Ims Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1986

278 N.L.R.B. 538 (N.L.R.B. 1986)

538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IMS Manufacturing Company , Inc. and Internation-
al Ladies' Garment Workers Union, AFL-CIO,
and its Local 469. Case 9-CA-20833
12 February 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 5 March 1985 Administrative Law Judge
Richard H. Beddow Jr. issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the Charging Party filed an an-
swering brief.
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. I
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, IMS Manu-
facturing Company, Inc., Leitchfield, Kentucky, its
officers, agents, successors, and assigns , shall take
the action set forth in the Order, except that the at-
tached notice shall be substituted for that of the
judge.
i We shall issue a new notice which conforms to the language of the
judge's recommended Order.
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 Federal Labor Laws when we
refused to recognize and bargain in good faith with
International Ladies' Garment Workers Union,
AFL-CIO, and Local 469 as the exclusive repre-
sentative of our production and maintenance em-
ployees. The Board has ordered us to remedy these
violations by posting this notice and honoring the
promises contained in it.
WE WILL NOT refuse to recognize or bargain in
good faith with International Ladies' Garment
Workers Union, AFL-CIO, and Local 469 over
terms and conditions of employment in the unit set
forth below:
All production and maintenance employees at
the Employer's establishment located at Cave
Mill Road, Leitchfield, Kentucky 42754, plant,
but excluding all office clerical employees,
technical and sales employees, professional em-
ployees, computerized cutting and marking
machine technicians and operators, watchmen,
guards and supervisors as defined in the Na-
tional Labor Relations Act, as amended.
WE WILL immediately recognize International
Ladies' Garment Workers Union, AFL-CIO, and
Local 469, as the exclusive collective-bargaining
representative of our employees and, on request,
WE WILL meet and bargain in good faith with it
over wages, hours of work, and all other terms and
conditions of employment and, if an agreement is
reached, embody it in a written and signed con-
tract.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
IMS MANUFACTURING COMPANY, INC.
Bruce H. Meizlish, Esq., for the General Counsel
Andrew J Russell Esq., and W. Kevin Smith, Esq. of Lou-
isville, Kentucky, for the Respondent.
Irwin H. Cutler, Esq., of Louisville, Kentucky, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge.
This matter was heard in Leitchfield , Kentucky, on Sep-
tember 18 , 1984 . The proceeding is based on a charge
filed April 16, 1984, as amended May 31, by Internation-
al Ladies ' Garment Workers Union , AFL-CIO, and its
Local 446 . The Regional Director 's complaint, dated
May 31 , alleges that Respondent IMS Manufacturing
Company, Inc. of Leitchfield violated Section 8(a)(1) and
(5) of the National Labor Relations Act by failing and
refusing to bargain with the Union , following its request
on March 23 , as the bargaining representative of the pro-
duction and maintenance employees at the Respondent.
Subsequent to the hearing, briefs were filed. On a
review of the entire record in this case and from my ob-
servation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent , a Kentucky corporation, is engaged
in the manufacturing of clothing at its Leitchfield facility
278 Ni .R R Nn 79
IMS MFG. CO. 539
and during the past 12 months has provided services
valued in excess of $50,000 for enterprises located out-
side Kentucky including Gordon of Philadelphia, Divi-
sion of Chromalloy American Corporation, a business
which shipped goods valued in excess of $50,000 from its
Pennsylvania location to points outside Pennsylvania. It
admits that at all times material it has been an employer
engaged in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It also
admits that the International Union and Local 469 are
labor organizations within the meaning of Section 2(5) of
the Act.
TI. THE ALLEGED UNFAIR LABOR PRACTICES
Kane ' Industries operated a manufacturing facility at
two locations in Leitchfield until the summer of 1983
when it began phasing out production . All manufactur-
ing operations in Leitchfield ceased on July 27.
The International Union was certified as the bargain-
ing representative of the employees on November 16,
1979 , the certification therein reading, "International
Ladies' Garment Workers Union , AFL-CIO." All orga-
nizing was undertaken by the ][nternational and it is the
usual practice when the International organizes a facility
with , a substantial number of employees to establish a
local union chapter for that plant if the campaign is suc-
cessful . Here, the designation of the Local occurred after
the certification of the Union as the representative of the
employees at that facility and when the first collective-
bargaining agreement was negotiated and signed by the
International. After the charter was issued the Local
Union then elected local officers and delegates to the ne-
gotiating committee . During the "open period" which
occurred 60 to 90 days prior to the expiration of the con-
tract, a' decertification petition was filed . Following an
election on December 1, 1982, and Kane's objections to
the election, the Board issued its Certification of Repre-
sentative to the Local Union' on June 6, 1983 . Approxi-
mately ',6 weeks later Kane Industries announced that it
was closing all facilities in Leitchfield, because they were
unprofitable and it ceased operatons on July 27, 1983.
