Sullivan Industries

National Labor Relations Board - Board Decisions

Mar 21, 1991

302 N.L.R.B. 144 (N.L.R.B. 1991)

144
302 NLRB No. 23
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to certain credibility findings made by the
administrative law judge. It is the Board’s established policy not to overrule
an administrative law judge’s resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the reso-
lutions are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
In his decision, in the second full paragraph under ‘‘1. Credibility,’’ the
judge stated that David Pollock held two meetings with his employees on the
same day in early July. The record discloses, however, that the two meetings
were held on different days within the same week. This error does not affect
our decision.
In the second paragraph of sec. III,b,2, of the judge’s decision, certain lan-
guage was inadvertently omitted from the quotation from Fall River Dyeing
Corp. v. NLRB, 482 U.S. 27 (1987). Thus, the second sentence of the quoted
language should state: ‘‘It studies whether the job classifications designated for
the operation were filled or substantially filled and whether the operation was
in normal or substantially normal production.’’ Additionally, the end of the
last sentence of the quotation should read ‘‘as well as the relative certainty
of the employer’s expected expansion.’’
2 We adopt the judge’s conclusion that the Respondent had attained a sub-
stantial and representative complement by August 10, 1988. Although we
agree with the judge’s finding that the Respondent’s projections of employ-
ment levels were unreliable, we note that even under the Respondent’s projec-
tions it expected to employ 180 unit employees in the projected peak month
of April 1989 and 150–160 unit employees in the anticipated slack months of
October and November 1989. We find that, even compared with these projec-
tions, the 79 unit employees employed during the pay period ending August
12, 1989, constituted a substantial and representative complement. In adopting
the judge’s finding of a substantial and representative complement, we do not
rely on his references to the Respondent’s stipulated successor status.
Sullivan Industries, Inc. and United Steelworkers of
America, AFL–CIO. Cases 1–CA–25698 and 1–
CA–25869
March 21, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On September 8, 1989, Administrative Law Judge
Irwin Kaplan issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the ad-
ministrative law judge’s decision.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sullivan Industries, Inc.,
Claremont, New Hampshire, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order.
Robert P. Redbord, Esq., for the General Counsel.
Donald W. Selzer, Esq. (Oppenheimer, Wolff & Donnelly), of
St. Paul, Minnesota, for the Respondent.
Larry Engelstein, Esq. (Angoff, Manning, Pyle, Wanger &
Hiatt), of Boston, Massachusetts, for the Charging Party.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge. These consoli-
dated cases were tried before me in Boston, Massachusetts,
on February 13 and 14, 1989. The underlying charges in
Case 1–CA–25698 were filed by the United Steelworkers of
America, AFL–CIO (the Charging Party or the Union), on
August 9, 1988 (amended September 30, 1988). The underly-
ing charges in Case 1–CA–25869 were filed by the Union
on October 18, 1988 (amended November 22, 1988). These
charges and amendments thereto gave rise to an order con-
solidating cases, consolidated amended complaint, and notice
of hearing dated December 6, 1988.
In essence, it is alleged that Sullivan Industries Inc. (Re-
spondent or New Sullivan), became a succesor company to
Sullivan Machinery Company (Old Sullivan or SMC) and in
that capacity it unlawfully withheld recognition from the
Union from August 10 to October 4, 1988, thereby violating
Section 8(a)(5) and (1) of the National Labor Relations Act
(the Act). Further, it is alleged that the Respondent addition-
ally violated Section 8(a)(5) and (1) of the Act, by withdraw-
ing recognition from the Union on or about October 6, 1988,
after first having unduly delayed granting recognition on or
about October 4, 1988.
It is alleged that the Respondent independently violated
Section 8(a)(1) of the Act by making certain coercive state-
ments to employees at a meeting in mid-August 1988, to the
effect, that the Respondent would defer any decision regard-
ing union recognition until October 1988 but that recognition
would be automatic unless the employees advised said Re-
spondent that they did not want union representation. In this
connection, it is alleged that the Respondent advised its em-
ployees that it maintains an open-door policy and that em-
ployees could communicate their opposition to union rep-
resentation at any time. The consolidated amended complaint
was amended near the close of the hearing to allege that at
the same meeting the Respondent also unlawfully told em-
ployees that it would do what it intended, with or without
the Union, thereby, additionally violating Section 8(a)(1) of
the Act.
The Respondent filed a corresponding answer and amend-
ed answer and along with certain stipulations at the hearing,
it conceded, inter alia, jurisdictional facts, appropriateness of
the unit, and successor status but denied that it committed
any unfair labor practices. In particular, the Respondent de-
nied that it unduly delayed recognizing the Union in October
1988 rather than August 1988 on the asserted basis that said
Respondent did not employ a representative complement of
employees until October 1988. The Respondent asserted that
it withdrew recognition on the basis of a petition signed by
a majority of its employees stating that they did not want the
Union to represent them. With regard to the alleged 8(a)(1)
statements, the Respondent denied that they were made as al-
leged or that they were coercive.
145SULLIVAN INDUSTRIES
1 The General Counsel’s unopposed motion to correct transcript is granted.
2 All dates hereinafter refer to 1988 unless otherwise indicated.
3 Brunelle served in the same capacity for AAMC and subsequently for New
Sullivan when the latter company purchased Old Sullivan’s assets.
