General Processing Corporation

National Labor Relations Board - Board Decisions

Jul 30, 1982

263 N.L.R.B. 86 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Processing Corporation and United Steel-
workers of America, AFL-CIO. Case 10-CA-
16028
July 30, 1982
DECISION AND ORDER REMANDING
PROCEEDING TO THE
ADMINISTRATIVE LAW JUDGE
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On September 29, 1981, Administrative Law
Judge James L. Rose issued the Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the Charging Party
filed exceptions and a supporting brief, 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 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
Administrative Law Judge's Decision in light of
the exceptions and briefs and has decided to affirm
his rulings,' and findings, and conclusions only to
the extent consistent herewith.
The complaint alleges in part that Respondent
General Processing Corporation is the successor
employer of Philips Industries, Inc., and that by its
refusal to recognize and bargain with the Union it
violated Section 8(a)(5) of the Act. The Adminis-
trative Law Judge correctly states that where, as
here, the alleged successor produces the same
products with the same equipment, with the same
skill level of employees, for the same customers as
the previous employer, the successorship issue
turns on whether a majority of the alleged succes-
sor's bargaining unit employees had been bargain-
ing unit employees of the previous employer.
United Maintenance & Manufacturing Co., Inc., 214
NLRB 529, 533 (1974). To that end, the Adminis-
trative Law Judge undertakes a detailed discussion
of who worked for Respondent General Processing
Corporation in its first months of operations and
which of those General Processing Corporation
We find no merit in Respondent's exception to the Administrative
Law Judge's ruling to allow the testimony of Earl Dodson, George
Davis, Herbert Davis, Kenneth Blaylock, and Charles Pickett even
though he had granted Respondent's motion at the outset of the hearing
to invoke the sequestration rule. Under the circumstances present here,
we find that the Administrative Law Judge complied with our current
policy regarding the exclusion of potential witnesses. See Unga Painting
Corporation, 237 NLRB 1306 (1978). Moreover, Respondent has not
shown that the ruling prejudiced its case. International Brotherhood of
Boilermakers. Iron Shipbuilders, Blacksmiths Forgers & Helpers Local
Lodge Na 732. AFL.-CIO (Triple A Machine Shop, Inc., d/b/a Triple A
South), 239 NLRB 504, fn. I (1978).
263 NLRB No. 13
employees had been employees of the previous em-
ployer, Philips Industries, Inc. The record contains
two exhibits which, along with certain explanatory
testimony, constitute the basis for determining
whether in fact a majority of Respondent's employ-
ees were former unit employees of Philips Indus-
tries. The first of these exhibits is a joint exhibit
which lists the names and first date of work of all
the employees hired by Respondent from its first
day of operations (June 9, 1980) to the date of the
issuance of the complaint (August 26, 1980). The
second of these exhibits is a copy of the seniority
list of the employees of Philips Industries, Inc., as
of March 1980.2
The Administrative Law Judge compared these
two exhibits and compiled a table, set out in his
Decision, of 41 employees who were hired by Re-
spondent and who had previously been working
for Philips Industries. We find that, in making this
determinative computation, the Administrative
Law Judge made two errors. First, he included
two persons-Clifford Campbell and Dallas
Hamby-whose names do not appear on the senior-
ity list. This was an error. Thus, on this record,
there is no persuasive evidence that either Clifford
Campbell or Dallas Hamby, both of whom it is
conceded started work for Respondent on June 16,
1980, were in fact working for Philips Industries.
Second, the Administrative Law Judge included
three persons-Jeff Burnett, Tom Dunaway, and
Bob Mitchell-whose names do not appear on the
original typed portion of the seniority list. Those
three names are merely penciled onto the seniority
list. When the General Counsel offered the senior-
ity list into evidence, Respondent's counsel object-
ed to any weight being given to the three names
which were not typed on the list. The Administra-
tive Law Judge received the exhibit, specifically-
and correctly-limited to the typed names on the
document.3 Yet in compiling his table of Respond-
b The most recent collective-bargaining agreement, effective Novem-
ber 6, 1977, through August 15, 1980, and signed by Philips Industries,
Inc., and the Union, provided that the Company shall post every 6
months an up-to-date list of all employees according to their hiring dates.
This exhibit is a copy of the March 1980 seniority list.
S The seniority list was introduced through the testimony of Horris
Norrod, president of the Union Local. During voir dire examination by
Respondent's counsel, Norrod stated that his copy of the typed list,
which he received pursuant to the collective-bargaining agreement, did
not have the penciled-in lines and notations which appear on the copy
identified and offered at the hearing by the General Counsel Norrod tes-
tified specifically that the three names-Burnett, Dunaway, and Mitch-
ell-which are penciled-in on the copy of the seniority list which was
ultimately received into the record did not appear on the original of the
document which he had been provided. Respondent's counsel at the hear-
ing then stated he had no objection to the document "which purports to
be a seniority list" but that he objected "to it for whatever matter is as-
serted as a result of the markings on the document." The Administrative
