W & W Steel Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD W & W Steel Company and United Steelworkers of America, AFL-CIO. Case 23-CA-6038 (formerly 16-CA-6563) September 19, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On April II, 1977, Administrative Law Judge Jerry B. Stone issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs, and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge finds Respondent lawfully refused to bargain with the Union since a majority of its employees either had not supported the strike against the predecessor, Mosher Steel Company, herein Mosher Steel, or had been hired since the strike. We disagree. We find that Respon- dent is a successor employer within the meaning of the Act and further conclude that Respondent, on and after April 8, 1976, failed and refused to bargain with the Union as the exclusive representative of its employees in violation of Section 8(a)(5) of the Act. Facts On January 18, 1974, the Union was certified as the collective-bargaining representative in a company- wide unit including all employees employed by Mosher Steel at all of its seven plants. The unit as certified included approximately 980 employees. The parties stipulated that there were 30 employees at the Lubbock, Texas, plant, the only facility involved herein, who were allowed to vote in the election. On July 22, 1974, employees of Mosher Steel commenced an unfair labor practice strike against 'Ihe unit included: All production and maintenance employees, including leadmen, truckdrivers, janitors. and all plant clericals. Excluded were: all office clerical employees, draftsmen, inside and outside salesmen, watchmen, guards, professional employees, and supervisors as defined in the Act. - On September 16, 1975, the Board issued its decision in Mosher Steel CornpanU. 220 NLRB 336. in which it adopted the Administrative Law Judge's findings that Mosher Steel had violated Sec. 8(a)(5) and (1) of the Act and that the Jul), 22, 1974. strike was an unfair labor practice stnke. The 232 NLRB No. 18 the company. Of 51 employees in the unit at the Lubbock, Texas, plant, 27 joined the strike and 24 remained at work. As of May 6, 1975, five strikers had returned to work. The strike concluded on May 12, 1975. Thereafter, 11 striking employees returned to work. As of the critical time involved in this proceeding, 11 striking employees had not returned to work.2 On December 16, 1975, Respondent W & W Steel Company and Mosher Steel entered into a purchase-sale agreement whereby Respondent agreed to buy the Lubbock plant buildings, machine- ry, equipment, and inventory. Respondent com- menced operation of the Lubbock facility on April 1, 1976, with 37 employees formerly employed by Mosher Steel at that plant. In addition, as of April 1, Respondent hired substantially all of its predeces- sor's managerial personnel and hired approximately 30 nonunit employees, of whom 21 were formerly employed by Mosher Steel at Lubbock. On April 20, Respondent hired 12 employees not previously employed by Mosher Steel in unit positions. Of the 37 Lubbock employees hired by Respondent on April 1, 8 had participated in the 1974 unfair labor practice strike against Mosher Steel; 13 others, although employed during the period of the strike, did not participate in the strike or its conclusion and are not shown to have participated in union activity. Following commencement of operations, Respon- dent rearranged some of the shop and work locations and replaced some of the older equipment. Respon- dent, like its predecessor, continues to engage in the fabrication of steel and related products. 3 By letter dated April 8, 1976, the Union requested Respondent to bargain with it as the exclusive bargaining representative of all employees in a unit of all production and maintenance employees includ- ing leadmen, truckdrivers, janitors, and plant cleri- cals employed at the Lubbock, Texas, plant. Respon- dent has at all times denied any obligation to bargain with the Union. Analysis and Conclusions The Administrative Law Judge found, and we agree, that Respondent continued the "employing industry" by using substantially the same facilities and work force for the same basic purpose, for General Counsel does not contend that Respondent took with knowledge of the predecessor's unfair labor practices or that it had any obligation to remedy those violations of the Act. I Although Mosher Steel's work related to the industnal steel business while Respondent's comprised work for commercial businesses, we agree with the Administrative Law Judge that the transition from industrial to commercial work does not in this case reveal a material change in the basic enterprise. 