4 Most of the employees in this group were eventually hired by New Sulli-
van. (Tr. 264.)
Based on the entire record,1 including my observations of
the demeanor of the witnesses, and after careful consider-
ation of the posttrial briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Sullivan Industries, Inc., a corporation
with an office and place of business in Claremont, New
Hampshire (the Claremont facility), is engaged in the manu-
facture and sale of compressors. During the past 9 months,
in connection with the aforenoted business operations, the
Respondent sold and shipped products, goods, and materials
from its Claremont facility, directly to points outside the
State of New Hampshire and derived revenue therefrom in
excess of $50,000. It is alleged, the answer admits, the
record supports, and I find that the Respondent is, and has
been at all times material here, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
It is alleged, the answer admits, the record supports, and
I find that the United Steelworkers of America, AFL–CIO is
now and has been at all times material here, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
The Union has represented the production and mainte-
nance employees excluding office and clerical workers and
other traditional exclusions employed at the Claremomt, New
Hampshire facility for over 40 years. For the greater part of
that period, the Claremont facility was owned and operated
by Joy Manufacturing Company (Joy). Joy manufactured air
compressors and rock drills used primarily in the construc-
tion of highways and pipelines.
In the spring of 1984, Joy sold the operation to Sullivan
Machine Company (SMC or Old Sullivan). SMC was en-
gaged in essentially the same business as Joy. The unit em-
ployees employed by SMC continued to be represented by
the Union. SMC and the Union negotiated successive collec-
tive-bargaining agreements, the most recent of which was ex-
ecuted on May 4, 1987, and by its terms, effective until
12:01 a.m., September 29, 1990. (E. Exh. 3.) Old Sullivan
declared bankruptcy in March 1988,2 and closed the Clare-
mont facility. That same month, the Respondent, Sullivan In-
dustries, Inc. (New Sullivan), incorporated for the purpose of
acquiring the assets of Old Sullivan and eventually taking
over the business. (Tr. 216.)
On April 18, the bankruptcy court appointed Asset Acqui-
sition and Management Corporation (AAMC) to manage the
business on an interim basis. While under Chapter 11, some
of the Old Sullivan employees and supervisors were recalled
and SMC resumed operations on a limited basis but under
AAMC management. During the period of AAMC’s steward-
ship, it continued to recognize the Union and adhere to the
terms of the SMC-union collective-bargaining agreement.
(Tr. 32.) AAMC also continued to deduct union dues under
the checkoff provision of the contract. (Tr. 33; see also G.C.
Exh. 4.)
By letter dated June 10, 1988, Old Sullivan’s personnel
manager, Norman Brunelle, advised the Union, inter alia,
that SMC will terminate its business as of June 30, 1988.3
The body of that letter in its entirety reads as follows:
This letter is to advise you that the Sullivan Machin-
ery Company will be terminating its business as of June
30, 1988. In that connection, the assets of the business
are being sold, and all employees of the Company will
be terminated. Termination notices are being mailed to
the employees. Any inquiries that you may have about
this matter should be directed to David A. Pollock of
Asset Acquisition and Management Corporation for the
Company by the Bankruptcy Court. [R. Exh. 2.]
Also by letter dated June 10, 1988, Brunelle invited all
Old Sullivan employees to submit applications to New Sulli-
van. (R. Exh. 1.) That same month, David Pollock, who had
overall duties of managing SMC for AAMC, undertook cer-
tain activities in contemplation of the transfer of ownership
to New Sullivan. As testified by Pollock: ‘‘We were expect-
ing to acquire the assets [of Old Sullivan] and we were lin-
ing up financing and setting or preparing to hire employees
for the new company.’’ (Tr. 91–92.)
On June 30, Pollock met separately with two groups of
SMC employees (managed by AAMC) with regard to em-
ployment prospects at New Sullivan. There were approxi-
mately 12 unit employees in the first group. Pollock told
them that SMC would shut down that day but that New Sul-
livan would commence operations the following week. How-
ever, Pollock also informed these employees that while none
of them would be offered jobs initially with the new com-
pany, it is anticipated that 30 to 40 employees will be hired
over the next few months and they will be under consider-
ation.4 The second meeting that day was held with a much
larger group comprising unit and nonunit employees, ap-
proximately 64 in number and all of them were offered em-
ployment with New Sullivan. (Tr. 107–108.) According to
Pollock, these employees had the broadest range of skills and
abilities and as the new company would initially operate with
fewer employees, versatility was preferred.
On July 5, the sale to New Sullivan was completed. Pol-
lock became its president and chief operating officer. On
July 6, employees began their first day of work for the new
company. The front-line supervision employed by Old Sulli-
van continued to work for AAMC and New Sullivan but they
were fewer in number (Tr. 54, 212–215). On or about July
6, local union president, Ivan Truell, and other union rep-
resentatives met with Pollock and other New Sullivan offi-
cials and requested recognition and adherence to the collec-
tive-bargaining agreement. Pollock told the union representa-
tives that they would have to wait until the Company hired
a substantial and representative complement of employees
before New Sullivan would decide on recognition. With re-
gard to the contract, Pollock noted that New Sullivan was
not a party thereto and that he would not honor the agree-
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Pollock testified initially, that he told the employees that it was not appro-
priate at that time to recognize the Union and that a decision thereon would
be deferred until the Company hired a substantial and representative com-
plement of employees. (Tr. 123.) Later, Pollock asserted that he was mistaken
and denied saying anything about a ‘‘substantial and representative com-
plement’’ in discussing the subject of the Union with employees in July. (Tr.
