Martin Of Mississippi, Inc.

258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Martin ' of Mississippi, Inc. and United Furniture Workers - of America, Local 282,, , AFL-CIO. Case 26-CA-10324 17 March 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT Ow 30 March 1984 Administrative Law Judge Howard I. Grossman issued the attached decision. The Respondent filed exceptions. 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 has decided to affirm the judge's rulings, findings,' and conclu- sions 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, Martin of Mississippi, Inc„ Coldwater, Mississippi, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. 1 Chairman Dotson notes that there are no exceptions to the successor- ship finding. William D. Levy, Esq., for the General Counsel. Phillip Martin, Respondent's president, for the Respond- ent. Ida Leachman, Charging Party's vice president, for the Charging Party. DECISION STATEMENT OF THE CASE HOWARD I. GROSSMAN, Administrative Law Judge. The original charge was filed on July 28, 1983, and an amended charge on August 16, 1983, by United Furni- ture Workers of America, Local 282, AFL-CIO (the Charging Party or the Union).' A complaint, amended complaints, and orders consolidating them issued at vari- ous dates in 1983, alleging that Martin of Mississippi, Inc. (Respondent or the Company) and other individuals had committed unfair labor practices within the meaning of the National Labor Relations Act (Act). By order dated December 6, 1983, the Regional Director for Region 26 severed the cases of the other individuals from the one involving Respondent and, on December 13, 1983, issued a fourth amended complaint, alleging that Respondent has refused to recognize or bargain with the Union as the collective-bargaining representative of Respondent's 1 The Charging Party's name appears as indicated by it in the charges which it filed, G.C. Exhs 1(a) and (c) employees in an appropriate unit, and has refused to supply information to the Union which is relevant to its function as such representative, in violation of Section 8(a)(1) and (5) of the Act. A hearing was conducted before me on this matter on February 1, 1984, in Memphis, Tennessee. On the entire record, including a memorandum brief filed by the Gen- eral Counsel, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a Mississippi corporation with an office and facility at Coldwater, Mississippi, where it is en- gaged in the manufacture of cabinets. Respondent atmu- ally sells and ships, from locations within the State of Mississippi, goods valued in excess of $50,000 directly to points outside the State of Mississippi, and annually pur- chases and receives, within the State of Mississippi, goods valued in excess of the same amount directly from points outside the State of Mississippi. The pleadings as amended at the hearing establish, and I find, that Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. ' II. THE LABOR ORGANIZATION INVOLVED The pleadings as amended at the hearing establish, and I fmd, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Factual Summary 1. Hill & Son Manufacturing Co. There is no dispute about the relevant facts in this case. In May 1979, the Union was certified as the exclu- sive collective-bargaining representative of the produc- tion and maintenance employees of C & R Cabinet Cor- poration, then manufacturing cabinets in Memphis, Ten- nessee. In December 1980, C & R entered into a 2-year collective-bargaining agreement with the Union as the representative of its production and maintenance employ- ees. The principals in C & R were Calvin and Ruby Hill. The Hills were thereafter divorced, and the Memphis op- eration was closed down in December 1981, during the term of the collective-bargaining agreement. The business reopened in February 1982 in Coldwater, Mississippi, by Calvin Hill, under the name of Hill & Son Manufacturing Co. For legal and financial reasons not material, Ruby Hill joined her former husband in the business, and operated it in Coldwater under the name of Calvin Hill and Ruby Hill d/b/a Hill & Son Manufactur- ing Co. Except for a brief hiatus, there was no change in the principles of the business. In essence, the business moved to a different location and changed its name. The Union received and processed grievances from employees of Hill & Son under the contract which it held with C & R, and otherwise applied the terms of that contract to Hill & Son, The contract expired in Decem- ber 1982. 283 NLRB No. 42 MARTIN OF MISSISSIPPI 259 On August 23, 1983, the Regional Director for Region 26 issued a third amended complaint in Cases 26-CA- 10124, 26-CA-10258, 26-CA-10207, and in the instant case, in which he alleged that Hill & Son had committed a variety of unfair labor practices beginning in late 1982, including violations of Section 8(a)(1), (3), and (5) of the Act. The complaint alleges, inter alia, that Hill & Son engaged in unlawful refusals to bargain in 1982, and that Respondent Martin did so in July 1983. Thereafter, Hill & Son entered into a formal settlement agreement. The stipulation provides that the Union remained the collec- tive-bargaining representative of Hill & Son employees until July 1, 1983, when Hill & Son ceased operation (G.C. Exh. 2, p. 4). As indicated, above, the Regional Di- rector severed the Hill & Son cases, and issued a fourth amended complaint, involving only Respondent. Hill & Son continued operating in Coldwater until June 24, 1983, the beginning of the normal vacation period. Ruby Bryant, formerly Ruby Hill, testified that she and Calvin Hill could not work together and, ac- cordingly, decided to go out of business. 