Roanwell Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1989

293 N.L.R.B. 20 (N.L.R.B. 1989)

20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Roanwell Corporation and Local 463, International
Union of Electronic , Electrical , Technical, Sala-
ried, and Machine Workers, AFL-CIO Case 2-
CA-22600
February 28, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 3, 1988, Administrative Law
Judge Raymond P Green issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief, the General Counsel filed cross-ex
ceptions and briefs in support and in answer to the
Respondent's exceptions, and the Union filed a
brief in answer to the Respondent's exceptions
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
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
4
"4 By polling or otherwise interrogating its em-
ployees to ascertain their union views in the ab
sence of objective considerations warranting a rea-
sonable doubt as to the Union's continuing majori-
ty status as the collective-bargaining representative
of the majority of its employees, the Respondent
has violated Section 8(a)(1) of the Act "
DECISION
STATEMENT OF THE CASE
RAYMOND P GREEN, Administrative Law Judge This
case was heard by me on June 21 and 22, 1988 The
charge in this case was filed on December 28, 1987, and
the complaint was issued on February 29, 1988 The
complaint alleged as follows
1 That for many years a company called Roanwell
maintained a collective bargaining relationship with the
Union
2 That on or about November 6, 1987, the Respond
ent purchased the assets of Roanwell and kept the Com
pany s name
3 That since on or about November 16, 1987, the Re
spondent has been a successor having an obligation to
recognize and bargain with the Union
4 That since December 9, 1987, the Respondent has
refused to recognize or bargain with the Union
5 That on or about December 21 1987 the Respond
ent in violation of Section 8(a)(1) of the Act, conducted
a coercive poll about whether its employees wished to
be represented by the Union
6 That on or about December 21, 1987, the Respond
ent promulgated a rule prohibiting employees from dis
cussing the Union prior to the holding of the poll
Based on the entire record in this case, including my
observation of the demeanor of the witnesses, and after
considering the briefs filed by counsel, I make the fol
lowing
FINDINGS OF FACT
I JURISDICTION
At the hearing the Respondent admitted and I find,
that it is engaged in commerce within the meaning of
Section 2(2) (6) and (7) of the Act It also is conceded
and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Roanwell
Corporation, New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
' We will amend the judge s Conclusions of Law to track his findings
recommended Order and notice
Gwynne A Wilcox Esq, for the General Counsel
Harry N Turk Esq (Epstein Becker & Green), of New
York, New York for the Respondent
David Jaffe Esq of New York New York for the
Union
II UNFAIR LABOR PRACTICE
A Operative Facts
Roanwell was a subsidiary of High Voltage Engineer
ing Corp and for 20 years has had successive collective
bargaining agreements with the Union The last contract
ran from February 15 1985, to February 14 1988 The
Company s operations were carved out on two floors of
a building located on 180 Varick Street in New York
City Basically, its business was to design and manufac
ture certain types of telecommunication devices for com
mercial and military uses The bargaining unit set forth
in the contract was
All direct production maintenance shipping and re
ceiving employees, including chauffeurs, and engi
neering technicians, but excluding all executive sales
people administrative and clerical employees
Methods Engineers Time Study Men guards, and
supervisors as defined in the Act
293 NLRB No 3
ROANWELL CORP 21
By the end of 1986 High Voltage Engineering was
seeking to sell Roanwell It also had decided that if no
customer could be found, Roanwell would be liquidated
The Union became aware of these plans sometime in the
spring of 1987 when Roanwell laid off 19 employees
Peter Rutkowski became interested in buying Roan
well and entered into negotiations with High Voltage
Engineering in September 1987 He testified that he
planned to limit volume, and to concentrate on custom
ized products with higher margins of profit He decided
to use the same name for the Company, to keep its oper
ations in the same building, and to buy the existing pat
ents He also decided to retain many of Roanwell s exist
ing employees, including its supervisory, engineering,
and technical staff
On September 9, 1987, Peter Rutkowski notified the
Union and the employees that he intended to purchase
Roanwell on September 25, and intended to retain the
company name The employees were also told that the
new company did not intend to adopt the union contract
and that it intended to have a work force of about 14
employees consisting primarily of shipping and inspec
tion employees for a period of about 6 months
On or about September 16, 1987, the Unions presi
dent, James Trenz, met with Rutkowski where he re
quested that Rutkowski, when he took over the business,
assume the existing contract between the Company and
the Union
On November 4, 1987, Rutkowski posted a notice at
the facility advising the employees that he would be
buying the business on November 7 The notice invited
