J-P Mfg., Inc.

National Labor Relations Board - Board Decisions

Jan 12, 1972

194 N.L.R.B. 965 (N.L.R.B. 1972)

J-P MFG., INC. 965
J-P Mfg., Inc., Successor to Traverse City Manufac-
turing, Inc. and International Union, United Auto-
mobile , Aerospace and Agricultural Implement
Workers of America (UAW). Case 7-CA-8528
January 12, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
Respondent denied that it was a successor to Traverse City
and denied any violations of the Act.
Pursuant to notice , a hearing was held before me at
Traverse City, Michigan , on June 24 and 25 , 1971. All
parties were represented at the hearing and were afforded
full opportunity to be heard , to introduce relevant evidence,
to present oral argument , and to file briefs with me.
Counsel for the General Counsel argued orally, and briefs
were filed by all parties. Upon consideration of the entire
record , the oral argument , and the briefs , and upon my
observation of each of the witnesses , I make the following:
On August 25, 1971, Trial Examiner Abraham H.
-Maller issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel filed exceptions
and a supporting brief, and the Respondent filed
cross-exceptions with a supporting brief as well as an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety.
TRIAL EXAMINER 'S DECISION
ABRAHAM H. MALLER , Trial Examiner : On March 2,
1971, International Union, United Automobile , Aerospace
and Agricultural Implement Workers of America (UAW),
herein called the Union , filed a charge against J-P Mfg.,
Inc., herein variously called J-P or the Respondent. Upon
said charge, the Regional Director for Region 7 of the
National Labor Relations Board , herein called the Board,
on April 23, 1971, issued on behalf of the General Counsel
a complaint against the Respondent. Briefly, the complaint
alleged that the Union is the certified collective -bargaining
representative of the employees in an appropriate unit of
Traverse City Manufacturing , Inc., herein called Traverse
City; that the Union had entered into a collective-
bargaining contract with Traverse City; that thereafter J-P
became a successor to Traverse City, but has refused to
recognize or bargain with the Union and has refused to
adopt , honor, and enforce the collective-bargaining agree-
ment, in violation of Section 8(a)(5) and ( 1) of the National
Labor Relations Act, as amended (29 U.S.C. Sec. 151, et
seq.), herein called the Act . In its duly filed answer, the
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Michigan corporation, is engaged in the
manufacture of automotive parts and other products in its
plant at Traverse City, Michigan. During the fiscal year
commencing on or about August 1, 1970, Respondent had
gross revenues from the sale of the products manufactured
by it in excess of $100,000. During that period, it supplied
to its customer, Jacobs Industries, Inc., of Fraser and
Detroit, Michigan, goods and products valued in excess of
$50,000, and to its customer, Thompson Industries, Inc., of
Southfield, Michigan, and elsewhere, goods valued in
excess of $35,000.
Jacobs Industries, Inc., is a Michigan corporation
engaged in the manufacture of automotive parts at its
plants located in Fraser and Detroit, Michigan. During the
fiscal year ended April 1, 1971, its gross revenues from the
sale of its products exceeded $100,000. During that same
period, there were shipped goods valued in excess of
$50,000 directly from outside the State of Michigan to the
two plants mentioned above. During the same period,
goods valued in excess of $50,000 were shipped by Jacobs
Industries, Inc., from its said plants directly to points
located outside the State of Michigan.
Thompson Industries, Inc., and its wholly owned
subsidiary, Circuit Controls Corporation, during the fiscal
year ended April 1, 1971, had gross revenues in excess of
$100,000 from the manufacture of automotive parts in
plants located in Michigan, Ohio, and other States. During
the same period, Thompson Industries, Inc., or its wholly
owned subsidiary, Circuit Controls Corporation, shipped
goods valued in excess of $50,000 from their Michigan
plants directly to their customers located outside the State
of Michigan, and received at their Michigan installations,
goods valued in excess of $50,000 which were shipped
directly from suppliers located outside the State of
Michigan.
Accordingly, I find and conclude that the Respondent is
engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act for the Board to
assert jurisdiction here.
