Gould, Inc., Electrical Components Division

National Labor Relations Board - Board Decisions

Aug 17, 1982

263 N.L.R.B. 442 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gould, Inc., Electrical Components Division and In-
ternational Brotherhood of Electrical Workers,
Local Union No. 108, AFL-CIO. Case 12-CA-
8262
August 17, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On October 24, 1979, Administrative Law Judge
John P. von Rohr issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed cross-exceptions, a brief in support
thereof, and an answering brief.
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
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
Respondent purchased and continued to operate
a plant in Tampa, Florida, known as the Efcor Die
Casting Operation, Division of I-T-E (hereinafter
called Die Cast). The employees employed by Die
Cast at this plant were represented by the Union
and Respondent continued to honor the existing
collective-bargaining agreement. Respondent also
operated a plant in Millville, New Jersey, known as
the Conductor Fittings Corporation (hereinafter
called CFC). In late September or early October
1977, Respondent moved the CFC operation from
Millville to Tampa, locating it in the same plant in
an area adjacent to the Die Cast operation.
The issues in this case are whether the employ-
ees employed by CFC constitute an accretion to
the certified Die Cast production and maintenance
unit,' and whether Respondent violated Section
i On September 8, 1977, the Board conducted a decertification election
in Case 12-RD-347 in a unit of "all production and maintenance employ-
ees" employed at the Tampa facility. On December 27, 1977, the Board
certified the Union as the collective-bargaining representative of the unit
employees. Respondent thereafter refused to bargain with the Union, as a
result of which the Union filed a charge in Case 12-CA-8042 alleging a
refusal to bargain. Thereafter, on July 21, 1978, the Board, in 237 NLRB
66, found that Respondent's refusal to bargain with the Union violated
Sec. 8(aX5) and (1) of the Act. In its Decision, the Board declined to
reach or consider the question whether the production and maintenance
employees of the alleged "added operation" (CFC) constituted an accre-
tion to the Die Cast certified unit, stating:
Respondent, however, offered no evidence supporting the alleged
expansion in operations, the nature of work performed by these em-
ployees, or how their working conditions differ from those of unit
employees. Nor is there evidence that any party has sought inclusion
of these employees in the unit. Further, no petition seeking clarifica-
263 NLRB No. 35
8(a)(5) and (1) of the Act when it refused to recog-
nize and bargain with the Union as the exclusive
bargaining representative of those employees. The
Administrative Law Judge, substantially relying
upon Tubing Division, Robintech Incorporated,2 and
certain numerical calculations which he found per-
tinent to the Section 7 rights of the alleged accret-
ed employees, concluded that a finding of accretion
was not warranted and that, therefore, Respondent
did not violate the Act as alleged. Consequently,
he also found it unnecessary to decide whether the
Union had made a valid and timely bargaining
demand. The Administrative Law Judge dismissed
the complaint in its entirety.
The General Counsel excepts to certain of the
Administrative Law Judge's factual findings re-
garding factors determinative of the accretion
issue; to his reliance upon Robintech, supra, which
the General Counsel contends is clearly distin-
guishable; and to his failure to find that regardless
of when, if ever, the Union demanded bargaining,
accretion took place at the inception of the CFC
operation in Tampa, thereby initiating Respond-
ent's obligation to bargain collectively with the
Union regarding the alleged accreted CFC produc-
tion and maintenance employees. Respondent,
while in agreement with the Administrative Law
Judge's conclusion that no accretion occurred, ex-
cepts to his failure to find additionally (1) that the
Union failed, for reasons other than futility, to
make an effective, proper, and timely demand to
bargain on behalf of the CFC employees, and (2)
that the Union and the General Counsel are now
foreclosed from asserting that Respondent unlaw-
fully refused to bargain with the Union because the
Union failed to raise the accretion issue before the
Board in a timely fashion.3
For the reasons set forth below, we do not agree
with many of the factual findings made by the Ad-
ministrative Law Judge which led him to conclude
incorrectly that Robintech, supra, is controlling in
tion of the bargaining unit . . . has been filed. [at 237 NLRB 67, fn.
7.]
2 222 NLRB 571 (1976).
3 Respondent contends that the Administrative Law Judge improperly
admitted into evidence, over its objection, G.C Exhs. 5-10 which are
"Employee Change of Status Reports" showing transfers between Die
Cast and CFC and within those operations. Respondent contends that
after the close of General Counsel's case the only legitimate way for him
to supply new evidence is through rebuttal or impeachment and since the
subject exhibits either predate or postdate the employment of Personnel
Director Donald Moreaut, who testified on Respondent's transfer policy,
and do not dispute any evidence presented by Respondent, their admis-
sion should have been denied. Inasmuch as the subject exhibits contain
evidence relevant to the issues of the case, and since Respondent had
every opportunity to explain said exhibits, and did explain them through
the former CFC supervisor and foreman, Joseph Latina, we hereby find
without merit Respondent's request that the Board not consider said doc-
uments.
442
GOULD, INC.
this case. However, while many of the factors sup-
porting a finding of accretion were present at the
start of the CFC operation in Tampa in late 1977,
and for some months thereafter, we find that by
the date of the Union's bargaining demand in May
1978, the facts had so changed as to render a find-
ing of accretion, and the concomitant obligation to
bargain, inappropriate.
Both CFC and Die Cast manufacture various fit-
tings and connectors for use in the electrical indus-
try. CFC's products, made of aluminium or copper
extrusion and designed to carry electrical current,
are primarily manufactured according to individual
consumer specifications. Die Cast's products, man-
ufactured through a die cast process out of zinc
pursuant to industry standards, do not carry electri-
cal current. In late September or early October
1977, Respondent closed the Millville plant and re-
located the CFC equipment to the Tampa facility,
in space formerly occupied by Die Cast equip-
ment.4 By February 1978, the total complement of
60 CFC machines, including 50 or 52 from Mill-
ville, had been installed at the Tampa facility. 5 The
products of CFC and Die Cast were unchanged by
the move and, as before, marketed by Respond-
ent. 6
CFC started operations in Tampa using some 23
to 27 operators, all but 7 of whom were then em-
ployed by Die Cast.7 According to uncontradicted
testimony. each day the CFC department was
staffed by the Die Cast foreman who, after com-
pleting his Die Cast assignments, would send from
16 to 20 operators to CFC where they were
trained and supervised by the CFC foreman. Be-
cause often different employees were sent, the
CFC foreman was required each day to train Die
Cast operators to run the CFC equipment, a pro-
cess which took approximately 5 minutes. In late
4 The Administrative Law Judge found that the Die Cast operation oc-
cupied somewhat less than one-half of the floor space of the Tampa fa-
cility and that the CFC equipment was moved into the vacant portion of
the plant The record clearly establishes, however, that Die Cast equip-
ment was consolidated in order to clear space for the CFC equipment
which, after placement, adjoined Die Cast's.
