Dynamic Machine Co.

National Labor Relations Board - Board Decisions

Dec 15, 1975

221 N.L.R.B. 1140 (N.L.R.B. 1975)

1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dynamic Machine Co. and District No. 8, Internation-
al Association of Machinists & Aerospace Work-
ers, AFL-CIO. Case 13-CA=13997
December 15, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On the basis of a charge filed by District No. 8,
International Association of Machinists & Aerospace
Workers, AFL-CIO, -hereafter referred to as the
Union, on February 13, 1975, the General Counsel of
theNationlal Labor Relations Board, by, the Regional
Director for Region 13, issued a, complaint against
Dynamic Machine 'Co., hereafter referred to' as
Respondent, on March 28, 1975, and -issued an
amendment to said complaint on May 12, 1975. The
complaint and its amendment allege that, since on or
about January 531, 1975, Respondent, has, violated
Section- 8(a)(1) and (5) of the -Act by refusing to
bargain with the Union on all issues involving wages,
rates of pay, hours of employment, and other terms
and conditions of employment, and by refusing to
provide information necessary for collective bargain-
ing. Respondent filed an answer to the complaint on
April 8, 1975, and an amendment to the answer on
May 17, .1975, in, which it_denied the-,commission of
any unfair labor practices.
On June 3, 1975, the parties executed a- stipulation
of facts and filed a motion to transfer proceedings to
the Board wherein they agreed that certain docu-
ments would constitute the entire record herein,'
waived all intermediate proceedings before an
Administrative Law Judge, and submitted this case
directly to the Board for findings of fact, conclusions
of law, and the issuance of a Decision and Order. On
June 6, 1975, the Board granted the motion,
approved the stipulation, and set a date for the
parties to file their briefs. Thereafter, briefs were filed
by Respondent and General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record herein,
as stipulated to by the parties, as well as their briefs,
and makes the following findings of fact and
conclusions of law:
1 The parties agreed that the charge , complaint as amended, answer to
the complaint and its amendments , and the stipulation of facts, including
exhibits attached thereto, constitute the entire record in this case.
2 There are two separate and distinct business entities which have
221 NLRB No. 185
1. THE BUSINESS OF THE EMPLOYER
Respondent was organized as -an- Illinois corpora-
tion on' December 4, 1974, under the name of NJM
Corporation.-On or about January 6, 1975, Respon-
dent purchased' the entire business, including the
name, goodwill, and substantially all of the property
and assets of Dynamic Machine Co. At or about the
time of said purchase, Respondent legally changed
its name tp that of the company which it purchased,
Dynamic Machine Co., and has since-operated under
that name. The- original Dynamic Machine Co.
became defunct and commenced dissolution at the
time of the purchase.2
Since January ' 6, 1975, Respondent's principal
office and place of business has been at 3022 North
Oakley,' Chicago, Illinois. It is there engaged in the
business of- manufacturing precision parts for the
metalworking industry. ' Respondent, in the, course
and conduct of its business operations, anticipates
that it will annually purchase and receive goods and
materials valued in excess of $50,000, which goods
and services will be shipped from points within the
State of Illinois, but will originate at points outside
the State of Illinois. The parties stipulated, and we
find, that the Respondent is an employer engaged in
commerce or an industry affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
U. THE LABOR ORGANIZATION INVOLVED
The Union, District No. 8, International Associa-
tion of Machinists & Aerospace Workers, AFL-CIO,
is, and at all material times has been, a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
On March 20, 1974, pursuant to a Stipulation for
Certification Upon Consent Election, an election by
secret ballot was conducted among the employees of
Dynamic Machine Co. I in the following appropriate
unit:
All full-time and permanent part-time production
and maintenance employees including those in
the shipping/receiving department and those in
the inspection department; but excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
operated under the name of Dynamic Machine Co. and are relevant to this
case For purposes of clanty , the seller of assets will be hereinafter referred
to as Dynamic Machine Co I, and the purchaser of the assets as either
Dynamic Machine Co II or Respondent.
DYNAMIC MACHINE CO. 1141
On January 15, 1975, the Union was certified as the
collective-bargaining representative of the employees
in said unit3 which we find constitutes a unit
appropriate for collective-bargaining purposes within
the meaning of Section 9(b) of the Act. As noted, on
January 6, 1975, Respondent purchased Dynamic
Co. I and hired all of its employees, including those
in the above unit.
B. The Request To Bargain and Respondent's
Refusal
On January 31, 1975, the Union wrote to Respon-
dent, Dynamic Machine Co. II, requesting a meeting
to outline an agenda for negotiating a collective-
bargaining agreement and also requesting certain
information for purposes of collective bargaining.4
By letter dated February 7, 1975, Respondent replied
that it did not deem itself required to furnish the
requested information, or to commence negotiations.
Affirmatively, it asserted that the Board's Certifica-
tion of Representative is in error, that all of the assets
of Dynamic Company No.,I, the Employer in Case
13-RC-13299, were sold to an unrelated, separately
incorporated entity, and that there has been a
substantial turnover of unit employees since the
election. Respondent has continued to refuse to
recognize and bargain with the Union as the
exclusive bargaining representative of all employees
in the above-described appropriate unit, and contin-
ues to refuse to provide the information requested by
the Union.