272–273.) The notes relied on by Pollock indicate that in raising the subject
of the Union’s status with employees in July, he noted that its status was ‘‘not
clear’’ and that the Company had not hired its ‘‘total workforce.’’ (R. Exh.
6, emphasis added.) Pollock’s overall credibility will be treated more fully,
infra.
6 The parties stipulated, inter alia, that at all relevant and material times, the
majority of unit employees employed by New Sullivan were previously em-
ployed by Old Sullivan. (Tr. 16.)
7 The Union filed the original refusal to recognize charges on August 9.
(G.C. Exh. 1(a).)
8 Morin and McCann had served on the union committee and in various
other union capacities.
ment. That same day Pollock wrote to Truell summarizing
the respective positions taken at the meeting. (G.C. Exh. 12.)
Still that same day, July 6, union staff representative, Frank
Farrell, wrote to Pollock, demanding recognition by New
Sullivan as a ‘‘successor’’ to SMC, as well as adherence to
the contract. (G.C. Exh. 13.) Pollock responded by letter
dated July 12. Again, Pollock noted that recognition at that
time was ‘‘premature.’’ He also maintained, contrary to the
Union, that ‘‘this company regards itself as free to choose
its own employees, and make its own contracts.’’ (G.C. Exh.
14.)
On or about July 6 and within a day or two of Truell’s
demand for recognition, Pollock assembled the unit employ-
ees (then—approximately 50 in number), to inform them of
his earlier meeting with the union committee.5 Later that
week, Pollock conducted a second meeting which this time
included nonunit employees. In essence, Pollock repeated
what he had told the Union and the unit employees earlier,
to wit, that it was premature to recognize the Union and that
the Company was not obligated and would not honor the
contract.
By letter dated July 22, Larry Engelstein, the union attor-
ney, repeated the Union’s demand for recognition. There,
Engelstein also asserted as follows:
The Company has hired a substantial and representa-
tive complement of its employee workforce from em-
ployees formerly employed by Sullivan Machinery
Company, and represented by the Union. Based on in-
formation available at this time, some 60 of the 65 em-
ployees hired by the Company were previously em-
ployed by Sullivan Machinery.6
Please advise whether the Company will recognize
the Union and commence bargaining. If the Company
declines to do so, the Union will file the appropriate
charge with the National Labor Relations Board [G.C.
Exh. 15].
Respondent’s attorney, Donald Selzer, responded by letter
dated August 10.7 There, Selzer advised Engelstein, inter
alia, as follows:
Sullivan industries expects to reach normal or sub-
stantially normal production, with a substantial and rep-
resentative complement of workers, in the week of Oc-
tober 3, 1988. At that time, Sullivan Industries will re-
spond directly to the demand for recognition. [G.C.
Exh. 16.]
The subject of the Union was raised again in August at
the next general meeting of all unit and nonunit employees.
In all, approximately 90 to 100 employees attended that
meeting. At these general meetings, and at the August meet-
ing, Pollock informed the entire work force about production
and sales for the previous month and projections for sales
and shipments for the upcoming month. While it is unclear
who introduced the subject of the Union at this meeting, it
is undisputed that Pollock told the employees that the Com-
pany anticipated reaching a substantial and representative
complement in late September or early October and a deter-
mination vis-a-vis union recognition would be made at that
time. In dispute however, is whether Pollock made other re-
marks alleged to be coercive.
Employee Leon Morin testified that Pollock told those as-
sembled at the August meeting as follows:
[H]e would recognize the Union, he has no problem
with it, and that if the people didn’t want the the
Union, they’d have to come forward and tell him, and
that he had an open door policy that people could go
in and talk to him any time they wanted . . . [B]ecause
he had more than 51 percent of union members back
that the Union [would automatically come back] unless
the the members came forward and said they didn’t
want the Union. [Tr. 57.]
Morin’s testimony was largely corroborated by employee
Patrick McCann.8 (Tr. 83–84.) On the other hand, Pollock
denied making any reference to an open-door policy at the
August meeting and while he had articulated such a policy
on other occasions, he denied doing so within the context of
any union discussion. (Tr. 139–140.) Pollock also does not
recall using the word ‘‘automatic’’ in discussing union rec-
ognition with employees. (Tr. 141.) According to Pollock,
(relying on notes he had at the August meeting), he told the
employees that in the meantime he intended to do what he
wanted, with or without a union. (Tr. 289.) (Near the close
of the hearing, counsel for the General Counsel amended the
complaint further to allege this last statement as coercive, in
violation of Section 8(a)(1).) (Tr. 293.)