I Based on photographs of certain machines produced by Respondent
at the hearing the Administrative Law Judge found that Respondent pur-
chased for CFC, large, sophisticated, and expensive equipment "at con-
siderable expense to the Company." There is no evidence, however, re-
garding Respondent's cost in purchasing the 8 to 10 new pieces of equip-
ment, and aside from 3 duplicate pieces, there is nothing to indicate what
equipment Respondent purchased for the CFC operation in Tampa. Fur-
ther, the photographs relied upon by the Administrative Law Judge were
never introduced into evidence by Respondent and are therefore not
before the Board for consideration. Accordingly, we are unable to adopt
the Administrative Law Judge's finding regarding Respondent's cost in
equipping the CFC operation in Tampa.
6 Twenty percent of CFC's products and all of Die Cast's products are
listed in a catalog of "Gould Efcor Electrical Components," dated Janu-
ary 1, 1979.
7 Seven production and maintenance employees transferred from Mill-
ville to Tampa, four on a permanent basis and three on a temporary basis.
One of the permanent transfers later became the CFC foreman.
October or early November 1977, from 9 to 16 Die
Cast operators were permanently transferred to
CFC.8 After this, Respondent began filling the
CFC employee complement with employees hired
through newspaper advertisements. No employees
were transferred from Die Cast to CFC after late
January 1978, 9 when Respondent instituted a "new
application procedure," pursuant to which all Die
Cast employees were required to fill out an em-
ployment application if they wished consideration
for employment in CFC.'°
Both CFC and Die Cast employed production
and maintenance employees in primarily the same
job classifications and possessing largely the same
skills. Employees for both operations were locat-
ed primarily in the same building where many em-
ployees from both operations were in full view of
one another during working hours. Die Cast and
CFC were not integrated with respect to produc-
tion, but both operations received support services
from the tool room, maintenance department, and
warehouse.' 2 Employees working in those depart-
ments serviced mainly Die Cast or CFC and were
on the correspondent payroll. In times of "oper-
ation crisis," estimated to be between 5 to 10 per-
cent of the time, toolroom employees on the CFC
payroll performed Die Cast work and vice versa.
Further, warehouse employees regularly received
supplies for both CFC and Die Cast. Both CFC
and Die Cast employees had access to the same
restrooms and water fountains, punched the same
timeclock, and utilized the same lunchroom, albeit
at different times. Working conditions as well as
benefits were the same for all production and main-
tenance employees and wages were closely compa-
rable. Payroll records for both operations were
8 While the testimony concerning the number of permanent transfers
made during this period differs from the figures which appear on the
charts prepared by Respondent on this subject, it is clear that a minimum
of nine Die Cast operators were permanently transferred to CFC by Oc-
tober 31, 1977. According to Respondent's charts, CFC had 16 hourly
paid employees on this date.
9 A chart prepared by Respondent for the hearing shows that on Janu-
ary 31, 1978, of the 64 "CFC hourly employees," 17 had previously
worked in Die Cast. While it is impossible to determine from this chart
the total number of employees transferred from Die Cast to CFC before
implementation of the "new application procedure," it is clear from em-
ployee change of status reports in evidence that beyond the 9 to 16 No-
vember transfers, at least 4 additional Die Cast employees were trans-
ferred to CFC in late January 1978.
LO This process apparently applied to those actively employed in Die
Cast as well as those on layoff status.
i i While there is evidence that certain CFC equipment requires addi-
tional skills to run or operate, we note that the record reflects that only a
limited number of employees are capable of using blueprints, gauges, and
calipers or to operate the equipment requiring more extensive training. In
fact, many similar functions were performed by the machines in CFC and
Die Cast, and at least 6 of the 10 types of machines used by CFC require
as little as 5 minutes of training to operate.
12 The certified production and maintenance unit included the tool-
room, maintenance department, and warehouse employees.
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prepared by the same outside computer service1 3
and paychecks were drawn from the same Florida
bank under the name of Gould, Inc., Electrical
Components Division.
Upon commencement of the CFC operation in
Tampa, the responsibilities of the existing plant
manager were expanded to incorporate manage-
ment of CFC. Setup of the CFC operation was co-
ordinated by a marketing agent and a purchasing
agent both formerly of Millville. By September
1978, the management hierarchy had been restruc-
tured so that Die Cast and CFC each had its own
superintendent. 14 The toolroom, maintenance de-
partment, and warehouse employees, however, re-
mained separately supervised by individuals who
supervised them irrespective of whether they per-
formed work primarily for Die Cast or CFC.
For the first 6 months of CFC's operation in
Tampa, control of labor relations matters for the
entire Tampa facility was vested in Respondent's
division personnel manager based in New York.
Thereafter, until the cessation of Die Cast produc-
tion in mid-April 1979, the administration of all
personnel matters and maintenance of personnel
records was done by the plant personnel man-
ager.1 5 The ultimate decision to hire an employee
rested with various shift or department supervisors.
The toolroom, maintenance department, and ware-
house supervisors hired for both Die Cast and
CFC. The superintendents of Die Cast and CFC
had authority to discharge employees, subject to
review of the plant manager.
Respondent maintained separate financial state-
ments for Die Cast and CFC. Raw materials and
supplies were charged to the account of CFC or
Die Cast depending upon which operation they
were used by. Cost for office supplies, building re-
pairs, and utility bills were shared by the two. Fur-
ther, for profit-and-loss purposes, the salaries of the
toolroom, maintenance department, and warehouse
supervisors were split between Die Cast and CFC.
Following the Board's certification of the Union
on December 22, 1977, as the collective-bargaining
representative of all production and maintenance
employees at Respondent's Tampa facility, the
Union, on December 28, 1977, demanded bargain-
13 The computerized payroll records identified by a department
number series whether an employee worked in Die Cast or CFC. The
record reflects that the identification number for Die Cast is the 500
series and for CFC is the 400 series and that the Administrative Law
Judge inadvertently interchanged these numbers. The printout subtotals
each job classification within a series, but provides no series totals.
