Briggs Plumbingware, Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1987

286 N.L.R.B. 1189 (N.L.R.B. 1987)

BRIGGS PLUMBINGWARE
Briggs Plumbingware , Inc. and Glass„ Pottery, Plas-
tics & Allied Workers International Union,
AFL-CIO, CLC. Case 31-CA-15279
27 November 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 25 July 1986 Administrative Law Judge Mi-
chael D . Stevenson issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions, supporting briefs, and answering briefs.
The Charging Party filed cross-exceptions and an
answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 as modified herein3 and to adopt the
recommended Order as modified.4
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
2, 4, and 6.
1189
"2. Local 255, Glass, Pottery, Plastics and Allied
Workers International Union, AFL-CIO, CLC and
Glass, Pottery, Plastics and Allied Workers Inter-
national Union, AFL-CIO, CLC are, and have
been at all times herein, labor organizations within
the meaning of Section 2(5) of the Act.
"4. At all times since at least 1982, the Union, by
virtue of Section 9(a) of the Act, has been, and is,
the exclusive representative of the employees in the
unit described above.
"6. Since 29 October 1985, Respondent em-
ployed a substantial and representative work
force."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Briggs Plumbingware , Inc., Colton, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Delete paragraph 1(b) and reletter the subse-
quent paragraphs.
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
' The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit . 1951).
We have carefully examined the record and find no basis for reversing
the findings-
2 We note that NLRB v. Fall River Dyeing Corp , 775 F.2d 425 ( 1st Cit.
1985), enfg 272 NLRB 839 (1984), was affirmed by the Supreme Court
subsequent to the issuance of the judge 's decision here. 482 U.S. 27
(1987).
Chairman Dotson did not participate in RCA Del Caribe, 262 NLRB
963 (1982), or Dresser Industries, 264 NLRB 1088 (1982), cited in fn 15 of
the judge's decision . The Chairman expresses no view here on whether
those cases were correctly decided but, absent a majority to overrule
them , considers himself institutionally bound to apply that precedent in
this case
8 In affirming the judge 's conclusion that the Respondent violated Sec
8(aX5) by refusing to recognize and bargain with the Union, we rely only
on his analysis as it relates to his alternative finding that the Respondent
employed a substantial and representative work force on 29 October
1985
In response to exceptions from both the General Counsel and the Re-
spondent, we will correct the judge's misidentification of the Charging
Party International Union , rather than its Local 255 , as the exclusive bar-
gaining representative of the Respondent 's unit employees.
We shall delete from the judge's recommended Order the provision di-
recting the Respondent to cease and desist from coercing evidence from
employees of alleged good-faith doubt of the Union 's majority status inas-
much as such unlawful conduct was neither alleged nor fully litigated.
4 The General Counsel 's exceptions urge modification of the recom-
mended Order to include a provision for a visitatorial clause authorizing
the Board, for compliance purposes, to obtain discovery from the Re-
spondent under the Federal Rules of Civil Procedure under the supervi-
sion of the United States court of appeals enforcing this Order Under the
circumstances of this case, we find it unnecessary to include such a
clause.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain
collectively with the Union as the exclusive collec-
tive-bargaining representative of the employees in
the following unit:
If production and maintenance employees em-
ployed by us since on or about 29 July 1985,
at the premises located at 330 W. Citrus
Street, Colton, California, excluding all other
employees, including office, clerical, account-
ing, technical and professional employees,
watchmen , guards and supervisors as defined
in the Act.
WE WILL immediately recognize and, on request,
bargain with the Union as the exclusive collective-
bargaining representative of the employees in the
bargaining unit described above, and embody in a
286 NLRB No. 121
1190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signed agreement any understanding which may be
reached.
BRIGGS PLUMBINGWARE, INC.
Richard S. Zuniga, Esq., for the General Counsel.
Douglas A. Darch and Rex Sessions, Esq& (Seyforth, Shaw,
Fairweather & Geraldson), of Chicago, Illinois, for the
Respondent.
Carl S. Yaller, Esq., of Media, Pennsylvania, for the
Charging Party.
Patricia S. Waldeck, Esq. (Wohlner, Kaplon, Phillips,
Vogel, Shelley & Young), of Los Angeles, California,
for witness Leonard D. Moore.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
This case was tried before me at San Bernardino, Cali-
fornia, on 30 April, 1 and 2 May 1986,1 pursuant to a
complaint issued by the Regional Director for the Na-
tional Labor Relations Board for Region 31 on 25 Febru-
ary 1986, and which is based on a charge filed by Glass,
Pottery, Plastics & Allied Workers International Union,
AFL-CIO, CLC (the Union) on 9 September. The com-
plaint alleges that Briggs Plumbingware , Inc. (Respond-
ent) has engaged in certain violations of Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act).
Issues
1. Whether Respondent is a successor -employer to
Colton-Wartsila, Inc.
2. If Respondent is a successor-employer , did it have a
duty to recognize and to bargain with the Union in good
faith over the terms and conditions of employment, and
if so, when did the duty begin.
3. If Respondent is a successor-employer, did Re-
spondent entertain a good- faith doubt of the Union's
majority status, based on objective evidence and under
conditions free of Respondent 's unfair labor practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally , and to file briefs . Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, Union, and the Respond-
ent.
On the entire record of the case, and my observation
of the witnesses and their demeanor , I make the follow-
ing
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits that it is a Michigan corporation
engaged in the manufacture of bathroom fixtures and
having a plant located in Colton, California. It further
admits that during the past year, in the course and con-
duct of its business it has sold and shipped goods and
' All dates refer to 1985 unless otherwise indicated
materials valued in excess of $50,000 to customers out-
side the State of California. Accordingly, it admits, and I
find , that it is an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits , and I find, that Glass, Pottery,
Plastics & Allied Workers International Union, AFL-
CIO, CLC is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
About 14 June Respondent and Colton-Wartsila, Inc.
(C-W) entered into a 10-year lease agreement in which
the latter agreed to lease to Respondent the premises lo-
cated at 330 W. Citrus, Colton, California, under certain
terms and conditions (Jt. Exhs. 3, 4). Effective 29 July,
Respondent assumed control of the plant. For the first
several weeks, Respondent 's employees generally per-
formed cleanup and maintenance.
1. Background and history of plant
The General Counsel' s witness , James White, had
worked in the same plant under several different employ-
ers for approximately 31 years. C-W purchased the plant
in October 1979 from its prior owner Familian. Familian
had in turn purchased the property from Crane Pacific
which had built the facility in 1951, under its original
name, Crane Company. All owners or lessees of the
property since 1951 engaged in the same basic business,
the manufacture and sale of bathroom fixtures. White
began his employment in 1955 and over the years
worked in all or most of the departments.
The manufacturing plant is divided into two primary
buildings, separated by a railroad track. Under C-W, the
south plant made steel tubs and was represented by a dif-
ferent union. Respondent uses the building primarily as a
warehouse facility, and its plays little or no role in this
case.
On the other hand, the north plant is directly involved
in this case . Approximately 1000 feet long and several
hundred feet wide, this plant was large enough to con-
tain the various production departments necessary to
manufacture bathroom fixtures. The process begins with
the making of molds and ends with final inspection of
the finished product, followed by packing and shipping. I
will provide a step-by-step description of this process
below.
2. Background and history of C-W ownership and
transition to Briggs
About 16 October 1980 a majority of C-W bargaining
unit employees selected the Union by secret ballot as
their representative for collective-bargaining purposes.
On or about 27 January 1982 the Union was certified by
the Board as the exclusive collective-bargaining repre-
BRIGGS PLUMBINGWARE 1191
sentative of the C-W unit employees.2 The appropriate
unit under Briggs is described as„
All production and maintenance employees em-
ployed by Respondent since or about 29 July, at the
premises located at 330 W. Citrus Street, Colton,
California. [Jt. Exh. 2.]
Except for the dates and employer, the unit under C-W
was substantially equivalent to that for Briggs . Under C-
W, approximately 116-120 employees were in the unit
and approximately 22 production supervisors were em-
ployed between 1 July 1984 through 29 June (Jt. Exh. 8).
This did not include the plant manager and various other
"white collar" managers (Jt. Exh. 7).
A collective-bargaining agreement between C-W and
the Union was agreed to for the period 15 December
1982 through 14 December (Jt. Exh. 14).
The products made by C-W' included toilet bowls,
water tanks, lavoratories, and, until a few months before
it stopped production, small urinals (G.C. Exh. 3). To
produce these products, the plant was organized around
various departments such as mold , slip and glaze, cast,
spray and greenware, inspection, kiln, fit and pack, ship-
ping and receiving, and maintenance (Jt. Exh. 7).
