C.M.E., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1976

225 N.L.R.B. 514 (N.L.R.B. 1976)

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C.M.E., Inc . and Minnesota Joint Board , Amalgamat-
ed Clothing Workers of America , AFL-CIO. Case
18-CA-4585
June 30, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On March 24, 1976, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
herein.
We agree with the Administrative Law Judge that
Respondent is a successor employer and that it has
violated Section 8(a)(5) and (1) by refusing to bar-
gain with the Union and by unilaterally changing the
hospitalization and other insurance of the unit em-
ployees without prior notice to the Union or oppor-
tunity for bargaining by it.2 However, we cannot
agree with his conclusion that the obligation to bar-
gain commenced on May 6, 1975,3 the date of the
Union's formal demand for recognition.
The Supreme Court in N. L. R B. v. Burns Interna-
tional Security Services, Inc.,a stated, "Although a
successor employer is ordinarily free to set initial
terms on which it will hire the employees of a prede-
cessor, there will be instances in which it is perfectly
clear that the new employer plans to retain all of the
employees in the unit and in which it will be appro-
priate to have him initially consult with the employ-
ees' bargaining representative before he fixes terms."
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 The Administrative Law Judge erroneously found that Respondent in-
stituted a new insurance policy sometime after May 6 The record reveals
that the old policy lapsed on April 30 and the new one was put into effect as
of May I
3 All dates hereinafter are in 1975 unless otherwise specified
4 404 U S 272, 294 (1972)
We believe that the instant case is exactly the situa-
tion referred to by the Court.
As found by the Administrative Law Judge, Re-
spondent became the new owner of the Charmoll
plant on February 20. At a meeting on February 25,
Charmoll Plant Manager Conrad told union repre-
sentatives that a new firm was coming in and that he
had been hired by the new company to be in charge
of the plant. Union Representative Genis asked if the
old employees were going to be rehired and Conrad
replied that he intended to hire all of them and call
them back on a seniority basis.' He told Genis that
he hoped there could be the same easy arrangement
as had existed previously. Possible contract changes
were discussed at this meeting, but no conclusions
were reached.
The hiring process began on March 1. Later in
March, Respondent held an employment meeting of
practically all of the former Charmoll employees at
which President Vacanti asked them to give him their
help in starting the new business. Job applications
were passed out and the completed forms collected.
On March 14 Conrad, now Respondent's vice
president, Genis, and Respondent's president, Va-
canti, met and further discussed contract revisions.
Genis testified he left that meeting with the under-
standing that they had reached an agreement on
terms, which he thereafter embodied in a full redraft
of the contract and later delivered to Respondent.
Vacanti and Conrad met with union representatives
again on April 4. At no time during this meeting did
Vacanti repudiate the agreed-upon changes or men-
tion that he intended to change insurance policies. In
fact, Respondent was fully aware of the Charmoll
contract provision for the insurance policy, and of
the policy. At the April 4 meeting Vacanti asked
about the policy and was provided with the union
brochure describing it. Nonetheless, Respondent per-
mitted the preexisting policy to lapse on April 30 by
not paying the premium, and obtained another poli-
cy without consulting or bargaining with the Union.
On May 6 the Union requested recognition and
bargaining. At this time 31 of the 32 employees hired
were former Charmoll employees. Respondent for-
mally refused to recognize or bargain with the Union
in a letter dated May 22.
On the basis of these facts, we conclude that Re-
spondent made it "perfectly clear" that it planned to
retain all or substantially all of the employees in the
5 Although Respondent 's predecessor , Charmoll, decided at the end of
December 1974 to terminate its operation at Amery, despite the usual post-
Christmas seasonal layoff , more than a usual number of employees were
retained and carved over into January and early February to finish gar-
ments that were in process Moreover, in addition to Plant Manager Con-
rad, who had continuous employment at the Amery plant dunng the transi-
tion from Charmoll's to Respondent ' s operation , there were at least four
Charmoll rank-and-file employees who were held over and enjoyed continu-
ous employment at the plant in the transitional period.
225 NLRB No. 68
C.M.E., INC
unit as of February 25, and that the obligation to
bargain, including the setting or altering of initial
terms of employment, commenced on that date rath-
er than May 6. However, since no unilateral changes
were made until April 30, when Respondent allowed
the previous insurance policy to lapse and obtained
another policy, we shall only order Respondent to
make whole the employees for any loss of benefits
they may have suffered as a result of Respondent's
unilateral failure to pay the premium on the preexist-
ing insurance policy thus allowing it to lapse on April
30, and by its unilateral institution of a different in-
surance policy on May 1.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent,
C.M.E., Inc., Amery, Wisconsin, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order as so modified:
1. Substitute the following paragraph for para-
graph 1(c):
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed under Section 7 of the Act."
2. Substitute the following paragraph for para-
graph 2(b):
"(b) Make whole the employees of said unit for
any loss of benefits they may have suffered as a re-
sult of Respondent's unilaterally allowing the previ-
ous insurance policy to lapse on April 30, and insti-
tuting of new insurance on or after May 1, 1975, with
interest at 6 percent per annum, and continue such
restitution until such time as Respondent negotiates
in good faith with the Union to agreement or to im-
passe."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively
with the Minnesota Joint Board, Amalgamated
515
Clothing Workers of America, AFL-CIO, as the
exclusive bargaining representative of the appro-
priate unit of our production and maintenance
employees, comprising all cutters, operators,
shipping and receiving employees, examiners,
and all other related production workers, includ-
ing maintenance, service, and janitorial employ-
ees employed at our Amery, Wisconsin, facility,
excluding executive personnel, administrative
employees, and supervisors as defined in the
Act.
WE WILL NOT change the insurance and other
terms of employment of our Amery, Wisconsin,
employees without prior notice to and consulta-
tion with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed under
Section 7 of the National Labor Relations Act.
WE WILL, upon request, bargain with the
Union as the exclusive bargaining representative
of the above-described unit of our production
and maintenance employees at Amery, Wiscon-
sin.
WE WILL make whole the employees of said
unit for loss of benefits they may have suffered
as a result of our allowing the previous insur-
ance policy to lapse and unilaterally instituting a
new policy.
C.M.E., INC.
DECISION
HERZEL H.E. PLAINE, Administrative Law Judge: The
question presented is whether Respondent, a manufacturer
of snowmobile wear and other winter garments, operating
the acquired plant and machinery of the predecessor man-
ufacturer of similar garments with a majority of the
predecessor 's employees , is in contemplation of the Na-
tional Labor Relations Act (the Act) the successor employ-
er, bound to recognize and bargain collectively with the
Charging Party (the Union) that represented the
predecessor's employees and that had a collective-bargain-
ing contract with the predecessor.
