Rtw Industries, Inc.

910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD RTW Industries, Inc. and United Steelworkers of America, AFL-CIO. Case RTW Industries, 25- CA-1918925-CA-19189 September 29, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On July 7, 1989, Administrative Law Judge Donald R. Holley issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge 's rulings, findings,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, RTW Indus- tries, Inc., Muncie, Indiana, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order. ' The Respondent has requested oral argument The request is denied as the record , exceptions, and briefs adequately present the issues and the positions of the parties 2 We note that W & W Steel Co., 232 NLRB 74 ( 1977), cited by the judge, was denied enforcement at 599 F.2d 934 ( 10th Cir 1979). Ann Rybolt, Esq., for the General Counsel. Scott E. Schockley, Esq. (Defur, Voran, Hanley, Radcliff & Reed), of Muncie, Indiana, for the Respondent. Donald Turner, International Representative, for the Union. DECISION STATEMENT OF THE CASE' DONALD R. HOLLEY, Administrative Law Judge. Upon a charge filed by the above-named Union on March 7, 1988, the Regional Director for Region 25 of the National Labor Relations Board issued a complaint on April 19, 1988, which alleged, in substance, that RTW Industries, Inc. (the Respondent or RTW) is the successor to Bristol Steel Corporation, Indiana Bridge Division, and has violated Section 8(a)(1) and (5) of the National Labor Relations Act since February 5, 1988, by refusing to recognize and bargain with the Union as the exclusive bargaining representative of its production and maintenance employees. The case was heard in Muncie, Indiana, on October 4 and 5, 19882 All parties appeared and were afforded full opportunity to participate . On the entire record, includ- ing the briefs filed by the parties, and from my observa- tion of the demeanor of the witnesses who appeared to give testimony, I make the following FINDINGS OF FACT 1. JURISDICTION Jurisdiction is not in dispute. Respondent, an Indiana corporation, maintains its prin- cipal office and place of business at 1810 South Macedo- nia Avenue, Muncie, Indiana, where it is engaged in the fabrication, distribution, and sale of steel products. During the period extending from June 22, 1987, to April 19, 1988, it sold products, goods, and materials valued in excess of $50,000 to customers located outside the State of Indiana, and, during the same period, it pur- chased products, goods, and materials valued in excess of $50,000 from points located outside the State of Indiana. It is admitted, and I find, that Respondent is an employer engaged in commerce with the meaning of Section 2(2), (6), and (7) of the Act. II. STATUS OF LABAOR ORGANIZATION It is admitted, and I find, that United Steelworkers of America, AFL-CIO, is a labor organization with the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES From 1978 until April 10, 1987, Bristol Steel Corpora- tion owned and operated a structural steel plant in Muncie, Indiana. The production and maintenance em- ployees who worked at the plant had been represented by the Union before Bristol obtained the plant, and it continued to recognize and maintain contractual relations with the Union during the time it operated the plant. The most recent contract was entered on October 1, 1983, and was to expire on September 30, 1989. During Bristol's ownership of the plant, it was primari- ly engaged in the fabrication of structural steel items such as beams, columns , and trusses which form the skel- etal framework for bridges, high-rise buildings, and other structures which were to be erected. Terrence Warner, the plant manager of the Muncie plant during the entire time it was operated by Bristol, indicated that Bristol's corporate office, located in Bristol, Virginia, handled the sales, marketing, engineering, and accounting for the op- eration and the main function performed at the plant was the manufacture and shipment of the structural steel products. According to Warner, Bristol dealt primarily with owners and with governmental bodies as opposed to manufacturing structural items for other companies. During the years 1982 and 1983, the Muncie plant was closed, and only Warner and a few additional employees were retained. Operations were eventually resumed, and by the fall of 1986 some 110-120 production and mainte- ' All dates are in 1987 unless otherwised indicated. 