Lloyd A. Fry Roofing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1969

176 N.L.R.B. 1025 (N.L.R.B. 1969)

LLOYD A. FRY ROOFING CO. 1025
Lloyd A. Fry Roofing Co., Inc . and Retail,
Wholesale and Department Store Union, Local
885, AFL-CIO. Case 12-CA-4193
June 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On October 22, 1968, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. On
November 21, 1968, Trial Examiner Sidney
Sherman issued a Supplemental Decision, likewise
attached, affirming all of the findings of fact,
conclusions of law, and recommendations in his
original Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decisions and a
supporting 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
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decisions, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner with the following additions and
modifications.
On January 5, 1968, the Union was certified for a
unit of National Felt and Paper Company's
production and maintenance employees at its
Miami, Florida, plant. National had been engaged
in a tissue paper operation and a felt paper
operation. A few days before the certification,
National had discontinued its tissue paper operation,
terminating all employees engaged in that work. On
March 18, the Respondent executed a contract to
purchase that part of National's plant equipment
and inventory pertaining to the felt operation. The
sale was consummated on April 10. On March 26
and again on May 3, the Union unsuccessfully
demanded that Respondent recognize it as the
representative of the felt operation employees,
contending that the Respondent was National's
successor. The Respondent denies on various
grounds that it can properly be found to be a
successor. It is clear that the Respondent here has
refused to recognize the Union, and that subsequent
to May 3, it has unilaterally made changes in the
felt operation employees' wages, hours, and group
176 NLRB No. 136
insurance plan.
While a purchaser is not ipso facto bound to
honor a certification which bound his seller, a
change of ownership does not necessarily destroy the
bargaining status of a Union. Rather, if the
operation continues under the new owner
substantially or essentially as before, the purchaser
must upon demand recognize an incumbent Union.'
Consequently, the problem here is fundamentally a
factual one.
The record shows that for about 3 weeks after it
purchased the plant the Respondent closed down
operations in order to make repairs. After that
period operations, as carried on by National, were
continued virtually unchanged. Respondent took
over the entire felt mill and inventory, used the
same machinery and processes (except that it
substituted paper for rags as the ragbeating machine
was in disrepair), and sold the product to the same
customer - itself. No new machinery was ordered
or installed. As for employees, during the week of
April 14, there were two. Both had been National
production employees, but were then employed as
watchmen. During the week ending April 21, five
more former National employees were hired. The
payroll remained unchanged until the week ending
May 19 when six additional employees were hired.2
Thus, on. May 3, the date of the relevant
recognitiohal request,3 there were at the felt mill five
production employees and two watchmen' - all
former National employees.' The felt operation is
geographically separated from, and its employees do
not intermingle with, those of Respondent's other
operations, and it has its own separate immediate
supervision.
In view of the foregoing, it is apparent that the
"National" felt operation has not been merged since
its purchase, as Respondent claims, into its other
operations, but has on the contrary been continued
as a separate operation performing the same
functions on the same machines with the same
employees at the same location as before.' We find
in these circumstances that the Respondent is a
successor employer at the felt mill operation here
involved and, consequently, as found by the Trial
Examiner , the Union is the certified bargaining
representative of the employees engaged in that
'Cruse Motors. Inc, 105 NLRB 242, 247, Northwest Galvanizing Co..
168 NLRB No. 6.
'A single man , who had not worked for National , was hired during the
week of April 21 , but he quit 3 days later.
'We agree with the Trial Examiner that May 3, rather than April 11
when Respondent rejected the Union's first demand , is the appropriate
date for determining the Union 's status, for by that date, unlike the earlier
time, the Respondent had completed most of its repairs and had employed
a substantial number of production and maintenance employees.
'There is no evidence as to whether or not the watchmen were guards
within the statutory definition.
'We do not include some supervisors from other of Respondent' s plants
who helped in the felt operation renovation and may have still been there
on May 3
.We find no merit in the Respondent's contention that the Court's
holding in N.L.R.B. v. Alamo White Truck Service, Inc., 273 F.2d 238
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operation. Accordingly, we find, in agreement with
the Trial Examiner, that Respondent's refusal to
recognize the Union on May 3 and its subsequent
unilateral changes in working conditions violated
Section 8 (a)(5) and (1).