The General Counsel contends that Respondent was
such successor employer. A complaint was filed on July 8,
1975,' alleging that Respondent acquired the plant and
machinery of the predecessor, Charmoll Fashions Inc.
(Charmoll), on February 20, 1975, and thereafter, using
former Charmoll employees, commenced manufacturing
operations; but that Respondent has violated Section
8(a)(1) and (5) of the Act since May 21, 1975, by refusing
in bad faith to bargain with the Union after its demand for
bargaining.
1 On a charge filed by the Union on May 29, 1975.
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent contends that it had no obligation to
recognize or bargain with the Union: (1) because of the
alleged absence of a majority of the former Charmoll em-
ployees among Respondent's production and maintenance
workers on August 25, 1975, when, says Respondent, it had
hired its full complement of employees; (2) because there
was no continuity of enterprise from predecessor Charmoll
to Respondent, since Respondent did not acquire
Charmoll's inventory of goods and allegedly manufactured
a different line of goods from that manufactured by Char-
moll; and (3) because Respondent had and has a good-
faith belief that its employees do not want the Union as
their collective-bargaining representative.
The case was heard on September 30 and October 1,
1975, at Balsam Lake, Wisconsin. General Counsel and
Respondent have filed briefs.
Upon the entire record in the case, including my obser-
vation of the witnesses and consideration of the briefs, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Minnesota corporation with its princi-
pal office in Mendota Heights, Minnesota, and a clothing
manufacturing plant at Amery, Wisconsin.
In the 12-month period commencing May 1, 1975, which
period Respondent concedes is representative of its opera-
tions for the times material herein, Respondent admits that
it will gross revenues in excess of $500,000, and will have
received at Amery, Wisconsin, materials valued in excess
of $50,000 from points outside Wisconsin, and will have
shipped goods valued in excess of $50,000 from Amery,
Wisconsin, to points outside Wisconsin. As the parties con-
cede, Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
As the parties also concede, the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
If. THE UNFAIR LABOR PRACTICES
A. The Predecessor 's Business and Contract With the Union
According to the testimony of Harry Katz, president and
chief executive officer of Charmoll Fashions, Inc. (Char-
moll), supplemented by the testimony of his plant manag-
er, Donald Conrad, and of several employees, Charmoll, a
company based in St. Paul, Minnesota, established its Am-
ery, Wisconsin, sewing plant in 1968 at 215 Keller Street.'
In 1971, Charmoll acquired a new building at 215 Power
Street, to which it moved the plant and, with added new
equipment, continued operations until February 20, 1975,
when it sold the Power Street plant-land, building, and
machinery-to Respondent C.M.E. Inc.
The business of Charmoll at Amery was manufacturing
outerwear for men, women, and children. In 1974 its prod-
ucts were snowmobile clothing, ski wear, western style
quilted wear, hunting coats, and certain other women's
outerwear. Among Charmoll's customers in 1974 were Po-
laris Industries, for whom Charmoll did work in the range
of $350,000 under the Polaris label; Rupp Manufacturing
of Ohio, for whom Charmoll did about $80,000 work under
Rupp's label (both of these were largely snowmobile cloth-
ing); Advanced Garments of Minnesota for whom Char-
moll made hunting coats; and Funk Seed for whom Char-
moll made some western style quilted working jackets. In
each of the lines where the clothing was not labeled with
the customer's label, Charmoll also produced the same or
similar garments under its own labels, such as Igloo for
snowmobile clothing, Anorak for ski wear, and Double K
for western styles.
Charmoll President Katz spent about 20 percent of his
time at Amery. In daily charge of production from the
beginning in 1968 was Plant Manager Conrad, a salaried
employee, who had been with the company even before the
start of the Amery plant. Conrad did the actual hiring of
employees, though Katz maintained control of payroll by
requiring home office approval of hirings and keeping the
payroll records at the home office in St. Paul.
According to Charmoll President Katz, employment
fluctuated between seasonal peaks and valleys. The fourth
quarter of the year-October, November, and early De-
cember-was the busiest period, with peak employment in
early December at about 60 to 65 employees. By the end of
December it would drop to 10 or 15 employees and for
most employees there was a lengthy layoff in January and
February, with callbacks in March and April.
The plant operated on both daytime and nighttime
shifts. Although some employees were on piecework pay
rates and others on hourly pay rates, all employees
punched a timeclock.
The Charmoll's Amery plant was unionized in 1968, fol-
lowing an election and Board certification of the Union as
the employees' representative. A collective-bargaining con-
tract was agreed upon in 1968, and the most recent renewal
was entered into on July 25, 1973, retroactive to December
31, 1972, and effective until December 31, 1976 (G.C. Exh.
6). The bargaining unit comprised production and mainte-
nance workers (more particularly described in art. I of the
contract, G.C. Exh. 6, and in par. 6 of the complaint), and
included all employees at the plant except Plant Manager
Conrad and the plant office secretary (sometimes called
receptionist) Peggy LaBlanc.
The union contract has a union-security clause that re-
quires union membership for all bargaining unit employees
after an initial period of employment (with 30-60-day van-
ations, art. III), and union dues were paid by checkoff.'
B. The Transfer
2 There was a wholly owned subsidiary, Charmoll Inc of Wisconsin, of
which Charmoll President Katz was also the chief executive officer, and
which had the function of employing the people at the Amery plant, but all
property, including the plant and products, and all sales, including the final
sale of the plant, were in the name of the parent company Likewise, the
collective-bargaining contract was in the name of the parent company
According to Charmoll President Katz, he and his asso-
ciates, comprising the officers and board of Charmoll, de-
3 G C Exh 9 was the last checkoff list prepared by the Union for the
employer for November 1974
C.M.E., INC. 517
cided to discontinue the Charmoll operation of the Amery
plant in late December 1974.
Charmoll tried to find someone in the same or related
business to sell to and take over the Amery plant as a going
operation, but did not succeed. Charmoll terminated oper-
ation as a going business in January before it sold the plant
in mid-February 1975, but did continue to complete goods
with materials on hand into February.
According to Eugene Vacanti, president of Respondent,
the purchaser of the plant, Respondent had hitherto been a
marketing consulting and promotional firm, principally for
two snowmobile accounts, Artic and Rupp, for whom it
had done, among other things, clothing research and de-
sign, and was itself looking for an opportunity to get into
related clothing manufacturing. Vacanti learned of the op-
portunity to acquire the Charmoll business at Amery
through a Joe Patten, president of Hawkeye Sports of Des
Moines, Iowa. Initially, said Vacanti, he explored the Char-
moll acquisition as a point venture with Hawkeye, but de-
cided that Respondent would go it alone.
