Cincinnati Bronze, Inc.

CINCINNATI BRONZE Cincinnati Bronze, Inc. and United Steelworkers of America, AFL-CIO. Case 9-CA-21591-1 39 substituted for that of the administrative law judge. 3 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 2 April 1987 Administrative Law Judge Wal- lace H. Nations issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed limited cross-excep- tions and a brief in support of its cross-exceptions and in response to the Respondent'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,2 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, Cincinnati Bronze, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order except that the attached notice is i The General Counsel has moved to strike the Respondent's excep- tions on the grounds that they do not comply with the requirements of Sec 102 46 of the Board's Rules and Regulations for filing exceptions. We find that the Respondent's exceptions and brief together sufficiently designate the Respondent's points of disagreement with the judge 's deci- sion even though not fully in compliance with the literal requirements of Sec 102 46. B T Mancini Co, 269 NLRB 869 (1984) Accordingly, the General Counsel's motion is denied 2 The judge correctly noted that the collective-bargaining agreement was effective by its terms from 20 July 1981 to 15 August 1984 Addi- tionally, it should be noted that the contract had been extended to 15 August 1985 The judge also stated that the demand for bargaining was made on 11 November 1984 The correct date is 11 December 1984 Fi- nally, the judge stated that employee Dale Frye had been laid off by old Lunkenheimer on 13 July 1984 , when the correct date of layoff is 13 Jan- uary 1984. These errors do not affect the decision here and are corrected. The judge, in identifying the persons who were bargaining unit em- ployees as well as former old Lunkenheimer employees, inadvertently omitted Cliff McBride The record shows that there is it Cliff McBride, as well as a Clifton McBride, in the bargaining unit and both persons were employed by the original Lunkenheimer Company Fall River Dyeing Corp, 272 NLRB 839 (1984), enfd 775 F 2d 425 (1st Cir 1985), relied on by the judge in finding that the Respondent was the successor to old Lunkenheimer, was affirmed by the Supreme Court 482 US 27 (1987). The General Counsel excepts to the judge's recommended Order to the extent that it does not include a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order . Under the circumstances of this case, we find it unnecessary to include such a clause Accordingly, we deny the General Counsel's request 8 The notice is modified to conform to the judge's recommended Order 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 ordered us to post and abide by this notice. WE WILL NOT refuse to recognize or bargain in good faith with United Steelworkers of America, AFL-CIO as the exclusive collective-bargaining representative of our employees and, on request, WE WILL meet and bargain in good faith with it over wages, hours of work, and all other terms and conditions of employment in the unit described below. The bargaining unit is: All production and maintenance employees of Cincinnati Bronze, Inc., at our Cincinnati, Ohio facility, excluding all office and clerical employees, guards, professional employees and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. CINCINNATI BRONZE, INC. James Schwartz, Esq., for the General Counsel. Eugene M. Rothchild, Esq., of Cincinnati, Ohio, for the Respondent. James B. Robinson, Esq. (Kircher and Phalen), of Cincin- nati, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. On charges filed by United Steelworkers of America, AFL-CIO (Union), on 21 December 1984, against Cin- cinnati Bronze, Inc. (Respondent), the Regional Director for Region 9 issued a complaint and notice of hearing on 12 August 1986 alleging that Respondent engaged in cer- tain acts and conduct violative of Section 8(a)(1) and (5) of the Act. The hearing was held in this matter before me on 6-9 October 1986 at Cincinnati, Ohio. 286 NLRB No. 5 40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT the time of closing, it employed approximately 150 bar- gaining unit employees. The bargaining unit had , in prior years, been considerably larger . Prior to the closing, old Lunkenheimer Company and the Union met and bar- gained for a closing agreement relating to the seniority rights, grievances, pension benefits, and other benefits of the old Lunkenheimer employees. The closing agreement did not rescind the collective -bargaining agreement that remained in effect, where applicable , until its expiration date in 1985 . Rights accorded to bargaining unit mem- bers in the closing agreement and collective-bargaining agreement were monitored by the Union well after the old Lunkenheimer Company closed . This monitoring function was carried on primarily by International Union representatives because the Local Union involved, which represented only old Lunkenheimer employees, was forced into dissolution by the closure. In this regard, both the underlying collective-bargaining agreement and the closing agreement were entered into between the old Lunkenheimer Company and the International Union, not the Local. The assets of the old Lunkenheimer Company, mostly buildings and large equipment, were purchased by its president, William Meyer, and a partner, about June 1984. Most of these assets were in turn sold by Meyer to Cushman Enterprises, a company that engaged in liqui- dating the assets of old Lunkenheimer Company and other failed companies. The equipment bought by Cush- man was, in turn, sold directly from the old Lunken- heimer facilities to various purchasers. In addition to purchasing the assets of the old Lunken- heimer Company, Meyer and his partner formed a new corporation, also called the Lunkenheimer Company (new Lunkenheimer Company). Although engaged pri- marily in the distribution of valves manufactured by others, the new Lunkenheimer Company, which now owns the old Lunkenheimer Alabama facility, also man- factures and assembles some valves and valve parts. New Lunkenheimer's administrative facilities are located in one of the old Lunkenheimer buildings. In addition to the old Lunkenheimer Company, the Condec Company owned or controlled other companies engaged in the manufacture of products for flow control. These were Hammond Valve in Hammond , Indiana, a plant in Canada, one in Mexico, and the Alabama plant, mentioned above. At some point in time, Condec Com- pany made the decision