Lloyd Flanders

1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bay Breeze Industries, Inc., d/b/a Lloyd Flanders and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and its Local 413. Case 30- CA-7740 18 July 1986 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 29 January 1985 Administrative Law Judge Burton S. Kolko issued the attached decision. The Respondent filed exceptions and a supporting brief. The Charging Party filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Bay Breeze Industries, Inc., d/b/a Lloyd Flanders, Menominee, Michigan, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. DECISION BURTON S. KoLxo, Administrative Law Judge. The General Counsel's complaint ' alleges that Bay Breeze In- dustries, Inc., d/b/a Lloyd Flanders has failed or refused to bargain with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and its Local 413, in violation of Sec- tion 8(a)(1) and (5) of the National Labor Relations Act. The complaint's allegations are predicated on the fact that the Union had been the exclusive collective-bargain- ing representative of the production and maintenance employees at the Menominee, Michigan facility of the Heywood-Wakefield Company when that company went bankrupt in 1982. The General Counsel alleges that Bay Breeze became a successor to Heywood-Wakefield so that when the Union on April 21, 1983, requested recog- nition as the exclusive representative of Bay Breeze's production and maintenance employees, Bay Breeze had a duty to bargain with the Union under Section 8(a)(5) of the Act. In its answer to the complaint, Bay Breeze denies that it committed the alleged violations, specifically denying ' The charge was filed on April 25, 1983, and the complaint issued on October 13, 1983. The hearing began on February 27, 1984, and ended on May 17, 1984. Bnefs from the General Counsel, the Umon, and Respond- ent were filed on August 3, 1984. Respondent also filed a motion to cor- rect the transcript, which is granted. that it was a successor to the bankrupt Heywood-Wake- field. I find that Bay Breeze was a successor corporation to the Heywood-Wakefield Company at the Menominee fa- cility, and I grant the relief requested in the General Counsel's complaint, viz, that Bay Breeze be ordered (1) to recognize the Union as the exclusive collective-bar- gaining agent for its production and maintenance em- ployees, (2) to bargain immediately with the Union, and (3) to post a notice to these effects. Facts Heywood-Wakefield, founded in 1826, had long been a manufacturer of furniture of wood and metal compo- nents. Since 1980 it produced at its Menominee plant several lines of outdoor furniture, office and institutional furniture, movable and fixed school furniture, and theater/auditorium seating. To produce these items Heywood -Wakefield operated its Menominee, Michigan facility on a year-round basis, producing its outdoor furniture lines from September through May, and its theater and school lines (otherwise known as the Public Seating Division) during the summer months. As the volume of work on one seasonal line declined, qualified senior employees would bump onto jobs involving a different seasonal line to maintain steady work. In March 1982 Heywood-Wakefield was forced to seek reorganization under Chapter XI of the Bankruptcy Code. Thereafter, a "team" was formed to consolidate operations at Menominee on a more efficient basis. One member of this team was John Berry, Heywood-Wake- field's manager for industrial engineering , later the vice president for manufacturing of Bay Breeze . After a con- solidation plan was formed, Heywood-Wakefield's em- ployee relations manager (and later Bay Breeze's vice president for finance), James Jansky, sent a letter to the Union stating that "[d]ue to anticipated levels of sales, changes in produce lines, energy costs, etc. we will be consolidating all manufacturing operations into our two north buildings. This will cause the closing of certain de- partments and the consolidation of other departments." Charging Party's Exhibit 21. In this June 23, 1982 letter Jansky announced the structure of the operations in Me- nominee for the next season . This included consolidating various departments relating to the outdoor furniture products into eight separate departments and consolidat- ing the work related to nonoutdoor furniture into a single "diversified products department . This department will be composed of all occupations that relate to any contract, shcool or theater seating we may manufacture. It will cover such jobs as upholstery sewing , umbrella assembly, PSD assembly and Packing, etc." In a newsletter to employees dated July 13, 1982, fur- ther details of the scaled-down operations were given. After reiterating the changes set forth in the June 23 letter to the Union, the newsletter stated that "[w]e expect our operation to be somewhat smaller than in the past. The anticipated level of factory employees will probably be under 150 persons for the next season. De- pending on retirements and voluntary terminations, em- 280 NLRB No. 133 LLOYD FLANDERS ployees