Charmoll had defaulted on its December 1974 mortgage
payment in the Amery bank, Union State of Amery. The
bank was interested in finding a purchaser to avoid the
necessity to foreclose; and a civic group, Amery Industrial
Development Corporation, was sufficiently interested in
keeping employment and business in Amery to consider, at
Vacanti's suggestion to it on February 6, buying the plant
and leasing it to Vacanti's company (testimony of Presi-
dent Sondreal of the development corporation, and Presi-
dent Olson of the bank). Shortly thereafter Vacanti
dropped the leasing suggestion and with the aid of the
bank worked out a direct purchase by Respondent from
Charmoll, which was consummated in an agreement be-
tween the two companies on February 20, 1975 (G.C. Exh.
11).
As described by Charmoll President Katz and Union
State Bank President Olson, the arrangement was that
Charmoll sold to Respondent Charmoll's Amery plant-
land, building, machinery, and other personal property,
but not inventory or accounts receivable. Attachment B to
General Counsel's Exhibit 11 itemizes the machinery and
personal property sold to Respondent, and covered, as
Katz testified, all of Charmoll's personal property at Am-
ery. On its part, Respondent assumed the Charmoll real
estate mortgage held by Union State Bank, and a Charmoll
mortgage held by the Small Business Administration; and
Respondent paid Charmoll $140,000 for its equity in the
land and building, and $18,000 for its equity in the machin-
ery. The agreement contemplated that part of the $158,000
paid Charmoll would be turned over to the Union State
Bank of Amery and the American National Bank of St.
Paul to satisfy their liens or chattel mortgages on the ma-
chinery; but according to Katz all of the $158,000 went to
satisfy the bank liens.
Charmoll was not in a position to sell to Respondent any
inventory or materials on hand or accounts receivable, be-
cause in accordance with its longstanding business practice
it annually "sold" its accounts receivable to a factor, Ra-
leigh Moses of Chicago, and obtained advance loans from
the factor on the receivables, which loans were secured by
a factor's lien that included the Charmoll inventory and
materials to indemnify the factor against loss . As a result of
Charmoll's December decision to dispose of its Amery
plant, the factor called due its outstanding loans in January
1975, and by agreement with Charmoll took peaceable pos-
session of the inventory and materials at the Amery plant
in late January. The factor, Raleigh Moses, requested
Charmoll to complete any work in process and Charmoll
complied, keeping or putting the necessary employees on
its payroll. Plant Manager Conrad continued to function
throughout, remaining on the Charmoll payroll in January
(see G.C. Exh. 8, Charmoll payroll for first quarter 1975)
until factor Raleigh Moses claimed possession of the inven-
tory; then briefly on the Raleigh Moses payroll (by ar-
rangement with Charmoll) as governing agent to conserve
the inventory for the factor; and then on the CME payroll
when Respondent took possession of the plant either on or
shortly after February 20, 1975. Prior thereto, and either
before or immediately after the February 20 transfer of
plant ownership to Respondent, Conrad had given CME
President Vacanti a commitment to stay on and operate
the plant for Respondent, and in turn Respondent commit-
ted itself to making Conrad vice president of CME. Con-
rad went on the payroll as Respondent's vice president, at
the same salary paid him by Charmoll, but thereafter re-
ceived an increase, he testified.
Going back to the end of December 1974, when Char-
moll decided to terminate the plant operation at Amery
and to sell out, hopefully as an operating business, Presi-
dent Katz gave Plant Manager Conrad instructions to ad-
vertise and conduct a closeout or going-out-of-business
sale in a leased space at the nearby town of Forest Lake.
The Amery plant employees were to be informed, and were
informed, that Charmoll was going out of business at Am-
ery, and that the ensuing layoff of whomever was affected
was not the usual post-Christmas seasonal layoff but a ter-
mination of employment. However, more than a usual
number of employees were retained and carried over into
January and early February 1975, said Katz, to finish gar-
ments that were in process. In the first few weeks of Janu-
ary these garments were put on racks for sale at Forest
Lake, where Charmoll also added for sale some additional
merchandise from its St. Paul plant, said Conrad. None of
the Amery employees took part in the closeout sale at For-
est Lake, according to Katz, but when the factor took pos-
session of the inventory and materials of the Amery plant
in late January, the Amery employees on the Charmoll
payroll continued to finish goods in process for the benefit
of the factor (and in reduction of Charmoll's indebtedness
to the factor).' General Counsel's Exhibit 8 lists the em-
ployees and their earnings with Charmoll in the first quar-
ter of 1975. These included, said Katz, the employees en-
gaged in the finishing work in January and February, and,
among those shown receiving the smaller payments, some
employees who were paid holiday and vacation pay that
accrued to them under the union contracts
4 When the Amery plant was sold to Respondent , the remaining invento-
ry and materials were shipped to a warehouse in Minneapolis where they
were held by the factor under its lien, according to Katz
5 G C Exh 7 lists the Charmoll Amery employees and their earnings for
the fourth quarter of 1974, and G C Exh 10 lists the Charmoll Amery
Contin ued
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to Plant Manager Conrad, who had continu-
ous employment at the Amery plant during the transition
from Charmoll's to Respondent's operation, there were at
least four Charmoll rank-and-file employees who were held
over and enjoyed continuous employment at the plant in
the transition to operation by Respondent. As identified by
Conrad, and by General Counsel's Exhibit 8 and Re-
spondent's Exhibit 4 (Respondent's employment list as of
August 25, 1975) these were employees Muriel Pankonien,
Jerome Omernik, Bernard Swager, and Henrietta Swager.
These four were among the larger number of employees on
the Charmoll payroll who engaged in finishing up the
Charmoll inventory for the factor in January and Febru-
ary, and the four moved onto the CME payroll, without
any break or layoff, doing some plant maintenance, work
on samples and patterns, and other work, in accordance
with President Vacanti's orders. As Conrad testified, in the
changeover period he had a dual responsibility, one to the
factor to protect its inventory, the other to Respondent to
get things going for its operation. Vacanti testified, at first,
that he paid the heldover employees out of his own pocket
for their work (before production resumed in late March or
early April), but changed his testimony to say he put mon-
ey in the corporate account in Amery and that these em-
ployees were probably paid with Respondent's checks. In
any event, he confirmed as did now Vice President Conrad,
that Respondent's Exhibit 4 was a correct list of
Respondent's employees as of August 25, 1975, in its en-
tirety, and Respondent's Exhibit 4 shows the four heldover
employees employed throughout March 1975 as well as
thereafter .6
C. Relationships With the Union in the Transition
In the transition period, from Charmoll to CME opera-
tion, the Union was notified that Charmoll was unable to
continue, and was giving up, its Amery plant operation.