111. THE UNFAIR LABOR PRACTICES
The only issue litigated was whether Respondent's
admitted refusal to bargain with the Union and its
admitted unilateral changes in working conditions were
unlawful.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Lloyd A. Fry Roofing
Co., Inc., Miami, Florida, its officers, agents,
successors, and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
(C.A. 5, 1959) precludes a successorship finding here That case is not
applicable; it turns on factual matters reflecting a basic change in the
nature and function of the employing enterprise . The facts show that is not
the situation in the instant case . See N.L R.B. v. Auto Ventshade, Inc..
276 F.2d 303, 306.307 (C.A 5, 1969), United States Pipe and Foundry
Company Y. N L R B., 398 F.2d 544 (C.A. 5, 1968). Also, where as 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.
TRIAL EXAMINER ' S DECISION
SIDNEY SHERMAN , Trial Examiner : A copy of the
original charge herein was served upon Respondent on or
about April 15, 1968,2 the complaint issued on July 23,
and the case was heard on September 10. The only
matters litigated were an alleged refusal to recognize and
bargain with the Charging Party and alleged unilateral
changes in wages , hours and employee benefits . After the
hearing a brief was filed by the General Counsel.
Upon the entire record,' including my observation of
the witnesses , I adopt the following findings and
conclusions:
1. RESPONDENTS OPERATIONS IN COMMERCE
Lloyd A. Fry Roofing Co ., Inc., herein called
Respondent is a Delaware corporation , with headquarters
in Summit, Illinois , which operates in several States of the
United States plants engaged in the manufacture and
distribution of roofing materials and related products. It
has three such plants in the State of Florida , including the
one located in Miami , which is here involved . During the
12 months preceding July 23,1 Respondent shipped from
Florida to out-of-State points goods valued at more than
$50,000 . Respondent is engaged in commerce under the
Act.
11. THE UNION
Retail , Wholesale and Department Store Union, Local
885, AFL-CIO, hereinafter called the Union, is a labor
organization under the Act.
'All dates hereinafter refer to 1968, unless otherwise shown
'For corrections of the transcript, see the order of October 14, 1968
'The date that the instant complaint issued.
A. Sequence of Events
On October 23, 1967, the Union filed a petition to
represent the production and maintenance employees of
National Felt and Paper Corporation, hereinafter called
National , at its Miami , Florida , plant . At that time,
National ' s operations at that location consisted of the
manufacture of felt paper material for roofing shingles
and the fabrication of tissue paper. On December 27, an
election was held on the Union's petition. Ten of the unit
employees were then engaged in the felt paper operation.'
The election was won by the Union by a vote of 19 to 6,
and it was certified on January 5. In the meantime, a few
days after the election , National terminated its tissue
paper operation , discharging all the employees engaged
therein . Thereafter there were some negotiations between
National and the Union with respect to a contract for the
10 remaining employees . On March 18 , Respondent,
which had been National ' s sole customer , executed a
contract to purchase that part of National's plant
building, equipment, and inventory which pertained to the
felt paper operation. The sale was consummated on April
10, and National has not since that date been active at the
foregoing location , nor, so far as the record shows,
anywhere else. Immediately before the sale, National still
had only 10 unit employees, and a supervisory hierarchy
consisting of a plant superintendent and two foremen (in
addition to two corporate officers). During the first 3 or 4
weeks of its ownership of the felt paper mill, Respondent
performed only certain machinery repairs and renovation
work, in order to prepare the mill for operations by
Respondent. With respect to the employee complement
during that period , Respondent ' s payroll records for the
instant plant show the following:
During the week ending April 14, the payroll lists only
two employees (the Griffins), who acted as watchmen, and
who had formerly worked for National as production
employees. During the next week , the payroll lists six
additional names , consisting of three former employees of
National, and the two National foremen, who continued
to serve in the same capacity under Respondent's
management . With the exception of the sixth man, Baxter
(who quit after 3 days), the payroll complement remained
the same for the next 3 weeks.
