Eastone Of Ohio, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1986

277 N.L.R.B. 1652 (N.L.R.B. 1986)

W2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taylor Stone d/b/a Eastone of Ohio , Inc. and
Teamsters Local Union No. 159, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 9-CA-19499
14 January 1986
DECISION AND ORDER
By MEMBERS DENNIS, JOHANSEN, AND
STEPHENS
Upon an unfair labor practice charge filed 30
March 1983 by the Union, Teamsters Local Union
No. 159, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, the General Counsel of the
National Labor Relations Board issued on 10 May
1983 a complaint against the Respondent, Taylor
Stone d/b/a Eastone of Ohio, Inc., alleging that it
has violated Section 8(a)(5) and (1) of the National
Labor Relations Act. The Respondent filed an
answer denying the commission of any unfair labor
practices.
On 17 October 1983 the parties jointly moved to
transfer this proceeding to the Board without bene-
fit of a hearing before an administrative law judge
and submitted a proposed record consisting of the
formal papers and the parties' stipulation of facts.
On 9 January 1984 the Board issued an order
granting the motion, approving the stipulation, and
transferring the proceeding to the Board. The Gen-
eral Counsel and the Respondent filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record in this case, the Board
makes the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a Delaware corporation en-
gaged in the processing and sale of laboratory ta-
bletops at its facility in McDermott, Ohio. The Re-
spondent, based on a projection of its operations
since about 1 January 1983, will sell and ship prod-
ucts, goods, and materials valued in excess of
$50,000 directly to points outside the State of Ohio.
We find that that Respondent is an employer en-
gaged in commerce within the meaning of Section
2(6) - and (7) of the Act and that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issue
The issue presented is whether the Respondent
violated Section 8(a)(5) and (1) of the Act by refus-
ing to recognize and bargain with the Union as the
exclusive collective -bargaining representative of
the unit employees.
B. Facts
From June 1979 until June 1982, Eastone of
Ohio, Inc. operated the McDermott facility. On 10
August 1981, pursuant to a representation election,
the Union was certified as the exclusive collective-
bargaining representative of the employees in the
following appropriate unit:
All production and maintenance employees
employed by the Employer at its McDermott,
Ohio facility, excluding all office clerical em-
ployees and all professional employees, guards
and supervisors as defiled in the Act.
Following the Union's certification, Eastone and
the Union engaged in bargaining but failed to reach
agreement. On 8 March 1982 the employees of
Eastone commenced an economic strike. By letter
dated 28 May 1982, Eastone notified the Union
that it was going out of business.
The McDermott facility was idle from June
through December 1982. On 13 December 1982 the
Respondent hired one former Eastone employee to
ready the facility for operation. The Respondent
hired another former Eastone employee on 3 Janu-
ary 1983 and 10 former Eastone employees on 10
January 1983. The Respondent commenced oper-
ation of the McDermott facility in January 1983.1
About 24 February 1983 the Union requested the
Respondent to recognize it as the bargaining repre-
sentative of the unit employees and to bargain with
it with respect to the unit employees' terms and
conditions of employment. Since about 15 March
1983, the Respondent has failed and refused to rec-
ognize and bargain with the Union. At the time of
the Union's 24 February 1983 demand for recogni-
tion, the Respondent employed 12 employees in the
bargaining unit, all of whom were employed by
Eastone at the time of the closing.
The Respondent has been producing laboratory
tabletops and shipping them to customers since
January 1983. It is engaged in the same business
operations, at the same plant, using the same equip-
ment, machinery, and methods of production to
i The Respondent hired two additional former Eastone employees on
16 May and 6 June 1983 One unit employee resigned on 16 March 1983,
and another employee has been absent due to injury since 2 July 1983.
277 NLRB No. 187
EASTONE OF OHIO
manufacture the same product as Eastone, the prior
employer. The Respondent's general supervisor
was employed by Eastone as a supervisor.2 All em-
ployees in the bargaining unit at the time of the
submission of the stipulation of facts were em-
ployed by Eastone at the time of the closing. These
employees perform the same jobs, under the same
general working conditions, as employees em-
ployed by Eastone. The overwhelming majority of
the Respondent's suppliers and customers are the
same as Eastone's.
At the time of the Union's certification, Eastone
employed 21 to 25 unit employees. From October
to December 1981 it employed 30 to 32 unit em-
ployees. Eastone employed 29 unit employees in
January 1982 and 16 in February 1982.
C. Contentions of the Parties
The General Counsel contends that the record
establishes a substantial continuity in the employing
enterprise; that the Respondent is therefore a suc-
cessor to Eastone and is obligated to bargain with
the Union on request as the exclusive representa-
tive of its employees; and that the Respondent's
failure and refusal to bargain with the Union violat-
ed Section 8(a)(5) and (1) of the Act.
The Respondent contends that, under the cir-
cumstances of this case, it was not unreasonable to
assume that a majority of unit employees did not
support the Union when it requested recognition.
The Respondent points to the Union's failure to ne-
gotiate a contract with Eastone, the 2-month strike,
the collapse of Eastone's business, and the subse-
quent 6-month closedown of plant operations. The
Respondent further asserts that, at the time of the
Union's demand for recognition, the Company did
not employ a full complement of employees.