2 General Counsel 's motion to correct transcript , which is unopposed, is granted 296 NLRB No. 116 RTW INDUSTRIES nance employees were employed at the plant . In October of that year, Warner was informed Bristol had decided to close all 12 of its plants because the market for struc- tural steel had declined and future prospects for the in- dustry were dim . Warner was informed the Muncie plant would close in about 6 months . Thereafter, on February 6, 1987, Bristol formally announced it intended to perma- nently close its St. Louis and Muncie plants as soon as possible. Following the announcement, the Muncie plant completed existing orders for product and laid off em- ployees as the various departments in the plant complet- ed their work on orders. Major layoffs occurred on March 5 and 19 and April 2 . With exception of a mainte- nance employee, all remaining production and mainte- nance employees were laid off on April 10. Warner negotiated a plant closing with the Union and the parties reached agreement on a plant closure agree- ment which, among other things, terminated the subsist- ing collective-bargaining agreement between Bristol and the Union. Bristol's plan, as of the time of closing the facility was to sell the plant and equipment at an auction which was to be held several months hence. In April 1987, Warner became acquainted with Ravi Talwar, a former General Electric executive who had managed a plant in Saudi Arabia for several years. Tal- war's experience had been in the manufacture of fabricat- ed steel products, and he and Warner explored the market for such products by visiting Westinghouse Elec- tric Corporation's Muncie plant for which Bristol had manufactured 177 tons of transformer end frames and core parts for the sum of $446,220 during the last year it operated the Muncie plant. Additionally, they visited Otis Elevator, Wellman Thermal Systems, and other companies to ascertain their chances of obtaining orders for fabricated steel products. At some point in April, Warner invited approximately 15 former Bristol production employees to attend a meet- ing at which he and Talwar would discuss the possibility that they might purchase the Muncie plant and equip- ment. While the skills the employees could provide were discussed, and the possibility of a purchase was dis- cussed, no promises of employment were made to the employees. RTW was incorporated on May 14, 1987, by Talwar and Warner. The former subscribed 60 percent of its stock, and Warner subscribed the remaining 40 percent. By agreement dated May 31, RTW agreed to purchase all of the assets of Bristol's Muncie plant for $330,000. Of this, $ 10,000 was allotted for land ; $ 140,000 for buildings; and $180,000 for machinery and equipment. Included in the purchase was the right to use the business name Indi- ana Bridge as the name dated back to the late 1800's and Respondent wished to avail itself of the goodwill afford- ed by the name . Under the terms of the purchase sale contract, Respondent also obtained some 750 tons of un- fabricated steel inventory then in the plant. At the same time it entered the agreement to purchase the asserts of the Muncie plant, Respondent entered a lease agreement with Bristol which was to remain in effect until the purchase was closed. It hired its first em- 911 ployee on June 10 and cut its first steel on June 22. The purchase was consummated on July 17, 1987. It is undisputed that Respondent staffed its newly ac- quired plant by hiring managerial and supervisory em- ployees who had previously been employed by Bristol, and by employing, in main, production and maintenance employees who had also previously been employed by Bristol. Thus the managerial and supervisory hierarchy included : Talwar, Respondent's president, whose duties were to include sales, marketing, and finance; Warner, Respondent's vice president and secretary , who was to be responsible for personnel and production as he was with Bristol ; Michael Delk, Bristol's plant superintendent since 1984, who was to serve in the same capacity with Respondent; Paul Brummett, a 15-year assembly depart- ment supervisor with Bristol, who was to perform the same function as a working leader for Respondent; Sharon Doer, a clerical who handled the payroll for Bristol, who was to be Respondent's accounting clerk; Joan Winkle, a buyer for Bristol, who was to be Re- spondent's buyer; and Frank Ford, formerly Bristol's chief engineer and person in charge of quality control, who was to serve Respondent in the same capacity. By January 11, 1988, Respondent had hired 43 em- ployees who could be classified as production and main- tenance employees at the Muncie plant . Thirty of those hired had previously been bargaining unit employees while employed by Bristol. At all times subsequent to January 11 , 1988, more than half of the production and maintenance employees employed at the facility had pre- viously been employed as unit employees by Bristol at the Muncie plant. By letter dated February 5, 1988, the Union claimed it was "rightfully the collective bargaining representative of the employees" at the Respondent 's Muncie plant and it demanded that Respondent meet with it to discuss the terms and conditions of employment of the employees. By letter dated February 11, 1988, Respondent informed the Union "Your union is not the collective bargaining representative of our employees, and we have no obliga- tion to meet with you." At the time Respondent em- ployed 35 employees, 27 of whom had been former Bris- tol bargaining unit employees. On March 7, 1988, the Union filed the charge in this case alleging that Respondent was the alter ego and/or successor of Bristol Steel Corporation and had , by refus- ing to bargain with it since February 11, 1988, violated Section 8(a)(1) and (5) of the Act. The issues posed by the pleadings are: whether the unit set forth in the complaint is an appropriate unit; whether