Alabama Precast Products Co., Inc.

National Labor Relations Board - Board Decisions

Apr 12, 1967

163 N.L.R.B. 993 (N.L.R.B. 1967)

ALABAMA PRECAST PRODUCTS 993
H. SCHEDULE C CLAIMANTS
1. Newman, A. 4. Hutchinson, William C.
2. Kruk, Edward V. 5. Hopkins, Walter
3. Posa, J. V. 6. Sonnenberg, E.
III. OTHERS
1. Mrs. E. Kruk 3. Teaton, T.
2. Valentine, A.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage our employees from
engaging in concerted activities, by discharging them,
failing to recall them, or by withholding earned wages
or vacation or sick pay.
WE WILL NOT threaten employees with reprisals for
engaging in concerted activities or for refusing to
,renounce their rights under a union contract.
WE WILL NOT attempt to bargain directly with our
employees, in derogation of the authority of their
statutory bargaining agent.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective-bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent that such right may be affected
by the provisos in Section 8(a)(3) of the Act, as
amended.
WE WILL offer the employees listed in the attached
schedule immediate and full reinstatement to their
former or substantially equivalent positions, and
make them whole for any loss of wages, sick pay,
vacation pay, sickness and accident benefits, and
pension fund contributions that they may have
suffered by reason of the Respondent's discrimination
against them.
directly with the Board 's Regional Office, 16 Court Street,
4th Floor, Brooklyn, New York 11201, Telephone
596-5386.
45. Sadlo, F.
1. Numssen, P. H.
2. Halop, S.
3. O'Connor, E. V.
4. Schmidt, G.
5. Bryan, J. J.
6. Inselman
7. Biondo, S. C.
8. Radziavick
9. Kruk, M. J.
10. Manghisi, S.
11. Priola, C.
12. Garbarini, J.
13. De Bellis, A.
14. Amari, C.
15. Zangrillo, L.
16. Behrens, J.
17. Torres, P.
18. Castiglie, O.
19. Leonick, T. P.
20. Crispo, A.
21. Castiglie, P. J.
22. Longboat, C., Jr.
23. Nelson, R. W.
24. Rembiszewski, J. A.
25. Weber, E. C.
26. Dohrman, J. J.
27. Michael Cardiello
28. Pastor, J. A.
29. Barling, E. C.
30. Nordstrom
31. Trope, P.
32. Cestaro, M.
33. Lo Gerfo, C. S.
34. Moloney,
35. Janecki, E.
36. Mullally, L. P.
37. Dunican, J.
38. Bell, W. R.
39. Merolla, S. A.
40. Chiaramonte, M.
41. Mannino, A.
42. Kelly, C. C.
43. Rizzo, J.
44. Christophersen, W.
HOFFMAN BEVERAGE
COMPANY
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the employees listed in the
attached schedule if presently serving in the Armed
Forces of the United States of their right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
SCHEDULE
46. Maniscalco, A
47. Winnizla, J.
48. Terry, J.
49. Jablonski, C.
50. Unser, H. A.
51. Mottola, J.
52. Caraccio, C.
53. Brzynski, L. J.
54. Reffelt
55. Sadrakula, S. M.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
Scheihing, E. S.
Sheridan, P. J.
Stravinski, L. S.
Kapella, A. J.
Doring, S. M.
Reyman, B. P.
Schau, L. W.
Picard, E. J.
Nocilla, J.
Kolinoski
Bellino, P. S.
Giordano, J. B.
Capone, A. J.
Delasandro, A.
Angelicola, A. M.
Saviano, R. S.
Fettinger, J.
Eden, W. M.
Genzone, C.
Sigillo, J. R.
Clifford, E. P.
Mirande, L. J.
Tascinone, A. F.
Sherrock, R.
Davidson, N.
Newman, A.
82. Kruk, Edward V.
83. Posa, J. V.
84. Hutchinson, William C.
85. Hopkins, Walter
86. Sonnenberg, E.
87. Mrs. E. Kruk
88. Valentine, A.
89. Teaton, T.
90. Andersen, A.
91. '1 ermotto, A.
Alabama Precast Products Co., Inc. and
International Union of Mine, Mill and
Smelter Workers , Birmingham Industrial
Workers Local Union#830. Case
10-CA-6165.
April 12,1967
DECISION AND ORDER
On August 30, 1966, Trial Examiner Jerry B.
Stone issued his Decision in the above -entitled
proceeding , finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
163 NLRB No. 99
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismissed, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision and a
supporting brief and the Respondent filed a brief
opposing the exceptions.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case. On the basis of the
record as a whole, we conclude on the facts found by
the Trial Examiner that the Respondent was not a
successor to Alabama Cement Tile Company. We
therefore agree with the Trial Examiner that the
Respondent did not violate Section 8(a)(5) and (1) of
the Act (Tennsco Corp., 141 NLRB 296) and,
accordingly, adopt his recommendation that the
complaint be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: Upon a charge and
amended charge filed on June 28, 1965, and February 3,
1966, by International Union of Mine, Mill and Smelter
Workers, Birmingham Industrial Workers Local
Union#830, the General Counsel of the National Labor
Relations Board, by the Regional Director of Region 10
(Atlanta, Georgia), issued his complaint dated
February 17, 1966, against Alabama Precast Products Co.,
Inc. (herein sometimes called the Respondent, Company,
or Employer), alleging violations of Section 8(a)(1) and (5)
of the Act. Respondent's duly filed answer admitted some
of the facts alleged in the aforedescribed complaint but
denied other facts and denied the commission of unfair
labor practices.
The main issue in this case is whether Alabama Precast
Products Co., Inc., on January 18, 1965, and thereafter,
succeeded to Alabama Cement Tile Company's obligation
(had prior to December 31, 1964) to bargain with
International Union of Mine, Mill and Smelter Workers
(herein sometimes called International Union) as regards a
fixed and determined bargaining unit and if so, whether
Alabama Precast Products Co., Inc., has refused to
bargain with said Union on February 5, 1965, and
thereafter, and on June 8, 1965, and thereafter, in violation
of Section 8(a)(5) of the Act There are several minor issues
including a question as to whether Birmingham Industrial
Workers Local Union#830 (herein sometimes called Local
' All credibility resolutions made herein are based on a
composite evaluation of the demeanor of the witnesses and the
probabilities of the evidence as a whole
2 Various statements made by the General Counsel and
Respondent' s counsels at the hearing revealed a narrowing of the
Union) became a defunct union after December 31, 1964.
Pursuant to appropriate notice, a hearing in this matter
was held on May 3, 1966, before me. All parties were
represented at and participated in the hearing, and were
afforded the right to present evidence, to examine and
cross-examine witnesses, to offer oral arguments, and to
file briefs. A brief was filed by the General Counsel and
has been considered.
Upon the entire record in this case and from my
observation of the witnesses, the following findings of fact,
conclusions of law, and recommendations are made. I
1. THE BUSINESS OF THE EMPLOYER INVOLVED
The facts pertaining to the business of the Employer are
based upon the pleadings and the admissions therein.2
Alabama Precast Products Co., Inc. (the Respondent),
is and has been, at all times material herein since around
the middle of January 1965, an Alabama corporation,
maintaining its office and plant at Birmingham, Alabama.
During the 12-month period ending on February 17, 1966, a
period of time representative of all times material herein,
the Respondent sold and shipped products valued in
excess of $50,000 from its Birmingham, Alabama, plant
directly to points located outside the State of Alabama.
Based upon the foregoing and as conceded by the
Respondent, it is found and concluded that the
Respondent is, and has been at all times material herein
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
It. THE LABOR ORGANIZATIONS INVOLVED
a. Based upon the pleadings and admissions therein, it
is found and concluded that International Union of Mine,
Mill and Smelter Workers is now, and has been at all times
material herein , a labor organization within the meaning of
Section 2(5) of the Act.
b. The Respondent's answer in effect pleads lack of
knowledge as to the existence or continued existence of
Birmingham Industrial Workers Local Union#830.