The collective-bargaining agreement entered into be-
tween Kane and the International Union subsequently ex-
pired on January 31, 1983. Ivan Schmierer , who had
been employed by Kane as a designer and quality'control
manager based in Leitchfield, but with responsibility for
other plants as well , began negotiations with Kane and
its parent company which ultimately led to Schmierer's
acquisition of Kane's largest Leitchfield facility, the
55,000-square-foot "Cave Mill Road" plant.
A letter of intent was entered into on August 5.
Schmierer obtained necessary financing and he began op-
eration on, September 7, 1983, under the name IMS Man-
ufacturing Company, Inc., a corporation whose stock he
wholly owned until the summer of 1984 when a minority
interest ) was sold to employees.
During August Schmierer utilized approximately, 25
unpaid "volunteers" to perform maintenance and cleanup
work, on the facility he ultimately acquired. All volun-
The address reflected thereon was that of the International in Balti-
more, Maryland
teers who sought employment following commencement
of manufacturing operations in September received jobs.
The operations conducted by IMS were consolidated
at the larger of the two buildings previously used by
Kane. All of its equipment at this point was that which
he acquired from Kane Industries. The Company hired a
majority of employees who had previously been em-
ployed by its predecessor, Kane Industries. In addition,
the Company acquired several former customers of
Kane, most specifically RPM, Gordon of Philadelphia,
and Superior Plant Company.
By letter dated March 23, 1984, the International
Union demanded that the Respondent recognize and bar-
gain with it as the lawful representative of its employees
and requested a response by April 1 . By stipulation it
was agreed that on that date 62 to 63 percent of the Re-
spondent's work force (of over 200 employees) was
made of former Kane employees. Two or three days
after receipt of the letter Schmierer assembled all the
employees and read them the demand letter . He then
told them that under no circumstances would he talk to
the Union unless they wanted him to. Schmierer spoke
for 20 minutes and testified that he observed a "stunned"
reaction by the employees and that subsequently "at least
30 or 40 people" told him .they hoped he would not talk
with the Union . Schmierer also had prepared a one-page
document captioned , "Statement on Unionism ," which
was distributed by Schmierer's wife to all employees at
the meeting . It stated that the Respondent was a non-
union company and that employees, were at liberty to
deal directly with the Company. The document also ac-
cused unions of making false promises , causing strife and
discord, and distorting the facts and stated that it was the
Company's intention to oppose unionism by every proper
means, that employees should report any sort of pressure
to join a union, and that no person would be allowed to
carry on union organizational activities on the job under
penalty of discharge.
Schmierer otherwise did not respond to the Union;
however, he did hold additional meetings with the em-
ployees in which he continued to express his antiunion
sentiment . As noted, the instant unfair labor practice
charge was filed on April 16, 1984 , and the Respondent
has not, at any time since the demand or the filing of the
charge, responded to or engaged in any bargaining with
the Union.
Schmierer describes the Respondent's operation as
"contract labor," explaining that he seeks out customers
who need substantial quantities of garments manufac-
tured and bids for the work on these jobs. Schmierer
admits that much of Kane Industries' clothing manufac-
turing business ' was also "contract labor." Moreover,
Kane, as a subsidiary of Chromalloy American, obtained
significant amounts of work from two other companies
which were wholly owned subsidiaries of Chromalloy
American, namely, Gordon of Philadelphia and Superior.
Schmierer testified that over one -half of Kane's business
was from Superior (approximately 190 of Kane's 300 em-
ployees worked on the Superior manufacturing line), and
about 10 to 15 percent was attributable to Gordon.