During the same period (except for the first week),
Respondent employed at the instant plant, in addition to
the foregoing , one other production employee
(Kinnaman ), who later became plant superintendent, and
several supervisors (in addition to the two foremen), none
of whom appears on the foregoing payroll.'
For the week ending May 26, the plant payroll lists 16
unit employees, of whom 6 were former unit employees of
National. In addition, Respondent employed the two
foremen, who were admittedly supervisors, a plant
'Quinn so testified . Although Dugas estunated that there were then l2
felt employees, Quinn impressed me as the more knowledgeable of the two,
and I credit his testimony.
'McInerney , Respondent' s vice-president , testified that the foregoing
individuals were transferred from other plants and remained on the payroll
of those plants
LLOYD A . FRY ROOFING CO. 1027
manager (Preston ), a plant superintendent (Kinnaman),
and another supervisor (Monfondino ). This situation
continued to the date of the hearing (September 10).
On March 26, the Union wrote the Respondent that, in
view of its pending purchase of the plant, and the Union's
understanding that Respondent would engage in the same
operation as National , the Union regarded Respondent as
a successor of National and as obligated to bargain with
"the existing certified union ." The letter concluded with a
request that Respondent set a date for bargaining about a
contract . On April 11, Respondent replied that it intended
to close the plant for 3 weeks for the purpose of
"renovating and changing the machinery to conform" to
Respondent' s specifications , that there would be
substantial changes in the operation of the business, and a
complete change in management and ownership , and that
Respondent intended to recruit a new plant complement
by interviewing all applicants , including former National
employees . The letter concludes:
Accordingly , we must decline your request to negotiate
a contract as we have good - faith doubt as to your claim
of continued majority status.
By letter of May 2 , the Union 's attorney made a new
bargaining request, but without avail.'
Admittedly , Respondent has continued to refuse to
recognize the Union and has at various times since April
10, made changes in the wage rates and hours of work
and the group insurance plan prevailing under National's
regime.
B. Discussion
There is no dispute that the Union was validly certified
on January 5, as the representative of all National's
production and maintenance employees at the instant
location, including shipping, receiving and warehouse
employees . The only issue is whether Respondent is bound
by that certification.
It is elementary that , absent "unusual circumstances,"
an employer is required to honor a union's certification
for a period of 1 year from the date of its issuance, so
that even proof of the Union ' s actual loss of majority
status during the certification year will not affect its
bargaining rights; , nor will a mere change in the identity
of the employer.'
Respondent cites some authority for the proposition
that , where there is not only a change in employers, but
also radical changes in managerial and unit personnel, and
in the nature of the operation , the Board will not deem
the successor to be bound by a certification issued during
the regime of his predecessor."
However , only one of the cited cases," involved a
current certification , and that case is distinguishable on
the ground that the certified unit was deemed by the
Board to have lost its identity by reason of the fact that it
was merged into the successor ' s existing contract unit.
There is no such situation here ; and, no other case has
been found holding that a current certification was not
binding on a -successor employer . The relevancy of cases
'There was no evidence that this letter was answered . Moreover,
Respondent conceded at the hearing that it has rejected this, as well as all
other, bargaining requests.
'Ray Brooks v. N.L.R. B., 348 U.S. 96.
'N.L.R.B. v. Armato, et al., 199 F.2d*800 (C.A. 7), enfg. 97 NLRB 971;
Johnson Ready Mix Co.. 142 NLRB 437, 442.