A composite of the credited testimony of M. C.
Anderson, Henry Hollis, George Price, James Nichols, and
H. G. Burchfield clearly reveals that Birmingham
Industrial Workers Local Union#830 existed and operated
as a labor organization within the meaning of Section 2(5)
of the Act from around 1942 until December 31, 1964.
Continued Existence of Local 8303
The facts relating to the continuation in existence of
Birmingham Industrial Workers Local Union#830 are
interrelated with the facts as to the events occurring after
December 31, 1964, and to the date of the hearing in this
matter (May 3, 1966). Considering all of the facts, set out
later in this Decision, I am convinced that Local 830 did
not function in a formal manner during such period.
Local 830 did not have formal business meetings,
executive meetings, collection of dues from members, and
elections of officers. I am further convinced that Business
Agent Anderson, who serviced the Local Union for the
International Union, and the members of Local 830 with
pleadings and that there was no issue as to the facts found herein
as regards the business of the Employer
' The facts are based upon a composite of the credited
testimony of Anderson, Hollis, Price, and Nichols and an
evaluation of the International and Local Unions ' constitutions
ALABAMA PRECAST PRODUCTS 995
whom he talked did not discuss the question of unionism
as regards the Local Union on a formalistic basis. I am also
convinced that Anderson construed in 1965 that he needed
to reorganize the workers at Respondent's plant and to
alleviate the needs of the unemployed members of
Local 830. I am convinced that in 1965 Anderson was in
contact with the last-elected officers of Local 830 and used
them as a committee to carry out his purposes. However,
since the International Union did not revoke the charter of
the Local Union and left what moneys were in the Local
Union's treasury in the Local Treasurer's possession, I am
convinced that Local 830 was continued as an arm into
which the International Union could channel employee
members. Considering the foregoing and all of the
evidence, I conclude and find that Birmingham Industrial
Workers Locar Union #830 is, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.4
Cement Tile Company.s Alabama Cement Tile Company
manufactured concrete blocks, roof slabs, flexicore
building tees, concrete siding composed of aggregate
paneling, precast concrete for stadium seats, and mail
posts.
2. Notice of cessation of business; cessation of business
At some unspecified date but clearly before
December 31, 1964, Alabama Cement Tile Company
posted a notice advising its employees that it was ceasing
operations due to financial difficulties on December 31,
1964. On December 31, 1964, Alabama Cement Tile
Company ceased its manufacturing operations and the
employment of employees in the recognized bargaining
unit for the work normally employed.7
3. Business site; equipment owned and used
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contentions and Issues
The General Counsel contends that Alabama Precast
Products Co., Inc. (the Respondent), is a "successor" to
Alabama Cement Tile Company and has succeeded to
Alabama Cement Tile Company's obligation to bargain
with the Union, that the Union has requested the
Respondent to bargain with it, that the Respondent has
refused to bargain with the Union, and that by such refusal
to bargain with the Union the Respondent has violated
Section 8(a)(5) and (1) of the Act.
The Respondent contends that it is not a "successor" to
Alabama Cement Tile Company, that it had no knowledge
of a union or union contract, that it had no obligation to
bargain with the Union, and that it has not violated Section
8(a)(5) and (1) of the Act.
The facts, as found, clearly reveal that Alabama Cement
Tile Company, a division of McCullough Industries, at
least from around 1941 to mid-1955, and from
September 21, 1955, to December 31, 1964, had a fixed
and determined obligation to recognize and bargain
collectively as regards a fixed and determined bargaining
unit with the International Union of Mine, Mill and
Smelter Workers. The issue herein is essentially whether
Alabama Precast Products Co., Inc., on January 18, 1965,
and thereafter, had a fixed and determined obligation to
bargain collectively with the same aforesaid union as to
the same fixed and determined bargaining unit.
B. Facts Relating to Alabama Cement Tile Company5
1. Alabama Cement Tile Company; products
manufactured
Apparently as of 1941 or 1942 and until December 31,
1964, McCullough Industries, Inc., maintained an office
and plant at Birmingham, Alabama, where it did business
through a division of itself under the name of Alabama
4 Furthermore it is noted that the International Union was the
certified and contractual bargaining agent It is clear that
Local 830 was merely an instrumentality into which to channel
the employees for membership and administrative purposes
5 The facts relating to Alabama Cement Tile Company are
based upon the pleadings and statements of counsel which
narrowed and reduced factual issues , and upon stipulations of the
parties.
Alabama Cement Tile Company maintained its office
and plant on properties owned by McCullough Industries
and by G. C. McCullough and R. F. McCullough as
individuals. The facts are clear that Alabama Cement Tile
Company owned and used (in a two-shift operation) three
concrete machines, a forklift, an equipped machine shop
including lathes, and mail post forms. The facts reveal that
Alabama Cement Tile Company owned and apparently
used a large electric crane and a motorized crane. The
facts also reveal that Alabama Cement Tile Company had
miscellaneous machinery (constituting 10 percent of its
total equipment), not specifically described, that
apparently was used in its operations. Whether this
machinery was similar to or different from the specifically
described equipment is not clear.
4. Employees employed; supervision; office clerical
Alabama Cement Tile Company in its manufacturing
)perations used the equipment described aforehand and
employed employees to perform the work necessary for
such operations in the recognized bargaining unit.
The facts reveal that Alabama Cement Tile Company
employed approximately 139 employees in the described
unit on July 14, 1955, that normally Alabama Cement Tile
Company had an employee complement between 140 and
150 men, that the month of December 1964 was a "slack"
month and there were only 64 employees in Alabama
Cement Tile Company's work complement at that time.
During the period of time apparently immediately
preceding the December 31, 1964, cessation of work it may
be said that top managerial functions of Alabama Cement
Tile Company were handled by the managerial executives
of McCullough Industries, Inc.,8 that the day-by-day
supervision of the operations was in the hands of General
Superintendent Lorton, Flexicore Line Foreman
Desmond, Slabline Foreman R. M. McCoy, Block Plant
Foreman Johnny Chandler, and Tile Department Foreman
6 It appears that McCullough Industries maintained plants in
other locations and other States
' Details relating to the recognized bargaining unit are set out
later in this Decision Apparently around January 11, 1965,
Alabama Cement Tile Company employed some employees for
use in work relating to disposition of its equipment and properties
" It is noted that G. C McCullough participated in the May
1964 contractual arrangements
295-269 0-69-64
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roy Walls.'' H. G. Burchfield worked in the office for
Alabama Cement Tile Company in 1964 setting up
production schedules.
Alabama Cement Tile Company's office clerical work
was performed by a staff of 50 clericals. It appears likely
that these clericals performed work (of a headquarters
nature) for McCullough Industries generally as well as for
Alabama Cement Tile Company.
C. Birmingham Industrial Workers Local Union
#830's Functioning as a Labor Organization
Representing Employees of Alabama Cement Tile
Company
During the period of time between 1941 or 1942 to
December 31, 1964, there appears to be no question that
Birmingham Industrial Workers Local Union#830
functioned as a labor organization (having as members
certain employees of Alabama Cement Tile Company)
within the meaning of Section 2(5) of the Act. The
evidence is clear and undisputed that during this period of
time that Birmingham Industrial Workers Local
Union#830 had officers, had a constitution and bylaws,
held regular union meetings, received dues through a
contractually agreed checkoff,"' processed grievances,
and participated in the negotiation of contracts with
Alabama Cement Tile Company.