74 W & W STEEL COMPANY essentially the same customers, in the same geo- graphic area. 4 Thus, Respondent continues to engage in the fabrication of structural steel and related products, and a majority of the work complement employed by Respondent was formerly employed by Mosher Steel at the Lubbock plant. The physical facility is in the same location and Respondent services customers in the same geographical area. In dismissing the complaint allegations herein, the Administrative Law Judge relied on the finding that only 8 of the 49 unit employees hired by Respondent demonstrated their support for the Union by participation in the 1974 unfair labor practice strike. Since 29 others did not engage in strike activity, and the remaining 12 unit employees were not formerly employed by Mosher Steel, the Administrative Law Judge concluded that there existed a significant question as to the Union's representative status sufficient to defeat Respondent's obligation to bargain as a successor employer. Contrary to the Administrative Law Judge, we find that Respondent did not have a reasonable basis to doubt the Union's majority status. The Board has long held that new employees will be presumed to support a union in the same ratio as those whom they have replaced.5 Thus, a majority of all employees of the predecessor are presumed to have supported the successor. This presumption is not rebutted by the fact that only 8 of the 21 employees hired by Respondent and employed by Mosher Steel at the time of the 1974 unfair labor practice strike support- ed that strike. As the Board has often stated, an employee crossing a picket line during a strike does not give rise to a presumption that such action demonstrates a rejection of the union as the employees' bargaining representative.6 Further, Re- spondent has presented no independent evidence from which the inference may be drawn that the 16 former Mosher Steel employees hired by it subse- quent to the unfair labor practice strike and hired by Respondent on April 1 either replaced union adherents or otherwise demonstrated a lack of support for the Union. Under these circumstances, we find that Respondent has not established an objective basis to support a good-faith doubt as to the Union's majority status. 7 Accordingly, we find there exists no significant question as to the Union's representative status and further conclude that I Ranch-Wav, Inc., 183 NLRB 1168, 1169 (1970); N.L.R.B. v. Burns International Security Services, Inc., el al., 406 U.S. 272, 278 (1972). s See. e.g.. Lavstrom Manufacturing Co.. 151 NLRB 1482 (1965); King Radio Corporation. 208 NLRB 578 (1974). 6 King Radio Corp., supra at 583: Salina Concrete Products. Inc.. 218 NLRB 496, 502 (1975): Palmer Asbesrtos & Rubber Corporation, 160 NI.RB 723,730 (1966). 7 Nor do we find any merit in Respondent's contention that severance of the Lubbock plant from the multiplant unit certified by the Board relieves Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the exclusive representative of its employees in an appropriate unit on and after April 8, 1976. Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(5) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent unlawfully refused to bargain with the Union as the certified representa- tive of its employees in an appropriate unit, we shall order Respondent to bargain collectively with the Union, upon request, concerning rates of pay, wages, hours, and other terms and conditions of employ- ment, and embody any understanding reached in a signed agreement. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, W & W Steel Company, Lubbock, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the following appropriate unit: Included.: All production and maintenance em- ployees, including leadmen, truckdrivers, janitors, and plant clericals employed at the Lubbock, Texas, plant located at 2221 Erskine Avenue. Excluded: All other employees, including supervi- sors, office clericals, professional, draftsmen, inside and outside salesmen, and guards and watchmen, as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of all employees in the aforesaid appropriate unit found above with respect to rates of Respondent of its obligation to bargain. Mere diminution in the scope of the unit does not relieve a successor employer of its duty to bargain. See Boston- Needham Industrial Cleaning Co., Inc., 216 NLRB 26, 28 (1975). Respondent has presented no evidence to counteract the general rule that a single-plant unit is presumptively appropriate. See The National Cash Register Coipanr. 166 NLRB 173 (1967). Accordingly, we agree with the Administrative Law Judge that the single-plant bargaining unit alleged by the General Counsel, and requested by the Union, is an appropnate unit for bargaining. 