"Federal Electric Corporation, 167 NLRB No. 63; Thomas Cadillac,
Inc., 170 NLRB No. 92; Northwest Galvanizing Co, 168 NLRB No. 6.
like Thomas Cadillac , supra, which involved a
certification more than 1 year old at the time of the sale,
or of cases where there was no prior certification but only
voluntary recognition of the Union by the predecessor,
seems questionable , since such cases are not subject to the
"unusual circumstances" test of Ray Brooks , supra. They
are subject only to the less rigorous rule that after the end
of the certification year , or where recognition has been
merely voluntary, there is merely a rebuttable
presumption of the Union ' s continuing majority status,
which may be overcome by proof of actual loss of such
status , or by proof that the employer in good faith
doubted the union ' s majority status.' I
At any rate , of all the cases which have been found
dealing with the instant issue , the one most like the
instant case on the facts is the Armato case , supra, cited
by the General Counsel . There , the Union had been
certified in October , while the business was operated by
Krantz . It was sold by him the following July to Armato,
who, a month later, rejected the Union ' s bargaining
request . At that time he had only five unit employees, all
of whom were former employees of Krantz ," and within
the next several weeks hired 20 additional employees, of
whom only four had been employed by Krantz . The Board
found, and the court agreed , that Armato' s foregoing
refusal to bargain was unlawful , and that a unilateral
wage increase , granted about 6 months later , also violated
the Act.
Here, on April 11, when Respondent rejected the
Union 's first bargaining request, Respondent had only two
employees at the instant plant , both former production
employees of National." From April 28 to May 12,
during which period the Union ' s second request was
received , Respondent had only six unit employees, of
whom five were former ' employees of National.
Furthermore, it is undisputed that 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 ingredients, except that paper has been
substituted for rags, due to the disrepair of the rag -beating
machine . Although there was a complete change in higher
management , front line supervision remained the same.
No persuasive reason appears for deeming the case at
bar distinguishable from Armato. While , here, at the time
of the abortive May 2 bargaining request , Respondent had
hired only 5 of National' s 10 unit employees , the buyer in
Armato, at the time of the refusal to bargain , had hired
only 5 of the seller 's 25 employees . While the instant unit
complement subsequently increased from 6 to 16, that in
Armato rose from 5 to 25. Here , 6 of the 16 employees in
the ultimate unit complement were former National
employees . In Armato the ratio was 9 out of 25.
In Firchau Logging," a certification was held binding
upon a successor employer , even though he increased the
size of the unit from 43 to 62 , of whom only 20 were
former employees of the predecessor.
"Federal Electric Corporation, supra
"See Celanese Corporation ofAmerica, 95 NLRB 664, 672.
"Krantz' normal unit complement numbered 25.
"Respondent assigned them to " watchman" duties There is no evidence
nor contention that their duties were such as to require their exclusion
from the unit as guards.
"There was some testimony by McInerney concerning a change by
Respondent in "specifications ," but there was no evidence as to the nature
or significance of such change
"Firchau Logging Company. Inc, 126 NLRB 1215.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While there is no evidence that any of the new
complement were Union adherents, there is no evidence
that they were not, and, even if this were a case for
applying the "rebuttable presumption rule,"'r the burden
would be on Respondent to show loss of majority status.
As already explained, there is an even heavier burden on a
respondent in that regard, where, as here, he challenges
the validity of a union's certification during the
certification year.
It is, accordingly, found that, at least since May 3,"
Respondent has refused to recognize and bargain with the
Union, in violation of Section 8(a)(5) and (1) of the Act.
It is also found that since May 3, Respondent has
unilaterally changed wage rates, hours of work, and the
group insurance plan covering the instant employees," and
that Respondent thereby additionally violated Section
8(a)(5) and (1) of the Act.
IV. THE REMEDY
It having been found that Respondent violated Section
8(aX5) and (1) of the Act, it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
It has been found that Respondent refused to bargain
with the Union, which represented a majority of the
employees in an appropriate unit. Accordingly, it will be
recommended that Respondent be ordered to bargain,
upon request, with the Union as the exclusive
representative of the employees in the appropriate unit.
CONCLUSIONS OF LAW
1. All production and maintenance employees at
Respondent's Miami, Florida, plant, including shipping,
receiving and warehouse employees, but excluding all
office clerks, guards, professional employees, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. At all times here material, the Union has been, and
still is, the exclusive representative of the employees in the
aforesaid unit for the purposes of collective bargaining,
within the meaning of Section 9(a) of the Act.
