Roanwell Corp.

20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Roanwell Corporation and Local 463, International Union of Electronic, Electrical, Technical, Sala- ried, and Machine Workers, AFL-CIO Case 2- CA-22600 February 28, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 3, 1988, Administrative Law Judge Raymond P Green issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief, the General Counsel filed cross-ex ceptions and briefs in support and in answer to the Respondent's exceptions, and the Union filed a brief in answer 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, and conclusions' and to adopt the recommended Order AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 4 "4 By polling or otherwise interrogating its em- ployees to ascertain their union views in the ab sence of objective considerations warranting a rea- sonable doubt as to the Union's continuing majori- ty status as the collective-bargaining representative of the majority of its employees, the Respondent has violated Section 8(a)(1) of the Act " DECISION STATEMENT OF THE CASE RAYMOND P GREEN, Administrative Law Judge This case was heard by me on June 21 and 22, 1988 The charge in this case was filed on December 28, 1987, and the complaint was issued on February 29, 1988 The complaint alleged as follows 1 That for many years a company called Roanwell maintained a collective bargaining relationship with the Union 2 That on or about November 6, 1987, the Respond ent purchased the assets of Roanwell and kept the Com pany s name 3 That since on or about November 16, 1987, the Re spondent has been a successor having an obligation to recognize and bargain with the Union 4 That since December 9, 1987, the Respondent has refused to recognize or bargain with the Union 5 That on or about December 21 1987 the Respond ent in violation of Section 8(a)(1) of the Act, conducted a coercive poll about whether its employees wished to be represented by the Union 6 That on or about December 21, 1987, the Respond ent promulgated a rule prohibiting employees from dis cussing the Union prior to the holding of the poll Based on the entire record in this case, including my observation of the demeanor of the witnesses, and after considering the briefs filed by counsel, I make the fol lowing FINDINGS OF FACT I JURISDICTION At the hearing the Respondent admitted and I find, that it is engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act It also is conceded and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Roanwell Corporation, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order ' We will amend the judge s Conclusions of Law to track his findings recommended Order and notice Gwynne A Wilcox Esq, for the General Counsel Harry N Turk Esq (Epstein Becker & Green), of New York, New York for the Respondent David Jaffe Esq of New York New York for the Union II UNFAIR LABOR PRACTICE A Operative Facts Roanwell was a subsidiary of High Voltage Engineer ing Corp and for 20 years has had successive collective bargaining agreements with the Union The last contract ran from February 15 1985, to February 14 1988 The Company s operations were carved out on two floors of a building located on 180 Varick Street in New York City Basically, its business was to design and manufac ture certain types of telecommunication devices for com mercial and military uses The bargaining unit set forth in the contract was All direct production maintenance shipping and re ceiving employees, including chauffeurs, and engi neering technicians, but excluding all executive sales people administrative and clerical employees Methods Engineers Time Study Men guards, and supervisors as defined in the Act 293 NLRB No 3 ROANWELL CORP 21 By the end of 1986 High Voltage Engineering was seeking to sell Roanwell It also had decided that if no customer could be found, Roanwell would be liquidated The Union became aware of these plans sometime in the spring of 1987 when Roanwell laid off 19 employees Peter Rutkowski became interested in buying Roan well and entered into negotiations with High Voltage Engineering in September 1987 He testified that he planned to limit volume, and to concentrate on custom ized products with higher margins of profit He decided to use the same name for the Company, to keep its oper ations in the same building, and to buy the existing pat ents He also decided to retain many of Roanwell s exist ing employees, including its supervisory, engineering, and technical staff On September 9, 1987, Peter Rutkowski notified the Union and the employees that he intended to purchase Roanwell on September 25, and intended to retain the company name The employees were also told that the new company did not intend to adopt the union contract and that it intended to have a work force of about 14 employees consisting primarily of shipping and inspec tion employees for a period of about 6 months On or about September 16, 1987, the Unions presi dent, James Trenz, met with Rutkowski where he re quested that Rutkowski, when he took over the business, assume the existing contract between the Company and the Union On November 4, 1987, Rutkowski posted a notice at the facility advising the employees that he would be buying the business on November 7 The notice invited the employees to fill out employment