Lloyd Flanders

National Labor Relations Board - Board Decisions

Jul 18, 1986

280 N.L.R.B. 1216 (N.L.R.B. 1986)

1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bay Breeze Industries, Inc., d/b/a Lloyd Flanders
and International Union, United Automobile,
Aerospace and Agricultural Implement Workers
of America (UAW), and its Local 413. Case 30-
CA-7740
18 July 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 29 January 1985 Administrative Law Judge
Burton S. Kolko issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The Charging Party filed an answering 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.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Bay Breeze
Industries, Inc., d/b/a Lloyd Flanders, Menominee,
Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
DECISION
BURTON S . KoLxo, Administrative Law Judge. The
General Counsel's complaint ' alleges that Bay Breeze In-
dustries, Inc., d/b/a Lloyd Flanders has failed or refused
to bargain with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), and its Local 413, in violation of Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act.
The complaint's allegations are predicated on the fact
that the Union had been the exclusive collective -bargain-
ing representative of the production and maintenance
employees at the Menominee, Michigan facility of the
Heywood-Wakefield Company when that company went
bankrupt in 1982. The General Counsel alleges that Bay
Breeze became a successor to Heywood-Wakefield so
that when the Union on April 21, 1983, requested recog-
nition as the exclusive representative of Bay Breeze's
production and maintenance employees, Bay Breeze had
a duty to bargain with the Union under Section 8(a)(5)
of the Act.
In its answer to the complaint, Bay Breeze denies that
it committed the alleged violations , specifically denying
' The charge was filed on April 25, 1983, and the complaint issued on
October 13, 1983. The hearing began on February 27, 1984, and ended on
May 17, 1984. Bnefs from the General Counsel, the Umon, and Respond-
ent were filed on August 3, 1984. Respondent also filed a motion to cor-
rect the transcript, which is granted.
that it was a successor to the bankrupt Heywood-Wake-
field.
I find that Bay Breeze was a successor corporation to
the Heywood-Wakefield Company at the Menominee fa-
cility, and I grant the relief requested in the General
Counsel 's complaint , viz, that Bay Breeze be ordered (1)
to recognize the Union as the exclusive collective-bar-
gaining agent for its production and maintenance em-
ployees, (2) to bargain immediately with the Union, and
(3) to post a notice to these effects.
Facts
Heywood-Wakefield , founded in 1826, had long been a
manufacturer of furniture of wood and metal compo-
nents . Since 1980 it produced at its Menominee plant
several lines of outdoor furniture , office and institutional
furniture, movable and fixed school furniture, and
theater/auditorium seating.
To produce these items Heywood -Wakefield operated
its Menominee, Michigan facility on a year-round basis,
producing its outdoor furniture lines from September
through May, and its theater and school lines (otherwise
known as the Public Seating Division) during the
summer months. As the volume of work on one seasonal
line declined, qualified senior employees would bump
onto jobs involving a different seasonal line to maintain
steady work.
In March 1982 Heywood-Wakefield was forced to
seek reorganization under Chapter XI of the Bankruptcy
Code . Thereafter , a "team" was formed to consolidate
operations at Menominee on a more efficient basis. One
member of this team was John Berry, Heywood-Wake-
field's manager for industrial engineering , later the vice
president for manufacturing of Bay Breeze . After a con-
solidation plan was formed , Heywood-Wakefield's em-
ployee relations manager (and later Bay Breeze's vice
president for finance), James Jansky, sent a letter to the
Union stating that "[d]ue to anticipated levels of sales,
changes in produce lines, energy costs, etc. we will be
consolidating all manufacturing operations into our two
north buildings . This will cause the closing of certain de-
partments and the consolidation of other departments."
Charging Party's Exhibit 21. In this June 23, 1982 letter
Jansky announced the structure of the operations in Me-
nominee for the next season . This included consolidating
various departments relating to the outdoor furniture
products into eight separate departments and consolidat-
ing the work related to nonoutdoor furniture into a
single "diversified products department . This department
will be composed of all occupations that relate to any
contract , shcool or theater seating we may manufacture.