II. THE LABOR ORGANIZATION INVOLVED
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
194 NLRB No. 161
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ISSUE
Whether the Respondent is a successor to Traverse City.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Traverse City is a company that was engaged in stamping
automotive parts, tool and die work, special machinery, and
precision machine parts. The president of Traverse City is
A. R. Jacobs, Sr., also known as Bill Jacobs. His son, A. R.
Jacobs, Jr., also known as Dick Jacobs, was vice president
of Traverse City and manager of the stamping division, but
had no proprietary interest in the Company. The automo-
tive stampings, the only function of Traverse City involved
in the instant case, consisted primarily of stamping metal
parts under contract with Jacobs Industries, Inc., and
Thompson Industries, Inc., which in turn furnished car
parts to Chrysler Corporation.' The stamping operation
was originally performed at a plant operated by Traverse
City at 900 Woodmere in Traverse City, Michigan.
Approximately in November 1969, the stamping operation
was moved from the Woodmere plant to 730 Carver,
Traverse City, known as the Carver plant. Traverse City
also had a plant located at 215 East 12th Street, known as
the 12th Street plant, and a facility at 3750 Industrial Park,
known as the Boardman plant, all in Traverse City,
Michigan, where it engaged in operations other than metal
stampings.
On August 28, 1969, pursuant to a Decision and
Direction of Election in Case 7-RC-9511, a majority of the
employees at Traverse City designated and selected the
Union as their collective-bargaining representative. On
September 8, 1969, the Board certified the Union as the
exclusive bargaining representative. On or about March 20,
1970, Traverse City entered into a collective-bargaining
agreement with the Union and its Local 945. The contract
contained a union-security provision. At the time of the
election, there were 34 or 35 nonsupervisory employees at
Traverse City. Although the number of employees fluctuat-
ed since then, in March 1970, there were approximately 30
to 35 nonsupervisory employees at Traverse City, of which
number approximately 20 were in the stamping division.
In 1970, Traverse City experienced some economic
difficulties, as a result of which there were two temporary
layoffs of employees. On June 26, 1970,2 Traverse City
closed its plant at Industrial Park where it conducted its
tool and die operations. All employees were laid off. On
July 14, Traverse City proposed to the Union that the
provisions of the collective-bargaining agreement be
waived in view of the financial condition of the Company,
and the Union and Traverse City thereafter negotiated
concerning this request. On or about July 23, Traverse City
suspended its stamping operations and closed the Carver
plant, and all employees, both supervisory and nonsupervi-
sory, were laid off indefinitely.
I The president of Jacobs Industries, Inc , is the brother of A R Jacobs,
Sr.
2 Unless otherwise indicated, all dates were in 1970
2. The organization of the Respondent
On or about July 29, Dick Jacobs and Harry E . Paulson
agreed to organize J-P Mfg ., Inc., the Respondent herein,
and the Company was incorporated on August 10. Each
contributed 50 percent of the initial capital of the
Respondent , and each owns 50 percent of the outstanding
capital stock of the Respondent . Both Dick Jacobs and
Paulson had been employed by Traverse City, Dick Jacobs
as manager , and Paulson as superintendent, of the Carver
plant . Both had been laid off when Traverse City closed the
stamping division . The Respondent was organized because,
as Paulson said , "Well, I found myself out of work. And
frankly, I had a choice then of , either going out and looking
for another job or thinking of starting my own business."
Neither Dick Jacobs nor Paulson owned , or owns, any
interest in Traverse City.3
3. Respondent 's equipment
To begin operations, Respondent entered into an
informal lease-purchase arrangement with Traverse City
for the following equipment : tool repair equipment , milling
machine , surface grinder , band saw, two small punch
presses (2-ton and 5 -ton), one 60-ton press, and some office
equipment. For this equipment , Respondent agreed to pay
Traverse City $14,000, plus $900 for the lease . The purchase
price was eventually paid in December , although the rental
charge of $900 is still outstanding . The foregoing equipment
constituted 20 to 25 percent of Traverse City's metal
stamping equipment ; the same proportion of tool repair
equipment ; and about one-third of Traverse City's welding
equipment. In total , the machinery acquired constituted
about 10 percent of Traverse City's entire equipment. The
equipment when acquired was located in Traverse City's
Carver plant, but in mid -August was moved to the
Industrial Park plant which the Respondent leased from
Earl Greenman , the owner of the premises . In November,
Respondent purchased two pieces of equipment from other
sellers: one hi-low and a 50-ton press for a total cost of
$2,800.
4. Respondent's customers
When Traverse City closed its stamping division, some
orders for Jacobs Industries, Inc., and Thompson Indus-
tries, Inc., had not been completed. Dick Jacobs thereupon
negotiated and contracted with these companies to
complete the unfinished work and contracted for future
work as well.