3. By refusing since May 3,1968, to bargain
collectively with the Union as the exclusive representative
of its employees in an appropriate unit, and by effecting
unilateral changes in wages, hours and employee insurance
benefits, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(aX5) and (1) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing
findings of fact and conclusions of law, it is recommended
that Respondent, Lloyd A. Fry Roofing Co., Inc., Miami,
Florida, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain concerning rates of pay, wages,
hours of employment, or other conditions of employment,
with Retail, Wholesale and Department Store Union,
Local 885, AFL-CIO, as the exclusive representative of all
production and maintenance employees in its Miami,
Florida, plant, including shipping, receiving, and
warehouse, employees, but excluding all office clerks,
professional employees, guards, and supervisors as defined
in the Act.
(b) Changing the wages, hours, or other conditions of
work, of its employees without consulting their statutory
representative.
(c) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist the
above-named Union, or any other labor organization, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
Retail, Wholesale and Department Store Union, Local
885, AFL-CIO, as the exclusive representative of all
employees of Respondent in the unit described above, with
respect to rates of pay, wages , hours of employment or
other conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement.
(b) Post at its plant in Miami, Florida, copies of the
attached notice marked "Appendix."" Copies of said
notice, to be furnished by the Regional Director for
Region 12, shall, after being duly signed by Respondent's
representative, be posted by Respondent immediately upon
receipt thereof, and maintained by it for a period of at
least 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered, by any other material.
(c) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
herewith."
"In the event that this Recommended Order is adopted by the Board,
the words " a Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner" in the notice . In the further event
that the Board's Order is enforced by a decree of a United States Court of
Appeals, the words "a Decree of the United States Court of Appeals
Enforcing an Order" shall be substituted for the words " a Decision and
Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read- "Notify said Regional Director, in
writing , within 10 days from the date of this Order what stops Respondent
has taken to comply herewith "
"See fn . 12, above.
"That is the presumptive date of receipt of the Union ' s May 2 letter. In
view of this finding , no useful purpose would be served by passing on the
legality of the refusal to bargain on April 11, when there were only two
unit employees in the plant.
"Changes in wage rates were made as late as July 15. Work shifts were
extended to 10 hours from 8 hours during the week of May 12-19
(G.C.Exh. 7 (f) ). Respondent's insurance plan did not become effective as
to any employee until 90 days after hire.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
LLOYD A. FRY ROOFING CO.
WE WILL bargain in good faith, upon request with
Retail, Wholesale and Department Store Union, Local
885, AFL-CIO, as the exclusive, representative of all
employees in the bargaining unit described below, in
respect to rates of pay, wages, hours of employment, or
other conditions of employment, and, if an
understanding is reached, embody it in a signed
agreement. The bargaining unit is:
All production and maintenance employees at our
Miami, Florida, plant, including shipping, receiving,
and warehouse, employees, but excluding office clerks,
guards, professional employees, and supervisors as
defined in the Act.
WE WILL NOT change the wages, hours of work, or
other conditions of employment without consulting that
union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce, our employees, in the exercise
of their right to self-organization, to form, join, or
assist, Retail, Wholesale and Department Store Union,
Local 885, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their
own choosing and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities.
Dated By
LLOYD A. FRY ROOFING
Co., INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, Room 826
Federal Office Building 51 SW. First Avenue , Miami,
Florida 33130 , Telephone 813-228-7711, Extension 257.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
SIDNEY SHERMAN, Trial Examiner: On October 22,
1968, this Examiner issued a Decision herein , finding that,
by refusing since May 3, to bargain with the Union as the
representative of its production and maintenance
employees at its felt paper plant in Miami , Florida, and
by unilaterally changing certain terms of employment of
such employees, Respondent violated Section 8 (a)(5) and
(1) of the Act.
