United States Can Co.

National Labor Relations Board - Board Decisions

Jan 15, 1992

305 N.L.R.B. 1127 (N.L.R.B. 1992)

1127
305 NLRB No. 178
UNITED STATES CAN CO.
1 Thereafter, the Respondent filed a motion for leave to file limited
response to answering brief of Charging Party, and the Charging
Party filed a motion to strike portions of the Respondent’s answering
brief. In addition, the Charging Party submitted a motion to file a
supplemental memorandum regarding the effect, on the 10(b) issue
in this case, of a lawsuit filed by the Charging Party seeking to en-
join the Respondent’s acquisition of the general packaging division
of Continental Can Company.
We deny the Charging Party’s motion to strike portions of the Re-
spondent’s answering brief, but we grant the remaining motions and
accept the supplemental documents filed by the parties. In light of
our findings, however, we find it unnecessary to pass on the merits
of the parties’ contentions raised in the supplemental documents.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 the findings.
No exceptions were taken to the judge’s finding that a unit of the
four plants acquired by the Respondent from Continental Can Com-
pany remained appropriate after their acquisition by the Respondent
and that the Respondent violated Sec. 8(a)(5) by refusing to bargain
with the Union on a multiplant basis on and after August 20, 1987.
The General Counsel and Charging Party except to the judge’s
failure to include the office and plant clerical employees at the con-
solidated Clearing and North Grand plants in the unit description set
forth by the judge in her conclusions of law. We find merit in this
exception. In accordance with par. VI of the first amended com-
plaint, we correct the unit description to include the office and plant
clerical employees at the Clearing/North Grand plants.
3 All dates are in 1987 unless otherwise indicated.
4 NLRB v. Burns Security Services, 406 U.S. 272 (1972). As noted
by the judge, where, as here, the Respondent made it ‘‘perfectly
clear’’ in its May 14 letters that it was retaining all of Continental’s
employees, its obligation under Burns included not only the duty to
recognize and bargain with the Union, but also to ‘‘consult with the
employees’ bargaining representative before [fixing initial] terms’’ of
employment. Id. at 294–295. In the absence of such consultation, the
Respondent’s obligation was to continue in effect those terms and
conditions of employment which the unit employees enjoyed under
Continental’s operations.
5 Accordingly, like the judge, we find it unnecessary to pass on
whether the Respondent became bound to the contract under a stock
transfer theory.
6 S-H Food Service, 199 NLRB 95 fn. 2 (1972).
7 Holiday Inn of Victorville, 284 NLRB 916 (1987).
United States Can Company, a wholly owned sub-
sidiary of Inter-American Packaging, Inc. and
United Steelworkers of America, AFL–CIO–
CLC. Case 13–CA–27510
January 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 16, 1990, Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel and the Charging Party filed
cross-exceptions and supporting briefs. The General
Counsel and Charging Party filed answering briefs to
the Respondent’s exceptions, and the Respondent filed
an answering brief to the General Counsel’s and
Charging Party’s cross-exceptions.1
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,2 and con-
clusions and to adopt the judge’s recommended Order
as modified.
We agree with the judge that the Respondent, on its
acquisition of the four plants that comprised the gen-
eral packaging division of Continental Can Company,
adopted its predecessor’s collective-bargaining agree-
ment. In addition to the reasons set forth by the judge,
we rely on the letters dated May 14, 1987,3 that the
Respondent’s vice president, Barry Brock, mailed to
each local union president at the four plants. In those
letters Brock announced the completed acquisition of
the general packaging plants and invited each local
union president to meet and negotiate a new collective-
bargaining agreement between the Respondent and
each local union. The Respondent also stated in the
letters that ‘‘[i]n the interim, the terms and conditions
including wages, benefits and working conditions as
they presently exist under the collective bargaining
agreement with the Continental Can Company shall re-
main in effect.’’
The meaning of this sentence is ambiguous and sus-
ceptible to several interpretations. The Respondent may
have intended by this sentence to inform the Union
that it would maintain existing terms and conditions of
employment that it was required under Burns4 to main-
tain until a new agreement or impasse was reached.
But the sentence is equally susceptible to an interpreta-
tion that the Respondent was expressly adopting its
predecessor’s contract in toto. Given this ambiguity
from the very outset of the Respondent’s communica-
tions with the Union, an examination of the Respond-
ent’s subsequent conduct becomes necessary. We agree
with the judge, for the reasons set forth by her, that
the Respondent by its conduct adopted and became
bound to its predecessor’s contract.5 In this regard, we
note particularly that the Respondent honored the
union-security and checkoff provisions of the prede-
cessor’s contract. These are matters which are depend-
ent on the existence of a current contract.6 In addition,
the Respondent relied on the management-rights provi-
sion of the predecessor’s contract, a provision that or-
dinarily ceases to have effect if the contract no longer
exists.7 Finally, the Respondent’s actions in this re-
spect continued for the duration of the contract, there-
by indicating an intention to be bound for the duration
of the contract or at least an intention to be bound
until a new contract was reached.
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The judge mistakenly found that the Respondent first repudiated
the IPJO in December at the Clearing plant rather than in September
at the Burns Harbor plant. This error does not affect the outcome
of our decision.
We reject the Respondent’s argument that the discontinuance of
the IPJO occurred on May 26. Although the Respondent told the
Union on that date that it would not adhere to the IPJO, that state-
ment was in the context of its contemporaneous statement that it
would not adhere to the contract. As discussed above, the Respond-
ent’s statement as to the contract was belied by its subsequent con-
duct. It was not clear until September that the Respondent in fact
would not adhere to the IPJO.
9 Accordingly, we find it unnecessary to decide whether the Octo-
ber 1988 charge was timely under the Board’s decisions in Farming-
dale Iron Works, 249 NLRB 98 (1980), and A & L Underground,
302 NLRB 467 (1991).
10 The Charging Party excepts to the judge’s failure to provide in
her recommended Order a provision requiring the Respondent to
make whole any employee for losses attributable to its unlawful dis-
continuance of IPJO. We find merit in this exception, and we shall
modify the recommended Order accordingly.
Having found that the Respondent was bound to the
predecessor contract, it follows that the Respondent’s
unilateral discontinuance of the Interplant Job Oppor-
tunity Program (IPJO), a contractually established term
and condition of employment, was clearly unlawful.8
Contrary to the Respondent, we do not find that the
amended charge filed by the Union in October 1988
alleging the IPJO violation is time-barred by Section
10(b) of the Act. We agree with the judge that the al-
legations in the October 1988 charge and the timely
filed January 1988 charge are closely related within the
meaning of Redd-I, Inc., 290 NLRB 1115 (1988). See
also Concord Metal, 295 NLRB 742 fn. 2 (1989).9
Therefore, we reject the Respondent’s argument that
the complaint allegations based on the October 1988
charge should be dismissed.10
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, United
States Can Company, a wholly owned subsidiary of
Inter-American Packaging, Inc. Oak Brook, Illinois, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) Rescind the unilateral discontinuance of IPJO,
take actions consistent with the terms set forth in arti-
cle 29 of the 1986–1989 Master Agreement to apply
that program to eligible applicants, and make the unit
employees whole for any losses they may have suf-
fered because of the Respondent’s discontinuance of
IPJO, with interest computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
WE WILL NOT refuse to bargain with the United
Steelworkers of America, AFL–CIO–CLC in an appro-
priate multiplant unit comprised of employees rep-
resented by the Union and its Locals at our plants in
Derry, New Hampshire, Burns Harbor, Indiana, Pas-
saic, New Jersey, and Chicago, Illinois.
WE WILL NOT unilaterally alter terms and conditions
of employment by refusing to recognize and bargain
with the Union as the collective-bargaining representa-
tive of employees in an appropriate multiplant unit or
by unilaterally discontinuing the Interplant Job Oppor-
tunity Program.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed by Section 7 of the Act.
WE WILL, on request, bargain collectively with the
United Steelworkers with respect to rates of pay,
wages, hours of work, and other terms and conditions
of employment for employees represented by the
Union and its Locals in the multiplant unit described
above, and embody any understanding which may be
reached in a signed collective-bargaining agreement.
WE WILL restore the Interplant Job Opportunity Pro-
gram in accordance with article 29 of the 1986–1989
Master Agreement, and take necessary actions to make
that program available to eligible ‘‘IPJO’’ applicants
and WE WILL make unit employees whole for any loss
of earnings they may have suffered as a result of our
unlawful discontinuance of IPJO, with interest.
UNITED STATES CAN COMPANY, A
WHOLLY OWNED SUBSIDIARY OF INTER-
AMERICAN PACKAGING, INC.
Linda McCormick, Esq., for the General Counsel.
Rody P. Biggert, Esq. and Condon A. McGlothlen, Esq.
(Seyfarth, Shaw, Fairweather & Geraldson), of Chicago,
Illinois, for the Respondent.
Richard J. Brean, Esq., of Pittsburgh, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Unfair labor
practice charges were filed in this matter by the United Steel-
workers of America, AFL–CIO–CLC (the Union), on Janu-
ary 20, 1988, and amended on January 27 and October 4.
1129UNITED STATES CAN CO.
1 On May 18, 1989, Respondent filed a Motion for Summary Judg-
ment which the General Counsel and the Charging opposed. The
Board denied the Motion on October 5, 1989. Because the Board did
not deny Respondent’s motion with prejudice, I have considered
these pretrial pleadings in resolving Respondent’s argument that the
Union’s charge was untimely filed pursuant to Sec. 10(b) of the Act.
2 Enfd. 604 F.2d 689 (D.C. Cir. 1979).
3 Generally speaking, the container industry product lines fall into
three major groupings: beer and beverage; food and general pack-
aging.
4 The Clearing and North Grand plants, both located in Chicago,
were consolidated with two seperate units operating out of one
building prior to its closure in early 1989. The Passaic plant was
closed in late 1988.
5 CCC Series 200 was incorporated in 1985 as a wholly owned
shell corporation for indefinite use.
6 Unless otherwise noted, all events occurred in 1987.
Thereafter, a complaint issued on April 29, as amended on
June 21 and December 2, alleging that the Respondent,
United States Can Company (US Can or Respondent), vio-
lated Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act) by insisting on bargaining on a single plant
basis with each of four plants which prior to their acquisi-
tion, were part of a multiplant unit covered by a master col-
lective-bargaining agreement and by unilaterally altering
terms and conditions of employment.
This case was tried before me on February 13 through 15,
1990, in Chicago, Illinois, at which times the parties had full
opportunity to examine witnesses, introduce documentary
proof, and argue orally. Taking the witnesses’ demeanor into
account, and upon the entire record, including able posttrial
briefs submitted by the parties,1 pursuant to Section 10(c) of
the Act, I make the following
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
At all times material, Respondent, a corporation with an
office and place of business in Oak Brook, Illinois, has oper-
ated plants for manufacturing metal containers at various lo-
cations within and outside the State of Illinois. During the
past calendar or fisal year, a representative period, in the
course and conduct of its business operations, Respondent
sold and shipped from its various plants within the State of
Illinois products, goods, and materials valued in excess of
$50,000 directly to points outside the State. Accordingly, the
complaint alleges, Respondent admits, and I find that US
Can is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
The Union is now and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
Issues
Through a series of complicated transactions, Respondent,
US Can, ultimately acquired nine plants which originally
were part of the General Packaging Division of Continental
Can Company. Employees in four of these plants were rep-
resented by the Steelworkers and covered by a master labor
agreement. Considering itself a successor, Respondent agreed
to abide by all of the economic and some noneconomic terms
of the master agreement. However, Respondent insisted it
was not bound by its predecessor’s contract nor obliged to
bargain on a multiplant basis.
Given these bare facts, the pleadings in this case pose the
following overarching questions
(1) whether Respondent is bound to the Master
Agreement and thereby required to bargain on a a
mutlti-plant basis either because (a) adopted the Master
Agreement through a course of conduct; or (b) pur-
chased the four plants through a stock transfer so that
it continued as the same legal entity.
(2) Whether or not Respondent was bound to the
Master Agreement, was it obliged to bargain on a
multiplant basis under the teachings of White-Westing-
house Corporation, 229 NLRB 667 (1977).2
(3) Whether Respondent unlawfully discontinued an
‘‘Inter-Plant Job Opportunities’’ program (IPJO) with-
out notice to or bargaining with the Union.
(4) Whether the unfair labor practices alleged in the
complaint are time- barred by Section 10(b) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Acquisition of Continental’s General
Packaging Division
1. Background facts
Continental Can Company, Inc. (Continental) manufactures
containers for various uses at facilities throughout the world.3
For a number of decades, Continental’s production and main-
tenance employees (and some clerical workers) in 40 units
at various plants across the United States were represented
by the Union and covered by a series of multiplant, master
collective-bargaining agreements, the most recent of which
was effective from March 4, 1986, to February 19, 1989.