It will cover such jobs as upholstery sewing , umbrella
assembly , PSD assembly and Packing, etc."
In a newsletter to employees dated July 13, 1982, fur-
ther details of the scaled-down operations were given.
After reiterating the changes set forth in the June 23
letter to the Union, the newsletter stated that "[w]e
expect our operation to be somewhat smaller than in the
past . The anticipated level of factory employees will
probably be under 150 persons for the next season. De-
pending on retirements and voluntary terminations, em-
280 NLRB No. 133
LLOYD FLANDERS
ployees with less than 4 years of seniority will probably
not be recalled for the next season. Many other employ-
ees will have to make a change in occupation and exer-
cise their bumping rights to secure a job." The letter
went on to state that "[a]t the present time we are wind-
ing down the 1981-1982 outdoor furniture season. We
should have all outdoor manufacturing completed within
the next week. Manufacturing for PSD, School and Con-
tract furniture lines will also be curtailed to accommo-
date for the movement of equipment and machinery. In
addition to the maintenance crew some employees will
be needed for shipping and various other operations
throughout the summer. There will not be a general
plant closing as stated in the paper. Full operations will
start sometime after Labor Day. The exact date will
depend on how quickly we can get the equipment and
machinery in place." Charging Party's Exhibit 22.
The effect was a retrenchment of activity that would
mean that there would be only very limited production
of Public Seating Division work, and even that work
was conditioned on the receipt from the customer of a
50-percent deposit-a radical change in the PSD's manu-
facturing policy. This was announced on July 28, 1982,
by Heywood-Wakefield's president to a meeting of the
Company's creditors' committee. At this meeting it was
also announced that the Company's Newport, Tennessee
plant, which was devoted solely to Public Seating Divi-
sion work, would not reopen and was up for sale. As for
the Menominee facility, the outdoor furniture would be
the mainstay, but would be limited to two lines.
Indeed, it began to appear that not only would the
outdoor furniture line be the mainstay of Heywood-
Wakefield's shrunken operation, it would be the only op-
eration. For during the summer of 1982 as the Company
retreated from occupying the full expanse of the Menom-
inee plant and consolidated its production into one end
of one building, all the Public Seating Division machin-
ery was unplugged and left unmoved, although those
machines that were moved and reconnected were for
outdoor furniture.2
But Heywood-Wakefield never realized its plans for a
reduced operation focused on outdoor furniture. On Sep-
tember 17, 1982, its lender refused to extend a due loan.
Heywood-Wakefield announced its closing that day.
In December 1982 the newly formed Bay Breeze In-
dustries purchased Heywood-Wakefield's operating assets
and plant in Menominee, and the production of outdoor
furniture began the next month, January 1983. In April
1983, when Bay Breeze had reached an employee com-
plement of 97, of which the Union counted 78 as former
bargaining unit employees of Heywood-Wakefield, the
Union by letter requested recognition as the employees'
bargaining representative. Bay Breeze refused this re-
quest, claiming that it was not a successor to Heywood-
Wakefield.3
Y Berry testified that there was some commonality of function (outdoor
and public seating) to some of the moved machines, "but we were not
going to move the large presses in any event for PSD ." Tr. 1155, see also
Tr. 1291.
s The Union's relationship with Heywood-Wakefield went back to
May 1943, when it was certified as the exclusive collective -bargaining
representative for the production and maintenance employees of Hey-
1217
Discussion
The "successor employer" issue has been recently
summarized by the United States Court of Appeals for
the Ninth Circuit in Premium Foods v. NLRB, 709 F.2d
623 (1984):
A new employer who conducts essentially the
same business as the former employer , and who
hires former employees of his predecessor as a ma-
jority of his work force is considered a successor
employer. Where a union has been recognized ...
as the representative of the employees of the prede-
cessor, and his successor hires a majority of his
workers from those employees , a presumption arises
that the successor's employees also support the
union. The basic rationale is that a mere change in
ownership, without an essential change in working
conditions, would not be likely to change employee
attitudes toward representation. See NLRB v. Burns
International Security Services, Inc., 406 U.S. 272,
278-279, 92 S.Ct. 1571, 1577, 32 L.Ed. 2d 61, 80
LRRM 2225 (1972).... [Emphasis in original.]