In early June, C-W officials announced to employees
that Briggs would be leasing property and starting its
own operations. Beginning on 25 June, C-W began re-
ducing its work force through periodic terminations of
groups of employees. Curiously, the final employees
were terminated as of 1 August (one employee) and 2
August (six employees), some 3 or 4 days after Respond-
ent had begun operations on 29 July (Jt. Exh. 9). Ac-
cording to Respondent witness Douglas Lalama, director
of employee relations for Respondent's parent company,
J. P. Industries of Ann Arbor, Michigan, C-W employ-
ees continued after 29 July, due to a "misunderstanding"
involving a C-W supervisor. For his error, the supervisor
was punished by not being offered employment by Re-
spondent.
For those C-W employees and supervisors who were
selected for employment by Respondent, some were
called at their homes beginning in July by Lalama or a
deputy, to ask whether they were interested in employ-
ment with Briggs. One, General Counsel's witness,
Donald Jones, a caster for C-W, was told by Lalama that
Respondent was looking for persons with his expertise.
For those who expressed interest in employment with
Respondent, they were told to await receipt of a letter
providing further details. Differing only as to addressee,
and rates of pay, the form letter sent to all or most C-W
employees hired by Briggs reads as follows (G.C. Exh.
2):
July 18, 1985
Mr. Ignacio J. Chavez
1651 Riverside Ave., Apt. 613
Rialto , CA 92376
Dear Mr. Chavez:
2 The Board's Order is reported at 259 NLRB 1244 (1982)
As you are aware , effective Friday, July 26,
1985, Colton-Wartsila, Inc. is going out of business.
Briggs Plumbingware, Inc., which is a subsidiary of
the Ann Arbor, Michigan based J. P. Industries,
Inc. has entered into an agreement with Colton-
Wartsila, Inc. to lease the Colton plant starting on
July 29, 1985.
Briggs Plumbingware , Inc. manufactures sanitary
pottery at four plants and steel bathtubs in one plant
in the United States. We intend to make substantial
changes in the layout of the Colton plant, as well as
make changes to the machinery and equipment and
the manufacturing processes so that we can begin to
produce a limited line of pottery similar to that
which is now being produced at the other Briggs
plants. We will be combining and consolidating all
operations before we begin production of the new
pottery line. We will be operating a new and differ-
ent type of operations at our Colton plant.
To help us begin operations at our new Colton
plant, we need a solid group of highly-motivated
employees. Accordingly, we are pleased to offer
employment to you effective Monday, July 29,
1985. On that date, if you accept our offer of em-
ployment, you will initially be classified as a general
production worker. You will be involved in refit-
ting the plant and rearranging machinery and equip-
ment as well as building molds in preparation for
production. When production finally starts (hopeful-
ly within eight to twelve weeks), you will be of-
fered work in jobs where you are most qualified.
In addition , this offer of employment is made to
you as a new employee under the following terms
and conditions.
1. You will initially be paid at an hourly rate
of $10.00.
2. You will receive the following holidays:
Near [sic] Year's Day, Good Friday, Independ-
ence Day, Memorial Day, Labor Day, Thanks-
giving Day, Day After Thanksgiving, Christmas
Eve, and Christmas Day. To be eligible for holi-
day pay, you must work the full scheduled hours
of the five day period preceding and immediately
following the holiday.
3. You will receive the following vacation ben-
efit: For one year worked you will receive two
weeks vacation; for ten years worked you will re-
ceive three weeks vacation; and after twenty
years worked you will receive four weeks vaca-
tion.
Eligibility for full vacation pay shall be based
on two factors, a) twelve months continuous em-
ployment since the employee 's last anniversary
date; and b) seventeen hundred (1,700) hours
worked during such continuous employment
since the employee's last anniversary date. Briggs
will recognize your length of service at Colton-
Wartsila for purposes of vacation entitlement.
4. Finally, you will be covered by a compre-
hensive HMO health insurance plan which re-
1192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quires that you contribute $13.67/week. You will
also be covered by a $2,000 life insurance policy.
Finally, I want to add a personal note . Briggs be-
lieves in the potential and importance of all of its
employees . We believe that all of our employees
should participate in all aspects of our business. We
are confident that by working together as a team
we can build a new company which develops a rep-
utation for manufacturing good quality products
which can be sold at a competitive price. If we
build a strong business together we can all hope for
a promising future.
If you wish to accept our offer of employment,
you must report to work at 7:00 A.M. on Monday,
July 29, 1985, with a copy of this letter signed by
you. If you have any questions with regard to this
offer of employment, please contact me at the fol-
lowing number (313) 663-6749. I hope that you will
accept our offer of employment. As soon as we
begin operations and I have the opportunity to
spend more time at the plant, I look forward to per-
sonally welcoming you to the Briggs Plumbing-
ware, Inc. family.
Very truly yours,
/s/ Douglas J. Lalama
Douglas J. Lalama
Director - Employee Relations
I accept Briggs Plumbingware, Inc.'s offer of em-
ployment under the terms and conditions as set
forth above:
Dated:
DJL/ig
(G.C. Exh. 2).
Approximately 42 offers of employment were tendered
to the first group of former C-W employees, at least two
of whom had been C-W supervisors. Of this group, 39
accepted and reported for duty on 29 July. Except for
the molders, who were assigned immediately to begin
the production process by making molds, all or most of
the others were assigned to general cleanup and mainte-
nance. This work lasted for several weeks. General pro-
duction began on or about 24 September.
Some former C-W employees rehired by Briggs, were
not hired under the above-described procedure. For ex-
ample, General Counsel's witness Richard Duran was re-
quired to make written application for employment on 23
September. Then, after a physical, Duran was hired on
25 September as a greenware inspector. Later he
changed jobs at the plant.
3. Background and history of Briggs ownership
Once Respondent began operations on 29 July, the
plant manager was Daniel Schelker, a witness for Re-
spondent. Unlike many other Briggs' employees,
Schelker had not been a former C-W employee. Schelker
began his relationship with Briggs on or about 15 June as
an independent contractor-consultant. As of 29 July,
Schelker's title changed slightly when he became acting
plant manager. He was formally named to that position
on 1 November. Part of Schelker's testimony related to
various changes made by Respondent in the plant.
First, the unit of employees was reduced, from 122-
124 under C-W to 105-106 under Briggs. Next, over sev-
eral months, approximately 1 million was spent by Re-
spondent on the newly acquired C-W plant, which under
Briggs was valued at about $4-5 million. The renova-
tions in the plant consisted of sandblasting and painting
interior walls, and scraping and cleaning floors down to
the cement. A set of new windows was installed in the
kiln room to keep drafts and dust out.
Other evidence showed that additional modifications
were made in some of the production departments. For
example, the mold department was moved from the east
end of the plant to the west end. This had been the origi-
nal location of the mold department under prior owners,
before it had been moved under C-W. The casting shop,
although not physically moved, had some of its features
revamped . Production of tanks was moved to another
area in the plant, as was the final inspection department.
Several other changes in production were generated
by Respondent's management , all with a goal of increas-
ing efficiency, production, and profits. Where C-W had
54 job classifications, Respondent had only 6. Where C-
W fabricated 30 shapes in 12-13 colors, Respondent had
8 shapes in 3-5 color. Respondent's molds were lighter
by 18-25 pounds than C-W's. With all of the changes
made by Respondent, its final products bear a remarkable
resemblance to the final products of C-W. Compare
photos of Respondent's bathroom fixtures (R. Exhs. 15-
21) to photos of C-W's bathroom fixtures (G.C. Exh. 3).
Moreover, the production process used by Respondent
remained essentially the same as that used by C-W. This
process and certain pertinent information is described as
follows:
(1) Production of molds started immediately on
July 29, first day under Respondent;
(2) Molds were first cast on September 24. This
means the molds were filled with casting slip (liquid
plastic) and pieces were formed ultimately intended
to be bowels, tanks or lavoratories;
(3) Cast pieces are dried into what is called ex-
pectant, first done on September 30;
(4) Cast pieces are inspected, again, first done on
September 30;
(5) Cast pieces are glazed, which means they are
spray painted with glaze material;
(6) Pieces, now called ware, are placed in shuttle
kiln (oven) where glaze is baked on piece for about
36 hours (kiln lit on September 16, and first ware
placed into kiln on September 30);
(7) Wares are given final inspection within 24
hours after exit from kiln;
(8) Wares are tested and if defective returned for
reworking;
(9) Wares have fittings attached and are then
packed;
(10) Wares are shipped to customers.