The next time the subject of the Union was raised before
the entire work force was at the general monthly meeting
held on or about September 1. There were approximately 120
employees in attendance, of which approximately 90 were
unit employees. Pollock reviewed the overall production for
August and compared those results with the Company’s pro-
jections for that month and also set forth the projections for
sales and shipments for the month of September. He then in-
troduced the subject of the Union. On that subject, Pollock
once again informed the employees that it was anticipated
that in October the Company would have a ‘‘substantial rep-
resentative complement of employees’’ as well as ‘‘ap-
proaching normal production’’ and a determination regarding
union recognition would be made at that time. (Tr. 150–151.)
In early October, the Respondent determined that it was
obligated to recognize the Union. By letter dated October 4,
Selzer, the Respondent’s attorney, responded to the Union’s
latest demand for recognition (letter of August 10). There,
Selzer wrote, in pertinent part, as follows:
147SULLIVAN INDUSTRIES
9 Pollock, as noted previously, is also an attorney. As such, I find it less
likely, in the circumstances of this case, that he was candid in discounting his
understanding of the phrase in question back in July.
As of this week, a majority of Sullivan Industries
production and maintenance employees are persons em-
ployed as bargaining unit employees by the former
owners of the plant. Insofar as there exists a presump-
tion that these employees desire representation by the
[Union], it would appear at this time that the [Union]
should be recognized as the bargaining representative of
the production and maintenance employees at the Sulli-
van Industries facility.
I assume that representatives of the [Union] will be
in touch with management at Sullivan. [G.C. Exh. 17.]
Soon after the aforenoted letter was sent, Pollock assem-
bled the bargaining unit employees, approximately 90 in
number, and informed them of the unfair labor practice
charges against Respondent and that the Company believes
that it is obligated to recognize the Union and has so advised
the Union and the Labor Board. (Tr. 153–154.) That same
day, and within a few hours of the aforenoted meeting, an
employee, Paul Lacroix, handed Pollock a petition signed by
60 employees stating that they did not ‘‘wish to be rep-
resented by the Steelworkers Union or any union at this
time.’’ (R. Exh. 7a; see also R. Exh. 7b, the typed list.) Ac-
cording to Pollock, he had Personnel Manager Brunelle com-
pare the signatures with the Company’s payroll records. Pol-
lock then authorized Selzer to write the Union withdrawing
recognition. By letter dated October 6, Selzer wrote
Engelstein as follows:
In my correspondence to you dated October 4, 1988, I
indicated that Sullivan Industries would recognize the
the United Steelworkers of America as the collective
bargaining representative of its employees, based on the
fact that a majority of its production and maintenance
employees, as of that date, were bargaining unit mem-
bers employed by the former owners of the plant. On
October 5, 1988, Sullivan Industries President David
Pollock informed Sullivan employees at a meeting of
my correspondence to you, and the Company’s inten-
sion to recognize the Steelworkers Union. Shortly after
the meeting, Mr. Pollock was presented a petition
signed by a majority of production and maintenance
employees stating that the signatories do not wish to be
represented by the Steelworkers or any other union.
Due to this expression of employee sentiment, I have
been instructed to inform you that Sullivan Industries
must change its previous position and decline to recog-
nize or bargain with the Steelworkers Union at this
time. [G.C. Exh. 18.]
B. Discussion and Conclusions
1. Credibility
As discussed more fully below, this case turns largely on
when the Respondent, an admitted successor, was obligated
to recognize and bargain with the Union. David Pollock, Re-
spondent’s president and chief operating officer, asserted that
the Respondent had not hired a substantial and representative
complement of employees and had not reached normal busi-
ness operations until early October. Thus, the Respondent
contends that it was not obligated to recognize the Union
until October; whereas, the General Counsel contends that
the Respondent was obligated to recognize the Union as
early as August 10. In disposing of this conflict, an assess-
ment of Respondent’s projections in the areas of employee
staffing requirements and future business plans must be ad-
dressed. The Respondent relies mainly on the testimony of
Pollock, its only witness, in support of its projections and
summary documents. I find however, that Pollock’s testi-
mony was largely conclusionary, and at times elusive, incon-
sistent and implausible. Pollock’s testimony regarding the
phrase ‘‘substantial and representative complement’’ and
when and what he told employees on that subject is a case
in point.
At first, Pollock testified that in early July, he assembled
the unit employees and informed them of the Union’s de-
mand for recognition made earlier that day or the previous
day. (Tr. 122–123.) Pollock also testified that he told the em-
ployees at that meeting that any determination at that time
regarding recognition was premature and that the Company
would defer any decision until it hired a ‘‘substantial and
representative’’ complement of employees. Further, Pollock
assertedly told the group that if, at that time, a majority of
New Sullivan’s employees were former Old Sullivan’s em-
ployees, ‘‘we may have an obligation to recognize the
Union.’’ (Tr. 123.) Pollock testified that still later that same
day, at a meeting of all his employees (unit and nonunit), he
made essentially the same statements regarding ‘‘substantial
and representative’’ employee complement and the appro-
priate time to consider union recognition. (Tr. 126.) He
maintained that he used the ‘‘substantial and representative’’
terminology at the July meetings with employees even while
cross-examined until confronted with his source document
(R. Exh. 6), which omitted the phrase in question. (Tr. 272.)
After showing the document to Pollock, the latter reversed
his earlier testimony: ‘‘I did not use that (substantial and rep-
resentative) terminology in the July meeting[s]. I thought that
terminology was in here [R. Exh. 6], I apologize.’’ (Tr. 273.)