Law Judge agreed to this limitation on the document, stating "Okay. I
won't consider any of the-but will receive it."
86
GENERAL PROCESSING CORPORATION
ent's employees who had worked for Philips Indus-
tries, the Administrative Law Judge disregarded
his limitation on the receipt of the exhibit and in-
cluded the three penciled-in names in his table.
This was an error. Thus, on this record, there is no
persuasive evidence that Jeff Burnett, Tom
Dunaway, or Bob Mitchell was working in the bar-
gaining unit for Philips Industries.
To correct the Administrative Law Judge's fig-
ures in light of these two errors, the names of Bur-
nett, Campbell, Dunaway, Hamby, and Mitchell
must be removed from his table of Respondent's
employees who had previously worked for Philips
Industries. In his Decision, the Administrative Law
Judge compiled a second table, which showed for
various dates in June, July, and August 1980 both
the total number of employees working in the bar-
gaining unit for Respondent and the portion of that
total number who had previously been working as
employees of Philips Industries. Due to the two
errors in his first table, the Administrative Law
Judge's second table is inaccurate. As corrected,
beginning with the date of Respondent's receipt of
the Union's bargaining demand, the second table
should read as follows (ratio of former Philips em-
ployees to all Respondent employees): June 13, 5 of
11; June 16, 14 of 42; June 17, 15 of 43; June 19, 21
of 49; June 20, 24 of 53; June 23, 31 of 68; June 24,
31 of 69; June 26, 32 of 71; July 7, 32 of 72; July 8,
33 of 73; July 21, 35 of 79; August 4, 35 of 81;
August 18, 36 of 84; and August 21, 36 of 85. A
correct computation reveals that, from the date of
Respondent's receipt of the Union's demand
through the date of the complaint's issuance, there
was never a time when a majority of Respondent's
bargaining unit employees were employees who
had been working for Philips Industries in the bar-
gaining unit. Under these circumstances, and absent
a showing that this lack of majority status was
caused by Respondent's illegal failure to hire
former Philips employees in violation of Section
8(a)(3), Respondent is not a successor employer,
had no obligation to recognize or bargain with the
Union, and did not violate Section 8(a)(5) of the
Act by failing to do so.4
The complaint also alleges that Respondent vio-
lated Section 8(a)(3) of the Act by refusing to hire
4 Member Fanning concurs in the result here, but he does not believe
that in every case there must be an absolute majority of the predecessor's
employees before a duty to bargain can be found. See United Maintenance
& Manufacturing Co.. Inc., 214 NLRB at 536, fn. 21, and cases cited
therein.
former Philips employees because of their union
membership and activities. In addition, the com-
plaint alleges that "but for" that illegal refusal to
hire Respondent would have employed, as a major-
ity of its employees, individuals who were previ-
ously employees of Philips. Although the Adminis-
trative Law Judge discussed the 8(a)(3) issue and
concluded there was no 8(a)(3) violation, we find
that his analysis and conclusion on the 8(a)(3) issue
in his present Decision is precariously dependent
on his erroneous finding that in fact a majority of
Respondent's employees had been Philips employ-
ees. A close reading of the record convinces us
that the foundation of the Administrative Law
Judge's finding of no 8(a)(3) violaton is, in the
present form of his Decision, his erroneous finding
of the existence of an 8(a)(5) violation. In light of
our reversal of his 8(a)(5) analysis and conclusion,
we are not left with an adequate determination of
the refusal-to-hire allegation.s In these circum-
stances, we find it appropriate to remand the pro-
ceeding to the Administrative Law Judge for an
evaluation of the 8(a)(3) portion of the allegation
and issuance of a supplemental decision, untainted
by the erroneous 8(a)(5) finding.6
ORDER
It is hereby ordered that this case be, and it
hereby is, remanded to the Administrative Law
Judge for the preparation of a supplemental deci-
sion containing findings of fact, conclusions of law,
and recommendations, in accordance with this De-
cision and Order Remanding and that, following
service of such supplemental decision on the par-
ties, the provisions of Section 102.46 of the Board's
Rules and Regulations, Series 8, shall be applicable.
a We note that there is extensive testimony in the record by Respond-
ent's president as to whom he hired and why, as well as to his business
approach ris-a-vir unionization. The Administrative Law Judge did not
discuss substantial portions of this testimony. On reconsideration, the Ad-
ministrative Law Judge is not precluded from making a finding of union
animus if he finds the record so warrants.
s On remand, the Administrative Law Judge is to determine whether
Respondent violated Sec. 8(aX3) of the Act in its hiring practices. Our
conclusion here that at no relevant time were a majority of Respondent's
employees former Philips employees does not preclude the Administra-
tive Law Judge from finding, if the evidence so warrants, that Respond-
ent violated Sec. 8(aX3) of the Act by its refusal to hire certain Philips
employees, that but for the refusal a majority of Respondent's employees
would have been former Philips employees, and that therefore Respond-
ent has on that theory violated Sec. 8(aX5) of the Act. See Potter's Drug
Enterprise Inc., d/b/a Potter's Chalet Drug and Potter's Westpark Drng,
233 NLRB 15, 20 (1977); Karl Kallman d/b/a Love's Barbeque Restaurant
Na 62; Low's Enterprises, Inc., 245 NLRB 78., 81-82 (1979), enfd. in per-
tinent part 640 F.2d 1094 (9th Cir. 1981).
87