Under the Respondent,, Gordon is also a major customer.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IML utilizes the same manufacturing methods that
were previously utilized by Kane Industries. Although
the Respondent asserts that it staffed the plant through
the local Manpower Service Office, which advertised for
and processed over 1000 applications, Schmierer also tes-
tified that he sought out former Kane employees because
of their skill and experience and, in most cases, hired
former Kane employees who then performed the same
job that they did for Kane. The IML employees received
the same guaranteed minimum wage as did employees at
Kane Industries. Subsequently, some changes were made
in its incentive standards and rates. Employees receive
similar fringe benefits, although they now pay for their
own insurance coverage. Working conditions otherwise
remained substantially the same. Employees continue to
work from 7 a.m. to 3:30 p.m. with a morning break,
afternoon break, and a lunch hour. IML also employs a
majority of the Kane's supervisory staff. Of a total of 12
current supervisors 9 are former Kane supervisors. Three
other current supervisors were formerly employees of
Kane Industries in the same department they now over-
see. A number of the office jobs were consolidated in
order to operate more efficiently and with less expense.
Schmierer testified that the clothing manufacturing
business is seasonal in nature. Thus, demand and the
types of garments produced will change according to the
season, with months where little or no work will be per-
formed for a particular customer which, during later
months, may account for a substantial percentage of the
Respondent's volume. By stipulations entered into prior
to the hearing, IML specified the percentage of business
provided by each of the customers of the Respondent
during the 12-month period following the takeover of
this facility by the Respondent. Gordon and Superior
provide the bulk of the Respondent' s business . Other cus-
tomers, such as RPM, were customers of Kane Industries
at various times during the years preceding its shutdown.
Several of Kane's customers, however, have not con-
tracted with the Respondent. The documents reflect only
one significant new customer (Cape Cod) of any size not
previously served by Kane Industries that the Respond-
ent now performs work for on a regular basis.
During the year since the Respondent commenced
production operations some changes in work procedure
have occured. Specifically, Schmierer chose not to con-
tinue production of certain lines previously made by
Kane Industries, namely, pants and vests. Although that
business was available to the Respondent, it apparently
was not considered to be sufficiently profitable or desira-
ble. Schmierer also indicated that he has purchased some
new equipment to improve conditions and production at
the facility, most significantly a new $55,000 "fusing"
machine,' a $25,000 air-condition replacement, and instal-
lation of an overhead "trolley" system.' At the present
time 80 percent of the equipment utilize in the produc-
tion process was acquired from Kane Industries. As of
September 1, 1984, the guaranteed minimum wage paid
to employees was increased from $3.65 to $3.77.
Schmierer testified that the entire increase was granted
to assist employees in participating in the employee stock
purchase shareholder program. Schmierer also testified
that he told employees that their support of the stock
purchase plan was the only way the Respondent could
stay in business. Approximately 90 percent of the em-
ployees assertedly agreed to participate.
During February 1984, Schemierer had begun plan-
ning the employee stock purchase plan and during early
March he distributed a questionnaire seeking to deter-
mine employee interest in the proposal. At some later
time, not established on the record as being prior to
March 23, employees indicated a predominant interest in
participation.
In an offer of proof, over the objections of the Gener-
al Counsel and the Charging Party, Schmierer gave his
opinion that when he first came to Kane's plant it was
run as a dictatorship, with no incentive to work and said
that he would have joined a union himself if he had been
a rank-and-file employee. Schmierer also testified that
conditions changed somewhat after the Union was voted
in and a management change was made; however, he felt
that the processing of grievances maintained an attitude
of turbulence which continued until Kane closed.
Based on his opinion of employee working conditions
under Kane's control and his own opinion that he had
established good communications with the Respondent's
employees, as well as good working conditions,
Schmierer asserts that he accordingly believed that a ma-
jority of his employees did not wish to be represented by
a union.
The Respondent also offered as an exhibit a petition
purportedly prepared by a majority of employees on
their own initiative and sent to the Board in May 1984
and to Schmierer on May 16. The petition, which pur-
ports to assert that the employees stood behind
Schmierer's plan for employee purchase of stock, and
that they felt they did not need to be represented by the
Union, was not received into evidence.
III. DISCUSSION
The issues presented for consideration here are wheth-
er the Respondent is a successor employee to Kane In-
dustries, whether a proper party presented the bargaining
demand, and whether the Respondent had a good-faith
doubt as to the Union's majority status.
A. Successor Status
The traditional standard for evaluation of successor
status and the resulting, concomitant duty of a successor
employer to bargain with a union that represents the
predecessor's employees, derives from the decision of the
Supreme Court in NLRB v. Burns Security Services, 406
U.S. 272 (1972).