" The Die Cast superintendent also functioned as supervisor of the
Die Cast production employees, whereas the CFC superintendent had a
first- and second-shift supervisor overseeing the CFC production process.
i" The Administrative Law Judge found that Moreaux is presently
personnel manager whereas the record reflects that Moreaux held that
position only until December 19, 1978. In January 1979, Jaca DePriest
became personnel administrator at the Tampa facility.
ing. In a letter dated January 17, 1978, Respondent
refused to bargain with the Union on the grounds
that, inter alia, the Board's decision to overrule Re-
spondent's postelection objections was factually
and legally incorrect and the Union's certification
was therefore invalid. The CFC operation was not
mentioned in Respondent's refusal-to-bargain letter,
but sometime in January the Union became aware
of the presence of that operation in Tampa. There-
after, a complaint issued in Case 12-CA-8042, al-
leging that Respondent had unlawfully refused to
bargain with the Union as certified. Respondent, in
its answer to the complaint, denied, in part, the ap-
propriateness of the unit and in its May 16, 1978,
memorandum in opposition to the General Coun-
sel's Motion for Summary Judgment explained that
this denial was based on a concern that the certi-
fied unit might be interpreted as including certain
production and maintenance employees which it al-
leged to have recently added to its Tampa oper-
ation.
By May 21, 1978, there were 60 hourly employ-
ees in the Die Cast operation and 148 hourly em-
ployees in the CFC operation. On May 25, 1978,
Respondent and the Union held a meeting to dis-
cuss Respondent's decision to subcontract the pro-
duction of certain parts then being made by Die
Cast. During this meeting the Union's assistant
manager, Bruno R. Bengter, Jr., took the position
that since the CFC employees were part of produc-
tion and maintenance, as described in the original
certification, Respondent should move to CFC the
Die Cast employees performing the work to be
subcontracted, with seniority rights. Respondent's
counsel, Peter Zinober, indicated, however, that
Bengter's inquiries were not germane to the pur-
pose of the meeting and that the Company did not
intend to discuss whether the Union represented
the CFC employees. The parties met next on June
22, 1978, at which time they again discussed the
impact of subcontracting on the Die Cast employ-
ees. Respondent rejected the Union's proposal that
people from Die Cast be moved to CFC with their
seniority intact, bumping more junior CFC em-
ployees if necessary. Respondent indicated that
those laid off from Die Cast would be hired in
CFC only after they filled out employment applica-
tions and then only as new employees.1 e
15 Respondent contends that the record fails to support the complaint
allegation that on or about June 22, 1978, the Union requested Respond-
ent to recognize it as the exclusive bargaining representative of CFC em-
ployees as an accretion to the bargaining unit. While the record is un-
clear as to whether such a request was made on June 22, it is clear that
such a request was made by Bengter on May 25. 1978, and we so find.
The claim to representational status implicit in the Union's May 25, 1978.
statements could have been more specific and direct; however it is evi-
Continued
444
GOULD, INC.
On July 3, 1978, the Union filed the instant
charges. On July 21, 1978, the Board issued its De-
cision in Case 12-CA-8042 in which it declined to
reach or consider the question whether the produc-
tion and maintenance employees of Respondent's
"alleged 'added operation' constituted an accretion
to the certified unit." 7
Thereafter, in a letter dated July 28, 1978, the
Union demanded that Respondent recognize and
bargain "in accordance with the certification . . .
in Case 12-RD-347" and the Board's decision in
Case 12-CA-8042. The letter went on to request
that, in connection with bargaining, Respondent
furnish the Union with "information reasonably
necessary to enable it to meet its responsibilities
under the law," i.e., a list of the job classifications
utilized at the Tampa facility "including those uti-
lized or employed in the C.F.C. section or depart-
ment" and a list of all production and maintenance
employees at the Tampa operation "including the
'C.F.C.' department or operation" and showing for
each employee, his department, current rate of pay,
and pay increases.
In the meantime, in July and August 1978, Re-
spondent terminated from 15 to 20 Die Cast em-
ployees for lack of work, or 30 percent of the then
existing Die Cast employee complement. Thereaf-
ter, in February or March 1979, Respondent and
the Union bargained about the eventual shutdown
of the Die Cast operation in Tampa. The shutdown
commenced on April I and was completed on
April 12, 1979.18
dent from Bengter's assertion and accompanying proposal that the Union
was requesting Respondent to recognize and bargain with it concerning
the CFC employees as part of the unit for which it had been certified.
No other construction can be placed on the Union's claim that the CFC
employees were part of the production and maintenance unit described in
the original certification. Moreover, from Zinober's response, it is clear
that Respondent interpreted the Union's statements as a demand for rec-
ognition concerning CFC employees. We further find that the Union's
May 25, 1978., demand for recognition as bargaining representative of the
CFC employees was refused by Respondent. Indeed, Christian Peter Die-
trich, then director of personnel for both Die Cast and CFC, did not
deny that in either May or June 1978, during negotiations with the Union
over other matters, he personally told union representatives that CFC
was not part of the same bargaining unit as Die Cast.
'7 See discussion at fn. 2, supra
1 During these negotiations the parties agreed, as stipulated at the
hearing, that:
. . . as part of the impact settlement reached between the Company
and the Charging Party regarding the closing down of the Die Cast
operations completely, as to all unit employees, except maintenance
and tool and die personnel, die cast seniority would be the basis for
hiring into CFC, assuming jobs were available, regardless of one's
experience in die cast, except that maintenance and tool and die per-
sonnel would not be subject to plant seniority rule and were entitled
to be transferred to CFC operation after the shutdown of the die
cast operations, without having to go through hiring-which was in
effect a new probationary period which the other employees had to
go through.
The parties further stipulated that his "impact settlement agreement" is
not to be construed as an admission or used to compromise any party's
legal position in any pending litigation. On March 29, 1979, the sole em-
Discussion
An accretion, as the term has been employed by
the Board and the courts, is merely the addition of
new employees to an already existing group or unit
of employees.'g In determining whether a new fa-
cility or operation is an accretion, the Board has
given weight to a variety of factors including inte-
gration of operations, centralization of managerial
and administrative control, geographic proximity,
similarity of working conditions, skills and func-
tions, common control of labor relations, collec-
tive-bargaining history, and interchange of employ-
ees. 20 In the normal situation some elements mili-
tate toward and some against accretion, so that a
balancing of them is necessary. Where the new em-
ployees are found to have common interests with
members of an existing bargaining unit and would
have been included in the certified unit or covered
by the current collective-bargaining agreement an
accretion is found to exist. 2 1 However, where a
group of new employees numerically overshadows
the existing certified unit and may constitute a sep-
arate or independent appropriate unit, the Board is
"cautious" to find that the new employees are part
of the existing unit since such a finding would de-
prive the larger group's employees of their statu-
tory right to select their own bargaining repre-
sentative. 22 In such cases the Board must balance
the right of employees to select a bargaining agent
against the concomitant statutory objective of
maintaining established stable labor relations.