the Union made a legally sufficient demand for recognition and bargaining; and whether there was conti- nuity in the employing industry. A. The Appropriate Unit Paragraph 5(a) alleges the appropriate unit to be: All production and maintenance employees em- ployed by the Respondent at its Muncie, Indiana fa- cility, BUT EXCLUDING all officers, executives and direct representatives of the Company, all 912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD office employees, clerical employees, engineers, draftsmen, erectors, members of other unions, super- intendents, assistant superintendents , foremen and other supervisors as defined in the Act. Respondents answer denies paragraph 5(a) of the com- plaint. It is well settled that a single plant unit of production and maintenance employees is presumptively an appro- priate unit for bargaining . Here, the record reveals that Bristol, during the 10-year period it owned and operated the Muncie plant, recognized and bargained with the in- stant Union as the exclusive bargaining representatives of its production and maintenance employees . Moreover, the record reveals that Respondent's current vice presi- dent, Warner, represented Bristol during negotiations with the Union, and it was he who executed the agree- ments which were reached. Finally, the record reveals that Respondent employs basically the same classifica- tions of employees previously employed by Bristol, and it reveals those employees perform their duties at a single location. Noting Respondent offered no evidence which would tend to show the unit under discussion is an inappropri- ate unit, I find the unit described in paragraph 5(a) of the complaint to be an appropriate unit. B. The Demand for Recognition Paragraph 5(e) of the complaint alleges, in substance, that by letter dated February 5, 1988, the Union demand- ed that Respondent recognize and bargain with it as the representative of employees in the unit described in para- graph 5(a) of the complaint. In its answer, Respondent merely admitted the Union's February 5 letter contained the wording set forth in the letter and thereafter denied the legal conclusion that by sending the letter the Union made appropriate demand for recognition and bargaining. Significantly , Respondent does not contend in its posthearing brief that the Union failed to make an appropriate demand for recognition and bargaining. In Al Landers Dump Truck, 192 NLRB 207, 208 (1971), the Board discussed the sufficiency of a demand for recognition and bargaining, stating: The Board and the courts have repeatedly held that a valid request to bargain need not be made in any particular form, or in haec verba, so long as the re- quest clearly indicates a desire to negotiate and bar- gain on behalf of the employees in the appropriate unit concerning wages, hours, and other terms and conditions of employment. . . . [Accord: Marysville Travelodge, 233 NLRB 532-533 (1977); Trucking Water Air Corp., 276 NLRB 1401, 1407 (1985).] As indicated, supra, Respondent's vice president Warner represented Bristol in labor relations matters in- volving its Muncie plant and he was fully aware of the fact that the Union represented Bristol's production and maintenance employees at the plant during Bristol's tenure of ownership. Moreover, Respondent's president, Talwar, indicated during his testimony that he was aware the Union had represented Bristol's employees prior to the time he and Warner purchased the land, buildings, machinery, and equipment from Bristol. In the circumstances described , I find that when the Union claimed it represented the employees at Respond- ent's facility located at 1810 South Macedonia Avenue, Muncie, Indiana, and indicated it desired to meet with Respondent to "discuss the terms and conditions of em- ployment of those employees ," Warner, the addressee to whom the letter was sent, was fully aware that the Union was referring to the employees it had represented when the plant was owned and operated by Bristol. Indeed, I note that Talwar's reply to the Union's Febru- ary 5 letter failed to make any reference to any lack of specificity in the demand letter; instead, Talwar merely informed the Union Respondent was "not affiliated in any way with Bristol Steel . . . and had no obligation to meet with the Union for that reason." In sum, as Warner was fully aware of the scope of the unit represented by the Union during the time Bristol owned and operated the Muncie plant, and Talwar's re- sponse to the Union's letter reveals he treated it as a demand for recognition and bargaining, I find the Union's February 5 letter constituted an appropriate demand that Respondent recognize and bargain with it as the representative of production and maintenance em- ployees then employed by Respondent at the Muncie plant. C. Substantial Continuity of the Employing Industry In numerous cases, the Board has stated that the key- stone in determining successorship is whether there is a substantial continuity of the employing industry . Factors to be considered in determining whether there is suffi- cient continuity of the employing industry to warrant a finding that one entity is the successor of a predecessor entity include