75 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its place of business in Lubbock, Texas, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. I In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with United Steelworkers of America, AFL-CIO, as the certified collective-bargaining representative of our employees in the appropriate unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL, upon request, bargain collectively with the aforesaid Union, as the certified repre- sentative of our employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is: Included.' All production and maintenance employees, including leadmen, truckdrivers, janitors, and plant clericals employed at the Lubbock, Texas, plant located at 2221 Erskine Avenue. Excluded: All other employees, including supervisors, office clericals, professionals, draftsmen, inside and outside salesmen, and guards and watchmen, as defined in the Act. W & W STEEL COMPANY DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard pursuant to due notice on November 10, 1976, at Lubbock, Texas. The charge in Case 16-CA-6563 was filed on April 29, 1976. Thereafter this case was transferred on May 5, 1976, from Region 16 to Region 23 and docketed as Case 23- CA-6038. The complaint in this matter was issued on September 21, 1976. The issues concern (1) whether the Respondent is a successor-employer to Mosher Steel Company, and (2) whether the Respondent had the obligation to bargain with the Union as to an employee unit at Lubbock, Texas and, by refusing to do so, has violated Section 8(a)(5) and (1) of the Act. All parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by the Respon- dent and the General Counsel and have been considered. Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER' W & W Steel Company, the Respondent, is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Oklahoma and maintains an office and place of business in Lubbock, Texas, the only facility involved in this proceeding, where it is engaged in the business of the fabrication of structural steel products. Mosher Steel Company is, and has been at all time material herein, a corporation duly organized under and existing by virtue of the laws of the State of Texas, having its principal office and place of business in Houston, Texas, where it is engaged in the business of fabricating structural steel products. Prior to April 1, 1976, Mosher Steel Company also owned and operated a facility in Lubbock, Texas, where steel products were manufactured. During the calendar year 1976, which period is represen- tative for all times material herein, W & W Steel Company, the Respondent, in the performance of its business as described above, purchased goods and materials valued in excess of $50,000, which goods and materials were shipped directly to Respondent's Lubbock, Texas, plant from points and places located outside the State of Texas. During the same period of time Respondent sold materials valued in excess of $50,000 to customers located at points The facts herein are based upon the pleadings and admissions therein. 76 W & W STEEL COMPANY and places outside the State of Texas, which materials were shipped directly from Respondent's Lubbock, Texas, plant to said customers. During the past calendar year, which period is represen- tative for all times material herein, Mosher Steel Company, in the performance of its business as described above, purchased goods and materials valued in excess of $50,000, which were shipped directly to Respondent's Houston, Texas, facility from points and places located outside the State of Texas. As conceded by Respondent and based upon the foregoing, it is concluded and found that the Respondent and Mosher Steel Company, each is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Preliminary Issues; Supervisory Agency Status2 At all times material herein the following named persons occupied the positions set opposite their respective names and have been, and are now, agents of Respondent, acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act: Allen E. Coles - president; James Wilson - vice president; Kenneth Baker - shop superintendent; Andy Malone - coordinator; Dan Wil- liams - subforeman; Ronnie Currin - subforeman; and Mike Dyess - subforeman. B. Background On July 19, 1973, the Union filed a petition for an election in a companywide unit of the employees at all of the Mosher Steel Company's seven plants. On August 1, 1973, Mosher Steel and the Union entered into a Stipula- tion for Certification Upon Consent Election, with election to be held simultaneously at all seven plants on August 