the employees to fill out employment applications for the
new company It also set forth three job classifications
(assembly/machine shop, inspection and shipping) with
a range of wage rates from $7-$10 per hour The notice
specifically notified the employees that Rutkowski was
not adopting the union contract
Immediately prior to Ruthowski s takeover, Roanwell
employed about 30 to 35 production and maintenance
employees in three basic departments (1) assembly, (2)
shipping and receiving, and (3) inspection On execution
of the purchase agreement , Roanwell laid off all of its
employees on November 6
On the takeover the Respondent, on November 9
began hiring employees Virtually all the initial group of
employees hired were previously employed by Roanwell
and consisted of bargaining unit employees as well as en
gineering sales and clerical employees who had not
been represented by the Union
The evidence in this case shows that the new company
began operations immediately after the purchase without
a hiatus and that it manufactured and sold essentially the
same products as the predecessor using the same patents,
the same methods the same employees and the same su
pervision Additionally the evidence shows that the pur
chaser s operations were carried out at the same location
albeit it consolidated its operations from two floors to
one
On November 11, Trenz, on behalf of the Union, again
made an oral request for recognition that was declined
The old Company had its operations on the 12th and
13th floors of a building located at 180 Varick Street In
mid December 1987, the new company began consolidat
ing by moving the 12th floor operations to the 13th
floor This apparently took about 2 1/2 months and was
completed at the end of February 1988 i
According to Lech Poradowski, a manager of the Re
spondent (performing essentially the same functions as he
did in the prior company), although the new company
began operating immediately after the takeover, it took
about 3 months to get into `full swing" (i e, the end of
February) On the other hand, he also testified that the
task of consolidating the operations on the 13th floor had
a minimal impact on the Company s sales and manufac
turing
On November 10, 1987, when the new company began
operations, it employed 13 employees in job categories
covered by the old company s collective bargaining
agreement All the employees hired by the new company
at that time in these job classifications were previously
employed by the old company (One of these employees
Sophie Fox was subsequently promoted to a supervisory
position) Also 16 other nonbargaining unit employees
were hired from the former company These were in job
categories such as clerical, supervision, sales, and engi
neenng Indeed, other than Peter Rutkowski, the new
owner and president, all the employees hired during the
first week of the Respondents operations were employed
by the predecessor
After the second week of operations, a small number
of new employees were hired Thus the payroll records
for the week ending December 5, 1987, show that three
employees were hired as assemblers none of whom had
been employed by the predecessor The payroll records
for the week ending December 19 show that one new
employee was also hired as an assembler and had not
worked for Roanwell
By the end of the consolidation at the end of Febru
ary, the payroll records for the weeks ending March 4
and 18, 1988, show that a total of 15 employees occupied
jobs in categories covered by the old collective bargain
ing agreement Of these, 10 had been employed by Roan
well before the sale2 and 5 were new employees hired
after the sale 3
From the payroll records received in evidence it
seems that the highest number of unit employees em
ployed by the Respondent after the commencement of its
operations and before this hearing was 18 This number
is reflected in the payroll records dated June 24, 1988,
some 7 months after the takeover (As of June 24 seven
employees in unit jobs had previously been employed by
Roanwell )
i During the time of the move the Company hired a number of em
ployees on a temporary basis to assist in the move These people were
classified as handymen and included James Brest Edmond Rosy Ronald
Thompson Luis Rojas Santos DeLeon and Miguel Rodriguez After the
move was completed Rodriguez was hired as a permanent employee
The evidence also shows that on a normal basis the Company uses only
one handyman
2 These were Enca Butler Pablo Santiago George Banks Elaine
Caffey Tirso Dela Rosa Julia Henschke Catalina Nieves Gladys Padua
Josephina Rosario and Belle Ruthinoski
9 These were Rafael Soto Brunilda Vega Milagros Velasquez Esca
lante Vianela and Maria Cruz
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On December 9 1987, Trenz made a written request
for recognition and restated his assertion that the Union
represented a majority of the workers
On December 21 the Respondent conducted a poll of
its hourly paid employees In this respect, a meeting was
called in the shop where the employees were each given
a blank ballot and asked to mark whether they wished
to be represented by the Union The choices on the
ballot were yes or no and the employees were in
structed to separately go into another room to mark their
ballots and place them in a sealed ballot box The man