whether there is substantial continuity in operation, location, work force, working conditions, su- pervision, machinery, equipment, methods of production, product, and services. Miami Industrial Trucks, 221 NLRB 1223, 1224 (1975); Fall River Dyeing Corp. v. NLRB 482 U.S. 27 (1987). In the instant case, an addi- tional factor to be considered is the effect of a hiatus in operations. In NLRB v. Jeffries Lithograph Co., 752 F.2d 459 (9th Cir. 1984), the court in restating the controlling princi- ples, noted that a change in the scope of a business by a new employer does not, in itself, affect a successorship determination ; the Board must weigh a number of factors and throughout the inquiry the touchstone remains whether there was an "essential change in the business that would have affected the employees' attitude toward representation" (citations omitted). With the above principles in mind, I now summarize the evidence adduced in the instant case which relates to the issue under discussion. 1. Continuity of operations The record reveals Bristol laid off its last employees and closed the Muncie plant on April 10, 1987. It further reveals that Respondent cut its first steel, thus commenc- RTW INDUSTRIES ing operations on June 22, 1987. Respondent contends the hiatus in operations is a major factor to be consid- ered when deciding if there has been continuity in the employing industry. In support of its contention , Respondent established, through the testimony of Bristol's former plant manager Warner, that when he negotiated a plant closing agree- ment with the Union shortly before Bristol closed the Muncie plant, the announced plan was that the plant would not be reopened ; that the buildings, machinery, and equipment would be sold at auction during the summer of 1987. Additionally, it established through the testimony of employees Robert Howell and Samuel Caldwell, formerly with Bristol and now employed by Respondent, that when Bristol closed the plant they had no expectation of future employment at the plant as they understood it was to be sold at auction. In mid-April 1987, the present owners of Respondent, Talwar and Warner, met with some 15 former Bristol employees who possessed multiskills to inform them they were contemplating the purchase of the Muncie facility. The products which might be manufactured and the abilities of the employees attending the meeting were dis- cussed, but no job offers were made. At or about the same time Talwar was interviewed by the news media and the local newspapers published an article that indi- cated that someone was looking at the Muncie plant. Subsequently, on June 10, 1987, Respondent hired its first employee, and by June 22 it had hired sufficient em- ployees to commence production. It is undisputed that Respondent employed a representative complement of employees when the Union requested recognition and bargaining. 2. Location, machinery, and equipment It is undisputed that the instant Respondent com- menced operations at the same location its predecessor had conducted operations, using the same machinery and equipment. Respondent observes, however, that, subse- quent to opening the Muncie plant, it invested approxi- mately $200,000 in plant improvements and new machin- ery and equipment. In this regard , Talwar testified that unstated sums were spent on roof repair, the installation of heating devices in the shop, heat tracings to prevent the freezing of water lines, and new equipment. Warner described, without providing cost information, the equip- ment purchased. Most of the items are depicted by pho- tographs placed in evidence as Respondent 's Exhibits 13 through 21. The items included two punch presses which replaced machines which would no longer hold a straight line (R. Exh. 13); a numerically controlled burn- ing machine; a bending machine which cuts the edges of plate steel mechanically rather than by burning (R. Exh. 15); a fixture for holding pipes together while castings are placed on both ends (R. Exh. 16); a level base fixture used to obtain a level base for industrial furnaces (R. Exh. 17); a magnetic welder used to weld stainless steel (R. Exh. 18); a die (R. Exh. 19); an electrostatic paint outfit which is used to paint front and rear surfaces of steel items simultaneously (R. Exh. 20); and a left-handed threading machine used to supplement a right-handed 913 threading machine in the manufacture of industrial prod- ucts (R. Exh. 21). Warner's testimony reveals the above machinery or equipment items were purchased to enable Respondent to manufacture certain fabricated items desired by cus- tomers, or, in some instances, to simplify production. Thus he testified the multitorch punching machine sim- plified the fabrication of transformer tanks ordered by Westinghouse as holes were automatically punched in plate steel, while they had previously been burned out by hand. Similarly, the bending machine beveled fabricated items by cutting the edges mechanically , while such bev- eling was previously accomplished by burning. The fix- ture which holds pipes was a new item of equipment purchased to permit Respondent to manufacture a space frame item used to hold glass in the atrium of buildings, and the level base fixture was a new fixture which was needed to permit the fabrication of industrial furnaces. The magnetic welder gave Respondent a stainless steel welding capacity for the first time, and the die, electro- static painting outfit, and left-handed threader permitted Respondent to perform additional operations on steel plate and items which required threading. While Warner testified employees who operated the above-described equipment items were given training to enable them to operate them, such training was apparent- ly limited to on-the-job training as the record fails to reveal any formal training accomplished outside the plant was involved. 