Incredibly, Pollock asserted that he was merely ‘‘aware’’
of the ‘‘substantial and representative’’ terminology in July
and did not become ‘‘familiar’’ with the concept until Au-
gust. (Tr. 275.) Pollock offered the aforenoted distinction in
support of his belated change in testimony. He asserted that
he would not have departed from his notes (R. Exh. 6), on
such a sensitive and complicated subject and since those
notes omitted any reference to the phrase in question, he
would not have volunteered any information to employees on
that subject.9 However, by letter dated July 6, Pollock reiter-
ated what he told Truell earlier that day with regard to defer-
ring recognition until such time as the Company ‘‘has hired
a substantial and representative complement of employees,
commencing normal production.’’ (G.C. Exh. 12.) Further, at
the same time Pollock conducted the July meetings, he had
other notes (R. Exh. 15) with instructions to inform employ-
ees about normal production and that it was too early to de-
termine when the Company would reach a representative
complement.
In discounting Pollock’s credibility, I am less concerned
with what he actually told employees in July, than I am with
his efforts to resurrect his testimony. In this regard, inter alia,
he was elusive, implausible and less than forthright. In sum,
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The number next to the letter D represents the cubic feet per minute of
compressed air which the machine will deliver. These are portable air com-
pressors on wheels. (See, e.g., D185, R. Exh. 3.)
11 Pollock offered no explanation for producing only 25 D185 units in No-
vember although the Company projected producing 60 such units. (R. Exh. 9.)
While the Respondent produced 100 D185 compressor units in January 1989,
the record also disclosed, that the business is largely seasonal; more units are
sold in the winter than in the fall or summer. (Tr. 234–235.) Thus, without
more, there is no showing that higher production during the winter or spring
months represent more than peak operations rather than normal operations.
12 The source document (G.C. Exh. 7) notes a figure of 117 total employees;
the General Counsel cited 103 employees; I counted and find 111 names.
on the basis of demeanor factors and my assessment of Pol-
lock’s testimony as a whole, I find that he was unreliable as
a witness.
2. The successor’s obligation to recognize the Union
The parties stipulated that at all relevant and material
times a majority of New Sullivan’s unit employees were pre-
viously employed by Old Sullivan. (Tr. 16.) The parties also
stipulated that at all times relevant and material, New Sulli-
van, was a successor employer to Old Sullivan, within the
meaning of the Act. (Tr. 15.) While, as noted, the Respond-
ent conceded ‘‘successor’’ status, it denied that it was obli-
gated to recognize the predecessor’s employees’ union in
August, as alleged in the complaint. The Respondent’s denial
is based on its assertion that in August, it had not yet hired
a ‘‘substantial and representative complement’’ of employees
and normal business operations were then still a few months
away.
The General Counsel and Respondent both rely on the Su-
preme Court’s decision in Fall River Dyeing Corp. v. NLRB,
482 U.S. 27, 49 (1987), for governing the outcome in the in-
stant case but, of course, arrive at different conclusions.
There, the Court observed as follows:
In deciding when a ‘‘substantial and representative
complement’’ exists in a particular transition, the Board
examines a number of factors. It studies ‘‘whether the
job classifications designated for the operation was in
normal or substantially normal production.’’ See Pre-
mium Foods Inc. v. NLRB, 709 F.2d 623, 628 (CA9
1983). In addition, it takes into consideration ‘‘the size
of the complement on the date and the time expected
to elapse before a substantially larger complement
would be at work . . . as well as the relative certainty
of the employer’s expansion.’’ Ibid.
In Fall River, the predecessor employer went out of busi-
ness in late summer of 1982. In September 1982, the succes-
sor, Fall River, began hiring employees and commenced op-
erations out of the predecessor employer’s facilities. Its ini-
tial hiring goal was to attain one full shift comprising 55 to
60 employees. Over the first 4 to 6 weeks the successor
company was involved in startup operations and an addi-
tional month in experimental production. Fall River attained
its initial goal of one full shift of workers by mid-January
1983. Of the 55 employees employed in mid-January, 36 of
them had been employed by the predecessor employer. The
total employee complement (55), represented over half the
workers Fall River would eventually hire. The predecessor’s
employees continued to experience the same working condi-
tions in the employ of Fall River. Thus, the production proc-
ess remained the same, and the employees continued to work
on the same machines under virtually the same supervision.
By mid-April 1983, for the first time, the predecessor’s em-
ployees comprised a minority of Fall River’s work force, al-
though just barely (52 or 53 of 107 employees). The succes-
sor was found to have been obligated to recognize the Union
as of mid-January 1983, at a time when it had begun normal
production, hired employees in virtually all job classifica-
tions, and attained a substantial and representative employee
complement. (Id., at 2451.)
I find that the factors in the instant case, as of August
1988, compare favorably with the factors present in Fall
River insofar as setting the moment when New Sullivan’s
duty to bargain arose. Here, as in Fall River, the working
conditions remained largely the same. Thus, the employees
in large part continued to operate the same machines under
substantially the same supervision to assemble or manufac-
ture products that had also been made by Old Sullivan. In
fact, all products made by New Sullivan were made by Old
Sullivan. (Some of the products made by Old Sullivan are
no longer made.) (Tr. 221–222.)