In determining whether a purchaser is obligated to
bargain with the exclusive representative of its predeces-
sor's employees, the basic test is whether there is sub-
stantial continuity in the employing enterprise. Where
there is such a 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 has been substantial conti-
nuity in the following: ( 1) business operations; (2) plant;
(3) work force; (4) jobs and working conditions; (5) su-
pervisors; (6) machinery, equipment, and methods of pro-
IMS MFG. CO.
duction ; and (7) product or service . See Aircraft Magnesi-
um, 265 N]LRB 1344 (1982). Applying these well-settled
criteria to the totality of the circumstances here, it is
concluded that the Respondent is a successor.
The Respondent 's argument to the contrary relies pri-
marily on the Board 's decision in Radiant Fashions, 202
NLRB 938 (1973), where, despite the existence of a
number of continuity factors , the Board said it must con-
sider the totality of the circumstances and went on to
find controlling, countervailing elements including a
lengthy hiatus in resumption of production, the purchase
of the asset of only a segment of an enterprise , the acqui-
sition of virtually none of the predecessor 's customers,
and differences in markets . As pointed out by the Gener-
al Counsel , however, it is not necessary that the new em-
ploying enterprise to be a carbon copy of the predeces-
sor.
Here, it is clear that the former Kane Industries plant
is being operated by the Respondent for the same pur-
pose, namely , to manufacture clothing and garments. Al-
though there are some differences in the current business
operation and minor changes in the plant , including the
acquisition of some new equipment, the changing of the
location of a line , and other similar minor alterations in
the manufacturing process , the Respondent utilizes the
same manufacturing procedures and describes both its
operations and those of its predecessor as "contract
labor," and it admittedly acquired the equipment from
both of Kane Industries plants and consolidated them in
the largest building where the other facility was closed.
And, even after some changes were made, some 80 per-
cent of the equipment utilized remained former Kane
equipment.
The Respondent also contracts with a customer base
that is similar to that of its predecessor . Gordon and Su-
perior, companies owned by Chromalloy American, the
parent company of Kane Industries , remain as significant
customers regardless of the fact that the volume of busi-
ness contributed by these customers has seasonal vari-
ations. Orders for Superior and Gordon ranged from as
much as 82 percent of the Respondent 's business in April
1984 to 36.6 percent in July 1984 and, in addition, other
former customers of Kane Industries comprise more than
half of the total business performed by the Respondent
since it began operations.
A majority (at least 62 percent at the time of the
Union's demand) of the Respondent's employees are
former Kane Inudustries employees and the Respondent
admits that it sought out former Kane employees because
of their experience , as well as to provide employment
continuity for residents ' of Leitchfield, where Kane was a
principal source of employment ' opportunities . Former
Kane employees generally assumed the same jobs that
they performed at Kane Industries and two employees
specifically testified that they operated the same ma-
chines that they formerly operated at Kane Industries.
Moreover , 9 of the 12 current supervisors at the Re-
spondent had supervisory responsibilities at Kane Indus-
tnes, and the 3 other supervisors all worked for Kane In-
dustries in positions that involved , similar work . Finally,
it is noted that the Respondent 's owner began negotiat-
ing with Kane Industries and its parent corporation in
541
June 1983 , prior to the plant closing on July 27 . A letter
of intent for the sale was entered into only 11 days after
the closing and work on plant preparation was per-
formed during August and until operations under the Re-
spondent's name began on September 7. Under these cir-
cumstances, I cannot agree with the Respondent 's asser-
tion that a relevant hiatus in operations occurred that
would indicate a lack of continuity in the business enter-
prise and , on a review of all the evidence , I conclude
that the Respondent is a successor employer to Kane In-
dustries and thus has an obligation , on demand, to meet
and bargain in good faith with the Union.
B. Party Requesting Bargaining
The bargaining request of March 23 was made by rep-
resentatives of the International Union . The International
was originally certified as bargaining representative in
November 1979 ; however, after the decertification elec-
tion, the Board reissued its certification in the name of
the Local.
As shown, a local union is chartered by the Interna-
tional after initial certification . A local functions in many
respects as an arm of the International and is obligated to
carry out the objectives, policies , and decisions of the
International . Here , the only contract between the Union
and Kane Industries was negotiated by the International
and the apparent reason the Local rather than the Inter-
national was certified in the decertification proceeding
was that the Board followed the naming of the Local in
the petition . Otherwise , however , the address given was
that of the International in Baltimore , the same address
from which the March 1984 demand for bargaining
came . There is no indication that the Respondent was
misled and the Respondent did not otherwise seek any
clarification from the Union or the Board . Instead, it
completely avoided any communication with the Union
and I conclude that it is arguing a distinction without a
difference. Accordingly, I , find that a valid demand to
bargain was made on behalf of the Local by the March
23 letter of the International.