applications for the new company It also set forth three job classifications (assembly/machine shop, inspection and shipping) with a range of wage rates from $7-$10 per hour The notice specifically notified the employees that Rutkowski was not adopting the union contract Immediately prior to Ruthowski s takeover, Roanwell employed about 30 to 35 production and maintenance employees in three basic departments (1) assembly, (2) shipping and receiving, and (3) inspection On execution of the purchase agreement, Roanwell laid off all of its employees on November 6 On the takeover the Respondent, on November 9 began hiring employees Virtually all the initial group of employees hired were previously employed by Roanwell and consisted of bargaining unit employees as well as en gineering sales and clerical employees who had not been represented by the Union The evidence in this case shows that the new company began operations immediately after the purchase without a hiatus and that it manufactured and sold essentially the same products as the predecessor using the same patents, the same methods the same employees and the same su pervision Additionally the evidence shows that the pur chaser s operations were carried out at the same location albeit it consolidated its operations from two floors to one On November 11, Trenz, on behalf of the Union, again made an oral request for recognition that was declined The old Company had its operations on the 12th and 13th floors of a building located at 180 Varick Street In mid December 1987, the new company began consolidat ing by moving the 12th floor operations to the 13th floor This apparently took about 2 1/2 months and was completed at the end of February 1988 i According to Lech Poradowski, a manager of the Re spondent (performing essentially the same functions as he did in the prior company), although the new company began operating immediately after the takeover, it took about 3 months to get into `full swing" (i e, the end of February) On the other hand, he also testified that the task of consolidating the operations on the 13th floor had a minimal impact on the Company s sales and manufac turing On November 10, 1987, when the new company began operations, it employed 13 employees in job categories covered by the old company s collective bargaining agreement All the employees hired by the new company at that time in these job classifications were previously employed by the old company (One of these employees Sophie Fox was subsequently promoted to a supervisory position) Also 16 other nonbargaining unit employees were hired from the former company These were in job categories such as clerical, supervision, sales, and engi neenng Indeed, other than Peter Rutkowski, the new owner and president, all the employees hired during the first week of the Respondents operations were employed by the predecessor After the second week of operations, a small number of new employees were hired Thus the payroll records for the week ending December 5, 1987, show that three employees were hired as assemblers none of whom had been employed by the predecessor The payroll records for the week ending December 19 show that one new employee was also hired as an assembler and had not worked for Roanwell By the end of the consolidation at the end of Febru ary, the payroll records for the weeks ending March 4 and 18, 1988, show that a total of 15 employees occupied jobs in categories covered by the old collective bargain ing agreement Of these, 10 had been employed by Roan well before the sale2 and 5 were new employees hired after the sale 3 From the payroll records received in evidence it seems that the highest number of unit employees em ployed by the Respondent after the commencement of its operations and before this hearing was 18 This number is reflected in the payroll records dated June 24, 1988, some 7 months after the takeover (As of June 24 seven employees in unit jobs had previously been employed by Roanwell ) i During the time of the move the Company hired a number of em ployees on a temporary basis to assist in the move These people were classified as handymen and included James Brest Edmond Rosy Ronald Thompson Luis Rojas Santos DeLeon and Miguel Rodriguez After the move was completed Rodriguez was hired as a permanent employee The evidence also shows that on a normal basis the Company uses only one handyman 2 These were Enca Butler Pablo Santiago George Banks Elaine Caffey Tirso Dela Rosa Julia Henschke Catalina Nieves Gladys Padua Josephina Rosario and Belle Ruthinoski 9 These were Rafael Soto Brunilda Vega Milagros Velasquez Esca lante Vianela and Maria Cruz 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On December 9 1987, Trenz made a written request for recognition and restated his assertion that the Union represented a majority of the workers On December 21 the Respondent conducted a poll of its hourly paid employees In this respect, a meeting was called in the shop where the employees were each given a blank ballot and asked to mark whether they wished to be represented by the Union The choices on the ballot were yes or no and the employees were in structed to separately go into another room to mark their ballots and place them in a sealed ballot box The man agement did not express any preference