agement did not express any preference which way it
wanted the employees to vote, the vote itself was secret
and the results were never disclosed to the employees
On the other hand the employees were not told the pur
pose of the poll and were not given explicit assurances
that no reprisals would take place When one of the em
ployees asked if they could discuss the issue before the
poll was conducted she was told no The outcome of
the poll was that 12 voted no (against union represen
tation) and 3 voted yes
According to Rutkowski he decided to hold the poll
in order to determine the accuracy of the Union s claim
to represent a majority of the employees as stated in the
Union s letter of December 9, 1987 There was however,
no evidence that Respondents management was in
formed by any of the employees prior to the poll that
they did not want to be represented by the Union At
most, Rutkowski asserted that he thought the employees
did not want union representation because they seemed
to be happy with the new terms and conditions of em
ployment that he put into effect when he took over the
Company
On December 22, Trenz sent another letter to Rut
kowski asking for recognition In response, by letter
dated December 28 Rutkowski stated
In response to your letters of December 9 and De
cember 22 1987 we have objective reasons for be
lieving that the majority of our employees are not
interested in representation by your Union There
fore we have no obligation to enter into collective
bargaining
B Discussion
Were it not for the fact that Peter Rutkowski was will
ing to gamble on acquiring the failing business of Roan
well that company likely would have been liquidated
and all of its employees would have lost their jobs Yet
despite the undeniable social value of this kind of enter
prise the person who embarks on the venture must still
learn and play by the rules of the game
In Fall River Dyeing Corp v NLRB, 482 U S 27
(1987), the Supreme Court held that the purchaser of a
business will be obligated to recognize and bargain with
a union representing the employees of the seller if the
new employer maintains the business with substantial
continuity and hires a majority of its employees from
the predecessors work force The Court held that the
successors obligation to bargain would not be limited to
situations in which the Union had recently been certified
and it went on to say that the union s rebuttable pre
sumption of majority status would continue despite the
change in employers so long as the new employer is in
fact a successor of the old employer and the majority of
its employees were employed by the predecessor Fur
ther the Court rejected the company s contention that
the majority determination must be made only when the
successor has attained a full complement of employees
Instead, the Court concluded that a successors obliga
tion to bargain would be triggered at the point in time
when it attained a substantial and representative com
plement of employees
In the present case, the new Roanwell is involved in
essentially the same business as the old Roanwell The
fact that the new company has downsized the business
and has pruned the variety of products sold does not, to
my mind, detract from the conclusion that the company,
after the takeover, has been operated with substantial
continuity as the predecessor Thus, although the new
company may sell fewer types of products, the products
it does sell are the same as those sold by the old compa
ny and they are sold to essentially the same customers
The new company is located at the same premises, uses
essentially the same methods, has the same patents and
uses basically the same categories of employees as the
predecessor (In fact many of the new company s engi
neering and technical employees were employed by the
old company) Further the evidence shows that there
was virtually no hiatus between the operations of the
business when it was taken over
The Respondent argues that at the time of the hearing
in this case (7 months after the takeover) the new com
pany had not yet attained a representative complement
of employees Alternatively it contends that a represent
ative complement was reached at the earliest by May
1988 when (because of turnover) a majority of the new
company s hourly paid employees had not previously
been employed by the predecessor I do not agree with
either contention
Prior to the takeover, the old company employed
about 30-35 hourly paid employees The new employer s
plan contemplated downsizing the operations of the
Company in order to make it profitable Therefore it is
apparent that its full complement was intended to be
somewhat smaller than what the old company had been
immediately prior to the takeover The testimony of
Lech Poradowski was that it took about 3 months for
the new company to get into full swing " At that point
(by the end of February 1988 after the consolidations
move) the Company s payroll records show that there
were 15 people employed in jobs that had been covered
by the collective bargaining agreement with the old
company Thereafter the number of hourly paid employ
ees did not change significantly and the range of em
ployees from that time to the time of the hearing was be
tween 16 and 18
The fact is that the new company commenced oper
ations immediately on taking over the assets of the pred