BRIGGS PLUMBINGWARE 1193
4. Briggs' relations with employees and with the
Union
The General Counsel called as a witness Jesse Garcia,
International representative for the Union, to relate his
account of events involving a series of meetings with
Company Representatives Lalama, Schelker, and others.
Garcia learned of the Briggs' takeover in late June.
Shortly after this, he was contacted by Paul Blalock, in
charge of employee relations for Briggs ' Colton plant.
Since July 1981, Blalock had also worked for C-W,
doing the same work he did for Briggs . Blalock arranged
a "feeling out" meeting on 2 July between Garcia and
Dan McArdle, vice president and general manager of the
seven Briggs' Plumbingware plants located around the
country. McArdle's office was in Tampa, Florida. Also
attending on behalf of Briggs was Blalock , Lalama,
Schelker, and another company official. Garcia was ac-
companied by Benny Espinoza, president of the local
union, then current C-W employee , and soon-to-be
Briggs' employee . Very little happened at this meeting as
company officials declined to discuss union interests, but
did promise to keep Garcia informed of matters of con-
cern.
On 21 July, Garcia met with Schelker and Blalock and
a day or two later talked by telephone with McArdle.
All of these conversations involved Garcia's complaint
of what he believed to be a lack of good faith by Briggs
for sending out letters to employees (G.C. Exh. 2), with-
out consultation with the Union. Garcia considered this a
form of direct dealing . McArdle told Garcia not to
worry about these matters and referred to smooth transi-
tions in two other plants that Briggs had recently taken
over. Another meeting was scheduled for about a week
later.
On 29 July, Garcia met with Schelker, Lalama, and
Blalock in Schelker's office. First Garcia was told about
the 39 former C-W employees who had recently accept-
ed offers to work for Respondent. Garcia asked about
the Union's status . Although there is some conflict in the
record, Garcia, Schelker, and Lalama basically agree
that Garcia was told Briggs desired that a majority of
unit employees sign authorization cards. Garcia was also
told by the company officials that solicitation of cards
was authorized so long as that was not done on company
time . Finally, Garcia was told that Lalama was sched-
uled to leave for the airport to return to his home in
Michigan about noon on 31 July. If Garcia could obtain
a majority of signed cards before Lalama left, then
Lalama promised that Briggs would recognize the Union
at its Colton plant. Lalama also promised that McArdle
would arrive in Colton on 8 August and begin negotia-
tions at that time if the Union had obtained a majority of
cards.
After this morning meeting , Garcia, assisted by Espin-
oza, who did not testify, and possibly others, solicited
unit employees to sign authorization cards . However, be-
tween 29 and 31 July, company officials began to hear
reports that cards were being signed only after employ-
ees were being threatened with loss of jobs or insurance
if they did not sign . Reports were also made that solicita-
tions were occurring on worktime. After they were as-
sured that no adverse consequences would result from
either signing or not signing , some employees began
asking foreman and supervisors how to revoke their
cards. I will examine this matter further below and in the
"Analysis and Conclusions" section of this decision.
On 31 July Garcia had two meetings with company
officials. The first, about 10 a.m., involving Schelker and
Lalama in the former's office. Lalama told Garcia about
the reports of threats and solicitations on worktime.
Lalama said he wanted these practices stopped immedi-
ately. Garcia apparently acknowledged some of what
Lalama referred to, saying that a provision in the con-
tract required employees to join the Union within 30
days of employment. Reminded by Schelker that Re-
spondent believed no contract existed at that time,
Garcia acknowledged this fact.
Later that morning , Garcia obtained some cards from
Espinoza which, when added to those already obtained
by Garcia, totaled 29-30 cards. Around noon in an area
of the plant near Blalock's office, Garcia was counting
the cards when he was allegedly interrupted by Blalock.
Blalock took the cards from Garcia, pulled out six, and
said , "These don't count," because they are C-W em-
ployees. Then both men went into Schelker's office,
where Blalock allegedly said to Lalama and Schelker,
"He's got a majority ." Both Blalock and Lalama deny
that Blalock made this comment and Blalock further
denies looking at or counting Garcia's cards.
All witnesses agree that Lalama refused to examine
Garcia's cards saying the matter would be taken up on 8
August when McArdle arrived in Colton. Both Schelker
and Lalama testified that on the morning of 31 July, not
in Garcia's presence , Lalama gave clear instructions to
Schelker and Blalock not to examine any union authori-
zation cards. Lalama said this instruction occurred be-
tween the first and second meeting with Garcia;
Schelker testified it was after the second meeting with
Garcia, as Lalama was hastily leaving to catch a plane.
In any event, I credit Blalock's and Lalama's denial that
Blalock examined Garcia's cards or confirmed Garcia's
majority.3 On the other hand, I credit Garcia's testimony
that he did in fact have a majority of authorization cards
signed by unit members on or before 31 July. According
to Lalama, Briggs had been prepared to recognize and
bargain with the Union as of 31 July. In fact, Lalama
produced at the hearing, a "Recognition Agreement"
dated 30 July which, Lalama testified, he had been pre-
pared to sign (R. Exh. 23). Garcia was not told of this
document at the time because Lalama had decided to
defer action after receiving the reports of employees' dis-
satisfaction referred to above, and described further im-
mediately below.
On 7 August, Respondent formally decided not to rec-
ognize the Union . This decision was reached at a meet-
ing of officials in the plant: McArdle, Schelker, Lalama,
8 In crediting Blalock's testimony, I note that in the "Analysis and
Conclusions" section of this decision , I will find Blalock impeached by
the testimony of Thomas, as to how Blalock received certain of Respond-
ent's evidence on which it bases its claim of good -faith doubt. Nothing is
more common than to believe some, but not all , of a witness ' testimony
NLRB v. Universal Camera Corp., 179 F.2d 749 , 754 (2d Cu 1950), vacat-
ed and remanded on other grounds 340 U S 474 (1951).
1194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Blalock, and a Chicago labor attorney named Mignin.
The decision was based on the following factors:
(1) A list of 10 employees who represented they
had never signed union authorization cards. (R.
Exh. 11)
(2) A list of 12 employees and their handwritten,
dated (except for R. Exh . 8), and signed statements
saying they wished to revoke their previously
signed authorization cards . (R. Exhs . 7a-g, 8, 9a-d,
10)
(3) Reports of supervisors, based on employee re-
ports to the supervisors, detailing threats of loss of
jobs and insurance if the employee did not sign au-
thorization cards.
Much of this evidence was gathered at a meeting of em-
ployees held in the plant on worktime in the afternoon of
2 August. The meeting was expressly authorized by Re-
spondent's officials. Further details of this meeting and
transmission of the lists and written statements to compa-
ny officials will be provided below.
On 8 August McArdle and Lalama met with Garcia
about 3 or 4 p.m. at a local Hilton Hotel . Garcia again
asked for an explanation of the Union's status since Re-
spondent had promised to recognize the Union if Garcia
were able to obtain a majority of cards. McArdle re-
ferred to the threats of job loss and insurance loss that
again Garcia apparently acknowledged. Then McArdle
stated the Company would not recognize the Union, but
desired Garcia to file a petition with the Board for an
election. Garcia refused to do this and instead asked re-
spondent officials to recognize the Union, which they re-
fused to do. Later, on 8 August, Garcia made a formal,
written request for recognition (Jt. Exh. 15). On 28
August, Schelker responded to Garcia's letter, denying
that Briggs is a successor to C-W, and claiming an objec-
tive, good-faith doubt of the Union's majority status.
Again Garcia was advised to file a petition with the
Board for an election (Jt. Exh. 16).
B. Analysis and Conclusions
1. The General Counsel's motions to amend the
complaint
After the General Counsel and the Union rested their
cases, Respondent moved to dismiss on the grounds that
the complaint alleged a failure to bargain with the Inter-
national union, rather than with Local 255 and/or the
International union. The Board's certification runs to
Local 226 of the International Brotherhood of Pottery
and Allied Workers, Seafarers' International Union of
North America, AFL-CIO. See Colton-Wartsila, above,
259 NLRB 1244. Garcia explained that Charging Party
Union is the legal successor to the International union
certified by the Board. Subsequently, Lcoal 226 became
Local 255.