D. Evidence of Majority Status of International Union'
Alabama Cement Tile Company's Contractual
Relationship with the Union
The 1955 NLRB Certification
In the July 14, 1955, NLRB representation election
approximately 63 percent of the valid votes cast in the
election were cast for the International Union of Mine, Mill
and Smelter Workers. At some point of time between 1941
or 1942 and 1964 all of the employees of Alabama Cement
Tile Company were members of International Union of
Mine, Mill and Smelter Workers or its Local Union#830.
In 1964 some but not all of the employees of Alabama
Cement Tile Company were members of the aforesaid
unions.
Around 1941 or 1942, Alabama Cement Tile Company
entered into a (bargaining) contractual relationship with
International Union of Mine, Mill and Smelter Workers (on
behalf of Local Union #830). Apparently there were
various contracts entered into between the aforesaid
parties between 1941 or 1942 and 1954. On May 16, 1954,
the aforesaid parties entered into a new contract effective
May 15, 1955. This contract contained normal provisions
relating to reopening, modification, termination, and
automatic renewals.
The 1954 contract described the recognized bargaining
unit as follows:
Section 1. The Company recognizes the Union as
the sole bargaining agency for all production and
maintenance employees , including truck drivers and
helpers, employed at the Company 's plant and yard
operations , Birmingham , Alabama, but excluding all
office, clerical , and professional employees , guards,
supervisors and construction workers, for the purpose
of negotiations in respect to rates of pay, hours of
work and other conditions of employment.
Apparently before the 1954 contract was renewed or
modified a representation petition was filed by the
.International Union of Operating Engineers , Local 902,
AFL. in Case 10-RC-3068. The International Union of
Mine, Mill and Smelter Workers, because of the 1954
contract , was allowed to intervene in the hearing on the
representation petition . On June 24, 1955 , the Board
issued a Decision and Direction of Election in Case
10-RC-3068 . The Board found the following to constitute
an appropriate unit for bargaining:
All production and maintenance employees,
including truck drivers , employed by the Employer at
its Birmingham , Alabama, operations , but excluding
guards, professional employees , office clerical
employees , plant clerical employees , construction
employees , and supervisors as defined in the Act.
On September 21, 1955 , the Board issued a
Supplemental Decision and Certification of
Representative . This decision revealed that an NLRB
election had been held pursuant to the Board 's June 24,
1955, Decision and Direction of Election , that a tally of
ballots showed that there were approximately 139 eligible
voters, that 132 ballots had been cast , that 82 ballots had
been cast for International Union of Mine, Mill and
Smelter Workers , that 47 ballots had been cast for
International Union of Operating Engineers , Local 902,
AFL-CIO, that 2 ballots had been cast against the
participating labor organizations, and that 1 ballot was
void . The Board certified that International Union of Mine,
Mill and Smelter Workers had been designated and
selected by a majority of the employees at the
Birmingham , Alabama, operations of Alabama Cement
Tile Company in the unit heretofore found by the Board to
be appropriate , as their representative for the purposes of
collective bargaining , and that , pursuant to Section 9(a) of
the Act , the said organization was the exclusive
representative of all such employees for the purpose of
collective bargaining with respect to rates of pay, wages,
hours of employment , and other conditions of
employment.
Thereafter , apparently on or around November 7, 1955,
on June 13, 1958 , on March 30, 1960 ,- on May 8, 1962, and
on or around May 6,1964, Alabama Cement Tile Company
and International Union of Mine, Mill and Smelter
Workers, Independent (on behalf of Birmingham
Industrial Workers Local Union#830), entered into
agreements amending and extending the term of the 1954
contract previously entered into until December 31,
1964.' 2
The last contractual agreement (amendment) made
between Alabama Cement Tile Company and the Union on
May 6, 1964, was as is set out herein:
0 In their attempt to arrive at a stipulation as to these facts the
parties were in agreement in principle but in disagreement on
specific description of Lorton's and Desmond's jobs Considering
the credited testimony of Price and Nichols, the descriptive titles
set out best describe the individual jobs
10 Whereby employee members executed written directives to
Alabama Cement Tile Company authorizing the withholding of
union dues from wages
"The facts relating to the majority status of the International
Union are based upon stipulations of the parties, exhibits relating
to the NLRB election and certification of the Union as bargaining
representative of Alabama Cement Tile Company's employees in
an appropriate unit, and upon Anderson's credited testimony
1z Thus the parties continued bargaining concerning the
"recognized" unit which varied only slightly from the Board-
defined unit
ALABAMA PRECAST PRODUCTS 997
After discussion of the misunderstanding on the
agreement, made May 6, 1964, it was agreed the
present agreement, as heretofore amended, shall
remain in full force and effect until December 31,
1964 and automatically renewed for a six month
period, with acceptance of proposal made by the
Company that all employees who are presently
employed and still employed December 15, 1964,
shall be given a bonus equal to four cents (4 cents) per
hour for all hours worked from date of acceptance of
offer, which is agreed to be May 18, 1964, to said
December 15, 1964. Effective January 1, 1965 the
present hourly rate will be increased by four cents
(4 cents) per hour across the board. The bonus will not
be paid to those who are discharged for cause or who
resign between now and December 15, 1964. Any
employee discharged on account of reduction of force
will be paid the bonus. This bonus is for the year 1964
and is offered and accepted solely to assist the
Company in weathering their present financial
difficulties.
It was agreed also that work gloves would be
furnished by the Company at half cost to all
employees working on jobs requiring more than
normal usage of gloves.
This agreement, when accepted, will be considered
supplemental to the present contract.
G. Alabama Cement Tile Company Sale of 10 Percent of
its Equipment January 1965
During January 1965 Alabama Cement Tile Company
continued its efforts to sell its business and/or equipment
and properties . Prior to January 18, 1965, Alabama
Cement Tile Company was able to sell approximately 10
percent of its equipment . During this period of time,
approximately until January 11, 1965, it appears that
Alabama Cement Tile Company employed some of its
former employees for about 5 days.13
On January 11, 1965, Alabama Cement Tile Company
mailed a check to James Nichols (for Local Union#830)
enclosing the last dues checkoff.
H. Encumbrances on Alabama Cement Tile Company's
Properties
It appears that the properties and equipment of
Alabama Cement Tile Company were subject to
encumbrances owned by James Talbott, Incorporated (of
New York, N.Y.),14 and Birmingham Trust National Bank.
It appears that the owners of the above-referred-to
encumbrances were demanding in January 1965 that such
encumbrances be satisfied or that foreclosure would be
made on such properties. It was ultimately realized that a
foreclosure on such properties would ensue.
E. Contention as to Renewal of Union Contract on
December 31,1964
The General Counsel contends that Alabama Cement
Tile Company's agreement with the Union automatically
renewed itself by its terms on December 31, 1964. I do not
agree. As I view the May 6, 1964, supplemental agreement
between Alabama Cement Tile Company and the Union
there existed a contemplation that Alabama Cement Tile
Company would continue to operate its business for at
least 6 months after December 31, 1964. Thus it must be
said that there existed an implied condition-to wit: that
continued business operations were planned for at least 6
months-before the contract would automatically renew
itself on December 31, 1964. It is clear that on
December 31, 1964, that the parties did not contemplate
that Alabama Cement Tile Company would continue in
existence for a period of 6 months. Accordingly I find that
the aforesaid contract was not renewed and that at most as
to any few days of continued operations, the parties'
conduct would reveal a day-by-day intention to adhere to
the existing terms and conditions of employment.
F. Alabama Cement Tile Company; Cessation of Business
As indicated previously Alabama Cement Tile Company
was faced with financial difficulties and in December 1964
notified its employees that it would cease operations on
December 31, 1964, and ceased operations on
December 31,1964.
Apparently in December 1964, Alabama Cement Tile
Company commenced seeking purchasers for its business
and/or equipment and properties.