The General Counsel contends that an accretion
occurred soon after commencement of the CFC
operations in Tampa. Lending support to this con-
tention are the following facts: When CFC was
moved to Tampa in September 1977, Die Cast was
a fully ongoing operation; the two operations had
common ownership, were part of the same corpo-
rate division, and shared the same facility; both op-
erations produced electrical components using em-
ployees in similar job classifications and having es-
sentially the same skills; during the first few
months of CFC operations Die Cast employees
were used on a daily basis to staff the CFC oper-
ation; both production departments were serviced
by the same support departments which were
ployee to be transferred pursuant to the "impact settlement agreement"
was transferred from Die Cast to CFC.
19 N.LR.B. v. Food Employers Council. Inc.. et al, 399 F.2d 501, 502-
503 (9th Cir. 1968).
so Pilot Freight Carriers Inc., 208 NLRB 853, 858 (1974); The Great
Atlantic and Pacific Tea Company (Family Savings Center), 140 NLRB
1011, 1021 (1963).
Sl The Great Atlantic & Pacific Tea Company, supra.
as Renaissance Center Partnership, 239 NLRB 1247 (1979); Bryan In-
fants Wear Company, 235 NLRB 1305, 1306 (1978); Melbet Jewelry Ca,
Inc. and I.D.S--Orchard Park Inc., 180 NLRB 107, 109 (1969); Worcester
Stamped Metal Company, 146 NLRI 1683, 1685-86 (1964).
445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
staffed by employees who initially were part of the
Die Cast operation and were members of the bar-
gaining unit; labor relations were administered and
controlled centrally and both employee comple-
ments received common benefits and were subject
to the same terms and conditions of employment;
both operations came under the same supervision at
higher management levels, and, at the outset of
CFC operations, the Die Cast operators who ran
CFC equipment were under the supervision and in-
struction of the CFC supervisor; the number of
hourly employees in Die Cast substantially outnum-
bered the number of hourly employees in CFC.2 3
However, even in the early phases of the CFC
Tampa operation there were factors militating
against accretion as well. More important, the
Union's demand for recognition as collective-bar-
gaining representative of the new employees did
not occur until more than 6 months after the al-
leged accretion. Many of the factors initially sup-
porting accretion had by that time dissipated or
dramatically changed. These factors lead us to
reject the General Counsel's contention that Re-
spondent violated Section 8(a)(5) and (1) by refus-
ing to bargain with the Union. Thus after CFC
commenced in operations Tampa, the support de-
partment employees began servicing either Die
Cast or CFC almost exclusively and separate con-
tributions to the salaries of the support department
supervisors were made by Die Cast and CFC. Re-
spondent established separate firstline supervision
of Die Cast and CFC only a month after the CFC
operation began. Hiring decisions for Die Cast and
CFC rested with the respective shift or department
supervisors and firing decisions rested with the re-
spective superintendents, albeit subject to review of
2s On these facts we must find the Administrative Law Judge's reli-
ance upon Robintech, supra, misplaced. In Robintech, the Board found no
accretion where the employer, after totally discontinuing its existing
copper tube operation, established at the same plant a new industry to
manufacture a new product requiring considerable new capital invest-
ment and plant modifications. From its inception the new industry oper-
ated under a new plant manager with separate supervision at higher man-
agement levels. The Board found a contrary result was not required by
the fact that the new industry was located on the same premises, that
some of the production and maintenance employees represented by the
Union were transferred to the soon to be expanding operation, and that
there was continuity of firstline supervision. Here, as noted above, CFC
and Die Cast were operated concurrently; Respondent did not establish a
new industry, but rather expanded the line of electrical components man-
ufactured at the Tampa facility using predominantly existing equipment;
and, other than equipment relocation, there is no evidence that plant
modifications were required.
Member Fanning adheres to the views set forth in his dissent in Robin-
tech, supra. In that case he would have found-based on an evaluation of
the facts as of the critical date-that an accretion existed. Also, in this
case, he believes that, upon commencement of the CFC operation in
Tampa, the relevant factors favored finding an accretion to the existing
unit. However, he agrees with the reasoning of this opinion that a finding
of accretion must be based on the facts as they exist on the date of the
Union's demand for recognition. Further, for the reasons set forth in this
opinion, Member Fanning finds there was no accretion as of the date of
the Union's demand.
the plant manager. The above-discussed employee
interchange which took place during the first few
months CFC was operational ceased by the end of
January 1978. Thereafter, no Die Cast employees
were transferred to CFC. In fact, after January
1978, all employees hired for the CFC operation,
including those who had previously worked for
Die Cast, were hired as new employees. 24 Further,
and significantly, by the Union's May 25, 1978, bar-
gaining demand, there were 148 hourly CFC em-
ployees and only 60 hourly Die Cast employees.
The number of employees the Union desired to add
to the certified unit at that time thus overshadowed
that existing unit by more than two to one. And
the same or a greater ratio of CFC to Die Cast em-
ployees continued thereafter until April 1979 when
the Die Cast operation terminated.
Consequently whatever indicia of accretion exist-
ed at the inception of CFC's Tampa operations are
counterbalanced by subsequent events demonstrat-
ing the separate identity of Die Cast's and CFC's
respective operations. The favorable ratio of Die
Cast to CFC employees that initially obtained was
reversed after a relatively short period of time.
This shift in the comparative sizes of the two oper-
ations, together with the development of separate
lines of organization and supervision, and the con-
current phasing out of Die Cast and the resulting
diminution of its employment complement
outweigh the elements which briefly favored a
finding of accretion.
In view of the foregoing, we conclude that the
issue of whether the CFC employees constituted an
accretion to the Die Cast unit must be determined
on the facts that existed on the date of the Union's
demand. To focus instead, as the General Counsel
urges, on the situation at the beginning of CFC's
Tampa operation would be to ignore the Union's
failure to assert its representative status at that
time. Thus, an accretion finding at the point urged
by the General Counsel would be premature. More
importantly, to hold that an accretion existed at the
inception of the CFC operation in Tampa in the
circumstances of this case would result in denying
to the CFC employees their statutory right to
select their own bargaining representative. 2 5 Thus,
a finding of accretion at the time of the Union's
demand clearly would be inappropriate.
24 There is no evidence, nor is there any contention, that the transfer
of the CFC operation to Tampa, the hiring of former Die Cast employees
to CFC as new employees, or the later phasing out and closing of the
Die Cast operation were actions taken to avoid bargaining with any
union.
