Alliance Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1972

198 N.L.R.B. 646 (N.L.R.B. 1972)

646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alliance Industries , Inc. and Local Lodge No. 1948,
International Association of Machinists and Aero-
space Workers, AFL-CIO . Case 26-CA-4149
August 2, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On March 20, 1972, Trial Examiner Owsley Vose
issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions to
the Decision and a supporting brief, and Respondent
filed cross-exceptions and a supporting brief.
Pursuant to the provisions-of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions.
We agree with the Trial Examiner that the
Respondent violated Section 8(a)(1) of the Act by
stating, in effect, that it would never recognize the
Union and that the Respondent could do more for
the employees than the Union could. Unlike the
Trial Examiner, we further find that the Respondent
is a successor employer and is thereby obligated to
recognize and bargain with the Union.
As the Trial Examiner points out, factors which
indicate that the Respondent is a successor employer
include its operating in the same plant as its
predecessor without any break in the continuity of
operations, with substantially the same production
and maintenance personnel, and with only a minor
change in supervisory personnel. While it is true that
the Respondent is honoring its agreement with its
predecessor not to produce particular items which
amounted to 50 to 75 percent of the predecessor's
business, with the exception of these items, the
Respondent is operating with the same equipment
utilized by its predecessor, and all of the products
being manufactured by the Respondent are products
which were formerly manufactured by the Respon-
dent's predecessor. In these circumstances, we find,
unlike the Trial Examiner, that there is the requisite
continuity in the identity of the Respondent's
enterprise so as to constitute the Respondent a
i Burns International Detective Agency, Inc v N L.R B, 406 U S. 272
(1972), Lloyd A Fry Roofing Co, Inc, 192 NLRB No 117 We find that
Respondent 's offer of proof as to its good-faith doubt of the Union's
majority status is inadequate in that it fails to indicate that an uncoerced
majority of employees expressed a desire to disaffiliate from the Union
successor employer as that term is used in labor law
terminology.
Although we note, as did the Trial-Examiner, that
the Respondent was, at the time of the trial,
exploring the possibility of marketing a new product,
we consider such evidence to be speculative. Con-
cerning the Respondent's alleged good-faith doubt as
to the Union's majority status, we find that under the
circumstances of this case, this assertion is no
defense to the Respondent's refusal to recognize or
bargain with the Union. In this regard, we note that
at the time the Respondent succeeded to its predeces-
sor's business, the Union had been 'certified as the
employees' collective-bargaining representative and
that there was in effect a current collective-bargain-
ing agreement between the Union and the Respon-
dent's predecessor. We further note that the Respon-
dent hired a sufficient number of its predecessor's
employees so that such employees constituted a
majority of the Respondent's full complement of
employees. In these circumstances, we conclude that
neither the severance by sale of part of the certified
unit's work nor the Respondent's alleged good-faith
doubt as to majority status, predicated on such
severence and resulting diminution in the labor force,
is sufficient to destroy the validity of the certification
where, as here, the purchased unit is appropriate.'
Accordingly, we find that the Respondent violated
Section 8(a)(5) of the Act by refusing to recognize
and bargain with the Union.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the
Union is a labor organization, within the meaning of
the Act.
2. All production and maintenance employees
employed at Respondent's Newport, Arkansas,
plant, excluding all office clerical employees, profes-
sional employees, guards, watchmen, and supervisors
as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. Local Lodge No. 1948, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, is the exclusive representative of all
employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
4. By refusing, on or about October 4, 1971, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
Moreover, because no point in time is indicated in the offer of proof as to
when approximately nine employees allegedly expressed dissatisfaction with
the Union, we are unable to determine whether, in fact , such employees
constituted a majority of unit employees
198 NLRB No. 97
ALLIANCE INDUSTRIES , INC. 647
representative of all its employees in the appropriate
unit, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
5. The Respondent has engaged in interference,
restraint, and coercion in violation of Section 8(a)(1)
of the Act, by stating that it will never recognize the
Union while at the same time making veiled promises
of benefits in order to induce them to reject union
representation.
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit.
(b) Post at its plant at Newport, Arkansas, copies
of the attached notice marked "Appendix." 2 Copies
of said notice, on forms provided by the Regional
Director for Region 26, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to, comply
herewith.
2 In the event 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
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals enforcing an
Order of the National Labor Relations Board "
APPENDIX
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Alliance Industries, Inc., Newport, Arkansas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Stating to its employees that it will never
recognize Local Lodge No. 1948, International
Association of Machinists and Aerospace Workers,
AFL-CIO.
(b) Making veiled promises of benefits in order to
induce its employees to reject union representation.