A similar approach has been taken by the Court of Ap-
peals for the Seventh Circuit, see Zim 's Foodliner, Inc. v.
NLRB, 495 F.2d 1131 (1974); by the Court of Appeals
for the Sixth Circuit, in which this case arises, see Service
Employees Local 47 v. Cleveland Tower, 606 F.2d 684
(1979); and by the Board, see Jeffries Lithograph Co., 265
NLRB 1499 (1982); M & H Machine Co., 243 NLRB 817
(1979); Border Steel Rolling Mills, 204 NLRB 814 (1973);
and Lincoln Private Police, 189 NLRB 1717 (1970).' What
we must do to deal with the issue of successorship raised
by Bay Breeze's denial is to ascertain whether (1) Bay
Breeze is a new employer , (2) it conducts essentially the
same business as Heywood-Wakefield at Menominee,
Michigan, (3) it has hired former Heywood-Wakefield
employees as a majority of its work force, and (4) the
Union had been recognized as the representative of Hey-
wood-Wakefield's employees.5
1. Is Bay Breeze a new employer?
Bay Breeze was incorporated in Michigan on Novem-
ber 15, 1982, and on December 29, 1982, it purchased
from Heywood-Wakefield its Menominee, Michigan real
property with improvements; all the equipment, machin-
ery, furniture, furnishings, and fixtures located at the Me-
nominee property; and all inventory of raw materials,
work in process, and finished goods at the Menominee
property, except "Bright" inventory (outdoor furniture
of a line taken over by other former Heywood-Wakefield
managers). Among executory contracts excluded from
wood-Wakefield. Since then a series of collective-bargaining agreements
has existed, the most recent one spanning the period February 1982 to
June 1983.
* See also cases cited in fn. 9, infra.
a The last question has been answered, see fn. 3, supra. As for the pe-
nultimate question, the parties agree that a majority of Bay Breeze's work
force is comprised of Heywood-Wakefield alumni. They differ only on
whether it is a 70- or 80-percent majority.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the court-approved sale was the collective-bargaining
agreement with the Union.
Bay Breeze has principally five stockholders : Flanders
Industries, Inc.; John Berry ; Eugene Davenport ; Jeffrey
Starks; and James Jansky . The four individuals own one-
third of the stock of Bay Breeze , while Flanders Indus-
tries, an Arkansas corporation , owns the remaining two-
thirds. The officers of Bay Breeze are Dudley Flanders,
president; Jeffrey Starks , treasurer ; Eugene Davenport,
vice president of materials ; John Berry , vice president of
manufacturing ; Michael Kinard , vice president of sales;
and James Jansky , vice president of finance and adminis-
tration.
The board of directors of Bay Breeze is chaired by
Don Flanders , and the board members include Jansky,
Berry, Davenport, Starks, Kinard , and Dudley Flanders.
The two Flanders and Kinard had no previous associa-
tion with Heywood-Wakefield . Jansky had been director
of employee relations for Heywood -Wakefield at Me-
nominee and Newport . Berry was hired in March 1982
by Heywood-Wakefield as a consultant and as part of the
team that evaluated the company 's need for reducing its
operation and worked at the company until it closed.
Davenport had been purchasing manager for Heywood-
Wakefield . Starks had been the accounting manager for
Heywood-Wakefield since 1980.
In these circumstances, it is clear that Bay Breeze is a
new employer. It clearly represents an attempt by some
former middle managers, and a consultant who helped
prepare the operational plan that was hoped to stave off
collapse of Heywood -Wakefield , to implement that plan,
aided by the outside capital from Flanders.
2. Is Bay Breeze conducting essentially the same
business as did Heywood -Wakefield?