Among the 40-bargaining units covered by the master agree-
ment were the 4 involved in this proceeding located at Burns
Harbor, Indiana; Derry, New Hampshire; Passaic, New Jer-
sey; and Clearing/North Grand (Chicago), Illinois. Employ-
ees at the Clearing/North Grand and Passaic locations have
been included in the bargaining unit since 1956; those at
Burns Harbor were added in 1975 and those at Derry in
1985.4
2. Continental’s contribution transaction
In 1986, Continental decided to sell its general packaging
division which was operating at a loss of approximately $1
million a month. To facilitate the sale, Continental trans-
ferred all assets and liabilities of its general packaging facili-
ties (excluding obligations relating to relevant collective-bar-
gaining agreements) to a wholly owned subsidiary known as
CCC Series 200, Inc. (Series 200). In return, Continental re-
ceived all of Series 200’s common stock.5 On January l,
1987,6 Continental also transferred to Series 200 all relevant
collective-bargaining agreements including the master agree-
ment at issue. At the same time, Series 200 transferred to
Continental all pension liability for employees who retired
from Series 200 prior to January 1, 1987. Continental admit-
tedly engaged in these business manuevres, known as the
‘‘Contribution Transaction’’ in order to minimize the tax li-
ability it would have incurred had it sold the general pack-
aging division assets directly.
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Two other plants in Continental’s General Packaging Division
were not included in the sale.
8 Production and maintenance employees at three of the plants al-
ready owned by Respondent in Elgin, Illinois, Hubbard, Ohio, and
Tallapoosa, Georgia, were represented by the Steelworkers and cov-
ered by individual collective-bargaining agreements.
9 In fact, this note was canceled since Series 200 suffered capital
losses which exceeded the amount of the note.
10 See G.C. Exh. 19 at 4, § 1.02.
11 The acquisition agreement bestowed on Continental the right to
terminate the acquisition agreement or to repurchase GP common
The transfer of Continental’s general packaging division to
Series 200 in no way affected the operations of the plants
involved. As the parties stipulated, ‘‘Subsequent to the Con-
tribution Transaction, day-to-day operations at the plants con-
tinued unchanged until May 13, and Continental continued to
perform all administrative functions for the business.’’ In-
deed, the Union never was informed of the Contribution
Transaction and was unaware of Series 200’s existence.
3. Acquisition agreement
In the fall of 1986, US Can, a wholly owned subsidiary
of the Inter-American Packaging Co. (IAP), surfaced as a po-
tential purchaser of Continental’s general packaging plants
which included in addition to the four plants involved in this
proceeding, two plants whose bargaining unit employees
were represented by the International Association of Machin-
ists and another two plants which were not organized.7 Prior
to the sale, Respondent owned five other general packaging
plants.8
As negotiations between Continental and Respondent pro-
gressed, both parties took certain steps to ensure that the sale
would take the form of a stock transfer in order to protect
their respective financial interests. Toward this end, Series
200 recapitalized, replacing Continental’s old common stock
with 500 new shares and awarding it 2000 shares of pre-
ferred stock. In addition, Series 200 declared a $10 million
dividend which it paid by issuing a note for that amount to
Continental.
At the same time, US Can’s parent, Inter-American Pack-
ing (IAP), formed a wholly owned corporation, GP Acquisi-
tion Company, Inc. (GP), whose officers also held office in
US Can. GP would become the legal entity which initially
purchased Series 200.
Thereafter, on May 13, Continental and Series-200 exe-
cuted an acquisition agreement with IAP, GP, and US Can
which provided that on that date, closing date, GP acquire
all of Series 200’s common stock from Continental for $100.
The acquisition agreement further provided that on an un-
specified future date, the parties would file a certificate of
merger and incorporation with the Secretary of the State of
Delaware. US Can then would merge into Series 200 with
Series 200 being the surviving corporation. Immediately
thereafter, Series 200 would change its name to US Can. At
that juncture, Continental would be paid $55 million in pre-
ferred stock and $10 million in the form of a note as the bal-
ance of the consideration owed for the general packaging
plants.
Concurrent with the execution of the acquisition agree-
ment, the officers of Series 200, all of whom were officers
of CCC, resigned and were replaced by GP’s officers, all of
whom also were officers of US Can. From that day forward,
Respondent considered itself the owner of the newly ac-
quired plants, although as a legal matter, GP was the cor-
porate entity which absorbed the Continental operations.
Respondent’s witnesses explained that although the acqui-
sition agreement resulted in the transfer of assets, the sale
was structured as a stock transfer because such an
arrangment coveyed significant economic advantages to both
Continental and US Can. As noted previously, Continental
harvested enormous tax advantages it would not have ob-
tained had it structured the sale as an outright sale of assets.
Indeed, Respondent’s vice president, James Healy, who was
intimately involved in the acquisition, commented that Conti-
nental went through ‘‘some tax girations’’ (sic), but by so
doing, saved ‘‘many millions of dollars.’’
US Can benefited from the stock transfer acquisition as
well. Continental’s need to structure the transaction as a
stock transfer reduced the purchase price. Further, with GP
serving as the literal owner, Respondent was able to engineer
the deal at a time when its own hands were tied by financial
constraints. Specifically, at the time that Continental and Re-
spondent were negotiating for the acquisition of the General
Packaging Division, US Can was precluded from incurring
additional debt by virtue of restrictive covenants imposed by
its banking syndicate, Ameritrust. If Respondent had pur-
chased the General Packaging Division directly, it would
have acquired not only the assets of Series 200, but millions
of dollars in losses as well; losses which would have been
treated as debt. This would have constituted a technical de-
fault on its banking commitments, a result Respondent
wished to avoid since at that same time, it was attempting
to refinance its entire business with the help of a new bank-
ing group. Therefore, the formation of GP as a separate cor-
poration with the power to acquire the General Packaging
Division from Series 200 without limitations on its indebted-
ness, freed Respondent of concern about exceeding its debt
ceiling or jeopardizing its refinancing strategies.
4. Merger of Series 200 with US Can and
completion of the aquisition
Pursuant to the terms of the acquisition agreement, a cer-
tificate of merger of US Can into Series 200 and certificate
of incorporation of the surviving corporation were filed with
the State of Delaware on September 25. Immediately there-
after, the survivor, Series 200, was renamed US Can, the Re-
spondent. At the same time, GP merged into IAP and ceased
to exist.
The 5-month hiatus between the May 13 stock purchase
closing date and the merger was due to Respondent’s efforts
to refinance its entire operation; efforts which did not cul-
minate until September 25. On that date, Respondent suc-
ceeded in replacing Ameritrust with a new banking group
which relieved it of the debt ceiling imposed by Ameritrust
and permitted it to recapitalize. Consequently, Respondent
was able to transfer to Continental preferred stock valued at
$55 million and redeem the $10 million note.9
Thus, it was not until September 25 that this elaborate fi-
nancial undertaking came to fruition. On that date, referred
to as the ‘‘Effective Date’’ in the acquisition agreement,10
Respondent transferred to Continental the greater part of the
promised consideration for the purchase, and thereby per-
fected the transaction.11 Once the merger was accomplished,
1131UNITED STATES CAN CO.
stock for $100 until the merger took place. Thus, in large measure,
the transaction was contingent upon US Can’s ability to obtain new
financing, and thereby eradicate its debt ceiling so that the merger
could occur.
12 This same provision appeared in the May 11 copy of the acqui-
sition agreement which Lynch received. (See G.C. Exh. 18 at 75–
76.)
Respondent emerged as the independent corporate entity
which owned the Clearing/North Grand, Derry, Burns Har-
bor, and Passaic plants.
B. Union’s Knowledge of the Acquisition and its
Bargaining Relationship with Respondent
In late 1986, David Stulman, Continental’s director of
labor relations, informed Leon Lynch, the Union’s Inter-
national vice president and chairman of its container industry
conference, that Continental and US Can were negotiating
with regard to the General Packaging Division. Initially,
Stulman told Lynch that Continental was interested in
pruchasing US Can. Shortly thereafter, he informed Lynch
that the two companies might engage in a joint venture.
On March 18, 1987, Stulman and Continental’s president,
Richard Hoffman, met with Lynch and another union rep-
resentative to outline the current state of the negotiations. At
this time, Hoffman explained that Continental was close to
a deal to sell the Clearing/North Grand, Passaic, Derry, and
Burns Harbor plants to US Can in exchange for preferred
stock, with a right to respossess the plants if dividends were
not paid properly. Expressing concern that negotiated bene-
fits for union members remain intact, Lynch asked the Conti-
nental official to urge US Can officials to accept the master
agreement, and requested a copy of the sales agreement once
the deal was consummated.
During a telephone call the following month, Lynch sug-
gested that Stulman arrange a meeting between the Union
and US Can. When Stulman indicated that US Can officials
did not wish to meet with the Union until the deal was con-
cluded, Lynch chose to send an identical letter dated April
27 to both companies. At the outset Lynch wrote that he un-
derstood Continental and US Can had reached a definitive
contract for the sale of the General Packaging Division, sub-
ject to financing arrangements. He then asked whether US
Can would recognize the Union, retain or hire all former
Continental employees, and adopt the master agreement.
B. C. Brock, Respondent’s vice president for human re-
sources, responded by letter of May 1, stating that because
negotiations were at a critical juncture, a definitive response
would be inappropriate. He added that if the transaction was
concluded successfully, US Can ‘‘will enter into discussions
with the appropriate local bargaining committee.’’ (G.C. Exh.
23.) In a response dated May 11, Stulman wrote that he did
not believe US Can would adopt the master agreement. He
further explained that Continental would continue to be re-
sponsible for pension payments for employees who retired up
to the date of the sale, after which US Can would establish
an identical plan.
Although Stulman had advised Lynch that the agreement
was confidential, he nevertheless mailed him an anonymous
draft copy (minus appendices and disclosure statement) in
mid-May. The cover of the 155 page draft was dated May
11 and titled ‘‘Acquisition Agreement’’ among Continental,
CCC Class 200 Inc., Inter-American Packaging, Inc., GP
Holding Company, and US Can. A handwritten note on the
cover stated ‘‘Timing on bank’s consent.’’ (G.C. Exh. 18.)
At this point, the Union was unaware that Continental had
conveyed the master agreement to Series 200. Lynch briefly
reviewed the document and then forwarded it to the Union’s
legal department.
As outlined above on May 13, 1987, GP (renamed Series
200) assumed control of the former Continental plants. By
letter of May 14, Brock wrote to each local union president
at the four plants involved (with a copy to Lynch) announc-
ing that US Can had acquired Continental’s General Pack-
aging Division, and inviting them to negotiate a new collec-
tive-bargaining agreement with the Respondent.
On receiving copies of these letters, Lynch telephoned
Brock, advised him that negotiations should be with the
International Union as the authorized collective-bargaining
representative of the various units, and proposed a meeting
for May 26 in Chicago. As agreed, on that date, Brock and
Respondent’s counsel, Rody Biggert, met with Lynch who
was accompanied by the locals’ presidents, union counsel,
Joy Delaney, and others. Lynch began by welcoming US Can
‘‘to the family of the United Steelworkes,’’ stating that ‘‘We
are pleased to have you succeed Continental.’’ (G.C. Exh. 45
at 1.) Brock then explained that US Can had signed an
agreement to purchase the General Packaging Division effec-
tive May 13, and that although the Company would recog-
nize the Union and bargain on a plant-by-plant basis, it
would not assume the master agreement. He next distributed
an 11-page segment of the final acquisition agreement titled,
‘‘Employees,’’ and read section 6:03 aloud. It provided that
The Surviving Corporation, as a successor employer,
shall recognize and bargain on a plant-by-plant basis
with the unions that represent Employees at any plant
bargaining unit covered by this Agreement. The
Surviing Corporation shall offer employment to all Em-
ployees covered by the Collective Bargaining Agree-
ments.
The Surviving Corporation does not agree to accept
the terms of any master labor agreement. However, the
Surviving Corporation shall provide the economic ben-
efit levels presently in effect under the Collective Bar-
gaining Agreements for their term including, but not
limited to, the following benefits: Wages and Salaries;
Overtime; Holidays; Vacation and Expanded Employ-
ment Opportunities; Insurance; Pensions; Supplemental
Employment Benefits and Severance Allowance. The
Surviving Corporation also agrees to union security and
checkoff, and to honor length of service with CCC (Se-
ries 200) and GP. [G.C. Exh. 19 at 74–75.]12
Later in the meeting during a discussion of some financial
aspects of the acquisition, union counsel Delaney pointed out
that the agreement referred to a stock purchase closing date
and asked whether the transaction was a stock purchase, a
sale of assets, or both. Biggert suggested that the matter was
complex and could not be characterized as either.