In any event, the Union filed an amended charge
against the Employer on May 31 , 1984, alleging that
IMS refused to bargain with both the International and
Local 469. Under these circumstances I agree with the
Charging Party that the filing of this charge was tanta-
mount to an explicit request to bargain ,and the Compa-
ny's failure to, bargain at that time constitutes another re-
fusal to bargain. Sewanee Coal Operators ' Assn., 167
NLRB 172 ( 1967).
C. Majority Status
The Board in Burger Pits, 273 NLRB 1001, 1001
(1984), reiterated that:
It is well settled that absent unusual circum-
stances a union enjoys an irrebuttable presumption
of majority status during the first year following its
certication . After the certification year the presump-
tion of majority status becomes rebuttable . Whether
certified or voluntarily recognized , a union also
enjoys a rebuttable presumption of majority status
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon the expiration of a collective -bargaining agree-
ment . An employer who refuses to bargain with an
incumbent union may rebut the presumption of ma-
jority status by establishing either (1) that at the
time of the refusal to bargain the union in fact did
not enjoy majority status , of (2) that the refusal was
predicated on a good -faith and reasonably grounded
doubt, supported by objective consideration, of the
union 's majority status. It is also established that
within a reasonable time prior to the expiration date
of a collective-bargaining agreement , an employer
who establishes a good -faith doubt of a union's ma-
jority status may announce that it does not intend to
negotiate a new agreement.
Here, following the filing of a decertification petition
and an election , the Union was certified on June 6, 1983.
The Union 's bargaining demand was made on March 23,
1984, well within the time of the irrebuttable presump-
tion that the Union enjoyed majority status.
The Respondent, however, apparently argues that the
Union's failure to make a prompt recognition demand
constitutes a special circumstance that precludes the
claim to an irrebuttable presumption . The Respondent
cites no authority for its proposition and I find no valid
reason to change the presumption period from 1 year to
some lesser period . Under these circumstance, I find that
the Respondent refused to bargain with the Union at a
time it was legally bound to do so and that it according-
ly violated Section 8 (a)(1) and (5) of the Act as alleged.
Moreover, I also find that the Respondent has not
shown that it had a timely , good-faith doubt as to the
Union 's majority status.
The Board recently found that under circumstances
where the union enjoys a rebuttable presumption of ma-
jority status only, a successor may lawfully withdraw
from negotiation at any time following recognition if it
can show that the union had in fact lost its majority
status at the time of the refusal to bargain or that the re-
fusal to bargain was grounded on a good -faith doubt
based on objective facts that the union continued to com-
mand majority support, Harley Davidson Transportation
Co., 273 NLRB 1531 (1985). In the instant case the Re-
spondent's assertions of good-faith doubt are based on
subjective factors developed subsequent to its refusal to
bargain.
First , the Respondent was aware that the Union re-
cently had prevailed in the decertification matter and
there is no showing that any activities subsequently took
place that might have demonstrated any continuing inter-
nal conflicts or other activities that might tend to indi-
cate a climate conductive to diminishing union support.
Secondly , it is not shown that at the time of the demand,
the Respondent and its owner relied on any objective in-
formation regarding employee sentiments as related to
union majority status. To the contrary , both the record
and the Respondent 's offer of proof in this regard indi-
cate that Owner Schmierer relied only on his personal
subjective opinion , which was based only on his percep-
tion that employee gratitude for his personal actions in
saving jobs in the 'community and running the business in
a progressive manner would negate any desire or need
for continued union representation.
This opinion was said to be reinforced by comments
he heard from an estimated 30 or 40 employees who al-
legedly told him they hoped he would not talk with the
Union. The alleged comments, however, were made sub-
sequent to Schmierer's distribution of his "statement of
unionism" and after his 20-minute speech in response to
the union demand letter in which he clearly stated that
the Respondent was a nonunion company; that he
thought unions were guility of making false promises,
causing strife, and distorting facts; and that he intended
to oppose unions by every proper means. The alleged re-
marks by employees clearly are hearsay and, significant-
ly, no individual witnesses testified to corroborate their
alleged statements. In view of the circumstance under
which such remarks were said to have occurred,
Schmierer's self-serving recitation of their alleged senti-
ment cannot be considered to be reliable, probative evi-
dence that might support the Respondent's claimed
doubt that a majority of its employees would not support
union representation for collective-bargaining purposes.