Later in the hearing, the General Counsel again
moved to amend the complaint, paragraph 11, to allege
that on 29 July (rather than 28 August), Respondent un-
lawfully refused to recognize and bargain with the
Union. Both motions to amend were taken under advise-
ment, after Respondent objected essentially on three
grounds: (1) that the General Counsel cannot amend the
pleading after he rested, his case; (2) that the amend-
ments would violate Section 10(b) of the Act; and (3)
that the amendments would violate Respondent's right to
due process. In its brief, Respondent has renewed its ob-
jections to the pending motions to amend. I turn to dis-
cuss this important procedural issue.
Under Section 102.17 of the Board's Rules and Regu-
lations, motions to amend may be permitted "upon such
terms as may be deemed just." Such motions can be
made to the administrative law judge "at the hearing and
until the case has been transferred to the Board," and
even "after the case has been transferred to the Board
... at any time prior to the issuance of an order . . . by
the Board." Based on this compelling authority, there is
no reason to deny the General Counsel's motion merely
because he has rested his case. Rather, based on addition-
al Board authority, there is every reason to grant both of
the General Counsel's motions.
Correcting the name of the Union in the complaint is
correcting a problem of misnomer . In Peterson Construc-
tion Co., 106 NLRB 850, 851 (1953), the Board stated:
Where, as here, the error is one of misnomer and
the proper Respondent has actual notice of the
charge and of the obvious misnomer , to hold that
the statutory requirements of service are not met is
to project legalism to an unwarranted length.4
At pages 32-33 of its brief, Respondent cites certain
Federal cases based on the Federal Rules of Civil Proce-
dure in support of its objections. In Green Construction of
Indiana, 271 NLRB 1503 fn. 2 (1984), the Board noted
that under Section 10(b) of the Act, the Federal Rules of
Civil Procedure are to be followed "as far as practicable,
and the Board has not considered itself bound to apply
case law interpreting these rules in Board proceedings."
Accordingly, the cases cited by Respondent do not apply
here.
Moreover, actions before the Board are not subject to
the technical pleading requirements that govern private
lawsuits. The charge need not be technically precise so
long as it generally informs the party charged of the
nature of the alleged violation. National Maritime Assn. v.
NLRB, 683 F.2d 305, 307-308 (9th Cir. 1982). This prin-
ciple also supports the General Counsel's position.
As the party opposing the motion, the General Coun-
sel has the burden of showing how it would be preju-
diced if the motions are granted. In this respect, I note
that Respondent did not contend that it refused to recog-
nize and bargain with the Union because it was the
wrong entity under Section 9 of the Act. Nor did it
argue that Respondent's failure to act was based on con-
fusion at the time. There is no connection between Re-
spondent's defense to the charges in the complaint and
its objections to the motions to amend. Garcia would
have been prepared to explain to Respondent's officials
4 See also Botany 500, 251 NLRB 527, 530-531 (1980). In this case, the
General Counsel seeks to correct a misnomer of a charging party rather
than a respondent . The equities in favor of granting such a motion are
greater here than in the case of a respondent
BRIGGS PLUMBINGWARE
the Union 's change in names and local number if he had
been asked . Rather the Respondent's position in July and
August was based on their knowledge of exactly who
Garcia was, exactly who he represented, and exactly
what he wanted. Witness Respondent's recognition
agreement (R. Exh. 23) contains the Union's correct
name and local number. There was no confusion then or
now.
Similarly, Respondent 's opposition to the General
Counsel 's second motion to amend need not be discussed
at length . Again, I fail to find now that Respondent
would be prejudiced if the motion were granted. Al-
though this motion, with the first, was taken under ad-
visement , Respondent never asked to call additional wit-
nesses, or recall any witnesses , nor ask any additional
questions, after the motion had been made.
I find no bar to either motion to amend pursuant to
Section 10(b) of the Act. As to the first motion, the
timely charge refers to "the representatives of its em-
ployees" (not otherwise named) (G.C. Exh. la). Clarify-
ing the misnamed Charging Party violates neither the
letter or spirit of Section 10(b) here. Similarly, changing
the date when Respondent is alleged to have violated the
Act does not violate Section 10(b) of the Act. In both
cases, the amendments are based solely on matters arising
out of events set forth in the timely filed charge.5
I find further that the subject matter of the amend-
ments was fully litigated. As noted above, Garcia ex-
plained the change in name of the Charging Party. As to
the second motion, I note that paragraph 10 of the com-
plaint alleges in pertinent part that on or about 29 July
the Union requested Respondent to bargain collectively
as the exclusive collective-bargaining representative of
unit employees . Respondent denies (Br. 79) that para-
graph 10 provides any sort of advance notice to it of the
General Counsel's amendment . I fmd, however, that Re-
spondent was on notice that the General Counsel's
theory encompassed a duty to bargain as of 29 July.
In sum, I grant both of the General Counsel's motions
to amend. Although Respondent cannot be faulted for
opposing the motions-indeed its diligence led to the
motions in the first place-the time has come to proceed
to the substantive issues that are equally significant.
2. The issue of successorship
In considering whether Respondent is a successor to
C-W, I ask first whether there has been an essential
change in the business that would have affected employ-
ee attitudes toward representation. NLRB v. Blu-Foun-
tain Manor, 785 F.2d 195 (7th Cir. 1986). Putting the
question somewhat differently, I also ask whether there
is a substantial continuity in the identity of the business
enterprise . John Wiley & Sons v. Livingston, 376 U.S. 543
(1964).6
In NLRB v. Fall River Dyeing Corp., 775 F.2d 425,
428-429 (1st Cir. 1985), cert. granted May 27, 1986, the
5 Salinas Valley Ford, 279 NLRB 679 (1986), Yellow Cab Co. v NLRB,
787 F 2d 1475 (11th Cir. 1986); NLRB v. Font Milling, 360 U.S. 301
(1959)
6 See also Stephenson Haus, 279 NLRB 998 (1986)
1195
court stated additional principles of law that help to de-
termine successorship:
"[A] mere change of employers or of ownership
in the employing industry," the Supreme Court held
in NLRB v. Burns International Security Services,
Inc.,2 does not affect the Board's certification of a
bargaining unit. The successor employer's obliga-
tion to bargain is founded on the mandate of Sec-
tions 8(a)(5) and 9(a) of the Acts-an employer
must bargain with "[r]epresentatives designated or
selected for the purposes of collective bargaining by
the majority of the employees in a unit appropriate
for such purposes."4 The successor employer's obli-
gation also arises from the rule that a mere change
in ownership does not destroy the presumption of
continuing employee support for a certified union.5
"The basic rationale is that a mere change in own-
ership, without an essential change in working con-
ditions, would not be likely to change employee at-
titudes toward representation."6 If, after a change
in ownership, the essential nature of the enterprise
remains unchanged, and a majority of the "new"
firm's employees or management were employed by
the predecessor company, the new employer is con-
sidered the old employer's "successor." As such,
the new employer must recognize the incumbent
union and deal with it as the bargaining representa-
tive of the employees.?
2 406 U.S. 272, 279, 92 S Ct 1571, 1577, 32 L Ed.2d 61, 68
(1972)
8 29 U S C Sections 158(a)(5) and 159(a).
4 Id. Section 159(a)
s See NLRB v. Burns Int'l Sec. Serys, 406 U.S. at 277-79, 92
S Ct at 1577 , 32 L.Ed 2d at 67-68; see also Aircraft Magnesium,
265 NLRB 1344, 1345 (1982), enforced, 730 F 2d 767 (9th Cir
1984) (table)
6 Premium Foods, Inc. v NLRB, 709 F 2d 623, 627 (9th Cir.
1983) (emphasis in original); see NLRB v. Band-Age, Inc, 534 F.2d
1, 6 (lst Cir 1976), cert denied , 429 U.S 921 , 97 S.Ct 318, 60
L Ed 2d 288 (1976).
7 NLRB v. Burns Intl Sec. Servs, 406 U S. at 279-81, 92 S.Ct.
at 1577-79, 32 L.Ed. 2d at 68-69, NLRB Y. Band-Age, Inc, 534
F 2d at 3.
The presumption of continuing majority support attaches
at the point in time when the new owner comes to
employ a majority of the employees who worked for the
predecessor.7
In determining whether an employer must recognize
and bargain with a union that has represented the em-
ployees of the former employer , the Board looks to the
totality of the circumstances to determine whether there
has been a substantial and material alteration in the em-
ploying enterprise . NLRB v. Boston Needham Cleaning
Co., 526 F.2d 74, 77 (1st Cir. 1975 ). The "totality of the
circumstances" is frequently broken down into a list of
factors to be examined in each case where successorship
is in issue:
7 Stephenson Haus, above at 279 NLRB 998
1196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1) substantial continuity of the same business op-
erations;
(2) use of same plant by new employer;
(3) employment of same or substantially the same
work force;
(4) existence of same jobs under same working
conditions;
(5) employment of same supervisors;
(6) use of same machinery, equipment and meth-
ods of production;
(7) manufacture of same products.