As the meeting progressed, Lynch indicated that while the
Union’s priority was to maintain the master agreement, at a
minimum, bargaining had to be on a multiplant basis. He fur-
ther suggested that the parties could agree to limit the Inter
Plant Job Opportunity program (IPJO) (a contractual under-
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The parties had a few other nonproductive contacts in 1988. On
October 19, 1988, Lynch and the vice president of the IAM sent a
joint letter to Brock stating that both unions wished to negotiate a
multiplant agreement. Brock rejected the overture stating that ‘‘little
can be accomplished by continued restatement of our respective po-
sitions on this matter.’’ (G.C. Exh. 32.) Also, in October, Lynch ar-
ranged a meeting between Brock and the Union’s district director in
California, Bob Guadiana, since Respondent was considering pur-
chasing another Continental plant in that State which was covered
by the Steelworkers’ master agreement. Although Guadiana initially
expressed interest in such negotiations, he subsequently retreated
telling Brock that the California plant would have to be included in
the master agreement.
14 At the end of the May 26 meeting, Brock told Lynch that al-
though Respondent would follow the grievance arbitration provi-
sions, it would not agree to expedited arbitration or a permanent um-
pire as provided in the contract.
taking which provided for trqnsfers of laid-off employees to
available positions at other Continental plants) solely to the
four plants involved in the acquisition. Brock responded that
these plants had nothing in common.
Before the meeting concluded, Lynch requested a copy of
the entire acquisition agreement. As he explained at the hear-
ing, Lynch made this request after observing several dif-
ferences between the draft Stulman had sent him and the sec-
tion which Brock distributed. Specifically, the cover sheet of
the draft was dated May 11, rather than May 13, and an enti-
ty referred to as GP Holding Co. was supplanted by one ti-
tled GP Acquisition. In addition, he noted that the pages
within the excerpt were numbered differently than those in
the draft. Biggert responded to Lynch’s request for a com-
plete agreement by commenting that the Union had enough
to do. Lynch then promised to ‘‘decipher’’ the document
which Brock had given them and return with more detail and
comments. However, he insisted that ‘‘There is no way that
we plan to separate these four plants.’’ (G.C. Exh. 45 at 21.)
Biggert closed by saying that ‘‘we are in preliminary discus-
sions’’ and that ‘‘rather than trying to draw lines at this
point, [let’s] get the issues in a form which we can talk with
substance.’’ (G.C. Exh. 45 at 20.) In fact, the Union did not
obtain a copy of the complete agreement until after the
charge was filed in this matter.
In a June 1 letter, Lynch wrote to Stulman that Brock had
taken the position that the master agreement did not apply
and that bargaining on a multiplant basis was not required.
Amplifying on these comments at the hearing, Lynch testi-
fied that he believed the Respondent simply was taking a
hard line in putting forth its bargaining proposals.
During a meeting on June 28, Stulman advised Lynch that
a lawsuit filed on June 1 by the International Association of
Machinists (IAM) was delaying the financing of the pur-
chase. In fact, Lynch knew of the case having spoken with
an IAM vice president about the prospect of such an action
several months earlier. Lynch understood generally that the
complaint, which alleged a fraudulent conveyance, was in-
tended to prevent the transaction from being consummated.
However, he maintained that he was unfamiliar with the de-
tails of the case and had never read any of the pleadings.
Lynch contacted Brock next on July 14, 1987, to invite
him to attend a conference of the ‘‘Can Council,’’ a group
composed of the Steelworkers and the three major container
producers in the United States. When Lynch advised him that
the Can Council participants were signatories to the Union’s
master agreement, Brock declined to attend. Brock again told
Lynch that Respondent would not sign or adopt the master
agreement and would negotiate only plant by plant. Reacting
strongly to these words, Lynch warned Brock that the Union
would bring its legal and economic might to bear against Re-
spondent and that single plant bargaining would never hap-
pen. When Brock asked if Lynch was refusing to bargain, the
union leader said that was not the case.
Subsequently, Brock sent Lynch some suggested meeting
dates and a draft proposal for the two units at the
Clearing/North Grand plant. Lynch replied that he Union was
prepared to negotiate but for the purpose of reaching a single
agreement covering all four plants. Brock wrote again reit-
erating that Respondent would not accept the master agree-
ment or bargain on a multiplant basis.
When the parties met next on August 20, it was clear that
neither side had altered their positions: Brock confirmed that
US Can would not apdot the master agreement or agree to
multiplant bargaining. Equally adamant, Lynch restated the
Union’s position that the Respondent should accept the mas-
ter agreement or, alternatively, bargain for a single agree-
ment covering all four plants. With the lines clearly drawn
on this issue, Brock stated that they were at impasse. Lynch
disagreed, pointing out that since Respondent had accepted
the economic terms of the master agreement, usually the
most difficult items to resolve in collective bargaining, in ac-
tuality, the parties were not far apart. Brock concurred in this
agreement, but maintained that since each of the four plants
performed different functions and local conditions varied,
Respondent had to tailor the labor agreement to the special
circumstances of the individual facilities.
No further negotiations took place in 1988 nor have the
parties reached agreement on a new contract to succeed the
master agreement which expired on February 19, 1989.13
C. Respondent’s Labor Policies and Practices
Following the Acquisition
As described above, the Union learned on May 26 that Re-
spondent would ‘‘provide the economic benefit levels pres-
ently in effect under the Collective Agreement for their term
including . . . Wages and Salaries; Overtime, Holidays; Va-
cation and Explanded Employment Opportunities; Insurance;
Pensions; Supplemental Unemployment Benefits and Sever-
ance Allowance.’’ (G.C. Exh. 19 at 75.) In addition, Re-
spondent pledged to observe seniority for all purposes and
continue union security and checkoff. As Brock explained at
the hearing, Respondent agreed to preserve these terms in the
hope that by avoiding labor strife, the Company could assure
its customers that it would carry on as a reliable supplier.
Notwithstanding its formal repudiation of the master
agreement, the Respondent observed a number of contractual
terms beyond those identified in the acquisition agreement.
It is undisputed that Respondent paid contractually mandated
$300 bonuses to bargaining unit employees on February 18,
1988. In February 1988 and 1989, Respondent also factored
annual cost-of-living adjustments into the employees’ regular
hourly wage rates in accordance with the master agreement.
Respondent also agreed to adhere to the grievance and ar-
bitration procedures in the master agreement with one excep-
tion.14 But Respondent did more than simply follow the con-
tract’s procedural requirements; numerous documents in evi-
1133UNITED STATES CAN CO.
15 On several occasions, Crisp wrote third-step grievance answers
stating that Respondent was not obligated to follow the master
agreement.
16 Dupree acknowledged that he failed to follow up on manage-
ment’s agreement to hold monthly meetings.
17 The Respondent’s refusal to accept the multiplant unit or the
IPJO program are separate issues which will be discussed in greater
detail elsewhere in this decision.
dence show that Respondent’s plant managers frequently in-
voked various provisions in the Agreement to resolve sub-
stantive disputes.
For example, at the Passaic facility, Plant Manager Martin
denied a grievance concerning the discharge of an employee
who had worked for less than 30 days by citing section 12.3
of the master agreement which provided that no grievance
may be filed contesting the discharge of a probationary em-
ployee. In September 1988, an interim plant manager at Pas-
saic authorized payments at overtime rates to three grievants
based on alleged violations of the contracting out provisions
of article 2.4 of the master agreement. The official told the
local union president that he was settling these grievances
because of previous unfavorable arbitration rulings against
the Company in similar cases.
Clearing/North Grand Plant Manager Prosky also relied
upon article 2.4 in denying 23 grievances filed between May
1987 and May 1988, all of which dealt with alleged subcon-
tracting violations. Again, in February 1988, Prosky invoked
the master agreement’s management-rights clause to deny an
employee’s claim that his seniority rights were violated. He
wrote, in pertinent part:
Local Management denies that it has violated any labor
agreement provisions. As specified in the Master
Agreement, ‘‘management responsibilities’ mean that
‘‘. . . the Company shall manage the plant, direct the
work forces, plan, direct, and control plant operations,
. . . relieve employees from duty because of lack of
work and for other legitimate reasons.’’ This is exactly
what Local Management did.
Moreover, Prosky referenced article 8.4 regarding excep-
tions to overtime pay in denying a grievant’s claim on Feb-
ruary 26, 1988. The plant manager for Human Relations at
Clearing/North Grand also cited the master and local practice
in denying a grievance related to a rearrangement of the holi-
day schedule. In contrast to the many times that Prosky in-
voked the provisions of the labor contract, on three occasions
he rejected grievances on the grounds that the master agree-
ment no longer applied. However, he did not begin to take
this position until the end of 1987.
Again, in June 1988, Respondent processed two grievances
eith reference to article 14.2, a ‘‘Justice and Dignity’’ provi-
sion requiring the suspension of discipline against employees
until their grievance were resovled. The record further shows
that Respondent followed the safety and health procedures
contained in article 16 at least at one of the four plants.
Thus, Dupree, the local union president at Burns Harbor, tes-
tified without dispute that after the union grieved Respond-
ent’s failure to conduct timely joint labor management safety
and health committee meetings as required by section 16.2,
Crisp, a corporate director of industrial relations at a com-
panywide level, wrote a third-step answer which promised
that the Company would hold regular meetings.15 Burns Har-
bor Plant Manager Stiner also assured Dupree that monthly
safety meetings would be held and inspection reports issued.
However, Dupree acknowledged that he failed to follow up
on management’s agreement to hold monthly meetings.16
The local union president at the Derry plant also conceded
that at about the time of the takeover, the safety meetings
simply ceased and never resumed.
In addition to the provisions discussed above, the Re-
spondent continued to abide by a wide array of other terms
in the agreement including article 2.3 (prohibiting nonbar-
gaining unit employees from working on bargaining unit
jobs); 4.2 (preservation of local customs not in conflict with
the agreement); 6 (management rights); 15 (leaves of absence
without pay); 18 (union bulletin boards); 20 (access of non-
employee union representatives); 21 (military service); 25
(no strike-no lockout); 27 (bereavement leave).
In support of its position that it did not assume the master
agreement, the Respondent pointed out that there was a num-
ber of noneconomic terms which it did not implement such
as its refusal to recognize the multiplant bargaining unit de-
fined in article 2, the discontinuance of the Inter-plant Job
Opportunity Program outlined in article 29, and rejecting of
a permanent arbitrator or expedited arbitration outlined in ar-
ticles 13.9 and 13.10.17 In response to Respondent’s conten-
tion, the General Counsel and the Union countered that many
of the provisions, which the Respondent claimed to have re-
jected, never were implemented either before or after Re-
spondent’s advent, such as a contractual undertaking to es-
tablish Joint Civil Rights and Job Evaluation Committees at
each plant, a Joint Training Apprenticeship Program, a
schedule of wage rates for apprentices, the duty to reduce
local customs to writing, or to take written minutes of step
2 grievance meetings.
In addition, Respondent’s failure to deny the applicability
of IPJO in answering a grievance which alleged a violation
of that provision, created some ambiguity about his conten-
tion that the contractual provision was inapplicable. Thus, on
June 22, the Clearing Local filed a grievance contending that
employees from the Continental IPJO list should have been
recalled. Without referring to IPJO, the Company’s step one
answer denied the claim based on a management-right the-
ory. Not until its December 17 step 2 answer did Respondent
assert that it was not part of the master agreement and, there-
fore, not obligated to recall Steelworkers from an IPJO list.
D. Facts Bearing on the Appropriate Unit Question
At no time after May 13, when Respondent effectively
took over the management of the four affected plants, were
operations there interrupted, nor did any changes occur in-
volving bargaining unit employees. Following the acquisi-
tion, the Respondent continued to employ the same bar-
gaining unit workers who were designated according to the
same job classifications and titles, performed the same jobs
at the same locations, and produced the same products uti-
lizing identical processes and equipment, except for some
new, more modern machinery which had been introduced.
Thus, before and after the acquisition, the labor force at
the Derry plant continued to use the same skills to produce
aerosol cans; Clearing/North Grand remained an ends center,
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 In its brief, Respondent improperly referred to testimony con-
cerning an inquiry by another employee regarding IPJO rights which
was stricken from the record on hearsay grounds. (See Tr. 569.)
manufacturing tops and bottoms for cans; Passaic produced
speciality vials such as aspirin containers and oil cans, and
Burns Harbor served as a lithographic center. There was little
integration of these products among the four plants with the
exception of Burns Harbor which supplied some lithography
to the other three plants and Clearing/North Grand which,
prior to its closure, shipped some container ends to Derry.
Subsequently, Derry received ends principally from another
of Respondent’s plants in Horsham, Pennsylvania, where
production and maintenance employees are represented by a
different union.
The skills and equipment necessary to manufacture these
different products varied from plant to plant. However, Re-
spondent’s director of human resources testified that machin-
ists in the can industry such as those at Passaic and
Clearing/North Grand, probably could exchange jobs without
additional training. Interchange among employees in the four
union-represented plants was nonexistent after the takeover.
The record fails to show whether this was because Respond-
ent refused to adopt the IPJO program, or because employees
simply were not interested in applying for IPJO transfers.