Plant Manager Conrad told the union agent or staff mem-
ber, Lloyd Beguhl; and Charmoll President Katz told the
union international representative, Burton Genis. Later, at
a luncheon meeting in late December 1974, involving Be-
guhl, Katz, and Conrad, Conrad said that he had a group
of Amery businessmen, and was one of the group, interest-
ed in acquiring the business, that he wanted to keep the
working force intact, but needed union assurance that con-
tract wage increases could be postponed and certain other
contract changes effected. Union Agent Beguhl told Con-
rad these were questions Conrad had to discuss with Union
Representative Genis.
There were several later contacts between Union Agent
Beguhl and Plant Manager Conrad, in which Conrad was
optimistic that his Amery businessmen's group would
swing the deal; but finally at a meeting at the Amery plant
on February 25, 1975, of Conrad, Beguhl, Genis, and em-
employees for the third quarter of 1974 and their average hourly earnings,
including those who worked at piece rate wages
6 There was some confusion as to whether former Charmoll employee
Violette Cicchesi was a fifth employee held over without break in continui-
ty, but from her own testimony it appeared that she did not come onto the
CME payroll until April 10, 1975
ployee Joyce Jones, who was the union steward, Conrad
told the union representatives, and so testified, that his deal
to buy the business had fallen through, but that another
firm was coming in and that he would be with the new firm
in charge of the plant. He had already given to, and re-
ceived from, Respondent's president, Vacanti, the commit-
ment in this regard (noted above), but did not spell it out in
detail to the union repesentatives . Beguhl and Jones left for
a union meeting of the employees in town, and Genis
stayed on with Conrad, who went over some specifics of
the existing union contract he wanted to have changed
and, as he testified, told Genis he hoped there could be as
easy an arrangement for the new shop as Charmoll had
when it first began in Amery. Genis wanted to know, he
said, if the old employees were going to be reemployed.
Conrad said he intended to hire them all, calling them back
on a seniority basis. Genis said he explained voluntary rec-
ognition and that if the terms of a new contract were
worked out they were subject to ratification by the employ-
ees. They reached no conclusions on changes, but Genis
told Conrad he would mail some draft revisions of the con-
tract terms they had discussed, and did so in the form of
changed pages.
Respondent's new vice president, Conrad, and Union
Representative Genis met again at the Amery plant on
March 14, 1975, and discussed the draft revisions, and
Conrad provided Genis with the new corporate name.
Gems testified he left that meeting with the understanding
that they had reached an agreement on terms, which he
thereafter embodied in a full redraft of the contract with
Charmoll and delivered the redraft (G.C. Exh. 12) to Con-
rad and President Vacanti at the next meeting in the plant,
April 4. Conrad claimed they discussed the changed pages
(Resp. Exh. 3) on April 4, and that he and Vacanti did not
have or receive the full copy (G.C. Exh. 12) that embodied
the changes Respondent wanted, though he conceded that
these changes, shown in Respondent's Exhibit 3, are in
General Counsel's Exhibit 12.'
However, there is no disagreement that the union repre-
sentatives, Genis and Beguhl, met at the plant on April 4
with Respondent Vice President Conrad, that President
Vacanti joined them and was introduced, and that Genis
gave an explanation of the contract changes. Though Va-
canti claimed (without corroboration from the others) that
he said before the meeting broke up that he was the person
the Union would have to deal with in the future, out of
'In this area of his dealings with the union representatives , Respondent
Vice President Conrad was somewhat evasive, and contradictory of parts of
his other testimony For example, he claimed that as late as of the March 14
meeting he had not told Union Representative Gems that Respondent plan-
ned to rehire the Charmoll employees and claimed he said that he did not
know, even then, if they would be rehired Yet elsewhere he testified that he
began hiring for Respondent about March 1, that he told the former em-
ployees they would be rehired, and that he ran a hiring meeting early that
month of almost entirely former Charmoll employees, where President Va-
canti asked all who worked for Charmoll before to help him in starting his
new business (see testimony of employee Frederickson), and, as G C Exh
2 shows, the first 31 of the 32 employees hired and working by May 6 were
former Charmoll employees Conrad's evasions or contradictions in the area
of his dealings with the Union are understandable , since it appeared from
President Vacanti's testimony that he was attempting to repudiate any au-
thority Conrad may have exercised in this area On the whole, the testimony
of Union Representatives Genis and Beguhl was more reliable and, as al-
ready indicated, supported in good part by Conrad
C.M.E., INC. 519
pique because he thought he was being ignored, he did not
at that time repudiate anything that Conrad had done, or
reject the contract changes.
Beguhl testified that at the April 4 meeting Conrad and
Genis had agreed that the Union would request recogni-
tion of Respondent, looking to an effective date of May 15.
Production actually began in late March or early April,
according to Conrad, but, as Beguhl testified, the Union
delayed its demand to allow time for sufficient people to
get back on the job. On May 6, on advice concerning the
rate of production and employment from Union Steward
Jones, the Union made its demand for recognition by tele-
gram (G.C. Exh. 4). There were then 32 employees, all but
one of whom (Gullixon) were former Charmoll employees
(G.C. Exh. 2).
At this juncture, repudiation of the previous negotiations
began. Union Agent Beguhl called Vice President Conrad
on May 8 to ask if the telegram had been received and a
response sent, and Conrad said he didn't understand, he
had wanted to start operations at first without the Union.
Beguhl asked for Respondent's lawyer's name. On May 20,
Union Representative Genis met Respondent President
Vacanti at Respondent lawyer Graham's office. Vacanti
took the position that Conrad had had no authority to deal
with the Union, that he (Vacanti) questioned whether the
Union did in fact represent the employees, and refused to
recognize or bargain with the Union. The refusal was for-
malized in a letter dated May 22, 1975 (G.C. Exh. 5).
Concerning this meeting, President Vacanti testified that
he spoke of the desirability of the employees voting on
whether there should be a union and claimed, initially, that
Union Representative Genis left the meeting on the under-
standing that the Union would file a petition with the
Board for an election. On cross-examination Vacanti ad-
mitted that Genis had made no such undertaking but on
the contrary had contended that, as the successor of Char-
moll, Respondent was obligated to bargain with the Union.
When asked why he, Vacanti, as the employer, had not
filed a petition for an election, he gave an assortment of
reasons, that Respondent did not want to be bound by the
Charmoll contract, that he did not think Respondent was
involved with the Union and, finally, that he did not have
a reason for Respondent not filing a petition for an elec-
tion.