with less than 4 years of seniority will probably not be recalled for the next season. Many other employ- ees will have to make a change in occupation and exer- cise their bumping rights to secure a job." The letter went on to state that "[a]t the present time we are wind- ing down the 1981-1982 outdoor furniture season. We should have all outdoor manufacturing completed within the next week. Manufacturing for PSD, School and Con- tract furniture lines will also be curtailed to accommo- date for the movement of equipment and machinery. In addition to the maintenance crew some employees will be needed for shipping and various other operations throughout the summer. There will not be a general plant closing as stated in the paper. Full operations will start sometime after Labor Day. The exact date will depend on how quickly we can get the equipment and machinery in place." Charging Party's Exhibit 22. The effect was a retrenchment of activity that would mean that there would be only very limited production of Public Seating Division work, and even that work was conditioned on the receipt from the customer of a 50-percent deposit-a radical change in the PSD's manu- facturing policy. This was announced on July 28, 1982, by Heywood-Wakefield's president to a meeting of the Company's creditors' committee. At this meeting it was also announced that the Company's Newport, Tennessee plant, which was devoted solely to Public Seating Divi- sion work, would not reopen and was up for sale. As for the Menominee facility, the outdoor furniture would be the mainstay, but would be limited to two lines. Indeed, it began to appear that not only would the outdoor furniture line be the mainstay of Heywood- Wakefield's shrunken operation, it would be the only op- eration. For during the summer of 1982 as the Company retreated from occupying the full expanse of the Menom- inee plant and consolidated its production into one end of one building, all the Public Seating Division machin- ery was unplugged and left unmoved, although those machines that were moved and reconnected were for outdoor furniture.2 But Heywood-Wakefield never realized its plans for a reduced operation focused on outdoor furniture. On Sep- tember 17, 1982, its lender refused to extend a due loan. Heywood-Wakefield announced its closing that day. In December 1982 the newly formed Bay Breeze In- dustries purchased Heywood-Wakefield's operating assets and plant in Menominee, and the production of outdoor furniture began the next month, January 1983. In April 1983, when Bay Breeze had reached an employee com- plement of 97, of which the Union counted 78 as former bargaining unit employees of Heywood-Wakefield, the Union by letter requested recognition as the employees' bargaining representative. Bay Breeze refused this re- quest, claiming that it was not a successor to Heywood- Wakefield.3 Y Berry testified that there was some commonality of function (outdoor and public seating) to some of the moved machines, "but we were not going to move the large presses in any event for PSD." Tr. 1155, see also Tr. 1291. s The Union's relationship with Heywood-Wakefield went back to May 1943, when it was certified as the exclusive collective-bargaining representative for the production and maintenance employees of Hey- 1217 Discussion The "successor employer" issue has been recently summarized by the United States Court of Appeals for the Ninth Circuit in Premium Foods v. NLRB, 709 F.2d 623 (1984): A new employer who conducts essentially the same business as the former employer , and who hires former employees of his predecessor as a ma- jority of his work force is considered a successor employer. Where a union has been recognized ... as the representative of the employees of the prede- cessor, and his successor hires a majority of his workers from those employees , a presumption arises that the successor's employees also support the union. The basic rationale is that a mere change in ownership, without an essential change in working conditions, would not be likely to change employee attitudes toward representation. See NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 278-279, 92 S.Ct. 1571, 1577, 32 L.Ed. 2d 61, 80 LRRM 2225 (1972).... [Emphasis in original.] A similar approach has been taken by the Court of Ap- peals for the Seventh Circuit, see Zim 's Foodliner, Inc. v. NLRB, 495 F.2d 1131 (1974); by the Court of Appeals for the Sixth Circuit, in which this case arises, see Service Employees Local 47 v. Cleveland Tower, 606 F.2d 684 (1979); and by the Board, see Jeffries Lithograph Co., 265 NLRB 1499 (1982); M & H Machine Co., 243 NLRB 817 (1979); Border Steel Rolling Mills, 204 NLRB 814 (1973); and Lincoln Private Police, 189 NLRB 1717 (1970).' What we must do to deal with the issue of successorship raised by Bay Breeze's denial is to ascertain whether (1) Bay Breeze is a new employer, (2) it conducts essentially the same business as Heywood-Wakefield at Menominee, Michigan, (3) it has hired former Heywood-Wakefield employees as a majority of its work force, and (4) the Union had been recognized as the