In preparing that Decision , this Examiner had before
him the brief of the General Counsel but not that of
Respondent. On October 29, the Board through its acting
executive secretary issued an order reciting that
Respondent had filed a timely brief, which through
inadvertence "was not brought to the attention of the
Trial Examiner."' The Board, therefore, ordered (1) that
this proceeding be remanded to this Examiner for
consideration of Respondent's brief, and for
reconsideration of the Decision herein in the light of such
brief, and (2) that a Supplemental Decision be prepared,
containing such resolutions , findings , conclusions, and
recommendations as are deemed to be necessary after
giving due consideration to such brief. A copy of
1029
Respondent's brief accompanied this order.
Pursuant to the foregoing order, this Examiner has
reviewed that brief, and, in the light of such review,
adopts the additional findings, conclusions, and
recommendations next set forth.
As stated in the original Decision herein, the basic issue
presented by the record is whether Respondent was bound
by the certification of the Union as the representative of
the production and maintenance employees of
Respondent's predecessor, National Felt and Paper
Corporation (hereinafter called National), which
certification was issued on January 5, 1968, less than 4
months before Respondent's admitted refusal (on May 3)
to honor that certification, and less than a year before
various unilateral changes effected by Respondent in the
terms of employment at its Miami plant.
In its brief Respondent does not point to any evidence
in the record which requires any material amendment of
the findings in the Decision herein as to the events leading
up to its refusal to recognize the Union,2 and as to its
unilateral changes in the terms of employment of its
Miami employees. Respondent's brief does, however, cite
a number of cases, and presents some contentions, that
were not dealt with in the original Decision herein.
Discussion thereof follows.
1. The "unusual circumstances" issue
As stated in the original Decision herein , since we are
dealing here with a certification less than 1 -year old, the
starting point of any discussion of the applicable law is
the Court' s holding in Ray Brooks v. N.L.R. B., 348 U.S.
96, that such a certification is defeasible only by a
showing of "unusual circumstances"; and, it is well settled
that a mere change in the identity of the employer does
not constitute such an unusual circumstance (nor does a
change in the size of the unit nor proof of the certified
union 's actual loss of majority status).
It was also stated in that Decision that this Examiner
did not deem to be controlling herein cases where a
union's claim to recognition by a successor employer
rested not on a current certification but on a stale
certification (as in Thomas Cadillac , Inc., 170 NLRB No.
92) or on voluntary recognition by the predecessor (as in
Northwestern Galvanizing Co., 168 NLRB No. 6), since
in such cases the Ray Brooks "unusual circumstances"
rule does not apply .' For like reasons , I do not deem
' Apparently , this was due to a clerical error by Board personnel.
'It may be appropriate, however , to take this opportunity to correct a
minor inaccuracy in fn . 5 of the original Decision by substituting "14" for
" l2" in the second line of that footnote.
Respondent's brief accurately states that Respondent did not take over
any of its predecessor's accounts receivable debts , liabilities, trademarks or
tradenames . While the original Decision herein was silent on this point, the
ultimate result therein was reached with full awareness of the facts in that
regard.
'As noted in that Decision, the test applicable generally to the
determination of such a union's continuing majority status is the less
rigorous "rebuttable presumption" rule laid down in Celanese Corporation
of America, 95 NLRB 664, 672. Under that rule, proof that the Union had
lost its majority status or that the employer in good faith believed such to
be the case would suffice to overcome the presumption arising from a stale
certification or prior recognition.
Reference was made , also, in the original Decision herein to Federal
Electric Corporation, 167 NLRB No. 63, which did involve a current
certification , but was deemed distinguishable from the instant case because
of the merger of the certified unit into an existing, certified unit covering
the successor's employees For a further discussion of this distinction, see
the text below.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apposite certain other cases cited in Respondent ' s brief,
where the union had not been certified but based its
recognition claim solely on the fact that it was a party to
an unexpired contract with the predecessor.'
In its brief, Respondent does cite two cases, not
heretofore considered , which involved the question of the
binding effect of a current certification on a successor
employer . These are the Alamo ' and the Stepp 's' cases. In
both these cases the Board had found that the successor
was bound by the certification , relying in the Stepp's case
on the court decision in the Armato case,7 which was
discussed at some length in the original Decision herein.