However, before the acquisition, IPJO was rarely invoked;
only one such transfer occurred and that took place some 15
years ago.
Pursuant to Respondent’s pledge in the acquisition agree-
ment, after the sale, employees in the five Steelworkers bar-
gaining units continued to share the same terms and condi-
tions of employment set forth in the master agreement as
they had under Continental. Thus, in accordance with the
master, unit employees uniformly were paid according to the
negotiated wage scales described in articles 8 and 9. They
also received across-the-board wage increases in the form of
cost-of-living adjustments and bonuses effective at specified
dates. Further, they all continued to work the same number
of hours and receive the same number of holidays and weeks
of vacation as prescribed in the master. They also continued
to follow the same grievance procedures, the same basic se-
niority rules, and were subject to the same supplemental un-
employment benefits plan detailed in articles 13, 12, and 24
respectively.
In addition, the pension and insurance plans were equally
applicable to all employees represented by the Union. Sig-
nificantly, when Respondent introduced a substituted pension
plan with union acquiescence, Brock addressed a memo to
the affected bargaining unit employees stating ‘‘Dear hourly
U.S. Can employee: Effectively February 1, 1988, your
union negotiated benefits will be administered by Provident
Life Insurance Company.’’ (G.C. Exh. 37.)
These same employees continued to work under a com-
mon union-security clause and have the same amount of
union dues automatically deducted from their paychecks each
month. In accordance with article 5.6 of the master agree-
ment, forwarded the dues payments to the International
union.
Continuing Continental’s practice, Respondent observed
local customs and practices which were memorialized in in-
dividual plant agreements. Article 4 authorized such local
supplements as long as their terms did not conflict with the
master agreement.
Respondent also preserved intact the bureaucratic structure
of the four purchased plants, making no changes in plant
management or supervisory personnel, other than those
caused by normal attrition. Matters such as hiring, training,
and firing continued to be handled locally. In accordance
with the master agreement, grievances were processed within
each plant through the third step although at that point, man-
agement’s representative was an officer at the corporatewide
level. Early in 1988, Respondent reorganized its human re-
source structure, so that different regional managers for
human resources became responsible for answering third-step
grievances at Derry and Burns Harbor.
E. Respondent’s Discontinuance of IPJO
Based on the Union’s third amended charge dated October
4, 1988, an amended complaint issued alleging, in substance,
that the Respondent had unlawfully altered terms and condi-
tions of employment by unilaterally discontinuing the Inter-
Plant Job Opportunity (IPJO) program set forth in article 29
in the master agreement, pursuant to which an employee may
transfer to another facility in the event of a layoff of at least
30 days or a permanent plant closing. (G.C. Exh. 10 at 89
et seq.)
The record indicates that the first reference to IPJO oc-
curred at the May 26 meeting when Lynch suggested limiting
the program to the four newly acquired plants. Brock testi-
fied that he responded that US Can was not going to have
an IPJO program for those plants because they were distinct
operations.
Respondent contends that the Company also announced
that IPJO would be discontinued at a May 22, 1987 meeting
between Human Resources Director Crisp and Passaic bar-
gaining unit members, including George Halligan, president
of the local there. In answering a question from the employ-
ees regarding transfers from the four acquired plants to Con-
tinental facilities, Crisp testified that he answered that IPJO
was ‘‘non-operational.’’18
Contrary to Crisp’s testimony, Halligan indicated that he
did not learn of IPJO’s discontinuance until December 1987,
when, after the shutdown of the Passaic plant was an-
nounced, he asked Plant Manager Martin if employees could
put IPJO into another plant. Martin told him then that ‘‘there
is no such thing as IPJO’’ at US Can. Subsequently, at an
April 1988 meeting with Passaic employees, Martin gave the
identical response when questioned about the possibility of
IPJO transfers to another US Can plant. Later that same
month, in preparation for a meeting, Halligan compiled a list
of written questions which were sent to Crisp, one of which
asked, ‘‘Will employees be able to get on IPJO list for Con-
tinental Can Company or United States Can Company as per
contract.’’ In a written response given to Halligan on July
20, 1988, Respondent answered, ‘‘there is no such thing as
IPJO for US Can employees. (G.C. Exh. 40.)
James Dupree, local union president at the Burns Harbor
plant recalled that in September 1987, he asked Plant Man-
ager Stiner when temporary summer employees were going
to leave and whether they would be replaced by employees
seeking IPJO transfers. Stiner advised him that the summer
employees would be retained permanently and that Respond-
ent was not going to use IPJO.
1135UNITED STATES CAN CO.
19 Brock stated that he believed Burris was responsible for identi-
fying IPJO candidates at all four acquired plants while Stiner testi-
fied that Burris’ function was limited solely to Clearing. Since Burris
only represented the Clearing employees, it is reasonable to infer
that his task was the more limited one described by Stiner.
20 Respondent mistakenly argued in its brief that the successor in
Sweden House never disclaimed adoption or sought to negotiate a
new contract. The facts in that case, as briefly outlined above, show
otherwise.
Subsequently, at a negotiating meeting between the parties
held on January 24, 1989, Brock suggested that the Respond-
ent was interested in settling the IPJO issue and asked the
Union to furnish names of employees who wanted to trans-
fer. According to Brock, Jack Burris, a union representative,
was assigned responsibility for locating interested IPJO can-
didates at Clearing/North Grand.19 Brock and Stiner testified
that when they asked at subsequent meetings in February
whether anyone had been identified, Burris initially indicated
that he still had to check with the local president at Clearing
and later responded that no one was interested in an IPJO
transfer.
The Union offered a somewhat different account of this
matter. Ken Massengil, an International representative for the
Steelworkers who chaired the January-February 1989 bar-
gaining sessions, testified that the Union requested that the
Respondent canvas the then laid-off Clearling/North Grand
employees to determine whether anyone wished to transfer to
Burns Harbor under IPJO, but that no mention was made of
employees at the closed Passaic plant.
III. DISCUSSION AND CONCLUDING FINDINGS
A. Parties Contentions
The ultimate issue in this case is whether Respondent must
bargain with the Union on a multiplant basis. In accordance
with allegations in the complaint, the General Counsel and
the Charging Party present several theories, any one of which
would oblige the Respondent to bargain on a multiplant
basis. First, they submit that as a successor, Respondent con-
structively assumed its predecessor’s labor agreement, includ-
ing a contractual duty to recognize the multiplant unit. Alter-
natively, they contend that the Respondent’s acquisition of
Continental’s general packaging division was a stock transfer
so that Respondent continued as the same employing entity
with a duty to honor the existing labor agreement. Further,
counsel for the Government and the Union contend that Re-
spondent may not refuse to bargain with a multiplant unit
since it remained appropriate following the acquisition. Last-
ly, counsel urge that as a successor, Respondent was obliged
to maintain the terms and conditions of employment until
bargaining to impasse. Accordingly, Respondent violated the
Act by discontinuing the IPJO program.
The Respondent claims that it was a successor. As such,
in accordance with Burns, it was required to recognize and
bargain with the Union, but had no duty to abide by its pred-
ecessor’s labor agreement. Therefore, in negotiating a new
contract, it had a right to insist on single plant bargaining.
Respondent also asserts that it properly insisted on single
plant bargaining because the multiplant unit was inappro-
priate under the Board’s traditional community-of-interest
standards. It further claims that its abandonment of IPJO is
a moot issue. In addition, Respondent strenuously argues that
all the Union’s charges are time barred.
B. Respondent was Bound to the Master Agreement
by its Course of Conduct
Applicable Precedents
A resolution of the principal issue in this case—whether
Respondent is bound to the master agreement and to the
multiplant unit to which it applied—starts with the principles
governing successorship set forth in NLRB v. Burns Security
Services, 406 U.S. 272 (1972). There, the Supreme Court
held that a successor must recognize and bargain with the
collective-bargaining representative of its employees, but is
not bound by its predecessor’s preexisting collective-bar-
gaining agreement. The Court further held in Burns the suc-
cessor ordinarily is empowered to establish its own starting
wages and working conditions. However, if the new em-
ployer makes it perfectly clear that all of the employees in
the unit will be retained, then it may not alter terms and con-
ditions of employment without first bargaining to impasse
with the employees’ representative.
The Court further recognized that although a successor
will not necessarily be required to assume an old collective-
bargaining agreement, situations may occur where a suc-
cessor expressly or impliedly adopts its predecessor’s con-
tract, finding it more advantageous to do so than face ‘‘un-
certainty and turmoil.’’ Id. at 291. The Board has construed
Burns as ‘‘counseling utmost restraint in applying such an
adoption theory, absent clear and convincing evidence of
consent, either actual or constructive.’’ All State Factors, 205
NLRB 1122, 1127 (1973), quoted in E G & G Florida,
Inc., 279 NLRB 444, 453 (1986).
Notwithstanding this cautionary note, the Board, with
Court approval, has found implied adoption of a prede-
cessor’s collective-bargaining agreement based on the succes-
sor’s course of conduct even where the successor expressly
disavowed the outstanding labor contract. Eklund’s Sweden
House Inn, 203 NLRB 413 (1973), the case principally relied
upon by the General Counsel and the Union in squarely in
point. In Sweden House, the successor executed a sales
agreement for the purchase of a motel which stated that the
collective-bargaining agreement was not ‘‘assigned to nor as-
sumed by Eklund Sweden House Inn, Inc., as part of this
transaction.’’ Id. at 415. Following the sale, Sweden House
checked off contractually required dues for just 1 month,
gave the employees a raise after the manager explained that
he had read the contract to see if it was all right to do so,
and in bargaining with the Union, proposed management-
rights and no-strike clauses to be added to the terms of the
existing contract. Following this meeting, counsel for Swe-
den House wrote to the Union that ‘‘the Agreement between
your union [and the predecessor] was not assigned to nor as-
sumed by’’ our client. Id. at 415.20 Concluding that the suc-
cessor’s conduct negated its repeated disavowals of intent to
assume the predecessor’s contract, the Board stated in un-
equivocal terms that:
These three instances in which the existing contract was
positively relied upon . . . would effectively cancel any
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 G.C. Exh. 19 at 74 (Acquisition Agreement, sec. 6.03, dated
May 13, 1987).
22 As the new owner-operator of the General Packing subsidiary,
Respondent concededly believed that its business interests were well
served by abiding by the preexisting economic terms for the life of
the master agreement. Respondent’s interests were quite different
from and far longer in range than those of the successor in All State
Factors, 205 NLRB 1122 (1973). There, the successor, a secured
creditor, took possession of its collateral—its predecessor’s business,
with no intent to operate it and continued the predecessor’s wage
scale and pension fund payments only until it could sell the business,
a situation known to the employees. The successor’s decision to
abide by some of the terms of the collective-bargaining agreement
in All State Factors was a temporary expedient and is one of the
key facts which distinguishes that case from the instant one.
intent to the contrary which Respondent may have pre-
viously or subsequently manifested . . . and most cer-
tainly it abrogates its agreement with the seller . . . not
to assume the contract. . . . Under such circumstances,
therefore, nothing in the Burns decision would negate
the Respondent’s obligation under the contract between
it and the Union for the simple reason that it has given,
by its action, ‘‘consent to be found by it.’’ [Id. at 418.]
The Board also found adoption based on the actions of
successors which neither disavowed nor affirmatively ex-
pressed an intent to assume their predecessors contract. Thus,
in Ethan Allen, Inc., 218 NLRB 208 (1975), enfd. in part
544 F.2d 742 (4th Cir. 1976), the administrative law judge,
with Board and court approval, found that the successor had
assumed its predecessor’s labor contract by following the
agreement’s provisions with regard to seniority, paid vaca-
tions, pay raises, health and welfare fund contributions, and
union dues payments. In addition, the successor permitted
union representation during employee disciplinary meetings,
permitted employees to engage in union business on com-
pany time and allowed the union to maintain an office in the
plant. Similarly, in Amateyus, Ltd., 280 NLRB 219 (1986),
enfd. 817 F.2d 996 (2d Cir. 1987), the successor and its alter
ego were required to honor its predecessor’s contract where
the new employer checked off union dues and deductions for
a vacation fund, paid arrearages to the union pension, welfare
and annuity funds and consulted with union officials.
However, the Board has taken a different position and re-
fused to find constructive or implied adoption where the suc-
cessor did no more than implement terms of a preexisting
agreement which were required by law. For example, in
E G & G Florida, supra, the Respondent simply ‘‘complied
with the requirements of the Service Contract Act, paying its
employees wages and fringe benefits at least equal to those
paid by the predecessor.’’ The administrative law judge con-
cluded that the successor should not be bound to a contract
for ‘‘merely doing what it was obligated to do by statute.’’
Id. To the same effect, the administrative law judge in Vir-
ginia Sportswear, 226 NLRB 1996, 1302 (1976), ruled that
a wage increase granted by the successor which was in ac-
cord with the predecessor’s collective-bargaining agreement,
also was mandated by the minimum wage laws.