13 Apparently to help in the disposition of equipment.
14 Including certain properties of G C. McCullough and R F
McCullough
13 The facts are based upon the credited testimony of DeMarco
and Tahaferro, and the stipulations , pleadings , and statements of
counsel narrowing factual issues
1. Respondent's Proposal to Buy Properties of Alabama
Cement Tile Companyts
Around January 18, 1965, Joseph DeMarco, Charles
Cranford, and Mark Taliaferro discussed the proposed
foreclosure with officials of Alabama Cement Tile
Company. It appears that Alabama Cement Tile Company
desired to sell the equipment and properties as a packaged
deal. Although DeMarco, Cranford, and Taliaferro realized
that there were many items that they did not need or want,
they decided that in order to buy the equipment and
properties that they did want, they would have to buy the
equipment and properties as a packaged deal,DeMarco,
Cranford, and Taliaferro, however, did not include in their
proposal that they would purchase the Alabama Cement
Tile Company's office building (described as sizeable) or
an acre of land upon which it was situated.
It appears that Alabama Cement Tile Company and
DeMarco, Cranford, and Taliaferro thereupon reached
agreement as to the sale of equipment and properties
through foreclosure. It was agreed that DeMarco,
Cranford, and Taliaferro could have the right to have
employees come upon the properties to maintain and clean
the referred-to equipment pending actual foreclosure.
J. Formation of Alabama Precast Products Company,
Inc. 16
Apparently shortly after January 18, 1965, Joseph
DeMarco, Charles Cranford, and Mark Taliaferro formed a
corporation named Alabama Precast Products Company,
Inc. None of the aforesaid men were connected in any way
with McCullough Industries or its division, Alabama
Cement Tile Company. Joseph DeMarco was engaged in
1S The facts are based upon the credited testimony of DeMarco
and Tahaferro , and the stipulations , pleadings , and statements of
counsel narrowing the factual issues
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the concrete block business in Birmingham, Alabama,
with a concern called DeMarco Concrete Block Company,
Charles Cranford was engaged in the concrete block
business in Birmingham, Alabama, in a company called
Superock Block Company in which he was part owner."
Mark Taliaferro was a practicing attorney in Birmingham,
Alabama
K. Events January 18 to February 18, 1965; Alabama
Precast Products Company, Inc.; Cleaning of Equipment
before Purchase'"
Shortly after January 18, 1965, Alabama Precast
Products Co., Inc.,'" employed employees in the work of
cleaning and maintaining the equipment it had proposed to
buy. Apparently the number of employees involved was
around five or six. It appears that initially some of these
employees were employees who were employed by
DeMarco at DeMarco Concrete Block Company or by
Cranford at Superock Block Company, or other employees
not formerly employed by Alabama Cement Tile
Company. It appears also that thereafter there were
several employees employed who had worked for Alabama
Cement Tile Company prior to December 31, 1964. For at
least a few days after January 18, 1965, it appears that
Alabama Cement Tile Company also had a few employees
engaged in its final cleaning up operations. From
January 18, 1965, to February 18, 1965, it thus appears
that Alabama Precast Products Co., Inc., employed a
small number of employees on maintenance and cleanup
of equipment. 10
L. Alabama Cement Tile Company Letter of January 22,
1965'
On January 22, 1965, Alabama Cement Tile Company
transmitted a letter to M. C. Anderson of the International
Union of Mine, Mill and Smelter Workers. In this letter,
Alabama Cement Tile Company set forth "This is to
advise that Alabama Cement Tile Company has ceased
" General Counsel's brief asserts that Charles Cranford was
manager of Superock Block Company
18 The facts, unless otherwise indicated, are based upon the
credited testimony, of DeMarco and Taliaferro, and upon
stipulations , pleadings , and statements of counsel narrowing the
factual issues
19 If Alabama Precast Products Co., Inc , had not 14gally been
formed at this time, it is clear that it was functioning on a defacto
basis
20 Considering all of the facts, I do not believe that Alabama
Precast Products Co would have commenced manufacturing
operations until after the foreclosure on February 18, 1965
2i The facts as to the January 22, 1965, letter are based upon
the exhibit of the same in the record
22 The facts are based upon a composite of the credited
testimony of Anderson, Hollis, and Nichols
23 Although Anderson described this as a "union meeting," it
did not comport to an official union meeting or executive board
meeting within the requirements of the Local Union's
constitution The constitution sets forth that 10 members are
required to be present for an official union meeting As to
executive board meetings , the constitution reveals that there
,hould be a majority of the executive board (which was composed
of nine elected officers) It is noted that Hollis, Price, and Nichols
were, at least as of December 31, 1964, elected local union
officials
24 The evidence does not however establish in any way that the
Respondent was responsible for such belief The General Counsel
started to adduce evidence relative to a notice posted by Alabama
Cement Tile Company in December 1964, which contained
wording relating to future employment by employees The
operations and no longer employs any operating personnel
at the Fifth Avenue plant The last checkoff dues were
made and mailed to James Nichols on January 11, 1965
(our check#83548) "
M. Hollis, Price, and Nichols' Meeting with Anderson22
Sometime, apparently toward the end of January or first
part of February 1965, M. C. Anderson and Henry Hollis,
George Price, and James Nichols met2•' and discussed the
situation of employment as it appeared at Alabama
Precast Products Company, Inc. Apparently there was
discussed the fact that the former employees of Alabama
Cement Tile Company believed that they were all to be
employed by Alabama Precast Products Company, Inc ,24
that the said employees who had had the highest seniority
at Alabama Cement Tile Company should be employed
first by Alabama Precast Products Company, Inc., that
Alabama Precast Products Company, Inc., was employing
as employees some persons who had not worked at
Alabama Cement Tile Company, and that Alabama
Precast Products Company, Inc., was not employing from
the former employees of Alabama Cement Tile Company
those who had the most seniority at Alabama Cement Tile
Company. Apparantly there was also discussed the fact
that the person calling persons in to be employed was
H. G. Burchfield. Anderson told Hollis, Price, and Nichols
to go to Respondent's plant and to see Burchfield about
the problems.
N. Hollis, Price, and Nichols' Meeting with Burchfield25
Shortly thereafter, apparently around February 5, 1965,
Henry Hollis, George Price, and James Nichols went to
Respondent's plant to see H. G. Burchfield.26 Apparently
at the time they encountered Burchfield, he was on his
way up some stairs to an office Hollis spoke to Burchfield.
Hollis told Burchfield that they would like for him
(Burchfield) to come out and meet with him, Price, and
Nichols. Hollis told Burchfield that they wanted to know
Respondent objected to such notice on the basis that it was not
the potential purchaser referred to The General Counsel did not
offer the notice for receipt nto evidence The court reporter
however has included this document in a rejected exhibit file I
shall deem the exhibit as if it had been tendered , as having been
rejected, and thus I ratify the court reporter's actions herewith
25 The facts are based upon a composite of the credited
testimony of Hollis, Price, and Nichols Burchfield
unconvincingly testified in denial of the event Burchfield,
however , at one spot indicated that he "sent them to someone
else " I did not and do not believe or credit his denial Although I
believe the testimony of Hollis, Price, and Nichols to the extent
set forth I do not believe Hollis' testimony in exact detail as I am
convinced that he was not formalistic in his conversation with
Burchfield Price and Nichols' version indicates that the facts are
as set out herein
26 The General Counsel contends that H G Burchfield was a
supervisor of the Respondent at the time of this event The parties
litigated most of the issues in this case in a rather loose fashion
Although the evidence in this case reveals that Burchfield has on
occasion supervised some four or five loading employees , there is
no evidence to reveal that at the time of the February 5, 1965,
event that Burchfield had been made a supervisor of such
employees or that production operations were underway As to
Burchfield' s duties as of February 5, 1965, the facts show that the
foremen were selecting employees for hiring and that Burchfield
called such persons in for the foreman The facts do not establish
that Burchfield was an agent of the Respondent as of February 5,
1965, for the purpose of selecting employees for hire or for the
purpose of handling grievances or contract matters
ALABAMA PRECAST PRODUCTS
why he wasn't calling the oldest men back to work.27
Burchfield told Hollis in effect that the reason the
Respondent was hiring as it did was because it was a new
company and didn't have a union there 211 Hollis followed
Burchfield into his office and a short time later returned
and told Price and Nichols that nothing had changed, that
it was a new company and there was no union there.