(c) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Local Lodge No.
1948, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
bargaining representative of its employees in the
appropriate unit found above, by failing to recognize
the Union as the majority representative of such
employees.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit, with
respect to rates of pay, wages, hours, and other terms
and conditions of employment.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence, it has been decided that we
violated the law, and we have been ordered to post
this notice. We intend to carry out the order of the
Board and abide by the following:
WE WILL NOT state to our employees that we
will never recognize Local Lodge No. 1948,
International Association of Machinists and
Aerospace Workers, AFL-CIO.
WE WILL NOT make promises of improved
benefits to our employees in order to induce them
to reject union representation.
WE WILL NOT refuse to recognize and bargain
collectively with Local Lodge No. 1948, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive bargaining
representative of the employees in the following
appropriate unit:
All production and maintenance employees
employed at Respondent's Newport, Arkan-
sas, plant, excluding all office clerical em-
ployees, professional employees, guards,
watchmen, and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce the employees in
the exercise of their right to self-organization, to
form, join, or assist unions, to bargain collectively
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through representatives of their own choosing, to
engage in concerted activities for the purposes of
collective bargaining or other mutual aid or
protection , or to refrain from such activities,
except to the extent that such right may be
affected by an agreement requiring union mem-
bership as a condition of employment , as author-
ized in Section 8(a)(3) of the Act.
WE WILL, upon request , bargain collectively
with Local Lodge No. 1948, International Associ-
ation of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive bargaining represent-
ative of all employees in the appropriate unit as
found above.
ALLIANCE INDUSTRIES,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Clifford Davis Federal Building,
Room 746, 167 North Main Street, Memphis,
Tennessee 38103, Telephone 901-534-3161.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VosE, Trial Examiner: This case was heard at
Jonesboro, Arkansas, on January 11, 1972, pursuant to a
charge filed on October 26, 1971, and a complaint issued
on December 9, 1971. The complaint alleges that since on
or about October 1, 1971, the Respondent has been the
successor to Al Craft Products, Inc. (herein called Al
Craft), in the operation of the plant at Newport, Arkansas,
previously operated by Al Craft, and that since the
aforesaid date the Respondent has refused to bargain
collectively with the Charging Party (herein called the
Union) and has refused to honor the terms of a contract
entered into on July 14, 1971, by Al Craft and the Union,
and that by engaging in this and certain other acts of
interference, restraint, and coercion, the Respondent has
violated Section 8(a)(5) and (1) of the Act. The Respondent
filed an answer in which it admitted that it had refused to
bargain collectively with the Union and that it had refused
to honor the contract with Al Craft, alleging that it was not
a successor to Al Craft and hence was not legally obligated
to honor the Al Craft contract. The Respondent denied in
1 The General Counsel's unopposed motion to receive into evidence
G C Exhs 5 and 8(a) through (f) is hereby granted The General Counsel's
its answer that it had engaged in the acts of interference,
restraint, and coercion alleged in the complaint. After the
trial, the General Counsel and the Respondent filed
thorough briefs which have been carefully considered.
Upon the entire record in the case1 and from my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Arkansas corporation , is engaged at
Newport, Arkansas, in the manufacture of certain hard-
ware items for mobile homes and recreational vehicles.
Since it commenced operations on October 4, 1971, it has
shipped more than $50,000 worth of manufactured items to
out-of-state destinations . Upon these facts I find, as the
Respondent admits , that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Lodge No. 1948, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent's Refusal To Bargain Collectively
With the Union and its Refusal To Honor the
Contract Between the Union and Al Craft Products,
Inc., in Alleged Violation of Section 8(a)(5) and (1)
of the Act
1. The issues and the applicable legal principle
Since, as indicated above, the Respondent admits that it
has refused to bargain collectively with the Union and has
refused to honor the contract between the Union and Al
Craft covering the production and maintenance employees
at the plant operated by it at Newport, Arkansas, since
October 4, 1971, the sole issue, on this aspect of the case, is
whether the Respondent is the successor of Al Craft and
therefore subject to the obligations which the body of law
developed under the National Labor Relations Act
imposes upon successor employers.
As stated in a recent decision, Lincoln Private Police, Inc.,
as Successor to Industrial Security Guards, Inc., 189 NLRB
No. 103:
The Board has long recognized that a change in
ownership of a business enterprise does not in itself
absolve the new owner from an obligation, arising
under the Act, to recognize and bargain with the union
that represents the former owner's employees. Where
there is a substantial continuity in the identity of the
employing enterprise, the purchasing employer is
bound to recognize and bargain with the incumbent
union.
