W & W Steel Co.

National Labor Relations Board - Board Decisions

Sep 19, 1977

232 N.L.R.B. 74 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W & W Steel Company and United Steelworkers of
America, AFL-CIO. Case 23-CA-6038 (formerly
16-CA-6563)
September 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On April II, 1977, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge finds Respondent
lawfully refused to bargain with the Union since a
majority of its employees either had not supported
the strike against the predecessor, Mosher Steel
Company, herein Mosher Steel, or had been hired
since the strike. We disagree. We find that Respon-
dent is a successor employer within the meaning of
the Act and further conclude that Respondent, on
and after April 8, 1976, failed and refused to bargain
with the Union as the exclusive representative of its
employees in violation of Section 8(a)(5) of the Act.
Facts
On January 18, 1974, the Union was certified as the
collective-bargaining representative in a company-
wide unit including all employees employed by
Mosher Steel at all of its seven plants.
The unit as certified included approximately 980
employees. The parties stipulated that there were 30
employees at the Lubbock, Texas, plant, the only
facility involved herein, who were allowed to vote in
the election.
On July 22, 1974, employees of Mosher Steel
commenced an unfair labor practice strike against
'Ihe unit included: All production and maintenance employees,
including leadmen, truckdrivers, janitors. and all plant clericals. Excluded
were: all office clerical employees, draftsmen, inside and outside salesmen,
watchmen, guards, professional employees, and supervisors as defined in the
Act.
- On September 16, 1975, the Board issued its decision in Mosher Steel
CornpanU. 220 NLRB 336. in which it adopted the Administrative Law
Judge's findings that Mosher Steel had violated Sec. 8(a)(5) and (1) of the
Act and that the Jul), 22, 1974. strike was an unfair labor practice stnke. The
232 NLRB No. 18
the company. Of 51 employees in the unit at the
Lubbock, Texas, plant, 27 joined the strike and 24
remained at work. As of May 6, 1975, five strikers
had returned to work. The strike concluded on May
12, 1975. Thereafter, 11 striking employees returned
to work. As of the critical time involved in this
proceeding, 11 striking employees had not returned
to work. 2 On December 16, 1975, Respondent W &
W Steel Company and Mosher Steel entered into a
purchase-sale agreement whereby Respondent
agreed to buy the Lubbock plant buildings, machine-
ry, equipment, and inventory. Respondent com-
menced operation of the Lubbock facility on April 1,
1976, with 37 employees formerly employed by
Mosher Steel at that plant. In addition, as of April 1,
Respondent hired substantially all of its predeces-
sor's managerial personnel and hired approximately
30 nonunit employees, of whom 21 were formerly
employed by Mosher Steel at Lubbock. On April 20,
Respondent hired 12 employees not previously
employed by Mosher Steel in unit positions. Of the
37 Lubbock employees hired by Respondent on
April 1, 8 had participated in the 1974 unfair labor
practice strike against Mosher Steel; 13 others,
although employed during the period of the strike,
did not participate in the strike or its conclusion and
are not shown to have participated in union activity.
Following commencement of operations, Respon-
dent rearranged some of the shop and work locations
and replaced some of the older equipment. Respon-
dent, like its predecessor, continues to engage in the
fabrication of steel and related products. 3
By letter dated April 8, 1976, the Union requested
Respondent to bargain with it as the exclusive
bargaining representative of all employees in a unit
of all production and maintenance employees includ-
ing leadmen, truckdrivers, janitors, and plant cleri-
cals employed at the Lubbock, Texas, plant. Respon-
dent has at all times denied any obligation to bargain
with the Union.
Analysis and Conclusions
The Administrative Law Judge found, and we
agree, that Respondent continued the "employing
industry" by using substantially the same facilities
and work force for the same basic purpose, for
General Counsel does not contend that Respondent took with knowledge of
the predecessor's unfair labor practices or that it had any obligation to
remedy those violations of the Act.
I Although Mosher Steel's work related to the industnal steel business
while Respondent's comprised work for commercial businesses, we agree
with the Administrative Law Judge that the transition from industrial to
commercial work does not in this case reveal a material change in the basic
enterprise.