which way it wanted the employees to vote, the vote itself was secret and the results were never disclosed to the employees On the other hand the employees were not told the pur pose of the poll and were not given explicit assurances that no reprisals would take place When one of the em ployees asked if they could discuss the issue before the poll was conducted she was told no The outcome of the poll was that 12 voted no (against union represen tation) and 3 voted yes According to Rutkowski he decided to hold the poll in order to determine the accuracy of the Union s claim to represent a majority of the employees as stated in the Union s letter of December 9, 1987 There was however, no evidence that Respondents management was in formed by any of the employees prior to the poll that they did not want to be represented by the Union At most, Rutkowski asserted that he thought the employees did not want union representation because they seemed to be happy with the new terms and conditions of em ployment that he put into effect when he took over the Company On December 22, Trenz sent another letter to Rut kowski asking for recognition In response, by letter dated December 28 Rutkowski stated In response to your letters of December 9 and De cember 22 1987 we have objective reasons for be lieving that the majority of our employees are not interested in representation by your Union There fore we have no obligation to enter into collective bargaining B Discussion Were it not for the fact that Peter Rutkowski was will ing to gamble on acquiring the failing business of Roan well that company likely would have been liquidated and all of its employees would have lost their jobs Yet despite the undeniable social value of this kind of enter prise the person who embarks on the venture must still learn and play by the rules of the game In Fall River Dyeing Corp v NLRB, 482 U S 27 (1987), the Supreme Court held that the purchaser of a business will be obligated to recognize and bargain with a union representing the employees of the seller if the new employer maintains the business with substantial continuity and hires a majority of its employees from the predecessors work force The Court held that the successors obligation to bargain would not be limited to situations in which the Union had recently been certified and it went on to say that the union s rebuttable pre sumption of majority status would continue despite the change in employers so long as the new employer is in fact a successor of the old employer and the majority of its employees were employed by the predecessor Fur ther the Court rejected the company s contention that the majority determination must be made only when the successor has attained a full complement of employees Instead, the Court concluded that a successors obliga tion to bargain would be triggered at the point in time when it attained a substantial and representative com plement of employees In the present case, the new Roanwell is involved in essentially the same business as the old Roanwell The fact that the new company has downsized the business and has pruned the variety of products sold does not, to my mind, detract from the conclusion that the company, after the takeover, has been operated with substantial continuity as the predecessor Thus, although the new company may sell fewer types of products, the products it does sell are the same as those sold by the old compa ny and they are sold to essentially the same customers The new company is located at the same premises, uses essentially the same methods, has the same patents and uses basically the same categories of employees as the predecessor (In fact many of the new company s engi neering and technical employees were employed by the old company) Further the evidence shows that there was virtually no hiatus between the operations of the business when it was taken over The Respondent argues that at the time of the hearing in this case (7 months after the takeover) the new com pany had not yet attained a representative complement of employees Alternatively it contends that a represent ative complement was reached at the earliest by May 1988 when (because of turnover) a majority of the new company s hourly paid employees had not previously been employed by the predecessor I do not agree with either contention Prior to the takeover, the old company employed about 30-35 hourly paid employees The new employer s plan contemplated downsizing the operations of the Company in order to make it profitable Therefore it is apparent that its full complement was intended to be somewhat smaller than what the old company had been immediately prior to the takeover The testimony of Lech Poradowski was that it took about 3 months for the new company to get into full swing " At that point (by the end of February 1988 after the consolidations move) the Company s payroll records show that there were 15 people employed in jobs that had been covered by the collective bargaining agreement with the old company Thereafter the number of hourly paid employ ees did not change significantly and the range of em ployees from that time to the time of the hearing was be tween 16 and 18 The fact is that the new company commenced oper ations immediately on taking over the assets of the pred ecessor and all of its 