Furthermore, where there is such "a substantial continuity
of identity, the purchaser is bound by the collective
bargaining provisions of an agreement between its prede-
further unopposed motion to correct the transcript on p. I I by changing the
name of Joseph McKensey to Joseph McGinnis is also granted
ALLIANCE INDUSTRIES, INC.
cessor and a union." Ranch-Way, Inc. v. N.L.R.B., 445
F.2d 625, 627 (C.A. 10). "Where, however, the nature or
extent of the employing enterprise, or the work of the
employees, is substantially changed, the transfer of apart,
or even all, of the physical assets does not carry along with
it the duty of the former owner to continue bargaining with
the former exclusive representative." Cruse Motors, Inc.,
105 NLRB 242, 247.
In determining whether there has been a substantial
continuity in the identity of the employing enterprise, the
Board has not accorded controlling weight to any single
factor, but has evaluated all the circumstances present in
any given case in arriving at an ultimate conclusion.
Among the factors taken into consideration by the Board
are whether the purchaser holds itself out as a successor;
whether there has been a substantial continuity of the same
business operation with the purchaser manufacturing
substantially the same products or offering substantially
the same services; whether the purchaser uses the same
plant, machinery, equipment, and methods of production;
whether the purchaser utilizes substantially the same work
force and supervisors; and whether substantially the same
jobs exist under similar working conditions. Royal Brand
Cutlery Company, 122 NLRB 901, 908-909; Randolph
Rubber Company Inc., 152 NLRB 496, 499; Apex Record
Corporation, 162 NLRB 333, 338; Ellary Lace Corp., 178
NLRB 73, 76-78; Pargament Fidler, Inc., 173 NLRB 696;
J-P Mfg., Inc., successor to Traverse City Manufacturing,
Inc., 194 NLRB No. 161.
2. The facts
For approximately 3 years prior to October 1, 1971, Al
Craft engaged in the manufacture of window and screen
door hardware for residences, mobile homes, and recrea-
tional vehicles at a plant at Newport, Arkansas, which it
leased from the city of Newport. Al Craft also engaged in
custom zinc diecasting, stamping, and gear cutting opera-
tions at the Newport plant. Gerald Critelli, the president of
the Respondent, who for several months in 1971 had been
the superintendent in charge of the plant for Al Craft,
testified that 75 percent of the business of Al Craft was in
window or jalousie operators (the crank mechanisms which
are used to open or close awning windows and jalousies).
Ruby Pabst, who had worked for Al Craft for about 3
years as a production worker and who was a union
steward, testified that about 50 percent of Al Craft's
business was in operators. I find that the major portion of
the Al Craft's business, between 50 and 75 percent, was in
operators.
Following an election on April 14, 1969, the Board's
Regional Director at Memphis, Tennessee, on April 22,
1969, issued his Certification of Representatives designat-
ing the Union as the exclusive bargaining representative of
Al Craft's production and maintenance employees. There-
after, Al Craft and the Union entered into a comprehensive
collective-bargaining contract, which was succeeded by a
second contract, executed on July 13, 1971, which was to
expire at the earliest on July 14, 1972.
2 According to the Respondent 3 of these 18 employees were placed in
positions outside the Al Craft appropriate unit, Roy Roberts being placed in
charge of purchasing and sales , Joseph McGinnis being put in a research
649
As indicated above, Gerald Critelli assumed the duties of
plant superintendent for Al Craft on May 15, 1971. After
several months on the job, observing that the business of
Al Craft was declining and that it was in financial trouble,
Critelli resigned on August 15 and accepted employment
with another enterprise, Modular Housing. Having knowl-
edge of Al Craft's problems and sensing that it might be
receptive to offers to dispose of the business' Critelli
commenced negotiations to take over Al Craft's operations
or part of them.
After securing financial backing and making arrange-
ments for the incorporation of Alliance Industries, Inc., the
Respondent herein, Critelli succeeded in negotiating a
sublease agreement between Al Craft and the Respondent,
effective October 1, 1971. In the sublease agreement it was
agreed that Al Craft, as the sublessor, would lease the
Respondent, as the sublessee, its Newport plant premises
and some of its own equipment for 1 year beginning
October 1, 1971. The agreed-upon monthly rental payment
was to be paid by the Respondent to a bank in Newport to
be applied towards Al Craft's indebtedness to the bank and
satisfaction of its rental obligations to the city of Newport
as the owner of the premises and certain of the manufac-
turing equipment, pursuant to the original lease agreement.
The sublease also provided that Alliance would pay Al
Craft a fixed sum for certain raw materials, work in
progress, and inventory on hand, or, upon expiration of the
lease, to replace these items with like items having a value
equivalent to that specified in the sublease. The sublease
was for a 1-year term and granted the Respondent an
option to renew for three successive 1-year terms.