2. Respondent's purchase of Hill's assets Philip Martin was a partner in a Florida firm which was one of the largest customers of Hill & Son. He vis- ited Hill & Son in the first half of 1983, and Respondent was incorporated in June of that year. On July 1, 1983, Respondent purchased the machinery and other equip- ment of Hill & Son. Martin knew that the employees of Hill & Son were represented by a union prior to the pur- chass. 3. Respondent's operation of the business A few days after the transaction, Martin placed an ad in a local newspaper stating that Respondent had pur- chased the assets of Hill & Son, and would be taking ap- plications for employment. He received about 200 appli- cations. Martin hired Thurman Morgan, 2 Hill & Son's former plant manager, and utilized his advice in the hiring of employees. Morgan's recommendations in some instances were based on his knowledge of the applicant's work for Hill & Son. Martin also hired two other former supervisors of Hill & Sons and gave them similar status in his company. Respondent began operations on July 12, 1983. On that date it had 19 employees, all but one of whom had been employees of Hill & Son. Most of them were hired on July 8.4 A tabulation of employees from July 1983 until the date of the hearing, including employee turnover, shows a total of 38 employees, 25 of whom had previ- ously been employees of Hill & Son.5 Respondent began and continues to do business exclu- sively at the same location in the same two buildings as those used by Hill & Son. Martin is a lessee of Ruby Bryant, formerly Ruby Hill. The Company uses the Hill 2 The parties stipulated that Morgan was Respondent 's plant superm- tendent from July I to September 30, 1983, and was a supervisor within the meaning of the Act. a Tommy Street and William Jackson. 4 G.C Exh. 3 and stipulation of the parties 5 Ibid. & Son post office box and telephone numbers. It utilizes most of the machinery purchased from Hill & Son, and has not purchased any significant new equipment. The bill of sale with Hill & Son gave Respondent the right to utilize the trade name "Hill and Son Manufacturing" for 180 days, and Respondent retained this lettering on its trucks and trailers for several months after the purchase, in deliveries to customers. Martin testified about the process of manufacturing cabinets, and stated that there has been no essential dif- ference between the process utilized by Hill & Son and that utilized by Respondent. There is some similarity be- tween the Hill & Son job classifications and those of Re- spondent.6 Martin asserted that, similarities exist through- out the cabinet manufacturing industry. Variations in "styles" of cabinets were described by Martin, such as differences in wood, finish, appearance, etc. Respondent has introduced a few new styles, but continues to produce many styles previously manufactured by Hill & Son. When Respondent started production on July 12, it sold to all or almost all of Hill & Son's customers. Al- though there is evidence of new "prospects," the record is unclear about the number, if any, of Respondent's new customers. 4. The Union's demands and the Company's responses The pleadings as amended at the hearing establish that, on July '11, 1983, the Union requested that Respondent bargain with it as the representative of the Company's production and maintenance employees. The pleadings further establish that Respondent denied these requests and refused to bargain with the Union. The pleadings as amended also establish that, on July 15, 1983, the Union by letter requested 20 items of infor- mation' from Respondent, and that the Company refused to comply. B. Legal Analysis and Conclusions In final argument Martin questioned whether the Union represented a majority of his employees, Howev- er, under current applicable law, there is a presumption of majority status flowing from the expired collective- bargaining agreement in this case, and tine General Coun- sel is not required to prove actual majority support, Towne Plaza Hotel, 258 NLRB 69, 77 (1981), and author- 6 G.C. Exhs 3, 7, and 14. 7 (a) Biographical data on employees; (b) names, job operations, and pay rates, (c) incentive rates and formulas, (d) average earnings of em- ployees performing on an incentive basis, (e) timestudies of incentive op- erations, (f) job classifications, (g) pay rates and bonus pay for hourly rated employees, (h) production quotas; (i) description of pension plan and group insurance benefits; (j) description of other benefits plans, (k) list of paid holidays and pay rates; (1) copy of rules and regulations, (m) names of products with harmful ingredients and manufacturers; (n) re- ports on monitoring of work areas, (o) information on safety and health policies, (p) copies of material safety data sheets provided by manufactur- ers; (q) copy of fire and evacuation procedures; (i) copies of programs concerning health, and safety, (s) any documents pertaining to OSHA vio- lations, and (t) vacation schedules and rules of eligibility. 