The business of Heywood-Wakefield was the produc-
tion at Menominee of metal-framed outdoor and institu-
tional furniture that was manufactured from steel , alumi-
num, plastic, fabric, and some wood ; also the production
at Menominee and Newport of fixed and movable school
seating made of steel , plated or finished with chrome,
and finished by the addition of plastic , fabric, or wood.
The business of Bay Breeze is more limited , being the
production at Menominee of metal-framed outdoor furni-
ture from steel , aluminum , plastic, fabric, and some
wood . When Bay Breeze commenced production in Jan-
uary 1983, it produced "basically one outdoor product,
trademark `perma wicker,' which is a wicker line of funi-
ture similar to Heywood-Wakefield's 'Fibrecraft' outdoor
line."6 Thus, Bay Breeze is continuing to produce a line
of general product-outdoor furniture-that was pro-
duced by Heywood-Wakefield , which bears Heywood-
Wakefield's "Lloyd" trademark, and which was the
mainstay of Heywood-Wakefield 's operation. As the
Charging Party's exhibits show , the outdoor furniture
line accounted for the bulk of Heywood-Wakefield's
sales before its demise . Charging Party's Exhibit 102,
which is a monthly budget for Heywood -Wakefield con-
taining totals for the year ending December 31, 1981 (the
last full year of Heywood-Wakefield's operations), shows
R. Br. 9.
that outdoor furniture constituted $ 10,814,000 of sales
out of a sales total of $16,070,000. Charging Party's Ex-
hibit 104, a similar budget, indicates that for 1981 the
sales of outdoor furniture made in Menominee totaled
$13,360,000 out of a total projected sales for all Menomi-
nee-made products of $16,760,000.
Although the outdoor line did not always account for
so high a proportion of production and sales at the Me-
nominee plant of Heywood-Wakefield , the end of the
1970s and the beginning of the 1980s showed continuing
importance to the outdoor furniture line and correlative
diminution of the public seating and other lines . Charg-
ing Party's Exhibit 233, which shows total product
orders for 1979 and 1980 , indicates that in 1980 orders of
products from the public seating division decreased by
$1.2 million from 1979, while orders from outdoor furni-
ture increased by over $1 .1 million. Even in 1979, out-
door furniture accounted for 59 percent of sales, increas-
ing to 68 percent in 1980.
By the fatal year 1982 , it was clear that outdoor furni-
ture not only dominated Heywood-Wakefield's present,
it was the key to its future . In that year, a short one be-
cause of the bankruptcy that occurred in the third quar-
ter, total sales were as follows : school furniture $389,362;
all theater and auditorium $613,323; and outdoor
$3,226,774 or 76 percent. Charging Party's Exhibits 339-
340. It comes as no surprise that during 1982 the ratio of
labor costs for producing outdoor furniture to total pro-
duction labor costs was very high, averaging 77 percent
and never dropping below 62 percent , the latter figure
being for June , which is a declining month for the pro-
duction of outdoor furniture.
The labor force that was the occasion of these produc-
tion costs was the same albeit shrunken group of bargain-
ing unit employees that later found itself producing out-
door furniture for Bay Breeze . While Heywood-Wake-
field had at its peak in January 1981, 290 nonsupervisory
employees spread among over 215 bargaining unit job
classifications, Bay Breeze employed close to 100 pro-
duction and maintenance employees as of April 1983.
Charging Party's Exhibit 4. Of that number, 70 had pre-
viously been employed by Heywood-Wakefield. This is
not in dispute , since Bay Breeze does not question that at
least 70 percent of the production employees were from
the former Heywood-Wakefield bargaining unit. Al-
though the Union and the General Counsel opt for an
even higher percentage-80-the difference involves an
issue of whether persons perform some watchman type
duties, an issue that need not be decided since it is clear
that "a major factor-majority status-has been estab-
lished." (G.C. Br. 11.)