'5 In this regard, we note that, at the time the General Counsel asserts
an accretion occurred, CFC was operating with a relatively small
number of employees in proportion to the size of the complement it em-
ployed when the Union demanded recognition and bargaining.
GOULD, INC.
Accordingly, we find that Respondent did not
violate Section 8(a)(5) and (1) of the Act by refus-
ing to recognize the Union as the collective-bar-
gaining representative of the CFC employees on
and after May 25, 1978.
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 and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.2 6
aa We have dismissed the instant complaint because we find there has
been no accretion and not because we find merit to Respondent's conten-
tion that, because the Union and the General Counsel were aware of the
CFC operation and failed to raise the issue of accretion before the Board
in Case 12-CA-8042, they are foreclosed from asserting in a separate
proceeding that Respondent unlawfully refused to bargain with the
Union. To the contrary, there is no evidence that the Union at any time
expressed in clear and unequivocal terms a waiver of its rights under the
certification to represent the CFC employees. E.g., Hunt Brothers Con-
struction, Inc.. 219 NLRB 177 (1965). Following Respondent's refusal to
bargain with the Union as the certified representative of the Die Cast
unit employees, and during the pendency of Case 12-CA-8042 which in-
volved a challenge by Respondent to that certification, the Union filed
the instant charge. It would therefore have been premature for the Board
to determine in that proceeding whether an accretion, a later addition to
the bargaining unit, had occurred when the Union's certification in the
original unit was still at issue. Further, Respondent urged the Board in
that case not to construe the original certification as encompassing the
CFC production and maintenance employees, but, aside from a bald as-
sertion that the CFC employees did not share a community of interest
with those in Die Cast, provided no evidence pertinent to the question
whether an accretion existed. The Board thus refused to consider or pass
upon the question of whether the alleged operation constituted an accre-
tion to the certified unit In so doing, the Board left open to Respondent
the various avenues traditionally taken to resolve such questions without
further delaying the statutory rights of the Die Cast production and
maintenance employees to collective bargaining through their certified
representative. Respondent never requested reconsideration of the
Board's decision and does not allege that it was in any way harmed by
the fact that the accretion issue was not disposed of in Case 12-CA-8042.
DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Administrative Law Judge: Upon
a charge filed on July 3, 1978, the General Counsel of
the National Labor Relations Board, by the Regional Di-
rector for Region 12 (Tampa, Florida), issued a com-
plaint on January 18, 1979, against Gould, Inc., Electri-
cal Components Division, herein called Respondent or
the Company, alleging that it had engaged in certain
unfair labor practices violative of Section 8(a)(1) and (5)
of the National Labor Relations Act, as amended, herein
called the Act. Respondent filed an answer denying the
allegations of unlawful conduct in the complaint.
Pursuant to notice, a hearing was held before me on
July 23, 24, and 25 and August 1, 1979. Briefs were re-
ceived from the General Counsel and Respondent on
September 7, 1979, and they have been carefully consid-
ered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Delaware corporation with an office
and place of business located in Tampa, Florida, where it
is engaged in the manufacture of electrical fittings and
components. During the 12 months preceding the hear-
ing herein, Respondent shipped goods and materials
valued in excess of $50,000 from its Tampa, Florida, fa-
cility directly to points located outside the State of Flor-
ida. It is conceded, and I find, that Respondent is en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 108, herein called the
Union or the Charging Party, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE AI.LEGED UNFAIR LABOR PRACTICES
A. The Issue
Solely involved in this case is an accretion issue, the
basic circumstances of which are as follows: Respondent
has various manufacturing divisions, two of which are in-
volved in this case. Originally, one operation was located
in a plant at Tampa, Florida, the other in a New Jersey
plant. Each produced different products. The employees
of the Florida plant were represented by the Charging
Party, those of the New Jersey plant by a different labor
organization. Respondent decided to move the New
Jersey division to the Florida facility and not long there-
after decided to phase out and close the Florida division.
During the period when the Florida facility was in the
process of phasing out, but while still engaged in the
manufacture of its products, the New Jersey division
commenced its manufacturing operations in an adjacent
area of the same Florida plant. When the Florida divi-
sion was finally and completely closed down, the New
Jersey operation took over the entire plant. The ultimate
issue presented is whether the New Jersey division
became an accretion to the Florida division for collec-
tive-bargaining purposes. Respondent having refused to
recognize the Charging Party for the alleged accreted
unit, the complaint charges Respondent with an 8(aX)(1)
and (5) violation.
B. Background
During the period initially material hereto, Respondent
Gould, Inc., Electrical Components Division, purchased
and continued to operate a plant in Tampa, Florida, en-
gaged in the manufacture of die cast electrical fittings
known as the Efcor Die Casting Operation, a division of
I-T-E. The employees in this plant were represented by
the Charging Party and Respondent continued to honor
the existing collective-bargaining agreement. The appro-
priate unit designated in this contract included produc-
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, secondary assembly, packing, die casting, mainte-
nance, toolroom, and setup employees.
Following a second rerun decertification election held
on September 8, 1977, in Case 12-RD-347, the Board on
December 22, 1977, certified the Union as the collective-
bargaining representative of Respondent's employees in a
unit comprised of all production and maintenance em-
ployees employed at Respondent's Florida plant, exclu-
sive of office clerical employees, guards, and supervisors
as defined in the Act.
Thereafter Respondent, on the ground that the Board
improperly overruled its objections to the election in
Case 12-RD-347, refused to recognize and bargain with
the Union. Following the issuance of a complaint by the
General Counsel, the Board issued a Decision and Order
on July 21, 1978,1 in which it found that Respondent had
violated Section 8(a)(1) and (5) of the Act and directed
Respondent to recognize and bargain with the Union
pursuant to the certification in the representation pro-
ceeding. Refusing to comply with the Board Order, Re-
spondent filed a petition to review with the U.S. Fifth
Circuit Court of Appeals, whereof at the present the
appeal is still pending.
C. The Facts
Electrical Components Division of Gould, Inc., is en-
gaged in the manufacture and marketing of several prod-
uct lines. The Tampa plant, referred to hereinafter as Die
Cast, was engaged in the manufacture of conduit prod-
ucts for the construction industry. These products were
not designed to carry electricity. A second plant, known
as Conductors Fitting Corporation, hereinafter called
CFC, was located in Millville, New Jersey, where it was
engaged in the manufacture of fittings that conducted
electricity.2 The production and maintenance employees
of this plant were represented by the Distributive Work-
ers of America, District 65.
While details will be discussed later, it is preliminarily
noted that the Die Cast operation occupied somewhat
less than one-half of the floor space of the Tampa plant.
