Miner Industries, Inc.

234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Miner Industries, Inc. and Upper South Department, International Ladies' Garment Workers' Union, AFL-CIO. Case 5-CA-17469 6 August 1987 DECISION AND ORDER BY CHAIRMAN DOTsON AND MEMBERS JOHANSEN AND BABSON On 17 June 1986 Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed a cross-exception and a supporting brief, and an answering brief to the Re- spondent's 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions' and to adopt the recommended Order. 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Miner In- dustries, Inc., Milford, Delaware, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I In its brief, the Respondent urged the Board to defer resolution of the issue of successorship until issuance of the Supreme Court's then pending decision in Fall River Dyeing & Finishing Corp. v. NLRB, 775 F 2d 425 (1st Cir 1985), affd. 482 U.S 27 (1987) The Court cited with approval the Board's practice of finding successorship where , under all the circumstances of the employer transition , the employees find them- selves in essentially the same jobs. The Court also endorsed the "substan- tial and representative complement" rule and approved the application of the "continuing demand " theory in the successorship context. The judge's decision is consistent with Fall River 2 The General Counsel requests a visitatonal clause Under the circum- stances of this case , we deny the General Counsel' s request. Joseph J. Baniszewski, Esq., for the General Counsel. James M. Jerue, Esq., for the Employer. H. Victoria Hedian, Esq., for the Union. DECISION FRANK H. ITKIN, Administrative Law Judge. An unfair labor practice charge was filed in this case on August 23, and a complaint issued on October 10, 1985. A hearing was conducted in Milford, Delaware, on Janu- ary 8, 1986. The General Counsel alleges that Respond- ent Miner Industries, a successor employer of Guida Clothing, violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to recognize Charging Party Union as the exclusive bargaining agent of its unit production and maintenance employees. Miner Industries denies violating the Act as alleged. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by counsel, I make the following FINDINGS OF FACT The pertinent facts are essentially undisputed. Miner Industries is admittedly an employer engaged in com- merce as alleged . Charging Party Union is admittedly a labor organization as alleged. Guida Clothing, a Dela- ware corporation, was engaged, prior to February 8, 1985, in the manufacture of rubberized all-weather gar- ments for the United States Department of Defense at its factory in Milford, Delaware. Michael Guida was presi- dent, Mario Petti was vice president, and Harold Wein- berg was comptroller of Guida Clothing. The Union was the collective-bargaining agent of Guida Clothing's em- ployees in the following unit. All nonsupervisory production, maintenance, pack- ing and shipping workers [at the Milford plant]. The Union's most recent collective-bargaining agreement with Guida Clothing was effective from June 1, 1984, to May 31, 1987. (See G.C. Exh. 2.) On February 8, 1985, as Michael Guida testified, "we had to shut the doors" of the Milford plant because of financial difficulties. Guida acknowledged that, "after February 1985, when Guida Clothing ceased operating ... Guida Clothing only had two employees"-Michael Guida and Mario Petti. Prior to the cessation of oper- ations, Guida Clothing had occupied its Milford plant under a lease from KSI, utilizing some 25,000 to 30,000 square feet for the production of garments. At the time, Guida Clothing had the following contracts with the De- partment of Defense: 1. No. 0409-for the manufacture of some 140,000 wet-weather overalls. 2. No. 0384-for the manufacture of some 60,000 wet-weather heavy parkas. 3. No. 0767-for the manufacture of some 63,000 wet-weather heavy parkas." Michael Guida generally recalled that during January and February 1985, Guida Clothing employees were "working" on "the overalls and the parkas"; however, he later noted that "we were . .. in training . . . on the parkas so we did not ship any parkas . . ."; and, in short, Guida Clothing had principally "produced" some 11,000 overalls in January and some 7000 overalls in February "under contract 0409." Elsewhere, Michael Guida gener- ally recalled that during January and February 1985, his I Guida Clothing also had a contract with the Defense Department to manufacture fragmentation vests, however, as of January 1985, it had manufactured only one-third of the vests , it then ceased production of the vests, and no further production occurred . Further, Guida Clothing also had a contract for the production of field packs, however, there was no production in January or February 1985, it had subcontracted the manu- facture of some of these units in 1984 and later "novated" this contract to another company 285 NLRB