On the face of it, we have so far Bay Breeze using a
majority of former Heywood-Wakefield employees in its
work force to manufacture a line of products that had
constituted the major product line of Heywood-Wake-
field. It would seem so far that Bay Breeze is in essential-
ly the same business as was Heywood-Wakefield. But
Respondent argues that there is more to the story than
this, and we next deal with these arguments.
a. Employee complement : Bay Breeze argues that it em-
ploys far fewer employees who work in far fewer job
LLOYD FLANDERS 1219
classifications and under different supervision . In this it is
right, but the differences are without material signifi-
cance. Prior to 1982, Heywood-Wakefield normally em-
ployed approximately 250 workers . Beginning in January
of 1982 until the summer shutdown that it effected in
June, it employed a monthly average of less than 150
workers . By April 1983 , when the Union sought recogni-
tion by Bay Breeze , close to 100 workers were on the
job.
Bay Breeze argues for a point of comparison that
would weigh 250 versus 100 workers , while the Union
argues that because it was Heywood-Wakefield that sub-
stantially trimmed its work force, the point of compari-
son with Bay Breeze 's 100 employees should be 150 em-
ployees. I find that the more apt comparison is with the
slimmed-down operation, because it is clear that Hey-
wood-Wakefield, had it remained viable, would have op-
erated in the consolidated mode envisioned by Berry.
But even accepting arguendo Bay Breeze 's argument
that the 100 employees of Bay Breeze are no match for
successorship purposes with Heywood-Wakefield's 250
employees , the argument carries no weight. For "mere
diminution in the employee complement of the bargain-
ing unit does not relieve the successor of his duty to bar-
gain. Rohlik, Inc., 145 NLRB 1236 (1964) (successor's
work force one-third as large as predecessor 's)." Zim's
Foodliner, supra, 495 F.2d at 1141. In short, as the court
observed, "the Board may treat a much -reduced bargain-
ing unit as a miniature of the former unit ." Id. Of course
here the Bay Breeze unit is not a perfect miniature of
that at Heywood-Wakefield since "only" 70 to 80 per-
cent of the Bay Breeze unit are former Heywood-Wake-
field employees rather than 100 percent, but so long as
the predecessor employees at Bay Breeze are not less
than a majority of the employees in the successor unit,
Bay Breeze may properly be considered to be a succes-
sor employer. NLRB v. Armato, 199 F.2d 800 (7th Cir.
1952).
Nor do I find it of much moment that there are re-
duced job classifications and somewhat different supervi-
sion . The reduced job classifications-from 215 to 50-
are used by Bay Breeze to show that it is a different op-
eration from Heywood-Wakefield . But the premise of
this argument is faulty, i.e., that the substantial decline in
job classifications and functions is due to the fact that a
"majority of [Heywood-Wakefield's] labor, equipment
and machinery was devoted to the public seating end of
its business [Tr. 58 [testimony of Jansky]]." (R. Br. 22.)
Jansky's testimony is contradicted by the Heywood-
Wakefield documents , obtained by the Union during the
discovery process that caused the lengthy delay in the
hearing, and which, as exhibits of the Charging Party,
are references above as indicating that in the last several
years the majority of the viable business of Heywood-
Wakefield was in the Lloyd outdoor furniture line. In
any event, as the testimony of the various employee wit-
nesses indicates, employees commonly bumped between
jobs involving public seating work and outdoor furniture
work . Many of the skills involved in these jobs are the
same, which was understood by Respondent's witness
Berry , who was instrumental at Heywood -Wakefield in
engineering the concentration of the outdoor furniture
line, when he testified that many of the Heywood-Wake-
field employees were able to perform many different
jobs, and that the people who operated many of the ma-
chines at Heywood-Wakefield were also qualified to op-
erate the machines at Bay Breeze . Granted, the Bay
Breeze line of outdoor furniture was improved over the
Heywood-Wakefield products in these respects: chlorina-
tion protection , seals at the ends of tubing , drain holes in
the tubing, special filling in the tubing , and a new line of
smaller sized furniture for juveniles . But Berry testified'
that no new skills or machinery were needed to incorpo-
rate these changes, and Jansky testified that the ma-
chines, tools , and skills used at Bay Breeze were mostly
the same that had been used at Heywood -Wakefield. In
the main, those employees of Bay Breeze who had
worked for Heywood-Wakefield came back to perform
production work that was not materially different from
what they had left at Heywood-Wakefield when it sus-
pended operations.