30, 1973. The Board's notice of election set forth that ballots from all voting sessions would be mingled and counted on August 31, 1973. On August 31, 1973, such representation election referred to above was held. The tally of ballots reflects that there were 980 eligible voters, that 511 employees voted for representation by the Union, 378 employees voted against representation by the Union, and that there were 23 challenged ballots. The parties stipulated to the effect that there were 30 employees at the Lubbock plant involved herein who were allowed to vote in said election. On January 18, 1974, the National Labor Relations Board certified the Union (United Steelworkers of Ameri- ca, AFL-CIO) as the exclusive collective-bargaining representative of the employees in the stipulated appropri- ate bargaining unit.3 2 The facts are based upon the pleadings and admissions therein. Such certified and stipulated appropriate bargaining unit of Mosher Steel employees as referred to above was as follows: Included. A company wide unit of the employees at all of the Employer's seven plants, at 3910 Washington and 6422 Esperson Street, Houston, Texas; San Antonio, Texas; Dallas Texas; Lubbock, Texas; Tyler, Texas; and Shreveport, Louisiana, described as fol- lows: all production and maintenance employees, including leadmen, truckdrivers, janitors, and all plant clericals. Excluded: All office clerical employeees, draftsmen, inside and outside salesmen, watchmen, guards, profes- sional employees, and supervisors as defined in the Act. On July 22, 1974, employees of Mosher Steel Company commenced an unfair labor practice strike against the company. At the time of the beginning of said strike, there were 51 employees in the bargaining unit working at -the Lubbock plant. Initially 26 of said 51 employees com- menced striking activity, and 25 of said 51 employees remained at work. Later one other employee joined the strike. Of these striking employees, five abandoned the strike and returned to work on these respective dates: August 5 and 15; September 24 and 25; and May 6. Thus, by May 12, 1975, 5 of the 27 striking employees had returned to work for Mosher Steel at Lubbock, Texas. The strike concluded on May 12, 1975. Thereafter 11 striking employees returned to work. As of the critical time involved in this proceeding, 11 striking employees had not returned to work at the Lubbock plant either because of voluntary or involuntary reasons. On April 23, 1975, Administrative Law Judge Samuel M. Singer issued his decision in Masher Steel Company, JD- 209-75, Cases 23-CA-5165, 23-CA-5258 (formerly 16- CA-5699), and 23-CA-5282 (formerly 15-CA-5357), in which he found that Mosher Steel Company had violated Section 8(a)5) and (1) of the Act, that the July 22, 1974, strike was an unfair labor practice strike, and wherein he recommended a bargaining order be issued as regards the seven-plant certified unit, and that an order be issued requiring reinstatement and backpay for unfair labor practice strikers upon their unconditional offer to return to work. On September 16, 1975, the Board issued its decision in Masher Steel Company, 220 NLRB 336, adopting in effect the above-referred-to findings, conclusions, and recommended order of Administrative Law Judge Singer. C. The Purchase - Sale Agreement On December 16, 1975, the Respondent, W & W Steel Company, and Mosher Steel Company entered into a purchase-sale agreement whereby Respondent agreed in effect to purchase and Mosher agreed to sell the Mosher Steel Lubbock plant physical assets, including the build- ings, machinery, equipment, and inventory. The closing and effective date of purchase and sale was set for April 1, 1976. Said agreement contained no reference, representa- 3 208 NLRB 522. 77 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, commitment, or obligation regarding Mosher's Lub- bock employees. The agreement did not include sale or purchase of accounts receivable or good will or of contracts. Later in March or April 1976, the parties contracted for the completion of a few Mosher jobs started before April 1, 1976, but not completed by April 1, 1976. At the time of the execution of the purchase-sale agreement, the Respondent (W & W Steel Company) had no notice of or knowledge of pending unfair labor practice proceedings or of certification of the Union as the exclusive collective-bargaining representative of the seven-plant Mosher Steel bargaining unit. Between December 16, 1975, and April 1, 1976, the Respondent became aware of some union or prior striking activity at the Lubbock plant and had its attorney check into such question. 