to liquidate the flow control group as a whole ; opened a facility in Marion, Alabama, and jobbed out all products that were not made at the Marion, Alabama plant. George Kaylor, the superintend- ent of manufacturing for old Lunkenheimer, was advised several months before Condec made public announce- ment of its proposed liquidation. He was assigned to a management team with the job of finding manufacturers for the products that the old Lunkenheimer plant in Cin- cinnati currently made. At this time, approximately 9 September 1983, Kaylor started looking into the possibil- ity of forming his own company to produce the products that would be jobbed out by Condec from old Lunken- heimer. Approximately 1 month prior to cessation of old Lunkenheimer's operations in June 1984 , Kaylor drew up Respondent, an Ohio corporation with an office and place of business in Cincinnati, Ohio, has been engaged in the manufacture and machining of valves and other machine parts. Respondent has admitted the jurisdiction- al allegations of the complaint and I find that it is now, and has been at all times material to this proceeding, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO is now and has been at all times material to this proceeding a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The primary issues to be decided in this proceeding are whether Respondent is a successor employer of the former Lunkenheimer Company, a Division of the Condec Corporation (old Lunkenheimer Company), and whether a majority of Respondent's employees were members of old Lunkenheimer's former bargaining unit about the time demand for recognition was made by the Union. There are subsidiary issues relating to the two primary issues that will be discussed at appropriate points in the decision. A. Is Respondent a Successor Employer of the Old Lunkenheimer Company? For approximately 40 years, the Union represented the bargaining unit of production and maintenance employ- ees employed by the old Lunkenheimer Company. The bargaining unit employees were covered by successive collective-bargaining agreements, the most recent of which was effective by its terms from 20 July 1981 to 15 August 1984. Old Lunkenheimer, a subsidiary of the Condec Com- pany, was engaged in the manufacture and sale of flow control equipment, mainly for industrial customers. Its products consisted primarily of bronze and iron valves, though it manufactured some related items such as gauges and steam whistles. The manufacturing process consisted, for the most part, of the casting, machining, and assembling of valve parts and complete valves. Al- though the old Lunkenheimer Company had well in excess of 100 specific bargaining unit job categories, most such jobs fell into the more limited general classifi- cations of machine operator , assembler, and maintenance employee. The production and administrative functions of the old Lunkenheimer Company took place in five buildings within a several-block area in Cincinnati. These buildings were owned by the old Lunkenheimer Company. In one of the buildings it operated a foundry, which due to diffi- culties with pollution, was, as of June 1984, functioning on a very limited basis. About 25 June 1984, the old Lunkenheimer Company ceased operations, apparently for economic reasons. At CINCINNATI BRONZE 41 corporate papers for the establishment of the new com- pany whose purpose would be to produce bronze valves on a custom order or job-shop basis. In June 1984, the Company was converted into a shareholder corporation, all the owners at which were former Lunkenheimer em- ployees. With one exception , all such owners were in management positions with old Lunkenheimer. The new company was named Cincinnati Bronze, Inc. and is the Respondent in this proceeding. Respondent began its operations in the building for- merly owned by old Lunkenheimet . It hired its first pro- duction employees about 9 July 1984. Although Re- spondent moved parts of the operation during the fol- lowing year, it has, at all times, occupied only former old Lunkenheimer buildings . The record is not clear when production of product actually started . Operations, including setup and preparation production , began in the last week of June or the first week of July 1984. Like the old Lunkenheimer Company , Respondent has engaged primarily in the manufacture, assembly, and sale of valves and valve components . Also like the old Lun- kenheimer Company, Respondent has a substantial ma- chining operation for the fabrication of valve parts. There are two primary differences in the old Lunken- heimer operation and that of the Respondent. Foremost is that the Respondent has no proprietary interest in the products that it machines and sells. It is a job shop that manufactures valve parts and other commodities for its customers . Its customers further assemble the products before sale and sell them under their own name to their own customers . Second, the operation of the Respondent is on a much smaller scale than that of old Lunken- heimer and in general is limited only to the production of the involved commodities in the metal bronze, where- as old Lunkenheimer produced and sold commodities in a variety of metals. Machining operations of Respondent are performed with approximately 65 large machines, most of which were formerly used at old Lunkenheimer . These ma- chines were not purchased , but are leased from new Lunkenheimer in a lease/purchase agreement . The build- ings utilized by Respondent are also leased from new Lunkenheimer . Other machines used by Respondent are obtained from its customers and are used to perform a given contract. When the work is done for that custom- er, the machines are returned to the customer. Respondent purchased a substantial amount of former old Lunkenheimer tooling for use in its machine oper- ation. Additionally, after a period of cleanup and installa- tion of pollution devices, Respondent reviewed old Lun- kenheimer's foundry operation for the casting of valve bodies. After a period of test molding , foundry oper- ations commenced production in January 1985. Many of the patterns used in the foundry operation are old Lun- kenheimer patterns, now owned by new Lunkenheimer. Prior to commencing operations in 1984, Respondent purchased certain inventory of old Lunkenheimer, such as valve parts, from Cushman Enterprises . These were assembled into finished products by Respondent's em- ployees and sold. For the first 6 months to 1 year of Re- spondent's operations, it manufactured and assembled ap- proximately 