Premium Foods, 260 NLRB 708, 714 (1982), enfd. 709
F.2d 623 (9th Cir. 1983). See also Miami Industrial
Trucks, 221 NLRB 1223, 1224 (1975). To this list, an ad-
ditional factor of existence of hiatus between the end of
the predecessor 's operations and the commencement of
the Respondent 's is sometimes added . However, this
factor, like the others, is not dispositive. NLRB v. Band-
Age, 534 F.2d 1, 5 (1st Cir. 1976), cert. denied 429 U.S.
921 (1976). -
I turn now to consider the various factors listed above
in the context of the instant case. In so doing, I will con-
solidate and vary the list of factors as appropriate. I find
abundant evidence to show that Respondent substantially
continued the same business operation as C-W, to wit,
the manufacture of bathroom fixtures. As noted in "The
Facts," above, the brochures of both employees are in
the record. Although the essential manufactured prod-
ucts remained the same, there were some changes in Re-
spondent's design . Further, some of C-W's products were
discontinued. None of these changes are significant.
NLRB v. Band-Age, above, 534 F.2d at 6; NLRB v. Poly-
tech, 469 F.2d 1226, 1230-1231 (8th Cir. 1972).
Respondent took over the same plant, at the same ad-
dress, and even continued the same phone number.
Inside the plant, Respondent used essentially the same
machinery, equipment, and method of production.
Turning next to the key questions regarding personnel,
I find that although Respondent reduced the number of
classifications, the essential jobs of molder, caster, inspec-
tor, sprayer , and packer all remained the same . NLRB v.
Blu-Fountain Manor, above, 785 F.2d 195. See also
Cencom of Missouri, 282 NLRB 253 (1986); Computer Sci-
ence's Corp., 280 NLRB 1 (1986).
As to supervisors, I note that 8 of the 10 C-W line su-
pervisors were rehired by Respondent as supervisors.
Two other C-W supervisors were rehired by Respondent
as unit employees. To this group should be added Bla-
lock, employee relations manager first under C-W, then
rehired by Briggs . Respondent called as witnesses four of
its supervisors, Bucci, Elliott, Benic, and Guillen. Repre-
senting supervision in the cast shop, the maintenance de-
partment, and the kiln, these four witnesses all described
their former supervisory jobs for C-W as identical or
substantially equivalent to their present supervising job.
As described in "The Facts" above, the 10-step pro-
duction process of Respondent remained virtually identi-
cal to that of C-W. This fact meant that Respondent's
employees were performing essentially the same jobs
under the same working conditions as they did under C-
W. The General Counsel called four Briggs employees,
White, Jones, Dalton, and Duran. All were former C-W
employees, although White had been a C-W supervisor
immediately before Respondent took over the business.
After an initial period of cleanup and maintenance, all
began performing jobs for Respondent that they had pre-
viously performed for C-W. That is why they were
hired! Lalama told witness Jones exactly that when the
latter was called in mid-July to determine his interest in
working for Briggs . Lalama's remark is applicable to all
former C-W employees who were rehired.
In its brief, pages 37-40, Respondent makes much of
an alleged hiatus in operations. Assuming without finding
that the hiatus period in this case can be measured as Re-
spondent doess-from mid-June, when C-W ceased cast-
ing and began terminating its employees, to 24 Septem-
ber when Respondent began its operations, I am unim-
pressed with the time period involved and its signifi-
cance. In NLRB v. Fall River Dyeing Corp., above 775
F.2d at 429, a 7-month hiatus occurred. The court af-
firmed the finding of a successorship and viewed the in-
terim period as part of "the normal concomitants of a
new management and a new approach to a failing busi-
ness, not a break in the continuity of the employing in-
dustry."
Perhaps the most critical factors in deciding whether a
successorship exists is whether a majority of the new em-
ployer's unit employees were members of the predeces-
sor's work force. Elal Realty Management, 279 NLRB 6
(1986). The initial 39 employees hired by Respondent on
29 July were all former C-W employees. Of these, one or
two had been former C-W supervisors. Then Respondent
hired several other employees by 1 October. A compari-
son of Respondent's new-hire list (G.C. Exh. 9) to the C-
W employees list (Jt. Exh. 9) indicates that of the ap-
proximately 55 employees working for Respondent as of
1 October, all save 2 or 3 had been C-W unit employees.
In its brief, Respondent does not appear to contest this
critical factor. Rather, it argues that Respondent had dif-
ferent job classifications and pay system, changed work-
ing conditions, and a more beneficient management.
None of these assertions, to the extent they are accurate,
are important enough to change the fact that Respondent
is a legal successor to C-W.9 This inescapable conclusion
is based on the "totality of the circumstances" as re-
viewed in the discussion above.
3. The substantial and representative work force
Although Respondent is a legal successor to C-W,
much yet remains to be done before a final conclusion
can be reached. So far it is not yet clear that Respondent
had a duty to recognize and bargain with the Union.
First I must determine when Respondent had a substan-
tial and representative work force. To explain the con-
cept, I again look to NLRB v. Fall River Dyeing Corp.,
above, 775 F.2d at 430-431, where the court stated the
following:
8 Technically , it could be argued that Respondent's production process
began on 29 July , when the making of new molds began
9 See NLRB v Blu-Fountain Manor, above, 785 F 2d 195 and cases
cited in fn 1 See also Armco, Inc, 279 NLRB 1184 (1986).
BRIGGS PLUMBINGWARE
In a successorship situation, the bargaining obli-
gation can normally be determined at the time of
transfer or when operations begin. In other in-
stances , however, such as when an employer is re-
building a collapsed business or is operating at a
substantially reduced capacity, a delay in making
the determination may be appropriate. As the Su-
preme Court has noted, a determination regarding
the sucessor's obligation to bargain may have to
wait "until the successor employer has hired his full
complement of employees . . . since it will not be
evident until then that the bargaining representative
represents a majority of employees in the unit as re-
quired by Section 9(a) of the Act."
This "full complement" principle, however, has
not been interpreted to require that the examination
of the workforce composition be postponed until
the business is operating at its maximum capacity or
until the employer has completed hiring all of its
bargaining unit employees. Courts have agreed that,
in cases in which the successorship obligation
cannot be determined at the very outset of the tran-
sition, fixing the appropriate date at which the bar-
gaining obligation arises "involves balancing the ob-
jective of insuring maximum employee participation
in the selection of a bargaining agent against the
goal of permitting employees to be represented as
quickly as possible."
These interests are effectively reconciled in the
"substantial and representative complement" stand-
ard applied by the Board in this case. This "stand-
ard embodies the balance between early representa-
tion and maximum participation that lies at the
heart of the `full complement' concept," and it has
met with general acceptance in courts that have
considered this type of successorship problem.
In determining whether a representative comple-
ment existed at a given date, the Board first looks to
see whether the job classifications for the operation
were "filled or substantially filled" and whether the
operation was in "normal or substantially normal
production." The Board also considers the size of
the complement on that date, the time expected to
elapse before a substantially larger complement
would be hired, and the relative certainty of the ex-
pected expansion.
Before considering the various factors listed by the
court immediately above to ascertain when a representa-
tive complement existed in the present case, I must first
answer the related question of when Garcia made an ef-
fective demand for recognition and bargaining on behalf
of the Union. Only when the effective demand and the
substantial and representative work force concepts con-
verge does a successor employer then have a duty to
recognize and bargain with a union.
At this point, I must admit to at degree of confusion. In
its complaint, after amendment, the General Counsel al-
leges that Respondent's duty to bargain was established
as of 29 July. In its brief, page 19, the General Counsel
alleges that Respondent's duty was established as of 31
1197
July when "Garcia's actions ... communicated a suffi-
ciently clear request that Respondent recognize and bar-
gain with Local 255." The Union, on the other hand,
fmds a demand for recognition inferrable on 23 July
when Garcia talked by telephone to McArdle, and on 29
July when Garcia talked to Lalama and others (Br. 7 fn.
8, 22-28).