While Respondent has acquired customers not previously
served by Traverse City, Jacobs Industries, Inc., and
Thompson Industries, Inc., are its principal customers, as
they were for Traverse City's stamping operations. It should
also be noted that, at present, the Respondent spends 8 to
10 percent of its time doing projection welding for
Thompson Industries, Inc., an operation apparently not
previously performed by Traverse City.
3 The General Counsel does not contend that the Respondent is an alter
ego of Traverse City.
J-P MFG., INC. 967
5. Respondent's employees
Whereas Traverse City in March 1970 had approximately
30 to 35 employees, approximately 20 of them in the
stamping division, and 9 to 10 supervisory personnel, the
Respondent went into business with 4 employees and no
supervisors other than Paulson who worked as an operator
alongside his employees. Dick Jacobs handled the office
functions. At the outset, Respondent hired Robert Whipp,
Leon Fouch, Ray Burns, and Louie Flees, all of whom had
previously been employed in Traverse City's stamping
division. Russ Allen, also formerly employed by Traverse
City, was employed in the fall. About the beginning of
1971, Burns and Flees left Respondent's employ. Around
this time, Respondent hired Earl Greenman, who had been
a foreman at Traverse City, to do die repair work on a part-
time basis. Greenman worked for the Respondent until
approximately a month or two before the hearing, when he
quit because of a heart attack. Shortly before the hearing,
Respondent hired additional employees: Tom Himminger,
Jim Stoors, Al Hackett, Greg Allen, Mike Whipp, and
Helen Manville (for office work). Of these, Himminger had
worked for Traverse City until approximately the closing of
the stamping division. Stoors had worked for Traverse City
in 1965, but had not worked for that company thereafter.
Not only was the size of the unit employed by the
Respondent markedly smaller than that of Traverse City,
but, in addition, the duties of the employees were entirely
different. At Traverse City, each employee performed one
particular function; i.e., setup, operator, inspector, shipping
and receiving clerk, truckdriver, etc.4 Operators were
further classified as A, B, and C, and each classification had
a different wage rate.5 Thus, for example, Robert Whipp
was hired as a punch press operator by Traverse City and,
in 1969, became a shipping and receiving clerk and
thereafter did not do any punch press work. In contrast to
the foregoing, the employees of the Respondent perform all
of the operations; i.e., setup, operation, and inspection.
Thus, Whipp described his duties at J-P, as "anything and
everything there is to do in the shop that I can possibly do
myself."
The conditions of employment at J-P were markedly
different from those that prevailed at Traverse City. Thus,
Whipp was hired at a flat hourly rate, with no fringe
benefits as vacations, hospitalization, or holidays with pay.
In contrast, at Traverse City under the collective-bargain-
ing agreement , Whipp had a lesser hourly rate, plus
overtime rate, holiday pay, vacations, and insurance: life,
sickness and accident, hospital, and major medical. There is
no evidence as to the other employees; presumably, they
received similar treatment by the Respondent.
The supervision at the Respondent's plant was also
entirely different from that of Traverse City. Thus, Paulson
had three to five foremen under him when he was
superintendent at the Carver plant of Traverse City. At J-P,
Paulson is the only supervisor and, as previously indicated,
works alongside the men doing the same work that they do,
while Traverse City, supervisory employees were prohibited
by the collective-bargaining contract from performing "any
work on an hourly rated job which will deprive an
employee within the Bargaining Unit of his job ... .
When working at Traverse City, Whipp, Allen, Burns,
and Flees had been members of the Union .6 None has paid
any union dues since July 17. According to Whipp's
undisputed testimony, he took a withdrawal slip approxi-
mately 3 months before the hearing to avoid being dropped
from union membership for nonpayment of dues.? This
course of action was suggested to him by Union
Representative Harry Smith so that if he ever went back to
work in a union shop he would not have to pay an initiation
fee.
6. Subsequent events
As previously noted, on July 14, Traverse City proposed
to the Union that it waive the provisions of the collective-
bargaining contract, in view of the financial condition of
the Company. Thereafter the parties negotiated concerning
this request. Finally, on September 10, the Union and
Traverse City entered into an agreement waiving the terms
of the collective-bargaining agreement and providing that
the waiver would remain in effect until terminated by either
party and that during its term the condition of Traverse
City would be reviewed every 60 days. Thereafter,
representatives of the Union telephoned Traverse City
several times to inquire into its condition. On February 12,
1971, International Representative Smith telephoned Bill
Jacobs and asked him what he was planning to do. Bill
Jacobs replied that he was not going to do anything.