D. Discussion of Law and Conclusions
In determining whether a purchaser is obligated
to bargain with the exclusive representative of its
predecessor's employees, the traditional test is
whether there is substantial continuity in the em-
ploying enterprise.3 Where there is such continuity,
the presumption of majority status by the union
under the predecessor is not affected by a _ change
in ownership. The traditional criteria for this test
include whether there had been substantial continu-
ity in the following : (1) business operations; (2)
plant; (3) work force; (4) jobs and working condi-
tions;' (5) supervisors; (6) machinery, equipment,
2 The Respondent's president was not employed by Eastone The Re-
spondent employs no other supervisors within the meaning of Sec 2(11)
of the Act.
2 Lincoln Private Police, 189 NLRB 717 (1971). See also NLRB V. Burns
Security Services, 406 U S 272, 279-281 (1972)
1653
and methods of production; and (7) product or
service.4 Applying these criteria to the totality of
the circumstances here, we conclude that the Re-
spondent is a successor.
The record shows that the Respondent is en-
gaged in the same business operations, at the same
plant, producing the same product with the same
equipment as the predecessor employer. The Re-
spondent's employees perform the same jobs, under
the same general working conditions, as did Eas-
tone's employees. The Respondent's general super-
visor was employed by Eastone as a supervisor,
and the Respondent deals with the majority of the
same suppliers and customers as Eastone. The
record further shows that all of the Respondent's
unit employees were former employees of the pred-
ecessor.
We also find that the Respondent employed a
representative complement of its work force when
the Union requested recognition. In February 1982,
the last month for which the stipulation of facts
provides information, Eastone employed 16 em-
ployees in the bargaining unit. The Respondent em-
ployed 12 former Eastone employees in the unit
when the Union requested recognition. From Feb-
ruary until October 1983, the Respondent hired
two additional employees, both former Eastone
employees. However, one unit employee resigned
prior to these hirings, and another employee was
injured and went on leave shortly after the hirings.
In view of the stable nature of the Respondent's
work force, and the absence of evidence that the
Respondent had definite and timely plans to expand
its employee complement at the time it received
the Union's request for recognition, we find that
the Respondent employed a representative comple-
ment of employees when the Union requested rec-
ognition.5
As a successor employer, the Respondent is obli-
gated to bargain with the exclusive bargaining rep-
resentative of the employees acquired from the
predecessor unless it demonstrates either that the
representative no longer enjoyed majority support
on the date of its refusal to bargain or that it had a
good-faith doubt of the representative's continued
majority supports The Respondent had demon-
4 E.g., Premium Foods, 260 NLRB 708, 714 (1982), enfd 709 F.2d 623
(9th Cit. 1983). Continuity of customers has also been considered as a
factor in , determmmg continuity in the employing industry . See, e.g.,
Stewart Chevrolet, 262 NLRB 362, 364 (1982)
s With respect to the amount of time between Eastone's closure and
the commencement of the Respondent 's operation , it is well established
that a hiatus is only material in determining successorship status where
there have been other substantial changes in operations United Mainte-
nance & Mfg Co, 214 NLRB 529, 532 (1974) We further find that the
remaining evidence advanced by the Respondent does not establish a
good-faith doubt of the Union's majority status.
6 Westwood Import Co, 251 NLRB 1213, 1225 in 21 (1980).
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strated neither. We therefore conclude that it has
violated Section 8(a)(5) and (1) of the Act by its re-
fusal to bargain with the Union.
CONCLUSIONS OF LAW
1. The Respondent, Taylor Stone d/b/a Eastone
of Ohio, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Teamsters Local Union No. 159, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees
employed by the Employer at its McDermott,
Ohio facility, excluding all office clerical employ-
ees and all professional employees , guards and su-
pervisors as defined in the Act constitute a unit ap-
propriate for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
4. The Union is the exclusive collective-bargain-
ing representative of employees in the appropriate
unit within the meaning of Section 9(a) of the Act.
5. By refusing on and after 15 March 1983 to
recognize and bargain with the Union as the exclu-
sive collective-bargaining representative of employ-
ees in the appropriate unit , the Respondent has en-
gaged in unfair labor practices affecting commerce
within the , meaning of Section 8 (a)(5) and (1) and
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist, to bargain, on request with the
Union, and, if an understanding is reached, to
embody the understanding in a signed agreement.
ORDER
The National Labor Relations Board orders that
the Respondent, Taylor Stone d/b/a Eastone of
Ohio, Inc., McDermott, Ohio, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Local
Union No. 159, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America as the exclusive bargaining
representative of the employees in the following
appropriate unit:
All production and maintenance employees
employed by the Employer at its McDermott,
Ohio facility, excluding all office clerical em-
ployees and all professional employees, guards
and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of employees in the appropri-
ate unit with respect to terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement.
(b) Post at its facility in McDermott, Ohio,
copies of the attached notice marked "Appendix."?
Copies of the notice, on forms provided by the -Re-
gional Director for Region 9, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able 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 Respondent has taken to comply.
7 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 "
APPENDIX
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 bargain with the Union,
Teamsters Local Union No. 159, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America as
the exclusive representative of our employees in
the following appropriate unit:
All production and maintenance employees
employed by the Employer at its McDermott,
Ohio facility, excluding all office clerical em-
ployees and all professional employees, guards
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
EASTONE OF OHIO 1655
cise of the rights guaranteed you by Section 7 of reached, embody the understanding in a signed
the Act. agreement.
WE WILL, on request, bargain with the Union as
the exclusive representative of the employees in the TAYLOR STONE D/B/A EASTONE OF
appropriate unit with respect to terms and condi- OHIO, INC.
tions of , employment, and, if an understanding is