No. 36 MINER,,-INDUSTRIES - 235 Company had manufactured a total of "about 18,000 or 20,000 garments per month." Guida Clothing, during this January-February period, had employed approximately 25 to 30 stitchers or sewers and approximately 65 to 70 gluers. It also had employed, inter alia, cutters, inspectors, and helpers. The bulk of the unit personnel were stitchers or sewers and gluers. The principle machinery utilized included sewing ma- chines and an oven. Michael Guida was asked by counsel for Respondent, "Now, when Guida was, operating at full capacity, how many employees would you have?" He answered: "I would say January and February ... we ran somewhere around approximately around 166 people." He lowered this "approximation" to "about 160 people" and later recalled that his "average employment was 160 people" in January and February 1985. Howev- er, General Counsel Exhibit 3, Guida Clothing's payroll ledger for February 10, 1985, lists some 140 persons and Michael Guida identified about 10 of these 140 persons as supervisors or nonunit personnel. On this record, I am persuaded that Guida Clothing's unit work force princi- pally included stitchers or sewers and gluers and ranged from about 120 to 150 unit personnel during January and February 1985, with about 130 unit employees working on February 8, 1985, when it ceased operations. Guida Clothing, as noted, "shut [its] doors" and "ceased operations" on February 8, 1985. It filed a debt- or's petition under Chapter XI in the United States bank- ruptcy court on February 26, 1985. In the meantime, David T. Ashcroft of Miner Industries became interested in the Guida Clothing operation. Ashcroft, the chief op- erating officer of Miner Industries' rubber plant in Bris- tol, Rhode Island, explained that his company manufac- tures "a variety of galoshes, rainwear and waterproof clothing," including "parkas" for the Defense Depart- ment. Ashcroft testified: I was aware that Guida Clothing had serious finan- cial problems. . . . We were manufacturing the same item and we had an interest, or I had an inter- est, in attempting to either novate his [Guida's] con- tracts or arrange a subcontract to manufacture his particular products.... II, was discussed with the Government . . . and that resulted in the agree- ments that have been introduced here today ... the letters of March 15, March 5, and Court orders ... We have a Court order ' in place that allows us to complete Guida's three contracts and Miner's contract in the Guida facility .... Ashcroft sent Guida a letter, dated March 5, 1985, proposing, inter alia, "the possible creation of a joint venture between Miner Industries and the principals in- volved in Guida Clothing . . . ." (See G.C. Exh. 4.) Thereafter, by letter dated March 15, 1985, Ashcroft set forth the following "basic terms and conditions of the agreement" between Guida Clothing and Miner Indus- tries (G.C. Exh. 5): This letter is intended to set forth the basic terms and conditions of the Agreement entered into be- tween Guida Clothing- Co., Inc. (hereinafter re- ferred to as Guida) and Miner Industries, Inc. (here- inafter referred to as Miner), regarding the comple- tion of certain contracts calling for the manufacture and production of heavyweight wet weather cloth- ing for the Defense Personnel Support Center (hereinafter referred to as DPSC). If this letter is approved by you, it will serve as a Preliminary Basic Agreement pursuant to which the parties shall promptly proceed to take action consistent here- with. 1) Miner or its nominee will immediately arrange to commence operations at the facility located at 301 Rehoboth Blvd., Milford, Delaware presently being utilized by Guida. It being expressly under- stood that Guida is presently a Debtor in Possession pursuant to Chapter XI of the Bankruptcy Code. 2) Miner and Guida will take all necessary action to have DPSC agree that the existing contracts for the manufacture and production of heavyweight wet weather clothing between Guida and DPSC be amended so that Miner will be named as a subcon- tractor to Guida pursuant to said contracts. 3) Miner will undertake all necessary action to have its contract with DPSC for the manufacture and production of heavy weight wet weather cloth- ing amended so that the place of manufacture be designated as Milford, Delaware. 4) Miner will use its best efforts to complete all of the above-mentioned contracts with DPSC at the Milford, Delaware facility. 5) Miner will assume the net lease on the facility in Milford, Delaware which was being utilized by Guida upon the same terms and conditions that Guida enjoyed. It is expressly understood that this lease provided for no rental payment to be paid by Guida for an approximate eighteen (18) month period. Guida agrees to use its best efforts to con- summate -the assignment of this lease and this Agreement is contingent upon such assignment. 