C. Discussion and Conclusions
The complaint alleges violations of Section 8(a)(1)
and (5) of the Act by Respondent's refusal since
February 7, 1975, to bargain with the Union on all
issues affecting the wages, ' hours, and other terms
and conditions of employment of the employees in
the above appropriate unit, and by its refusal to
furnish information requested by the Union for the
purposes of bargaining.
Respondent contends that the complaint should be
dismissed because the certification is in error, and
that even if the certification was correctly issued
Respondent should not be bound by it because of the
unique circumstances of this case. It asserts that,
because of the substantial employee turnover since
the election, Respondent's present employees should
be given an opportunity to vote on the issue of
representation. It further asserts that it would be
3 Case 13-RC-13299 (not reported in volumes of Board Decisions)
4 The information which the Union sought included the names, hiring
dates, classifications, rates of pay of employees, and holiday benefits, and a
copy of the current group and life insurance plan, pension and/or profit-
sharing plan , and the vacation schedule
inequitable to Respondent to compel it, as a good-
faith purchaser who has not committed any inde-
pendent unfair labor practices, to bargain with the
Union. We find no merit in these contentions. We
find, rather for the reasons set forth below, that
Respondent is a successor-employer to Dynamic
Machine Co. I, and that it is therefore obligated to
bargain with the Union and to furnish it with
information necessary for the purpose of collective
bargaining.
We turn at the outset to Respondent's contention
that the complaint should be dismissed because the
certification in the underlying representation case
was in error, and is therefore of no force. The Board,
in that proceeding, overruled the Employer's objec-
tion to conduct of the election, and sustained four of
the six challenged ballots in issue before it. The two
remaining challenged ballots were insufficient in
number to affect the outcome of the election, and the
Union was therefore certified. Respondent contends
that the Board erred in sustaining the four challenges
to the voters which it found were supervisors, and by
overruling the Employer's objection. However, it is
well settled that in the absence of newly discovered
or previously unavailable evidence or special circum-
stances a respondent in a proceeding alleging a
refusal to bargain with the certified bargaining
representative of its employees is not entitled to
relitigate issues which were, or could have been,
litigated in the underlying representation proceed-
ing.5 As Respondent has neither proffered' new
evidence, nor established special circumstances why
this rule should not here be applied, we find no merit
in its contention that the certification was improperly
issued.
Proceeding to the merits of this case, the Respon-
dent's obligations under the certification are depend-
ent upon whether' it is a successor-employer to
Dynamic Machine Co. 1.6
The parties' stipulation shows that Respondent
commenced operation of Dynamic Machine Co. II
on January 6, 1975, the date of the transfer of assets
from Dynamic Machine Co. I to it. There was no
hiatus in manufacturing operations. Respondent
retained all of the unit employees formerly employed
by Dynamic Machine Co. I, and continued its
operation at the same location and in the same plant
as its predecessor. Additionally, Respondent uses the
same machinery and employs the same method of
production to manufacture the same type of product
as its predecessor. Both the suppliers and the
5 See Pittsburgh Plate Glass Co. v N L.R B., 313 U S 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102 67 (f) and 102.69(c).
6 See N.LR B. v Burns International Security Services, Inc„ 406 U.S 272
(1972)
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customers of Respondent are primarily the same as
those of Dynamic Machine Co. 1.
Considering the above factors, it is apparent and
we find that Respondent's operation is essentially the
same as that of its predecessor in every respect and
that Respondent is therefore a successor-employer
under the standards established in Burns. In these
circumstances, we fmd that Respondent was obligat-
ed to recognize the Union as the exclusive represent-
ative of its employees and to bargain with it
concerning wages, hours, and other terms and
conditions of employment.
Respondent contends, however, thata balancing of
the interests involved requires that Respondent and
its employees not be bound by the certification. In
this regard, it argues that, in light of the significant
turnover of employees in the unit since the election, a
majority of the present employees have not had the
opportunity to express their preference on the issue
of representation. The parties' stipulation shows that
Respondent retained all of the approximately 36 unit
employees who were employed by Dynamic Machine
Co. I at the date of the transfer of assets on January
6, 1975. The stipulation also shows that since the date
of the election, March 20, 1974, 17 employees in the
unit left the employ of Dynamic Machine Co. I and
were thus no longer employed in the bargaining unit
at the time of the change of ownership. However, the
fact that there was turnover in the certified unit is
irrelevent to our inquiry. It is well established that,
absent special circumstances , there is an irrebuttable
presumption that the majority status of a certified
union continues for 1 year from the date of the
certification.? As Respondent's refusal to bargain
occurred during the certification year, this presump-
tion is clearly applicable. Moreover, even if Respon-
dent's refusal to bargain had not occurred during the
certification year, the Board has long held that the
factor of employee turnover does not establish that
the Union has lost its majority status.8 Indeed, new
employees are presumed to support the Union in the
same ratio as those whom they have replaced.9
Accordingly, we find no merit in Respondent's
contention.
