Fall River Dyeing & Finishing Corp

National Labor Relations Board - Board Decisions

Oct 19, 1984

272 N.L.R.B. 839 (N.L.R.B. 1984)

FALL RIVER DYEING CORP 839
Fall River Dyeing & Finishing Corp and United
Textile Workers of America, AFL-CIO, Local
292 Case 1-CA-20391
19 October 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 27 January 1984 Administrative Law Judge
Burton S Kolko issued the attached decision The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings, findings, and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Fall River
Dyeing & Finishing Corp, Fall River, Massachu
setts, its officers, agents, successors, and assigns,
shall take the action set forth in the Order
MEMBER HUNTER dissenting
Contrary to my colleagues, I would dismiss the
complaint allegation that the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain collectively with the Union,
Textile Workers Local 292 As of the date that the
Union made its recognition demand on 19 October
1982 the Respondent did not have even a repre
sentative complement of employees and did not
have such complement until 15 January 1983, the
date on which the judge and my colleagues have
1 In Its exceptions the Respondent challenges inter aim the judge s
reliance on certain testimony We interpret this as a challenge to the
judge s implicit credibility findings The Board s established policy is not
to overrule an administrative law judge s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are Incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd
188 F 2d 363 (3d Cir 1951)
We also agree with the judge that the Respondent Incurred a bargain
mg obligation in mid January 1983 It was at that point that the Respond
ent first employed a substantial and representative complement of its
work force (a majority of which it is undisputed the Union represented
when those employees worked for the Respondent s organized predeces
sor) Thus in mid January the Respondent had one shift in full operation
and had started a second shift All job titles had been filled since the pre
vious November and by mid January the Respondent employed more
than 50 percent of those it would ultimately employ in the vast majority
of existing job classifications Indeed at the critical time the Respondent
employed nearly two thirds the number it planned to ultimately have
Furthermore with the addition of the second shift the Respondent added
no new skills to its work force
imposed a bargaining obligation Thus at the time
the Respondent denied recognition on 21 October
1982, it had no obligation to recognize the Union
In the absence of any evidence that the Union re
newed its request for recognition subsequent to Oc
tober 1982 at a time when the Respondent would
have been obligated to honor such a request under
successorship principles,' there is no basis for find
ing that the Respondent unlawfully refused to rec
ognize the Union
' I find It unnecessary to consider the Respondent s argument that the
judge erred in imposing a bargaining obligation on the date that a repre
sentative complement of employees was employed by the alleged succes
sor employer and that the proper date for determining whether any bar
gaining obligation may arise pursuant to a recognition demand of a union
which represented the predecessor s employees is the date that the al
leged successor employed a full complement of employees
DECISION
STATEMENT OF THE CASE
BURTON S KOLKO Administrative Law Judge Upon
a charge filed on November 1 1982 by the United Tex
tile Workers of America AFL-CIO Local 292 a corn
plaint issued on December 21 1982 against Fall River
Dyeing & Finishing Corp (Respondent) alleging viola
tion of Section 8(a)(1) and (5) of the Act The matter
was heard before me in Boston Massachusetts on May
2 1983 and was briefed on August 5 1983
The case centers around whether Respondent is a suc
cessor to Sterlingwale Corp If it is the second question
anses—did it violate the Act by refusing to recognize
and bargain with the Union? I find that Respondent is a
successor and did violate the Act by refusing to recog
nize and bargain with the Union once it had a represent
ative complement of workers the majority of whom
were former employees of Sterlingwale
Successorship
Sterlingwale Corp in Fall River had been in business
for over 30 years before it closed in 1982 The business
involved mainly the dyeing and finishing of textiles and
a small amount of retail sales Sterlingwale had handled
both flat goods and corduroy fabrics Although it had
been both a converter of fabrics and a commission dyer
it moved more toward commission dyeing as it suffered
economically
Converter work meant that goods were purchased by
Sterlingwale then dyed and finished for sale in the mar
ketplace Commission dyeing involved the receipt of
goods from a customer the dyeing and finishing of the
goods and the return of those goods to the customer
Leonard Ansm president of Sterlingwale testified that
from an employee s viewpoint the production process for
either converter goods or commission goods was the
same In addition the production process for corduroy
and flat goods was similar (Corduroy required back
sizing and some cutting and post cutting inspection )
272 NLRB No 127
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ansin testified that beginning in 1979 Sterlingwale had
financial problems By February 1982 Ansin decided to
close Sterlingwale On February 12 he laid off all the