260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ity cited therein. In language relevant to the facts in this case, the Board has stated as follows: The presumption applies not only to a situation where the employer charged with a refusal to bar- gain is itself a party to the preexisting contract, but also to a successorship situation such as we have here. The burden of rebutting this presumption rests, of course, on the party who would do so. It is true that a labor organization's continuing majority may not be questioned during the term of a con- tract. On the other hand, upon expiration thereof, the presumption of majority arising from a history of collective bargaining may be'overcome by "clear and convincing proof" that the union did not in fact enjoy majority support at the time of the refusal to bargain. At such'time, it is also a valid defense for the employer to "demonstrate by objective consid- erations that it has some reasonable grounds for be- lieving that the union,has lost its majority status." Barrington Plaza, 185 NLRB 962, 963 (1970), enf. denied in part on other grounds 470 F.2d 669 (9th Cir. 1972).8 The presumption is particularly applicable to the facts in_ this case. Although the Hill & Son contract expired in December 1982, this was not due to any fault of the Union. Indeed, it attempted to bargain with Hill & Son for a new contract, but this attempt led to the filling of charges, several complaints, and a formal settlement agreement. As noted above, the agreement provides that the Union remained the collective-bargaining representa- tive of Hill & Son employees until July 1, 1983, i.e., for a period of about 6 months after expiration of the contract. Respondent in this case has not submitted any evi- dence, much less "clear and convincing proof," that the Union did not enjoy majority status. Nor did Martin submit, any "objective considerations" to support his as- serted belief that the Union in fact did not have the ma- jority support of his employees. Accordingly, I find that the Union did have the support of a majority of the Hill & Son employees at the time Respondent purchased Hill & Son's assets, and that this support continued thereafter. It is also clear that Respondent is a successor to Hill & Son under current Board law. The Board has recently restated the law on this subject, as follows: In determining whether a purchaser is obligated to bargain with the exclusive representative of its predecessor's employees, the traditional test is whether there is substantial continuity in the em- ploying enterprise. Where there is such a continuity, the presumption of majority status by the Union under the predecessor, such as established by a col- lective-bargaining agreement as here, is not affected by a change in ownership. The traditional criteria for this test include whether there has been substan- tial continuity in the following: (1) business oper- ations; (2) plant; (3) work force; (4) jobs and work- ing conditions; (5) supervisors; (6) machinery, 8 In its conclusion that the Trial Examiner's findings rebut the Board's reliance on a presumption of majority status, the court noted factors in that case which are not present herem - equipment, and methods of production; and (7) product or service. Aircraft Magnesium, 265 NLRB 1344, 1345 (1982). The facts in this case show that all of these test were met. Respondent's plant, machinery, and all of its signifi- cant equipment were identical with those of Hill & Son. The business operations remained the same, as did the product being manufactured, and most of the customers. Although Respondent did create a few new "styles" of cabinets, this did not change ,the product, which contin- ued to be cabinets . See Jeffries Lithograph Co., 265 NLRB 1499 ( 1983). Nor was there any essential change from Hill & Son's former method of production . Finally, when Respondent commenced- operations with 19 em- ployees, all but one were former employees of Hill & Son, in addition to which Respondent hired three of the Hill & Son supervisors. Martin's only answer to these facts was the general ar- gumept that such factors are much the same in the entire cabinet manufacturing industry. No evidence was ad- vanced to support this factual assertion. However, if true, it would not follow ' that the Board's criteria for successorship have not been met in this proceeding. Rather, the-only logical -conclusion would be" that, in any case involving the cabinet manufacturing industry, it is likely that such criteria will be satisfied. Respondent argues that the hiatus between the time Hill- & Son ceased operations, June 24, and the time that Respondent began operations, on July 1,2, should negate a finding of successorship. This was the normal vacation period, and it is questionable whether the description "hiatus" may appropriately be applied to it. In any event, there were no changes in operations, and Respondent conducted the hiring of its complement of employees, all but one of them former Hill & Son employees, within 1 week of the time that it purchased the latter's assets. Under almost identical circumstances , the 'Board con- cluded that the hiatus did not overcome the 'otherwise established substantial continuity of the employing indus- try. Aircraft Magnesium, supra at 1346." The fact that the bill of""sale between Respondent and Hill' k Son recited only the former's purchase of assets does not negate a finding of successorship. In similar cir- cumstances, the Board has concluded that a successor- ship relationship was created, despite the fact that the successor only purchaCsed the equipment ' of'the predeces- sor. C.J.B. Industries,'250 NLRB 1433,' 1435 (1980). It is settled law that "the controlling factor in successorsiiip cases is not the form of the transfer but whether the em- ploying enterprise remains essentially the same." East Belden Corp., 239 NLRB 776, 791 (1978), enfd. 634 F.2d 635 (9th, Cir. 1980).9 I therefore conclude that Respondent is a successor of Hill & Son Manufacturing Co. It, therefore, had an obli- gation to recognize 'and bargain with the Union an and since July 11, 1983, the date of the Union's demand. Be- cause Respondent admittedly refused to do so, it thereby violated Section 8(a)(5) and (1) of the Act. 9 See also Band-Age, Inc., 217 NLRB 449 (1975), enfd. 534 F 2d 1 (1st Cir 1976). MARTIN OF MISSISSIPPI 