During the transition from operation by Charmoll to op-
eration by Respondent, the Charmoll employees had con-
tinued to hold union meetings in downtown Amery. Four
such meetings were held, on February 25, March 14, and
April 4 and 25, 1975, where reports on progress of the
transfer and of a new contract with the new employer were
given by Union Representatives Gems or Beguhl or both.
These were well-attended meetings, according to employee
Violette Cicchesi. Respondent was aware of these meet-
ings, through Vice President Conrad, who was informed of
them, contemporaneously or beforehand by Genis, Beguhl,
and Steward Jones, and of what transpired at the meetings,
by Jones and other employees.
According to Union Representative Genis, the Union
suspended the obligation of the Charmoll employees to pay
dues starting with the month of December 1974, dues of all
of the members listed on the November 1974 checkoff list
(G.C. Exh. 9) were paid, and there were no voluntary with-
drawals 8 or expulsions from the membership. As Genis
testified, all of the persons listed on General Counsel's Ex-
hibit 9, plus Steward Joyce Jones, who as steward is ex-
empt from payment of dues, are members of the Union in
good standing pending negotiation of a new contract with
Respondent.
In May, according to employees Jones, Frederickson,
Alberta Johnson, and Cicchesi, with production well under
way, Respondent President Vacanti held a shop meeting of
all production and maintenance employees, on company
time, at which he and Vice President Conrad presided. Va-
cant, suggested formation of a grievance committee, to
take up matters for the employees with Respondent, mat-
ters in which, said employee Johnson, under Charmoll the
Union had represented them. According to employees
Frederickson and Cicchesi, Vacanti asked for a show of
hands, and no one raised a hand in opposition. Thereupon,
from lists prepared and distributed by the office secretary,
Peggy LeBlanc, and Henrietta Swager, a former Charmoll
employee promoted by Respondent to a supervisory job,
the employees selected a committee of about 12 employees,
representing the several departments in the shop, which
committee was given the name Human Relations Safety
Committee.
The committee has met and meets on the first and third
Tuesdays of each month, with Respondent President Va-
canti or Vice President Conrad presiding, and the new as-
sistant to Conrad, Kevin Layer, sitting in. The employees
are paid by Respondent for their time at such meetings.
Matters taken up by the committee have included timing
of piece work, putting rulers on sewing machines, need for
notching patterns, need of cleaning the ladies' restroom,
and improvement of the lunchroom.
At a meeting of all the plant employees called by Re-
spondent in mid-May 1975, Respondent and an insurance
man explained to the employees the new hospitalization
and other insurance Respondent had procured for them.
According to employees Cicchesi, Jones, and Joanne Om-
ernik, Respondent explained that the previous insurance
policy provided under the union contract with Charmoll
had expired on April 30, 1975, because the last premium
was paid in November 1974 by Charmoll, and Respondent
had not paid the renewal premium due in May; instead
had allowed the policy to lapse and obtained the new in-
surance.
Respondent did not notify, or consult with, the Union
on the matter of dropping the old and taking the new in-
surance policy.
D. Respondent's Business Operation
As already recounted above, when Respondent became
owner of the Charmoll Amery plant on February 20, 1975,
it carried over, without a break in time, Charmoll's plant
manager, Conrad, who became Respondent's vice presi-
dent in charge of the plant, and four Charmoll production
8 Confirmed by the testimony of several employees , who indicated that,
while there was some talk of withdrawal, they did not withdraw and were
not aware of any withdrawals
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and maintenance employees who performed the same or
similar work for Respondent, plus some initial cleanup.
One of the four, Henrietta Swager, later became a floor
supervisor for Respondent after additional rehiring and
production got under way. Vice President Conrad told the
union representatives on February 25, and told the former
Charmoll employees directly, that Respondent intended to
rehire the Charmoll employees, and he began the addition-
al rehiring process, by his own account, on March 1.
Also, as already noted, Respondent held an employment
meeting comprising practically all former Charmoll em-
ployees in March at which President Vacanti asked the
former Charmoll employees to give him their help in start-
ing his new business, job applications were passed out for
the former employees to reapply for employment, and the
completed forms were collected.
Vice President Conrad began calling the former employ-
ees back to work. He had greater authority over hiring than
as plant manager for Charmoll, having been given authori-
ty to sign the payroll and payroll checks. He said that pro-
duction began at the end of March or beginning of April
1975. By May 6, when the Union made its demand for
recognition and bargaining, Respondent had 32 produc-
tion and maintenance employees, 31 of whom (all except
employee Gullixon) were former Charmoll employees
(G.C. Exh. 2), as the parties agree.
By June 15, as the parties also agree, Respondent had 62
production and maintenance employees, 41 of whom, or
approximately two-thirds, were former Charmoll employ-
ees (G.C. Exh. 3).
By August 25, 1975, according to Vice President Conrad,
Respondent was at the peak of its employment from
March to the time of the hearing (October 1), there having
been a drop in employment in September; on the peak
date, August 25, Respondent had 72 production and main-
tenance employees, 44 of whom, a substantial majority,
were former Charmoll employees (Resp . Exh. 4 and Ap-
pendix A attached to this Decision).9 Respondent has erro-
neously contended that the majority of its production and
maintenance employees on August 25 were not former
Charmoll employees. Examination of the documents set
out in footnote 9, supra, shows otherwise.
The testimony of the four representative senior employ-
ees, sewing machine operator Frederickson, finisher Cic-
chesi (who works on a power sewing machine), bundler
Johnson, and floorgirl Jones, each with 4 to 6 years' prior
experience with Charmoll, provided clear evidence that
Respondent put the former Charmoll employees back to
work in the Amery plant doing the same jobs they had
done before, at the same pay, on the same machines, in the
same major operational steps, producing essentially the
same kinds of garments, under the same supervision pro-
vided by Conrad, formerly as plant manager now as vice
president. There are two shifts, as Charmoll had, and all
employees punch the same timeclock. A few of the former
employees were offered the option of doing work they had
not done before, but not many changed. There was some
replacement of machinery, but, as Conrad testified, these
were normal trade-in replacements, which was standard
practice in the industry. Also there was some retraining for
a small percentage of the employees, according to Conrad,
principally to acquaint them with techniques for sewing
and finishing an added line of ladies' dress jacket, the
"Windset" (trade name) line.