ecessor and all of its 13 hourly paid employees had been
previously employed by the old Roanwell Although the
new company at the outset of its operations may not
have had a full complement or been in full swing,'
ROANWELL CORP
there is no doubt that it immediately attained a substan
tial and representative complement of employees on the
commencement of its operations Even the move of the
two floors into one did not have any significant impact
on the Company s operations
Based on the above, I therefore conclude that the Re
spondent became a successor no later than the first week
of its operations in November 1987, that a majority of its
hourly paid work force had previously been employed
by the predecessor, and that the Respondent at that time,
had an obligation to recognize and bargain with the
Union
The Respondent argues that even if a bargaining obli
gation was triggered in November when it took over the
business, the Union enjoyed only a presumption of ma
jority status which was subsequently rebutted when an
election was held on December 21, 1987 The General
Counsel contends that this poll was itself unlawful and
therefore cannot be used as evidence to support the Em
ployer s claim that it had a good faith doubt as to the
Union s majority status
In Harley Davidson Transportation Co, 273 NLRB 1531
(1985), the Board held that where a successorship situa
tion develops, the Union, although enjoying a presump
tion of majority support, may have that presumption re
butted The Board held that a successor may lawfully
withdraw from negotiations at any time following recog
nition if it can show that the Union had in fact lost its
majority status at the time of the refusal to bargain or
that the refusal to bargain was grounded on a good faith
doubt based on objective facts that the union continued
to command majority support
The only evidence on which the Respondent can rely
to establish a good faith doubt is the poll it conducted on
December 21 Yet prior to that poll, there is no evidence
that any employees expressed any dissatisfaction with the
Union or with union representation Thus apart from the
poll itself, there is no objective basis on which the Em
ployer could have grounded a doubt as to the Union's
majority status
In Struksnes Construction Co 165 NLRB 1062 (1967)
the Board set forth a set of criteria to determine whether
an employers poll constituted interference with the
rights of employees as defined in Section 7 of the Act
These were
1 The purpose of the poll is to determine the truth of
a union s claim of majority status
2 This purpose is communicated to the employees
3 Assurances against reprisals are given
4 The employees are polled by secret ballot
5 The employer has not committed unfair labor prac
tices or otherwise created a coercive atmosphere
In Mingtree Restaurant v NLRB 736 F 2d 1295 (9th
Cir 1984) the court held that an employer did not vio
late the Act when it conducted a poll in conformity with
the Struksnes standards after recognition had been grant
ed and therefore at a time when the Union had a rebutta
ble presumption of majority support Although the court
differed in some degree with the Boards holding in
Montgomery Ward & Co 210 NLRB 717 (1974), the
court nevertheless held that in order to conduct a poll an
23
employer must have some objective evidence for doubt
Ing the union s continued support The court stated
We believe that polling can be a useful and legiti
mate tool for the employer who is in sincere doubt
of the union s majority status We therefore hold as
did the Fifth and Sixth Circuits , that as long as the
employer complies with the Struksnes conditions
and procedural safeguards it may poll its employees
to determine their union sentiment if it has substan
tial, objective evidence of a loss of union support
even if that evidence is insufficient by itself to justi
fy withdrawal of recognition , and if it has given the
union notice of the time and place of the poll
In the present case , the Union having repeatedly de
manded recognition the new employer may very well
have sincerely wondered if its new employees wanted to
be represented by the Union Nevertheless , while it is
evident that the Employer tried to make to the poll non
coercive , the evidence shows that it did not give assur
ances against reprisals Moreover , there is simply no evi
dence that the Employer had any objective basis for
doubting the Union s majority support in a group of em
ployees who for about 20 years, had been continuously
represented by the Union 4 I therefore conclude that the
Employer by conducting the poll on December 21
interfered with its employees Section 7 rights I also
conclude that the results of the poll may not be used to
justify the Employer's refusal to recognize and bargain
with the Union Louisiana Pacific Corp, 283 NLRB 1079
(1987)
The General Counsel also contends that the Employer
promulgated a rule prohibiting employees from discuss
ing the issue of union representation prior to the holding
of the poll described above This allegation is based on
testimony that just prior to the poll one of the employ
ees asked if they could discuss the issue and the Employ
er said no
It is rather obvious that the Employer wanted to con
duct the poll without fuss and as quickly as possible It
also is obvious that this was a one shot event I simply