74
W & W STEEL COMPANY
essentially the same customers, in the same geo-
graphic area. 4 Thus, Respondent continues to engage
in the fabrication of structural steel and related
products, and a majority of the work complement
employed by Respondent was formerly employed by
Mosher Steel at the Lubbock plant. The physical
facility is in the same location and Respondent
services customers in the same geographical area.
In dismissing the complaint allegations herein, the
Administrative Law Judge relied on the finding that
only 8 of the 49 unit employees hired by Respondent
demonstrated their support for the Union by
participation in the 1974 unfair labor practice strike.
Since 29 others did not engage in strike activity, and
the remaining 12 unit employees were not formerly
employed by Mosher Steel, the Administrative Law
Judge concluded that there existed a significant
question as to the Union's representative status
sufficient to defeat Respondent's obligation to
bargain as a successor employer.
Contrary to the Administrative Law Judge, we find
that Respondent did not have a reasonable basis to
doubt the Union's majority status. The Board has
long held that new employees will be presumed to
support a union in the same ratio as those whom they
have replaced.5 Thus, a majority of all employees of
the predecessor are presumed to have supported the
successor. This presumption is not rebutted by the
fact that only 8 of the 21 employees hired by
Respondent and employed by Mosher Steel at the
time of the 1974 unfair labor practice strike support-
ed that strike. As the Board has often stated, an
employee crossing a picket line during a strike does
not give rise to a presumption that such action
demonstrates a rejection of the union as the
employees' bargaining representative.6 Further, Re-
spondent has presented no independent evidence
from which the inference may be drawn that the 16
former Mosher Steel employees hired by it subse-
quent to the unfair labor practice strike and hired by
Respondent on April 1 either replaced union
adherents or otherwise demonstrated a lack of
support for the Union. Under these circumstances,
we find that Respondent has not established an
objective basis to support a good-faith doubt as to
the Union's majority status. 7 Accordingly, we find
there exists no significant question as to the Union's
representative status and further conclude that
I Ranch-Wav, Inc., 183 NLRB 1168, 1169 (1970); N.L.R.B. v. Burns
International Security Services, Inc., el al., 406 U.S. 272, 278 (1972).
s See. e.g.. Lavstrom Manufacturing Co.. 151 NLRB 1482 (1965); King
Radio Corporation. 208 NLRB 578 (1974).
6 King Radio Corp., supra at 583: Salina Concrete Products. Inc.. 218
NLRB 496, 502 (1975): Palmer Asbesrtos & Rubber Corporation, 160 NI.RB
723,730 (1966).
7 Nor do we find any merit in Respondent's contention that severance of
the Lubbock plant from the multiplant unit certified by the Board relieves
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union as the
exclusive representative of its employees in an
appropriate unit on and after April 8, 1976.
Having found that Respondent has engaged in
unfair labor practices violative of Section 8(a)(5) of
the Act, we shall order that it cease and desist
therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent unlawfully refused
to bargain with the Union as the certified representa-
tive of its employees in an appropriate unit, we shall
order Respondent to bargain collectively with the
Union, upon request, concerning rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and embody any understanding reached in a
signed agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
W & W Steel Company, Lubbock, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Steelworkers of America, AFL-CIO, as the exclusive
collective-bargaining representative of its employees
in the following appropriate unit:
Included.: All production and maintenance em-
ployees, including leadmen, truckdrivers, janitors,
and plant clericals employed at the Lubbock,
Texas, plant located at 2221 Erskine Avenue.
Excluded: All other employees, including supervi-
sors, office clericals, professional, draftsmen,
inside and outside salesmen, and guards and
watchmen, as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with United
Steelworkers of America, AFL-CIO, as the exclusive
representative of all employees in the aforesaid
appropriate unit found above with respect to rates of
Respondent of its obligation to bargain. Mere diminution in the scope of the
unit does not relieve a successor employer of its duty to bargain. See Boston-
Needham Industrial Cleaning Co., Inc., 216 NLRB 26, 28 (1975). Respondent
has presented no evidence to counteract the general rule that a single-plant
unit is presumptively appropriate. See The National Cash Register Coipanr.