The garments produced by Respondent were and are
principally the snowmobile suits and sportswear. Conrad
indicated there were some changes, in patterns , but, as the
employees pointed out, the garments are still the snowmo-
bile and sportswear that Charmoll made under a different
label. The one new line added by Respondent was the
"Windset" ladies' jacket, described by employee Jones as a
dress jacket like a car coat.
President Vacanti testified that he was well aware that
Charmoll had the Polaris business for snowmobile gar-
ments, and he contemplated doing the Polaris business and
hoped to get the snowmobile wear business of John Deere.
Polaris was Charmoll's major account, and after
Charmoll's sale of the business to Respondent, Charmoll's
president, Katz, negotiated and obtained the 1975 contract
for snowmobile wear for Respondent, an order of about
$370,000, on which Respondent paid commissions to Katz
over a period of time in 1975. Respondent got the John
Deere snowmobile wear business through the help of Vice
President Conrad and several other Amery businessmen,
said Vacanti.
9 Resp Exh 4 was Respondent 's record of hirings and terminations as of
August 25, certified in the testimony of President Vacanti and Vice Presi-
dent Conrad as correct It shows 98 hirings , which should be reduced to 97,
since, by agreement of the parties, receptionist or office secretary Peggy
LaBlanc was not a bargaining unit worker Of the 97 hmngs , there were 25
terminations before August 25, leaving a net force of 72 production and
maintenance employees on August 25 Of these 72 employees , 30 were the
former Charmoll employees appearing on the May 6 list , G C Exh 2 (32
employees minus former Charmoll employee Wahlstrom and non-Charmoll
employee Gullixon , both terminated), and there were 14 additional former
Charmoll employees (as shown for all 14 by G C Exh 7 for fourth quarter
1974 employment , and variously for almost all by G C Exh 10 for the third
quarter 1974 employment , G C Exh 8 for first quarter 1975 employment,
and G C Exh 9, the union checkoff list, for November 1974) as follows, in
order of appearance on Resp Exh 4 Susan Wise , Karen Hornick, Marga-
ret Paulson , Patricia Dosch , Bonita Balog, Margaret McCurdy, June Pe-
nard , Robert Suthers , Debora Schnell , Edith Gamache , Leota Frederickson,
Olive Anderson , Amy McMahon , and Henrietta Lynch
Appendix A to this Decision lists , in alphabetical order, the 44 former
Charmoll employees who comprised a majority of Respondent 's 72 produc-
tion and maintenance employees on August 25, 1975
E. Successorship
1. General principles
The labor relations doctrine of successorship, as enunci-
ated by the Board and supported by the courts, is designed
to insure that employee rights of representation by, and of
collective bargaining through, a recognized representative
are not curtailed by a mere change of employers or of own-
ership in the employing industry, if a majority of the em-
ployees after the change of ownership or management were
employed by the preceding employer. N.L.R.B. v. William
J. Burns International Security Services, Inc., 406 U.S. 272,
279 (1972). In such cases, the succeeding employer must
recognize and bargain with the incumbent union, and a
Board order to that effect is proper. Id. at 281.
C.M.E., INC. 521
The representative status of the incumbent union is es-
tablished and evidenced either by Board certification, as in
Burns, supra, or by voluntary recognition accorded by the
preceding employer , N.L.R.B. v. The Denham Company,
469 F.2d 239, 244 (C.A. 9, 1972), vacated on other grounds
411 U.S. 945 (1973); N.L.R.B. v. Frick Company, 423 F.2d
1327, 1332 (C.A. 3, 1970).
Successorship does not require a transfer of assets,
Burns, supra, 406 U.S. at 280-81, 307; but whether there is
a transfer of assets , Overnice Transportation Company v.
N.L.R.B., 372 F.2d 765, 768 (C.A. 4, 1967 ), cert . denied 389
U.S. 838 , or no transfer of assets , Tom-A-Hawk Transit,
Inc. v. N.L.R.B., 419 F.2d 1025, 1026-28 (C.A. 7, 1969), if
there is "a change of ownership not affecting the essential
nature of the enterprise , the successor employer must rec-
ognize the incumbent union and deal with it as the bar-
gaining representative." Id.
2. Employing enterprise and employee bargaining unit
remained the same
Turning to the facts in the case at bar, without any mate-
rial break in continuity, Respondent upon acquiring its
predecessor's plant and machinery in Amery, Wisconsin,
on February 20, 1975, proceeded to conduct the same type
of manufacturing enterprise as the predecessor Charmoll
had conducted, manufacturing, as Charmoll had, snowmo-
bile wear and other winter garments. Respondent' s initial
and major work in 1975 (to the time of the hearing) was a
$370,000 order for snowmobile wear from its predecessor's
principal customer, Polaris, obtained with help of the pred-
ecessor.
Simultaneously with the transfer, Respondent held over,
without any break in employment, the predecessor's plant
manager, Conrad, who became Respondent's vice presi-
dent in charge of managing the plant, and four key produc-
tion and maintenance workers of Charmoll to do essential
maintenance and prepare patterns and samples for produc-
tion. Immediately following the transfer, Respondent,
through Vice President Conrad, notified the union repre-
sentatives and the Charmoll employees directly that it in-
tended to rehire them. Respondent held an employment
meeting in early March, in which Respondent President
Vacanti called on all the Charmoll employees to help him
start his new business, and collected employment applica-
tions from them. In this connection it should be noted that
neither Vacanti nor his Company had had any previous
experience in manufacturing garments, and most of the
Charmoll employees, predominantly women, had several
years' experience, a number of them going back to
Charmoll's start in Amery in 1968, as did the new vice
president, Conrad.
The hiring arrangements were largely completed by Vice
President Conrad in March, and as production com-
menced at the end of March or early April, Conrad, who
was also in charge of payroll, began the gradual callup of
the employees in the same manner and timing as he had
called them for the spring startup after the winter layoff in
past seasons for Charmoll. The Charmoll employees were
put back to work doing for Respondent, with some few
exceptions, the same jobs they had done for Charmoll, at
the same pay, on the same machines, in the same major
operational steps, producing the same kind of garments-
snowmobile suits and sportswear-under the same supervi-
sion provided by Conrad. Two shifts were installed, as un-
der Charmoll, and all employees, whether on piece work or
hourly rates, punched the same timeclock they had
punched for Charmoll. There was some replacement of
machinery over a period of time, but representing no more
than the standard trade-in replacements of equipment
common in the sewing industry. Also, Respondent added
one new line of garment, a ladies' dress jacket resembling a
car coat, under the label "Windset," but it was easily ab-
sorbed in manufacture by the same employees doing the
other garments using the same machines, with a small
amount of on-the-spot retraining for a few of them.