3. Product and methods of production Respondent's major contention in this case is that, while Bristol manufactured primarily structural steel items, it has manufactured principally industrial items times and the change in product considered together with attendant changes in methods or production demon- strate a lack of continuity in the employing industry. Joint Exhibits 1 and 2 reveal the products manufac- tured by Bristol during the period extending from April 1, 1985, through April 10, 1987, and Joint Exhibit 3 re- veals the products manufactured by Respondent during the period June 1, 1987, through July 31, 1988. The documents which show Bristol's manufacturing activity reveal that it was engaged principally in the manufacture and sale of structural steel. During the period extending from April 1, 1985, to April 10, 1987, it had only one customer who purchased industrial steel products. That customer was the Westinghouse Electric Corporation's facility located in Muncie. During the period indicated , it manufactured 257 tons of transformer end frames and core parts valued at some $647,902 for Westinghouse. The remainder of its production or ap- proximately 97.3 percent of its production consisted of the manufacture of structural steel . Warner credibly testi- fied that Bristol dealt primarily with owners and govern- mental bodies. Warner indicated during his testimony that the basic organization or departmentalization of the plant is essen- tially the same now as it was when Bristol operated the plant. Raw materials are received at two locations within the plant; templates or patterns are prepared in a tem- 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plate shop; items are cut to size and thereafter drilled, burned, or punched in a cut and prep area; tools are ob- tained in a crib area; and painting inspection and loading of product is conducted in the clean and paint area. General Counsel's Exhibit 7 reveals the job classifica- tions held by employees when employed by Bristol and Respondent . Under Bristol, employees worked in some 20 job classifications, while Respondent uses only 11. Warner testified the only job function eliminated was that of "Semi-Tractor Trailer Driver"; that by consoli- dating functions, Respondent reduced the number of job classifications used. It is uncontested that , after Respondent commenced to operate the Muncie plant, it continued to manufacture structural steel as well as transformer end frames and core parts Bristol had manufactured . While inspection of Joint Exhibit 3 reveals that some 46.7 percent of its pro- duction was in the form of structural steel , while the re- maining 53.3 percent consisted of industrial steel prod- ucts, the percentages are somewhat misleading because approximately two-thirds of its industrial production in- volved the manufacture of transformer end frames and core parts for the Muncie and St. Louis facilities of Wes- tinghouse.3 Thus, while Joint Exhibit 3 reveals Respond- ent experienced revenues of $2,133,871 during the 14 months it operated, only $388,628 was derived from the manufacture of industrial steel products which had not been manufactured by Bristol. During his testimony , Warner described the industrial products which Respondent manufactured, but had not been manufactured by Bristol. In addition to the trans- former end frames and core parts , the industrial items in- cluded fifth wheel assemblies manufactured for Dayton Walther; various furnace parts manufactured for Well- man Thermal Systems; transformer tanks manufactured for Westinghouse; a stainless steel trough manufactured for Wellman; a fiberglass stair manufactured for National Starch; application of epoxy paint on joist for Havens Steel Co.; space frames manufactured for Haven Busch Co.; and a motorized drum carrier manufactured for Borg-Warner. The products produced are depicted, in part, by photographs placed in evidence as Respondent's Exhibits 7 (motorized drum carrier); 8(a)-(c) (compo- nents of transformer end frames and core parts ); 9 (space frame); 10 (components of fifth wheel assembly); and 11 (furnace door). Warner's testimony reveals that, in main, the industrial products were made from plate steel, and that cutting, punching, drilling, welding, assembly, test- ing, and inspection functions were involved in the manu- facturing process. Through Warner, Respondent placed in evidence as its exhibits 22, 23, and 24 shop drawing which reveal the di- mensions and configurations of some of the structural and industrial products