However , in both Alamo and Stepp 's the Court refused
enforcement , holding that the successor was not bound.
There is, thus, presented the question whether the Board
will in the instant case adhere to Armato and related
cases, or will defer to the Court' s ruling in Alamo, since
the case at bar arises in the same circuit . It may be
pointed out, however , that in both Alamo and Stepp's the
courts relied in varying degrees on a factor or factors not
here present . In Alamo , in addition to noting certain
changes in the successor' s method of operation and in the
composition of the unit , some of which changes have no
counterpart in the instant case , the court emphasized the
fact that , as shown by the record , none of the employees
who had voted for the union was in the employ of the
successor at the time of the bargaining request .' So, in
Stepp 's, the court relied largely on the fact that at the
time of the bargaining request only three of the
successor ' s eight unit employees were former employees of
the predecessor . However , here , at the time of the crucial
May 2 bargaining request virtually all of Respondent's
unit employees were former employees of National, and,
while there is no evidence as to how they voted in the
election , there is no basis for inferring that a majority of
them were opposed to the Union . In fact , if any inference
is permissible , it is that they favored the Union in the
same ratio as the election result.'
As I am , therefore , not persuaded that the instant case
is indistinguishable from Alamo (or Stepp 's) and , since, in
any event , the Board has indicated that , pending
resolution of the matter by the Supreme Court, it will not
deem itself bound to acquiesce in the views of an appeals
court which conflict with Board precedent, even in a case
which arises within the geographical jurisdiction of that
court ,'- the instant contention is rejected.
2. The "accretion" issue
As already noted ," in the Federal Electric case , supra,
the Board ruled that a successor was not bound even by a
'Apex Record Corp.. 162 NLRB No. 31, and Tallakason Ford, Inc, 171
NLRB No. 67. In both those cases , it was clear from the record that after
the sale the union no longer represented a majority of the employees. Since
the presumption of majority status arising from past recognition of the
union by the predecessor was thus rebutted (see preceding footnote), that
circumstance was, in itself, sufficient ground for the Board 's finding in
those cases that the successor employer was not required to deal with the
union.
'N.L R.B v. Alamo White Truck Service, Inc, 273 F 2d 238 (C.A. 5)
'N.L.R.B. v. John Stepp's Friendly Ford, 338 F.2d 833 (C.A 9).
'N.L.R.B v. Armato, et al , 199 F.2d 800 (C.A. 7), enfg. 97 NLRB 971.
'While one may well question the validity of any reliance on this factor
in the case of a current certification, the fact remains that the courts did
rely thereon , and might have reached a different result absent that factor.
'As already related , the election resulted in a vote of 19 to 6 in favor of
the Union.
"Superior Derrick Corporation, 122 NLRB 52.
current certification of a union for the predecessor's
employees , where the certified unit had lost its identity
through accretion to, or merger with , an existing unit of
the successor's employees . It would seem that implicit in
such ruling is a finding that such obliteration of the
identity of the predecessor ' s unit constitutes such an
unusual circumstance , within the meaning of Ray Brooks,
supra, as to invalidate a current certification . Relying
inter alia , on Federal Electric , Respondent contends in its
brief that the Board should treat the take --over of
equipment and personnel in this case as resulting merely
in an accretion to Respondent ' s other operations.
However , in Federal Electric there was a physical
commingling of the predecessor' s employees with
employees who were already working for the successor at
the same location (and who were already covered by a
contract between the successor and a different , certified
union ). In the other case cited by Respondent on this
point," the Board found that the purchase was part of an
expansion program , which contemplated the removal of
the purchased equipment to the buyer 's premises , where it
and the operators thereof would be commingled with the
buyer' s existing equipment and personnel . The Board
concluded from this that the acquired facility was merely
an accretion to the buyer 's existing operations , and that
the buyer was therefore not required to recognize the
union which had represented the employees before the
sale.'