Respondent at some point having determined to relocate
the CFC operation, this operation was finally moved
from New Jersey to Tampa where it occupied the vacant
portion of the Tampa plant. Ultimately, as will be noted,
the Die Cast operation was entirely phased out and CFC
took over the entire plant.
CFC commenced its operations at the Tampa plant in
late September or early October 1977. The Die Cast op-
eration was not closed until April 12, 1979, which gave
rise to a period of about 6 months when the two oper-
ations were being simultaneously conducted. According-
ly, I turn to a consideration of the various factors rele-
vant to the accretion issue which existed from the com-
mencement of the CFC operation to the closing of the
Die Cast operation.
As indicated, the CFC operation was moved into one-
half of Respondent's main Tampa plant immediately ad-
jacent to the Die Cast operation. Although there was a
I Gould Inc, Electrical Components Division. 237 NLRB 66 (1978).
' A third plant of Respondent's Electrical Components Division, not
involved in this proceeding, is located in Farmingdale, New York.
wall, open at the top, which separated the majority of
the two groups of employees, the Die Cast spinner em-
ployees were stationed on the side of the wall adjacent
to CFC and thus were in full view of CFC. The CFC
employees and the Die Cast employees utilized the same
restrooms and water fountains. Although lunch breaks
were taken at different times, both groups used the same
lunchroom. Similarly, both groups used the same time-
clock, although the cards were segregated in the time-
card racks for CFC and Die Cast employees. With re-
spect to supervision, a single plant manager supervised
both operations, but beneath him supervision was sepa-
rate for the Die Cast and the CFC employees.
Donald Moreaux, the current personnel manager of
CFC, first assumed that position when he came to the
Tampa plant on March 20, 1978. Moreaux testified that,
prior thereto, Die Cast did not have a personnel man-
ager, that personnel matters were handled by "several
different people." Upon the assumption of his duties,
Moreaux set up a personnel office which administered
personnel matters and maintained personnel records for
both Die Cast and CFC. This arrangement continued
until Die Cast was finally closed down.3 With respect to
hiring, all applications were filed with and screened by
the personnel office. However, the ultimate decisions
with respect to hires were made by the respective CFC
and Die Cast supervisors. Decisions with respect to dis-
charges were similarly made. Except for isolated in-
stances at the inception of the CFC operation in Tampa,
there was no transfer of employees between the two di-
visions.
The payroll and the issuing of paychecks to CFC and
Die Cast were handled by a computer service center.
Payroll checks bore separate identification numbers-a
400 series for Die Cast and a 500 series for CFC. Sepa-
rate accounts were charged with payroll expenditures for
tax purposes.
CFC and Die Cast employees received the same com-
pany benefits, including insurance and vacation packages.
Die Cast employees, however, received incentive bo-
nuses for piecework which CFC employees did not re-
ceive.
Maintenance and toolroom support for Die Cast and
CFC was housed in a common shop area. Specific em-
ployees, however, were separately designated as CFC or
Die Cast support service employees. Each operation also
had separate toolcribs. Although there were occasional
crossovers in the maintenance of machines, it was esti-
mated by William Theisen, the plant manager since 1976,
that the toolroom and maintenance people worked
within the designated operation for which they were
hired-CFC or Die Cast-about 90-95 percent of their
time.
I Concerning the personnel functions which he performed during this
period, Moreaux testified:
Well, attendance programs, discipline, as far as interpreting policy,
for both sides; personal contact, as far as meeting with the different
people on the floor and talking with them, listening to what they
had to say, as far as problems and working with them, through their
supervisors, individual supervisors.
448
GOULD, INC.
I turn now to a comparison of the products, machin-
ery, and manufacturing operations of the two divisions,
including the function of the employees in connection
therewith, prior to the close of the Die Cast operation.
As previously indicated, Die Cast manufactured conduit
fittings which do not carry electricity. Aside from the
foregoing, the Die Cast products were made exclusively
from zinc which was melted down in die casting fur-
naces, whereas the CFC products are primarily made
from aluminum, copper, and steel which are received
from the outside vendors and which come in preshaped
10-12-foot metal bars. The Die Cast products were built
to industry standard and were not varied to individual
customers, whereas 80 percent of CFC products are
manufactured pursuant to individual customer specifica-
tions. There was no collaboration between Die Cast and
CFC to produce a composite or combined product; i.e.,
no product moved between the two operations at any
stage of manufacture.
'The only identical machines utilized by Die Cast and
CFC were punch presses, of which Die Cast had 3 or 4
and of which CFC has 14. CFC has 60 machines, of
which 50 or 52 were shipped from the New Jersey plant,
the others having been purchased as new equipment. 4
The new machines utilized by CFC, none of which were
included in the Die Cast operation, included the Holo-
matic, the Emand, the screw machine, and the Malaya.
They were purchased at considerable cost to the Compa-
ny. 5 I do not deem it necessary to detail the voluminous
testimony concerning the nature and functions of these
machines. Suffice it to note that the new machines, as the
evidence reflects, are more complex and sophisticated
than the Die Cast machinery. Additionally, more training
is required for the operators and setup men of these ma-
chines. Such training varies from a period of a few
weeks to several months for some of the operators and
even longer periods for the setup men. Certain CFC pro-
duction employees are also required to be able to read
blueprints in the performance of their jobs, which was a
nonexistent factor at Die Cast. Likewise, they received
training in the use of gauges, calipers, and other measur-
ing equipment. However, and apart from the fact that
additional skills are needed to operate the CFC ma-
chines, the training of the employees is done by CFC su-
pervisory personnel and the work is still regarded as pro-
duction and maintenance work. 8
I have heretofore considered such relevant factors per-
taining to the accretion issue as integration of operations,
proximity of operations, similarity of operations, skills
and functions of employees, a comparison of machinery,
4 Plant Manager Theisen testified that about 25 percent of the machin-
ery of the Die Cast operation was sold and that about 50 percent of it
was scrapped.
s Although the record does not disclose the cost, photographs of these
machines were produced during the hearing. From the photographs it
was readily apparent that these were large, sophisticated, and expensive
pieces of equipment.
6 Testimony of Plant Manager Theisen. I have considered the testimo-
ny of two General Counsel witnesses concerning their short, temporary
control over labor relations, and collective-bargaining
history. I now turn to equally relevant factors concern-
ing this issue such as interchangeability of employees, the
number of employees sought to be added to the unit, and
the number of employees absorbed into CFC from the
unit of Die Cast employees.