representative of Hey- wood-Wakefield's employees.5 1. Is Bay Breeze a new employer? Bay Breeze was incorporated in Michigan on Novem- ber 15, 1982, and on December 29, 1982, it purchased from Heywood-Wakefield its Menominee, Michigan real property with improvements; all the equipment, machin- ery, furniture, furnishings, and fixtures located at the Me- nominee property; and all inventory of raw materials, work in process, and finished goods at the Menominee property, except "Bright" inventory (outdoor furniture of a line taken over by other former Heywood-Wakefield managers). Among executory contracts excluded from wood-Wakefield. Since then a series of collective-bargaining agreements has existed, the most recent one spanning the period February 1982 to June 1983. * See also cases cited in fn. 9, infra. a The last question has been answered, see fn. 3, supra. As for the pe- nultimate question, the parties agree that a majority of Bay Breeze's work force is comprised of Heywood-Wakefield alumni. They differ only on whether it is a 70- or 80-percent majority. 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the court-approved sale was the collective-bargaining agreement with the Union. Bay Breeze has principally five stockholders : Flanders Industries, Inc.; John Berry; Eugene Davenport; Jeffrey Starks; and James Jansky. The four individuals own one- third of the stock of Bay Breeze, while Flanders Indus- tries, an Arkansas corporation, owns the remaining two- thirds. The officers of Bay Breeze are Dudley Flanders, president; Jeffrey Starks, treasurer; Eugene Davenport, vice president of materials ; John Berry, vice president of manufacturing; Michael Kinard, vice president of sales; and James Jansky, vice president of finance and adminis- tration. The board of directors of Bay Breeze is chaired by Don Flanders, and the board members include Jansky, Berry, Davenport, Starks, Kinard, and Dudley Flanders. The two Flanders and Kinard had no previous associa- tion with Heywood-Wakefield. Jansky had been director of employee relations for Heywood-Wakefield at Me- nominee and Newport. Berry was hired in March 1982 by Heywood-Wakefield as a consultant and as part of the team that evaluated the company's need for reducing its operation and worked at the company until it closed. Davenport had been purchasing manager for Heywood- Wakefield. Starks had been the accounting manager for Heywood-Wakefield since 1980. In these circumstances, it is clear that Bay Breeze is a new employer. It clearly represents an attempt by some former middle managers, and a consultant who helped prepare the operational plan that was hoped to stave off collapse of Heywood-Wakefield, to implement that plan, aided by the outside capital from Flanders. 2. Is Bay Breeze conducting essentially the same business as did Heywood-Wakefield? The business of Heywood-Wakefield was the produc- tion at Menominee of metal-framed outdoor and institu- tional furniture that was manufactured from steel, alumi- num, plastic, fabric, and some wood; also the production at Menominee and Newport of fixed and movable school seating made of steel, plated or finished with chrome, and finished by the addition of plastic , fabric, or wood. The business of Bay Breeze is more limited, being the production at Menominee of metal-framed outdoor furni- ture from steel, aluminum, plastic, fabric, and some wood. When Bay Breeze commenced production in Jan- uary 1983, it produced "basically one outdoor product, trademark `perma wicker,' which is a wicker line of funi- ture similar to Heywood-Wakefield's 'Fibrecraft' outdoor line."6 Thus, Bay Breeze is continuing to produce a line of general product-outdoor furniture-that was pro- duced by Heywood-Wakefield, which bears Heywood- Wakefield's "Lloyd" trademark, and which was the mainstay of Heywood-Wakefield's operation. As the Charging Party's exhibits show, the outdoor furniture line accounted for the bulk of Heywood-Wakefield's sales before its demise. Charging Party's Exhibit 102, which is a monthly budget for Heywood -Wakefield con- taining totals for the year ending December 31, 1981 (the last full year of Heywood-Wakefield's operations), shows R. Br. 9. that outdoor furniture constituted $10,814,000 of sales out of a sales total of $16,070,000. Charging Party's Ex- hibit 104, a similar budget, indicates that for 1981 the sales of outdoor furniture made in Menominee totaled $13,360,000 out of a total projected sales for all Menomi- nee-made products of $16,760,000. Although the outdoor line did not always account for so high a proportion of production and sales at the Me- nominee plant of Heywood-Wakefield, the end of the 1970s and the beginning of the 1980s showed continuing importance to the outdoor furniture line and correlative diminution of the public seating and other lines. Charg- ing Party's Exhibit 233, which shows total product orders for 1979 and 1980, indicates that in 1980 orders of products from the public seating division decreased by $1.2 million from 1979, while orders from outdoor furni- ture increased by over $1 .1 million. Even in 