4 D. W & W Steel (Lubbock) Commencement of Operations On April 1, 1976, the Respondent, pursuant to its purchase-sale agreement with Mosher Steel, acquired the Mosher Steel Lubbock plant's physical assets, including buildings, machinery, equipment, and inventory, and commenced operation of a plant at such facility. Respondent commenced operations on April 1, 1976, using essentially a complement of nonsupervisory employ- ees who had worked for Mosher Steel at Lubbock prior to April 1, 1976. 5 Thus, on April 1, 1976, Respondent employed 37 nonsupervisory employees who had formerly worked for Mosher Steel.6 On April 20, 1976, Respondent hired I truckdriver and 11 helpers who had not been employed by Mosher Steel prior to April 1, 1976. On April 1, 1976, Respondent, as indicated, hired two subforemen (Williams and Dyess) who had worked as subforemen for Mosher. On April 1, 1976, Respondent hired 21 office employees, including O. E. (Jim) Wilson, who had worked for Mosher at Lubbock. Wilson was employed by Respon- dent as a vice president in production. On April 1, 1976, Respondent hired seven office employees who had not worked for Mosher at Lubbock. 7 Thereafter, on April 13 and 20, 1976, Respondent hired two office employees who had not worked for Mosher. As to Mosher's management at Lubbock, Respondent, on April 1, 1976, hired substantially all of the old management. Respondent did not hire Mosher's Lubbock plant manager, Kendred. 8 Nor did Respondent hire Subforeman George Johnson. As indicated previously, Subforemen Dyess and Williams were hired for the same position they held at Mosher's Lubbock plant. Similarly Mosher's Lubbock supervisor, Wilson, was hired. Malone, who had been shop superintendent for the Mosher 4 The General Counsel's theory in this case excludes a contention that the Respondent is a successor because of responsibility to remedy unfair labor practices. Despite this, both parties presented some evidence relating to knowledge or lack of knowledge of pending unfair labor practices proceedings or certification of the Union. Respondent's witness, Coles, testified to the effect that the first knowledge in a real sense occurred after April 1, 1976. However, considering Respondent's having its attorney to check into the questions relating to the Union, I am not persuaded that the Respondent between December 16, 1975, and April 1, 1976, did not become aware of the pendency of unfair labor practice proceedings. I find it hard to believe that its attorney did not discover such facts and report the same to top management. Lubbock plant, was retained in production. Kenneth Baker, subforeman at the Mosher-Lubbock plant, was made structural shop superintendent. Lane Odum, another Mosher Lubbock supervisor, was retained. In sum, Respondent's supervision and employee comple- ment on April 1 and for a reasonable period of time thereafter was composed of employees and supervisors who had worked for Mosher Steel prior to April 1, 1976. As indicated previously, Respondent purchased ma- chinery and equipment from Mosher. After commence- ment of operations, there was some rearrangement of the shop and work locations, some replacement of equipment by newer and better equipment, and some shuffling of supervisors. Some changes were made with respect to the type of estimators needed. The work performed by both Mosher and W & W essentially involves the fabrication of steel and related products. Mosher's work had been in the industrial steel business where sales are made to engineer- ing companies who both design and construct industrial plants, and the steel which is furnished includes machinery or equipment to be used in the manufacturing process at the new facility, as well as the structural steel for the building facility. W & W's work consists of work for commercial business, of providing steel for the erection of buildings, such as warehouses, schools, etc. Steel is furnished for such projects by contract between the steel fabricator and the general contractor of the project. I also note that there was a change with respect to shipping and receiving as regards the Mosher-Lubbock operation and the W & W Steel Lubbock operation. It appears that the shipping and receiving employees were moved out of the office location to another location and that a truckdriver was included with such employees. The functioning of shipping and receiving continued essentially the same. It is noted that of the 37 shop employees hired by the Respondent on April 1, 1976, only 8 of such employees had engaged in striking activity during the 1974 Mosher Steel unfair labor practice strike, that only 13 others had been employed by Mosher Steel at the time of the commence- ment of such strike. E. The Alleged Refusal To Bargain The facts are undisputed that the Union, by letter dated April 8, 1976, requested the Respondent, W & W Steel Company, to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in a unit described as follows: Included: All production and maintenance employees, including leadmen, truckdrivers, janitors and plant I Employees hired by W & W Steel Company applied for jobs, were interviewed, and took physical examinations. 