cannot construe this transaction as supporting any con
tention that the Employer made any rule much less a
rule prohibiting union discussion I therefore shall recom
mend that this allegation be dismissed
CONCLUSIONS OF LAW
1 Roanwell Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
4 In Fall River Dyeing Corp v NLRB supra the Court noted
If the employees find themselves in a new enterprise that substan
tially resembles the old but without their chosen bargaining repre
sentative they may well feel that their choice of a union is subject to
the vagaries of an enterprise s transformation This feeling is not con
ducive to industrial peace In addition after being hired by a new
company following a layoff from the old employees initially will be
concerned primarily with maintaining their new jobs In fact they
might be inclined to shun support for their former union especially
if they believe that such support will jeopardize their jobs with the
successor or if they are inclined to blame the union for their layoff
and problems associated with it
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 By refusing to recognize and bargain with the
Union as the exclusive collective bargaining representa
tive of the employees in the unit described below, the
Respondent has violated Section 8(a)(1) and (5) of the
Act
4 By conducting a poll on December 21, 1987 to de
termine whether its employees wished to be represented
by the Union, the Respondent interfered with the rights
of its employees as set forth in Section 7 of the Act
5 The Respondent has not violated the Act in any
other manner as alleged in the complaint
6 The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act
7 The appropriate bargaining unit consists of
All direct production, maintenance, shipping and re
ceiving employees, including chauffeurs and engi
neering technicians but excluding all executive sales
people, administrative and clerical employees,
Methods Engineers, Time Study Men, guards and
supervisors as defined in Section 2(11) of the Na
tional Labor Relations Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed5
ORDER
The Respondent Roanwell Corporation New York
New York, its officers agents successors and assigns
shall
1 Cease and desist from
(a) Refusing to recognize and bargain collectively with
Local 463 International Union of Electronic Electrical
Technical Salaried and Machine Workers, AFL-CIO as
the exclusive collective bargaining representative of its
employees in the following appropriate unit
All direct production maintenance, shipping and re
ceiving employees including chauffeurs and engi
neering technicians but excluding all executive sales
people, administrative and clerical employees
Methods Engineers Time Study Men guards and
supervisors as defined in the Act
(b) Polling or otherwise interrogating its employees to
ascertain their union views in the absence of objective
considerations warranting a reasonable doubt as to the
Union s continuing majority status as the collective bar
gaining representative of the majority of its employees
(c) 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
5 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
(a) On request bargain with the Union as the exclusive
representative of the employees in the appropriate unit
as described above, concerning terms and conditions of
employment and, if an understanding is reached embody
the understanding in a signed agreement
(b) Post at its office in New York, New York, copies
of the attached notice marked Appendix 6 Copies of
the notice on forms provided by the Regional Director
for Region 29, after being signed by the Respondent s
authorized representative shall be posted by the Re
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond
ent 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
6 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
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
Section 7 of the Act gives employees these rights
To organize
To form join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT refuse to recognize and bargain collec
tively with Local 463, International Union of Electronic,
Electrical, Technical Salaried and Machine Workers,
AFL-CIO as the exclusive collective bargaining repre
sentative of our employees in the following appropriate
unit
All direct production, maintenance shipping and re
ceiving employees, including chauffeurs, and engi
neering technicians but excluding all executive sales
people, administrative and clerical employees,
Methods Engineers, Time Study Men guards and
supervisors as defined in the Act
ROANWELL CORP
WE WILL NOT poll or otherwise interrogate our em
ployees to ascertain their union views in the absence of
objective considerations warranting a reasonable doubt
as to the Union s continuing majority status as the collec
tive bargaining representative of the majority of our em
ployees in the above described unit
WE WILL NOT in any like or related manner interfere
with restrain , or coerce our employees in the exercise of
their rights guaranteed them by Section 7 of the Act
25
WE WILL on request bargain with the Union as the
representative of our employees in the bargaining unit
described above, concerning terms and conditions of em
ployment and, if an understanding is reached, embody
the understanding in a signed agreement
ROAN WELL CORPORATION