Preliminarily, the record reflects that Respondent's
conduct in transferring the CFC operation from New
Jersey to the Tampa plant, as well as its phasing out and
closing the Die Cast operation, was motivated solely for
economic reasons. There is no evidence, indeed there is
no contention, that either action was taken to avoid bar-
gaining with the respective Unions. It is also noteworthy
that Respondent bargained with the Charging Party with
respect to the effects of the closing of the CFC oper-
ation. Although it appears that the Union sought to have
the Die Cast employees transferred to CFC without re-
striction, beginning in or about January 1978, all Die
Cast employees, with the exception noted below, were
required to file new applications with CFC with the un-
derstanding that if hired they would lose their seniority
and start as new employees. At the hearing, the parties
further stipulated as follows: "That, as part of the impact
settlement reached between the Company and the
Charging Party regarding the closing down of the [D]ie
[C]ast operations completely, as to all unit employees,
except maintenance and tool and die personnel, die cast
seniority would be the basis for hiring into CFC. assum-
ing jobs were available, regardless of one's experience in
[D]ie [C]ast, except that maintenance and tool and die
personnel would not be subject to plant seniority rule
and were entitled to be transferred to the CFC operation
after the shutdown of the [D]ie [C]ast operations, with-
out having to go through hiring-which was in effect a
new probationary period which the other employees had
to go through." 7 However, as respects the stipulation
with respect to the transfer proviso in this stipulation
concerning the Die Cast maintenance and tool-and-die
personnel, the record reflects that only one such employ-
ee was transferred to CFC from Die Cast.
Respondent submitted data in a table form, compiled
from original company records, for the monthly periods
between September 30, 1977, and June 30, 1979. These
show the complement of Die Cast employees, the com-
plement of CFC employees, the number of CFC employ-
ees who had previously worked in Die Cast, and the ap-
plicable percentages. This data, which I view as highly
relevant to the issue herein, are set forth in table form as
follows:
assignments from Die Cast to CFC at the commencement of the CFC
operations. However, this testimony is not sufficiently representative of
the overall picture to warrant further discussion.
7 Apart from the tool-and-die personnel, as I understand the stipula-
tion, and as brought out in other parts of the record, upon application
and assuming jobs to be available, the Die Cast employees were to be
hired in CFC as new employees without carrying over their Die Cast se-
niority. However, the Die Cast employees were to be given preferential
hiring status over that of outside applications.
449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Date
9/30/77
10/31/77
11/30/77
12/22/77
12/31/77
1/31/78
2/28/78
3/3/78
4/30/78
5/31/78
6/22/78
6/30/78
7/3/78
7/28/78
7/31/78
8/31/78
9/30/78
10/31/78
11/30/78
12/31/79
1/31/79
2/28/79
3/31/79
4/30/79
5/31/79
6/30/79
Total CFC
Die Cast CFC Hourly Hourly Empl.
Hourly Empl. Empl. Who Prev.
Worked Die Cast
79
92
83
85
94
104
89
72
58
60
48
55
54
39
45
33
32
37
41
42
40
41
39
7
16
46
71
73
64
91
97
116
148
152
159
154
160
162
150
136
121
123
118
113
111
113
107
104
101
2
9
14
16
16
17
23
23
31
32
32
32
33
36
36
36
39
29
28
28
27
26
28
31
31
28
D. Additional Facts, Conclusions
The complaint alleges it to be on or about June 22,
1978, that the Union requested Respondent to recognize
it as the exclusive bargaining agent for the CFC employ-
ees. Respondent asserts, among other contentions, that at
no time did the Union make a valid or timely demand
for bargaining for the CFC employees. As to the date
named in the complaint, June 22, this has reference to a
bargaining meeting held on or about that date, at which
time the parties were bargaining concerning the impact
upon the employees that were being displaced because of
certain work which Respondent was subcontracting out
at the time.8 According to union representative Bruno
Bengter, Jr., during this meeting he asked Respondent's
representatives that "these people be moved into CFC
because they were part of production and maintenance as
was described in the original certification." Respondent
responded, he testified, that they were not there to dis-
cuss this matter and they would not discuss whether the
Union represented the CFC employees. Apart from the
foregoing, the Union's attorney, by letter dated July 28,
1978, formally requested that Respondent bargain with
the Union "in accordance with the certification of the
Union in Case 12-RD-347, and the Board's decision in
Case No. 237 NLRB No. 16." It is the General Counsel's
contention that, in view of Respondent's refusal to
comply with the Board's Order in the latter proceeding,
it would have been futile for the Union to make any fur-
ther demand with respect to the CFC employees.
With regard to all the foregoing, I find it unnecessary
to decide whether or not the Union made a valid or
timely demand upon Respondent that it be recognized as
* An earlier meeting on this subject was held on or about May 25,
1978.
Total CFC
Percent Hourly Never
Worked Die Cast
29
56
30
23
22
27
25
24
27
22
21
20
21
23
22
24
29
24
23
24
24
23
25
29
30
28
5
7
32
55
57
47
68
74
85
116
120
127
121
124
126
114
97
92
95
90
86
85
85
76
73
73
Percent
71
44
70
77
78
73
75
76
73
78
79
80
79
77
78
76
71
76
77
76
76
77
75
71
70
72
Total
86
108
129
156
167
168
180
169
174
208
200
214
208
199
207
183
168
158
164
160
153
152
152
107
104
101
bargaining agent for the CFC employees. Rather, the
record is amply developed on the merits and I shall pro-
ceed to decide the case on that basis.
I am in agreement with Respondent that the instant
case is largely governed by the Board's Decision in a
substantially analogous case, Tubing Division, Robintech,
Incorporated, 222 NLRB 571 (1976), wherein the Board
refused to accrete a group of employees into a defunct
bargaining unit. Borrowing freely from the correct sum-
mation in Respondent's brief, the facts and holding in the
latter case are as follows:
The original unit in Robintech consisted of a contrac-
tual unit of "all employees." The employees in this unit
were engaged in operations involving the manufacture of
copper tubing and packing and shipping operations. In
1974, the employee complement was approximately 115
employees. The company then decided to locate a plastic
siding operation at the original plant in part because the
plant building could be adapted with modifications to the
siding operation. Top management was transferred in for
the new operation. The plant then had two divisions, a
plastic siding division and a copper tubing division, with
division managers and one overall general manager. In
January 1975, the company began installing equipment
for the plastic siding operation, utilizing maintenance em-
ployees represented by the union from the original
copper tubing bargaining unit on the same premises as
the copper tubing division. New and different manufac-
turing equipment had to be installed because of the dif-
ferences in the two manufacturing operations. New job
classifications were set up for the new manufacturing op-
eration. Twelve maintenance men from the copper
tubing operation were then told they could be trans-
ferred to the plastic siding operation temporarily, or laid
450
GOULD, INC.
off. Ten of those copper tubing unit employees did in
fact transfer to the new operation in May 1975 as tempo-
rary employees, submitting new employment applications
and working at lower wage rates. They did, however,
retain seniority for benefit purposes. The maintenance
employees in the new operation worked under the same
supervision as they had had in the original copper tubing
operation. At the time of the hearing in July 1975, only 6
of the 22 9 employees in the plastic siding operation had
formerly worked in the original bargaining unit.