0. Hollis, Price, and Nichols' Second February 1965
Meeting with Anderson29
Shortly thereafter, apparently during the next week,
M. C. Anderson (for the International Union) again was in
contact with Henry Hollis, George Price, and James
Nichol s.30 Hollis told'Anderson of the discussion that he
had with Burchfield on February 5, 1965. Apparently
Anderson, Hollis, Price, and Nichols decided that an
attempt should be made to organize Alabama Precast
Products Company, Inc., when it commenced
manufacturing operations.
P. Alabama Precast Products Company, Inc.; Purchase of
Properties ii
On February 18, 1965, James Talbott, Inc., and
Birmingham Trust National Bank concluded the
foreclosure on the properties of Alabama Cement Tile
Company and certain properties of G. C. McCullough and
R. F. McCullough. Through this foreclosure Alabama
Precast Products Co., Inc., acquired the properties and
equipment of Alabama Cement Tile Company32 and
certain properties of G. C. McCullough and R. F.
McCullough. Alabama Precast Products Co., Inc., did not
acquire the sizeable office building used by Alabama
Cement Tile Company or the acre of land upon which it
was situated. At the time of the foreclosure, Mark
Taliaferro, part owner and attorney for Respondent, asked
representatives of Alabama Cement Tile Company if there
were a union or union contract in existence at Alabama
Cement Tile Company. Taliaferro was told that there was
not a union or union contract
27 Considering all of the facts in this case I am convinced that
Hollis, Nichols, and Price went to see Burchfield merely for the
purpose of finding out about the hiring and to attempt to get the
Respondent to hire the older members of their union I am
convinced that if the Union or the aforementioned men had
believed that they had continuing bargaining rights and
continuing contractual rights that during this period of time that
the union would have specifically and formally asserted such
rights to the Respondent
t" As indicated, the parties litigated most of the facts in this
case in a loose fashion I am convinced that Burchfield knew of
factors which would cause Hollis, Price, and Nichols to believe
that they should be employed As indicated previously, the
manner in which this case was litigated with reference to a notice
to employees posted by Alabama Cement Tile Company indicates
a basis for such belief not attributable to the Respondent
Considering the evidence and the litigation of the issues, I am
convinced that Burchfield construed Hollis' remarks as being that
of mere inquiry and not that of a demand for consultation as to
grievances or assertion of contract rights Considering all of the
foregoing, I do not believe that Burchfield construed it necessary
to relay a message of this incident to management
LN Based upon Anderson's and Nichols' credited testimony and
a fair inference from all of the facts in the record
30 For the reasons indicated with respect to the prior meeting of
999
At the time of the foregoing agreements and purchase
the Respondent did not see the books or records of
Alabama Cement Tile Company. Nor did the Respondent
take over unfilled orders or acquire the customers of
Alabama Cement Tile Company.
Q. Facts Relative to Commencement of Operations by
Alabama Precast Products Company, Inc.33
Around February 18, 1965, the Respondent commenced
employment of and working of employees in its
manufacturing operations. It would appear that just before
February 18, 1965, that the Respondent was employing in
its cleanup and maintenance operations around six to eight
employees, that after February 18, 1965, the number of
employees employed commenced increasing, and that by
March 1, 1965, the Respondent reached- its normal
complement of around 55 employees.
R. The Union's February 1965 Attempt to Organize and
Get Signed Checkoffs34
Apparently at some period of time between February 18,
1965, and March 1, 1965, Hollis went to Respondent's
plant in an attempt to get employees there to sign checkoff
authorizations for Local Union#830 and in an attempt to
talk to the employees before seeking a Board
representation election .15 Hollis was unsuccessful in this
attempt to do so because the employees would not talk to
him.
S. The Union's June 1965 Attempt to Organize30
It appears that shortly before June 3, 1965, that M. C.
Anderson (for the International Union) held a meeting for a
large number of persons (who had been members of
Local 830 as of December 31, 1964, or possibly were
employees at Respondent at the time) They discussed
dissatisfaction with the Respondent's hiring policy, wage
scale, and working conditions. Considering all of the facts
in the case, I am convinced that this meeting was in effect
an organizational meeting prior to the Union's attempt to
these persons I find that this was not an official union
membership meeting or executive board meeting
3' The facts are based upon the credited testimony of DeMarco
and Tahaferro , and upon stipulations , pleadings , and statement of
counsel narrowing the factual issues
31 It is noted that 10 percent of Alabama Cement Tile
Company 's equipment (as of ,December 31, 1964 ) had previously
been sold to others It is noted that the properties purchased by
the Respondent were subject to certain outstanding redemption
rights held by others The properties were purchased with an
agreement by the seller that if any of the properties were
redeemed by such other parties that the seller would reimburse
the entire purchase price to the Respondent
33 The facts are based upon DeMarco 's credited testimony
34 The facts are based upon Hollis' credited testimony
35 Anderson (of the International Union ) testified to the effect
that dues of members were not required in the situation presented
herein The International Union 's constitution , insofar as dues
transmitted to the International , seems to support this premise
The Local Union's constitution, however, does not appear to
support this premise concerning the collection of dues for the
Local Hollis' efforts herein support a conclusion that Local 830
would have collected dues by checkoff if it could have done so
36 The facts are based upon Anderson 's credited testimony and
a fair inference from all of the evidence
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
establish a bargaining relationship with the Respondent.37
On or about June 3, 1965, M. C. Anderson for the
International Union transmitted a letter to the Respondent
which was received by the Respondent on June 8, 1965.
This letter is as follows:
June 3, 1965
Alabama Precast Products Co., Inc.
615 33rd Street, North
Birmingham , Alabama
Gentlemen:
The predecessor company of Alabama Precast
Products Company, Inc. (Alabama Cement Tile
Company) entered into an agreement with the
International Union of Mine, Mill and Smelter
Workers and its Local Union No. 830 governing
wages, hours of work and working conditions.
Local 830 and the International Union of Mine, Mill
and Smelter Workers, as you know, is the certified
bargaining agent for your employees.
The last complete agreement between the
Company and the Union became effective May 16,
1954. Under the provisions of Article 13, thereof, the
same has been renewed each subsequent year in all of
its basic provisions, but has been modified from time
to time by supplemental agreements, the last one
being the supplemental agreement dated May 16,
1964. The basic agreement provides for the extention
of the agreement in the absence of 60 days written
notice by either party thereto to the other of an
intention to terminate the same at the expiration date
thereof. No such notices have been served by either
party upon the other, thus, the basic agreement of
May 16, 1964, and its current supplements remain in
full force and effect of this date.
At the present time, you, as the employer, are not
complying with the terms of the agreement between
yourself and the Union in several particulars,
including, but not limited to the following:
1. The agreement, as currently supplemented,
provides for a minimum hourly wage of $1.56. You, as
the employer, are paying wages ranging between
$1.25 and $1.50 per hour, and in generally all cases,
less than the minimum provided by the contract.
2. The agreement, as currently supplemented,
provides for overtime pay at the rate of one and one-
half times the normal rate of pay for any employee
working more than eight hours in any given work day.
You, as the employer, are paying overtime pay only
for time worked in any given week in excess of forty
hours without regard to whether more than eight
hours are worked in any given work day.