John P. Keyser, a vice president of both Al Craft and its
parent corporation, Al Craft Industries, Inc., came to
Newport from Hialeah, Florida, where Al Craft Industries'
plant is located, to finalize the sublease agreement. On
Thursday, September 30, Keyser announced to the Al
Craft employees and posted a notice in the plant which
stated that: "All Employees of Al Craft Products, Inc. will
be discharged effective September 30, 1971. This is due to
the fact that Al Craft Products, Inc. will cease to do
business at this time." Later that day, Gerald Hughes, Al
Craft's general plant foreman, passed out employment
applications headed in hand printing "Alliance Industries,
Inc." Hughes told the employees to whom he gave the
applications to fill them out and come to the plant on
Monday if they wanted to work. No work was performed
at the plant on Friday, October 1.
Of the 23 or 24 employees in the appropriate unit who
were at work on September 30, 1971, the last day on which
Al Craft was engaged in business at Newport, 18 of them
were put to work by the Respondent on Monday, October
4.2 A 19th former Al Craft employee was put to work on
October 7. Thereafter, in October and November, 3 more
Al Craft employees were put to work, bringing the total of
former Al Craft employees hired by the Respondent to 22
out of 23 or 24, with 3 of these being placed in nonunit
jobs. Commencing on October 24 the Respondent hired
five new employees (not Al Craft employees at work on
and development job, and Alfred Henderson being named general plant
foreman
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 30) for jobs in Al Craft appropriate unit.
However , by the end of the year, only one of these was still
in the Respondent 's employ, the others having been
terminated for one reason or another , including unsatisfac-
tory performance and declining business . By the end of
1971, 9 of the 23 or 24 former Al Craft employees had been
terminated for business and other reasons. As of the date
of the trial on January 11, 1972, the Respondent had only
10 production and maintenance employees , of whom 9
were former Al Craft employees.
With respect to the supervisory situation before and after
the sublease agreement was entered into, the facts are as
follows: From August 15 to October 1, Gerald Hughes, the
general plant foreman , was the top supervisor of day-to-
day operations at the Al Craft plant ; when the Respondent
commenced operations , Hughes was named plant superin-
tendent ; and Alfred Henderson, a former die caster in the
appropriate unit , was made general plant foreman by the
Respondent . Henderson , however, continues to do some
production work. Under all the circumstances , I do not
regard the addition of another layer of supervision below
Hughes as effecting a substantial change in the supervisory
situation at the plant.
Before discussing the nature of the business engaged in
and the nature of the work performed by the employees at
the Newport plant before and after the sublease agreement,
it is necessary to consider certain provisions in the sublease
agreement because of the changes effected by these
provisions in both the nature of the business and the nature
of the work performed at the plant . The sublease
agreement provided that all the machinery and equipment
used in making window and jalousie operators would be
shipped to the plant of Al Craft's parent company, Al Craft
Industries , Inc., in Hialeah , Florida , and that the Respon-
dent during the initial or any extended term of the sublease
would not compete with Al Craft in the manufacture of
window and jalousie operators. Al Craft agreed that it
would not compete with Respondent in the manufacture of
tailgate hardware and window operator extensions.
Pursuant to the terms of the sublease agreement, the
machinery and equipment used by Al Craft in the
manufacture of operators was gradually shipped to Florida
commencing shortly after October 4. After completing the
running of a few operatorjobs in process at the time of the
changeover , which took about 10 days, no more operators
were made at the Newport plant . The manufacture of
operators formerly made at Newport was thereafter carried
on at the plant of Al Craft Industries , Inc. at Hialeah,
Florida.
After the Respondent commenced operations at New-
port , it concentrated on obtaining orders for and making
more of the other items which the plant was equipped to
manufacture . Up until the time of the trial in the case the
Respondent had not obtained any new machinery or
equipment with which to make new items. However,
because of the competitive situation , the Respondent at the
time of the trial , was exploring the possibility of making
other items not previously made at the plant, including an
electronic burglar and fire alarm system.
In view of the fact that the manufacture of operators
constituted from 50 to 75 percent of Al Craft' s business,
without this business the Respondent was forced to effect
considerable changes in its operations . While the Respon-
dent obtained some business from Al Craft 's customers, it
had to seek out many new customers for the fewer items
which it was making to bring the volume of business up to
a profitable level. The Respondent sent out brochures in its
own name , with no reference being made to Al Craft, in an
effort to obtain new business . During the period of time
covered by the record in this case , the Respondent never
did achieve a volume of business comparable to Al Craft's.