production employees 1 From then until August 1982
Sterlmgwale maintained a skeletal existence A few
people were still employed there throughout this period
They maintained the building shipped out remaining
goods and kept watch over the machinery In August
Sterlingwale went under There was an assignment for
the benefit of creditors An auction was held of Sterling
wale s property Through a series of complex transac
lions Respondent purchased all the machinery equip
ment furniture and fixtures of Sterlingwale It pur
chased some of Sterlingwale s materials and inventory at
auction It bought Sterlingwale s premises and moved in
during September 1982
The traditional test for determining successorship is
whether there is substantial continuity in the employing
enterprise 2 The factors used in making this determina
non are (1) business operations (2) plant (3) work force
(4) jobs and working conditions (5) supervisors (6) ma
chmery equipment and methods of production and (7)
product or service 3
Respondent places great emphasis on the fact that it is
solely a commission dye house while Sterlingwale was
mainly a converter of fabric Respondent urges that this
results in a difference in the nature and identity of the
enterprise I disagree The business is like Sterlingwale
dyeing and finishing of fabric The fact that Respondent
does something different before and after the production
process is completed does not result in any essential dif
ference The enterprise is not identical but it is similar
Respondent uses the same production building with
the same machinery as Sterlingwale did It retained most
of the same job classifications (Respondent has no retail
store and fewer inspectors of fabric ) Norman Rego an
employee for 20 years at Sterlingwale and now em
ployed by Respondent testified that as far as he can tell
the machines are the same the jobs are the same and the
supervision is the same (Tr 113-115) Respondent did
not start a new service or product line
Continuity of customers has also been considered as a
factor in determining continuity in the employing Indus
try General Counsel Exhibit 10 indicates that in dollar
volume over one half of the current customers of Re
spondent were customers of Sterlingwale Thus a sub
stannal part of Respondent s business is linked with Ster
lingwale On these bases I conclude that Respondent was
a successor to Sterlingwale 4
' Sterlingwale employees were represented by United Textile Workers
Local 292 in a production and maintenance unit for about 30 years Such
recognition was embodied in successive collective bargaining agreements
the most recent of which was extended to Apnl 1 1981 (G C Exh 13)
3 NLRB v Burns Security Services 406 U S 272 279-281 (1972)
3 Grico Corp 265 NLRB 1344 1345 (1982)
4 I make this finding despite the fact that there was a 7 month hiatus
between the ending of Sterlingwale and the beginning of Fall River
Dyeing Generally a hiatus is only material in determining successorship
status when there have been other substantial changes in the enterprise
Grico Corp supra United Maintenance & Mfg Co 214 NLRB 529 532
(1974)
Demand for Bargaining
A new employer has an obligation on request to bar
gain with the Union if a majority of the unit employees
hired were unit employees of the predecessor employer
The demand for bargaining by the Union must be made
when the new employer is operating at a representative
capacity However if the new employer is not at that ca
pacity at the time of the demand the demand is of a con
firming nature Once the employer reaches a representa
tive capacity the bargaining obligation will attach
Respondent hired its first employees on September 20
1982 The Union demanded recognition by letter dated
October 19 1982 Respondent denied recognition by
letter dated October 21 1982
Twenty one employees had been hired by October 22
Eighteen of them were former Sterlingwale employees
Herbert Chace who had worked at Sterlingwale and is
now executive vice president and secretary for Respond
ent testified that after the first hinngs in September the
employees spent approximately 4-6 weeks of startup
cleaning repairing machines and so forth Then they
began 4-5 weeks of experimental production just to
make sure everything was in working order (Tr 185-
187 ) Chace agreed with employee Rego s testimony that
the first shift was at almost full operating level when a
second shift was commenced in January 1983 Chace
also testified that their production goal was to have two
full shifts working by mid April Respondent asserts that
since a full complement of workers was not reached until
then it is at that point that one should inquire as to the
status of former Sterlingwale employees Presumably this
argument is pressed because the evidence indicates that
in the week ending March 24 1983 former Sterlingwale
employees were for the first time a mmonty of the unit
However the standard to be used indicated by the
Board is representative complement not full comple
ment 5 By late November 1982 employees had been
hired in all job titles Accounts receivable in November
1982 from previous months totaled $145 001 38 (Tr 188)
Clearly the business was gearing up Since we have tes
timony from Chace and Rego above which points to
January 1983 as a time when the plant was running one
shift at full capacity I find that the duty to bargain with
the Union attached for Respondent in mid January 1983