C. Contract Adoption Principles Applied to
Respondent’s Labor Practices
The above cited cases instruct that when determining
whether a successor has assumed its predecessor’s contract,
the Board focuses far less on a successor’s pronouncements
of subjective intent than on its objective actions, apart from
those which may be compelled by law. Consequently, on
evaluating the facts of this case in light of these precedents,
I conclude that despite its disclaiments, the Respondent vol-
untarily followed the vast majority of the master agreement’s
provisions, and by so doing, assumed it.
In reaching this conclusion, I do not rely on the fact that
the Respondent committed itself from the outset to providing
‘‘economic benefit levels presently in effect under the Col-
lective Bargaining Agreement’’21 for it was required to do so
under the authority of Burns, supra at 293. Instead, the find-
ing of adoption here is based solely on objective evidence
which establishes that Respondent implemented many signifi-
cant terms of the master agreement far beyond what prece-
dent required.
Respondent went beyond merely maintaining the ‘‘Wages
and Salaries; Overtime, Holidays, Vacation and Expanded
Employment Opportunities; Insurance [and] Pensions’’ guar-
anteed in the master agreement—it promised to adhere to
those terms for the life of the contract; that is, until the expi-
ration date in February 1989. Under Burns, a successor
which hires its predecessor’s work force is obliged to main-
tain the economic terms of a contract only until impasse is
reached. Here, because of its desire to maintain labor peace
to assure its customers of an uninterrupted supply, but before
it could know when or whether bargaining might result in
impasse, Respondent promised to follow most provisions in
the master agreement throughtout its term. Indeed, Respond-
ent kept its commitment even after declaring impasse on Au-
gust 20.22
The desire to maintain harmonious labor relations also
may have prompted Respondent to grant bonuses and cost-
of-living wage adjustments to unit employees in both 1988
and 1989 in accordance with the master agreement. Again,
Burns simply requires that a successor preserve the wage lev-
els in effect at the time of the takeover; that case does not
hold that a successor must institute future wage increases
specified in the predecessor’s labor agreement. Respondent’s
decision to maintain contractual terms and conditions of em-
ployment for the agreement’s duration, beyond those which
it was legally required to observe, represents significant evi-
dence of constructive adoption.
Respondent went even further, promising in the acquisition
agreement that it would continue to check off union dues and
abide by union security, terms which are found in article 5
of the master agreement. Brock offered the following ration-
ale for the Company’s conduct:
these are provisions, again, within a normal contract
that if you have had long term relationships with
unions, they are normal. . . . And, they are part of day
to day business. We had no intention of not having that
continued relationship. So we agreed that, one, we
would agree to the Union’s security and the checkoff.
Brock’s explanation is telling, if inadvertent, evidence of Re-
spondent’s desire to maintain a long-term, normal contractual
relationship with the Union.
1137UNITED STATES CAN CO.
23 Under Indiana & Michigan, supra, after a contract has expired,
only grievances affecting vested interests must be arbitrated. In the
case at bar, the parties stipulated that no grievances were taken to
arbitration. The record fails to show, however, whether the Respond-
ent refused a union request for arbitration or whether the union sim-
ply never requested that a matter be submitted to arbitration.
24 The Respondent indicated that it did not wish to accept an
agreement covering a multiplant bargaining unit since, among other
reasons, a single expiration date would give the Union an advantage
in the event of a strike.
In Bethlehem Steel Co., 136 NLRB 1500, 1502 (1962),
enfd. in relevant part 320 F.2d 615 (3d Cir. 1963), the court
observed:
The acquisition and maintenance of union membership
cannot be made a condition of employment except
under a contract which fonforms to Section 8(a)(3). So
long as such a contract is in force, the parties may, con-
sistent with its union-security provisions, require union
membership as a condition of employment. However,
upon the termination of a . . . contract, the union-secu-
rity provisions become inoperative and no justification
remains for either party to the contract thereafter to im-
pose union-security requirements.
Respondent correctly points out in its brief that the Beth-
lehem case holds only that an employer lawfully may refuse
to continue complying with union-security and dues-checkoff
clauses at the expiration of an agreement. It also is true, as
Respondent contends, that continued observation of these
provisions, standing alone, may not automatically resurrect
an entire contract. But Bethlehem’s application to the matter
at hand is broader than Respondent suggests: since US Can
was not compelled to continue union security or dues check-
off, its unilateral decision to do so constitutes further prooff
that it assumed the master agreement as part of the normal
and least disruptive way of doing business, just as Brock
suggested.
Additional support for finding constructive adoption stems
from Respondent’s repeated recourse to the terms of the col-
lective-bargaining agreement in resolving grievances. In
keeping with the Board’s decision in Indiana & Michigan
Electric Co., 284 NLRB 53 (1982), Respondent was obliged
to process grievances through at least the third step.23 But
that case deals with the duty to observe grievance proce-
dures, it does not in any way affect the substantive outcome
of such grievances. Thus, Respondent was not compelled to
resolve grievances by relying on various terms in the master
agreement. Yet, that is exactly what occurred here. Respond-
ent frequently relied on the agreement’s language to resolve
grievances, citing clauses dealing with contracting out, man-
agement rights, seniority, holidays, and overtime pay to jus-
tify its actions. Moreover, on one occasion, Respondent an-
swered a first-step grievance alleging an IPJO violation with-
out referring to its contention that the IPJO program was
defunct. In other words, Respondent failed to deny the appli-
cability of the master when it had an opportunity to do so.
The management officials who answered these grievances
evidently regarded the master agreement as the controlling
instrument and effectively indicated as much both to the em-
ployees involved and to their union representatives.
Respondent clearly exceeded what is demanded of a suc-
cessor, implementing much more of the master agreement
than it disregarded. Respondent explained that it simply fol-
lowed the agreement because it provided a convenient road-
map for dealing with terms and conditions of employment.
But collective-bargaining agreements serve exactly that pur-
pose—they are roadmaps which chart a course so that the
parties governed by them may understand their rights and re-
sponsibilities. The Supreme Court’s observation in Burns,
supra at 291, that successor employers may willingly ‘‘ob-
serve the pre-existing contract rather than face uncertainty
and turmoil’’ is particularly apt in this case. Here, Respond-
ent concededly chose to implement most of the master agree-
ment because it concededly wanted to purchase labor peace
as a way to secure business stability. But that goal is poorly
served when an employer implements the most significant
terms of a contract while selectively disavowing some others,
a number of which never were implemented in the first
place.24
Overall, the extent to which Respondent adhered to the
terms of the master far surpassed the conduct of the suc-
cessor in Eklund’s Sweden House. If the employer in Sweden
House was found to have adopted its predecessor’s collec-
tive-bargaining agreement in spite of disclaimers, the same
result must follow here. Accordingly, I conclude that by its
conduct, Respondent began assuming the master agreement
as early as May 13, 1987, and continued following most of
its provisions for the balance of its term. Respondent was not
at liberty to adopt most terms of the agreement while dis-
avowing others, including the duty to recognize a multiplant
unit.
D. Stock Transfer Theory
The complaint also alleges alternatively that by acquiring
the stock of Series 200 and continuing to operate that busi-
ness in essentially unchanged form, Respondent continued as
the same employing entity and was, thereby, bound to the
master agreement. However, I already have found that the
Respondent is a successor which assumed the master agree-
ment by its course of conduct, and is thereby obliged to rec-
ognize and bargain with the Union on a multiplant basis.
Therefore, it is unnecessary to also determine whether US
Can was a continuing owner by virtue of the stock transfer,
for the same outcome would obtain. Consequently, I decline
to decide whether Respondent is liable under the alternative
stock transfer-continuing employer theory.
E. Multiplant Unit Remained Appropriate
After the Takeover
Relying on White-Westinghouse Corp., 229 NLRB 667
(1977), enfd. 604 F.2d 689 (D.C. Cir. 1979), the General
Counsel and the Charging Party submit that even though
only four plants were acquired which were part of a larger
multiplant unit under the predecessor, the bargaining unit
employes in these plants continued to constitute an appro-
priate, albeit diminished multiplant unit, sharing a commu-
nity of interests in commonand terms and conditions of em-
ployment which were forged and reinforced by successive
collective-bargaining agreements. Not surprisingly, the Re-
spondent disputes the applicability of White-Westinghouse,
contending that, unlike the successor in that case, it did not
adopt its predecessor’s collective-bargaining agreement.
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 The union-represented employees at the Clearing/North Grand
and Passaic facilities were part of the bargaining unit since 1956;
those at Burns Harbor since 1975. Employees at Derry did not join
the multiplant unit until 1985. However, their 2-year history under
the master agreement prior to Respondent’s acquisition does not de-
feat a finding that they shared common interests with other employ-
ees under the master. See, e.g., Westinghouse Electric Corp., 227
NLRB 1932 (1977). [Facility under National agreement for 14
months.]
26 The further dimunition in size of the bargaining unit caused by
the closure of the Clearing/North Grand and Passaic plants in 1988
and 1989 respectively, had no bearing on Respondent’s bargaining
duty which arose at the time of the takeover. In any event, it is well
settled that a reduction in the scope of a unit does not preclude the
lesser unit from being appropriate. See Fall River Dyeing Corp. v.
NLRB, 482 U.S. 27 (1987); Middleboro Fire Apparatus, 234 NLRB
888, 893 (1978), enfd. 690 F.2d 4 (1st Cir. 1987); White-Westing-
house, 604 F.2d at 695.
Moreover, Respondent contends that the four acquired plants
did not share a community of interests sufficient to establish
their appropriateness in a single unit. For the reasons set
forth below, I agree with the General Counsel and the Charg-
ing Party that White-Westinghouse is dispositive.
In White-Westinghouse, a subsidiary of White Consoli-
dated Industries (White or the successor) purchased five ap-
pliance plants from a sister company, the Westinghouse Cor-
poration, in 1975. The acquired plants were part of a
multiplant bargaining unit consisting of 42 certified units at
40 plants covered by a National agreement between the Inter-
national Union of Electricians (IUE) and the predecessor.
Following the acquisition, White agreed to adopt the out-
standing agreement. However, when the contract expired in
July 1976, White refused to bargain on a multiunit basis, in-
sisting to impasse on single plant bargaining. At that point,
a strike ensued.
On these facts, the Board, adopting the administrative law
judge’s decision, found that through their agreement and by
the nature of their negotiations, the predecessor and the IUE
had merged the 42 units in a single, multiplant unit. The
Board further found that as a successor, White was obliged
to bargain with the IUE for a multiplant unit comprised of
the five appliance division plants. Specifically, the Board
found (1) that the Company had succeeded to the multiplant
obligation of its predecessor because it continued operations
substantially unchanged in an appropriate unit and (2) that
the successor had consented to the multiplant unit by assum-
ing the preexisting labor contract between the IUE and the
predecessor and by dealing with the union on a multiplant
basis during the unexpired term of that agreement.
In finding a multiplant unit appropriate in White-Westing-
house, the judge reasoned as follows:
Thus, Respondent’s contentions are reduced to the . . .
assertion that the five plant successor unit is inappro-
priate. I find, to the contrary. . . . The unit sought is
made up of a definable grouping—the Union-rep-
resented portion of the Westinghouse appliance division
purchased by White. All of the employees involved
were covered by the same National Agreement which
was assumed by the Respondent. Some plants were
covered by the National Agreement for 20 years. Al-
though this multiplant unit was only part of the indus-
trywide unit . . . under Westinghouse and only part of
White’s appliance division which included some plants
not represented by the Union, its bargaining history is
such that the wages, terms and conditions of employ-
ment involved were determined as a group. For exam-
ple, all former Westinghouse employees have pension
rights negotiated by the Union on a national basis. . . .
wages, benefits and working conditions . . . have been
negotiated on a group basis. All have a national rep-
resentative in appeal level grievances and all have sur-
rendered the decision to arbitrate significant grievances
to the Union on a national basis. Thus, there is a com-
munity of interest among the former Union-represented
. . . employees, quite different from other White em-
ployees simply because of their historical multiplant
representaion. Any prior differences, including geo-
graphical separation and lack of interchange of em-
ployees—matters sometimes relevant in determining ab
initio unit appropriateness—are rendered considerably
less significant by this common history. [Emphasis
added. Id. at 674–675.]
Irrespective of White’s adoption of the National agree-
ment, the Board found that the five IUE-represented plants
remained an appropriate unit because their common bar-
gaining history resulted in common wages, benefits, and
working conditions. The Board concluded that these shared
factors created a community of interests among the employ-
ees which outweighed any differences among them.