6 An exhibit in the record reflects that 39 former Mosher Steel employees were employed on Apnl 1, 1976. The testimony relating to the status of Williams and Dyess was confused and contradictory. A later stipulation revealed Williams and Dyess to have been subforemen for Mosher Steel at Lubbock prior to April 1, 1976, and to have been employed as subforemen by Respondent on April 1, 1976. ? One of these employees was Meador who was hired as vice president in sales. I From the record and pnor Board decisions referred to in this case, it is not clear whether the correct spelling is Kindred or Kendred. 78 W & W STEEL COMPANY clericals employed at the Lubbock, Texas plant located at 2221 Erskine Avenue. Excluded.' All other employees, including supervisors, office clerical, professional, draftsmen, inside and outside salesmen and guards and watchmen, as defined in the Act. The Union's letter of April 8, 1976, referred to the fact that the Union was certified as the exclusive collective- bargaining representative of Mosher's employees in an appropriate unit which included the employees of the Mosher plant at Lubbock, Texas. The Union's letter also adverted to an NLRB case, Mosher Steel, supra, and to findings and orders therein relating to a refusal to bargain and an order to bargain. The Union's letter also adverted to its contention that the Respondent was a successor to Mosher Steel and obligated to bargain with the Union concerning the alleged appropriate unit. On April 19, 1976, Attorney Soule, for the Respondent, responded to the Union's April 8, 1976, letter, denied knowledge of the Mosher unfair labor practice charges or remedial responsibility, and requested a copy of the "certification" for review. On April 27, 1976, Attorney Wolfe, for the Union, replied to Soule's April 19, 1976, letter, furnished a copy of the NLRB's January 18, 1974, certification of the seven- plant Mosher Steel unit, and requested a prompt decision as to recognition in the unit referred to in the Union's April 8, 1976, letter. On May 4, 1976, Attorney Soule, for the Respondent, filed a petition for election for a Lubbock plant unit of: Included: All production and maintenance employees, shipping and receiving employees, and truckdrivers at the Employer's Lubbock plant. Excluded: Office clerical employees, the estimating and engineering department, draftsmen and supervisors as defined in the Act. On May 4, 1976, Attorney Soule, for the Respondent, responded to Wolfe's letter of April 27, 1976. Soule set forth that W & W Steel had no knowledge of the unfair labor practice litigation until April 8, 1976, and noted that the certification and majority status determination in- volved a seven-plant election. Soule set forth that he was forwarding a petition for election to the NLRB to resolve the question of representation and suggested that there be a stipulated election. On May 10, 1976, Wolfe, for the Union, replied to Soule's May 4, 1976, letter. Wolfe set forth that the Union was not agreeable to a stipulated election and referred Soule to unfair labor practice charges in Case 23-CA-6038 and his understanding that the bargaining obligations of a successor employer were involved in such case.9 The Respondent's representation petition (Case 23-RM- 345) was dismissed by the Regional Director on September 21, 1976, because a complaint in Case 23-CA-6038 had "' The record reveals that such charge was served on Respondent on May 7. 1976, by mail, and received by Respondent on May 11, 1976. "' An RD petition was similarly disposed of. been issued alleging violation of Section 8(aX5) and (1) of the Act. The Respondent's appeal of such dismissal was rejected by the Board on October 29, 1976, subject to reinstatement, if appropriate, upon disposition of Case 23- CA-6038.10 Issues; Contentions; Conclusions The first issue to dispose of is whether the unit alleged to be appropriate for bargaining by the General Counsel and for which the Union requested bargaining is an appropriate bargaining unit. The bargaining unit alleged to be appropriate for bargaining by the General Counsel in his complaint is the same as the one for which the Union requested bargaining. Said unit descriptively differs from the seven-plant stipulat- ed and certified unit of Mosher Steel's employees