350-400 different kinds of valves . Old Lun- kenheimer manufactured approximately 3500 different variations of valves. Most of the valves made by Re- spondent are the same valves as those that were made by old Lunkenheimer or variations thereof . The items manu- factured by Respondent that were not previously made by old Lunkenheimer, such as gas nozzles , still fall into the general category of "flow control devices." At the outset of Respondent's operation, approximate- ly 90 percent of its business was performed for new Lun- kenheimer. As of the date of hearing, that had been re- duced to approximately 70 percent and the Company's customer base extended to about 12 to 14 different cus- tomers. The job skills of Respondent 's production and mainte- nance employees are basically the same as the job skills of the same employees when employed by old Lunken- heiner. Although Respondent's operations are different in some respects from the methods used at old Lunken- heimer, Respondent's vice president admitted that the skills primarily would be the same , regardless of where the employees worked . A former employee of old Lun- kenheimer, Omer Groves, testified that the jobs he per- formed at the Respondent's place of business were basi- cally the same as they were at old Lunkenheimer. The record reflects that as of late December 1984 Re- spondent's employees were working under the direction of the same supervisors who previously supervised them at old Lunkenheimer . Most of these persons held, for the most part, similar positions at old Lunkenheimer. As will be discussed in more detail later , the majority of Re- spondent's production and maintenance staff in Decem- ber 1984 were old Lunkenheimer employees. The first issue for discussion is whether Respondent is a successor employer to old Lunkenheimer . The tradi- tional standard for evaluation of successor status and the resulting, concomitant duty of a successor employer to bargain with the Union that represents the predecessor's employees derives from the decision of the Supreme Court in NLRB v. Burns Security Services, 406 U.S. 272 (1972). In determining whether the purchaser is obligated to bargain with the exclusive representative of its predeces- sor's employees, the basic test is whether a substantial continuity is maintained in the employing enterprise. Where there is such continuity , the presumption of ma- jority status by the Union under the predecessor is not affected by the change in ownership . Traditional criteria for this test include whether there has been a substantial continuity in the following : ( 1) business operations; (2) plant; (3) work force; (4) jobs and working conditions; (5) supervisors; (6) machinery, equipment, and methods of production; and (7) product or service. See Aircraft Magnesium, 265 NLRB 1344 (1982). In applying these criteria the determination of whether successorship is to be found is based on the totality of the circumstances and no one criterion or factor is determinative. Howev- er, consistent with the proper focus of the inquiry where the above indicia of continuity are present, changes in the scope or focus of the new employer's business that do not effect the employment relationship or the work- ing conditions of the employees will not preclude a find- 42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing of successorship. Hudson River Aggregates, 246 NLRB 192 (1979), enfd 639 F.2d 865 (2d Cir. 1981); Band-Age, Inc., 217 NLRB 449 (1975), enfd. 534 F.2d (1st Cir. 1976). From the record, I agree with the contention of the General Counsel that substantial continuity of operations existed throughout the closing of old Lunkenheimer and the establishment of operations by Respondent. Respond- ent was formed in the anticipation of the liquidation of old Lunkenheimer's operations . Respondent has used only the facilities of old Lunkenheimer, producing the same or similar valves and flow control devices , using to a substantial extent old Lunkenheimer 's equipment. All Respondent's supervisory, managerial, and office clerical employees were formally employed by old Lunken- heimer in the same or similar positions. Respondent's production and maintenance employees perform essen- tially the same machining , assembly, and maintenance jobs as did bargaining unit employees of old Lunken- heimer. Despite the fact that a majority of Respondent's sales are to new Lunkenheimer, which obviously was never a customer of old Lunkenheimer, it is clear that a substantial portion made by the Respondent are sold by new Lunkenheimer, in turn, to the former customers of old Lunkenheimer. Faced with the evidence in this proceeding, Respond- ent still contends that it is not a successor employer and is operating a fundamentally different enterprise in old Lunkenheimer. It relies primarily on the Board's decision in Radiant Fashions, 202 NLRB 938 (1973). In Radiant Fashions, a brassiere manufacturer , ceased all productions in its Los Angeles facility and terminated all its Los An- geles employees. During negotiations over settlement of his employment agreement, one of the old corporation's management members (Froehlich) negotiated the pur- chase of all the physical assets at the Los Angeles facili- ty. Within 3 months of closing the facility, a new corpo- ration formed by Froehlich began production in the old facility with a complement of employees formerly em- ployed by the old corporation, the majority of whom had been in the bargaining unit. The new corporation did not design, manufacture, or market any of its own products to retail outlets. Instead, they sold and assem- bled brassieres designed and cut by other manufacturers. Indeed, the new corporation had signed an agreement with the defunct company akin to a covenant not to compete in which it agreed to not manufacture or cause to be manufactured garments from patterns that dupli- cate existing patterns made under the old company's name and manufactured by others. By the time of the hearing, the company was design- ing, manufacturing , and selling its own style brassiere, having evolved from a job shop into a proprietary manu- facturer. Deciding this case, the Board stated at 940: At the outset, it should be noted that there are present in this record certain factors which we have relied on in the past in finding successorship. Thus, when Respondent commenced operations in Sep- tember 1971, it was engaged in a business related to that of Charmfit although on a reduced scale. More- over, its business was run at the same location, uti- lizing much