The Respondent 's sales were $25,000 to $28 ,000 per month
as compared with Al Craft 's sales of $40 ,000 to $50 ,000 per
month in a comparable period.
As a result of the loss of the operator business, which
constituted the bulk of Al Craft 's business , the Respon-
dent's employees were necessarily required to a considera-
ble extent to work on different machines and to make
different items . While I do not wish to imply that different
skills were required on the machines to which they were
assigned (the record does not afford an adequate basis for
making a finding either way in this regard ), it cannot be
doubted that the nature of the work of a majority of the
employees changed after the loss of the operator business.
3. Conclusions
Reviewing the foregoing facts , it is apparent that some of
the factors which the Board takes into consideration in
determining whether a purchaser of a business is a
successor point to the conclusion that the Respondent is a
successor to Al Craft, whereas other factors point to the
opposite conclusion . The fact that the Respondent as-
sumed Al Craft's obligations under its lease to the city of
Newport and some of its financial obligations , and that the
Respondent commenced operating in the same plant
without any break in the continuity of operations, with
substantially the same production and maintenance per-
sonnel , and with only a minor change in supervisory
personnel , point to the former conclusion . On the other
hand, the fact that the Respondent could no longer
manufacture operators , which caused the Respondent to
change very substantially the product mix and to seek out
new customers for its substantially reduced product line,
and which resulted in a change in the nature of the
operations and the products made by a majority of the
Respondent's employees, tends to support the conclusion
that there was not such a continuity in the identity of the
employing enterprise as to constitute the Respondent a
successor employer, as that term is used in labor law
terminology. On balance, I conclude that the facts last-
above summarized carry the greatest weight . It appears
wholly inequitable to hold that a contract negotiated by
another employer having an established business and an
established product line is binding upon another distinctly
independent employer who takes over the business in a
greatly changed form , with a substantially reduced product
line, and with many of the uncertainties ahead of it of an
employer first starting out in a new business . For these
reasons, I conclude that the Respondent is not a successor
to Al Craft within the meaning of the decisions discussed
in point III A, 1, above, and that the Respondent,
therefore , has not violated Section 8 (a)(5) and ( 1) of the
ALLIANCE INDUSTRIES, INC. 651
Act by refusing to recognize and bargain collectively with
the Union and by refusing to honor Al Craft's contract
with the Union.
B. The Respondent 's Acts of Interference, Restraint,
and Coercion in Violation of Section 8(a)(1) of the
Act
violated Section 8(a)(1) of the Act . American National
Stores, Inc., 195 NLRB No. 3; Southwire Co. v. N.LR.B.,
393 F.2d 106, 107 (C.A. 5); Waycross Sportswear, Inc. v.
N.L.R.B., 403 F.2d 832, 834 (C.A. 5); NLRB. v. Patent
Trader, Inc., 415 F.2d 190, 198-199 (C.A. 2).
CONCLUSIONS OF LAW
Gerald Critelli, the Respondent's president, assembled
the employees in the lunchroom on two occasions about a
week or 10 days after the Respondent commenced
operations at Newport. During one or the other of these
meetings, Critelli, as he admitted, told the employees that
the Respondent would not recognize the Union' s contract
with Al Craft and that he would never recognize the
"present Union." Critelli went on to say, as he testified,
that in his opinion, "as we were not bound by a Union
contract, we felt we could do more for the employees" than
the Union could. According to Ruby Pabst, whose
testimony I credit, Critelli stated at one of these meetings
that he was going to build a new lunchroom, closed in and
away from the working area. When one of the employees
asked about insurance benefits at one of these meetings,
Critelli answered that the Respondent would have the
same or better protection, as Critelli testified.
Critelli's action, after denying the Union's right to
continue to represent the employees in announcing that the
Respondent would never recognize the Union, while at the
same time holding out the prospect of improved employee
benefits without the Union, was clearly calculated to and
naturally tended to restrain the Respondent's employees in
their continued adherence to the Union, and therefore
1. The Respondent is not a successor to Al Craft and
therefore is not required to assume Al Craft's collective-
bargaining obligations.
2. The Respondent has not violated Section 8(a)(5) and
(1) of the Act by refusing to recognize and bargain
collectively with the Union and by refusing to honor the
contract between Al Craft and the Union.
3. The Respondent has engaged in interference, re-
straint, and coercion in violation of Section 8(a)(1) of the
Act by stating that it will never recognize the Union while
at the same time making veiled promises of benefits in
order to induce them to reject union representation.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain acts of interference , restraint and coercion, my
recommended Order will direct the Respondent to cease
and desist therefrom , and to take certain affirmative action
designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]