37 Anderson, Hollis, Price, and Nichols all spoke of "meetings"
as if they were union meetings of Local 830 The facts clearly
show that the other "meetings" were not formal union meetings
Considering the totality of the evidence , I am convinced that all of
the meetings held were in effect organizational meetings
Anderson testified to the effect that the reason he did not pursue
the bargaining interests in February 1965 was because he wanted
to do what the members wanted, that if they were [not] unhappy
in February that they had been since (Although Anderson did not
use the word "not" as indicated above I was and am convinced
that he intended the meaning-"if they were not unhappy in
February ") Considering all of the evidence , I am convinced that
the Union did not consider at any time prior to June 1965 that it
3. You, as the employer, have hired new employees
within the past twelve months to fill jobs belonging to
employees within the bargaining unit, within the same
classification into which such new employees have
been placed, from which said employees of the
bargaining unit have been laid off without recalling
such laid off employees.
As Regional Director of the International Union of
Mine, Mill and Smelter Workers, I hereby request
that you or your designated representative meet with
me and the duly appointed shop committee for Local
No. 830 to bargain, negotiate and attempt to resolve
your failure to abide by the terms of the agreement
currently in effect.
Sincerely yours,
s/s M. C. Anderson
M. C. Anderson
Regional Director
The Respondent made no response to the foregoing
letter.
T. Facts Relating to Alabama Precast Products Company,
Inc., The Enterprise and Employees3s
The initial production of Respondent involved the filling
of "orders" transferred to Respondent from DeMarco
Concrete Block Company and Superock Block
Company.-;" Later, it appears that Respondent did secure
some of the former customers of Alabama Cement Tile
Company by making certain necessary price adjustments.
From February 18, 1965, to date Alabama Precast
Products Company, Inc., the Respondent, has maintained
an office and plantsite at Birmingham, Alabama. The
office that it has used is apparently in one of the buildings
formerly occupied by Alabama Cement Tile Company but
is not the office used by Alabama Cement Tile Company
nor does the Respondent utilize the area surrounding the
office building formerly used by Alabama Cement Tile
Company, Inc.
The Respondent purchased through the foreclosure
previously described the following equipment and
properties formerly owned by Alabama Cement Tile
Company, G. C. McCullough, and R. F. McCullough:
(1) apparently the land and buildings owned and used by
Alabama Cement Tile Company (and G. C. McCullough
and R. F. McCullough) excepting the main office building
and an acre of land around said building, (2) three concrete
block machines, (3) machine shop equipment including
lathes, a motorized crane and other items of machinery,
and a large electric crane, (4) a forklift, and (5) mail post
had bargaining rights as related to the Respondent I am
convinced that in attempting to organize a union at Respondent's
around June 1965 that the International Union decided that it
could best get such bargaining rights by pursuing a theory of
rights to bargain on a "successorship" theory coupled with a
"continued contract " theory
31 The facts are based upon stipulations , pleadings, and
statements of counsel narrowing factual issues , and the credited
testimony of Burchfield.
39 As previously indicated , such companies were owned or
managed by DeMarco and Cranford (two of three incorporators of
Respondent 's corporation)
ALABAMA PRECAST PRODUCTS 1001
forms. As indicated previously some 10 percent of the
equipment owned by Alabama Cement Tile Company had
previously been sold to persons other than the
Respondent.
The Respondent subsequently sold, of the aforesaid
equipment ( 1) one concrete block machine, and
(2) machine shop equipment , including the large electric
crane on a big runway, the motorized crane, and
apparently some other items of machine shop equipment.
The Respondent has used in its one - shift operation since
February 18, 1965, the following equipment formerly used
by Alabama Cement Tile Company: ( 1) one concrete block
machine, (2) some machine shop equipment as described
and lathes , and (3 ) some mail post forms. It is not clear
whether the Respondent has need for or has used a forklift
iii its operations . It would appear that the possibility for
such forklift is present, and if so, it would appear that
Respondent has had to get a useable forklift.40
Alabama Precast Products Co., Inc., in its operations
since February 18, 1965, has manufactured concrete
blocks, roof slabs , and some flexicore building tees.
Alabama Precast Products Co., Inc. (unlike Alabama
Cement Tile Company) has not manufactured precast
stadium seats or concrete siding composed of aggregate
paneling.
The Respondent 's hiring of employees for its operations
was done by instructing the foremen41 who had been hired
to "get the people" to come in The foremen determined
the persons to be hired and told H . G. Burchfield 42 to call
such persons in.
Respondent 's normal complement of employees
consisted of 55 employees as compared to Alabama
Cement Tile Company's normal complement of employees
as consisting of between 140 and 150 employees.
Respondent ' s employees , including those who had
formerly worked for Alabama Cement Tile Company, in
performing the operations of Respondent in the
manufacture of the products previously set out, have
substantially used the same equipment and production
methods as were used by Alabama Cement Tile
Company's employees in the manufacture of the same
type products.
Respondent's number of employees involved in work on
the concrete block machines appears to be approximately
25 percent of the number of employees that Alabama
Cement Tile Company used on such machines.
Respondent 's number of employees involved in work on
"roof slabs " appears to be approximately 50 percent of the
number of employees that Alabama Cement Tile Company
used in work on "roof slabs. `43
Respondent 's volume of production of concrete block
appears to be approximately 25 percent of the production
volume of Alabama Cement Tile Company. Respondent's
volume of production of "roof slabs" appears to be
approximately 50 percent of the production volume of
Alabama Cement Tile Company. Respondent's production
of flexicore building tees appears to be minimal and at a
rate of 1 percent of the production volume of Alabama
Cement Tile Company.
Respondent employs an office staff of 8 clericals for its
office work as compared to the office clerical staff of 50
employees doing work for Alabama Cement Tile Company
and McCullough Industries.
The top management of Respondent appears vested in
DeMarco and Cranford and is entirely different from the
top management for Alabama Cement Tile Company
(prior to December 31, 1964, January 18, 1965, or
February 18, 1965).
The immediate supervision of employees at Respondent
since the commencement of operation is invested in
substantially the same supervisors as had worked for
Alabama Cement Tile Company. Thus Desmond, formerly
a supervisor at Alabama Cement Tile Company, worked
for a short time at Respondent's as a supervisor.44
Respondent, shortly after commencing operations hired as
superintendent a man named Harrell, who in 1956 had
worked for Alabama Cement Tile Company.45 The
Respondent in its initial operations hired as supervisors
R. M. McCoy, Johnny Chandler, and Roy Walls. The
aforenamed persons have continued as supervisors for the
Respondent. At some point of time after commencement
of operations, Respondent made Burchfield a supervisor
over some loading employees.
Respondent's employees have not worked under a
collective-bargaining agreement, have not executed
checkoff (dues) withholding authorizations, nor have they
otherwise revealed any external signs to indicate their
belief that they have continued to work for the same
enterprise as had been Alabama Cement Tile Company.
There is no specific evidence as to the number of former
Alabama Cement Tile Company employees working at
Respondent except as of June 5, 1965, and around
April 25, 1966. On June 5, 1965, there were 55
nonsupervisory employees and 5 supervisors employed by
Respondent.46 Of the foregoing, 33 of the nonsupervisory
employees had formerly worked as nonsupervisory
employees for Alabama Cement Tile Company (as of
around December 1964) and 3 supervisors (as of around
December 1964). On or around April 15, 1966, there were
45 nonsupervisory employees and 5 supervisors working
for the Respondent.47 Of the foregoing 22 of the 45
nonsupervisory employees had formerly worked as
nonsupervisory employees for Alabama Cement Tile
Company (as of around December 1964) and 3 supervisors
41) It appears that the forklift purchased at foreclosure was worn
out
41 These foremen had formerly been foremen or supervisors for
Alabama Cement Tile Company
42 Who worked in the office as a production scheduler and
supervised some four or five loading employees after operations
commenced.