The parallels with the instant case are manifest. Here, as
in White-Westinghouse, the successor purchased a number of
plants which for varying periods of time were part of a larger
multiplant unit.25 In finding the difference in size between
the predecessor and White-Westinghouse successor unit irrel-
evant, the Board pointed to precedent holding that the pur-
chase of only a part of a preexisting appropriate unit does
not defeat a successor’s obligation to bargain in the reduced,
acquired unit. Id. and cases cited therein. Since the reduction
in size of the unit from 40 to 5 plants made no difference
in White-Westinghouse, neither should a similar reduction
from 42 to 5 units be a relevant factor here.26
Moreover, here, as in White-Westinghouse, the conclusion
that the unit remained appropriate turns largely on the fact
that a common bargaining history unified employees who,
both before and after the takeover, shared identical terms and
conditions of employment. The series of collective-bar-
gaining agreements negotiated on behalf of both the Wes-
tinghouse and the Continental units over the years provided
a consistent framework which reinforced the common inter-
ests of all bargaining unit employees. Thus, the master agree-
ments were proof that uniform terms were negotiated on a
group basis covering wages, hours, and most other working
conditions significant to employees, including but not limited
to seniority standards, pensions, vacations, holidays, griev-
ance procedures and a unitary job classification system. Like
the White-Westinghouse National agreement, the labor agree-
ment at issue here provided that locals at the plant level
could enter into supplemental contracts as long as they did
not conflict with the master. Similarly, under Continental, the
unit employees had authorized the International union to en-
gage in arbitration on their behalf and determine whether
strike action was warranted. As the court of appeals pointed
out, ‘‘Labor disputes arising in these, as well as other, areas
1139UNITED STATES CAN CO.
27 In White-Westinghouse, the successor established a separate di-
vision for the five acquired facilities, thereby forming a more identi-
fiable unit than was the case with the four Continental plants. How-
ever, this fact, standing alone, is not dispositive as to the continued
appropriateness of a multiplant unit.
28 The Board did not suggest in White-Westinghouse that the suc-
cessor’s express adoption of the National agreement was a critical
component of its ruling or that irrespective of that factor, it would
not have found that the five plants constituted an appropriate bar-
gaining unit.
would have a similar impact on all former Westinghouse ap-
pliance division employees.’’ 604 F.2d at 696. With the sub-
stitution of names, the Board’s conclusion in White-Westing-
house is well tailored to the facts of this case: ‘‘there is a
community of interest among the former union represented
[Continental] employees, quite different from other [US Can
employees] simply because of their historical multiplant rep-
resentation.’’ Id. at 674.
In cases such as this, the object of the inquiry is to deter-
mine whether the bargaining unit remained appropriate under
the successor. This determination turns on evidence showing
whether the successor employer has introduced structural or
operational changes which affect the employees’ common in-
terests. Burns, 406 U.S. at 280; NLRB v. Indianapolis Mack
Sales, 802 F.2d 280, 284–285 (7th Cir. 1986); White-Wes-
tinghouse, 604 F.2d at 964. In examining postsuccessorship
events in the instant case, it is clear that the Respondent in-
troduced no significant changes; the four acquired plants re-
mained essentially the same in every significant respect.
Again, comparisons between postsuccessorship events in this
case and those in White-Westinghouse are instructive.
In White-Westinghouse, the degree to which the successor
maintained continuity in its operations and organizational
structure following the takeover supported the Board’s con-
clusion that the five plant unit remained appropriate. These
factors are present in this case and support a similar result.
Thus, here, as in White-Westinghouse, the four plants re-
tained a definable identity as former Continental plants
whose previously merged bargaining unit was represented by
the Steelworkers.27 Further, in both cases, the successors
took over the acquired plants without introducing any change
in operations. The same employees performed the same func-
tions and produced the same goods under the same super-
vision and plant management, after the purchase as before.
As the judge aptly observed in White-Westinghouse, supra at
674: ‘‘from the standpoint of the employees in the purchased
plants, the employment relationship remained essentially un-
changed and it made no difference to them whether all Wes-
tinghouse plants or some had been taken over by a new em-
ployer.’’ Here too, the common work interests of the em-
ployees in the former Continental plants were unaffected by
the change in ownership.
In White-Westinghouse, the Board also relied on the fact
that by expressly assuming the National agreement and ap-
plying it to the five acquired plants, the successor had agreed
to the contours of a multiplant unit. The Board further found
that White’s conduct following the takeover confirmed the
continuity of multiplant bargaining in the successor unit. Id.
at 673. In support of this finding, the Board pointed to nu-
merous matters on which White-Westinghouse dealt with the
IUE for more than a year, including dues checkoff and pen-
sions. Id.
In the instant case, the Respondent argues that its refusal
to adopt the master agreement distinguishes the instant case
from White-Westinghouse. I do not construe that decision to
mean that contract adoption is a crucial ingredient in finding
that a unit continues to be appropriate following a takeover.
But even if contract assumption is a prerequisite, that ele-
ment is present here. As found above, Respondent pursued
a course of conduct which amounted to constructive adop-
tion. I see no meaningful distinction between an express and
implied adoption of a collective-bargaining agreement in
terms of its operative effect on the appropriate unit deter-
mination.28
Thus, by its actions, Respondent effectively substituted
itself for Continental and became a party to the multiplant
unit master agreement. It committed itself to maintaining not
only those economic terms and conditions of employment
which were legally required, but also to future economic
benefits throughout the life of the contract. Indeed, Respond-
ent recognized, perhaps inadvertently, that the acquired
plants constituted an appropriate group when on January 1,
1988, it instituted a pension plant virtually identical to a
predecessor plan, which contained the following introduction:
‘‘If you are a member of the bargaining unit as defined here-
in (Derry . . . Clearing . . . Passaic . . . Burns Harbor. . .),
you are eligible to become a member of the Company’s Pen-
sion plan. . . . If so, you may not be a member of any other
Company pension or retirement plant.’’ (G.C. Exh. 15 at 1.)
The employees in the former Continental plants also con-
tinued to share a community of interest following the transfer
by virtue of their seniority rights which were carried over
from their tenure with Continental. The acquisition agree-
ment guaranteed these rights in the following terms:
Subject to the provisions of any collective bargaining
agreement with respect to the Employees, the Employ-
ees will receive credit, for purposes of all compensa-
tion, severance pay, vacation, or other employee benefit
plans and programs . . . for all periods of employment
which were credited by [the predecessor]. [G.C. Exh.
19 at 81.]
In other words, seniority for all employees in the four plants
was based upon their length of employment with Continental,
together with their employment with Respondent, subject to
the provision of article 12 in the agreement. As a result, em-
ployees in these plants shared common seniority interests
which affected other conditions of employment (e.g., sever-
ance and vacations). This factor differentiated them from em-
ployees in other US Can plants and served as yet another
unifying bond.
In sum, having voluntarily chosen to follow all of the eco-
nomic and many of the noneconomic terms of the master
agreement, Respondent stepped into the shoes of its prede-
cessor, preserving and perpetuating its separate identity as a
multiplant bargaining unit. But even apart from Respondent’s
adoption of the contract, the evidence fully supports the con-
clusion that units in the four former Continental plants re-
mained appropriate following the takeover.
Citing Indianapolis Mack Sales, supra, as authority, Re-
spondent asserts that traditional community-of interest-factors
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 In White-Westinghouse, 604 F.2d at 965 fn. 17, the court noted
that the Board generally considers the following factors in deter-
mining whether a single plant or multiplant unit is appropriate: ‘‘(1)
common control of operations; (2) integration between plants in
products and personnel matters such as job classifications and inter-
change of employees between plants; (3) geographic considerations,
and (4) the existing pattern of representation and history of labor
practices.’’
30 This is not to say that these factors may not be considered; only
that they are not conclusive nor deserving of primacy in this case.
31 See Howard Johnson Co. v. Detroit Local Joint Executive
Board, 417 U.S. 249, 262–263 (1974); NLRB v. Burns Security Serv-
ices, supra at 287–288; John Wiley & Sons v. Livingston, 376 U.S.
543, 549 (1964).
32 Respondent’s bargaining duty with regard to a multiplant unit
follows from the finding that the unit remained appropriate after the
transfer by virtue of the employees’ unchanged community of inter-
ests and/or by its constructive adoption of the contract by conduct.
must be considered in determining unit appropriateness.29
Respondent submits that when such factors are applied to the
evidence in this case, a unit consisting of the former Conti-
nental plants is inappropriate.
Respondent’s reliance on the appellate decision in Indian-
apolis Mack is misplaced. The court of appeals in that case
was justly concerned with the absence of any record evi-
dence bearing on whether a separate unit of service employ-
ees remained appropriate following the change in ownership.
In the court’s view, bargaining history under the predecessor,
standing alone, could not substitute for this omission. The
court found the lack of such evidence particularly troubling
in light of the Board’s failure to explain its deviation from
a rule that automobile service and parts employees in the
same facility should be in a single unit unless it is affirma-
tively shown that no substantial community of interest exists
between the two groups. Id. at 284–285.
At the trial of this matter, unlike the trial in Indianapolis
Mack, Respondent had ample opportunity to make the req-
uisite showing. To that end, Respondent introduced evidence
showing that the four plants were not geographically proxi-
mate; that employee interchange did not occur; that control
over employee labor relations and plant operations was large-
ly decentralized; and that there was little product integration
or overlap in employee job skills and functions. However,
Respondent did not, and could not offer evidence showing
that these circumstances differed when Continental was in
control. Indeed, it was Respondent’s express objective to as-
sure the bargaining unit employees continuity in their em-
ployment rights. Accordingly, Respondent made sure that
following the transfer, all matters affecting the employment
reationship remained the same.
If this hearing had been a proceeding where a unit deter-
mination was to be made de novo, or if bargaining pre-
viously had been on a ingle plant basis, then the evidence
adduced by the Respondent as to lack of employee and prod-
uct interchange, geographic distance between the plants and
localized control over day-to-day operations, might have had
greater significance.30 But where these conditions existed
both prior to and after the takeover, where the Respondent
made no structural or operational changes affecting the em-
ployees at the acquired plants, and where it retained virtually
all of the master agreement so that the work force continued
to be uniformly affected by identical terms and conditions of
employment, then a common history of collective bargaining
deserves great weight. See Miles & Sons Trucking Service,
269 NLRB 7, 13–15 (1984); White-Westinghouse, 604 F.2d
at 696.
In any given situation, employees may be grouped appro-
priately for purposes of collective bargaining in more than
one way. The Board may choose among several alternative
units, each of which may have a rational foundation, for the
Act does not require that the unit designated by the Board
be a more appropriate unit or the most appropriate unit; sim-
ply that it be an appropriate one. See, e.g., Retail Clerks
Local 1325 v. NLRB, 414 F.2d 1194, 1202 (D.C. Cir. 1969).
The Board’s approach in such matters is well illustrated in
Towne Plaza Hotel, 258 NLRB 69 (1981). That case, like the
one at bar, involved a stock transfer in a corporation which
continued to exist after the purchase. Rejecting the new own-
er’s argument that the unit was inappropriate because based
on the extent of the union’s organization, the Board held that
it ‘‘will not disturb a bargaining unit which is the product
of a longstanding collective-bargaining relationship unless
such is clearly repugnant to the purposes and policies of the
Act’’ and ‘‘while another unit may be more appropriate, such
does not make a longstanding, recognized, and contractual
unit inappropriate nor repugnant to the Act.’’ Id. at 76.
Various competing interests must be balanced when deter-
mining the obligations of a successor: the employees’ legiti-
mate expectations in continuity of bargaining rights, the em-
ployer’s freedom to rearrange the newly purchased enterprise
and the public’s overriding interest in fostering industrial
peace and an efficient economy.31 The conclusion reached
here that the Respondent is required to bargain with the
Union on a multiplant basis strikes an appropriate balance
among these interests. The Respondent chose not to rear-
range or alter the basic structure or operations of the newly
acquired plants; therefore, in view of the minimal change in
the employer-employee relationship, unit employees’ expec-
tation of continuity in their bargaining relationships is par-
ticularly strong. Moreover, to paraphrase White-Westing-
house, the Respondent apparently experienced no difficulty
in applying uniform terms to employees in the four plants
during the more than 2 years that it implemented the master
agreement. Id. at 675. Consequently, requiring bargaining on
a multiplant basis will not significantly hinder the Respond-
ent’s ability to run its enterprise efficiently. Finally, as the
Respondent itself recognized, continuing to treat the plants as
a group was the course which best served industrial peace
and stability.
Where, as here, it is determined that a multiplant unit is
appropriate, it follows that the employer is legally required
to bargain with the Union which represents employees in that
unit. It is well settled that the scope of the unit is a permis-
sive rather than mandatory subject of bargaining. Con-
sequently, insistence upon a nonmandatory subject as a con-
dition for bargaining is constitutes bad-faith bargaining in
violation of Section 8(a)(5) of the Act. Facet Enterprises v.
NLRB, 907 F.2d 963 (10th Cir. 1990); White-Westinghouse,
supra at 675; NLRB v. Borg-Warner Corp., 356 U.S. 342
(1958); Oil Workers v. NLRB, 486 F.2d 1266, 1268 (D.C.
Cir. 1973).32
Here, the Respondent admittedly refused to bargain on
other than a single plant basis and during negotiations with
the Union on August 20, declared that the parties were at im-
1141UNITED STATES CAN CO.