13 hourly paid employees had been previously employed by the old Roanwell Although the new company at the outset of its operations may not have had a full complement or been in full swing,' ROANWELL CORP there is no doubt that it immediately attained a substan tial and representative complement of employees on the commencement of its operations Even the move of the two floors into one did not have any significant impact on the Company s operations Based on the above, I therefore conclude that the Re spondent became a successor no later than the first week of its operations in November 1987, that a majority of its hourly paid work force had previously been employed by the predecessor, and that the Respondent at that time, had an obligation to recognize and bargain with the Union The Respondent argues that even if a bargaining obli gation was triggered in November when it took over the business, the Union enjoyed only a presumption of ma jority status which was subsequently rebutted when an election was held on December 21, 1987 The General Counsel contends that this poll was itself unlawful and therefore cannot be used as evidence to support the Em ployer s claim that it had a good faith doubt as to the Union s majority status In Harley Davidson Transportation Co, 273 NLRB 1531 (1985), the Board held that where a successorship situa tion develops, the Union, although enjoying a presump tion of majority support, may have that presumption re butted The Board held that a successor may lawfully withdraw from negotiations at any time following recog nition if it can show that the Union had in fact lost its majority status at the time of the refusal to bargain or that the refusal to bargain was grounded on a good faith doubt based on objective facts that the union continued to command majority support The only evidence on which the Respondent can rely to establish a good faith doubt is the poll it conducted on December 21 Yet prior to that poll, there is no evidence that any employees expressed any dissatisfaction with the Union or with union representation Thus apart from the poll itself, there is no objective basis on which the Em ployer could have grounded a doubt as to the Union's majority status In Struksnes Construction Co 165 NLRB 1062 (1967) the Board set forth a set of criteria to determine whether an employers poll constituted interference with the rights of employees as defined in Section 7 of the Act These were 1 The purpose of the poll is to determine the truth of a union s claim of majority status 2 This purpose is communicated to the employees 3 Assurances against reprisals are given 4 The employees are polled by secret ballot 5 The employer has not committed unfair labor prac tices or otherwise created a coercive atmosphere In Mingtree Restaurant v NLRB 736 F 2d 1295 (9th Cir 1984) the court held that an employer did not vio late the Act when it conducted a poll in conformity with the Struksnes standards after recognition had been grant ed and therefore at a time when the Union had a rebutta ble presumption of majority support Although the court differed in some degree with the Boards holding in Montgomery Ward & Co 210 NLRB 717 (1974), the court nevertheless held that in order to conduct a poll an 23 employer must have some objective evidence for doubt Ing the union s continued support The court stated We believe that polling can be a useful and legiti mate tool for the employer who is in sincere doubt of the union s majority status We therefore hold as did the Fifth and Sixth Circuits, that as long as the employer complies with the Struksnes conditions and procedural safeguards it may poll its employees to determine their union sentiment if it has substan tial, objective evidence of a loss of union support even if that evidence is insufficient by itself to justi fy withdrawal of recognition , and if it has given the union notice of the time and place of the poll In the present case, the Union having repeatedly de manded recognition the new employer may very well have sincerely wondered if its new employees wanted to be represented by the Union Nevertheless, while it is evident that the Employer tried to make to the poll non coercive, the evidence shows that it did not give assur ances against reprisals Moreover, there is simply no evi dence that the Employer had any objective basis for doubting the Union s majority support in a group of em ployees who for about 20 years, had been continuously represented by the Union 4 I therefore conclude that the Employer by conducting the poll on December 21 interfered with its employees Section 7 rights I also conclude that the results of the poll may not be used to justify the Employer's refusal to recognize and bargain with the Union Louisiana Pacific Corp, 283 NLRB 1079 (1987) The General Counsel also contends that the Employer promulgated a rule prohibiting employees from discuss ing the issue of union representation prior to the holding of the poll described above This allegation is based on testimony that just prior to the poll one of the employ ees asked if they could discuss the issue and the Employ er said no It is rather obvious that the Employer wanted to con duct the poll without fuss and as quickly as possible It also is obvious that this was a one shot event I simply cannot construe