ELECTIONS On January 4, 1961 , the Board 2 issued a Decision and Direction of Election herein,3 finding appropriate "separate units of all the pro- duction and maintenance employees at (1) Barker Poultry Equip- ment Company 's plant at 802 South Madison , Ottumwa, Iowa; (2) Barker Egg Equipment Company's plant at 905 South Madison, i The Employer's name appears as amended. s Pursuant to the provision of Section 3 (b) of the Act, the Board has delegated Its powers in connection with this case to a three-member panel [ Members Rodgers , Fanning, and Brown] 3 Not published in NLRB volumes 132 NLRB No. 59. BARKER AUTOMATION, INC. 795 Ottumwa, Iowa (the Ottumwa Air Base plant) ; and (3) Barker Poultry Equipment Company's plant in Bloomfield, Iowa; excluding office clericals, draftsmen, professional employees, guards, Watchmen and supervisors as defined in the Act." Thereafter the Board was administratively advised that following the hearing on the petition, but prior to the issuance of the Board's decision, Barker Poultry Equipment Company and Barker Egg Equipment Company, the Em- ployer named in the petition, hereinafter called the Barker Com- panies, was sold to W.P.C. Enterprises and that the purchasing com- pany, hereinafter called W.P.C., was operating the plants of the Employer. On January 19, 1961, the Board issued a notice to the parties to show cause why this proceeding should not be amended so as to show the name of the Employer as "Barker Poultry Equipment Company and Barker Egg Equipment Company, a Division of W.P.C. Enterprises" wherever it appeared. On February 3, 1961, W.P.C. filed a response in which it objected to amending the proceeding and requested that the proceeding be dismissed. On March 2, 1961, the Board ordered that a further hearing be held for the purpose of receiving evidence to enable the Board to determine the effect of the sale of the Employer upon this proceeding. Barker Automation, Inc., hereinafter called Automation, moved to dismiss the petition on the ground that the Employer, after being sold in a bona fide transaction, was disssolved, is no longer in exist- ence, and that since the sale the operation of the plants here involved had so changed that the units described in the Board's decision no longer exist. For reasons hereinafter stated this motion is denied. After the sale negotiations, which commenced in April 1960, the assets of the Barker Companies 4 were sold to the purchasing com- pany in a sale consummated on October 31, 1960, and made retroactive to June 30, 1960. About 30 percent of the purchase price was pay- able in Waterman Pen Company stock and the balance in cash and notes. The purchasing company, a New York corporation and a sub- sidiary of the Waterman Pen Company, Limited, Montreal, Canada, in addition to the acquisition of the operations of the Employer here- in, is engaged in a variety of business enterprises. It owns Private Brands, Inc., which is engaged in private-brand packaging of several drug commodities , band-aids, and some Singer Sewing Machine prod- ucts. It also owns 50 percent of the stock of Permachem Interna- tional, Inc., which is engaged in the international sale of a bactericide, and also manufactures poultry equipment and egg-grading equipment in England, France, and Switzerland. Following the sale, the corporate organizations of the Barker Com- 4In addition to the several plants involved in this proceeding , the sale also covered the Barker plants at Wapello , Iowa ; Modesto, California ; Seaboard, Delaware ; Gainesville, Georgia; Fort Worth, Texas; and 51 percent of the Barker stock holdings in Barker Poultry Equipment Company, Limited , Winnipeg, Canada. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD panies were dissolved. The operation known as the 905 South Madi- son, Ottumwa, egg equipment plant was discontinued and its functions and employees were transferred to the Ottumwa Air Base egg equip- ment plant. The seniority standings of the egg equipment employees were merged with those of the poultry equipment employees at the 802 South Madison, Ottumwa, plant and authority over the labor re- lations matters of the two plants was centralized and vested in the plant superintendent having jurisdiction over both of these plants. Although the purchase agreement contained no provision relating to the status of the employees, the purchasing company has retained these employees together with the supervisory and the managerial staffs, and without any changes in their duties. The former Barker Companies' plants involved are being operated as a division of the purchasing company. The Board has previously held that where, after a direction of elec- tion has been issued, the business involved is sold, but there is no change in any essential attribute of the employment relationship, the direction is to be construed as providing for an election among the employees of the successor.' Under the circumstances of this case, we are convinced that, except for the substitution of Automation for Barker Poultry Equipment Company and Barker Egg Equipment Company, the relationship between the employees in the unit and their employer has remained essentially unchanged. We therefore find that Automation is a successor to Barker Poultry Equipment Company and Barker Egg Equipment Company and that, as such successor, a question affecting commerce exists concerning the repre- sentation of Automation's employees. We shall, therefore, amend the Decision and Direction of Election herein to reflect this successorship. ,As the record shows that Automation has discontinued the opera- tion at the 905 South Madison, Ottumwa,' plant (one of the two egg equipment plants) and the functions of that -operation and its em-' ployees were transferred to the Ottumwa Air. Base plant (the other of the two egg equipment plants) we shall amend the unit descrip- tion accordingly.' Therefore, we shall, direct elections, in separate units of all production and maintenance employees at (1) the Em- ployer's plant at 802 South Madison and the Ottumwa Air Base egg equipment plant, Ottumwa, Iowa; and (2) the Employer's plant in Bloomfield, Iowa, excluding office clericals, .draftsmen, professional employees, guards, watchmen, and supervisors as defined in the Act. [The Board amended the Decision and Direction of Election by inserting before the words "the Employer" the words "Barker Auto- mation Inc., successor to."] [Text of Second Direction of Elections omitted from publication.] 1 6 Alien W. Fleming, Inc., 91 NLRB 612, 614.