Thereupon, Smith drafted a letter to Traverse City
terminating the agreement of September 10 and stating that
the collective-bargaining agreement "shall once more be in
full effect between the Local Union, the International
Union and Traverse City Mfg. Company and it' s [sic]
assignees, including the Company now known as J & P
Mfg. Company." Smith and two union officials delivered
the letter to Bill Jacobs personally at the 12th Street plant.
A copy of the letter was also delivered by them to Dick
Jacobs at Respondent's office. One of the union representa-
tives, Walter Schultz, told Dick Jacobs that the Respondent
was a successor company. Dick Jacobs replied that they
had a difference of opinion on that subject. Subsequently,
Schultz telephoned Dick Jacobs and again contended that
the Respondent was a successor company and requested
that it should recognize the Union. Dick Jacobs again
replied that there was a difference of opinion on that
subject and suggested that Schultz contact Respondent's
attorney. On February 26, 1971, Smith, Schultz, and two
other representatives of the Union met with Mr. and Mrs.
Bill Jacobs at the office of Traverse City's attorney to
discuss grievances. At that time the issue of successorship
arose, and Bill Jacobs took the position that the Respon-
dent was not his company and that the union representa-
tives would have to talk to Respondent's attorney. That
afternoon, the union representatives met with the attorney
for the Respondent. They took the position that the
4 Sometimes , a qualified operator at Traverse City did his own setup shop.
5 The foregoing is further reflected in the collective-bargaining 7 The record does not disclose whether the others have taken
agreement between Traverse City and the Union withdrawal slips Since, like Whipp, they have not paid dues, presumably
6 The collective-bargaining agreement provided for a union-security they, too, are subject to being dropped from membership.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining agreement was binding upon the
Respondent. Respondent's attorney contended that the
agreement was not binding upon the Respondent.
B. Concluding Findings
The critical issue is whether the Respondent is the
successor to 'Traverse City. If it is, the Respondent is
obligated to honor and adhere to the collective-bargaining
agreement between Traverse City and the Union. The
William J. Burns International Detective Agency, Inc., 182
NLRB No. 50, enforcement denied in part 441 F:2d 911
(C.A. 2); Ranch Way, Inc., 183 NLRB No. 116, enfd. 441
F.2d 625, (C.A. 10). If successorship is not found, then
Respondent is under no current obligation of the Union.
Travelodge Corporation, 182 NLRB No. 52.
It should be noted at the outset that the General Counsel
does not contend that the Respondent was the alter ego of
Traverse City, and, indeed, such a contention would not be
supported by the record. Dick Jacobs and Paulson had no
financial interest in Traverse City, and they invested their
own capital in establishing the Respondent.
The Board has consistently held that "[w]here the
enterprise remains essentially the same, the obligation to
bargain of a prior employer devolves upon his successor in
title . . . . Where, however, the nature or extent of the
employing enterprise, or the work of the employees, is
substantially changed, the transfer of apart, or even all, of
the physical assets does not carry along with it the duty of
the former owner to continue bargaining with the former
exclusive representative" (Cruse Motors, Inc., 105 NLRB
242, 247. Recognizing the vast number of varying situations
which can arise and which have arisen where there has been
a change in the employing industry, the Board has
informally evolved a set of criteria to determine whether the
employing industry remains substantially the same. The
questions asked by the Board have been grouped as
follows: (1) whether there has been a substantial continuity
of the same business operations; (2) 'whether the new
employer uses the same plant; (3) whether he has the same
or substantially the same work force; (4) whether the same
jobs exist under the same working conditions; (5) whether
he employs the same supervisors; (6) whether he uses the
same machinery, equipment, and methods of production;
and (7) whether he manufactures the same product or offer
the same services .8 It is therefore appropriate to analyze the
facts of the case to determine whether and to what extent
they meet the foregoing criteria.
1. Substantial continuity of the same business
operations
The Respondent does not carry on all of the operations
which were conducted by Traverse City.9 The Respondent
engages only in stamping and welding work. However, it is
8 Fanning, Labor-Relations Obligations of a Purchaser , Labor Relations
Yearbook ( 1967), pp . 284, 286 ; Morris, The Developing Labor Law (B.N.A
1971) p 368.