this transaction as supporting any con tention that the Employer made any rule much less a rule prohibiting union discussion I therefore shall recom mend that this allegation be dismissed CONCLUSIONS OF LAW 1 Roanwell Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 4 In Fall River Dyeing Corp v NLRB supra the Court noted If the employees find themselves in a new enterprise that substan tially resembles the old but without their chosen bargaining repre sentative they may well feel that their choice of a union is subject to the vagaries of an enterprise s transformation This feeling is not con ducive to industrial peace In addition after being hired by a new company following a layoff from the old employees initially will be concerned primarily with maintaining their new jobs In fact they might be inclined to shun support for their former union especially if they believe that such support will jeopardize their jobs with the successor or if they are inclined to blame the union for their layoff and problems associated with it 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 By refusing to recognize and bargain with the Union as the exclusive collective bargaining representa tive of the employees in the unit described below, the Respondent has violated Section 8(a)(1) and (5) of the Act 4 By conducting a poll on December 21, 1987 to de termine whether its employees wished to be represented by the Union, the Respondent interfered with the rights of its employees as set forth in Section 7 of the Act 5 The Respondent has not violated the Act in any other manner as alleged in the complaint 6 The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 7 The appropriate bargaining unit consists of All direct production, maintenance, shipping and re ceiving employees, including chauffeurs and engi neering technicians but excluding all executive sales people, administrative and clerical employees, Methods Engineers, Time Study Men, guards and supervisors as defined in Section 2(11) of the Na tional Labor Relations Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed5 ORDER The Respondent Roanwell Corporation New York New York, its officers agents successors and assigns shall 1 Cease and desist from (a) Refusing to recognize and bargain collectively with Local 463 International Union of Electronic Electrical Technical Salaried and Machine Workers, AFL-CIO as the exclusive collective bargaining representative of its employees in the following appropriate unit All direct production maintenance, shipping and re ceiving employees including chauffeurs and engi neering technicians but excluding all executive sales people, administrative and clerical employees Methods Engineers Time Study Men guards and supervisors as defined in the Act (b) Polling or otherwise interrogating its employees to ascertain their union views in the absence of objective considerations warranting a reasonable doubt as to the Union s continuing majority status as the collective bar gaining representative of the majority of its employees (c) 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 5 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 with the Union as the exclusive representative of the employees in the appropriate unit as described above, concerning terms and conditions of employment and, if an understanding is reached embody the understanding in a signed agreement (b) Post at its office in New York, New York, copies of the attached notice marked Appendix 6 Copies of the notice on forms provided by the Regional Director for Region 29, after being signed by the Respondent s authorized representative shall be posted by the Re spondent immediately upon 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 the Respond ent to ensure that the notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 6 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 Section 7 of the Act gives employees these rights To organize To form join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT refuse to recognize and bargain collec tively with Local 463, International Union of Electronic, Electrical, Technical Salaried and Machine Workers, AFL-CIO as the exclusive collective bargaining repre sentative of our employees in the following appropriate unit All direct production, maintenance shipping and re ceiving employees, including chauffeurs, and engi neering technicians but excluding all executive sales people, administrative and clerical employees, Methods Engineers, Time Study Men guards and supervisors as defined in the Act ROANWELL CORP WE WILL NOT poll or otherwise interrogate our em ployees to ascertain their union views in the absence of objective considerations warranting a reasonable doubt as to the Union s continuing majority status as the collec tive bargaining representative of the majority of our em ployees in the above described unit WE WILL NOT in any like or related manner interfere with restrain, or coerce our employees in the exercise of their rights guaranteed them by Section 7 of the Act 25 WE WILL on request bargain with the Union as the representative of our employees in the bargaining unit described above, concerning terms and conditions of em ployment and, if an understanding is reached, embody the understanding in a signed agreement ROAN WELL CORPORATION