Miami Industrial Trucks, Inc.

National Labor Relations Board - Board Decisions

Dec 22, 1975

221 N.L.R.B. 1223 (N.L.R.B. 1975)

MIAMI INDUSTRIAL TRUCKS, INC. 1223
Miami Industrial Trucks, Inc. and Bobcat of Dayton,
Inc. and International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, Petitioner. Case 9-AC-55
December 22, 1975
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On April 10, 1975, the Acting Regional Director
for Region 9 issued a Decision and Clarification of
Bargaining Unit' in the above-entitled proceeding in
which he clarified the currently existing bargaining
unit at Miami Industrial Trucks, Inc., to include all
employees, including journeymen, mechanics, and
mechanic-learners, employed by Bobcat of Dayton,
Inc. Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations, Series 8,' as amended, the Employer
filed a timely request for review of the Acting
Regional Director's decision on' the grounds that, in
finding that Miami and Bobcat constitute a single
employer and that the employees of Bobcat consti-
tute an accretion to the existing Miami unit, the
Acting Regional Director departed from officially
reported Board precedent and made findings of fact
which are clearly erroneous on the record.
By telegraphic order dated June 9, 1975, the Board
granted the request for review and requested the
parties to submit briefs relative to the issue of
whether Bobcat is a successor to a portion of Miami's
operations. Thereafter, the Employer and Petitioner
filed briefs on review.
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 entire record in this
proceeding with respect to the issues under review,
including the briefs on review filed by the parties,
and makes the following-findings:
Miami is engaged in the sale and service of
industrial equipment at.its Dayton and Springfield,
Ohio, locations. Prior to the incorporation of Bobcat
in January 1975, Miami was the dealer for two
separate divisions of the Clarke Equipment Compa-
ny: the Industrial Truck and the Melroe divisions .2
In July or September 1974, the 'Melroe division
requested Deuber, the president', and majority stock-
1 The Acting Regional Director treated the petition to amend the
certification as a petition to clarify the unit which the Petitioner currently
represents at Miami.
a The Industrial Truck product line consists primarily of forklift trucks
and the Melroe product line consists of,bucltet or scoop-type trucks and
some agricultural implements.
221 NLRB No. 209
holder of Miami, to establish a separate dealership
for its equipment. Pursuant to this request, Bobcat
was incorporated. Since January 1975, Bobcat 'has
been engaged exclusively in the sale and service of
the ,Melroe line of equipment at its Dayton, Ohio,
location.
Deuber owns 50 percent of the stock of Bobcat. He
is also the president of Bobcat and a member of
Bobcat's board of directors. Chris Fuerst and Ruton
Pettie, both former Miami employees, each owns,25
percent of the remaining stock .of, Bobcat .3 Fuerst is
Bobcat's vice president and service manager. Fuerst
and Pettie manage the day-to-day operations, , of
Bobcat.
Bobcat commenced operations with a - service
department staffed by three service employees who
had previously been employed by Miami. These
employees continued to perform the same basic
functions- for Bobcat that they had previously
performed for Miami. Moreover, they continued to
service the same product line for the same customers.
They also continued to work the same hours and
receive the, same compensation, and fringe benefits.
The Acting Regional Director concluded that
Bobcat and Miami constitute a single employer
because he found there is common ownership and
financial control' of both entities; they are both
located in the same geographic area and perform
essentially the same type of business; and there is
common control over the formulation of labor
relations policies for both. We do not agree.
Contrary to the , Acting Regional Director, the
record does not support the conclusion that there 'is
common control over the formulation of labor
relations policies for both corporations. Specifically,
the record does not reveal that Deuber exercises any
control over Bobcat's labor relations policies. Thus,
though Deuber acts as a member of each corpora-
tion's board of directors and possesses ownership
interests in each corporation, there is no evidence
that he has ever participated in the formulation of
Bobcat's labor relations policies.4 Rather, the record
reveals that Fuerst and Pettie manage the operations
of Bobcat. Deuber's only involvement with'Bobcat is
that Fuerst and Pettie may occasionally solicit his
advice, where his ability and experience may be of
assistance.