Here , however , Respondent has no other operations at
the same location as the instant plant, and there is no
evidence nor contention that it has removed , or plans to
remove, any part of the Miami equipment or personnel to
any of its other plants . Respondent does contend,
however, that the Miami plant should be considered an
accretion to its plant in Fort Lauderdale , Florida , because
that plant receives the entire output of the Miami
operation" performing certain finishing operations thereon
to produce asphalt shingles. However, it is well-settled
that a single-plant unit is presumptively appropriate, and,
here, the factor of geographic separation , as well as the
separate bargaining history at Miami, albeit short-lived,"
militates in favor of that presumption ; and, there is, in
any event , insufficient evidence in the record with regard
to other, relevant factors , such as degree of local
antonomy in labor relations matters" and frequency of
interchange of employees" to warrant a finding , contrary
"See fn 3, supra
"Northwestern Galvanizing Corp., 168 NLRB No 6.
"Another circumstance in that case , which may have influenced the
result, was that the employees taken over by the buyer represented only 10
percent of the seller' s employees in the unit covered by a contract between
it and the union , and that the union continued to represent the remaining
90 percent after the sale. Thus, had the Board found the buyer to be bound
by the seller ' s recognition of the union , it would in effect , be according
bargaining rights to the union in two , separate units under different
employers on the basis of its prior status in a single unit lunited to the
employees of one employer.
"This was true , also, of the felt paper produced by National before the
sale.
"As related in the original Decision , there was some bargaining between
National and the union after the certification As for the bargaining
history at Fort Lauderdale , the Board's records show that in 1957 a union
was certified to represent Respondent 's employees there in a separate unit.
118 NLRB 312.
"There is no evidence that the plant manager at Fort Lauderdale has
any authority over the Miami plant manager , or that the two plants jointly
constitute a separate administrative segment of Respondent 's operations.
"There is no evidence of any transfers of unit personnel between the two
plants.
LLOYD A. FRY ROOFING CO. 1031
to such presumption , that only a unit comprising both
plants would be appropriate.
Accordingly, no merit is found in the "accretion"
contention.
3. The "split unit" issue
As related in the original Decision , when , on April 10,
1968, it transferred to Respondent its felt paper mill,
National retained certain other facitities that had been
used in connection with another , discontinued operation
- the manufacture of tissue paper . Since that operation
was not discontinued until shortly after the Board election
herein," and the employees engaged in that operation
voted in the election , it would seem that the instant
certification properly covered such employees as well as
those engaged in making felt paper.
Asserting that , so far as appears from the record, there
is nothing to prevent reactivation of the tissue paper
operation by National (or a bona fide purchaser),
Respondent raises the question whether in that case the
Union would be entitled to represent the tissue paper
employees as well as the felt paper employees, even
though they would then have different employers." The
short answer to this is that any determination of the
legality of Respondent ' s past conduct must necessarily be
based on the situation shown by the record to have existed
as of the time of such conduct . As of the date of the
violations found herein , National's tissue paper operation
had been shut down for at least 4 months, and for about 8
months as of the date of the instant hearing. It is
established law that , once a particular state of affairs is
shown to exist , it will be presumed to continue. There was
no evidence here as to National's future plans or any
other evidence that would tend to rebut the presumption
that the tissue paper operation will remain inactive.
Accordingly , on the present record , the contingency
suggested by Respondent and the problems that may flow
therefrom have no relevance to a determination of
Respondent' s liability."
CONCLUSION
For all the foregoing reasons , this Examiner affirms all
the findings of fact," conclusions of law, and
recommendations contained in his original Decision.
"The election was held on December 27, 1967. The tissue paper
operation was shut down between that date and January 5, when the
certification issued.
"Compare the situation in National Galvanizing , as discussed in In. 13,
above.
"Should the tissue paper operation be reactivated, there is an
appropriate procedure for seeking reconsideration by the Board, in the
light of such circumstance , of any action it may have taken herein See
Section 102 .48(d) of the Board's Rules and Regulations, Series 8, as
amended
"Such findings are, subject , however, to the modification and additions
noted in fn . 2, above, and any other findings of fact contained herein which
clarify , or elaborate upon , such prior findings.