The Board in Robintech refused to accrete the plastic
siding division employees into the old copper tubing unit
(which no longer had any employees) even though main-
tenance employees in the original unit had transferred
over to the new operation along with their supervisors.
The Board held that the new operation in Robintech was
essentially a new industry, designed to manufacture a
new product requiring new capital investment, plant
modifications, and machinery and production processes,
albeit at the same site as the original bargaining unit. The
Board refused to find an accretion notwithstanding that
the first-line supervision in both the copper tubing and
plastic siding operations was the same, that both oper-
ations were located on the same premises, and that both
operations were under one overall manager. 'o
Without reiterating the relevant facts in the instant
case which are heretofore set forth, I conclude and find
that the similarities between this case and Robintech,
supra, are so substantial that under the Board's decision
in the latter case a finding of accretion is not warranted
here.
Beyond the foregoing, and apart from whatever the
initial relationship between the two operations with re-
spect to integration of operations, differences or similar-
ity of work skills, supervisory relationships, proximity of
operations, and the like, the Board in numerous cases has
been concerned about the Section 7 rights of the employ-
ees sought to be accreted. Thus, in an early case, the
Board adopted the following statement of the Trial Ex-
aminer: "
It happens that the Trial Examiner is disposed to
appraise the relevant factors from the viewpoint, as-
sumed, of course, of the some 115 American
Emblem employees. To decide that this larger
number of employees must accept as their bargain-
ing agent one already selected by fewer than 70 em-
ployees of Worcester Stamped would appear to be,
by mandate, depriving them of the statutory right
accorded them as long ago as 1935 of selecting, as
principals, their own bargaining agent.
In Melbet Jewelry Co., Inc., and I.D.S.-Orchard Park,
Inc., 180 NLRB 107, 110 (1969), the Board stated:
9 The siding operation also had the 10 maintenance employees referred
to previously. The company had, at the time of the hearing, plans to
retain some of the maintenance employees as permanent employees.
10 The Board in several other cases has refused to find an accretion
despite the presence of common supervision at the higher levels. General
Electric Company, 204 NLRB 576 (1973); The Bendix Corporation, 168
NLRB 371 (1967); Gould-National Batteries. Inc., 157 NLRB 679 (1966).
11 Worcester Stamped Metal Company, 146 NLRB 1683, 1685 (1964).
We will not, however, under the guise of accretion,
compel a group of employees, who may constitute a
separate appropriate unit, to be included in an over-
all unit without allowing those employees the op-
portunity of expressing their preference in a secret
election or by some other evidence that they wish
to authorize the Union to represent them.'2
Although arising in the context of the contract-bar
area, the principle initially enunciated in General Extru-
sion Company, Inc., 121 NLRB 1165 (1958), concerning
representation of employees prior to attainment of a rep-
resentative complement is also relevant to the case at
bar. Thus, in that case the Board established the rule that
a contract bars an election only if at least 30 percent of
the complement employed at the time of the hearing had
been employed at the time the contract was executed
and 50 percent of the job classifications in existence at
the time of the hearing were in existence at the time the
contract was executed. A similarly related rule, and one
which I think should be considered in the entire circum-
stances of the present case, has been developed in the
context of 8(a)(2) unfair labor practice situations. The
principle in question was stated by the Board in Hayes
Coal Co.. Inc., 197 NLRB 1162, 1163 (1972), as follows:
A determination of premature recognition, how-
ever, cannot be predicated on whether existent jobs
are temporarily unfilled by reason of quit or dis-
charge, or on a possibility that future conditions
may warrant an increase in personnel, or on the
basis of an increase in personnel subsequent to the
granting of recognition. The correct test is whether,
at the time of recognition, the jobs or job classifica-
tions designated for the operation involved are filled
or substantially filled and the operation is in normal
or substantially normal production.
The table reflecting the number and percentage of
CFC employees who had previously worked in Die Cast
for the periods relevant hereto has been previously set
forth in this Decision. From this it will be observed that
it was only during the month of October 1977 that
former Die Cast employees constituted more than 50
percent of the total complement of the CFC work force.
However, since at this point the CFC total complement
was only 16 employees, it is clear that at this time nei-
ther a representative complement of CFC employees was
employed nor were the CFC employees then engaged in
a normal production. Indeed, at no point thereafter did
the former Die Cast employees ever exceed 30 percent
of the total complement of CFC employees.'3 For the
month of April 1978, when a representative CFC com-
plement appears to have been reached (116 employees),
only 27 percent of them were former Die Cast employ-
ees. On June 22, 1978, the date on which it is alleged
12 For related cases, see Gould-National Batteries, Inc.. supra; Renais-
sance Center Partnership, 239 NLRB 1247 (1979); Pacific Southwest Airlines
v. N.L.R.B., 587 F.2d 1032 (9th Cir 1978); NLR.B. v. Food Employers
Council. Inc., 399 F.2d 501 (9th Cir. 1968).
's And this occurred on only three monthly periods; namely, during
the months of November 1977 and April and May 1979.
451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the bargaining demand was made, the number of
former Die Cast employees who were employed by CFC
constituted 21 percent of the total CFC complement. Or,
to view it from a different perspective, on that date the
CFC unit exceeded the Die Cast unit by 152 (CFC) to 48
(Die Cast), a ratio of over 3 to 1.
In sum, since I have found the Robintech case, supra,
to be controlling here, and since I further conclude that
under applicable law and under the entire circumstances
of this case the CFC employees would be deprived of
their Section 7 rights if the Union were imposed upon
them without an election, I find that CFC is not an ac-
cretion to the Die Cast unit. Accordingly, I find that the
General Counsel has not established that Respondent
violated Section 8(a)(1) and (5) of the Act by refusing to
bargain with the Union in the alleged accreted unit. It is,
therefore, recommended that the complaint be dismissed
in its entirety.
CONCLUSIONS OF LAW
1. Gould, Inc., Electrical Components Division, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 108, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(1) and (5)
of the Act as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 4
The complaint is dismissed in its entirety.
14 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, and recommended 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.
452