9 It is not clear from the record to what extent Traverse City still
engages in tool and die operations, etc.
10 Although these decisions support the proposition for which they are
cited, it should be noted that they are distinguishable from the instant case
insofar as they involve other of the above criteria Thus, in Fry, the
not necessary to meet this criterion that the Respondent
engage in all of the operations of Traverse City. Lloyd A.
Fry Roofing Co., Inc., 176 NLRB No. 136; Solomon Johnsky
d/b/a Avenue Meat Center, 184 NLRB No. 94.10 Thus, in a
legal sense, Respondent could be the successor of Traverse
City's stamping division. As to continuity of operations,
Respondent went into the stamping business a few days
after Traverse City closed its stamping operations, and its
major customers are companies for which Traverse City did
most of its stamping work. It is thus apparent, and I find,
that the facts of this case satisfy the first criterion.
2. Use of the same plant
Respondent initiated its stamping operations at the
Carver plant which was the same plant in which Traverse
City had conducted its stamping operations. Although it
moved shortly thereafter to the Industrial Park location, the
latter plant was one which had been used by Traverse City.
It therefore appears that the facts satisfy the second
criterion.
3. The same or substantially same work force
Although Traverse City had approximately 20 employees
in the stamping division at the time the contract was signed,
the Respondent began operations with only four employees
all of whom had been previously employed by Traverse
City. Another former employee of Traverse City was hued
in the fall. Two of the original four employees left
voluntarily approximately 6 months later. Shortly before
the hearing, Respondent hired five production employees,
one of whom had worked for Traverse City until
approximately the closing of the stamping division and
another who had not worked for Traverse City since 1965.
The remainder had never been employed by Traverse City.
In determining the question of successorship, the Board
has considered the proportion of the predecessor's employ-
ees which constituted the unit at the new employer. Thus, in
Pargament Fidler, Inc., et al., 173 NLRB 696, the Board, in
finding no successorship, pointed out that out of a total of
23 employees who had been in the bargaining unit of the
old employer, only 4 had gone to work for the new
employer and constituted the unit at the new employer. In
Lori-Ann of Miami, Inc., etc., 137 NLRB 1099, the Board
found no successorship, where the old employer had a
complement of approximately 41 employees and the new
employer employed 11 production employees, 10 of whom
were employees of the old company. Similarly, in Alabama
Precast Products, 163 NLRB 993, one of the elements
considered in finding no successorship was the fact that the
Respondent's employee complement consisted of 55
employees as compared to a complement of 140 to 150
employees of the old company. Of the 55 employees of the
respondent "took over intact National's entire felt mill, including its
inventory and machinery , and continued to make felt paper material, using
the same machinery and the same processes" and "front line supervision
remained the same" (TXD). In Solomon Johnsky, the successor "performed
the same operations . with a majority of Home's former employees
the employees , with minor modifications , were working under the same
working conditions."
J-P MFG., INC. 969
Respondent , 33 had formerly worked for the old company.
See also Thomas Cadillac, Inc., 170 NLRB 884.
It should be noted , however, that in a more recent
decision , Lloyd A. Fry Roofing Co., Inc., 176 NLRB No.
136, the Board, without expressly overruling the foregoing
decisions , indicated that the difference in the size of the
new company 's unit vis-a-vis that of the old employer was of
no consequence, where all of the employees of the new
employer had been employed by the old company. In
footnote 6, the Board said:
Also, whereas here , nearly all, if not all, the employees
in the continuing operation were former National
employees on the date of the demand , we find irrelevant
the Respondent's objection that they nevertheless
constituted only a small percentage of the number of
employees formerly employed by National to do unit
work.
The foregoing statement appears to cast doubt as to
"whether he has the same or substantially the same work
force" is still a valid test of successorship . Such doubt,
however, has been removed by the more recent decision of
Lincoln Private Police, Inc., etc., 189 NLRB No . 103, where
the Board said:
While we do not mean to imply by our decision herein
that successorship can never be found where the new
employer acquires less than the predecessor 's entire
business, or hires less than a majority of the predecessor
employer's work force - indeed the Board has held
otherwise in prior cases - (citing Fry and other cases in a
footnote) we do require in such circumstances that
other sufficient criteria exist which, in balance, warrant
a finding that there has been no basic change in the
employing industry (slip op., p. 13).