manufactured by Respondent. Exhibits 22 and 23 depict structural items and consist pri- marily of length and width measurements . Exhibit 24 consists of a number of blueprints which depict the com- ponents of various industrial products . Warner's testimo- B Industrial products valued at $1,138,012 were manufactured, and the transformer end frames and core parts produced were valued in the amount of $749,384 ny as well as the blueprints for the various industrial products reveal that the manufacture of structural items such as beams and columns. The blueprints reveal such industrial items are composed of many separate parts which, when assembled, are frequently cylindrical or otherwise differ in form and shape from the relatively straight structural items. Warner testified that the em- ployees who participate in the manufacture of the indus- trial products exercise more skills than they utilize when fabricating structural items as the blueprints are more complicated; the preparation of templates requires more skill; the assembly process involves the fitting together of many rather than just a few components ; closer toler- ances must be observed ; the metals welded include stain- less steel, aluminum and iconel, which are not used in the manufacture of structural items; and items which are to be air tight or leak proof must be zyglo tested rather than simply measured or viewed. 4. Supervision and work force As indicated, supra, with exception of Talwar, all of Respondent's managerial and supervisory employees were formerly employed by Bristol in similar capacities. Similarly, a majority of the production and maintenance employees employed by Respondent were admittedly former Bristol employees. While admitting its hiring practices show some conti- nuity in the employing enterprise, Respondent contends the changes in its production process and the autonomy of its operation has substantially altered the duties of its managerial personnel and his changed the working con- ditions of employees. As indicated, supra, Warner testified, that when Bristol operated the plant, sales marketing , engineering and ac- counting functions were performed at Bristol's headquar- ter's in Bristol , Virginia, and as plant manager he was in- volved primarily in the production process. He indicated that his position at Respondent is not comparable as he is now involved extensively in estimating and sales and that other managerial employees also have expanded duties. Citing examples, he testified that the accounting clerk, Doer, performs accounting functions previously per- formed at Bristol headquarters ; that the buyer, Winkle, formerly purchased primarily expendable supply items and she now also purchases raw materials; and that the engineer, Ford, now accomplishes types of engineering tasks previously performed at the Bristol headquarters. Similarly, Warner testified that Plant Superintendent Delk's and Supervisor Brummett's jobs have changed as they are now required to supervise many small , compli- cated jobs whereas they previously supervised employees who were performing simple repetitive tasks associated with the manufacture of structural items . Additionally, Warner indicated line supervisors now perform hands-on work which they were prohibited from performing while working for Bristol. With respect to its employees , Warner, corroborated to some extent by employees Howell and Caldwell , testi- fied their work functions are more diversified than they were when emloyed by Bristol, and their terms and con- ditions of employment vary somewhat. Thus Warner tes- RTW INDUSTRIES tified Respondent's employees are cross-trained to per- form various functions rather than performing in strict accordance with their job classification ; that they are in- volved more extensively in the interpretation of blue- prints and the preparation of templates; that their work on industrial products is more complicated than their work on structured was; that they work' with stainless, aluminum, and iconel rather than on rolled steel used to manufacture structural products; and the employees work side by side with their supervisors. Contrasting the working conditions of employees, Warner testified Respondent employs an honor system and employees are not required to use a timeclock. He further indicated they enjoy profit sharing and sick leave benefits they did not have while working for Bristol. He admitted Respondent's employees are paid less than they were when employed by Bristol . With further regard to working conditions, comparison of Respondent's Em- ployee Handbook (G.C. Exh. 8) with the former Bristol- Union collective-bargaining agreement reveals the former does not provide for arbitration of disputes while the latter document does; that Respondent 's employees receive fewer vacation benefits than those provided in the contract; and that Respondent's employees receive no pension benefits, but the contract provided for such benefits. 