43 The evidence does not reveal whether Alabama Cement Tile
Company utilized workers specifically assigned on machine shop
work or as to the flexicore building tees or whether the concrete
block and roof slab employees did such work as additional
functions In any event the evidence is insufficient to reveal a real
comparison of the number of employees so involved as regards
the Alabama Cement Tile Company and Alabama Precast
Products Company, Inc. However, Alabama Precast Products
Company, Inc , produced only 1 percent of the type of flexicore
building tees as compared to Alabama Cement Tile Company's
production of the same item
44 It appears that Desmond was a flexicore line foreman for
Alabama Cement Tile Company and for a short time did the same
work at Respondent's There is a disputed contention, but no
clear evidence one way or the other, that Desmond was a
superintendent In any event he was a supervisor for both
companies
45 In my opinion and from my consideration of the issues
herein, Harrell stands in the nature of a completely new
superintendent unrelated to the 1964 supervision of Alabama
Cement Tile Company
46 Excluding office personnel
47 Excluding office personnel
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had formerly worked for Alabama Cement Tile Company
as supervisors (as of around December 1964).
U. Conclusions
In Johnson Ready-Mix Co., 142 NLRB 437 at 442, the
'Board set forth what I consider to be the principles of law
applicable to this case. The Board said:
It is well settled that a Board certification must be
honored for a reasonable period of time, normally at
least 1 year, in the absence of unusual circumstances.
A mere change in ownership in an `employing
industry' is not such an unusual circumstance as to
effect the force of the certification for it is equally well
settled that where the `employing industry' remains
essentially the same after a transfer of legal
ownership, the certification continues effective for
the normal operative period and the obligation to
bargain devolves upon the successor employer.
In my opinion the facts in this case reveal unusual
circumstances which affected the force of the Board's
1955 certification for the employees of Alabama Cement
Tile Company's and any presumption of the Union's
majority status based upon contracts or conditions existing
during the continuance of operations by Alabama Cement
Tile Company. The effect of such unusual circumstances
is such that the obligation to bargain with the Union did
not devolve upon Alabama Precast Products Company,
Inc.
The General Counsel contends in effect that the Union
attempted to bargain with the Respondent on or about
February 5, 1965, and that the Respondent on that date
and at all times thereafter has refused to meet and bargain
with the Union in violation of Section 8(a)(5) and (1) of the
Act.49 As indicated in my factual findings relating to
Hollis, Price, and Nichols' encounter with Burchfield on or
about February 5, 1965, I am convinced that the Union was
merely attempting to find out about the hiring practice and
was attempting to get "older" members or former
employees hired; I am convinced that the Union was not
asserting a contention that it was the bargaining
representative of Respondent's employees. As indicated I
did not and do not find that the General Counsel has
established that on February 5, 1965, that Burchfield was
a supervsior or agent of the Respondent for hiring
selection or bargaining purposes. Nor do I contrue that the
Union on February 5, 1965, made an effective bargaining
demand in any respect.
Assuming, however that the Union on February 5, 1965,
by Hollis, made an effective bargaining demand and that
" DtamondNational Corporation , 133 NLRB 268
a The General Counsel contends also that the contract
between the International Union and Alabama Cement Tile
Company continued to exist after December 31, 1964, and that
after a proper demand that the Respondent refused to bargain
collectively by refusing to honor and abide by the terms of said
contract The facts as found do not support a contention that the
contract has continued in existence during the time of
Respondent 's operations Nor do the facts support a contention
Burchfield was a responsible agent of Respondent for the
purposes of bargaining, I am convinced that the obligation
to bargaining did not devolve upon Respondent. I am
convinced that Burchfield' s statement , if he were an
agent, to Hollis to the effect that this was a new company
and had no union was tantamount to an expression of a
good-faith doubt as to any obligation to bargain that the
Respondent might have had.
If it is assumed that Burchfield was a responsible agent
for Respondent for the purposes of bargaining, it must be
assumed that he was familiar with the unusual
circumstances which affected any presumption of the
Union's majority status. Without repeating all of the
changes and circumstances relating to the Respondent's
operations, I note that (1) Respondent 's normal employee
complement, or planned complement as of February 5,
1965, as compared to Alabama Cement Tile Company's
employee complement was substantially smaller. When
Respondent reached its normal employee complement on
March 1, 1965, it had around 55 employees as compared to
Alabama Cement Tile Company's normal employee
complement of 140 to 150 employees, (2) Respondent, as of
February 5, 1965, apparently, planned to hire its own
employees without regard to whether employees had
formerly worked or not worked for Alabama Cement Tile
Company; (3) Respondent, as of February 5, 1965, was
apparently considering, on an individual basis, the hiring
of approximately 20 percent of the former employees of
Alabama Cement Tile Company and to constitute around
60 percent of the employees that it was hiring,50
(4) Respondent was operating on a belief that there was no
union contract or union in the picture; (5) Respondent's
top management was entirely different from the top
management of Alabama Cement Tile Company;
(6) Respondent, as compared to Alabama Cement Tile
Company, maintained its office in a different building,
with a significantly smaller clerical staff performing work
for the local operations (as compared to work apparently at
Alabama Cement Tile Company for other operations of
McCullough Industries also); (7) Respondent was a small
local enterprise as compared to Alabama Cement Tile
Company being a division of McCullough Industries which
had plants elsewhere; and (8) Respondent's wages and
benefits for employees were unrelated to Alabama Cement
Tile Company's wages and benefits for employees.
Considering all of the foregoing, I am convinced that on
February 5, 1965, that there were in existence unusual
circumstances which adversely affected the force of any
presumption of majority status of the union either because
that the Respondent made changes in employment conditions in
deliberate avoidance of bargaining or knowingly avoided dealing
with a known bargaining representative of its employees
50 The General Counsel adduced no evidence to reveal
specifically the number of former Alabama Cement Tile
Company's employees working for Respondent until June 5, 1965
On June 5, 1965, there were 33 former Alabama Cement Tile
Company employees working in Respondent's employee unit of
55 employees
ALABAMA PRECAST PRODUCTS 1003
of the 1955 certification," because the 1954 to 1964
contractual relationship of the Union and Alabama
Cement Tile Company, because of 1964 checkoff
authorizations, or because of evidence of union
membershit, in 1964. Considering all of the foregoing, I am
convinced that to the extent that Respondent may have
had knowledge of any union claim of representation rights
that there existed a good-faith doubt of the existence of a
"successor" enterprise, a good-faith doubt as to majority
status of the Union, and a good-faith doubt as to any
representation rights of the Union.
Considering all of the foregoing, I conclude and find that
the evidence does not establish that on February 5, 1965,
and thereafter, that the Respondent has refused to bargain
with the International Union in violation of Section 8(a)(5)
and (1) of the Act.
The General Counsel contends in effect that the
International Union on June 3, 1965, requested the
Respondent to bargain collectively by honoring and
abiding by the terms of an unexpired collective-bargaining
agreement , that the Respondent has refused since June 8,
1965, to so bargain , and that thereby the Respondent has
violated Section 8(a)(5) and (1) of the Act.
Again, without repeating all of the changes and
circumstances relating to Respondent' s operations, I note
that (1) Respondent's officials, who on June 8 received the
June 3, 1965, request to bargain referring to the 1964
contract (between the Union and Alabama Cement Tile
Company), had had no prior notice of any asserted
bargaining rights from the commencement of their
operations until the referred-to communication
(2)-Respondent had been told by Alabama Cement Tile
Company that there was no union and no union contract;
(3) Respondent's hiring of employees had been undertaken
without regard to whether employees hired had formerly
worked, or not worked, with Alabama Cement Tile
Company; (4) Respondent's employee complement as of
June 5, 1965, consisted of 55 employees as compared to
Alabama Cement Tile Company's normal employee
complement of 140 to 150 employees. Respondent's
employee complement of 55 employees on June 5, 1965,
included only 33 employees who had formerly worked for,
Alabama Cement Tile Company; (5) Respondent's top
'management was entirely different from the top
management of Alabama Cement Tile Company;
{6) Respondent was a small local enterprise as compared
fto Alabama Cement Tile Company's being a division of
`McCullough Industries which had plants elsewhere;
(7) Respondent, as compared to Alabama Cement Tile
Company, maintained its office in a different building,
with a significantly smaller clerical staff performing work
for the local operation (as compared to work apparently at
Alabama Cement Tile Company for other operations of
McCullough Industries, Inc.); (8) Respondent's wages and
benefits for employees were unrelated to Alabama Cement
Tile Company's wages and benefits for employees; and
(9) the evidence as a whole, excepting the June 3, 1965,
letter from the Union, reveals no basis for Respondent's
belief of union interest by any of its employees.