4. Whether the same jobs exist under the same
working conditions
This question must definitely be answered in the
negative. As previously noted , at Traverse City, each
employee performed one particular function ; i.e., setup,
operator, inspector , shipping and receiving clerk , truckdri-
ver, etc . Furthermore, operators were classified as A, B, and
C, and such classifications were reflected with different
rates of pay in the collective -bargaining agreement between
Traverse City and the Union . In contrast, at the
Respondent's plant, the job functions of the employees are
not separated , and each employee performs whatever
functions are required by the work flow . I therefore find
and conclude that the same jobs do not exist under the
same working conditions at the Respondent's plant as had
existed at Traverse City.
5. Whether Respondent employs the same
supervisors
Paulson testified without contradiction that when he was
plant superintendent at the Carver plant of Traverse City,
he had three to five foremen working under him. There are
no foremen at J-P. The sole supervision is vested in Paulson
who, as previously indicated, does production work
alongside his men. Dick Jacobs, formerly plant manager for
Traverse City, handles the office and business details. In
finding no successorship in Thomas Cadillac, 170 NLRB
884, the Board cited the fact that "the supervisory heirarchy
bears little resemblance to that formerly existing" at the old
employer's business." This is precisely the situation in the
instant case.
6. Use of the same equipment , machinery, and
methods of production
As set forth above , the Respondent purchased from
Traverse City approximately 20 to 25 percent of the latter's
rgnetal stamping equipment and tool repair equipment, and
about one-third of Traverse City's welding equipment.
Additional machinery was purchased approximately 4
months later. Insofar as methods ' of production are
concerned , Respondent is engaged substantially in the
same operations ; i.e., stamping out metal parts.
Patently, Respondent is using machinery formerly owned
and used by Traverse City in its stamping operations. But is
it using the "same" machinery and equipment when it uses
only a small portion of the stamping equipment formerly
used by Traverse City? The question does not seem to have
been answered in past Board decisions . On principle, it
would appear that the Respondent is not using the "same"
machinery and equipment when , as here , it uses only a
small portion thereof . Since the ultimate issue is whether
the employing industry has remained "substantially the
same," the amount or proportion of the former employer's
machinery acquired and used by the new employer would
appear to have as much significance as the relative size of
the units of the two employers.
7. Whether the Respondent manufactures the
same product or offers the same services
It is clear from the record that the Respondent is
primarily engaged in metal stampings , the same work
previously performed by Traverse City's Stamping Divi-
sion.
It is apparent from the foregoing discussion, that the facts
satisfy only about half of the various tests prescribed for
determining whether the Respondent is substantially the
same as Traverse City. The determination must therefore
be on an "on balance" consideration of the various factors.
See, e.g ., Lincoln Private Police, Inc., supra, In this regard,
the fact that J-P is but a fraction of the size of Traverse
City's stamping division , the fact that the employee unit has
averaged five employees , compared to a unit of approxi-
mately 30-35 at Traverse City, 20 of them in the stamping
division, and the further fact that it uses only approximate-
ly 20 to 25 percent of the machinery of the stamping
division are significant factors. So, too, is the marked
difference in the jobs and working conditions of the
employees-a jack-of-all-trades operation as against clear-
cut job classifications-an important factor to be consid-
ered. And, again , the difference in supervision-a hierarcy
of supervision at Traverse City as distinguished from an
owner-supervisor who also does production work-is
u See also Plant and Field Service Corporation, 184 NLRB No. 100
(TXD),
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled to great weight, These matters affect directly the
employees involved and "resulted in a distinct change in
the employer-employee relationship" (Federal Electric
Corporation, 167 NLRB 469, 471). Hence, they are of
overriding importance. They outweigh the fact that there
was a substantial continuity of operations, that J-P used
Traverse City's Carver plant, and primarily does the same
work as Traverse City's stamping division. On balance,
therefore, I find and conclude that J-P is not a successor to
Traverse City.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent is not a successor to Traverse City
Manufacturing, Inc., and has not engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act, as alleged in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, I hereby issue the following
recommended: 12
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
ORDER
The complaint is dismissed in its entirety.
12 In the event no exceptions are filed as provided by Sec. 102.46 of the herein shall, as provided in Sec 102.48 of the Rules and Regulations, be
Rules and Regulations of the National Labor Relations Board, the adopted by the Board and become its findings, conclusions, and order, and
findings, conclusions, and recommendation, and recommended Order all objections thereto shall be deemed waived for all purposes.