5. Customers The record reveals Bristol and Respondent shared only three customers. Two of the customers, A. E. Staley Co. and Midwest Steel Erection Company pur- chase structural steel from both entities , and one, Wes- tinghouse Electric Corporation of Muncie, purchased in- dustrial items from both companies. While Warner indicated Respondnet's structural steel customers are mainly subcontractors engaged in the erec- tion business rather than owners and governmental bodies previously served by Bristol, he indicated Bristol had few repeat customers because once a building, a bridge, or similar structure is erected, the customers had no further need for structural product. Discussion and Analysis The instant record reveals Respondent is conducting its operations in the same plant used by its predecessor, with substantially the same managerial and supervisory staff, and that a majority of its work force was previous- ly employed by its predecessor. Such factors, when con- sidered in conjunction with the fact that Respondent purchased and utilizes the equipment , machinery, and trade name of the predecessor, strongly suggest Re- spondent is a successor employer. Respondent seeks to avoid a successorship finding by contending the changes in its customers, products, and processes led to other material changes and a finding that there was continuity in the employing industries is not warranted. For the reasons set forth below, I find the contention to be without merit. Respondent's claim that there has been no continuity in the employing industry is bottomed upon a contention 915 that there has been a drastic change in the steel products fabricated at the Muncie plant during the time it has op- erated the facility . While it is clear it, like its predeces- sor, continues to manufacture and sell fabricated steel products, it claims it fabricates primarily industrial steel products, while Bristol fabricated, almost exclusively, structural steel products. In my view, the contention has not been factually supported. As noted, supra, Respondent continues to fabricate structural steel at the plant and it continues to fabricate the same transformer end plates and core parts Bristol previously manufactured. The facts, supra, reveal that approximately two-thirds of Respondent's so-called in- dustrial production involves the manufacture of the same transformer end plates and core parts manufactured by its predecessor. In sum, then, it would appear that 70 to 80 percent of the products fabricated by Respondent during its first 14 months of operations were items which had previously been manufactured by its predecessor. In the circumstances described, I find the new entity manu- factures substantially the same products previously man- ufactured by its predecessor. See P & M Cedar Products, 284 NLRB 652 (1987), and W & W Steel Co., 232 NLRB 74 (1977). Turning to the matter of customers, the instant record reveals Respondent sold to only three customers who formerly dealt with Bristol. In many industries the lack of commonality of customers is a significant factor to be considered when deciding whether an employer is a suc- cessor. Here, however, Warner testified that many cus- tomers who purchase structural steel are not usually repeat customers because once they have erected their structure they have no further need for structural steel. Noting that Respondent retained Bristol's principal in- dustrial steel customer-Westinghouse-and that it con- tinues to sell structural steel to subcontractors or entities in the same geographical area served by Bristol, I attach minimal significance to the fact that the entities sold products to different customers. Viewing Respondent's operation from the perspective of employees, I find the instant record contains little evi- dence which would tend to show their desire for union representation has changed. Respondent sought to em- phasize that the tasks performed by its employees are in- finitely more complicated and that they perform various functions rather than working strictly at the tasks associ- ated with their job classifications. The record reveals, however, that the basic manufac- turing processes and the skills utilized by employees have not changed appreciably . Thus, while Respondent has re- duced the number of employee job classifications, the functions previously performed by Bristol employees, ex- cepting that of driving a semi-tractor trailer, are still per- formed. Similarly, the manufacturing process, whether it involves structural or industrial items, remains essentially the same as metal is cut, punched or drilled, beveled, then assembled by welding or bolting, and it is inspected, painted, and shipped. In sum, Respondent 's employees perform the same basic functions they performed while employed by Bristol. 