Their supervisors were different, and fewer, down
from 15 at Heywood-Wakefield to 8 at Bay Breeze. Of
these eight, only one, Lerrett, had been a supervisor with
Heywood-Wakefield; the rest were former Heywood-
Wakefield employees. This diminution in supervisory
carryover might be more material as a factor indicating
nonsuccessorship if Bay Breeze were making different
products and utilizing different techniques from Hey-
wood-Wakefield. But it is not.
b. Plant: The Heywood-Wakefield complex at Menom-
inee consisted of our parallel , interconnected three-story
buildings, plus a two-story office building, a one-story
building , some annexes, a boilerhouse, and two buildings
across the street. Excepting the latter , which were used
for warehousing and recreating , the buildings were de-
voted to manufacturing.
Bay Breeze purchased the Menominee complex, but
does not use major parts of it . In essence, Bay Breeze
uses two of the four parallel buildings that were used by
Heywood-Wakefield . As it is devoting itself to just one
basic product line the machines that are being used are
fewer, 98 compared to the 438 at Heywood-Wakefield.
Respondent considers this substantial reduction in plant
space and machinery used to be significant evidence that
Bay Breeze is not the successor to Heywood -Wakefield.
But these physical differences-really differences of size
rather than substance-are a distinction without a differ-
ence, for two reasons . First, the buildings that are being
used by Bay Breeze are those to which Heywood-Wake-
field had moved during the summer of 1982 when it was
effecting its plan to phase out of public seating division
9 The thrust of Berry's testimony , which spans pages 1165-1316 of the
transcript , is that Bay Breeze's strength, vis-a-vis, Heywood-Wakefield is
its streamlined operation . Thus, most of the former job classifications
were eliminated or consolidated . Indeed , the typical Bay Breeze employ-
ee is performing a wider scope of functions than he did at Heywood-
Wakefield. But Berry admitted that at Heywood-Wakefield there was
movement of employees by seniority across product lines as production
need demanded, and that this versatility was of importance in hiring the
former Heywood-Wakefield employees at Bay Breeze . Ultimately, Berry
agreed that even for the new line of outdoor furniture , just as for the
basic line that was extended albeit modified from Heywood -Wakefield,
no new production skills were necessary
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work to concentrate on the Lloyd line of outdoor furni-
ture, and just about all the machines that Bay Breeze
now uses are from that consolidation . Thus, from a phys-
ical point, view it is hard to differentiate the Phoenix of
Bay Breeze from the figurative ashes of Heywood-Wake-
field . But, secondly , even if we ignore the consolidation
of operations effected by Heywood-Wakefield so that we
are comparing the much smaller Bay Breeze with the
much larger Heywood-Wakefield, we simply have the
same type of scaled -down operation that passed muster
in Armato, supra, and in Zim 's, supra . We are still left
with the factual conclusion that "[Bay Breeze's] employ-
ees performed essentially the same work, in the same
plant, with the same equipment as before." Premium
Foods v. NLRB, 709 F.2d 623 (9th Cir. 1984).