6) Miner agrees that it will pay all of the operat ing expenses including wages of employees,' cost of material, maintenance of equipment, insurance, heat and other utility expenses of the facility, and other associated overhead expenses commensurate with the operation of this facility. 7) Miner agrees to pay to Guida as a Debtor in Possession pursuant to the provisions of Chapter XI of the Bankruptcy Code, the sum of Fifty Cents ($.50) per unit of clothing manufactured and pro- duced by Miner at the Milford, Delaware facility. This payment is intended to be used for the use of the equipment located at the facility and must be administered pursuant to the provisions of said Chapter XI of the Bankruptcy Code. This payment shall be made by Miner only so long as it has the use of the equipment located in the Milford, Dela- ware facility and shall terminate immediately if such equipment is not available to Miner for any reason whatsoever. 8) Miner and Guida agree that a special bank ac- count will be established at a bank mutually agree- able wherein the proceeds to be paid by DPSC for 236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the heavyweight wet weather clothing will be de- posited. The sum of Fifty Cents ($.50) per unit of clothing will be paid to Guida as Debtor in Posses- sion from this special account upon receipt of pay- ment from DPSC with the balance of said payment to be made directly to Miner. 9) Guida represents to Miner that the finished goods, work in process and raw materials owned by it and located at the Milford, Delaware facility have a value equal to that of any Progress Payments that have been advanced to Guida by DPSC. 10) Miner agrees to hire Michael Guida and Mario Petti to supervise the operation of the Mil- ford, Delaware facility and they agree to be respon- sible for the operation at this facility. Miner agrees to compensate Michael Guida and Mario Petti at the rate of Six Hundred Fifteen Dollars ($615.00) per week„ plus a bonus to each of them of Five per- cent (5%) of the net operating pre-tax profit of the operation at the Milford, Delaware operation. This bonus to be paid quarterly. 11) 'Miner and Guida will immediately undertake whatever action is necessary to have the terms and conditions of this Agreement approved and consent- ed to by all of the appropriate parties to the Chap- ter XI Proceedings and the Small Business Adminis- tration, which is a secured lender to Guida with regard to the equipment, materials and inventory lo- cated at the Milford, Delaware facility. 12) The terms of that letter of intent directed to Guida from Miner dated March 5, 1985 are incor- porated into this agreement and made a part hereof. Guida Clothing accepted these "terms"on March 16, 1985. Further,' the Defense Department also approved Guida's "lease back and subcontracting arrangements with Miner Industries of Bristol, Rhode Island" for con- tracts "0409," "0767," and "0384" on March 18, 1985. Michael Guida, as he further testified, met with the employees of Guida Clothing and Union Representative Clara. Gummer in the cafeteria of the Milford plant on March 18, 1985. Guida recalled: I told them that Guida Clothing would not be in ex- istence ,any longer, until we cleaned up here, until the Chapter XI, until the Courts told us what was going to be . . . if we could work a plan out and it was approved by the Court. We explained the posi- tion of Miner, it was taking at the time, and we told them that if they wished to work for Miner, leave their names at the front office and we would con- tact them when we were ready to start up. Guida also acknowledged that he had "told the former employees of Guida that Miner was going to be operat- ing that facility if we get Court approval to do so"; "ba- sically,. [Guida] and Petti" were "involved in the hiring of employees for Miner." The Union„ by letter dated March 20, 1985, apprised Guida that it "has been informed that you filed [for] Chapter XI bankruptcy protection" and the Union "is ready, willing and able to listen to any proposals that the Company feels is necessary to facilitate the Chapter XI bankruptcy proceedings. . . ." Guida, by letter dated March 29, -replied, inter alia, that "all work in house will be subcontracted to Miner Industries"; Guida Clothing "will only maintain an office and will receive ` x' amount of money for each garment produced"; Miner Industries "will employ the people and Guida will only have 2 em- ployees, Michael F. Guida Sr. and Mario F. Petti .. . only to handle the Chapter XI proceeding and to follow the Court's instructions." Guida Clothing petitioned the bankruptcy court for approval of its agreement with Miner Industries on March 29, 1985. (See G.C. Exh. 9.) The petition recited, inter alia, that Guida Clothing has three contracts with the Defense Department; that Miner Industries also has one contract with the Defense Department; and that Miner Industries "proposes to complete its contract as well as [Guida's] contracts at [Guida's] place of business in