The record also disclosed that by August, the production
line was substantially off the ground with all departments in
operation (Tr. 49–50; see also R. Exh. 9). Pollock testified
that approximately 80 percent of New Sullivan’s business in-
volved manufacturing compressors or compressor parts, the
bulk of which were models D125, D175, and D185.10 The
Respondent also manufactures air operated air drills. (Tr.
100.) As noted above, these products were also manufactured
by Old Sullivan. With regard to the compressors, in August,
the Respondent exceeded its projected sales and production
for models D125 and D175 and equalled its projections for
D185. While more D185’s were produced in October than
August (58 to 20), fewer D185’s were produced in December
than in August (17 to 20). (R. Exh. 9.) It is noted that Re-
spondent’s projections for November and December were 60
and 80 for D185’s, far in excess of what was actually pro-
duced. (Id.) Pollock explained that in making projections, he
had not anticipated taking inventory in December nor had he
taken into account the holidays at the end of that month.
While he characterized the failure to do so as ‘‘stupid’’ (Tr.
177), it does nothing to enhance or inspire confidence re-
garding the accuracy or reliability of his other projections.11
In agreement with counsel for the General Counsel, I find
that New Sullivan had attained a substantial and representa-
tive complement of its unit work force in August. The record
disclosed that for the payroll period ending August 12, New
Sullivan employed 79 employees in unit positions (G.C. Exh.
6). That number represents approximately 71 percent of unit
employees appearing on the payroll list for the week ending
October 7 (G.C. Exh. 7).12 For purposes of comparison, it
is noted, that the Respondent conceded that in October, it
had attained a substantial and representative complement of
employees. However, as the employee complement in August
comprised such a high percentage (over 70 percent) of the
complement regarded by the Respondent as material and as
the Respondent’s projections of work force levels more often
than not proved to be less than planned (see R. Exh. 14), I
am unpersuaded that the Respondent was justified in with-
149SULLIVAN INDUSTRIES
13 The Respondent planned to have a unit work force entering the month
of January 1989 of 159 employees and actually hired 127 employees; it
planned on 168 employees for February 1989 and actually had only 136 em-
ployees (R. Exh. 14). Pollock testified that he projected from 150 to 160 unit
employees as the normal employee complement for the year 1989 (Tr. 262).
However, as Pollock was unsure of these projections and as I found him other-
wise to be an unreliable witness, I regard them as little more than self-serving
predictions and hardly probative.
14 On or about October 4, 1988, while the underlying refusal to recognize
charges were still pending, the Respondent recognized the Union. Within hours
of so advising the entire work force, Pollock was handed a petition signed by
majority of the unit employees stating that they did not ‘‘wish to be rep-
resented’’ by the Charging Union ‘‘or any union at this time.’’ (R. Exh. 7a.)
On October 6, 1988, the Respondent withdrew recognition. Compare, Harley-
Davidson Transportation Co., 273 NLRB 1531 (1985), where the Respondent
withdrew recognition on the basis of an employee petition but only after it
had actually bargained with the union over several months. There, the Board
did not have to address the respondent’s earlier refusal to recognize because,
inter alia, the parties subsequently met and bargained and the issue was not
presented.
holding recognition until October.13 See Jeffries Lithograph
Co., 265 NLRB 1499, 1505 (1982).
According to Respondent, the General Counsel had not es-
tablished that employees were employed in the type of job
classifications necessary to fulfill this Fall River requirement.
In this connection, the Respondent noted, that it had insti-
tuted a simplified job classification system which differed
from the elaborate classification system used by Old Sulli-
van. I find that Respondent’s reliance on this factor is, in
part, undercut, by its stipulation of ‘‘successor’’ status (sup-
ported by the record). Thus, here, unlike Fall River,
successorship was never in issue. Of greater significance is,
that here, in August, as in Fall River in mid-January, the Re-
spondent had hired employees in virtually every job category
and those employees possessed the requisite skills (if any-
thing, Old Sullivan required broader skills and versatility).
Again, here, as in Fall River, ‘‘the Respondent added no new
skills to its work force’’ at any subsequent date which it
deemed critical. (See underlying Board decision, 272 NLRB
839 fn. 1, par. 2 (1984).)
Also militating against the impact or significance of the
changes in Respondent’s job classification system is that it
‘‘attempted to use terminology familiar to the former Sulli-
van Machinery Company employees.’’ (Tr. 194.) In this con-
nection, as noted above, no new skills were required of its
work force. Thus, in the circumstances of this case, it ap-
pears that the changes were more of the paper variety than
substantive. Further, by using language familiar to Old Sulli-
van’s employees, it tends to diminish any perception these
employees might otherwise have had that their jobs had real-
ly changed. The perception of continuity, of course, is rein-
forced where, as here, the predecessor’s employees continue
to operate the same machines under the same front line su-
pervision and to assemble or manufacture the same products
(albeit less of a variety) for largely the same customers. As
far as dealing with customers, it is noted, inter alia, that Pol-
lock testified that as part of the interim management team,
they ‘‘opene[d] the doors to preserve whatever customer
good will was still present from the Sullivan Machinery
Company.’’ (Tr. 89–90.)