The foregoing facts reveal, at most, that Deuber, as
50-percent stockholder, possesses potential, as op-
posed to actual or active, control over the formula-
tion of Bobcat's labor relations. This potential
3 Fuerst had been with Miami for 17-1/2 years and ,at the time he left
Miami he held the position of service manager.,Pettie had been employed as
a salesman with Miami.
4 Deuber maintains no office at Bobcat and he receives no compensation
from Bobcat.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
common control does not, however, establish' that
Miami and Bobcat together constitute, a single
employer.5 Further, as noted by the Acting Regional
Director, Bobcat and Miami operate as separate
legal entities and maintain separate books,' records,
and payrolls. Also, there has been no interchange `of
employees or tools between the two corporations
since' Bobcat commenced operations. In sum, in view
of the foregoing facts; and particularly in view of the
lack of common control over the formulation of the
labor relations, policies of both entities, we conclude
that'Bobcat and Miami are -not a single employer: A
fortiori, ' the Bobcat employees do not constitute an
accretion to the existing Miami unit and the Miami
unit cannot be 'clarified to include the Bobcat
employees.
While the facts do not establish that Bobcat and
Miami constitute a single employer, we find, for the
reasons stated below, that Bobcat is a successor to a
portion `of Miami's business , consisting of the Melroe
product line.
The keystone in determining successorship is
whether, there is substantial continuity of the employ-
ing industry.' As noted by the Employer,'the Board
looks to several factors in determining whether there
is sufficient continuity of the employing industry to
warrant a finding of successorship. These factors
include ' whether there is substantial continuity in
operations , location, work force, working conditions,
supervision, 'machinery, equipment, methods of
production, product, and services.r
Contrary to the Employer, we believe that there is
substantial continuity of these factors in this case.
With respect to the continuity of business operations,
the fact that Bobcat took over only the Melroe
product line from Miami,,and Miami continues to
sell and, service other equipment, does not alter the
fact that, with respect to the Melroe line of
5 Milo, Express, Inc., 212 NLRB 3l3 '(1974); Drivers, Chauffeurs and
Helpers Local No . 639, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and 'Helpers of America (Poole's Warehousing, Inc), 158
NLRB 1281 ( 1966).'
s John Wiley & Sons, Inc V. Livingston, 376 U.S. 543, 551 (1964).
Georgetown Stainless Mfg. Corp.,, 198 NLRB 234(1972).
s In Lincoln Private Police, Inc. as Successor to Industrial Securiy Guards,
Inc., 189 NLRB 717 (1971), the Board recognized that where sufficient other
indicts, exist successorship can be found where the new employer acquires
less than the predecessor's entire business See also Royal Brand Cutlery
Company, 122 NLRB 901 (1959); Maintenance, Incorporated 148 NLRB
1299 (1964); Quaker Tool & Die, Inc., 162 NLRB 1307 (1967); The Westgate
Corporation, 196 NLRB 306 (1972).
s Howard Johnson Co. v. Detroit Local Joint Executive Board, Hotel &
Restaurant Employees & Bartenders International Union, AFL-CIO, 417 U.S
249 (1974), cited 'by the Employer, is factually distinguishable from the
instant case. Further, that case is inapposite since the Supreme Court
holding was ]muted to a finding that the employer there was not a successor
for the purpose of imposing an obligation on the employer to arbitrate with
the union representing the predecessor 's employees . The Supreme Court
specifically did not pass on whether the employer was a successor for other
purposes ; i.e., the duty to recognize and bargain with the union .