Milford, Delaware." The Bankruptcy Court, by order dated April 11, 1985, authorized Guida Clothing to enter into the March 15, 1985 agreement with Miner Indus- tries, with the exception of paragraphs 5 and 10, which were amended as follows (see G.C. Exhs. 5 and 10): (5) Subject to further order of the court, Miner will sublease from Debtor the facility in Milford, Delaware which is being utilized by Debtor upon the same terms and conditions that Guida enjoys. Said sublease, unless otherwise ordered by the court, shall terminate upon completion of Debtor's contracts with the Defense Personnel Support Center (DPSC) being contract Nos. DLA100-84- C-0409, DLA100-84-C-0767, DLA100-84-C-0384, plus Miner's one contract for heavy weight wet weather clothing with the Defense Personnel Sup- port,Center, provided DPSC approves to have this one contract manufactured and produced at the Milford, Delaware facility. (10) Miner agrees to hire Michael F. Guida and Mario Petti to supervise the operation of the Mil- ford, Delaware facility and they agree to be respon- sible for the operation at this facility. Miner agrees to compensate Michael F. Guida and Mario Petti at the rate of Six Hundred Fifteen Dollars ($615.00) per week. 'Additionally, a bonus of five percent (5%) shall be paid to Michael F. Guida and Mario Petti each of the net operating pre-tax profit of the operation at the Milford, Delaware facility, said bo- nuses to be paid quarterly and to be placed in an escrow account subject to further order of the court. Thereafter, on May 7, 1985, the Defense Department ap- proved the proposed changes, as recited above. (See G.C: Exh. 11.) On entry of the bankruptcy court's order, dated April 11, 1985, Miner Industries became a subleasee of Guida Clothing at the Milford plant. (See G.C. Exh. 10.) As the order provided, "Miner will sublease . . . upon the same terms and conditions that Guida enjoys" the "sublease, unless otherwise ordered . . . shall terminate upon com- pletion of [Guida's 3] contracts . . . plus Miner's one contract for heavy weight wet clothing," "the equipment MINER INDUSTRIES 237 at [Guida's] Milford . . . facility will be used by Miner for the completion of the contracts," and "Miner will pay all operating expenses including wages of employees, cost of material, maintenance equipment, insurance, heat and other utility expenses of the facility, and other over- head expenses commensurate with the operation of the facility." And, as Michael Guida testified, "the individ- uals hired by Miner" then started working in the "same building," paid by Miner Industries, and the "name Guida Clothing . . . is still on the building."2 As stated, Miner Industries had one contract (0701) with the Defense Department for the production of wet- weather parkas. About April 11, 1985, Miner Industries "received [from its Rhode- Island plant] the parts and ma- terial and everything to start working on the contract" at the Milford plant. Michael Guida testified: Q. To what extent did those parkas, the ones in Miner's 0701 contract, how did they differ, if at all, from the parkas in Guida's contract, the [0767] con- tract and/or the 0384 contract? A. Same type of parka, yes. Q. And, the manufacturing process for those parkas in the 0701 contract is identical to that of the process in making the parkas for the [0767] and the 0384 contract, correct? A. Yes. Q. Same machines would be used? A. Yes. Q. Same employees would do them; presumably? A. Yes. , Q. The same skills would be used in producing those garments? A. Yes. Further, Michael Guida explained that the "0701" Miner Industries contract called for the production of about 50,000 parkas. As of January 8, 1986, the date of this hearing, some 14,000 parkas had been produced at Mil- ford and the "present intention" is that the "remainder will be produced here." About May 21, 1985, Miner Industries also "'resumed" work on the Guida "0409 overall contract."3 Work on this contract had been "dormant" since February, when Guida Clothing "shut down." Michael Guida testified: Q. To what extent, Mr. Guida, if at-all, are differ- ent machines used in producing those overalls for the 0409 contract now, as opposed to during the January and February period? A. Well, you can't phrase it as the machines being different. The machines being used would be the same machines. However, what is different is the process in which it is handled. 