of the same basic equipment , employing a reduced work force consisting mainly of the em- ployees of the predecessor company under substan- tially the same supervisory authority. We have long recognized, however, that the cru- cial inquiry in determining whether a purchaser is a successor for the purpose of Section 8(a)(5) is the continuity of the employing industry . . . . and that in making this inquiry the totality of the circum- stances surrounding the transfer must be considered. Accordingly, in cases similar to the instant case, in which all or most of the above-described factors were present, we nevertheless refused to find successorship when persuaded that countervailing elements existed which destroyed the continuity of the employing industry. . . . We are so persuaded by the record in this case. First, when Charmfit ceased production and ter- minated the employees in June, there were at that time no plans to sell the Los Angeles facility to Froehlich. The possibility of such a sale was raised for the first time the following month in conjunc- tion with discussions for a settlement of Froehlich's employment contract. It was not until August 25 that the sale was consummated and 1 month passed thereafter before operations actually commenced. Consequently there was a hiatus of between 2-1/2 and 3 months between the time that Charmfit shut down completely and Respondent began produc- tion. While it is true that all of the employees hired by Respondent within the first 3 months of operation were former Charmfit employees, it cannot be said that a sudden change in the employee's employment relationship was brought about by the sale of the plant and equipment to Respondent. At the time of their termination by, and receipt of severance pay from, Charmfit there was absolutely no basis what- soever for any expectation on the part of the em- ployees that their employment would ever be re- sumed at the Los Angeles plant; much less by a cor- poration which was then nonexistent and whose formation had not as yet been contemplated by anyone. Although not in itself controlling, the lengthy hiatus in resumption of production at the plant, and in the employment of those employees even- tually hired by Respondent, is a significant factor in determining whether there exists a continuity in the employing industry. . . . Second, the record adequately demonstrates that rather than purchasing an ongoing business enter- prises from Charmfit, Respondent only purchased the assets of one segment of such an enterprise. For example, Charmfit continues to manufacture many items at its Brooklyn and Puerto Rico facilities which are marketed in competition with the Re- spondent's products. Moreover, Respondent is pre- cluded by the terms of the agreement of settling Froehlich's employment contract from manufactur- ing any items which duplicate patterns utilized by Charmfit, many of which were created by or under CINCINNATI BRONZE 43 the direction of Froehlich himself. Also Respondent did not undertake to produce any products for Charm- fit, assume any of its liabilities (except for the lease), or assume any accounts receivable . Indeed, all of the inventory on hand at the time of sale, whether finished or unfinished, was either shipped to Brook- lyn or to the purchasers thereof, at the direction and expense of Charmfit. It is also significant in this regard that Respond- ent acquired virtually none of Charmfit 's customers as a result of the sale . Initially, almost all of Re- spondent's work was done for two customer's, Olga Company and Catalina Company, neither of which had ever done any business with Charmfits. Cur- rently 50-60 percent of Respondent's business is with Sears, Roebuck & Co., a customer with whom Charmfit was not doing business at the time of the sale and, in any event, never a significant customer of the Los Angeles facility. It is a fair inference, therefore , that any overlapping of customers which may currently exist was achieved by Respondent not through the exchange with Charmfit , but rather by virtue of successful marketing techniques . Again, while these factors, particularly the virtual absence of a carryover of customers, are not to be taken as controlling, they are nevertheless significant in de- termining whether there is a continuity in the em- ploying enterprise. .. . Finally, we consider it important to analyze the differences between the market which Charmfit abandoned in Los Angeles in June and the market which Respondent entered in September . As noted earlier, Charmfit was a manufacturing concern which designed, manufactured, and sold ladies' brassieres under its own labels to various retail out- lets. Respondent, on the other hand, commenced operations not as a manfacturer but as a sewing sub- contractor. Thus, Respondent initially did no de- signing, did no marketing , and did not produce any items under its own label . Instead, Respondent merely performed certain prearranged sewing oper- ations on materials supplied by its customers. In ad- dition, Respondent worked on garments other than brassieres, including bicycle shirts and bathing suits, thereby necessitating modifications in some of the existing equipment, the purchase of certain new equipment, and the retaining of several employees. Alterations such as these in the methods of produc- tion and type of markets supplied and kinds of products produced have frequently been utilized in determining whether there has been a substantial change in the nature and character of the employ- ing industry. . . . On balance, we find that the lengthy hiatus in oper- ations, the evidence pointing toward a purchase of assets rather than the purchase of an ongoing busi- ness, the absence of any significant carryover in customers, and the differences in the markets sup- plied by Charmfit and Respondent all indicate an extinguishment in the continuity of Charmfit's busi- ness enterprise. [Emphasis added.] The Board dismissed the complaint. Respondent urges that the instant case should have the same result as Radiant Fashions because the facts are so similar. It points first to the fact that Respondent is a job shop whereas old Lunkenheimer was a manufacturer of its own proprietary product . In Radiant Fashions, speak- ing to this as noted above, the Board held that alterations in the methods of production, type of market supplied, and kinds of products produced were the significant fac- tors that it looked at when considering the change in nature of operation from proprietary manufacturing of brassieres to the more job