Respondent further argues that, as a good-faith
purchaser who assumed none of the obligations of its
predecessor, it should not be required to assume the
bargaining obligation. However the bargaining obli-
gation that arises out of the certification of a
7 See, e.g, Ray Brooks v N L R B, 348 U S 96 (1954), Celanese
Corporation ofAmericq 95-NLRB 664 (1951).
8 Laystrom Manufacturing Co, 151 NLRB 1482, 1484 (1965), enforce-
ment denied on other grounds 359 F 2d 799 (C.A. 7, 1966)
9 Id, and the cases therein cited at in 7
10 Burns, supra, in. 6 herein
11 We also find no merit in Respondent's reliance on Perma Vinyl
Corporation, Dade Plastics Co and United States Pipe and Foundry Company,
representative is_ not an obligation which an employ-
er has an option to assume, or to decline to assume,
as part of a purchase agreement. It is rather an
obligation imposed by Federal law which is unaffect-
ed by the private agreements between a successor
and its predecessor.10 As such, Respondent's argu-
ment is without merit. 11
Accordingly, we find that the Respondent has,
since February 7, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusals, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
In addition to its refusal to bargain, Respondent
also refused to provide information requested by the
Union which the Union deemed necessary and
relevant for the purpose of collective bargaining.'2
The Board has long held with court approval that the
collective-bargaining duties imposed on an employer
by Section 8(a)(5) of the Act include the obligation to
provide its employees' bargaining representative with
information which is relevant and necessary to
collective bargaining.13 We find that the information
requested by the Union, such as the names, address-
es, and job classifications of the unit employees, and
their wages, hours, and other current benefits, clearly
constitutes information which has a direct bearing on
the negotiation of wages, hours, and other terms and
conditions of employment. As the information
sought clearly encompasses matters which are
mandatory subjects of bargaining, it is precisely that
type of information which employers are required to
provide to enable unions to bargain intelligently and
to fulfill their obligations as the selected representa-
tive of the employers' employees.14 Accordingly, we
find that, by its refusal to provide the information
which was requested by the Union, Respondent
violated Section 8(a)(1) and (5) of the Act.
IV. THE REMEDY
Having found that Respondent, Dynamic Machine
Co., has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act, we shall order that it cease and desist
therefrom, and that it take certain affirmative action
necessary to remove, the effects of the unfair labor
practices and to effectuate the policies of the Act.
164 NLRB 968 (1967 ). That case, which involved a successor 's duty to
remedy the , unfair labor practices of its predecessor, is clearly inapposite.
12 See supra, fn. 4
13 N L R B v. Acme Industrial Co., 385 U S 432, 435-436 (1967)
14 See, e.g., Food Employer Council, Inc, et at, 197 NLRB 651 (1972),
Union Carbide Corporation, Carbon Products Division, 197 NLRB 717 (1972),
Taylor Forge and Pipe Works, 113 NLRB 693 (1955), Phelps Dodge Copper
Products Corporation, 101 NLRB 360 (1952)
DYNAMIC MACHINE CO. 1143
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the,initial period of certifica-
tion as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate unit. See Mar Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Company d/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (CA. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Dynamic Machine Co. is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
- 2. District No. 8, International Association of
Machinists & Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. The unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act is:
All full-time and permanent part-time production
and maintenance employees including those in
the shipping/receiving department and those in
the inspection department; but excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
4. Since January 15, 1975, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about February 7, 1975, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. By refusing on or about February 7, 1975, and
at all times thereafter, to provide the above-named
labor organization with the information requested by
it for purposes of collective bargaining, Respondent
has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
7. By the aforesaid refusal to bargain and refusal
to provide information Respondent has interfered
with, restrained, and coerced, and is interfering with,
restraining, and coercing, employees in the exercise
of the rights- guaranteed to them in Section 7 of the
Act, and thereby has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Dynamic Machine Co., Chicago,. Illinois, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages,, hours, and other terms and
conditions of employment with District No. 8,
International Association of Machinists & Aerospace
Workers,, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All full-time and permanent part-time production
and maintenance employees including those in
the shipping/receiving department and those in
the inspection department; but excluding all
office clerical employees, professional employees,
guards and supervisors as defined in the Act.
(b) Refusing to provide the above-named labor
organization with information requested by it for the
purpose of collective bargaining.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Upon request, provide the above-named labor
organization with information requested by it for the
purpose of collective bargaining.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its Chicago, Illinois, facility copies of the
attached notice marked "Appendix." 15 Copies of
said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
15 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with District
No. 8, International Association of Machinists &
Aerospace Workers, AFL-CIO, as the exclusive
representative of the employees in the bargaining
unit described below.
WE WILL NOT refuse to supply information
requested by the Union which is relevent to and
necessary for the purpose of collective- bargaining.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All full-time and permanent part-time pro-
duction and maintenance employees includ-
ing those in the shipping/receiving depart-
ment and those in the inspection depart-
ment; but excluding all office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
WE WILL, upon request, provide the above-
named labor organization with information re-
quested by it for the purpose of collective
bargaining.
DYNAMIC MACHINE Co.