1979, out- door furniture accounted for 59 percent of sales, increas- ing to 68 percent in 1980. By the fatal year 1982, it was clear that outdoor furni- ture not only dominated Heywood-Wakefield's present, it was the key to its future. In that year, a short one be- cause of the bankruptcy that occurred in the third quar- ter, total sales were as follows : school furniture $389,362; all theater and auditorium $613,323; and outdoor $3,226,774 or 76 percent. Charging Party's Exhibits 339- 340. It comes as no surprise that during 1982 the ratio of labor costs for producing outdoor furniture to total pro- duction labor costs was very high, averaging 77 percent and never dropping below 62 percent, the latter figure being for June, which is a declining month for the pro- duction of outdoor furniture. The labor force that was the occasion of these produc- tion costs was the same albeit shrunken group of bargain- ing unit employees that later found itself producing out- door furniture for Bay Breeze. While Heywood-Wake- field had at its peak in January 1981, 290 nonsupervisory employees spread among over 215 bargaining unit job classifications, Bay Breeze employed close to 100 pro- duction and maintenance employees as of April 1983. Charging Party's Exhibit 4. Of that number, 70 had pre- viously been employed by Heywood-Wakefield. This is not in dispute, since Bay Breeze does not question that at least 70 percent of the production employees were from the former Heywood-Wakefield bargaining unit. Al- though the Union and the General Counsel opt for an even higher percentage-80-the difference involves an issue of whether persons perform some watchman type duties, an issue that need not be decided since it is clear that "a major factor-majority status-has been estab- lished." (G.C. Br. 11.) On the face of it, we have so far Bay Breeze using a majority of former Heywood-Wakefield employees in its work force to manufacture a line of products that had constituted the major product line of Heywood-Wake- field. It would seem so far that Bay Breeze is in essential- ly the same business as was Heywood-Wakefield. But Respondent argues that there is more to the story than this, and we next deal with these arguments. a. Employee complement: Bay Breeze argues that it em- ploys far fewer employees who work in far fewer job LLOYD FLANDERS 1219 classifications and under different supervision. In this it is right, but the differences are without material signifi- cance. Prior to 1982, Heywood-Wakefield normally em- ployed approximately 250 workers. Beginning in January of 1982 until the summer shutdown that it effected in June, it employed a monthly average of less than 150 workers. By April 1983, when the Union sought recogni- tion by Bay Breeze, close to 100 workers were on the job. Bay Breeze argues for a point of comparison that would weigh 250 versus 100 workers , while the Union argues that because it was Heywood-Wakefield that sub- stantially trimmed its work force, the point of compari- son with Bay Breeze's 100 employees should be 150 em- ployees. I find that the more apt comparison is with the slimmed-down operation, because it is clear that Hey- wood-Wakefield, had it remained viable, would have op- erated in the consolidated mode envisioned by Berry. But even accepting arguendo Bay Breeze 's argument that the 100 employees of Bay Breeze are no match for successorship purposes with Heywood-Wakefield's 250 employees, the argument carries no weight. For "mere diminution in the employee complement of the bargain- ing unit does not relieve the successor of his duty to bar- gain. Rohlik, Inc., 145 NLRB 1236 (1964) (successor's work force one-third as large as predecessor 's)." Zim's Foodliner, supra, 495 F.2d at 1141. In short, as the court observed, "the Board may treat a much -reduced bargain- ing unit as a miniature of the former unit ." Id. Of course here the Bay Breeze unit is not a perfect miniature of that at Heywood-Wakefield since "only" 70 to 80 per- cent of the Bay Breeze unit are former Heywood-Wake- field employees rather than 100 percent, but so long as the predecessor employees at Bay Breeze are not less than a majority of the employees in the successor unit, Bay Breeze may properly be considered to be a succes- sor employer. NLRB v. Armato, 199 F.2d 800 (7th Cir. 1952). Nor do I find it of much moment that there are re- duced job classifications and somewhat different supervi- sion. The reduced job classifications-from 215 to 50- are used by Bay Breeze to show that it is a different op- eration from Heywood-Wakefield. But the premise of this argument is faulty, i.e., that the substantial decline in job classifications and functions is due to the fact that a "majority of [Heywood-Wakefield's] labor, equipment and machinery was devoted to the public seating end of its business [Tr. 58 [testimony of Jansky]]." (R. Br. 22.) Jansky's testimony is contradicted by the Heywood- Wakefield documents, obtained by the Union during the discovery process that caused the lengthy delay in the hearing, and which, as exhibits of the Charging Party, are references above