only to the extent of the restrictive reference to a unit composed only of the Lubbock employees. Production and maintenance employee units are pre- sumptively appropriate. The Respondent, by answer and at hearing, contends that the appropriate bargaining unit should include shipping and receiving employees. The evidence in this case as to shipping and receiving employees does not persuade that changes have been made which would warrant the finding that a unit excluding such employees was not appropriate. In sum, I conclude and find that the single-plant bargaining unit alleged by the General Counsel and requested by the Union is an appropriate unit for bargaining. The facts are clear that the Union made an appropriate request for bargaining on April 8, 1976. The facts are also clear that the Respondent has refused to recognize or bargain with the Union as to said appropriate bargaining unit. The critical question is whether the Respondent is a successor for bargaining purposes within the meaning of N.L R.B. v. Burns International Security Services, Inc., 406 U.S. 272 (1972). In my opinion, the evidence supports the General Counsel's theory of successorship obligation to bargain in all respects except one. Thus, the facts reveal that a majority of Respondent's employees hired on April 1, 1976, were employees of Mosher Steel prior to April 1, 1976. Such changes as to work station, commercial or industrial type work, shuffling of supervision, or newer type machine- ry, do not in this case reveal a material change in the enterprise or structure. Essentially the same employees are doing the same type work at the same location. Unlike the Burns' requirement that there be no significant reason to question the Union's majority representative status, the facts in this case reveal that there is a question of the Union's representative status. Thus, of the 37-employee complement"l hired on April 1, 1976, only 8 of such employees have revealed themselves to have been union adherents or supporters, the other 29 employees included 13 employees who had worked but had not participated in strike activity at Mosher Steel in 1974, and included 16 employees hired after the commencement of the 1974 strike or after the strike and who are not shown to have I' Of the 39 hired, 2 were supervisors. Thus, there were 37 nonsupersiso- ry employees in the bargaining unit. 79 DECISIONS OF NATIONAL LABOR RELATIONS BOARD participated in union activity. The 12 employees who were hired on April 20, and May 3, 1976, were new employees who had not worked for Mosher Steel. Although there is a weak presumption that in 1974, as a result of the certification, a majority of the employees in the Lubbock portion of the overall seven-plant unit supported the Union, the overall facts herein destroy such presumption. The facts herein reveal that on April 1, 1976, there were 11 unreinstated Mosher Steel unfair labor practice strikers. The stipulation as to these persons, however, was broad and to the effect that their failure of return was either voluntary or unvoluntary. Thus, there is no evidence to reveal that the Respondent was on notice of remedial responsibility as to such employees or in fact that any such employee had made an unconditional offer to return to work and been denied the same. There was testimony that indicated that three employees wanted to return to work but were not allowed to do so. Assuming 3 employees to be entitled to employee status or even assuming that all 11 persons referred to were entitled to employee status, the overall facts herein reveal a question as to the Union's representative status. Further, I note that the General Counsel does not pursue an obligation to bargain on a remedy theory. However, the General Counsel argues that the obligation to bargain in effect was fixed by the Board's decision in Mosher Steel Company, supra. This theory, however, in my opinion, requires the same consideration of whether there is a question of representative status as regards the one-plant unit as discussed herein in general. In sum, I find that the facts relating to the changed employer-employee relationship herein reveal that a question concerning representation exists and that W & W Steel is not a successor for bargaining purposes. Accordingly, it will be recommended that the complaint allegations of refusal to bargain in violation of Section 8(aX5) and (1) of the Act be dismissed. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. W & W Steel Company, the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. W & W Steel Company has not, as alleged, violated Section 8(a)(5) and (1) of the Act. [Recommended Order for dismissal omitted from publi- cation.] 80