On May 6, 1975, when, pursuant to prearrangement with
Vice President Conrad, the Union made its request of Re-
spondent for recognition and bargaining, Respondent had
32 production and maintenance employees on the payroll,
all of whom but one were former Charmoll employees. On
June 15, Respondent had 62 production and maintenance
employees on the payroll, 41 of whom, or 66 percent, were
former Charmoll employees. On August 25, which was the
peak of employment (between startup in March-April and
the time of the hearing, October 1), since there had been a
drop in production and employment in September, Re-
spondent had 72 production and maintenance employees
on the payroll, 44 of whom, or 61 percent, were former
Charmoll employees.
Thus at all times from startup to the time of the hearing,
a substantial majority of Respondent's employees at the
Amery plant were former Charmoll employees represented
by the Union, and there was no change in the unit of em-
ployees appropriate for bargaining, as well as no changes
that could be said to affect the labor relations environment
of the unit. Burns, supra, 406 U.S. at 280, footnote 4.
3. No good-faith doubt of Union' s representative status
The Union was certified by the Board as the bargaining
representative of the Charmoll Amery plant employees fol-
lowing an election in 1968, and Charmoll and the Union
entered into a collective-bargaining contract and renewals
that were in effect when the transfer of the plant to Re-
spondent took place on February 20, 1975.
The contract had union-security and dues-checkoff re-
quirements, and the Charmoll employees, other than the
30-60-day probationers, were members of the Union when
Charmoll made known in December 1974 that it was about
to give up its business operations at Amery. The Union
suspended the obligation of the Charmoll employees to pay
dues commencing in December and retained them as mem-
bers in good standing. None of them resigned from the
Union, and as a group they continued to hold meetings in
Amery with the union representatives in February and
March 1975, as well as two meetings in April 1975. Re-
spondent through Vice President Conrad was fully aware
of the past and current union relationships; in addition, in
advance of the purchase of the plant, Charmoll President
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Katz had informed Respondent President Vacanti, as the
latter testified, of Charmoll's good relations with the
Union, that Vacanti could expect them to continue for Re-
spondent, and that Katz was sure the employees would
vote for the Union.
Simultaneously with informing the union representatives
on February 25, 1975, that Respondent intended to retain
the Charmoll employees, Respondent Vice President Con-
rad embarked on contract negotiations with Union Repre-
sentative Genis, specifically seeking modification of some
of the contract terms of the Charmoll contract. The negoti-
ations were continued by Genis mailing several revised
contract pages to Conrad and meeting with him again on
March 14 and April 4. From the April 4 meeting, also at-
tended by Respondent President Vacanti and Union Agent
Beguhl, it appeared that Conrad had obtained the contract
revisions he wanted, that Vacanti heard an explanation of
them without objection, and that the parties had agreed
that there would be voluntary recognition of the Union,
when production was in swing, and submission by the
Union of the revised contract to the employees for ratifica-
tion.
The Union made its request for recognition on May 6,
when production was well along with 32 employees at
work, 31 of whom were former Charmoll employees. Re-
spondent reversed its position on May 22, rejected recogni-
tion of the Union as representative of the employees, and
repudiated the contract revisions and agreement its vice
president had negotiated.
About the same time in May, if not prior to, Respondent
installed in the shop, and paid for the time spent by, a
grievance committee comprised of employees and manage-
ment to deal with matters that the Union would normally
take up with management for the employees. In the cir-
cumstances, this was a blatant attempt by Respondent to
undermine the Union as the representative of the employ-
ees.
The Union's status as certified representative of the em-
ployees created the rebuttable presumption of the Union's
continued majority status. Brooks v. N.L.R.B., 348 U.S. 96,
104 (1954); Burns, supra, 406 U.S. at 279, footnote 3. As
stated in N.L.R.B. v. Wayne Convalescent Center, Inc., 465
F.2d 1039, 1043 (C.A. 6, 1972), "This presumption will
bind a successor unless it demonstrates that the union no
longer represents a majority of employees on the date of
refusal to bargain, or that the refusal to bargain was
grounded on a good faith doubt of the union's majority
status."
Respondent talked, but did nothing, about filing a peti-
tion with the Board for a new election, which it might have
done if it believed the Union no longer represented a ma-
jonty of its employees, NL.R.B. v. Auto Ventshade, Inc,
276 F.2d 303, 307 (C.A. 5, 1960).
Respondent's claim of a good-faith doubt of the Union's
majority status rested on President Vacanti's statement
that employees came to him to ask how they could get out
of the Union. Respondent's contemporaneous bad-faith at-
tempt to undermine and supplant the Union with an in-
house grievance committee that it controlled negatives the
claim of good-faith doubt, and makes Vacanti's statement
self-serving.
4. The 8(a)(5) and ( 1) findings
In sum , Respondent was the successor employer, and
produced no evidence of good-faith doubt, nor did it rebut
the presumption, of continued majority support for the
Union among Respondent's employees. Respondent's re-
fusal to bargain with the Union violated Section 8(a)(5)
and (1) of the Act.
The violation occurred whether the duty to bargain
arose on May 6, 1975, the day of the union request for
recognition, or thereafter through August 25, 1975, the day
of peak employment," because at all times on and between
those dates the employees of the predecessor employer,
Charmoll, represented by the Union, constituted a substan-
tial majority of the successor's employees, the request for
bargaining was live, and Respondent had no basis for
good-faith doubt of the Union's continuing majority status.
Nevertheless, in my view the duty to bargain arose on
May 6, 1975, for by that date, when Respondent's comple-
ment of employees was practically entirely former Char-
moll employees (31 out of 32), Respondent had provided
ample evidence of its earlier expressed intent , expressed to
the Union and to the Charmoll employees immediately af-
ter the transfer of ownership occurred, that the Charmoll
employees would constitute Respondent's work force,
Burns, supra, 406 U.S. at 294-295, and see United Mainte-
nance & Manufacturing Co., Inc., 214 NLRB 160 (1974).
Indeed, concomitant with that intent , from the start of its
ownership Respondent had also given evidence that it in-
tended to assume the obligation of a successor employer by
negotiating a contract with the Union between February
25 and April 4, 1975, which it thereafter repudiated and
refused to enter.
The date of the obligation to bargain is material because
the parties litigated whether or not Respondent changed
one of the terms of employment after the obligation to
bargain arose without notice to or bargaining with the
Union. The change was from the former hospitalization
and related insurance policy provided for under the union
contract with Charmoll to a new and different policy ob-
tained by Respondent sometime after May 6.