916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although the record reveals Respondent's employees receive sick pay, participate in a profit sharing program, are not required to punch a timeclock , and are physically assisted in their work tasks by supervisors , it also reveals they are paid less per hour, no longer have a pension plan, and no longer have the contractual guarantees and privileges they possessed when covered by a collective- bargaining agreement . On balance, the changes in their working conditions may well have increased rather than diminished their desire for union representation. One remaining factor-the hiatus in operations-merits comment. Technically, the hiatus in operations in oper- ations in this case extended from April 10 to June 22, a period slightly in excess of 2 months. As a practical matter, however, many of the employees terminated by Bristol when it closed the plant had their hopes of reem- ployment rekindled shortly after they were terminated by Bristol as Talwar and Warner called them together to discuss the possibility that they would purchase and reopen the plant and produce products which would likely result in their reemployment. In the circumstances described, the significance of the hiatus which occurred is diminished. Moreover, the Board and courts have uni- formly concluded that, where other indicia illustrate a continuity in the employing industry, even a lengthy hiatus is insufficient to affect successorship status. Fall River Dyeing Corp. v. NLRB, supra (7 months); P&M Cedar Products, supra (6 months); and Daneker Clock, 211 NLRB 719 (1974) (8 months). In sum, I find that the business operations conducted by Respondent remain substantially unchanged from those conducted by its predecessor, as it is using the same plant, essentially the same machinery and equip- ment, to manufacture fabricated steel products. Its em- phasis on the manufacture of industrial steel products is not controlling because its predecessor also manufactured such products, and the skills utilized by its employees, a majority of whom were previously employed by Bristol and were supervised by the same persons who now direct them , are essentially the same. Accordingly, I find, as alleged, that Respondent is the successor of Bristol Steel Corporation and that by refusing to recognize and bargain with the Union since February 11, 1988, it has violated Section 8(a)(1) and (5) of the Act. CONCLUSIONS OF LAW 1. RTW Industries, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent is the successor of Bristol Steel Corpo- ration. 4. All production and maintenance employees em- ployed by the Respondent at its Muncie, Indiana, facility, but excluding all officers, executives and direct repre- sentatives of the Company, all office employees, clerical employees, engineers, draftsmen, erectors, members of other unions, superintendents , assistant superintendents, foremen and other supervisors as defined in the Act con- stitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 5. United Steelworkers of America, AFL-CIO has been and is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing, on or about February 11, 1988, and at all times thereafter, to recognize and bargain collectively with the above-named labor organization as the exclusive representative of all its employees in the appropriatte unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) 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(1) and (5) of the Act, I shall order that it cease and desist and , on request, bargain with the Union as the exclusive representative of all employees in the ap- propriate unit. Based on these findings of fact and conclusions of law, I issue the following recommended4 ORDER The Respondent, RTW Industries, Inc., Muncie, Indi- ana, its officers, agents, successors , and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with United Steelworkers of America, AFL- CIO by failing to recognize or bargain with the Union as the exclusive representative of its employees in the fol- lowing appropriate unit All production and maintenance employees em- ployed by the Respondent at its Muncie, Indiana fa- cility, BUT EXCLUDING all officers, executives and direct representatives of the Company, all office employees, clerical employees, engineers, draftsmen, erectors, members of other unions, super- intendents, assistant superintendents , foremen and other 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 to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the above-named labor organization as the exclusive representative of all em- ployees in the aforesaid appropriate unit, with respect to 4 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 RTW INDUSTRIES rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at Muncie, Indiana facility copies of the at- tached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. I 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 917 WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and con- ditions of employment with United Steelworkers of America, AFL-CIO as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the Act. WE WILL, on request, bargain with the above-named Union as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and if an understanding is reached , embody such understanding in a signed agreement. The bargain- ing unit: All production and maintenance employees em- ployed by the Respondent at its Muncie, Indiana fa- cility, BUT EXCLUDING all officers, executives and direct representative of the Company, all office employees, clerical employees, engineers, draftsmen, erectors, members of other unions, superintendents, assistant superintendents, foremen and other super- visors as defined in the Act. RTW INDUSTRIES, INC. The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered ut to post and abide by this notice.