10 While also unclear from the record , it appears that Miami presently
equipment, the business operations of Bobcat'remain
substantially the same as, those' of ' Miami.8 As
recognized by the Employer in its `brief on review,
"the machinery, equipment and 'methods of service
used by Bobcat are similar to those used at Miami
when Bobcat equipment was sold." A finding of
continuity of business operations is further supported
by the facts that there has been no hiatus in
operations and Bobcat continues to serve the same
customers previously served' by Miami.9 Perhaps
most importantly, the record `reveals substantial
continuity in Bobcat's work force. While not entirely
clear from the record, it appears that Bobcat now
employs approximately 10 employees, including
Fuerst and Pettie.10 Of these 10, 'a maximum of 4
appear to be'service employees in mechanic classifi-
cations that previously fell within the scope of the
certified Miami production and maintenance unit."
As noted above, three of the four Bobcat 'service,
employees were formerly employed in unit positions
at Miami. Contrary, to the Employer, we do knot find
it determinative that Bobcat employs less than a
majority of Miami's unit employees or that less than
a majority of all the Bobcat employees (both those
within and outside the proposed unit) are former
Miami unit employees.12 Rather, we believe that the
relevant inquiry is whether there is a substantial'
continuity of work force here.13 As three of the four
Bobcat service employees are former Miami unit
employees, we conclude that such is the case.
In sum, on the foregoing facts, we find that Bobcat
is a successor to that portion of Miami's operations
which involves the Melroe product line. Accordingly,
we will amend the current certification, which
presently covers a unit of production and mainte-
nance employees of Miami,14 by adding thereto that
employs approximately 60 employees . Approximately ' 30 to 36 of these
employees are included in the Miami production and maintenance unit.
11 Fuerst , who formerly acted as Miami's service manager, noW acts as
Bobcat's service manager.
12 United Maintenance & Manufacturing Co, `Inc., 214 NLRB No. 31
(1974).
is The instant case is factually distinguishable from Atlantic Technical
Services Corporation, 202 NLRB 169 (1973), cited by the Employer. Thus, in
that ' case, the Board declined to find successorship , relying on the
diminution in the scope of the unit (from a 14,000-plus multilocation unit to
a single mailroom unit of 41 employees) and the material differences in size
and organizational structure of the new employer. The former employer,
TWA, was a large company engaged primarily in transportation and related
fields with contracts throughout the country, while the new employer was a
small organization which had only the single contract involved in the case.
14 In Cases 9-RC-9290 and 9-RM-646, the Petitioner was'certified as
the exclusive bargaining agent for the employees of Miami Industrial
Trucks, Inc., in the following unit:
All production and maintenance employees, including mechanics, parts
department employees, truckdrivers, and plant clerical employees, but
excluding all office clerical employees , sales employees , professional
employees, guards and supervisors as defined in -the Act.
MIAMI INDUSTRIAL TRUCKS, INC.
Petitioner now also represents, in a separate unit, the
production and maintenance employees of Bobcat.15
Consistent therewith, we will amend the description
of the unit covering the Miami employees to exclude
the employees of Bobcat.
ORDER
It is hereby ordered that the Certification of
Representative issued to the International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW, in Cases 9-
RC-9290 and 9-RM-646 be, and it hereby is,
amended to read:
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America,' UAW, is the exclusive bargaining repre-
sentative for the employees of Miami Industrial
Trucks, Inc., in the following unit:
1225
All production and maintenance employees,
including mechanics, parts department employ-
ees, truckdrivers, and plant clerical employees;
but excluding all office clerical employees, sales
employees, professional employees, guards, and
supervisors as defined in the Act, and all
employees of Bobcat of Dayton, Inc.
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America, UAW, is the exclusive bargaining agent for
the employees of Bobcat of Dayton, Inc., in the
following unit:
All production and maintenance employees,
including mechanics, parts department employ-
ees, truckdrivers, and plant clerical employees;
but excluding all office clerical employees, sales
employees, professional employees, guards, and
supervisors as defined in the Act.
15 Although defined as "all production and maintenance employees " the unit in fact consists of the service employees in mechanic classifications.