While the complaint did not specifically allege a viola-
tion of Section 8(a)(5) and (1) by virtue of failure to consult
or bargain over the (unilateral) change in the initial term or
terms of employment by the successor, the matter is direct-
ly related to the 8(a)(5) and (1) total failure to bargain
charged to Respondent in the complaint, and proven. Since
it is well established that, when an issue relating to the
subject of a complaint is fully litigated at a hearing, the
Administrative Law Judge and the Board are expected to
pass upon it even though it is not specifically alleged to be
an unfair labor practice in the complaint (Monroe Feed
Store, 112 NLRB 1336, 1337 (1955) ), I deal with the issue
here.
Respondent was fully aware of the Charmoll contract
provision for the insurance policy, and of the policy. In-
101 think it dubious that "peak" employment in an industry where, as
here, employment fluctuates seasonally is the only meaning that can be
given to "full complement of employees" used in Burns, supra, 406 U S at
295, as Respondent contends
C.M.E., INC. 523
deed , at the April 4, 1975, meeting of Vacanti and Conrad
(for Respondent) and Genis and Beguhl (for the Union),
where the revised negotiated terms were described , Vacanti
asked about the policy, and Beguhl provided him with the
union brochure describing the insurance program and poli-
cy, General Counsel 's Exhibit 13. However , other than pro-
viding the brochure , there was no discussion of the insur-
ance or request or notice by Respondent regarding change,
and Respondent permitted the preexisting policy to lapse
in May by not paying the premium , and obtained its own
policy without consulting or bargaining with the Union.
Since the obligation to bargain with the Union arose on
May 6 , 1975, the obligation to consult or bargain with the
Union before setting or altering initial terms of employ-
ment matured at that time also. Denham Co., supra, deci-
sion on remand 206 NLRB 659 ( 1973), reaffd . 218 NLRB
30 (1975); Bachrodt Chevrolet Co., 205 NLRB 784 (1973),
enfd . 521 F.2d 324 (C.A. 7, 1975). By failing to honor this
obligation , and by unilaterally instituting the change of in-
surance policy after May 6, Respondent violated Section
8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. On February 20, 1975, Respondent acquired the Am-
ery, Wisconsin, garment manufacturing plant of Charmoll
and thereafter, for the purposes of the Act, became the
successor employer in the manufacturing of garments at
the plant.
2. A unit comprising Respondent's production and
maintenance employees (as more particularly described in
the recommended Order herein) was and is an appropriate
unit for collective bargaining under Section 9 of the Act.
3. The Union was the exclusive bargaining representa-
tive of the employees of said unit under the predecessor
employer, Charmoll, with whom the Union had a collec-
tive-bargaining contract on behalf of the employees, and
the Union has continued to be the exclusive bargaining
representative of the employees of the unit under Respon-
dent as the successor employer.
4. By refusing to bargain with the Union at its request,
Respondent has engaged in an unfair labor practice in vio-
lation of Section 8(a)(5) and (1) of the Act.
5. By unilaterally changing the hospitalization and other
insurance of the employees of the unit without prior notice
to the Union or opportunity for bargaining by it, Respon-
dent has engaged in a further unfair labor practice in viola-
tion of Section 8(a)(5) and (1) of the Act.
6. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER "
Respondent, C.M.E., Inc., Amery, Wisconsin, its offi-
cers, agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union,
upon request, as the exclusive bargaining representative of
the appropriate unit of its production and maintenance
employees at Amery, Wisconsin, as described herein.
(b) Instituting changes in insurance and other terms of
employment unilaterally without prior notice and consulta-
tion with the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Upon request, bargain with the Union as the exclu-
sive bargaining representative of the employees in the de-
scribed appropriate bargaining unit of Respondent's pro-
duction and maintenance employees at Amery, Wisconsin,
with respect to rates of pay, hours, vacations, insurance,
and other terms of employment. The following is a descrip-
tion of the unit:
All cutters, operators, shipping and receiving em-
ployees, examiners, and all other related production
workers, including maintenance, service and janitorial
employees, employed by Respondent at its Amery,
Wisconsin, facility, excluding executive personnel, ad-
ministrative employees, and supervisors as defined in
the Act.
(b) Make whole the employees of said unit for any loss
of benefits they may have suffered as a result of
Respondent's unilateral institution of changed insurance or
other terms of employment on or after May 6, 1975, with
interest at 6 percent per annum, and continue such restitu-
tion until such time as Respondent negotiates in good faith
with the Union to agreement or to impasse.
(c) Preserve and, upon request, make available to the
Board and its agents for examination and copying all rec-
ords concerning insurance, personnel, and other records
necessary to ascertain the restitution due under the terms
of this Order.
(d) Post at the Amery, Wisconsin, plant copies of the
attached notice marked "Appendix B." 12 Immediately
THE REMEDY
It will be recommended that Respondent cease and de-
sist from its unfair labor practices; bargain collectively,
upon request, with the Union; make restitution to the em-
ployees of the unit for any loss of benefits suffered by vir-
tue of the unilateral changes in the terms of the insurance;
and post the notices provided for herein.
11 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, recommendations, and Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
12 In the event that the Board's 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon receipt of said notice, on forms to be provided by the
Regional Director for Region 18, Respondent shall cause
the copies to be signed by one of its authorized representa-
tives and posted, the posted copies to be maintained for a
period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
APPENDIX A
Respondent's Exhibit 4 lists 72 production and mainte-
nance workers in the employment of Respondent (CME)
on August 25, 1975. Of these, the following were former
Charmoll employees:
1. Goldie Alfonso
2. Olive Anderson
3. Bonita Balog
4. Barbara Bottolfson
5. Gloria G. Breault
6. Violette M. Cicchesi
7. Karen E. Clover
8. Patricia Dosch
9. Leota Frederickson
10. Sandra Frederickson
11. Dianne Gamache
12. Edith Gamache
13. Arley B. Gilbertson
14. Florence Gille
15. Sylvia J. Hanson
16. Karen Hornick
17. Janet A. Johannsen
18. Alberta A. Johnson
19. Joyce L. Jones
20. Jennie M. Keller
21. Nellie M. Larson
22. Mailee J. Lehmann
23. Maria E. Loock
24. Henrietta Lynch
25. Iris J. Mara
26. Margaret McCurdy
27. Gladys B. McLean
28. Amy McMahon
29. Jerome Omernik
30. Joanne Omernik
31. Muriel Pankonien
32. Margaret Paulson
33. June Penard
34. Debora Schnell
35. Clara L. Sullivan
36. Robert Suthers
37. Bernard Swager
38. Bernadine Swager
39. Henrietta Swager
40. Nadine Vanderhoof
41. Alice Weaver
42. Ruby J. Wenberg
43. Ruth M. Wise
44. Susan Wise