261 Under applicable Board law, Respondent also had an obligation, beginning July 15, 1983, to supply the Union with information required by the latter to fulfill its func- tion as the collective-bargaining representative of Re- spondent's employees. The information requested by the Union related to the rates of pay, wages, hours of work, and other terms and conditions of employment of Re- spondent's employees, and was therefore required by the Union to fulfill this function. Inasmuch as the Company admittedly refused to supply this information, it again violated the same sections of the Act. In accordance with my findings above and the entire record, I make the following CONCLUSIONS OF LAW 1. Martin of Mississippi, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Furniture Workers of America, Local 282, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. - 3. All production and maintenance employees em- ployed by Respondent, including city truck drivers, ex- cluding all office clerical employees, over-the-road truck drivers, guards and supervisors as defined in the Act, constitute an appropriate unit for collective bargaining within the meaning of Section 9(b) of the Act. 4. United Furniture Workers of America, Local 282, AFL-CIO has been and is the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing, on or about July 11, 1983, and at all times thereafter, to recognize and bargain collectively with the above-named labor organization as the exclusive representative of all its employees in the appropriate unit, and by refusing, on or about July 15, 1983, and at all times thereafter, to supply the aforesaid labor organi- zation with information necessary for it to fulfill its func- tion as the aforesaid exclusive representative, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices 'are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. TIME REMEDY Having found that Respondent has engaged in and is engaging in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall rec- ommend that it be ordered to cease and desist therefrom and, on request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and supply the Union with information necessary for it to fulfill its function as such representa- tive.' ° In final argument for the General Counsel stated that, in another case not consolidated with the instant pro- ceeding, the issue had been raised as to whether Re- 10 Supra, In. 7. spondent had any obligation to bargain with the Union over the hiring of its initial work force. Conceding that there is no complaint allegation concerning this issue, the General Counsel requests that the remedy include such an obligation. The General Counsel's request raises issues ' which were not litigated in this proceeding, including the ques- tion of whether it was "perfectly clear" that Respondent intended to retain all of Hill & Son's employees." The evidence in this proceeding is insufficient to establish that this was Respondent's intention. Accordingly, I shall reject the,General Counsel's request. On the foregoing findings of fact, conclusions of law, and the entire record, I issue the following recommend- ed'2 ORDER The Respondent, Martin of Mississippi, Inc., Cold- water, Missisippi, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain collectively with United Furni- ture Workers of America, Local 282, AFL-CIO as the exclusive collective-bargaining representative of employ- ees in the following unit: All production and maintenance employees em- ployed by it, including city truck drivers, excluding all office clerical employees, over-the-road truck drivers, guards and supervisors as defined in the Act. (b) Refusing to supply to the aforesaid Union all infor- mation necessary for it to fulfill its function as the afore- said bargaining representative, as described[ in the remedy section of this decision. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights under 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 above-named Union as the exclusive representative of employees in the above-described unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed contract. (b) On request, supply the above-named Union with all information necessary for it to fulfill its function as the aforesaid bargaining representative, as described in the remedy section of this decision. 11 See, e.g, Boeing Co, 214 NLRB 541 (1974), affd. sub mom. Machin- ists Y. NLRB, 595 F.2d 664 (D.C. Cir. 1978), Spruce Up Corp, 209 NLRB 194 (1974). 12 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 262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (c) Post at its Coldwater, Mississippi plant copies of the attached-notice marked "Appendix."13 Copies of the notice, on forms provided by the Regional Director for Region 26, 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. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 13 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 WE WILL NOT refuse to bargain collectively with United Furniture Workers of America, Local 282, AFL- CIO as the exclusive representative of our employees in the following unit: All production and maintenance employees em- ployed by us, including city truck drivers, excluding all office clerical- employees, over-the-road drivers, guards and supervisors as defined in the Act. WE WILL NOT refuse to supply the above-named Union with information which it needs to fulfill its func- tion as the representative of our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the Act. WE WILL bargain with the Union in the unit described above, and WE WILL supply them with the needed infor- mation. MARTIN OF MISSISSIPPI, INC. 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.