shop initial operation of Re- spondent. In the instant proceeding, there has been little, if any, alteration in the production and type of products produced . The market supplied by Respondent for the products it produces is virtually the same as the market supplied by old Lunkenheimer . Indeed, as noted above, most of its product has been sold to new Lunkenheimer for sale to exactly the same market as served by old Lunkenheimer. As urged by the General Counsel , the Board has fre- quently held that changes in the size of an operation of a successor employer and even in the nature of its oper- ations do not preclude the finding that it is a successor employer for the purpose of recognizing an incumbent union. In Fall River Dyeing Corp., 272 NLRB 839 (1984), enfd. 775 F.2d 425 (1st Cir. 1985), the Board found that the predecessor company (Sterlingware), was primarily a "converter" of fabric (i.e., finishing of goods for sale under its own name), whereas the alleged successor (Fall River) was a "commission dye house" (i.e., job shop). Nevertherless, the Board found that Fall River was the successor of Sterlingware . As stated in the administrative law judge's decision, "Respondent places great emphasis on the fact that it is solely a commission dye house, while Sterhngware was mainly a converter of fabric. Re- spondent urges this results in a difference in the nature and identity of the enterprise. I disagree. The business is, like Sterlingware, dyeing and finishing of fabric. The fact that the Respondent does something different before and after the production process is completed does not result in any essential difference . The enterprise is not identical, but it is similar." In First Food Ventures, 229 NLRB 1228 (1977), the Board found that changes in product lines , customer services, employer dress, the physical plant, and the manner of compensation, among other changes, did not alter the basic similarities in the nature of the operations of the predecessor and successor operations. In Middleboro Fire Apparatus, 234 NLRB 888 (1978), enfd. 590 F.2d 4 (1st Cir. 1978), the Board found conti- nuity of the employing industry despite the reduction in the work force by the successor or 90 percent (from 100 to about 10 employees) and other changes in the manner of operations. As stated by the administrative law judge: [A]ctivities of this nature are the normal concomi- tants of a new management and a new approach to a failing business, not a break in the continuity of the employing indusrtry. 44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In enforcing the Board order in Middleboro, the court of appeals stated: We find no reason to believe here that the reduc- tion [in work force] would significantly effect the employee attitudes . . . so as to give a basis for ig- noring the presumption of continued majority status. [590 F.2d at 8 . See also Band-Age, Inc., supra.] Respondent also urges that the instant proceeding is similar to Radiant Fashions because there was a lengthy hiatus between the old Lunkenheimer's closing and the Respondent beginning operations. In Radiant Fashions, there was approximately 2-1/2- to 3-month hiatus be- tween the time the predecessor company shut down and the alleged successor began production . In the instant proceeding there was virtually no hiatus. Operations commenced almost immediately after the shutdown of old Lunkenheimer and Respondent began hiring produc- tion employees in the first part of the following month. Moreover, the impetus for the creation of the Respond- ent in this proceeding was the announced liquidation of old Lunkenheimer. Respondent's creator, George Kaylor, and his shareholders, former old Lunkenheimer management employees, contemplated the institution of operations on the closing of old Lunkenheimer. Last, Respondent urges that the evidence does not point to the purchase of an ongoing business by Re- spondent. In Radiant Fashions, the purchaser signed what amounted to a covenant not to compete and many of the operations of the failing company were transferred to other nonfailing related companies . In this proceeding, though Respondent obviously was not going to continue the operations of old Lunkenheimer, its very existence and survival depended on a continuation of the sale of Lunkenheimer products, albeit manufactured by it rather than by old Lunkenheimer. Under the circumstances set out in the record and on review of all the evidence , I conclude that Respondent is a successor employer to old Lunkenheimer and thus has an obligation, on demand, to meet and bargain in good faith with the Union. B. The Bargaining Request The Union, through Staff Representative James New- port, first became aware of Respondent's operations in July 1984. At that time, however, Newport was only aware, from rumors, that someone was working in the old Lunkenheimer facility. He did not know the name of the company or who was working there Nor was he aware that two companies , new Lunkenheimer and Re- spondent (as well as Cushman Enterprises) were utilizing the facility. It was not until late 1984, enlisting the assist- ance of a former old Lunkenheimer employee , that New- port was able to ascertain that a majority of the Re- spondent's employees were former old Lunkenheimer bargaining unit members . Thereafter, on 11 November 1984, the Union's District 30 director, Edward Zeuch, by letter to Respondent , demanded recognition and re- quested that the Respondent commence bargaining. By letter dated 18 December 1984, Respondent refused to recognize the union as the exclusive collective-bargain- ing representative of its employees. C. Majority Status The focus on the evidence in this proceeding regard- ing majority status has been the payroll period during which the 11 December 1984 demand for recognition was made. On brief, neither the General Counsel nor Re- spondent raises any question whether this date is correct and therefore I will utilize this period for the determina- tion of majority status. The General Counsel and Re- spondent introduced as Joint Exhibit 2 a list of 36 em- ployees on whom they could agree would fall within Re- spondent's presumptively appropriate production and maintenance bargaining unit . Four unit employees were not listed because their status as a unit employee was dis- puted by the General Counsel . On brief, the General Counsel acknowledges that two of these employees, Ralph Whiting and Jeffery Klein , should be included within the unit . He contends on brief that employee Donald Frakes cannot lawfully be included