Thus, the General Counsel and the Union, both of
whom claim 29 July as the date to be included in the
complaint argue in their briefs, 23, 29, or 31 July. I find
that none of the above dates are correct; rather Garcia
made no demand for recognition until 8 August, when
he made an oral request for recognition to McArdle and
Lalama and subsequently wrote the letter to McArdle,
which he received on 13 August (Jt. Exh. 15). I find that
none of Garcia's conversations, prior to 8 August, could
be remotely interpreted as demanding recognition and
bargaining . Garcia may have had a number of reasons
for waiting until 8 August to demand recognition, not
the least of which may have been to ascertain how many
C-W employees Respondent intended to hire.
Now I return to the question of whether Respondent
employed a substantial and representative complement of
unit employees as of 8 August. If not, when. I find that
Respondent did not employ a substantial and representa-
tive complement until 24 September, the date production
formally began.'O In reaching this conclusion, I have
considered the various factors used by the Board and
spelled out above by the court in Fall River Dyeing Corp.
By 24 September, Respondent had, for -the most part,
completed its cleanup, maintenance, and plant refurbish-
ing. The employees hired represented all or most of the
classifications necessary to produce bathroom fixtures.
These were molders, casters, sprayers, and kiln opera-
tors. As of that date, Respondent employed approximate-
ly 40 of C-W's unit employees.
I also find that, by 24 September, the operation was in
substantially normal operation. Casting began on that
date, the second step in the production process after the
making of the molds. As to the other steps in the pro-
duction process such as the drying and inspecting of the
cast pieces, and the placing of the pieces, or ware, into
the kiln oven for baking, this did not begin until 30 Sep-
tember. Subsequent steps began even later. However, the
important point is that since the production process
under C-W had not changed under Respondent, all of
the production steps and the dates on which they were
expected to occur were reasonably forseeable by Re-
spondent. Hence, the operation was in substantially
normal operation.
I find further that no credible evidence exists to show
that Respondent expected and planned for a period of
time to elapse before a substantially larger complement
could be hired, or that planned expansion could occur.
Rather, Respondent relies on prospective events as they
occurred in the record to argue for 29 October as the
key date. I find that Respondent's production was ready
10 Hudson River Aggregates, 246 NLRB 192 (1979), enfd 639 F 2d 865
(2d Cir . 1981) In its brief, pp 55-56, Respondent recognizes in the alter-
native, 24 September, as a date that is reasonable under current Board
authority.
1198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to go on 24 September , even to the extent of using the
former C-W customer list to make sales at an early point.
Compare Myers Custom Products, 278 NLRB 636 (1986).
Even if the size of the employee complement on 24
September is too small by comparison to the approxi-
mately 71 employees employed by Respondent on 29
October and even if planned expansion is found to have
been likely, I ford these factors are outweighed by other
factors discussed above. In the alternative, I ford that by
24 September , it was "perfectly clear" that Respondent
intended to hire a majority of its work force in a unit
represented by a union from the ranks of its predecessor.
Therefore, the duty to bargain with the union com-
mences immediately . Clarion Hotel-Marin , 279 NLRB
481 (1986). Proof of this finding is shown by Respond-
ent's initial recruitment of former C-W employees, the
need for additional employees possessing the same skills
as former C-W employees had, the failure to recruit from
the general population in any meaningful way, and the
fact that subsequent to 24 September, for the next several
months, Respondent did hire all or most of its new em-
ployees from the ranks of C-W employees.
Since the Union 's 8 August demand for bargaining was
not effective until 24 September, when Respondent's bar-
gaining obligation matured, I apply the Board's "continu-
ing demand" doctrine. Grico Corp., 265 NLRB 1344,
1345 fn. 9 (1982), enfd. mem. 730 F.2d 767 (9th Cir.
1984); NLRB v. Fall River Dyeing Corp., above, 775 F.2d
at 432. This avoids the unrealistic burden on the Union
of having to repeatedly demand bargaining when the
Company's obligation to bargain may not mature until
factors occur over which the Union has no control and
the existence of which the Union may not be aware.
Respondent contends, brief, pages 24-27, that the
"continuing demand" doctrine is not legally defensible
and should not be applied in this case. In support of this
tenuous claim, Respondent engages in the risky business
of attempting to interpret the Supreme Court's grant of
certiorari in Fall River Dyeing Corp. The reason for the
Supreme Court 's action, Respondent asserts, is because
the Supreme Court feels "some discomfort with the rule.
Obviously, the Court did not grant certiorari merely to
affirm the lower court" (Br. 25). Unlike Respondent, I
decline to speculate on the Supreme Court's state of
mind; rather I note that the "continuing demand" doc-
trine is current Board law and I am obligated to apply it
to this case which I have done. Accordingly, Respond-
ent's arguments must be addressed elsewhere.
The General Counsel argues that Respondent's duty to
bargain matured as of 31 July, 8 August or 1 October
(Br., 19-21, 23). For its part , the Union also makes alter-
native arguments , stating it would accept 29 July, 8
August, 24 September, 18 October, or any date thereaf-
ter (Br . 26-33).
Since the General Counsel, the Union, and Respondent
have all relied on alternative arguments , I ford it only
prudent to make alternative findings. Accordingly, I
accept for the sake of argument Respondent's contention
that a substantial and representative work force did not
exist until 29 October. In support of this alternative find-
ing, I adopt, as appropriate , Respondent 's argument re-
flected in pages 64-72 of its brief. Because the Board's
"continuing demand" doctrine also applies under the al-
ternative fording, I find, in the alternative, that Respond-
ent's bargaining obligation matured on 29 October.
In conclusion of this portion of my decision, I turn to
Respondent's brief, page 45 fn . 17, where it claims that
"in the instant case , the stipulated Briggs unit differed
from the unit found appropriate at Colton-Wartsila." As
instructed by Respondent, I have compared the stipulat-
ed unit (Jt. Exh. 2), and the unit certified by the Board
in 259 NLRB 1244 (1982). I find the units are virtually
identical except for only slight differences in verbiage,
which is not significant. The unit from C-W remains an
appropriate unit under Respondent and does not affect
Brigg's obligation to bargain. Armco, Inc., 279 NLRB
1184 (1986).
4. The alleged reasonable good-faith doubt of the
Union's majority status
As the concluding issue , Respondent argues that it had
a reasonable good-faith doubt of the Union's majority
status. This allegation, if proven by the evidence, consti-
tutes a defense to the charges contained in the case. I
turn to consider carefully the law and facts affecting the
issue, assuming first the 24 September date, and second,
the 29 October date as the date Respondent had a duty
to bargain with the Union.
a. Preliminary statement of law
Because I have found that Respondent is a successor-
ship to C-W, there is a rebuttable presumption that the
Union enjoys continued majority support. Barrington
Plaza & Tragniew, 185 NLRB 962, 963 (1970), enfd.
denied on other grounds sub nom. NLRB v. Tragniew,
470 F.2d 669 (9th Cir. 1972); Grico Corp., above, 265
NLRB 1344, 1345 (1982), enfd. mem. 730 F.2d 767 (9th
Cir. 1984). To prevail, Respondent must show a good-
faith doubt by clear and convincing proof. Hutchison-
Hayes International, 264 NLRB 1300, 1304 (1982). In ad-
dition, Respondent 's proof must exist in a context free of
unfair labor practices. Choctawhatchee Electric, 274
NLRB 595 (1985).
b. Good faith doubt as of 24 September
On 29 July Respondent offered to recognize and bar-
gain with the Union if Garcia could obtain a majority of
signed authorization cards within 48 hours. As proof of
its willingness to keep its promise Respondent points to
the "Recognition Agreement" in the record (R. Exh. 23).
No mention was made on 29 and 31 July, or anytime
until 28 August, when Schelker replied to Garcia's 8
August letter (Jt. Exh. 16) that Respondent contended
that it was not a successor. Even by 28 August, no ex-
plicit claim is made that Respondent had not hired a sub-
stantial and representative complement.
For his part, on 29 and 31 July, Garcia did not raise
the issue of successorship, demand recognition or bar-
gaining, nor decline to obtain the authorization cards on
the grounds that the law imposes a rebuttable presump-
tion of continued majority support. It is perhaps true that
elements of carefully crafted strategy (read gamesman-
ship) determined the positions of both sides up to this
BRIGGS PLUMBINGWARE 1199
point; however , I decline to speculate further . What is
important is that in attempting to satisfy Respondent's
condition , Garcia and his nontestifying assistant Espinoza
may have committed acts that caused or contributed to
the evidence on which Respondent now bases its claim
of good-faith doubt of the Union's majority status.