2 According to Michael Guida, Miner Industries used about 22,000 to 25,000 square feet of the rented facility when it started production during April 1985 Gmda Clothing, during January and February 1985, had uti- lized about 30,000 square feet The remaining 8000 to 5000 square feet [not used by Miner] are utilized for the storage of "unused machinery;' 3 Miner International also started , shipping parks about this time pursu- ant to Gmda's "0767" contract. See G.C. Exhs 15( a)-(n). Guida explained, inter allia, that Miner Industries has "added another operation, shingling, which does not re- quire a machine." Previously, Guida Clothing performed this process with "brushes," now, Miner Industries "changed it to rollers, and it has picked up the speed of employees." Guida also noted other changes made "as far as handling," which have resulted in greater efficien- cy.4 Michael Guida further testified that, as of April 1985, when Miner Industries started production at the Milford plant, "we were cutting somewhere around 10 to 15 thousand [units] a month." As of the date of this hearing, January 8, 1986,,"we are cutting somewhere around 22 to 26 thousand a month." Guida further noted that, as of January 8, 1986, Miner Industries had not started pro- duction on Guida Clothing's third contract ("0384") with the Defense Department for the production of some 60,000 wet-weather heavy parkas. The record shows that Miner Industries, commencing about April 10, 1985 , essentially hired employees at the Milford plant into the same or similar job classifications formerly used by Guida Clothing before it had ceased operations. Further; Miner Industries by-and-large hired employees into these job classifications in the same pro- portions or ratios formerly existing at Guida Clothing. Thus, for example, as of May 28, 1985, when the Union demanded recognition, Miner Industries had a work force at Milford of some 64 employees . About 39 of these employees were gluers and about 121were stitchers. (Set G.G. Exh. 12.) As noted, supra, the bulk of Guida Clothing's 120 to 150 unit personnel during January and February 1985 were also gluers and stitchers . Further, Miner Industries' employees from its Rhode -Island plant were not transferred to the Milford factory. Miner Industries essentially retained the same manage- ment and supervisory personnel at the Milford factory. Guida and Petti are still "responsible for the operation at this facility." (See the order of the bankruptcy court, G.C. Exh. 10.) Eudine Vickers is still employed, by Miner Industries in the "same position" in "the office." Mattie Bowman, Doris DeLong, and Vera Russell are still working at the factory 'as supervisors, and Wayne Hughes worked for Miner Industries (until his later,ter- mination) in the "same" position in "shipping." In short, Petti and Guida, Guida Clothing's highest officers, con- tinue on as management for Miner Industries , together with the former floor supervisors.5 David Ashcroft testified that Miner Industries also hired Jerry Mayhew of A.G. Mayhew Associates "as a consultant to manage the facility in Milford"; that 4 Guida elsewhere explained : "maybe .. . shingling was changed a little bit . . . some of the techniques were changed . . we had to redo within the office . . the purchasing is now done in Rhode Island the payroll is completed in Rhode Island " 5 Wayne Hughes has been replaced by an employee named Birgholtz, who-previously did not work for Guida Clothing. Further, Miner Indus- tries did not hire the former maintenance mechanics, although, according to Guida, "we are thinking about" hiring such a mechanic. In addition, ,Supervisor Palma Guida (Michael Guida's mother) and Comptroller Harold Weinberg were not carried over by Miner Industries See Tr. 58- 61, 98-99 238 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mayhew "reports directly to Ashcroft"; and that Mayhew is an industrial engineer, very familiar with time and motion studies. [Mayhew] operates what is known as a SAM-standard allowed minutes-system .. . It is a method of measuring movements of operators and then coming up with standards and telling oper- ators which hand they should use . . . and so forth, and planning production methods. Mayhew, by use of these skills, "has increased the effi- ciency of the Milford plant." And, now, both Guida and Petti "report to" Mayhew. Nevertheless, as Michael Guida explained, Petti "is in charge of all production," which was "his position for Guida Clothing." Guida is the "contract administrator." Further, Mayhew's changes at the Milford plant, such as, for example, in guaranteed minimums to piece-rate workers, bonuses, and absentee- ism policy, as well as his related improvements in the ef- ficiency of operation, have not significantly altered the terms and conditions of employment or the nature of the employing industry at the Milford plant. The plant, as noted, is still utilizing the same basic machines to produce the same basic products for the same customer operating the same hours under essentially the same su- pervision. (See, generally, R. Exh. 5.) The Union, by letter dated May 28, 1985 (G.C. Exh. 16), apprised Ashcroft of Miner Industries that it "repre- sents the employees of Guida Clothing"; that "Miner In- dustries is now operating the Guida plant"; that it "rep- resents these employees who have been hired by Miner"; that it therefore "demands recognition"; and that it would like "to meet .. . as soon as possible to negotiate a collective bargaining agreement covering these