Here, a high degree of substantial continuity existed in
August, which evolved from the period of interim manage-
ment by AAMC (since mid-April during the bankruptcy pe-
riod). As noted previously, AAMC continued to recognize
the Union, honor Old Sullivan’s contract, and deducted union
dues. New Sullivan was incorporated in March for the pur-
pose of acquiring the assets of Old Sullivan. AAMC and
New Sullivan shared, inter alia, common stockholders. In late
June, Pollock, while serving as a high official of the AAMC
management team offered employment to the large majority
of Old Sullivan’s employees. (All but 12 employees were of-
fered jobs and most of those were also eventually hired.)
Given this backdrop, and noting that Respondent stipulated
to ‘‘successor’’ status and that a majority of its employees
at all material times were former Old Sullivan’s employees,
I find that the Respondent could not, consistent with Fall
River, lawfully withhold union recognition in August, at a
time when it had attained a substantial and representative
work force and a production line that was at or substantially
close to normal operations and meeting new customer orders.
In these circumstances, an expectancy by employees of union
representation is reasonable and legitimate. Clearly, Pollock
was not surprised when questioned by employees at the Au-
gust meeting about the Union’s representative status. In fact,
Pollock acknowledged that he had intended to discuss union
representation at that meeting as that subject was on his
agenda (Tr. 135). The Supreme Court, in Fall River, noted
the problems with union disaffection when a successor un-
duly delays recognition. There, the Court observed as fol-
lows, 483 U.S. at 39:
If the employees find themselves in a new enterprise
that substantially resembles the old, but without their
chosen bargaining representative, they may well feel
that choice of a union is subject to the vagaries of an
enterprise’s transformation. This feeling is not condu-
cive to industrial peace. In addition, after being hired
by a new company following a layoff from the old, em-
ployees initially will be concerned primarily with main-
taining 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 their
jobs with the successor or if they inclined to blame the
union for their layoff and problems associated with it.
In sum, I find that the Respondent was not justified in
withholding union recognition until October. Fall River Dye-
ing Corp. v. NLRB, supra; see also Hospital San Francisco,
293 NLRB 171 (1989). By doing so, the Respondent improp-
erly undermined the union’s majority status thereby tainting
the employee petition.14 As the Respondent was not at lib-
erty to rely on that tainted petition, I find that its withdrawal
of recognition was violative of Section 8(a)(5) as alleged.
3. The 8(a)(1) allegations
It is alleged that in August, Pollock made certain state-
ments to his entire work force at a meeting at the Respond-
ent’s facility which were coercive in violation of Section
8(a)(1). First, it is alleged in an order consolidating cases,
consolidated amended complaint and notice of hearing that
Pollock told his employees at this meeting that the Employer
would decide in early October whether it would recognize
the Union; that if anyone did not want the Union, to come
forward anytime, that he has an open door policy; and if no
one came forward, the Union would be automatic. (G.C.
Exh. 1(1), par. 9.) Shortly before the close of the hearing,
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Noting the difficulties Pollock had in recalling what he said at various
times, and in the absence of any testimony to the contrary, it is possible that
what Pollock actually told the employees was ‘‘with or without a union—man-
agement will make every effort to be fair with you’’ (R. Exh. 6). According
to Pollock, he had both sets of notes (R. Exhs. 6 and 15) back in July. In
either case, I find, in context, that the statement is not coercive.
counsel for the General Counsel amended the consolidated
amended complaint further, by alleging that Pollock also told
the employees at the same August meeting that the Respond-
ent was going to do what it intended to do with or without
a union, thereby independently violating Section 8(a)(1). (Tr.
293.) While I credit the essence of the remarks ascribed to
Pollock, I find, in context, that they fall short of reaching the
level of interference, restraint, or coercion, within the mean-
ing of Section 8(a)(1).
The meeting in question was a regularly held general
meeting in the cafeteria attended by the entire work force
(unit and nonunion employees). At these general meetings,
including the meeting in August, Pollock briefed employees
on the status of production and informed them of the Compa-
ny’s projections for the upcoming month in production, sales,
and shipments.
It appears that at some point during the aforenoted meet-
ing, one of the employees introduced the subject of the
Union by asking Pollock about the Union’s representative
status. It is not asserted that Pollock expressed any union
hostility or that he threatened any reprisals to dissuade em-
ployees from supporting the Union. While the credited testi-
mony disclosed that Pollock indicated that employees had ac-
cess to him anytime they wanted and that he had an open
door policy, I also find that he testified credibly and without
contradiction that he previously made the same statements at
general meetings without regard to the Union. As such, I
cannot find, without more, that Pollock’s reference to an
open door policy was calculated or even tended to discourage
union activity. Rather, as noted below, Pollock conveyed
neutrality on the subject of the Union at the August meeting.
