Gibbons Enclosures, Inc.

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Myers Custom Products Incorporated, a Wholly Owned Subsidiary of Myers Electric Products, Inc., d/b/a Gibbons Enclosures, Inc. and Inter- national Brotherhood of Electrical Workers, Local Union No. 1710, AFL-CIO, CLC. Case 21-CA-23466 II. ALLEGED UNFAIR LABOR PRACTICE The issue is whether the Respondent is a succes- sor employer obligated to recognize and bargain with the Union as the exclusive representative of a unit of its employees. 20 February 1986 DECISION AND ORDER BY MEMBERS DENNIS, BABSON, AND STEPHENS Upon a charge filed 1 October 1984 and an amended charge filed 1 February 1985, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing 5 Decem- ber 1984. The complaint alleges that the Respond- ent is a successor employer and has violated Sec- tion 8(a) (5) and (1) of the Act by failing to recog- nize and bargain with the Union. On 15 April 1985 the parties jointly moved to transfer the instant proceeding to the Board, with- out benefit of a hearing before an administrative law judge, and submitted a proposed record con- sisting of the formal papers and the parties' stipula- tion of facts with attached exhibits. On 24 May 1985 the Associate Executive Secretary, by direc- tion of the Board, issued an order granting the motion, approving the stipulation, and transferring the proceeding to the Board. Thereafter, the Gen- eral Counsel and the Respondent filed briefs.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, a California corporation, is en- gaged in the manufacture of commercial and indus- trial sheet metal enclosures at its facility in City of Industry, California. During the 12-month period commencing 17 September 1984, the Respondent sold and shipped goods and products valued in excess of $50,000 directly to customers located out- side the State of California. We find that the Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. We further find that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. 1 The Respondent's request for oral argument is denied, as the record, exceptions, and briefs adequately present the issue and the parties' posi- tions A. Facts Until about 14 September 1984 Gibbons Enclo- sures, Inc. (Gibbons) manufactured commercial and industrial sheet metal enclosures in City of Indus- try, California. Since 1952 Gibbons and the Union have been parties to a series of collective-bargain- ing agreements, the most recent of which com- menced 5 March 1983 and ended 4 March 1985. On 14 September 1984 the Respondent purchased Gibbons' City of Industry operations. Before the purchase, the Respondent interviewed each of Gibbons' employees who expressed an in- terest in working for the Respondent. In addition, the Respondent interviewed Gibbons' managers and supervisors. Before commencing operations, the Respondent determined that it would take 2 to 3 months to select and train a full employee com- plement, while still maintaining efficiency through- out the plant. On 17 September 1984 the Respondent, in com- mencing operations at the City of Industry facility, hired 13 individuals to fill bargaining unit posi- tions, 2 9 of whom had worked for Gibbons. By 12 November 1984, the Respondent hired 13 more bargaining unit employees, only 2 of whom had worked for Gibbons. On 1 October 1984 the Re- spondent promoted a bargaining unit employee to a supervisor's position. The Respondent continues to manufacture many of the same products that Gibbons produced for substantially the same customers that Gibbons served. The Respondent also uses substantially the same machinery, equipment, and methods of pro- duction that Gibbons used. The Respondent's em- ployees work in substantially the same jobs under substantially the same physical working conditions as did Gibbons' employees. About 4 October 1984 Union Business Repre- sentative Donna Brady met with the Respondent's vice president Barbara Ferguson. Brady requested that the Respondent bargain with the Union. Fer- guson replied that the Respondent purchased only Gibbons' assets, not its collective-bargaining agree- ment. Brady then demanded that the Respondent recognize the Union. Ferguson refused, stating that it was up to the employees and that the Respond- 2 When Gibbons ceased operations on 14 September 1984, it employed 21 individuals in bargaining unit positions. 278 NLRB No. 92 MYERS CUSTOM PRODUCTS 637 ent planned to have a work force of 22 to 25 em- ployees sometime in the near future. B. Contentions of the Parties The General Counsel contends that the Respond- ent commenced operating substantially the same business that Gibbons operated without significant change, with a "substantial and representative" complement of employees the majority of whom had worked for Gibbons, and that, therefore, the Respondent was a legal successor obligated to rec- ognize and bargain with the Union. The Respondent , argues that because it expected, and realized, an increase in its employee comple- ment within approximately 2 months of commenc- ing operations, a majority status determination should be delayed until 12 November 1984 when it had hired 25 unit employees, only 9 of whom had worked for Gibbons . Because a majority of its unit employees on that date had not worked for Gib- bons, the Respondent argues that it had no obliga- tion to recognize and bargain with the Union. C. Analysis A new employer has no obligation to recognize and bargain with a union representing a unit of its predecessor's employees, unless the union repre- sents a majority of the new employer's unit em- ployees in a "substantial and representative" work force. In deciding whether a substantial and repre- sentative work force existed on a certain date, the Board must "balanc[e] the objective of selection of a bargaining representative by the maximum number of employees with the objective of em- ployee representation as soon as possible." Premi- um Foods, 260 NLRB 708, 718 (1982), enfd. 709 F.2d 623 (9th Cir. 1983) (quoting NLRB v. Hudson River Aggregates, 639 F.2d 865 (2d Cir. 1981), enfg. 246 NLRB 192 (1979)). When 'a new employer ex- pects, with reasonable certainty, to increase its em- ployee complement substantially within a relatively short time, it is appropriate to delay determining the bargaining obligation for that short period. The Respondent commenced operations on 17 September 1984 with 13 unit employees. The par- ties stipulated that the Respondent planned, before commencing operations, to take 2 to 3 months to select and train a full employee complement. The stipulation evidences that the Respondent accom- plished its goal in less than 60 days, and in that time almost doubled the number of unit employees. We conclude, based on the stipulated facts, that when the Respondent began` operations, it planned, with a reasonable degree of certainty, a substantial increase in the number of unit employees within a relatively short time.3 At the end of the time period, the Respondent had hired 25 unit employ- ees, 10 of whom had worked for Gibbons. Under these circumstances, we believe it appropriate to maximize the number of employees selecting a bar- gaining representative by delaying' determination of the bargaining obligation for the short duration of the planned work force expansion. Accordingly, because on 12 November 1984 only a minority of the Respondent's unit employees had been unit em- ployees of Gibbons, the Respondent was not obli- gated to recognize or bargain with the Union. We, therefore, shall dismiss the complaint. ORDER The complaint is dismissed. E This decision is consistent with our decisions in Pacific Hide & Fur Depot, 223 NLRB 1029 (1976), enf denied 553 F.2d 609 (9th Cir. 1977); Jeffries Lithograph Co., 265 NLRB 1499 (1982), enfd. 752 F.2d 459 (9th Cir. 1985); and Fall River Dyeing Corp, 272 NLRB 839, (1984), enfd. 775 F 2d 425 (1st Cir 1985). In Pacific Hide, the record did not reveal that when the respondent commenced operations it knew how many employ- ees it would need or how long it would take-to hire the work force. See Premium Foods, 260 NLRB at 718 (discussing Pacific Hide). In Jeffries Lithograph and Fall River, the lapse of time between commencement of operations and the employer's hiring of virtually all of his employees in the expanded operations was much greater than the 2-month period here.