within the unit and urges that there is a question whether Nick Kalti Jr should be so included. On the issue of Frakes' includability within the bar- gaining unit, the testimony of George Kaylor, Respond- ent's vice president , is critical . Kaylor testified that Frake's position is that of a production scheduler/- expeditor, with no ownership interest in the Company. He is a salaried rather than hourly employee . He sched- ules materials through the shop , writes up orders for pur- chases, and expedites the flow of material from the be- ginning of production to the end of production . Frakes spends essentially all of his time in the office doing pa- perwork. All the other employees that would be includ- ed within the bargaining unit are hourly employees. The regular hourly employees work 5 days a week often 6 days per week . Frakes works the same weekly hours as the shop employees but was not scheduled on a Saturday on a routine basis. Frakes was an employee of the old Lunkenheimer Company and had primarily the same po- sition. He was not in the bargaining unit at the old Lun- kenheimer Company. Based on the foregoing evidence and primarily the evi- dence that Frakes is salaried rather than paid hourly and spends virtually all of his time in the office doing paper- work with little or no contact with the bargaining unit members, I find that he would fall into the category of an office clerical employee rather than a member of the bargaining unit. Container Research Corp., 188 NLRB 586, 587 (1971). Nick Kalti Jr. is the son of one of Respondent's super- visors and stockholders . Kalti Jr. is a student who works full time in the summer and on a part -time basis during the school year. After working full time during the summer of 1984 , he worked at most 13 hours per week through the December 1984 payroll period and averaged approximately 7 hours per week . Kalti was the only part- time employee carried on Respondent 's payroll at the time in question and is still a part-time employee with the Company. Kalti works all the hours he is available to work-40 hours per week in the summer and during CINCINNATI BRONZE holidays and recesses. Kalti receives no fringe benefits unlike the other production and maintenance employees. The General Counsel argues that Kalti maintains a dif- ferent status with Respondent from other employees in that he is basically a part-time employee. He also stresses that Kalti receives no fringe benefits. However, Kalti is a regular part-time production and maintenance employee and performs the same work as other similar employees. Aside from his part-time basis, he shares a substantial community of interest with the other includible employ- ees, working as he does side by side with them facing the same working conditions. Under the circumstances, I find that he is properly includible it., the bargaining unit. I find then that the appropriate unit at the time of the Union's demand for recognition should consist of 39 em- ployees listed in Joint Exhibit 2, plus Whiting, Klein, and Kalti Jr. Of these employees, 20 were union members and were employed by old Lunkenheimer, either as active employees or active laid-off employees at the time of closing in June 1984. These 20 were identified as bar- gaining unit employees by the testimony of Howard Allen as well as old Lunkenheimer's computer records.' Allen's testimony indicated that James White may have been a bargaining unit employee at old Lunken- heimer. However, Joint Exhibit 3 stipulates that White was a supervisor within the meaning of Section 2(11) of the Act at old Lunkenheimer Company for the last 4 months of his employment there; that he was employed by the old Lunkenheimer Company from 1983 to the closing of the old Lunkenheimer facility in 1984; that he was a bargaining unit employee and member of the Union until he became a supervisor; and following his transfer into the supervisory position, he did not exercise whatever contractual rights he may have had to return to the bargaining unit. I therefore find that White was not a member of the bargaining unit at the close of old Lunkenheimer and was an unrepresented employee when hired by Respond- ent and would not count toward the union majority. Based on the foregoing, I find that 20 of 39 unit em- ployees were former union members and employees of old Lunkenheimer thus giving the Union the majority of Respondent's production and maintenance employee complement at the critical time. D. Are Retired and Laid-Off Former Old Lunkenheimer Employees Properly Counted Toward Majority Status? Respondent contends that those employees of old Lun- kenheimer on layoff status at the time of the closing or who retired thereafter are not properly includible as part of the "Union majority." Two individuals were clearly on layoff status at or near the closing of old Lunkenheimer. The parties stipu- lated that Richard French had been laid off by old Lun- kenheimer on 15 July 1983 and Dale Frye on 13 July I Dale Frye, John Powell, U Z Gutter, Michael Coldrion, Ronald Fehr, Richard French, Eugene Huston, Alvin Brucker, Walter Warefield, Fred Wilson, Grover Alsept, Oliver Cox Jr, Ralph Eagle, Joe Endress, Charles Fultz , Omer Groves, James Huff, Bruce Kramer, and Clifton McBride 45 1984. Neither was recalled prior to the closing. Two other employees, Michael Coldrion and Fredrick Wilson, also appear on the old Lunkenheimer list as being on layoff status as of closing. Coldrion, however, appears in the 29 April dues list indicating that he worked during that payroll period and Wilson appears on the 27 May dues list indicating that he worked just prior to closing. Respondent contends that the Union had abandoned French and Frye as evidenced by the Union's failure to obtain supplemental unemployment benefits or the $300 closure payment for these laid-off employees. It contends that the failure to include laid-off employees in S.U.B. payments is evidence that these employees had no expec- tation of continued employment and that the Union had no expectation of a continuity of a bargaining interest. The General Counsel points out the last collective-bar- gaining agreement in effect between old Lunkenheimer and the Union provided that "employees who were laid off due to lack of work shall be carried in the records of the Company for a period of one year without loss of se- niority rights . . . ." This 1-year period was extended to 2 years by the "Plant Closing Agreement." All four of the laid-off employees noted above were carried on old Lunkenheimer's seniority list and all