Employee Leon Morin testified that Pollock, in responding
to questions raised about the Union, told the employees at
the August meeting that he ‘‘would recognize the Union; he
has no problem with it.’’ While Morin testified that Pollock
also told the employees that if they did not want the Union
they were at liberty to tell him, I fail to discern, without
more, that this invitation was coercive, particularly in the ab-
sence of any threat of reprisals or promise of benefits. As
testified by Morin, Pollock explained that as more than ‘‘51
percent of the employees were union members’’ recognition
was ‘‘automatic’’ unless the employees came forward to con-
vey their opposition. (Tr. 56–57.) Employee Patrick McCann
largely corroborated Morin’s testimony with regard to Pol-
lock declaring that he had no problem recognizing the Union
but added that Pollock also stated, that this would occur
‘‘once there was a recognizable complement of former em-
ployees within the plant.’’ (Tr. 83–83.) Contrary to the Gen-
eral Counsel, I find the statements ascribed to Pollock hardly
suggest ‘‘to employees the futility of having a bargaining
representative.’’ Rather, the opposite appears to true, to wit,
that union recognition will be ‘‘automatic’’ unless employees
inform Pollock that they oppose the Union.
I construe Pollock’s remarks as a reasonably accurate
statement of the law with regard to his obligation to recog-
nize the Union when dealing with a majority of the prede-
cessor’s employees. See, generally, Fall River, supra; see
also Peoples Gas System, 275 NLRB 505 (1985) (where, the
employer lawfully informed employees that they could resign
from the union). Here, while Pollock offered to listen to any
union disaffection, it is noted that there is a dearth of evi-
dence tending to show that he offered them any assistance
in that regard. Cf. Gupta Permold Corp., 289 NLRB 1234
(1988).
I also find the belated amended allegation without merit,
to wit, that Pollock unlawfully coerced employees by telling
them at the same August meeting that the Company would
do what it intended to do with or without a union. The
record disclosed that in discussing the subject of the Union,
Pollock relied in large part, if not entirely, on his notes. On
this subject, the notes indicate in outline form that until the
appropriate time to recognize the Union, the Company would
make ‘‘every effort to be fair with you (employees)’’ and
‘‘will do what we intend to do with or without a union.’’ (R.
Exh. 15.) Clearly, the remarks, are not per se coercive. See
Camvac International, 288 NLRB 816 (1988). I am
unpersuaded, as argued by the General Counsel, that Pol-
lock’s statement ‘‘suggests to employees the futility of hav-
ing a union.’’ It is noted that none of the General Counsel’s
witnesses recalled or at least referred to the statement in
question.15
In sum, I find that the record falls short of establishing
that the remarks made by Pollock at the meeting in question
in August are coercive or are otherwise violative of Section
8(a)(1), noting particularly an absence of any unlawful
threats or promise of benefits. Accordingly, I shall rec-
ommend that these allegations be dismissed.
CONCLUSIONS OF LAW
1. The Respondent, Sullivan Industries, Inc., is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following described unit of the Respondent’s em-
ployees is appropriate for collective-bargaining purposes:
All full-time and regular part-time employees of Re-
spondent employed at its Claremont, N.H. facility, ex-
cluding executives, supervisors, assistant supervisors,
guards, office and clerical workers.
4. At all material times since on or about August 10, 1988,
the Union has been the exclusive collective-bargaining rep-
resentative of the employees in the above-described unit.
5. By failing and refusing on and after August 10, 1988,
to recognize and bargain with the Union as the representative
of the employees in the above-described unit, the Respondent
violated Section 8(a)(5) and (1) of the Act.
6. While the Respondent briefly recognized the Union in
the above-described unit on or about October 4, 1988, it
withdrew recognition on or about October 6, 1988, in viola-
tion of Section 8(a)(5) and (1) of the Act.
151SULLIVAN INDUSTRIES
16 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 objec-
tions to them shall be deemed waived for all purposes.
17 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National 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.’’
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
8. The General Counsel has not established that the Re-
spondent independently violated Section 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and that it take certain actions
designed to effectuate the policies of the Act.
Having found that the Respondent violated Section 8(a)(5)
and (1) of the Act by first refusing to recognize and bargain
with the Union on or about August 10, 1988, and then rec-
ognizing the Union on or about October 4, 1988, only to un-
lawfully withdraw recognition on or about October 6, 1988,
in violation of Section 8(a)(5), I shall recommend that the
Respondent be ordered to recognize and bargain with the
Union.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The Respondent, Sullivan Industries, Inc., Claremont, New
Hampshire, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the Union as
the exclusive collective-bargaining representative of its em-
ployees in the appropriate unit.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain collectively with the Union as ex-
clusive representative of the employees in the unit found ap-
propriate here, concerning rates of pay, wages, hours, and
other terms and conditions of employment and, if an agree-
ment is reached, embody it in a signed contract.
(b) Post at Claremont, New Hampshire facility, copies of
the attached notice marked ‘‘Appendix.’’17 Copies of the no-
tice, on forms provided by the Regional Director for Region
1, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable 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 Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that those allegations found
here to be without merit are hereby dismissed.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with United
Steelworkers of America, AFL–CIO, as the exclusive rep-
resentative of the following unit:
All full-time and regular part-time employees of Sulli-
van Industries, Inc., at our Claremont, N.H. facility, ex-
cluding executives, supervisors, assistant supervisors,
guards, office and clerical workers.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them under Section 7 of the Act.
WE WILL, on request, bargain collectively with the afore-
said Union as the exclusive representative of all employees
in the appropriate unit described above with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agreement.
SULLIVAN INDUSTRIES, INC.