Whether Respondent lawfully requested Garcia to obtain
the cards under the circumstances and whether Garcia
and Espinoza coercively obtained the signed cards are
questions that I am unwilling and unable to answer. The
fact is that these matters were not alleged as unfair labor
practices and the issues were not fully litigated. Accord-
ingly , I find myself unable to determine the question of
whether Respondent generated the good-faith doubt by
manipulating Garcia or whether Garcia allowed himself
to be manipulated for reasons of his own . What I can
and will do is examine the three elements of Respond-
ent's alleged good -faith doubt to evaluate their sufficien-
cy and then determine whether Respondent caused or
contributed to these elements in other ways."
To begin, I am instructed by the Board to examine
once again the totality of all the circumstances involved
in a particular case, keeping in mind that a respondent
need not prove that an actual numerical majority op-
poses the union. Moreover, a respondent may rely on
statements of its managers and supervisors who are in
turn relating statements made to them by employees ex-
pressing disaffection for the union . Sofco, Inc., 268
NLRB 159 , 159-160 fn. 9 (1983).
Respondent 's viable evidence of good-faith doubt is
separated into three parts . I begin, as Respondent does
(Br. 52) with employee reports to supervisors. These
conversations occurred between 31 July and 8 August, as
Respondent acknowledges (Br. 52). As a general rule the
evidence of good-faith doubt must be known at the time
of the refusal to recognize and bargain with the Union.
NLRB v. King Radio Corp., 511) F.2d 1154, 1156 (10th
Cir. 1975 ); Orion Corp. v. NLRB, 515 F.2d 81, 85 (7th
Cir. 1975). Here, the evidence shows that Respondent
decided on 7 August not to recognize the Union. The
decision was conveyed to Garcia at the Hilton meeting
on 8 August . However, since I have found that Respond-
ent's duty to recognize and bargain with the Union did
not mature until 24 September, I conclude that any valid
evidence supporting Respondent 's good - faith doubt that
existed prior to 24 September may be fairly considered.
On 5 August employee Phil Sidner told Respondent
witness and Supervisor Robert Bucci that he did not re-
alize how much he paid in union dues and that employ-
ees could negotiate with the Company without the
Union . Another witness and supervisor , Anthony Guil-
len, described a conversation with employee Jimmy Vas-
quez on 31 July to the effect that the latter did not like
11 In light of the analysis above, I decline to consider Respondent's
fourth leg of its alleged good -faith doubt (Br 53) There, Respondent
states that because the Union was forced to threaten employees to gain
signatures , this constitutes further evidence that employees did not want
union representation . I reject this part of Respondent 's theory because, in
this case , the Union may properly rely on its presumption of continued
majority support . Therefore , such cards as may have been gathered do
not support majority status , and the circumstances surrounding their so-
licitation do not detract from majority status Rather , all of this is simply
irrelevant
the Union because it did not do anything for him. On the
same day, Guillen talked to other employees , Scott Seas,
Darryl Craig , David Campbell , and Clifford Reed. All
told the witness that they had no intention of signing a
card for the Union and that they did not like the Union.
On 2 August employee Edward Delarosa told Guillen
that he regretted signing a union card , that had been ob-
tained by threats . Like the others , he also stated he did
not like the Union. Finally , on 8 August , employee Juan
Sabia , Guillen's brother-in-law , told him that he also de-
sired to revoke his card and he did not like the Union
because all it did was drink up the dues money.
All of these remarks were unsolicited by the witnesses
and all of these remarks were reported by the witnesses
to Plant Manager Schelker . Thus, a total of eight em-
ployees expressed disaffection for the Union according to
the testimony of the two witnesses.
Respondent also relied on a list of 12 employees and
their handwritten , dated , and signed (except for R. Exh.
8) statements saying they wished to revoke their previ-
ously signed authorization cards (R. Exhs . 7a-g, 8, 9a-d,
10). The statements are dated either 2 or 6 August. They
are signed by different employees than those who made
comments to supervisors referred to above . None of the
12 employees testified.
Finally , Respondent relies on a written list of 10 em-
ployees who represented they had never signed union
authorization cards (R. Exh. 11). On this list of 10 em-
ployees were the names of 5 employees who had ex-
pressed disaffection for the Union to their supervisors:
Chavez , Seas, Craig, Campbell , and Reed. An additional
person on the list, Jeffrey Thomas , was called by the
General Counsel in rebuttal . I will review his testimony
below.
Thomas, a former C-W employee , was employed by
Respondent as a nonsupervisory blow caster.12 On 31
July Thomas was asked by Espinoza to sign a union au-
thorization card. Thomas refused , but later asked Blalock
if employees had to sign a card . Blalock answered that
they were not required to do so and if they had already
done so, an employee could ask for it back or revoke the
signature on the card.
On 1 August Thomas again approached Blalock. This
time Thomas told him that many employees had signed
cards believing that they were required to do so. Had
they known that they had a free choice , they would not
have signed . Blalock again told Thomas to tell employ-
ees that they could revoke signatures.
On the morning of 2 August , Supervisor Benic notified
Thomas that it was "all right with the company if we
had a meeting to organize to tell people about revoking
their cards" (R. Exh . 634). Thomas, who worked from 7
a.m. to 3:30 p.m. asked, "on company time?" Benic said,
"yes" (R . Exh. 634). Before undertaking to inform em-
ployees about this meeting, Thomas returned to Blalock
for additional authority and instructions : "Well, just
12 During the rebuttal testimony of Thomas, I expressed concern to
the General Counsel that no proper foundation had been established for
his testimony I reaffirm those statements , but consider his testimony, be-
cause it is important, and because the procedural deficiencies are not suf-
ficently egregious to strike the testimony
1200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
before the meeting, I went to Paul Blalock and asked
him, I told him that we were going to have a meeting
that afternoon because originally I wasn 't sure if I could
inform people that there was going to be a meeting. I
told Paul we're going to have it this afternoon in the
tank area . He said just make sure there 's no management
around and that you invite everybody in the plant, not
just a select group." (R. Exh. 635). Before Thomas left
Blalock, he "told Paul that I needed some paper and
pens and he took a pad like a legal pad and folded it and
tore into small pieces like this big and gave me about 6
pens" (R. Exh. 635).
Thomas and another person used worktime to notify
other employees about the meeting . The meeting itself
was held on worktime , about 3 p.m., in the tank casting
area of the plant. During the approximate 15 minutes of
the meeting, between 15-20 employees were present, but
some of these for only a few seconds.
At the meeting, Thomas addressed the assembled em-
ployees and told them what he had learned from Bla-
lock, that employees did not have to sign a union card,
they could ask to have it back, and they could also
revoke them. Thomas also told employees that we could
represent ourselves, we did not need a union (while not
entirely clear, I find the last comment to employees was
Thomas' own thought). Thomas then prepared a list of
names of persons who had not signed cards. He also pre-
pared a list of persons who had signed cards, but desired
to revoke their signatures (R. Exhs. 10-11). Finally,
Thomas collected the written and signed statements of
those employees who desired to revoke their cards (R.
Exhs. 7a-g, 8, 9a-d). At the end of the meeting, Thomas
and another employee named Shields took the written
statements to Blalock's office and gave them to him. As
to the two lists (R. Exhs. 10-11), Blalock told Thomas
not to hand him the lists, but on the following Monday,
ust to place them anonymously through his office mail
slot. Thomas did just that. Blalock had testified that he
had found some of the documents lying on his desk and
others put through his office mail slot . An employee
handed him only two or three.
In crediting all of Thomas ' testimony, I found him a
highly credible witness. Since he was opposed to the
Union, he was testifying against his self-interest. Cf.
Unarco Industries, 197 NLRB 489, 491 (1972). Further-
more, no surrebutal evidence was offered. Clearly, the
General Counsel gambled in calling Thomas because not
all of his testimony complemented the General Counsel's
theory. In any event, I turn now to evaluate Respond-
ent's evidence of good-faith doubt of the Union's majori-
ty status. Then I must determine whether the value of
this evidence may have been compromised by Respond-
ent's involvement in the collection of the evidence.
I begin with the first group of eight employees. Pro-
fessor Morris instructs that "employee dissatisfaction
with the union is generally not deemed indicative of
withdrawal of employee support for the union as bar-
gaining representative [citations omitted] . Dissatisfaction
with the union should be distinguished from opposition
to continued representation by a union."13 Further, the
13 1 Moms, Developing Labor Law (2d d. 1983) p. 658 fn. 692.