em- ployees," proposing a meeting between June 3 and 14, 1985. Ashcroft replied, by letter dated June 5, 1985 (G.C. Exh. 17): Be advised, we are still in the process of negotia- tion to resolve differences over the lease on the property and discussions with the S.B.A. and the bank, as well as determining possible inventory dis- crepancies. We therefore do not feel in any position to discuss with any party the future of Miner in Delaware. We would, however, remind you that the em- ployees at our Delaware location are not employed by Guida and therefore not governed by the Guida contract. Thereafter, on August 23, 1985, the Union filed the in- stant unfair labor practice charge, alleging that Miner In- dustries, "since on or about May 28, 1985, has refused to bargain with" the Union "as a successor to Guida Cloth- ing." (See G.C. Exh. 1(a).) And, Miner Industries, in its answer to the complaint, admitted that "since on or about June 5, 1985, [it] has failed and refused and is fail- ing and refusing to bargain collectively with the Union." (See G.C. Exh. 1(c).) The parties stipulated that, "at all times material, from April 10, 1985, through and including July 29, 1985, a majority of the employees employed by Miner Industries at the Milford, Delaware, location, were formerly em- ployed by the predecessor Guida Clothing." The parties further stipulated that, "at all times since July 30, 1985 a majority of the employees employed by Miner In- dustries at the Milford facility were not formerly em- ployed by Guida Clothing." In addition, as stipulated, "as of the May 28, 1985 demand for recognition, there were approximately 64 employees . . . of which approxi- mately 51 had been Guida employees"; later, "on July 29 the number of employees was approximately 124 and, of that number, 63 approximately were former Guida people"; and, later, "as of December 1, 1985 [Miner In- dustries] had 145 employees and a majority of them were not former Guida employees " (See Tr. 22-27 and G.C. Exh. 12.) Counsel for Respondent Employer, in his posthearing brief (Br. 3), acknowledges that "Guida is no longer a debtor in possession" and that Miner Industries "has made an offer to the trustee to continue operations in the Delaware facility until September 1987." Counsel at- taches to his brief a letter dated March 25, 1986, from Miner Industries to the trustee, reciting, inter alia: Miner wishes to inform you that it has been award- ed two contracts by DPSC for approximately 200,000 Heavy Wet Garments that would be made in the Delaware facility. These garments are identi- cal to those that are the subject matter of the March 15, 1985 agreement between Miner and Guida. The purpose of this letter is to propose an extension of this agreement in order to permit Miner to continue to use the facilities and equip- ment of Guida until September of 1987.6 6 The sequence of events recited above is essentially undisputed, con- sisting in large part of uncontroverted documentary evidence And, al- though I have recited above testimony of both Michael Guida and Ash- croft, their testimony pertaining to numbers of unit personnel and pro- duction or shipping figures was demonstrated to be , at best, rough and general approximations Counsel for Respondent , in his posthearing brief (Br 2), asserts that "it was always anticipated that Miner would eventually employ approxi- mately 145 employees in this facility in order to meet the production called for by the Government contracts " Thus, counsel argues (Tr 16- 17) that "it took us until December to reach that full complement of 145 people" and , consequently, majority status should be determined in December, some 8 months after Miner Industries took over Guida's plant, machines, and personnel The credible evidence of record does not show that "it was always anticipated" that Miner Industries would "eventually employ 145 employees " Counsel, in making this assertion, is apparently relying on the rough and general approximations of both Mi- chael Guida and Ashcroft, which I find to be vague, uncertain, and unre- liable on this record For example, Michael Guida, in general and rough terms (Tr 104-105), stated that Miner Industries "will have to be produc- ing right around 30 or 32,000 plus [garments] per month to meet the delivery schedules" and "140-150" "employees will be necessary to meet that type of production schedule of 31,000 per month " Ashcroft, also in general and vague terms, asserted (Tr 149) that his "target date for the completion of the four contracts [was] April 1986", that "is based on the assumption that Miner reaches its goal of producing" "30,000 per month", and Ashcroft added Well, if I could, maybe put it another way, we produced an original production schedule back in April-May when we intended to com- mence operations in Milford we are only running 3 to 4 weeks late the schedule calls for April and it could run over into May In sum, I am not persuaded on this record that Miner