33 Respondent’s claim that this allegation is untimely is treated in
a subsequent section of this decision.
34 The evidence shows that in 1987, several employees transferred
to the Passaic plant from another Continental facility which was not
involved in the acquisition. This suggests that some employees might
have taken advantage of IPJO transfers had that option been avail-
able when the Passaic facility closed.
35 Having decided that the issue of Respondent’s obligations as a
continuing employer by virtue of the stock transfer need not be
reached, it follows that the question of the charge’s timeliness with
respect to this matter also need not be resolved.
passe on the very issue. Under the above-cited precedents,
Respondent’s rejection of multiplant bargaining since that
date violates Section 8(a)(5) and (1) of the Act.
F. Respondent Unlawfully Discontinued IPJO
With one important exception, Respondent willingly as-
sumed the obligations of a Burns successor, recognizing that
after making it perfectly clear it would retain all the employ-
ees in the unit, it was duty bound to preserve the terms and
condtions of employment as they existed in the master agree-
ment until reaching a new agreement or bargaining to im-
passe. 406 U.S. at 294–295. Accordingly, in the acquisition
agreement and in its May 14, 1987 letter to the local union
presidents, Respondent pledged that while negotiations con-
tinued for new contracts, ‘‘the terms and conditions including
wages, benefits and working conditions as they presently
exist under the collective bargaining agreement with Conti-
nental Can Company shall remain in effect.’’ Notwith-
standing this commitment, Respondent concedes that it dis-
continued IPJO without first bargaining to impasse with the
Union. Respondent poses three defenses to allegations that its
unilateral conduct violated the Act. For the reasons set forth
below, I find none of Respondent’s arguments persuasive.33
First, Respondent argues in its brief that when it an-
nounced an intent to abandon IPJO at the May 26 meeting,
it was not yet perfectly clear that employment would be of-
fered to all former employees; hence, the Company still was
privileged to set its own initial terms of employment. I find
no merit in this defense in light of the above-quoted promise
set forth in Respondent’s May 14 letters.
Respondent next contends that the IPJO allegation is moot
for although it was willing to settle any IPJO claims, the
Union, through its agent, Burris, failed to identify any em-
ployee in the clearing unit who wished to take advantage of
the program. As described in the fact statement, the Union
countered that it requested that the Respondent, not Burris,
locate employees from the already closed Clearing and Pas-
saic plants who were interested in ‘‘IPJO-ing.’’ As between
these conflicting versions, I find the testimony of Plant Man-
ager Stiner the more reasonable for he, like Brock, clearly
recalled that Burris was responsible for identifying employ-
ees who were interested in IPJO transfers. In addition, he
specifically testified that Burris’ assignment was limited sole-
ly to the Clearing plant. Since Burris was the staff represent-
ative with jurisdiction for that facility, it stands to reason that
his investigation would focus on just that site. Further, if the
Union wished to refute Respondent’s contentions about
Burris’ role, it should have called him as its witness since
he was more immediately involved in this incident than was
Business Agent Massengill.
In any event, even if no Clearing employee was interested
in an IPJO transfer, the allegation that Respondent unlaw-
fully repudiated its obligation to continue IPJO as a condi-
tion of employment is not moot. Because the Act is designed
to vindicate public rather than private rights, it remains the
Board’s particular province to remedy violations of the Act.
Therefore, even where a respondent remedies a wrong, the
Board will not dismiss an unfair labor practice alleged in a
complaint unless the respondent posts a notice assuring em-
ployees that it has rescinded its wrongful actions, gives as-
surances that similar conduct will not take place in the fu-
ture, and restores the status quo. Electrical Workers IBEW
Local 1316, 271 NLRB 338, 341 (1984).
The Respondent’s efforts to resolve the IPJO allegation
fall short of satisfying the foregoing standards. The Company
has not acknowledged that its action was unlawful nor given
any assurance that such conduct will not recur. Further, there
is no indication that the Respondent has taken adequate
measures to restore the status quo. Respondent made no ef-
fort to discover whether any employees at the Passaic plant
wished to take advantage of their contractually guaranteed
right to transfer to another facility and resisted the Union’s
request to determine whether any employees were eligible
under IPJO to replace summer employees at the Clearing fa-
cility prior to its closure.34 Given these circumstances, this
matter is not moot. It follows that in the absence of a meri-
torious defense, Respondent’s unilateral decision to dis-
continue the IPJO program violated Section 8(a)(5) and (1)
of the Act.
G. The Union Filed Charges Within the Statutory
Limitations Period
1. Introduction
Section 10(b) of the Act provides in pertinent part that,
‘‘no complaint shall issue based upon any unfair labor prac-
tice occurring more than 6 months prior to the filing of the
charge with the Board.’’ The purpose of this provision is ‘‘to
bar litigation over past events ‘after records have been de-
stroyed, witnesses have gone elsewhere . . . recollections of
the events in question have become confused,’ . . . and to
stabilize existing bargaining relationships.’’ Machinists Local
1424 v. NLRB, 362 U.S. 44 at 419 (1960).
The Union first filed charges against Respondent on Janu-
ary 20, 1988. Therefore, only unfair labor practices com-
mitted prior to July 20, 1987, are barred under Section 10(b).
Respondent argues that the Union had facts which did or
should have put it on notice that US Can would not adopt
the master agreement or bargain on a multiplant basis before
July 20 causing its charge to be untimely.35
The Respondent further submits that in determining wheth-
er a charge was timely filed, the 10(b) period begins to run
when the charging party receives unequivocal notice of a de-
cision alleged to be an unfair labor practice, not the date on
which the decision is implemented or when its consequences
‘‘become most painful.’’ Postal Service Marina Center, 271
NLRB 397, 399–400 (1984). Recent cases indicate, however,
that the 10(b) standard employed in Postal Service applies to
discriminatory discharge cases but not to situations like those
at issue here. See, e.g., Esmark Inc. v. NLRB, 887 F.2d 739,
746 (7th Cir. 1989), where the court of appeals agreed with
the Board that the 10(b) period ran from the time an em-
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 The Board also relied on the fact that the 10(b) defense was not
raised and, therefore, was waived. Twin Cities, supra.
ployer actually closed two plants as part of a scheme to
evade a master agreement, not when the decision to close at
some uncertain future date was announced. See also Howard
Electrical & Mechanical, 293 NLRB 472 (1989).
2. Refusal-to-bargain charges based on contract
adoption were timely
The parties differ radically as to the date on which the
Union received unequivocal notice that Respondent would
not bargain with the Union as the representative of a
multiplant unit. According to the General Counsel and the
Union, and as alleged in the complaint, having adopted the
master agreement by a course of conduct, Respondent’s
wrongful act leading to the refusal-to-bargain charge oc-
curred on August 20 when Respondent insisted to impasse
on bargaining on a single plant basis.
From the Respondent’s perspective, if any adoption oc-
curred, it was on May 13, 1987, the date on which it exe-
cuted the acquisition agreement containing a commitment to
retain the terms and conditions of employment guaranteed in
the master agreement. Thereafter, the Union had unequivocal
notice at the May 26 meeting and again a July 14 telephone
call between Brock and Lynch that US Can would not adopt
the master agreement or bargain with respect to a multiplant
unit. Relying on Chambersburg County Markets, 293 NLRB
387 (1989), Respondent argues that the alleged wrongful
act—its repudiation of the master—occurred on these dates.
Ergo, the Union’s charge, filed more than 6 months later on
January 20, 1988, was time barred.
Respondent’s heavy reliance on Chambersburg calls for
careful analysis of that case and its progeny. The relevant
facts in Chambersburg are as follows: on November 11,
1985, after the parties had agreed on all terms for a collec-
tive-bargaining agreement, the employer revoked its earlier
consent to the inclusion of a union-security clause. There-
after, the employer refused the union’s requests to sign the
agreement made on various dates, the latest being January
22, 1986. Six months later, on July 22, the Union filed an
unfair labor practice charge. Overturning a body of case law
which held that each refusal to execute a contract was a con-
tinuing violation, the Board ruled that ‘‘a charge alleging an
unlawful refusal to execute a bargaining contract is cog-
nizable only when filed within 6 months of the time at which
the charging party is on notice of an initial refusal to exe-
cute.’’ Id. at 388. However, the Board did not discard the
continuing violation doctrine expressed in Farmingdale Iron
Works, 249 NLRB 98, 99 (1980), enfd. mem. 661 F.2d 910
(2d Cir. 1981), noting that it continued to be viable in cases
involving breaches of periodic contractual obligations. Id. at
fn. 6. The Board explained:
Breaches of periodic contractual obligations fall within
the first category of cases the Court defined in Machin-
ists Local 1424 v. NLRB, supra, 362 U.S. at 416–417,
which include occurrences within the 6-month limita-
tion period that ‘‘in and of themselves may constitute,
as a substantive matter, unfair labor practices.’’ Such
breaches are not merely reiterations of an initial unlaw-
ful act, but are separate unlawful acts based on separate
obligations.
In subsequent cases, the Board has applied the Chambers-
burg doctrine in varying contexts. For example, in Chemung
Contracting Corp., 291 NLRB 773 (1988), the Board held
that where the parties’ collective-bargaining agreement had
expired on April 2, 1982, and where the Union knew of the
employer’s failure to make payments to various funds by the
end of 1982, a charge filed on October 24, 1983, alleging a
unilateral change in the terms and conditions of employment
was untimely. In reaching this conclusion, the Board ob-
served that ‘‘the General Counsel can rely on evidence out-
side the 10(b) period as ‘background,’ but . . . is barred
from bringing any complaint in which the operative events
establishing the violations occurred more than 6 months be-
fore the unfair labor practice charge has been filed and
served.’’ Accord: American Commercial Lines, 291 NLRB
1066 (1988). Cf. Twin Cities Electric, 296 NLRB 1014 fn.
4 (1989) (charge filed almost a year after employer’s mid-
term repudiation of its contract not time barred since ‘‘each
failure to comply with an agreement is a separate and distinct
violation.’’36
Accordingly, because the Union knew that the employer
had unequivocally repudiated its obligation to make contribu-
tions to the trust fund and had not engaged in any conduct
inconsistent with its initial actions, the Board found in
Chemug that the operative facts establishing the violation oc-
curred outside the 10(b) period. In so ruling, the Board made
it abundantly clear that ‘‘A key to the Farmingdale separate
violation holding is that the charge addressed a failure to
make benefit payments while the contract was still running.’’
Id.
Similarly, in Black Diamond Coal Mining Co., 298 NLRB
775 (1990), following the expiration of the labor contract, the
employer gave the union unequivocal notice in February
1988 that it would not abide by the parties’ grievance-arbi-
tration procedures. The Board found that in the absence of
any conduct or intervening circumstances that could be con-
strued as inconsistent with the respondent’s initial action, the
charge filed on February 28, 1989, was outside the 10(b) pe-
riod.
On considering the facts in the instant case in light of the
foregoing precedents, I am persuaded that Respondent incor-
rectly relied on Chambersburg. The fallacy in Respondent’s
argument lies in its premise that any adoption of the master
agreement occurred, if at all, as a single, discrete act on May
13, 1987, and that after repudiating the agreement on May
26, the master was defunct with no continuing vitality. In
fact, notwithstanding its pronouncements of repudiation, Re-
spondent assumed the agreement on a day-to-day basis until
it expired in February 1989. Therefore, except as back-
ground, it is unnecessary to rely on Respondent’s initial acts
in May 1987 as evidence of unlawful conduct, for by a con-
tinuous course of conduct, it readopted and revived the mas-
ter agreement throughout and well beyond the 10(b) period.
Consequently, by adhering to the most significant aspects of
the contract throughout its term, Respondent engaged in con-
duct which ‘‘can be construed as inconsistent’’ with its pro-
fessed rejection. Black Diamond Coal, supra.
1143UNITED STATES CAN CO.
Respondent’s ongoing implementation of the master agree-
ment constitutes a crucial difference between the cir-
cumstances in this case and those in Chambersburg.
As a result of Respondent’s continued adherence to the
master agreement, it continued to survive. Therefore, con-
trary to Respondent’s contention, its initial repudiation of the
master agreement in May cannot be equated with the em-
ployer’s refusal to execute a contract in Chambersburg. In
that case, the circumstances that created the obligation and
gave notice to the union of a breach were completed more
than 6 months before the charge was filed. Subsequent refus-
als were mere reiterations of the initial wrongful act. Here,
Respondent’s implementation of the master was uninter-
rupted. Its adherence to the collective-bargaining agreement
throughout the 10(b) period and beyond was inconsistent
with and overrode its purported repudiation. Such conduct
gave rise to a continuing obligation to bargain with the
Union on request. Chemug Contracting, supra.