Considering all of the foregoing, I am convinced that on
June 8, 1965, when Respondent received the June 3
request , that there were in existence unusual
circumstances which adversely affected the force of any
presumption of majority status of the Union either because
of the 1955 certification, because of the 1954 to 1964
contractual relationship between the Union and Alabama
Cement Tile Company, because of 1964 checkoff
authorizations, or because of evidence of union
membership in 1964.52
As indicated previously, the Respondent did not reply to
the Union's June 3, 1965, demand that it abide by the
terms of the contract that the Union had had with Alabama
Cement Tile Company. Under the circumstances of this
case I am cohvinced that Respondent's failure to reply to
the June 3, 1965, letter was tantamount to a denial that it
had any obligation to honor such contract. Considering all
of the facts in this case including (1) the fact that Alabama
Cement Tile Company had informed Respondent that
there was no union contract and no union, (2) the fact that
the June 3, 1965, demand was made months after
Respondent had commenced operations on February 18,
1965 , and (3) the unusual circumstances previously set
forth , I am convinced that the evidence preponderates for
a finding that the Respondent had a good -faith doubt on
June 8, 1965 (when it received such demand) and
thereafter that it was a "successor" enterprise , a good-
faith doubt as to the majority status of the Union, and a
good-faith doubt as to any representation rights of the
Union.
Considering all of the foregoing, I conclude and find that
the evidence does not establish that on June 8, 1965, and
thereafter , that the Respondent has refused to bargain
with the International Union in violation of Section 8(a)(5)
of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. International Union of Mine, Mill and Smelter
Workers, and Birmingham Industrial Workers Local
Union#830 are labor organizations within the meaning of
Section 2(5) of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. The evidence does not establish that the Respondent
Si Considering the facts in this case , I note that if (because of
the 1955 certification ) it were presumed that 51 percent of the
Alabama Cement Tile Company's employees were in favor of the
Union prior to cessation of business , it could only be presumed
that around 17 (51 percent of 33 employees who had formerly
worked for Alabama Cement Tile Company) of Respondent's
employees in a normal complement of 55 employees were for the
Union. There is no basis in the facts of this case to believe that
any of the other "new" employees were for the Union If (because
of the tally of votes in the election preceding the 1955
certification) it were presumed that approximately 63 percent of
the Alabama Cement Tile Company ' s employees prior to
Alabama Cement Tile Company' s cessation of business were in
favor of the Union, it could only be presumed that around 21 (63
percent of 33) of Respondent ' s employees in a normal
complement of 55 employees were for the Union. Evidence as to
any presumption (of union interest by former employees at
Alabama Cement Tile Company) on any other basis would be
entirely speculative inasmuch as there is no precise evidence as
to union membership excepting the testimony of Anderson (for
the International Union) who testified to the effect that at some
time between 1954 and 1964 that all Alabama Cement Tile
Company' s employ[ es were union memh-rs but that in 1964 that
"not all" of the employees were union members.
52 See fn 51 as regards the presumption problem.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has engaged in conduct violative of Section 8(a)(5) and (1)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record, and pursuant to
Section 10(c) of the Act, it is recommended that the
complaint in this matter be dismissed in its entirety.
Hanford Sentinel , Inc. d/b/a Hanford Sentinel
and Fresno Printing Pressmen 's Union
No. 159 , International Printing Pressmen
and Assistants ' Union of North America,
AFL-CIO, Petitioner . Case 20-RC-6974.
April 12,1967
DECISION ON REVIEW, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN MCCULLOUCH AND MEMBERS
JENKINS AND ZAGORIA
Pursuant to a Decision and Direction of Election
issued by the Regional Director for Region 20, an
election by secret ballot was conducted on July 15,
1966, under his direction and supervision in the unit
found appropriate. At the conclusion of the election,
the parties were furnished a tally of ballots which
showed that of approximately 14 eligible voters, 10
cast ballots, of which 6 were for and 4 against, the
Petitioner. Thereafter, the Employer filed timely
objections relating, inter alia, to the conduct of the
election.
In accordance with the Rules and Regulations of
the National Labor Relations Board, the Regional
Director conducted an investigation of the objections
and, on September 8, 1966, issued and duly served
on the parties his Supplemental Decision and
Certification of Representative, in which he
overruled the objections in their entirety.
Thereafter, the Employer filed a timely request for
review of the Regional Director's Supplemental
Decision.
By telegraphic orders dated December 19, 1966,
and January 10, 1967, the National Labor Relations
Board granted the request for review and stayed the
certification of representative. The Petitioner then
filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
Upon the entire record in this case, including the
facts set forth in the Regional Director's
Supplemental Decision, the request for review, and
the Petitioner's brief, the Board makes the following
findings:
The Employer, which operates a daily newspaper,
objected to the refusal of the Board agent to allow
163 NLRB No. 135
two eligible voters, Carrell and Gonsalves, to cast
ballots. Objection 2 states:
Just before 10:00 a.m., on July 15th, the
Board Agent made an announcement that it was
about time to start the voting. It was a rather
subdued statement, and with the commotion in
the room due to noisy machinery and activity
his announcement was not generally heard.
Messrs. James Carrell and James Gonsalves,
however, were just then going by the polling site
on their way to the darkroom and heard the
announcement. They stopped and asked to be
permitted to vote. The Board Agent told them
that they could not vote yet, that they would
have to wait until the polls opened or come back
after the polls opened. So they rushed on to the
darkroom, which is in the same area and only a
few feet away from where the polls were set up,
where they had work in process that would not
allow them to stand around and wait. Mr.
Carrell went along to help Mr. Gonsalves
expedite completion of the work so that they
could get back and vote. Subsequently, the
Board Agent personally notified all the other
employees except Carrell and Gonsalves to
come and vote. Carrell and Gonsalves were not
able to keep exact account of the time while in
the darkroom but they knew the operation that
they were engaged in would take only ten,
possibly fifteen, minutes. They walked out of
the darkroom to vote and found the polls had
just closed. Mr. Carrell immediately went to the
Board Agent and insisted that they had not had
an opportunity to vote and that they wanted to
vote. The Board Agent said he was sorry but the
voting was over with, and there was nothing that
could be done. It was noted, however, that no
opening or counting of the ballots had yet been
undertaken.
The Regional Director, without questioning the
facts alleged in the objection, found that the polls
were open from 10 a.m. to 10:15 a.m., as scheduled;
that both employees had read the notice of election
and were aware that the polling period was from
10 a.m. to 10:15 a.m.; and that the location of the
polling place was near the darkroom. He stated that
"Carrell and Gonsalves could have interrupted the
operation of hand loading the film magazine of the
photon machine at any time during the process
without damage to the film" and cast their ballots.
He concluded that the two employees had ample
opportunity to vote during the polling period, and
that there was no abuse of discretion in the Board
agent's refusal to permit them to vote after the polls
closed.
The Employer's request for review disputes the
Regional Director's finding that the employees could
have left the darkroom to vote during the scheduled
voting period and argues that there was no
justification for the Board agent's refusal to allow
them to vote. The Petitioner's brief notes that the