as indicating that in the last several years the majority of the viable business of Heywood- Wakefield was in the Lloyd outdoor furniture line. In any event, as the testimony of the various employee wit- nesses indicates, employees commonly bumped between jobs involving public seating work and outdoor furniture work. Many of the skills involved in these jobs are the same, which was understood by Respondent's witness Berry, who was instrumental at Heywood -Wakefield in engineering the concentration of the outdoor furniture line, when he testified that many of the Heywood-Wake- field employees were able to perform many different jobs, and that the people who operated many of the ma- chines at Heywood-Wakefield were also qualified to op- erate the machines at Bay Breeze . Granted, the Bay Breeze line of outdoor furniture was improved over the Heywood-Wakefield products in these respects: chlorina- tion protection, seals at the ends of tubing, drain holes in the tubing, special filling in the tubing , and a new line of smaller sized furniture for juveniles. But Berry testified' that no new skills or machinery were needed to incorpo- rate these changes, and Jansky testified that the ma- chines, tools, and skills used at Bay Breeze were mostly the same that had been used at Heywood-Wakefield. In the main, those employees of Bay Breeze who had worked for Heywood-Wakefield came back to perform production work that was not materially different from what they had left at Heywood-Wakefield when it sus- pended operations. Their supervisors were different, and fewer, down from 15 at Heywood-Wakefield to 8 at Bay Breeze. Of these eight, only one, Lerrett, had been a supervisor with Heywood-Wakefield; the rest were former Heywood- Wakefield employees. This diminution in supervisory carryover might be more material as a factor indicating nonsuccessorship if Bay Breeze were making different products and utilizing different techniques from Hey- wood-Wakefield. But it is not. b. Plant: The Heywood-Wakefield complex at Menom- inee consisted of our parallel, interconnected three-story buildings, plus a two-story office building, a one-story building, some annexes, a boilerhouse, and two buildings across the street. Excepting the latter, which were used for warehousing and recreating , the buildings were de- voted to manufacturing. Bay Breeze purchased the Menominee complex, but does not use major parts of it . In essence, Bay Breeze uses two of the four parallel buildings that were used by Heywood-Wakefield. As it is devoting itself to just one basic product line the machines that are being used are fewer, 98 compared to the 438 at Heywood-Wakefield. Respondent considers this substantial reduction in plant space and machinery used to be significant evidence that Bay Breeze is not the successor to Heywood -Wakefield. But these physical differences-really differences of size rather than substance-are a distinction without a differ- ence, for two reasons . First, the buildings that are being used by Bay Breeze are those to which Heywood-Wake- field had moved during the summer of 1982 when it was effecting its plan to phase out of public seating division 9 The thrust of Berry's testimony , which spans pages 1165-1316 of the transcript, is that Bay Breeze's strength, vis-a-vis, Heywood-Wakefield is its streamlined operation. Thus, most of the former job classifications were eliminated or consolidated. Indeed, the typical Bay Breeze employ- ee is performing a wider scope of functions than he did at Heywood- Wakefield. But Berry admitted that at Heywood-Wakefield there was movement of employees by seniority across product lines as production need demanded, and that this versatility was of importance in hiring the former Heywood-Wakefield employees at Bay Breeze . Ultimately, Berry agreed that even for the new line of outdoor furniture, just as for the basic line that was extended albeit modified from Heywood -Wakefield, no new production skills were necessary 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work to concentrate on the Lloyd line of outdoor furni- ture, and just about all the machines that Bay Breeze now uses are from that consolidation. Thus, from a phys- ical point, view it is hard to differentiate the Phoenix of Bay Breeze from the figurative ashes of Heywood-Wake- field. But, secondly, even if we ignore the consolidation of operations effected by Heywood-Wakefield so that we are comparing the much smaller Bay Breeze with the much larger Heywood-Wakefield, we simply have the same type of scaled-down operation that passed muster in Armato, supra, and in Zim 's, supra. We are still left with the factual conclusion that "[Bay Breeze's] employ- ees performed essentially the same work, in the same plant, with the same equipment as before." Premium Foods v. NLRB, 709 F.2d 623 (9th Cir. 1984). c. Miscellaneous: Although Bay Breeze advances other arguments against its alleged successorship, these do not mitigate against the presumption of continuity of the bar- gaining relationship enunciated by the Supreme Court in Burns, supra, and applied by the circuit courts of appeal and the Board. Thus, it changes nothing by noting that Bay Breeze markets its outdoor furniture more agressive- ly than did Heywood-Wakefield, and that 30 percent of its customers are new customers. Nor is it significant in the factual circumstances of this case that there was a hiatus between the termination of Heywood -Wakefield in September 1982 and the beginning of production by Bay Breeze in January 1983 . As one commentator has ob- served, "hiatus" is a factor used by the Board in finding nonsuccessorship only when the essential indicia already have eroded a basis for concluding that the presumption of bargaining continuity applies . 