Moreover, the Respondent had over 200 employees at
this time and thus even if negative union sentiments were
expressed by even 40 employees, it did not significantly
approach majority status.
The Respondent also asserts that it relied on employee
indications that they wished to participate in a stock pur-
chase plan. An expression of desire to participate in an
employee's stock purchase plan is in no way the equiva-
lent of a repudiation or rejection of union representation.
The two are not mutually exclusive. Moreover, it is not
shown that this information was received by the Re-
spondent at a date prior to the Union's demand for bar-
gaining and the Respondent's subsequent failure to re-
spond.
Finally, the Respondent asserts its good-faith reliance
on a purported employee petition sent to Schmeierer on
May 16. This document, not received into evidence, ap-
pears to be partially a response to Schmierer's question-
naire on intent to purchase stock as well as an expression
of confidence in his management and a statement that
they did not feel they needed union representation. No
effort was made by the Respondent to properly establish
the authenticity of the document or the circumstances
under which it was prepared. In any event, the docu-
ment is dated weeks beyond the date recognition was
sought and, again, it purports to express the opinions of
nonwitnesses who had previously been subjected to the
Respondent's repeated statements and expressions of an-
tiunion sentiment. I find the petitions do not constitute
timely, reliable, or probative evidence relevant to the cir-
cumstances that existed at the critical time when the Re-
spondent- rejected the Union's demand to bargain. Ac-
cordingly, I reaffirm my evidentiary rulings made at the
hearing, see Aircraft Magnesium, supra at 1346.
In view of the overall circumstances, I conclude the
Respondent has failed to show that the Union had in fact
lost its majority status at the time of the refusal to bar-
gain or that the refusal to bargain was grounded on a
good-faith doubt of majority support for the Union based
IMS MFG . CO. 543
on objective factors. Accordingly, I reaffirm my finding
that the Respondent has violated Section 8(a)(1) and (5)
of the Act by this refusal, see Harley-Davidson and Air-
craft Magnesium, supra.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The unit set forth herein constitutes a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. At all times material herein, the International Union
and its Local 469, either jointly or severally, have been
the exclusive collective-bargaining representative of the
employees in the described unit set forth herein.
4. The Respondent is a legal successor for labor rela-
tions purposes to Kane Industries, a Division of Chro-
malloy American Corporation, in the operation of the
plant at Cave Mill Road, Leitchfield, Kentucky.
5. Since about March 23, 1984, and at all times thereaf-
ter, the Respondent has failed and refused to recognize
and to bargain collectively in good faith with the Union
as the exclusive representative of the Respondent's em-
ployees in the unit described herein, and has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(5) and (1 ) of the Act.
THE REMEDY
Having found that the Respondent has engaged in and
is engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act, I find it necessary
that it be ordered to cease and desist therefrom and, on
request, bargain collectively with the Union as the exclu-
sive representative of all employees in the appropriate
unit.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed2
ORDER
The Respondent, IMS Manufacturing Company, Inc.,
Leitchfield, Kentucky, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain col-
lectively in good faith with International Ladies' Gar-
ment Workers Union, AFL-CIO and its Local 469 as the
exclusive bargaining representative of its employees in
the following unit:
All production and maintenance employees in the
Employer's establishment located at Cave Mill
Road, Leitchfield, Kentucky, 42754, but excluding
all office clerical employees, technical and sales em-
ployees, professional employees, computerized cut-
ting and marking machine technicians and opera-
tors, watchmen, guards and supervisors as defined
in the National Labor Relations Act, as amended.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith
with the above-named Union as the exclusive collective-
bargaining representative of its employees in the unit
found appropriate herein respecting rates of pay, hours
of employment, or other terms and conditions of employ-
ment and, if an agreement is reached, embody it in a
written and signed contract.
(b) Post at its Leitchfield, Kentucky, plant copies of
the attached notice marked "Appendix."8 Copies of the
notice, on forms provided by the Regional Director for
Region 9, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable 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 Re-
spondent has taken to comply.
2 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.
2 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 "