Respondent contends that since it did not purchase
Sterlingwale directly it should not be held to be a suc
cessor This argument fails since direct purchase from a
predecessor is not a prerequisite to successorship 6
Since Respondent has refused to bargain with the
Union it has violated Section 8(a)(5) and (1) of the Act
CONCLUSIONS OF LAW
1 Respondent Fall River Dyeing & Finishing Corp is
an employer within the meaning of Section 2(2) of the
5 Gm° Corp supra
6 Cf Makaha Valley Inc 241 NLRB 300 303 (1979) where an inter
veiling trusteeship did not defeat successorship status
FALL RIVER DYEING CORP 841
Act and engaging in commerce within the meaning of
Section 2(6) and (7) of the Act 7
2 United Textile Workers of America AFL-CIO
Local 292 is a labor organization within the meaning of
Section 2(5) of the Act
3 The following employees constitute a unit appropn
ate for collective bargaining within the meaning of Sec
tion 9(b) of the Act
All production and maintenance employees at the
Fall River plant including the electrician electri
clan s helper and mechanics but excluding all ex
ecutives office clerical and plant clerical employ
ees second hands guards and professional employ
ees and supervisors as defined in the Act
4 United Textile Workers of America AFL-CIO
Local 292 has been and is the exclusive representative of
all employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act
5 By refusing about January 15 1983 and at all times
thereafter to recognize and bargain collectively with the
above named labor organization as the exclusive repre
sentative of all its employees in the appropriate unit Re
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act
6 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
lion 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act it shall cease and
desist therefrom and on request bargain collectively
with the Union as the exclusive representative of all em
ployees in the appropriate unit 8
ORDER
The National Labor Relations Board orders that the
Respondent Fall River Dyeing & Finishing Corp Fall
River Massachusetts its officers agents successors and
assigns shall
1 Cease and desist from
(a) Refusing to bargain collectively with United Tex
tile Workers of America AFL-CIO Local 292 as exclu
sive representative of the following unit
7 Based on a projection of its operations since about August 1982 at
which time Respondent commenced operations Respondent in the
course and conduct of its business of dyeing and finishing textiles and re
lated products will annually provide services valued in excess of $50 000
for customers located outside the Commonwealth of Massachusetts and
in excess of $50 000 for enterprises located within Massachusetts who
themselves are directly engaged in Interstate commerce
8 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
All production and maintenance employees at the
Fall River plant including the electrician electn
, clan s helper and mechanics but excluding all ex
ecutives office clerical and plant clerical employ
ees second hands guards and professional employ
ees and supervisors as defined in the Act
(b) In any like or related manner interfering with re
straining or coercing its employees in the exercise of
their rights under Section 7 of the Act
2 Take the following affirmative action to effectuate
the policies of the Act
(a) On request bargain with the above named Union
as exclusive representative of employees in the above de
scribed unit with respect to rates of pay wages hours
and other terms and conditions of employment and if an
agreement is reached embody it in a signed contract
(b) Post at its Fall River Massachusetts plant copies of
the attached notice marked Appendix 9 Copies of said
notice on forms provided by the Regional Director for
Region 1 after being duly signed by Respondent s au
thonzed representative shall be posted by it immediately
upon receipt thereof and be maintained by it for 60 con
secutive days thereafter in conspicuous places including
all places where notices to employees are customarily
posted Reasonable steps shall be taken by Respondent to
insure that such notices are not altered defaced or coy
ered by any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
9 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 Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al 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 or
dered us to post and abide by this notice
WE WILL NOT refuse to bargain collectively with
United Textile Workers of America AFL-CIO Local
292 as the exclusive representative of the following unit
All production and maintenance employees at the
Fall River plant including the electrician electn
clan s helper and mechanics but excluding all ex
ecutives office clerical and plant clerical employ
ees second hands guards and professional employ
ees and supervisors as defined in the Act
WE WILL NOT in any like or related manner interfere
with restrain or coerce our employees in the exercise of
the rights guaranteed them under Section 7 of the Act
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, on request, bargain collectively with the standing is reached, embody such understanding in a
aforesaid Union as the exclusive representative of all em- signed agreement.
ployees in the appropriate unit descnbed above with re-
spect to rates of pay, hours of employment, and other FALL RIVER DYEING & FINISHING CORP.
terms and conditions of employment and, if an under-