8 Here there is no basis for concluding that representation by the Union is no longer desired by the employees of Bay Breeze, who as former Heywood-Wakefield employees are in the vast majority at Bay Breeze . These employees drive up to the same plant that they used to; they work on machines that they used to work on; they perform tasks at those ma- chines that they used to; the product that comes off those machines is of the kind that they are very used to seeing; they previously worked with people who are their supervisors; and they know the company's manag- ers who were at Heywood-Wakefield. There is no good- faith doubt advanced by Respondent about why the Union no longer represents these employees , and there just is not enough difference between Bay Breeze and Heywood-Wakefields to overcome the presumption that "the employees' desires concerning unionization" are un- changed. 1 o I conclude that the Union, which has been repre- senting these employees at this point since 1943, is to be recognized as the ongoing representative. ° Successor Liability Under the National Labor Relations Act and Title VII, 54 Tex. Law Rev. 707 fn. 83 (1976). ° In other words, the plant's "operations, as they impinge on union members, remain essentially the same after the transfer of ownership." Electrical Workers IUE v. NLRB, 604 F.2d 689, 694 (D.C. Cir. 1979). See NLRB v. Hudson River Aggregates, 639 F.2d 865, 869 (2d Cyr. 1981). 10 Ranch-Way, Inc., 183 NLRB 1168 (1970). CONCLUSIONS OF LAW 1. The Respondent, Bay Breeze Industries, Inc., is an employer within the meaning of Section 2(2) of the Act, and is engaging in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. I' 2. The Union, UAW and its Local 413, constitute a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit that is ap- propriate for collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees who are employed at Bay Breeze's facility in Menominee, Michigan; excluding office clerical employees, pro- fessional employees, supervisors, quality control technicians, engineering technicians, administrative and management personnel and watchmen. 4. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and its Local 413, has been and is the represent- ative of all employees in the above-described appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing to recognize and bargain col- lectively with the Union as the exclusive representative of all Respondent's employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. 6. Respondent's unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed12 ORDER 1. Cease and desist from (a) Refusing to bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and its Local 413 as exclusive representative of the following unit: All production and maintenance employees who are employed at Bay Breeze's facility in Menominee, Michigan, excluding office clerical employees, pro- fessional employees, supervisors, quality control technicians, engineering technicians, administrative and management personnel and watchmen. 11 During the calendar year ending December 31, 1983, Respondent sold and shipped products valued in excess of $50,000 from its Menomi- nee, Michigan facility directly to places that are outside the State of Michigan. 11 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- Poses- LLOYD FLANDERS (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an agreement is reached, embody it in a signed contract. (b) Post at its Menominee, Michigan plant copies of the attached notice marked "Appendix."13 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent's au- thorized representative , shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 'a If 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 Nation- al 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 1221 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and its Local 413 as exclusive representative of the fol- lowing unit: All production and maintenance employees who are employed at Bay Breeze's facility in Menominee, Michigan, excluding office clerical employees, pro- fessional employees, supervisors, quality control technicians, engineering technicians, administrative and management personnel and watchmen. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union with re- spect to rates of pay, wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody the agreement in a signed contract. BAY BREEZE INDUSTRIES, INC., D/B/A LLOYD FLANDERS