Industries, at any time pertinent here, sufficiently contemplated and planned for a Continued MINER INDUSTRIES 239 Discussions The settled legal principles of successorship were re- stated by the court in NLRB v. Jeffries Lithograph Co., 752 F.2d 459, 463 (9th Cir. 1985), as follows: A successor employer is a firm which, having hired most of its employees from a predecessor em- ployer's work force, conducts essentially the same business that the predecessor did ... When a prop- erly recognized or Board-certified union has repre- sented the predecessor's employees, the law pre- sumes that a majority of the successor's employees support the same union . . . . This presumption places the successor employer under a duty to bar- gain with the union. . . . The reason for the pre- sumption is that a mere change in ownership, with- out an essential change in working conditions, is not likely to change employees' attitudes toward union representation.... [Citing NLRB v. Burns Interna- tional Security Services, 406 U.S. 272 (1972).] The court further noted: The presumption that the old union should repre- sent the new workforce applies only when a majori- ty of the new workforce once worked for the old employer. Ideally, to fix a date for determining ma- jority status, the Board would wait until the new employer has hired its "full complement" of work- ers. See Burns, 406 U.S. at 295, 92 - S.Ct. at 1586 (dictum). But the federal labor policy favoring early representation and the exigencies of our economy do not permit the Board to wait until an uncertain future date when the employer can claim that it has hired every needed employee. See, e.g., NLRB v. Pre-Engineered Building Products, Inc., 603 F. 2d 134, 136 & n. 1 (10th Cir. 1979). Therefore, we permit the Board to make a successorship determination when the new employer has achieved a "substantial and representative" complement of workers. Premi- um Foods, 709 F.2d at 628. Applying the foregoing principles to the essentially un- disputed and credited evidence of record, I find and con- clude that Miner Industries was at all times pertinent here a successor employer of Guida Clothing'and, there- fore, violated Section 8(a)(5) and (1) of the Act when it refused to recognize and bargain with the Union as the representative of the employees in an appropriate unit. Guida Clothing ceased operations at the Milford plant on February 8, 1985. Miner Industries, shortly thereafter, at- total or full complement of 145 employees, as claimed by counsel. This assertion is at odds with the alleged uncertainties in continuing the operation, the vacillating number of employees gradually hired starting on April 10 and the vacillating production and delivery fig- ures during this entire sequence As will be discussed further below, I find instead that Miner Industries had a substantial and representa- tive complement of unit employees by May 28 (Le., 64 employees) or, alternatively, by July 29 (i.e., 124 employees), when Miner Indus- tries was substantially producing both the parkas and overalls previ- ously manufactured by Guida. Further, counsel for the General Counsel, by letter dated February 24, 1986, encloses omitted exhibits and seeks to correct the record . His re- quest is unopposed and granted. tempted to take over Guida's plant, lease, operation, and outstanding contracts with the Defense Department. About April 11, as soon as the bankruptcy court ap- proved the agreement between Guida and Miner, Miner Industries in fact took over Guida's operation lock, stock, and barrel. Miner Industries used the same plant and the same machines and manufactured the same prod- uct. Miner Industries utilized the same supervision, in- cluding Guida and Petti, and employed a substantial ma- jority of Guida's work force. There were no significant or substantial changes in their terms and conditions of employment. In sum, it is hard to conceive of a case where the employing industry, following a takeover, re- mained so substantially intact. Nothing significant was changed. The unit employees continued to make the same overalls and parkas under the same supervision in the same plant on the same machines for the same cus- tomer. There is no question that a substantial majority of the unit employees were former Guida employees on May 28, 1985, when the Union, demanded recognition. Fur- ther, Miner Industries, at the time, had essentially filled all the prior job classifications in the same or similar ratios which had existed when Guida ran the operation. The same products were being substantially produced at the time. Consequently, I would find on this record that, by May 28, Miner Industries had a substantial and repre- sentative complement of unit workers. See Jeffries Litho- graph, supra, and cases cited. Alternatively, I would find the Union's demand for recognition, on May 28, to be a continuing demand here. Miner Industries, on rune 5, had unequivocally rejected this demand. Following