166 NLRB 173 (1967). Accordingly, we agree with the Administrative Law
Judge that the single-plant bargaining unit alleged by the General Counsel,
and requested by the Union, is an appropnate unit for bargaining.
75
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay, wages, hours, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached.
(b) Post at its place of business in Lubbock, Texas,
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the
Regional Director for Region 23, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
I In the event that 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
United Steelworkers of America, AFL-CIO, as
the certified collective-bargaining representative
of our employees in the appropriate unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in Section 7 of
the Act.
WE WILL, upon request, bargain collectively
with the aforesaid Union, as the certified repre-
sentative of our employees in the appropriate unit
with respect to rates of pay, wages, hours, and
other terms and conditions of employment, and
embody in a signed agreement any understanding
reached. The bargaining unit is:
Included.' All production and maintenance
employees, including leadmen, truckdrivers,
janitors, and plant clericals employed at the
Lubbock, Texas, plant located at 2221
Erskine Avenue.
Excluded: All other employees, including
supervisors, office clericals, professionals,
draftsmen, inside and outside salesmen, and
guards and watchmen, as defined in the Act.
W & W STEEL COMPANY
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended, was heard pursuant to due
notice on November 10, 1976, at Lubbock, Texas.
The charge in Case 16-CA-6563 was filed on April 29,
1976. Thereafter this case was transferred on May 5, 1976,
from Region 16 to Region 23 and docketed as Case 23-
CA-6038. The complaint in this matter was issued on
September 21, 1976. The issues concern (1) whether the
Respondent is a successor-employer to Mosher Steel
Company, and (2) whether the Respondent had the
obligation to bargain with the Union as to an employee
unit at Lubbock, Texas and, by refusing to do so, has
violated Section 8(a)(5) and (1) of the Act.
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the Respon-
dent and the General Counsel and have been considered.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER'
W & W Steel Company, the Respondent, is, and has
been at all times material herein, a corporation duly
organized under and existing by virtue of the laws of the
State of Oklahoma and maintains an office and place of
business in Lubbock, Texas, the only facility involved in
this proceeding, where it is engaged in the business of the
fabrication of structural steel products.
Mosher Steel Company is, and has been at all time
material herein, a corporation duly organized under and
existing by virtue of the laws of the State of Texas, having
its principal office and place of business in Houston, Texas,
where it is engaged in the business of fabricating structural
steel products. Prior to April 1, 1976, Mosher Steel
Company also owned and operated a facility in Lubbock,
Texas, where steel products were manufactured.
During the calendar year 1976, which period is represen-
tative for all times material herein, W & W Steel Company,
the Respondent, in the performance of its business as
described above, purchased goods and materials valued in
excess of $50,000, which goods and materials were shipped
directly to Respondent's Lubbock, Texas, plant from
points and places located outside the State of Texas.
During the same period of time Respondent sold materials
valued in excess of $50,000 to customers located at points
The facts herein are based upon the pleadings and admissions therein.
76
W & W STEEL COMPANY
and places outside the State of Texas, which materials were
shipped directly from Respondent's Lubbock, Texas, plant
to said customers.
During the past calendar year, which period is represen-
tative for all times material herein, Mosher Steel Company,
in the performance of its business as described above,
purchased goods and materials valued in excess of $50,000,
which were shipped directly to Respondent's Houston,
Texas, facility from points and places located outside the
State of Texas.
As conceded by Respondent and based upon the
foregoing, it is concluded and found that the Respondent
and Mosher Steel Company, each is, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is and has
been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues; Supervisory Agency Status2
At all times material herein the following named persons
occupied the positions set opposite their respective names
and have been, and are now, agents of Respondent, acting
on its behalf, and are supervisors within the meaning of
Section 2(11) of the Act: Allen E. Coles - president;
James Wilson - vice president; Kenneth Baker - shop
superintendent; Andy Malone - coordinator; Dan Wil-
liams - subforeman; Ronnie Currin - subforeman; and
Mike Dyess - subforeman.
B. Background
On July 19, 1973, the Union filed a petition for an
election in a companywide unit of the employees at all of
the Mosher Steel Company's seven plants. On August 1,
1973, Mosher Steel and the Union entered into a Stipula-
tion for Certification Upon Consent Election, with election
to be held simultaneously at all seven plants on August 30,
1973. The Board's notice of election set forth that ballots
from all voting sessions would be mingled and counted on
August 31, 1973.
On August 31, 1973, such representation election
referred to above was held. The tally of ballots reflects that
there were 980 eligible voters, that 511 employees voted for
representation by the Union, 378 employees voted against
representation by the Union, and that there were 23
challenged ballots. The parties stipulated to the effect that
there were 30 employees at the Lubbock plant involved
herein who were allowed to vote in said election.
On January 18, 1974, the National Labor Relations
Board certified the Union (United Steelworkers of Ameri-
ca, AFL-CIO) as the exclusive collective-bargaining
representative of the employees in the stipulated appropri-
ate bargaining unit.3
2 The facts are based upon the pleadings and admissions therein.
Such certified and stipulated appropriate bargaining unit
of Mosher Steel employees as referred to above was as
follows:
Included. A company wide unit of the employees at all
of the Employer's seven plants, at 3910 Washington
and 6422 Esperson Street, Houston, Texas; San
Antonio, Texas; Dallas Texas; Lubbock, Texas; Tyler,
Texas; and Shreveport, Louisiana, described as fol-
lows: all production and maintenance employees,
including leadmen, truckdrivers, janitors, and all plant
clericals.
Excluded: All office clerical employeees, draftsmen,
inside and outside salesmen, watchmen, guards, profes-
sional employees, and supervisors as defined in the Act.
On July 22, 1974, employees of Mosher Steel Company
commenced an unfair labor practice strike against the
company. At the time of the beginning of said strike, there
were 51 employees in the bargaining unit working at -the
Lubbock plant. Initially 26 of said 51 employees com-
menced striking activity, and 25 of said 51 employees
remained at work. Later one other employee joined the
strike. Of these striking employees, five abandoned the
strike and returned to work on these respective dates:
August 5 and 15; September 24 and 25; and May 6. Thus,
by May 12, 1975, 5 of the 27 striking employees had
returned to work for Mosher Steel at Lubbock, Texas. The
strike concluded on May 12, 1975. Thereafter 11 striking
employees returned to work. As of the critical time
involved in this proceeding, 11 striking employees had not
returned to work at the Lubbock plant either because of
voluntary or involuntary reasons.
On April 23, 1975, Administrative Law Judge Samuel M.
Singer issued his decision in Masher Steel Company, JD-
209-75, Cases 23-CA-5165, 23-CA-5258 (formerly 16-
CA-5699), and 23-CA-5282 (formerly 15-CA-5357), in
which he found that Mosher Steel Company had violated
Section 8(a)5) and (1) of the Act, that the July 22, 1974,
strike was an unfair labor practice strike, and wherein he
recommended a bargaining order be issued as regards the
seven-plant certified unit, and that an order be issued
requiring reinstatement and backpay for unfair labor
practice strikers upon their unconditional offer to return to
work. On September 16, 1975, the Board issued its decision
in Masher Steel Company, 220 NLRB 336, adopting in
effect the above-referred-to findings, conclusions, and
recommended order of Administrative Law Judge Singer.
C. The Purchase - Sale Agreement
On December 16, 1975, the Respondent, W & W Steel
Company, and Mosher Steel Company entered into a
purchase-sale agreement whereby Respondent agreed in
effect to purchase and Mosher agreed to sell the Mosher
Steel Lubbock plant physical assets, including the build-
ings, machinery, equipment, and inventory. The closing
and effective date of purchase and sale was set for April 1,
1976. Said agreement contained no reference, representa-
3 208 NLRB 522.
77
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, commitment, or obligation regarding Mosher's Lub-
bock employees. The agreement did not include sale or
purchase of accounts receivable or good will or of
contracts. Later in March or April 1976, the parties
contracted for the completion of a few Mosher jobs started
before April 1, 1976, but not completed by April 1, 1976.
At the time of the execution of the purchase-sale
agreement, the Respondent (W & W Steel Company) had
no notice of or knowledge of pending unfair labor practice
proceedings or of certification of the Union as the exclusive
collective-bargaining representative of the seven-plant
Mosher Steel bargaining unit. Between December 16, 1975,
and April 1, 1976, the Respondent became aware of some
union or prior striking activity at the Lubbock plant and
had its attorney check into such question. 4
D. W & W Steel (Lubbock) Commencement of
Operations
On April 1, 1976, the Respondent, pursuant to its
purchase-sale agreement with Mosher Steel, acquired the
Mosher Steel Lubbock plant's physical assets, including
buildings, machinery, equipment, and inventory, and
commenced operation of a plant at such facility.
Respondent commenced operations on April 1, 1976,
using essentially a complement of nonsupervisory employ-
ees who had worked for Mosher Steel at Lubbock prior to
April 1, 1976. 5 Thus, on April 1, 1976, Respondent
employed 37 nonsupervisory employees who had formerly
worked for Mosher Steel.6 On April 20, 1976, Respondent
hired I truckdriver and 11 helpers who had not been
employed by Mosher Steel prior to April 1, 1976. On April
1, 1976, Respondent, as indicated, hired two subforemen
(Williams and Dyess) who had worked as subforemen for
Mosher. On April 1, 1976, Respondent hired 21 office
employees, including O. E. (Jim) Wilson, who had worked
for Mosher at Lubbock. Wilson was employed by Respon-
dent as a vice president in production. On April 1, 1976,
Respondent hired seven office employees who had not
worked for Mosher at Lubbock. 7 Thereafter, on April 13
and 20, 1976, Respondent hired two office employees who
had not worked for Mosher.
As to Mosher's management at Lubbock, Respondent,
on April 1, 1976, hired substantially all of the old
management. Respondent did not hire Mosher's Lubbock
plant manager, Kendred. 8 Nor did Respondent hire
Subforeman George Johnson. As indicated previously,
Subforemen Dyess and Williams were hired for the same
position they held at Mosher's Lubbock plant. Similarly
Mosher's Lubbock supervisor, Wilson, was hired. Malone,
who had been shop superintendent for the Mosher
4 The General Counsel's theory in this case excludes a contention that
the Respondent is a successor because of responsibility to remedy unfair
labor practices. Despite this, both parties presented some evidence relating
to knowledge or lack of knowledge of pending unfair labor practices
proceedings or certification of the Union. Respondent's witness, Coles,
testified to the effect that the first knowledge in a real sense occurred after
April 1, 1976. However, considering Respondent's having its attorney to
check into the questions relating to the Union, I am not persuaded that the
Respondent between December 16, 1975, and April 1, 1976, did not become
aware of the pendency of unfair labor practice proceedings. I find it hard to
believe that its attorney did not discover such facts and report the same to
top management.
Lubbock plant, was retained in production. Kenneth
Baker, subforeman at the Mosher-Lubbock plant, was
made structural shop superintendent. Lane Odum, another
Mosher Lubbock supervisor, was retained.
In sum, Respondent's supervision and employee comple-
ment on April 1 and for a reasonable period of time
thereafter was composed of employees and supervisors
who had worked for Mosher Steel prior to April 1, 1976.
As indicated previously, Respondent purchased ma-
chinery and equipment from Mosher. After commence-
ment of operations, there was some rearrangement of the
shop and work locations, some replacement of equipment
by newer and better equipment, and some shuffling of
supervisors. Some changes were made with respect to the
type of estimators needed. The work performed by both
Mosher and W & W essentially involves the fabrication of
steel and related products. Mosher's work had been in the
industrial steel business where sales are made to engineer-
ing companies who both design and construct industrial
plants, and the steel which is furnished includes machinery
or equipment to be used in the manufacturing process at
the new facility, as well as the structural steel for the
building facility. W & W's work consists of work for
commercial business, of providing steel for the erection of
buildings, such as warehouses, schools, etc. Steel is
furnished for such projects by contract between the steel
fabricator and the general contractor of the project.
I also note that there was a change with respect to
shipping and receiving as regards the Mosher-Lubbock
operation and the W & W Steel Lubbock operation. It
appears that the shipping and receiving employees were
moved out of the office location to another location and
that a truckdriver was included with such employees. The
functioning of shipping and receiving continued essentially
the same.
It is noted that of the 37 shop employees hired by the
Respondent on April 1, 1976, only 8 of such employees had
engaged in striking activity during the 1974 Mosher Steel
unfair labor practice strike, that only 13 others had been
employed by Mosher Steel at the time of the commence-
ment of such strike.
E. The Alleged Refusal To Bargain
The facts are undisputed that the Union, by letter dated
April 8, 1976, requested the Respondent, W & W Steel
Company, to bargain collectively with it as the exclusive
collective-bargaining representative of all the employees in
a unit described as follows:
Included: All production and maintenance employees,
including leadmen, truckdrivers, janitors and plant
I Employees hired by W & W Steel Company applied for jobs, were
interviewed, and took physical examinations.
6 An exhibit in the record reflects that 39 former Mosher Steel employees
were employed on Apnl 1, 1976. The testimony relating to the status of
Williams and Dyess was confused and contradictory. A later stipulation
revealed Williams and Dyess to have been subforemen for Mosher Steel at
Lubbock prior to April 1, 1976, and to have been employed as subforemen
by Respondent on April 1, 1976.
? One of these employees was Meador who was hired as vice president in
sales.
I From the record and pnor Board decisions referred to in this case, it is
not clear whether the correct spelling is Kindred or Kendred.
78
W & W STEEL COMPANY
clericals employed at the Lubbock, Texas plant located
at 2221 Erskine Avenue.
Excluded.' All other employees, including supervisors,
office clerical, professional, draftsmen, inside and
outside salesmen and guards and watchmen, as defined
in the Act.
The Union's letter of April 8, 1976, referred to the fact
that the Union was certified as the exclusive collective-
bargaining representative of Mosher's employees in an
appropriate unit which included the employees of the
Mosher plant at Lubbock, Texas. The Union's letter also
adverted to an NLRB case, Mosher Steel, supra, and to
findings and orders therein relating to a refusal to bargain
and an order to bargain. The Union's letter also adverted
to its contention that the Respondent was a successor to
Mosher Steel and obligated to bargain with the Union
concerning the alleged appropriate unit.
On April 19, 1976, Attorney Soule, for the Respondent,
responded to the Union's April 8, 1976, letter, denied
knowledge of the Mosher unfair labor practice charges or
remedial responsibility, and requested a copy of the
"certification" for review.
On April 27, 1976, Attorney Wolfe, for the Union,
replied to Soule's April 19, 1976, letter, furnished a copy of
the NLRB's January 18, 1974, certification of the seven-
plant Mosher Steel unit, and requested a prompt decision
as to recognition in the unit referred to in the Union's April
8, 1976, letter.
On May 4, 1976, Attorney Soule, for the Respondent,
filed a petition for election for a Lubbock plant unit of:
Included: All production and maintenance employees,
shipping and receiving employees, and truckdrivers at
the Employer's Lubbock plant.
Excluded: Office clerical employees, the estimating and
engineering department, draftsmen and supervisors as
defined in the Act.
On May 4, 1976, Attorney Soule, for the Respondent,
responded to Wolfe's letter of April 27, 1976. Soule set
forth that W & W Steel had no knowledge of the unfair
labor practice litigation until April 8, 1976, and noted that
the certification and majority status determination in-
volved a seven-plant election. Soule set forth that he was
forwarding a petition for election to the NLRB to resolve
the question of representation and suggested that there be a
stipulated election.
On May 10, 1976, Wolfe, for the Union, replied to
Soule's May 4, 1976, letter. Wolfe set forth that the Union
was not agreeable to a stipulated election and referred
Soule to unfair labor practice charges in Case 23-CA-6038
and his understanding that the bargaining obligations of a
successor employer were involved in such case.9
The Respondent's representation petition (Case 23-RM-
345) was dismissed by the Regional Director on September
21, 1976, because a complaint in Case 23-CA-6038 had
"' The record reveals that such charge was served on Respondent on May
7. 1976, by mail, and received by Respondent on May 11, 1976.
"' An RD petition was similarly disposed of.
been issued alleging violation of Section 8(aX5) and (1) of
the Act. The Respondent's appeal of such dismissal was
rejected by the Board on October 29, 1976, subject to
reinstatement, if appropriate, upon disposition of Case 23-
CA-6038.10
Issues; Contentions; Conclusions
The first issue to dispose of is whether the unit alleged to
be appropriate for bargaining by the General Counsel and
for which the Union requested bargaining is an appropriate
bargaining unit.
The bargaining unit alleged to be appropriate for
bargaining by the General Counsel in his complaint is the
same as the one for which the Union requested bargaining.
Said unit descriptively differs from the seven-plant stipulat-
ed and certified unit of Mosher Steel's employees only to
the extent of the restrictive reference to a unit composed
only of the Lubbock employees.
Production and maintenance employee units are pre-
sumptively appropriate. The Respondent, by answer and at
hearing, contends that the appropriate bargaining unit
should include shipping and receiving employees. The
evidence in this case as to shipping and receiving
employees does not persuade that changes have been made
which would warrant the finding that a unit excluding such
employees was not appropriate. In sum, I conclude and
find that the single-plant bargaining unit alleged by the
General Counsel and requested by the Union is an
appropriate unit for bargaining.
The facts are clear that the Union made an appropriate
request for bargaining on April 8, 1976. The facts are also
clear that the Respondent has refused to recognize or
bargain with the Union as to said appropriate bargaining
unit. The critical question is whether the Respondent is a
successor for bargaining purposes within the meaning of
N.L R.B. v. Burns International Security Services, Inc., 406
U.S. 272 (1972).
In my opinion, the evidence supports the General
Counsel's theory of successorship obligation to bargain in
all respects except one. Thus, the facts reveal that a
majority of Respondent's employees hired on April 1, 1976,
were employees of Mosher Steel prior to April 1, 1976.
Such changes as to work station, commercial or industrial
type work, shuffling of supervision, or newer type machine-
ry, do not in this case reveal a material change in the
enterprise or structure. Essentially the same employees are
doing the same type work at the same location. Unlike the
Burns' requirement that there be no significant reason to
question the Union's majority representative status, the
facts in this case reveal that there is a question of the
Union's representative status. Thus, of the 37-employee
complement"l hired on April 1, 1976, only 8 of such
employees have revealed themselves to have been union
adherents or supporters, the other 29 employees included
13 employees who had worked but had not participated in
strike activity at Mosher Steel in 1974, and included 16
employees hired after the commencement of the 1974 strike
or after the strike and who are not shown to have
I' Of the 39 hired, 2 were supervisors. Thus, there were 37 nonsupersiso-
ry employees in the bargaining unit.
79
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participated in union activity. The 12 employees who were
hired on April 20, and May 3, 1976, were new employees
who had not worked for Mosher Steel.
Although there is a weak presumption that in 1974, as a
result of the certification, a majority of the employees in
the Lubbock portion of the overall seven-plant unit
supported the Union, the overall facts herein destroy such
presumption. The facts herein reveal that on April 1, 1976,
there were 11 unreinstated Mosher Steel unfair labor
practice strikers. The stipulation as to these persons,
however, was broad and to the effect that their failure of
return was either voluntary or unvoluntary. Thus, there is
no evidence to reveal that the Respondent was on notice of
remedial responsibility as to such employees or in fact that
any such employee had made an unconditional offer to
return to work and been denied the same. There was
testimony that indicated that three employees wanted to
return to work but were not allowed to do so. Assuming 3
employees to be entitled to employee status or even
assuming that all 11 persons referred to were entitled to
employee status, the overall facts herein reveal a question
as to the Union's representative status. Further, I note that
the General Counsel does not pursue an obligation to
bargain on a remedy theory. However, the General
Counsel argues that the obligation to bargain in effect was
fixed by the Board's decision in Mosher Steel Company,
supra. This theory, however, in my opinion, requires the
same consideration of whether there is a question of
representative status as regards the one-plant unit as
discussed herein in general. In sum, I find that the facts
relating to the changed employer-employee relationship
herein reveal that a question concerning representation
exists and that W & W Steel is not a successor for
bargaining purposes. Accordingly, it will be recommended
that the complaint allegations of refusal to bargain in
violation of Section 8(aX5) and (1) of the Act be dismissed.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. W & W Steel Company, the Respondent, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
3. W & W Steel Company has not, as alleged, violated
Section 8(a)(5) and (1) of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]
80