c. Miscellaneous: Although Bay Breeze advances other
arguments against its alleged successorship , these do not
mitigate against the presumption of continuity of the bar-
gaining relationship enunciated by the Supreme Court in
Burns, supra, and applied by the circuit courts of appeal
and the Board . Thus, it changes nothing by noting that
Bay Breeze markets its outdoor furniture more agressive-
ly than did Heywood-Wakefield, and that 30 percent of
its customers are new customers . Nor is it significant in
the factual circumstances of this case that there was a
hiatus between the termination of Heywood -Wakefield in
September 1982 and the beginning of production by Bay
Breeze in January 1983 . As one commentator has ob-
served, "hiatus" is a factor used by the Board in finding
nonsuccessorship only when the essential indicia already
have eroded a basis for concluding that the presumption
of bargaining continuity applies . 8 Here there is no basis
for concluding that representation by the Union is no
longer desired by the employees of Bay Breeze, who as
former Heywood-Wakefield employees are in the vast
majority at Bay Breeze . These employees drive up to the
same plant that they used to; they work on machines that
they used to work on; they perform tasks at those ma-
chines that they used to; the product that comes off
those machines is of the kind that they are very used to
seeing; they previously worked with people who are
their supervisors ; and they know the company's manag-
ers who were at Heywood-Wakefield. There is no good-
faith doubt advanced by Respondent about why the
Union no longer represents these employees , and there
just is not enough difference between Bay Breeze and
Heywood-Wakefields to overcome the presumption that
"the employees ' desires concerning unionization" are un-
changed.
1 o I conclude that the Union, which has been repre-
senting these employees at this point since 1943, is to be
recognized as the ongoing representative.
° Successor Liability Under the National Labor Relations Act and Title
VII, 54 Tex. Law Rev . 707 fn . 83 (1976).
° In other words , the plant's "operations, as they impinge on union
members, remain essentially the same after the transfer of ownership."
Electrical Workers IUE v. NLRB, 604 F.2d 689, 694 (D.C. Cir. 1979). See
NLRB v. Hudson River Aggregates, 639 F.2d 865 , 869 (2d Cyr. 1981).
10 Ranch-Way, Inc., 183 NLRB 1168 (1970).
CONCLUSIONS OF LAW
1. The Respondent, Bay Breeze Industries , Inc., is an
employer within the meaning of Section 2(2) of the Act,
and is engaging in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. I'
2. The Union, UAW and its Local 413, constitute a
labor organization within the meaning of Section 2(5) of
the Act.
3. The following employees constitute a unit that is ap-
propriate for collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees who are
employed at Bay Breeze's facility in Menominee,
Michigan; excluding office clerical employees, pro-
fessional employees , supervisors, quality control
technicians, engineering technicians, administrative
and management personnel and watchmen.
4. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), and its Local 413, has been and is the represent-
ative of all employees in the above-described appropriate
unit for purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By failing and refusing to recognize and bargain col-
lectively with the Union as the exclusive representative
of all Respondent 's employees in the appropriate unit,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(aX5) and
(1) of the Act.
6. Respondent 's unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed12
ORDER
1. Cease and desist from
(a) Refusing to bargain collectively with International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), and its Local
413 as exclusive representative of the following unit:
All production and maintenance employees who are
employed at Bay Breeze's facility in Menominee,
Michigan, excluding office clerical employees, pro-
fessional employees, supervisors, quality control
technicians, engineering technicians, administrative
and management personnel and watchmen.
11 During the calendar year ending December 31, 1983, Respondent
sold and shipped products valued in excess of $50 ,000 from its Menomi-
nee, Michigan facility directly to places that are outside the State of
Michigan.
11 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-
LLOYD FLANDERS
(b) In any like or related manner interfering with, re-
straining, or coercing 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) On request, bargain with the Union with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment and, if an agreement is reached,
embody it in a signed contract.
(b) Post at its Menominee , Michigan plant copies of
the attached notice marked "Appendix."13 Copies of the
notice, on forms provided by the Regional Director for
Region 30, after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive 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.
'a 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1221
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW),
and its Local 413 as exclusive representative of the fol-
lowing unit:
All production and maintenance employees who are
employed at Bay Breeze's facility in Menominee,
Michigan, excluding office clerical employees, pro-
fessional employees, supervisors, quality control
technicians, engineering technicians, administrative
and management personnel and watchmen.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union with re-
spect to rates of pay, wages, hours, and other terms and
conditions of employment and, if an agreement is
reached, embody the agreement in a signed contract.
BAY BREEZE INDUSTRIES, INC., D/B/A
LLOYD FLANDERS