Accordingly, Respondent was not at liberty on August 20
to refuse to bargain with the Union or to declare that impasse
was reached over a permissive subject of bargaining during
the life of the outstanding agreement. Its unequivocal refusal
on that date to recognize or bargain with the Union as the
designated representative of an appropriate multiplant unit
violated the Act within the meaning of Bryan and Farming-
dale. It follows that the Union’s charge filed 5 months later
was not time barred by Section 10(b).
3. Refusal-to-bargain charge under White-Westinghouse
doctrine was timely
The rule in Chambersburg was narrowly drawn and does
not appear to reverse longstanding precedent holding that
where the duty to bargain in an appropriate unit is a con-
tinuing obligation, each refusal to do so violates the Act.
See, e.g., West Penn Power Co., 143 NLRB 1316 (1963),
enfd. denied on other grounds 337 F.2d 993 (3d Cir. 1964).
Here, under the Burns exception, Respondent, as a suc-
cessor who retained the predecessor’s work force, was re-
quired to bargain before changing any of the preexisting
terms and conditions of employment. Therefore, each refusal
to bargain with the Union as the representative of a
multiplant unit constituted a separate and independent viola-
tion of the Act. See Resthaven Nursing Home, 293 NLRB
617 (1989), a case issued just 4 days before Chambersburg,
where the Board held that the duty to bargain collectively is
a continuing obligation so that each refusal by the employer
to bargain with or provide information to a newly certified
union was unlawful.
Respondent submits that it fulfilled any duty it may have
had by bargaining to impasse on May 26, but if the message
sent to the Union on that date was not enough then, it cer-
tainly gave unequivocal notice that it would not yield on
these matters on July 14. As proof that the parties were
deadlocked at the May 26 meeting, Respondent relies on
Brock’s statement to Lynch that the Company did not intend
to bargain on a single plant basis and Lynch’s equally ada-
mant response that the Company had to accept the master
agreement or negotiate a new multiplant contract. I am un-
convinced that the parties’ exchanges on either of these occa-
sions resulted in a legally cognizable impasse.
The May 26 meeting was the first date on which the par-
ties engaged in any dialog that resembled collective bar-
gaining. I know of no case, including those cited by the Re-
spondent, which hold that an impasse is properly declared
after just one meeting. This is particularly true here since the
parties took a somewhat conciliatory posture toward the
meeting’s end. Thus, although Lynch insisted on multiplant
bargaining during the meeting, as it drew to a close, he of-
fered to evaluate the excerpted portion of the acquisition
agreement that affected the employees’ interests and return
with comments. Significantly, Respondent’s counsel re-
marked that the meeting was a preliminary one, suggested
that they not draw lines and proposed they talk further about
the issues. These comments suggest that both parties antici-
pated further negotiations. On these facts, it would be pre-
mature to conclude that Respondent had given unequivocal
notice of an inalterable bargaining position or that the parties
had ‘‘exhausted the prospect of concluding an agreement’’ at
the May 26 meeting. Taft Broadcasting Co., 163 NLRB 475,
478 (1967), enfd. 395 F.2d 622 (D.C. Cir. 1968). Rather, as
Lynch testified, he left the meeting assuming that Respond-
ent simply was taking a hard line in outlining its initial bar-
gaining proposals. His June 1 letter to Stulman wherein he
stated that ‘‘Mr. Brock is taking the position that US Can
Co. will not adopt the Master Agreement nor . . . even agree
to one contract covering the four units’’ is consistent with his
testimony that in his view, Brock was staking out the Re-
spondent’s opening position and that further movement was
possible.
The July 14 telephone conversation between Brock and
Lynch hardly qualifies as a bargaining meeting. Neither man
deviated from his previously stated position as to single plant
bargaining; both expressed their points of view vigorously.
At this point, each spokesman, knowing that the other was
an experienced negotiator, could assume that they either had
reached an insuperable obstacle to reaching agreement or
were engaging in a consummate bargaining ploy. Neverthe-
less, Brock assured Lynch that he was not refusing to bar-
gain and wished to continue negotiations. They then agreed
to meet again and set aside several dates. Even assuming,
arguendo, that were deadlocked on July 14, their willingness
to engage in further discussion gave rise to the possibility
that further movement could occur. See Richmond Recording
Corp., 280 NLRB 615 (1986), enfd. 836 F.2d 289 (7th Cir.
1987). Since they had met formally only once before, both
Lynch and Brock still could harbor some hope that the other
side would ‘‘make some reasonable effort in some direction
to compose their differences.’’ NLRB v. Reed & Price Mfg.
Co., 205 F.2d 131, 134–135 (1st Cir. 1953), cert. denied 346
U.S. 887.
Not until the August 20 negotiating session did Respond-
ent unequivocally declare that impasse had been reached on
the multiplant unit issue. Brock’s statement that the Union
could take whatever economic action it deemed necessary
was pointed shorthand for saying that even if the Union
struck, the Respondent would not yield. Clearly, at this junc-
ture, ‘‘there was not realistic possibility that continuation of
discussion at that time would have been fruitful.’’ Television
Artists AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968). Un-
like prior bargaining meetings, Respondent offered no hope
that its bargaining posture on the multiplant unit would
change. Thus, Brock’s words at this meeting constituted the
final and unequivocal notice referred to in Esmark and Postal
Service sufficient to trigger the start of the limitations pe-
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 See also Goldin-Feldman, Inc., 295 NLRB 359 fn. 3 (1989).
riod.37 Since, as discussed above, the scope of the unit is a
permissive subject of bargaining, Respondent committed an
unfair labor practice only when it insisted to impasse on sin-
gle plant bargaining on August 20. Accordingly, the Union’s
charge filed 6 months later came within the 10(b) period.
4. Charge alleging unlawful abandonment of IPJO
was not time barred
Respondent submits that the third amended charge filed on
October 4, 1988, was time barred since the Company notified
the Union more than a year before the date that it would not
adhere to IPJO. The General Counsel and the Charging Party
counter that the otherwise untimely allegation regarding the
abandonment of IPJO was preserved under the Board’s
‘‘closely related’’ doctrine.
In Redd-I, Inc., 290 NLRB 1115 (1988), a case of recent
vintage, the Board reaffirmed a well-established doctrine that
complaint allegations outside the 6-month 10(b) period are
allowed if they are closely related to the allegations of a
timely filed charge. In deciding whether the complaint
amendments are closely related, the Board rued that it will
examine ‘‘whether the otherwise untimely allegations are of
the same class as the violations alleged in the pending timely
charge . . . arise from the same factual situation or sequence
of events as the allegations in the pending timely charge . . .
[and] whether a respondent would raise the same or similar
defenses to both allegations.’’ Id. at 1118.
On applying Redd-I’s tests here, I conclude that the
Union’s third amended charge was closely related to the
original timely charge. The charge involved a unilateral alter-
ation of a term of employment that gave rise to an alleged
violation of Section 8(a)(5), the same section of the Act in-
volved in the balance of the complaint. Moreover, the charge
was closely tied to the theory underlying the entire case; that
is, that Respondent unlawfully refused to abide by the master
agreement. There can be no doubt that the charge drew upon
much the same sequence of events as gave rise to the first
charge and that the Respondent would, and did, raise the
same defenses to both allegations. Thus, the second and third
prongs of the ‘‘closely-related’’ standard were satisfied here
as well.
The Respondent argues that the closely related test does
not apply here because the Union knew of the alleged
wrongful conduct as early as May 22 and 26, more than 6
months prior to the date the first charge was filed. Some dis-
pute exists about whether Crisp said anything about IPJO at
the May 22 meeting, and whether the Respondent made it
clear which plants would be affected by its repudiation of
IPJO. Apart from these imperfections, which cast doubt on
whether Respondent’s early references to IPJO were unam-
biguous, there is another more serious defect in its 10(b) ar-
gument. At best, all that the Company communicated to the
Union at the May 22 and 26 meetings was a future intent
to repudiate IPJO. Such anticipatory pronuncements do not
constitute the actual implementation of an unlawful act
which is required to trigger the 10(b) period. See Esmark,
supra, 608 F.2d at 746; Howard Electrical & Mechanical,
supra.
The earliest occasion on which Respondent refused to
apply IPJO to a concrete situation came in December 1987
when the clearing plant manager advised the local union
president that he would not consider filling positions of sum-
mer employees with unit members from an IPJO list. This
incident occurred well within the 6-month period preceding
the initial charge filed on January 20, 1988. Therefore, the
third amended charge, which related back to a charge which
was timely filed, is not time barred.
CONCLUSIONS OF LAW
1. United States Can Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. United Steelworkers of America is a labor organization
within the meaning of Section 2(5) of the Act.
3. Employees in the following units at the plants named
below constitute an appropriate multiplant unit for the pur-
pose of collective bargaining within the meaning of Section
9(b) of the Act:
5 Clearing, Local 2374 (Chicago, Illinois)
Includes all production and maintenance employees
but excludes all foremen and assistant foremen, office
and factory clerical employees (except checkers),
watchmen, nurses, draftsmen, chemists, laboratory tech-
nicians, outside truck drivers and supervisory employ-
ees as defined in the Labor Management Relations Act.
30 Passaic, Local 4580 (New Jersey)
Includes all production, maintenance and shipping
employees and quality control inspectors, but excludes
all timekeepers, outside chauffeurs, watchmen, cafeteria
employees, lithograph department employees, office
technical employees, guards, professional employees
and supervisors as defined in the Act.
64 North-Grand, Local 2645 (Chicago, Illinois)
Includes all production and maintenance employees
including employees of the Solder House, janitor, ma-
trons, inspectors and checkers and working supervisors,
but excludes office and factory clerical employees,
watchmen, timekeepers, nurses, draftsmen, chemists,
laboratory technicians, storekeepers, outside full time
inspectors at customers’ plants, outside truck drivers,
full time cafeteria employees, cement workers, employ-
ees covered by other bargaining units in the plant, fore-
men, assistant foremen and all other supervisory em-
ployees as defined in the Act.
476 Derry, Local 9123 (New Hampshire)
Includes all full-time and regular part-time produc-
tion and maintenance employees employed by the em-
ployer at its Derry Industrial Park, Derry, New Hamp-
shire facility, including all electricians, assembly main-
tainers, press mainteainers, warehouse employees, in-
spectors, fork truck operators, feeders, press operators,
operators and machine cleaners, but excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
1145UNITED STATES CAN CO.
38 This does not preclude bargaining in the individual plant units
for local supplements in accordance with past practice.
39 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
40 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
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.’’
460 Burns Harber, Local 8445 (Indiana)
Includes all hourly production and maintenance em-
ployees, but excludes supervisory personnel, clerical
employees, lithograph pressmen and feeders and their
apprentices, and all other professional employees as de-
fined by law.
4. At all times since May 13, 1989, the Union, on behalf
of and in conjunction with its locals described in paragraph
3 above, has been the representative for the purpose of col-
lective bargaining by virtue of Section 9(a) of the Act with
respect to rates of pay, wages, hours, and other terms and
conditions of employment.38
5. By refusing to bargain with the Union in the above-de-
scribed appropriate multiplant unit since August 20, 1987,
Respondent has engaged in unfair labor practices in violation
of Section 8(a)(5) and (1) of the Act.
6. By failing and refusing to be bound by the terms of the
master agreement with respect to a multiplant unit and by
unilaterally altering the terms of the agreement regarding the
Inter-Plant Job Opportunity Program, Respondent has vio-
lated Section 8(a)(5) and (1) of the Act.
7. The aforementioned unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the purposes of the Act. Specifi-
cally, I shall recommend that Respondent bargain in good
faith with the Union on a multiplant basis with respect to the
unit set forth above and, if an understanding is reached, em-
body it in a signed agreement. Further, I also shall rec-
ommend that Respondent rescind its discontinuance of the
IPJO provision of the now expired master agreement and
take whatever actions may be necessary to apply the terms
of that provision to eligible IPJO applicants. Lastly, the Re-
spondent shall be ordered to refrain from interfering with, re-
straining, or coercing employees in the exercise of Section
7 rights in any like or related manner, and to post appro-
priate notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended39
ORDER
The Respondent, United States Can Co., Oak Brook, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the United
Steelworkers of America, AFL–CIO–CLC as the exclusive
bargaining representative of its employees in the appropriate
multiplant unit described above in paragraph 3 of the Con-
clusions of Law section of this decision.
(b) Unilaterally altering the terms and conditions of em-
ployment of the employees in the above-described unit by
discontinuing the Inter-Plant Opportunity Program set forth
in article 29 the the master agreement which expired in Feb-
ruary 1989.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them 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 the
exclusive representative of employees in the above-described
multiplant unit.
(b) Rescind the unilateral discontinuance of IPJO and take
actions consistent with the terms set forth in article 29 of the
1986–1989 master agreement to apply that program to eligi-
ble applicants.
(c) Post at its plants in Derry, New Hampshire and Burns
Harbor, Indiana, copies of the attached notice marked ‘‘Ap-
pendix.’’40 Copies of the notice, on forms provided by the
Regional Director for Region 13, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent 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 Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.