Board and courts have long been mindful that "remarks
to management may be affected by a desire to curry the
employer's favor." NLRB v. Tahoe Nugget, 584 F.2d 293,
306 (9th Cir. 1978). Expressions of dissatisfaction with a
union's actions (collecting of cards under time con-
straints , for example) are not the same as repudiation of
the union. N. T. Enloe Memorial Hospital v. NLRB, 682
F.2d 790, 793-794 (9th Cir. 1982). Nevertheless, the re-
marks to supervisors are factors in determining whether
Respondent had a good-faith doubt and I consider them
as such.
In the context of this case, when the 8 employees who
made disparaging remarks about the Union to supervi-
sors are added to the 12 employees who desired to
revoke their authorization cards and the 10 employees
who refused to sign authorization cards, 5 of whom are
included in the group of 8 above, I cannot find that this
constitutes sufficient objective evidence to create a good-
faith doubt in a unit of approximately 40 employees. Cf.
Rohlik, Inc., 145 NLRB 1236, 1241 (1964). The real gist
of this case however, concerns Respondent's involve-
ment in the gathering and securing of the evidence. As
Respondent recognizes (Br. 57), where the General
Counsel presents evidence showing that the Union's de-
cline in support is attributable to the Employer 's miscon-
duct, the Employer's claim of good-faith doubt fails
(Hotel & Restaurant Employees Local 19 v. NLRB, 785
F.2d 796, 799 (9th Cir. 1986)). In this case, the evidence
of Respondent's misconduct consists of the following:
(1) Blalock furnishing paper and pens to Thomas
before the meeting;
(2) Blalock instructing Thomas in the procedures
for holding the meeting-make sure no management
is nearby and that all employees are invited; and
that a majority of employees were needed to reject
the union if the company was not going to have a
Union [R. Exh. 649];
(3) Blalock giving Thomas more information than
was requested , e.g., Thomas asked if signing the
cards was mandatory and Blalock told him how to
get a signed card back or revoke one if getting it
back wasn't possible;
(4) Respondent authorizing a meeting on compa-
ny premises on work time to discuss how to get
signed cards back or how to revoke cards already
signed , where employees had changed their minds;
and authorizing solicitation of employees to attend
the meeting on work time.
The totality of these factors indicates to me that Re-
spondent could not have possessed a good -faith doubt of
the Union's majority as of 24 September because of Re-
spondent 's involvement in creating that doubt . In reach-
ing this conclusion I rely on an abundance of Board au-
thority. In Sacramento Clinical Laboratory, 242 NLRB
944, 945 (1979), enfd . in part 623 F.2d 110 (9th Cir.
1980), the Board noted that a petition signed by 6 of 12
unit employees disavowing representation by the union
was not a reliable indicator of employee sentiment. The
record, the Board said , demonstrated that respondent
was aware of and gave tacit support to the petition, thus
BRIGGS PLUMBINGWARE
rendering it a totally unreliable indication of the union's
loss of majority status . In Martinsburg Concrete Products
Co., 248 NLRB 1352 (1980), the employer had a secre-
tary prepare letters rejecting the union and then present-
ed them to employees to sign, "if they wish to." The
Board rejected this evidence. In Texaco, Inc., 264 NLRB
1132, 1133 (1982), the Board noted that respondent al-
lowed employees to solicit and sign the petition during
working time and provided supervisory assistance in
making the petition available to potential signers. Again
the evidence was held invalid. I find that respondent ini-
tiated and stimulated the activity that led to the employ-
ees to withdraw support from the union.14
In sum , I find that Respondent did more, much more,
than providing mere ministerial aid in the efforts to oust
the Union, Consolidated Rebuilders, 171 NLRB 1415,
1417 (1968); rather the respondent involved itself in fur-
thering employees' efforts directed toward removing the
union as bargaining representative. Placke Toyota, 215
NLRB 395 (1974). Here the meeting occurred on 2
August, some 5 days after 39 of C-W's former employees
had been rehired, at least 2 of whom were rehired as unit
employees after having been supervisors. Employees had
no way of knowing whether the remainder of their
fellow C-W employees would be rehired. The potential
for employer coercion is obvious. A company-sponsored
meeting to obtain antiunion evidence from employees
would naturally attract employees attempting to gain
favor with management. In this case, that natural tenden-
cy was even more pronounced. Thus, when Thomas
made the original contact with Blalock, "for his own
personal knowledge" (R. Exh. 648-649) it was not a dif-
ficult job to turn him, for all intents and purposes, into
an agent of management.
c. Good faith doubt as of 29 October
Assuming arguendo that Respondent correctly estab-
lishes 29 October as the date that its bargaining obliga-
tion matured, I turn to consider the effect, if any, of the
additional evidence of good-faith doubt possessed by Re-
spondent by that date. This single piece of additional evi-
dence amounted to a petition for an election filed with
the Board by a Teamsters local on 18 October (R. Exh.
3). Witness Leonard Moore, a Teamsters business repre-
sentative, testified briefly at the hearing that he was in
charge of the organizing effort and that with the petition
to the Board, 47 signed authorization cards were includ-
ed. They were obtained by an unidentified in house orga-
nizer and given to Moore.
In evaluating this evidence, I note that at the time of
filing of the petition, Respondent had no knowledge of
the number of authorization cards All Respondent knew
is that the petition represented a showing of 30 percent
or more on behalf of another union. I agree with the
Charging Party (Br. 40-41) that the filing of the petition
is of no significance to the issue of the Employer's good
14 Compare Washington Street Foundry, 268 NLRB 338 (1983), in
which employer assistance in the decertification was minimal and consist-
ed only of providing some inconsequential phrases for inclusion in the pe-
tition after an employer asked Compare also Ace Hardware Corp, 271
NLRB 1174 (1984).
1201
faith. Even when added to the other evidence of good-
faith doubt discussed and discredited above, Respondent
had no way to know whether the 30 percent or more of
interest represented by the petition involved the same
employees about whom Respondent was aware as of 2
August. Accordingly, Respondent's defense of good-faith
doubt must rise or fall on the evidence possessed by it on
or before 24 September, the date that I find its bargain-
ing obligation matured. 1 s
THE EFFECT OF THE UNFAIR LABOR PRACTICES ON
COMMERCE
The activities of the Respondent set forth in section 3
above III, found to constitute unfair labor practices oc-
curring in connection with the operations of Respondent
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow thereof.
CONCLUSIONS OF LAW
1. Briggs is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
3. The following described unit of Respondent Briggs'
employees is an appropriate one for collective-bargaining
purposes:
All production and maintenance employees em-
ployed by Respondent since on or about 29 July
1985, at the premises located at 330 W. Citrus
Street, Colton, California, excluding all other em-
ployees, including office, clerical, accounting, tech-
nical and professional employees, watchmen, guards
and supervisors as defined in the Act.
4. At all times since at least 1982, the Charging Party,
by virtue of Section 9(a) of the Act, has been, and is, the
exclusive representative of the employees in the unit de-
scribed above.
5. Respondent Briggs is a successor to C-W and as of
29 July 1985 has employed employees in the above-de-
scribed unit to operate its Colton, California bathroom
fixtures plant.
6. Since 24 September 1985 Respondent employed a
substantial and representative work force.
7. Respondent's evidence was insufficient to create a
good-faith doubt.
8. To the extent, Respondent had objective evidence
of a good-faith doubt, such evidence was coerced and
the product of Respondent's own misconduct.
9. The aforesaid unfair labor pracices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
'b Cf RCA Del Caribe, 262 NLRB 963 (1982), Dresser Industries, 264
NLRB 1088 (1982) Contrary to Respondent 's assertion (Br p 74, fn 25),
RCA Del Canbe continues to be Board law Armco, Inc., above, 279
NLRB 1184.
1202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
THE REMEDY
It having been found that Respondent Briggs violated
Section 8(a)(1) and (5) of the Act, I shall recommend
that Briggs Plumbingware, Inc. be ordered to recognize
and bargain with the Union.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed16
ORDER
The Respondent, Briggs Plumbingware, Inc., Colton
California, its officers, agents , successors, and assigns,
shall
1. Cease and desist from
(a) Coercing evidence from its employees of alleged
good-faith doubt of the Union's majority status.
(b) Failing and refusing to bargain with the Union as
the exclusive collective-bargaining representative of the
employees of the Respondent in the unit described
above.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
16 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees of Briggs in the bargaining unit described
above, and embody in a signed agreement any under-
standing which may be reached.
(b) Post at its Colton, California plant copies of the at-
tached notice marked "Appendix." 17 Copies of the
notice, on forms provided by the Regional Director for
Region 31, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "