C.J.B. Industries

National Labor Relations Board - Board Decisions

Aug 6, 1980

250 N.L.R.B. 1433 (N.L.R.B. 1980)

C.J.B. INDUSTRIES
C.J.B. Industries and Local Lodge 1038 of District
Lodge 52 of the International Association of
Machinists and Aerospace Workers, AFL-CIO.
Case 9-CA-12337
August 6, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On May 12, 1980, Administrative Law Judge
John C. Miller issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in response to Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
In concluding that Respondent is the successor
of Metal Flo Corporation (hereinafter Metal Flo),
the Administrative Law Judge found, inter alia,
that since Respondent did not wish to have the
Union "back in" at its facility, it engaged in a con-
certed effort to avoid hiring former Metal Flo em-
ployees when it increased its permanent employee
complement. He further found that Respondent
cannot avoid the bargaining obligation of a succes-
sor "by utilizing a discriminatory hiring policy, de-
signed to exclude former employees represented by
the Union." Since he found the other requisite ele-
ments of successorship to be present, the Adminis-
trative Law Judge concluded that Respondent was
obligated to recognize and bargain with the Union
and that its refusal to do so violated Section 8(a)(5)
and (1) of the Act. We agree.
It is well established that where all other factors
for finding successorship are present, a new
owner's failure to hire its predecessor's employees
will not defeat a claim of successorship if such fail-
ure is shown to be motivated by the former em-
ployees' affiliation with a union. 2 In the present
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 See, e.g,, Hudson River Aggregates. Inc., 246 NLRB No 32 (1979);
Karl Kallman d/b/a Love's Barbeque Resaurant Vo. 62: Love's Enterprises.
Inc.. 245 NLRB No. 17 (1979): Potter's Drug Enterprises. inc. d/b/a Pot-
case, all four permanent production and mainte-
nance employees hired by Respondent sometime
before February 9, 1978, 3 were former employees
of Metal Flo.4 However, on February 9, and again
on March 7, the Union sent letters to Respondent
demanding recognition, to which Respondent did
not reply. Thereafter, none of the permanent em-
ployees hired by Respondent were former employ-
ees of Metal Flo and by the time of the hearing,
only 2 of Respondent's 11 or 12 employees had for-
merly been with Metal Flo. In this regard, Re-
spondent's former employee Jannette Klarman tes-
tified without contradiction that on several occa-
sions both Vice President Terry Osborne and Greg
Bouchard, the son of Respondent's owner, indicat-
ed that Respondent did not want the Union "back
in" at the Columbus facility and that Respondent
was not going to hire former employees of Metal
Flo. Klarman further testified that Osborne had
made arrangements to hire new employees through
an employment agency rather than utilize newspa-
per ads, since "[t]hat way nobody would see the
ad, and this man [at the agency] would screen them
first."
In addition to the above testimony, former Metal
Flo employee Leslie Crago testified that sometime
in May 1978 he attempted to apply for a job with
Respondent. He was denied an application by Os-
borne, who told him that Respondent "was not
hiring no [sic] former Metal Flo employees." 5
From the foregoing, it is clear that until Re-
spondent received the Union's demand for recogni-
tion, it had hired former bargaining unit employees.
Thereafter, Respondent resolved to keep the Union
out of its facility and, in furtherance of this design,
went to great pains to secretly recruit additional
permanent employees. Although the extent to
which Respondent would have hired former Metal
Flo employees cannot be determined with math-
ematical certainty, Respondent offered no credible
testimony to rebut the General Counsel's evidence
or to show that its failure to hire former Metal Flo
employees was based upon considerations other
than its expressed desire to keep the facility non-
ter's Chalet Drug and Potter's Westpark Drug. 233 Nl.RB 15 (1977). enfd
584 F 2d 980) (9th Cir 1978).
3 All dates refer to 1978 unless otherwise specified
I Respondent also hired former Metal Flo office clerical Jannette llar-
man, a nonunit employee, and Plant Manager Terry Osborne, who was
made vice president of operations.
Although the record does not indicate that any other former employ-
ees applied for jobs with Respondent. such an act in any event would
have been futile in light of Respondent's hiring policy. Moreover, it is
not surprising that no one other than Crago applied for employment in
view of Respondent's apparently successful effort to maintain secrecy
concerning the availahility of jobs See Karl Kallman dbh/a Love's Barbe-
que Restaurant No. 62. supro, fn 10
250 NLRB No. 184
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union.6 Under these circumstances, we find, in
agreement with the Administrative Law Judge,
that the element of continuity in the work force for
successorship purposes would be present were it
not for Respondent's unlawfully motivated hiring
practices. 7 Since we also agree with the Adminis-
trative Law Judge that the other factors for finding
successorship are present, we conclude that Re-
spondent is, therefore, the successor of Metal Flo.
Accordingly, by refusing to recognize and bargain
with the Union, Respondent violated Section
8(a)(5) and (1) of the Act.8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, C.J.B. Indus-
tries, Columbus, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order.
a Respondent contends that the evidence of its unlawful motivation in
hiring employees should not have been considered by the Administrative
Law Judge with respect to the 8(aX5) claim, since no allegation or find-
ing was made that Respondent violated Sec. 8(a)(3) by engaging in dis-
criminatory hiring practices. This contention is without merit. That Re-
spondent may have had an unlawful motive in hiring is indeed relevant to
a determination as to whether it has violated Sec. 8(aXS) when the claim
is based upon an alleged successorship obligation. Since the element of
continuity in work force between the alleged successor and its predeces-
sor is critical, the General Counsel must show either that Respondent has
hired or retained the requisite complement of former employees or that it
decided not to hire former employees because of their union affiliation. See,
e.g. Karl Kallman, d/b/a Love's Barbeque Restaurant No. 62. supra. Thus,
evidence of unlawful motivation is an element of proof on the issue of
sucessorship, and the admissibility of evidence on this issue is, therefore,
not dependent upon the presence or absence of an allegation that Re-
spondent independently violated Sec. 8(a)(3).
Accordingly, we find that such evidence was properly admitted and
considered by the Administrative Law Judge. In so doing, we note that
Respondent makes no claim of surprise or that it did not have sufficient
opportunity to rebut the General Counsel's evidence in this regard.
I See, e.g., Karl Kallman d/b/a Love's Barbeque Restaurant No. 62.
supra.
a In view of our finding that Respondent's failure to hire its predeces-
sor's employees was unlawfully motivated and thus Respondent cannot
rely on this failure to defeat a successorship claim, we find it unnecessary
to consider Respondent's contention with respect to the Union's alleged
lack of majority status as of the date of the hearing in this case. Compare
Hudson River Aggregates; Inc., 246 NLRB No. 32 (1979), Pre-Engineered
Building Products. Inc., 228 NLRB 841, fn. 1 (1977), enforcement denied
603 F.2d 134 (10th Cir. 1979): Pacific Hide & Fur Depot, Inc., 223 NLRB
1029 (1976). enforcement denied 553 F.2d 609 (9th Cir. 1977).
DECISION
STATEMENT OF THE CASE
JOHN C. MILLER, Administrative Law Judge: This
case was heard before me at Columbus, Ohio, on June 4
and 5, 1979. The complaint alleges in substance that Re-
spondent was a successor to Metal Corporation and that
after commencing operations in January 1978 it refused
the Union's request for recognition and bargaining which
were transmitted by letters dated February 9, 1978, and
March 7, 1978.
The parties had full opportunity to introduce testimo-
nial and documentary evidence on the issues and have
filed briefs thereon which have been duly considered.
On the record in this case, including my observation
of the witnesses and their demeanor, I make the follow-
ing findings:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges that commencing in January
1978 Respondent sold and shipped goods and materials
valued in excess of $50,000 from its Columbus, Ohio, fa-
cility directly to points located outside the State of Ohio.
Respondent admits the above-cited facts and I find there-
fore that Respondent is an employer within the meaning
of Section 2(6) and (7) of the Act.
The Union herein, Local Lodge 1038 of District
Lodge 52 of the International Association of Machinists
and Aerospace Workers, AFL-CIO, is alleged to be a
labor organization within the meaning of Section 2(5) of
the Act. Respondent admits and I find that the Union is
such a labor organization.
II. THE UNFAIR LABOR PRACTICE ALLEGATION
A. Background Facts
The complaint alleges that the Union herein was certi-
fied as the collective-bargaining representative in 1967
and that thereafter it had a continuing collective-bargain-
ing relationship with the predecessor of Respondent,
known as Metal Flo Corporation. On or about December
2, 1977, Metal Flo ceased operations at its Columbus,
Ohio, facility. Thereafter Respondent, beginning on De-
cember 12, 1977, took possession of the plant and equip-
ment formerly operated by Metal Flo and thereafter per-
formed limited operations in the same plant and facilities.
The complaint alleges that beginning in January 1978
Respondent C.J.B. Industries began operation of the
same facilities and produced the same products by the
same methods of production and under essentially similar
working conditions as its predecessor, Metal Flo.
As a preliminary matter it should be noted that Metal
Flo had had a collective-bargaining relationship with the
Union since November 21, 1966. At the time Metal Flo
ceased operations on December 2, 1977, there was in
effect a contract between the Union and Metal Flo, the
terms of which were to expire on March 10, 1979.
In 1977, Metal Flo had been an operating company
which apparently had come on bad times. On or about
September 1977 the two owners of Metal Flo, Simonetti
and Islay, sold their entire stock interest in Metal Flo to
Henderson. From September 1977 until a final layoff of
employees on December 2, 1977, the operations contin-
ued in a reduced form, Mr. Simonetti credibly testified
that, after the sale of Metal Flo to Henderson, he re-
mained as an operating manager to assist Henderson in
disposing of the plant's assets. It should be noted at this
point that the plant and premises were leased, and that
1434
C.J.B. INDUSTRIES
the sale to Henderson, while it may have included the
terms of the lease, essentially involved the sale of equip-
ment and any patents pertaining thereto. Mr. Simonetti
credibly testified that he was instructed by Henderson to
begin discontinuance of operations as soon as possible
and that part of Simonetti's job was to find buyers for
the equipment on either a piecemeal basis or by sale in
its entirety. From the time that Henderson purchased
Metal Flo in September 1977 until operations were dis-
continued on December 2, 1977, operations were contin-
ued in reduced fashion with the Company essentially fill-
ing out the orders it had on hand. It did not purchase
any new raw materials or solicit new orders. In fact, Si-
monetti testified he asked many of the customers wheth-
er they were interested in purchasing equipment and pro-
ducing their own supplies. It is undisputed that on or
about December 2, 1977, Terry Osborne, the plant man-
ager, posted a final notice of layoff to the remaining em-
ployees which announced in effect that operations were
being shut down and that the employees were being per-
manently laid off.
Thereafter, the record establishes that on December
12, 1977, Conrad Bouchard executed a contract in which
he purchased all equipment located in the plant. Mr.
Bouchard, the principal owner of C.J.B. Industries, testi-
fied that subsequent to the purchase of the equipment lo-
cated in the plant, he also secured in a separate transac-
tion all patents relating to certain equipment in the plant.
In addition to ownership of the equipment therein, he
subsequently entered into a lease for the use of the plant
and premises. Subsequent to December 12, 1977, Mr.
Bouchard hired Terry Osborne the former plant man-
ager, to become his vice president for operations. He
also hired an office clerical-bookkeeper named Jannette
Klarman. Thereafter, Osborne hired four additional em-
ployees, all of whom had been previously employed by
Metal Flo, and who had been in the Union and covered
by the existing contract.
It is largely undisputed that subsequent to December
12, the plant resumed limited operations with four per-
manent personnel and thereafter hired temporary person-
nel from Manpower to fill in when additional workers
were needed. The testimony of Ms. Klarman and Mr.
Bouchard were substantially in agreement that from the
commencement of operations after its purchase on De-
cember 12, 1977, until approximately April or May 1978,
there were no new permanent employees added. Addi-
tional labor was secured as needed from Manpower and
approximately four to seven individuals were utilized and
operations continued that way until approximately April
or May 1978. Subsequent to May 1978, some additional
permanent personnel were procured on a gradual basis
from an employment agency which was known to Mr.
Osborne and utilized by him to secure additional employ-
ees.
There is no issue here involving whether Respondent
C.J.B. Industries was subject to the terms of the original
contract executed by Metal Flo since C.J.B. was not a
signatory thereto. At issue, however, is whether Re-
spondent was a lawful successor to Metal Flo in circum-
stances which would require it to honor the request for
recognition and bargaining with the Union.
B. The Successorship Issue
The question of whether an employer is a lawful suc-
cessor and therefore subject to recognize and bargain
with the Union as had its predecessor, depends on the
number of factors.' Those factors include determining
whether the new employer continued in the same loca-
tion, made the same products, and whether it utilized the
same employees in their production.
Based on the credited testimony of Klarman and Bou-
chard, which I find were not substantially in dispute, I
make the following findings:
While the testimony adduced that Respondent C.J.B.
Industries only bought the equipment of its predecessor
Metal Flo, it is clear that it continued to operate, al-
though in a somewhat reduced basis, at the same prem-
ises and in the same plant and using the same equipment.
With respect to employees, it utilized four permanent
employees all of whom were prior employees of Metal
Flo and were members of the bargaining unit. 2 There
was testimony by Mr. Bouchard that through his sales
efforts he was able to reestablish business relationships
with a number of firms which had apparently been dis-
satisfied with the quality of the work product of the
predecessor, Metal Flo. In addition, he credibly testified
that he had been seeking additional work for new cus-
tomers and indicated that contracts were in the offing
with such corporations as Boeing and Honeywell and
that he had secured some other contracts with corpora-
tions who had never previously done business with
Metal Flo. However, the key issue here is whether oper-
ations were continued substantially the same as under the
predecessor, not whether new business was generated.
Mr. Bouchard testified that the product, a cylindrical
shaped container, could be used by manufacturers for a
variety of purposes. These included lighting housing,
propane cylinders, missile warheads, and as cylinders for
sonobuoy housing. I find that essentially the same prod-
uct was produced because it was the same presses oper-
ating in the same facilities that produced the same or
substantially similar products to that previously pro-
duced. Bouchard admitted that essentially the firm pro-
duced a cylinder which could be utilized for a number of
purposes. He further testified that he took over all of the
existing equipment formerly utilized by Metal Flo and
that with one exception the plant continued to utilize the
same equipment as was utilized by the predecessor. He
did note, however, that one press which had been sold to
Manchester Tank before he entered into an agreement to
purchase the remainder of Metal Flo's equipment, was
thereafter purchased back from Manchester Tank and
that the press never really left the premises.
It appears there was a shutdown of the plant from De-
cember 2 until the plant began limited operations, pri-
marily maintenance work on and after December 12,
1977. While Bouchard testified credibly that he had in
lN L.R.B. v Burns International Security Services. Inc., el at. 400 LI S
272 (1972).
2Paul Howard, Robert Clay, Verle Osborn, and Frank Crosswell with
Howard and Clay being hired first Terry Osborne, plant manager of
Metal Flo was hired as rice president., operations. and at a later point in
time Clay allegedly became a supervisor
1435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact expanded the sales horizon for the Company and
was making some new products for these new customers,
these new products were still made by the existing equip-
ment in the plant.3
There is further undisputed and credited testimony by
Bouchard that at the present time, there are some 10 to
11 production employees and 2 maintenance employees
making a total of approximately 11 or 12 employees in
the production and maintenance unit which would nor-
mally be represented by a union as an appropriate unit. It
is also clear that out of these 11 or 12 employees current-
ly in the unit there are presently 2 employees who were
members of the former bargaining unit. With respect to a
permanent work force, Ms. Klarman credibly testified
that she was present between discussions between Greg
Bouchard, the son of Conrad Bouchard and Terry Os-
borne concerning procurement of employees. She said
that Greg Bouchard stated that the Company did not
have a union in its Chicago plant, and that it did not
intend to have a union here at its Columbus plant. She
further testified that both Greg and Terry Osborne were
opposed to having the Union back in and that when Os-
borne decided to hire permanent employees he did so
through a private employment agency rather than adver-
tise for jobs in local newspapers. She stated his purpose
in doing so was to permit the new employees to be
screened, that is, whether they were members of the
Union or inclined to be sympathetic to a union prior to
being hired. She indicated that Osborne stated that was
the purpose and that they did not intend to hire any of
the old employees. Apart from the fact that neither Greg
Bouchard nor Terry Osborne testified to dispute this tes-
timony, I find that Ms. Klarman's testimony was forth-
right, sincere, and credible. I therefore credit her testi-
mony that in hiring permanent employees for the work
force of Respondent, Respondent's managerial hierarchy
had purposely decided not to rehire any of the old em-
ployees in the unit but to seek other employees for the
purpose of insuring that the Union did not represent the
employees in the shop. An important factor to be consid-
ered in determining whether an employer has become a
lawful successor is whether or not he has hired the
former employees and to what extent. Here it is clear
that with the exception of the first four employees who
were formerly in the unit and union members, Respond-
ent deliberately avoided hiring former employees to fore-
close any possibility that the Union would be in a posi-
tion to represent its employees.
It is clear that Respondent was aware of the Union's
existence since the record established (G.C. Exhs. 3 and
4) that letters by Mr. Leavey, the union business repre-
sentative, addressed to the executive officer of C.J.B. In-
dustries, requested recognition and bargaining. It is un-
disputed that there were no responses from Respondent
to either of the letters and in fact there was a failure of
Respondent to respond to repeated phone calls by Mr.
Leavey on the same subject matter. There is a prima
facie presumption, therefore, that but for Respondent's
3 At the hearing in 1979, Conrad Bouchard indicated they were look-
ing at other equipment in light of new orders they were expecting. How-
ever, he stated "Basically, we stayed with the same major pieces of
equipment."
purposeful avoidance of hiring former employees, that
the permanent employees would have been substantially
composed of former employees in the bargaining unit. 4
While Mr. Bouchard testified that he gave full authority
for hiring to Mr. Osborne, vice president for operations,
there is no testimony by the Respondent that permanent
employees ultimately hired through an employment
agency, were better employees or that the failure to hire
former employees was prompted by their lack of skills or
because they were poor workers.5 Since they had been
previously employed by the predecessor with no appar-
ent complaints as to their individual work and since this
record contains no evidence that they were not hired be-
cause of their prior work record I can only conclude
that they were denied the opportunity for reemployment
because of their union membership.
Special Circumstances
Despite the previously mentioned facts with respect to
the products produced and the employees utilized, it
should be noted that there are some special circum-
stances here that warrant consideration. It is clear for ex-
ample that the ownership of Metal Flo changed hands in
September 1977, when the two owners, Simonetti and
Islay, sold their entire stock interest in the company to
Henderson. The record further establishes that Hender-
son bought companies in trouble and usually liquidated
them as a matter of practice rather than attempting to re-
juvenate them and continue production. That same pat-
tern was followed here because as soon as Henderson
obtained control of Metal Flo, he began to wind down
the operations and to sell off its parts piecemeal. It
should be noted that Metal Flo had two plants in Colum-
bus, one plant in which the cylinders were made and a
second plant which did essentially welding operations.
When Henderson sold the assets of Metal Flo, they were
divested to different parties as follows:
Plant no. 2, which was essentially a welding operation,
was sold to Manchester Tank Corporation which is not
involved in this proceeding; the machinery and equip-
ment in plant no. 1, where the cylinders were made,
were sold to C.J.B. Industries, Respondent herein. In es-
sence, Respondent purchased approximately 50% of the
business, or one of the two plants.
Mr. Leavey, the union business representative, credi-
bly testified that the contract between the predecessor,
Metal Flo, and the Union covered employees at both
plants. At issue, therefore, is whether the reduction of
the two-plant bargaining unit to a one-plant bargaining
unit has any effect on the successor employer bargaining
obligation. An additional issue arises, however, as to
whether Metal Flo, having been sold as an entity first to
Henderson who began a process of liquidation, affects
the bargaining obligation of a purchaser from him.
' Leslie Crago, a former employee at plant no. 2 testified credibly that
in May 1978 T. Osborne denied him all employment application stating
they were not hiring former Metal Flo employees While originally a
welder he stated he was desperate for a job Consequently, he may have
accepted an unskilled or lower paying job
S It was conceded that temporary workers from Manpower utilized for
1-4 months in 1978 were unskilled
1436
CJ B. INDUS-RIES
C. Conclusions and Summary
Board and court precedent establishes that mere reduc-
tion in the size of the bargaining unit does not remove
the bargaining obligation. 6 Here the bargaining unit was
reduced from a two-plant to a one-plant bargaining unit.
Absent other factors, I find that mere reduction in the
size of the bargaining unit does not remove Respondent's
bargaining obligation.
Moreover, the mere fact that there was an interim pur-
chaser does not in my view eliminate Respondent's duty
to bargain. Messrs. Simonetti and Henderson continued
to operate Metal Flo (as Metal Flo) in a reduced fashion
with the intent of selling and/or liquidating the company
piecemeal. They did in fact sell the welding operation at
plant no. I to Manchester Tank Corp. The second plant
ended up being sold as an entity to Respondent. The
plant was closed down from December 2 until December
12, 1977, when the sale was finalized to Respondent. On
December 12, 1977, and thereafter, Respondent began
the process of starting up operations, soliciting new busi-
ness, and hiring some of the old employees. The record
supports and I find that Respondent began operations
and produced the same or substantially similar products,
utilizing the same presses and plant and initially employ-
ing the same employees as Metal Flo.
During the operation of Metal Flo by Henderson,
there was a continuation of operations and Simonetti, the
former owner, continued to function as operations man-
ager until the closedown on December 2. 1977. Simonetti
testified that the Company did comply with the terms of
the existing agreement after purchase of Metal Flo by
Henderson. In effect, Metal Flo continued under new
owners but with reduced operations.
I do not find the 10-day closedown of sufficient length
or importance in this context to remove Respondent's
obligation to bargain after the new corporation began
operations. More importantly, when it began Respondent
produced the same or substantially similar products, at
the same premises, using the same employees albeit in a
reduced fashion. While Respondent, not having been a
signatory to a contract with the Union, was under no ob-
ligation to comply with the terms of that contract, it was
required to respond to the request to bargaining. Wheth-
er that might ultimately result in a negotiation of a new
contract or an adoption of the previous contract with
Metal Flo does not concern us here.
While it is true that Respondent's ultimate work force
of approximately 12 permanent employees included at
best only 2 or 3 former employees of Metal Flo who
were members of the Union, that is not determinative
here where the failure to hire old employees was the
result of Respondent's determination not to rehire old
employees and be saddled with a Union. I have credited
the testimony of Ms. Klarman (and Crago) that Respond-
ent deliberately avoided hiring former employees of
Metal Flo or employees likely to favor a union because
they did not wish to recognize or bargain with any
union. An employer cannot avoid his bargaining obliga-
Fabsteel Company of Louisianu, 231 NI RH 372 (1177), cnfd al 587
F.2d 689 (5Sh Cir 1979)
tion by utilizing a discriminatory hiring policy, designed
to exclude former employees represented by the Union.7
On the basis of the foregoing findings, I conclude that
Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Union on
and after February 9, 1978, as the exclusive bargaining
representative of its employees in the unit described
hereafter:
All production and maintenance employees, includ-
ing all tool-and-die makers, truckdrivers and jani-
tors employed by the Respondent at its 776 Kinnear
Road, Columbus, Ohio facility; but excluding the
office janitor, all office clerical employees and all
professional employees, guards and supervisors as
defined in the Act.
CONCI.USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent is the lawful successor to Metal Flo and
is obligated to recognize and bargain with the Union as
the bargaining representative of its employees.
4. Respondent, by failing to respond to requests for
recognition and bargaining on February 9, 1978, and
thereafter, has refused to bargain in violation of Section
8(a)(5) and (1) of the Act.
5. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
TIHE REMEDY
In order to remedy the unfair labor practices found
and to effectuate the purposes of the Act, Respondent
will be ordered to recognize and bargain with the Union
as the bargaining representative of its employees in the
appropriate production and maintenance unit as de-
scribed previously. Respondent shall be affirmatively or-
dered to bargain with the Union upon request and if an
agreement is reached, reduce such an agreement to writ-
ing, if so requested.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case. I hereby issue the
following recommended:
ORDER 8
The Respondent, C.J.B. Industries, Columbus, Ohio,
its officers, agents, successors, and assigns, shall:
7 Craiford (ontainer. Inc.. 234 NLRB 851 (1978): Pacifrc tiHde & bur
Depot. Inc v .\L.R.B., 553 F 2d 609 at hi1 (91h Cir 1977) I find there
is a high degree of probahiliti that at least four or more prior employees
would hase accepted employment and Ihat the Union should have repre-
sented a malorily In any eveni, in light of Respondentl' announlced
policy of not hiring former employees I find a pritma Jucie case that a ma-
jorit) s .ould havse been estahlished hut for Respondents hiring pohcli
See also the iestimnony of Silas Marcum, s hich I credit. v hih shosved a
conlluing interest in emplon meiil h laid- off emplo)sees
I iI the e:enll rio exteptilonm are filed as prosided hi Sec 1(2 46 of the
Rules anld Regulations of Ihe Nalional I ahor RelatioIs Hoard. the find-
inigs cllnctlHliols. aind recofmmnerlded ()rdlr heremil shall. as proxtled in
('ontrnue d
1437
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Refusing to bargain collectively with respect to
wages, hours, and other terms and conditions of employ-
ment with Local Lodge 1038 of District Lodge 52 of the
International Association of Machinists and Aerospace
Workers, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the following appropriate
unit:
All production and maintenance employees includ-
ing all tool-and-die makers, truckdrivers and jani-
tors employed by the Respondent at its 776 Kinnear
Road, Columbus, Ohio facility; but excluding the
office janitor, all office clerical employees and all
professional employees, guards and supervisors as
defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request bargain with the above-named union
as the exclusive bargaining representative of the employ-
ees in the unit described previously with respect to
wages, hours, and other terms and conditions of employ-
ment and, if an agreement is reached, embody such
agreement in a signed contract.
(b) Post at its place of business in Columbus, Ohio,
copies of the attached notice marked "Appendix."9
Copies of said notice on forms provided by the Regional
Director for Region 9 after being duly signed by an au-
thorized representative of Respondent to be posted by
Sec. 102.48 ,of the Rules and Regulations. he adopted by the Board and
hecome its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
I9 n the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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 Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEIS
POSTED BY ORDER OF THE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILI. NOT refuse to bargain with Local 1038
of District Lodge 52 of the International Associ-
ation of Machinists and Aerospace Workers, AFL-
CIO, as the exclusive bargaining representative of
its employees in the unit described hereafter:
All production and maintenance employees, in-
cluding all tool and dyemakers, truckdrivers and
janitors employed by the Respondent at its 776
Kinnear Road, Columbus, Ohio, facility; but ex-
cluding the office janitor, all office clerical em-
ployees and all professional employees, guards
and supervisors as defined in the Act.
WE WILL NOT in any like or related manner in-
terfere with, restrain or coerce employees in the ex-
ercise of their Section 7 rights.
WE WIL L, upon request, bargain with the Union
about a contract for the employees in the above-
mentioned unit, and if an agreement is reached,
embody such agreement in a written contract upon
request.
C.J.B. INDusTRIES
1438