appeared on the final payroll record on pages headed "Laid-Off Status- Hourly Payroll." The General Counsel disagrees that there is any evidence to indicate that any of the laid-off employees were laid off with no expectancy of recall. Although old Lunkenheimer closed before they were re- called, there is no showing that they would not have been recalled had business picked up. The Union's dues' reports submitted into evidence by Respondent show that numerous employees were being recalled from layoff status on a regular basis. The exhibit reflects that it appears to have been a continuous flux among employ- ees, with some being laid off as business conditions war- ranted and later recalled when business increased. The General Counsel urges that this indicates that recall from layoff was not only an expectancy for these employees but a reality, up until the closing itself. With respect to the "abandonment" argument, I do not find it persuasive. The failure of the Union to obtain sup- plemental unemployment benefits for both laid-off and active employees at the time of the closing of the plant does not constitute an abandonment of the laid-off em- ployees. At most, it merely constitutes a bargained-for benefit for the class of employees that was fortunate enough to receive the benefit. The Union also bargained for rights and benefits for the laid-off employees specifi- cally. It bargained for an extension of laid-off employees' seniority rights from 1 year to 2 years and bargained to conclusion a number of grievances for laid-off employees resulting in benefit payments to them. In short, I cannot find that the Union has in any fashion abandoned the laid-off workers and its actions in this case refute the contentions that it has lost interest in their continued well-being. Six members of the "Union majority " in the bargaining unit retired from old Lunkenheimer immediately or soon after its closing. Respondent urges that these six should be excluded from the alleged bargaining unit for pur- 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD poses of determining majority status because of thier re- tired status . In support of its position, Respondent cites Allied Chemical Workers Local 10 v. Pittsburgh Plate Glass Co., 404 U .S. 157 (1971), for its holding that retired indi- viduals are not "employees" within the meaning of Sec- tion 2(3) of the Act and that an employer need not bar- gain over certain benefits of already retired employees. The Supreme Court also held that retirees of a company could not be "employees" included in the Company's current bargaining unit . The analysis, however, of this case is inapplicable here . In successorship cases, a majori- ty status exists if the work complement is composed pri- marily of predecessor employees at the time of the demand. All the retired employees were employed until the closing of old Lunkenheimer and retired only after the closing . Pittsburgh Plate Glass, supra, involves adver- tisement of employee status of retired employees dealing with their status with the employer from which they re- tired. For that case to be applicable here, it would be necessary to determine the composition of the bargaining unit of old Lunkenheimer and not the bargaining unit of the Respondent in this proceeding . I agree with the Gen- eral Counsel's contention that if Respondent's position is accepted a retired person would be precluded from ever again becoming an employee under the Act. That is not the holding of Pittsburgh Plate Glass, supra. Respondent also argues that the retired employees should be excluded from the alleged bargaining unit with the Respondent because, according to the prior agree- ment between old Lunkenheimer and the Union , "an em- ployee will lose seniority with the company for the fol- lowing reasons: . . . 3. If he retires"; and "employees who have lost their seniority rights for any reason listed above and who are reemployed by the company at a later date, shall be considered new employees and shall be subject to serve a probationary period." The language in the old agreement relied on by the Respondent does not preclude retired employees from becoming "employees" of old Lunkenheimer if it is res- urrected. It merely states that they will have lost their seniority with the Company. As it does not preclude them from again becoming employees of old Lunken- heimer, it certainly cannot preclude them from becoming "employees" with the Respondent. Lastly, Respondent argues that the retired employees had no expectation of this continuity in the bargaining unit or otherwise they would not have retired . There is no evidence on this case that the retired employees, be- cause they have opted to receive a pension from old Lunkenheimer, have any different work-related interest or concerns than Respondent's other full-time production and maintenance employees or would have changed their attitudes toward or desire for continued union represen- tation. I cannot find that they are in any different status for purposes of determining the Union's majority status in Respondent's bargaining unit than the "laid-off' em- ployees at old Lunkenheimer or those employees who simply found themselves out of work when old Lunken- heimer shut it doors. Therefore, for the reasons set out above , Respondent's arguments with respect to retired and laid-off employees of old Lunkenheimer are rejected and I find that such are properly includible in the alleged bargaining unit of Respondent . Therefore, again, I find that as of the Union's demand for recognition , Respondent's produc- tion and maintenance bargaining unit contained 39 em- ployees, of whom 20 were former union members at old Lunkenheimer and should properly be counted toward the majority status of the Union. E. Statute of Limitation Defense Respondent urges that the complaint in this proceed- ing was filed after the statute of limitations had run. Sec- tion 10(b) of the Labor Management Relations Act pro- vides : "that no complaint shall issue based on any unfair labor practice occurring more than six months prior to the filing of the charge with the Board in the service of a copy thereof on the person against whom such charge is made." Where no charge is filed, the complaint has to be issued and served within the 6-month statute of limita- tion period provided in Section 10(b) of the Labor Man- agement Relations Act. On 21 December 1984 the Union filed two charges, Cases 9-CA-21591 and 9-CA-21591-2, against Cincin- nati Bronze, Inc. The suffix 2 charge was amended on 8 January 1985 , to