the filing of unfair labor practice charges and the issuance of a complaint, Miner admitted that it was continuing in its refusal to recognize the Union. Under the circumstances, it would have been futile for the Union to repeat its May 28 demand. Cf. Aircraft Magnesium, 265 NLRB 1344 (1982), enfd. 730 F.2d 767 (9th Cir. 1984). Consequently, on July 29, Miner Industries employed 124 unit employ- ees and a majority were still former Guida employees. This 124 complement clearly would constitute a substan- tial and representative unit complement. Miner Industries would defer determining majority status for some 8 months from takeover, until December 1985. Miner argues, supra, footnote 6, "it was always an- ticipated that Miner would eventually employ approxi- mately 145 employees in this facility" and reached this alleged "full complement" on December 1. The credible evidence of record, as found, does not support this asser- tion. Moreover, as the Board stated in Myers Custom Products, 278 NLRB 636, 637 (1986): When a new employer expects, with reasonable cer- tainty, to increase its employee complement substan- tially within a relatively short time, it is appropriate to delay determining the bargaining obligation for that short period. Here, there was no "reasonable certainty" and no dem- onstrated "relatively short time" or "short period." Ac- cordingly, I reject this contention. 240 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent Miner Industries is an employer en- gaged in commerce as alleged. 2. Upper South Department, International Ladies' Garment Workers' Union is a labor organization as al- leged. 3. Miner Industries violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain in good faith with the Union as the exclusive bargaining agent of its employees in the following appropriate unit: All nonsupervisory production, maintenance, pack- ing and shipping workers employed by Respondent [at its Milford, Delaware facility]. 4. The unfair labor practices found above affect com- merce as alleged. REMEDY To remedy the unfair labor practices found above, Re- spondent Employer will be directed to cease and desist from engaging in such conduct or like or related conduct and to post the attached notice at its Milford, Delaware plant. Further, to effectuate the purposes and policies of the Act, Respondent Employer will be directed to, on request, bargain in good faith with the Charging Union as the exclusive bargaining agent of the unit employees involved and embody in a signed agreement any under- standing reached. On these findings of fact and conclusions of law and on the entire record, I issue the ,following recommend- ed' ORDER The Respondent, Miner Industries, Inc., Milford, Dela- ware, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively and in good faith with Upper South Department, International Ladies' Garment Workers' Union, AFL-CIO as the ex- clusive bargaining agent of the employees in the follow- ing appropriate unit with respect to rates of pay, hours of employment, and other terms and conditions of em- ployment. The appropriate unit is: All nonsupervisory production, maintenance, pack- ing and shipping workers employed by Respondent [at its Milford, Delaware facility]. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to effectuate the policies of the Act. T 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. (a) On request, bargain collectively and in good faith with the Union as the exclusive bargaining representative of unit employees with respect to rates of pay, hours of employment, and other terms and conditions of employ- ment, and embody in a signed agreement any under- standing reached. (b) Post at its facility in Milford, Delaware, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by Respondent's authorized representative, shall be posted by Respondent immediate- ly on receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by 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 Respondent has taken to comply. 8 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 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 fail and refuse to bargain collectively and in good faith with Upper South Department , Inter- national Ladies' Garment Workers' Union, AFL-CIO as the exclusive bargaining agent of the employees in the following appropriate unit, with respect to rates of pay, hours of employment and other terms and conditions of employment. The appropriate unit is: All nonsupervisory production, maintenance, pack- ing and shipping workers employed by Miner In- dustries at its Milford, Delaware facility. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL, on request, bargain collectively and in good faith with the Union as the exclusive bargaining repre- sentative of the unit employees with respect to rates of pay, hours of employment, and other terms and condi- tions of employment, and embody in a signed agreement any understanding reached. MINER INDUSTRIES, INC.