eliminate Cincinnati Bronze as the Re- spondent and to substitute the Lunkenheimer Company therefore. The substantive allegations in this suffix were also changed in the amendment . The original suffix 2 dated 21 December 1984 was, because of the amend- ment, no longer under consideration and only the 8 Janu- ary 1985 "Lunkenheimer" suffix 2 charge (along with the original suffix 1 charge against Respondent) were subject to determination by the Regional Director. The amended suffix 2 charge was dismissed by the Re- gional Director 8 February 1985. The dismissal letter states, in pertinent part , as follows: The investigation failed to establish that the em- ployer (Lunkenheimer) is a joint employer with, or an alter ego of, either Cincinnati Bronze, Inc. or Condec Corporation. In this connection, it was noted that the employer is a new entity. Although the employer is located in a part of the facility for- merly occupied by the Lunkenheimer Company, A Division of the Condec Corporation whose employ- ees were represented by the Union, the Employer does not employ any union members . Moreover, it is not engaged in the same type of business as the Condec Corporation and there is no common own- ership or control of labor relations of the two cor- porations. Finally , the only apparent connection the employer has with Cincinnati Bronze, Inc. is one of its customers. None of the findings of the Regional Director set forth are at issue in this case. Nor are those findings in any manner determinative of the allegations set forth in the suffix 1 charge . The suffix 1 charge, which was clearly filed within the 6-month limitation period, is the charge which forms the basis for the complaint issued by the Regional Director in this proceeding. The suffix 2 charge, as amended, does not bring into focus the issue of whether Cincinnati Bronze, Inc. was a successor to CINCINNATI BRONZE the old Lunkenheimer Company, the matter for determi- nation here. Thus, the refusal to issue a complaint in the suffix 2 case is not a determination of the issue of succes- sorship related to Cincinnati Bronze, Inc. I find that the suffix 1 charge properly supports the complaint issued in this proceeding. As that charge was filed less than 6 months after the date of the alleged unfair labor practice, the limitations defense is without merit. F. Should Old Lunkenheimer.c Contract Apply to Respondent? The General Counsel has urged rs the proper remedy in this proceeding that Respondent be ordered to recog- nize the Union and, on request, bargain in good faith with the Union as the representative of the employees in the appropriate bargaining unit of its production and maintenance employees. In addition to the remedy re- quested by the General Counsel, the Union has requested that Respondent be bound by the terms of the old collec- tive-bargaining agreement existing between it and old Lunkenheimer and be responsible for backpay and other remedial benefits to the employees for its refusal to comply with the terms of that agreement since 11 De- cember 1984. I disagree with the position of the Union. There is no contention and there is no proof in this record that Respondent is the alter ego of the old Lun- kenheimer Company and no reason exists for Respondent to automatically be subject to the terms and conditions of the old bargaining agreement. In view of the overall circumstances, I conclude that the General Counsel has established that Respondent is a successor corporation to old Lunkenheimer and that at the time of the Union's demand for recognition, the Union had a majority status in the presumptive bargain- ing unit of the Respondent. Accordingly, I find that the Respondent, by its refusal to recognize the Union and bargain as requested, has violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees of Cin- cinnati Bronze, Inc. at its Cincinnati, Ohio facility, excluding all office and clerical employees, guards, professional employees and supervisors as defined in the Act. 4. At all times material, the Union has been the exclu- sive collective-bargaining representative of the employ- ees in the described unit set forth above. 5. Respondent is a legal successor for labor relation purposes to the Lunkenheimer Company, a Division of Condec Corporation, in the operation of its business in Cincinnati, Ohio. 47 6. Since about 11 December 1984, and at all times thereafter, Respondent has failed and refused to recog- nize and bargain collectively in good faith with the Union as the exclusive representative of Respondent's employees in the unit described above, and therefore has engaged in, and is engaging in, unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I find it necessary that it be ordered to cease and desist therefrom and, on request, bargain collectively with the Union as the exclu- sive representative of all unit employees in the appropri- ate unit. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Cincinnati Bronze, Inc., Cincinnati, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and, on request, bargain collectively in good faith with United Steelwork- ers of America, AFL-CIO as the exclusive bargaining representative of its employees in the following unit: All production and maintenance employees of Cin- cinnati Bronze, Inc. at its Cincinnati, Ohio facility, excluding all office and clerical employees, guards, professional employees and supervisors as defined in the Act. (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) Recognize and, on request, bargain in good faith with the above-named Union as the exclusive bargaining representative of its employees in the unit found appro- priate respecting rates of pay, hours of work, or other terms and conditions of employment and, if an agreement is reached, embody it in a written and signed contract. (b) Post at its Cincinnati, Ohio facility, copies of the attached notice marked "Appendix." Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent 2 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. 9 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." 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD immediately upon receipt and maintained for 60 consecu- that the notices are not altered, defaced, or covered by tive days in conspicuous places including all places any other material. where notices to employees are customarily posted . Rea- (c) Notify the Regional Director in writing within 20 sonable steps shall be taken by the Respondent to ensure days from the date of this Order what steps the Re- spondent has taken to comply.