Pacific Hide & Fur Depot, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1976

223 N.L.R.B. 1029 (N.L.R.B. 1976)

PACIFIC HIDE & FUR DEPOT 1029
Pacific Hide & Fur Depot, Inc. and Amalgamated
Meat Cutters and Butcher Workmen of North
America, Local No. 656, AFL-CIO. Case 36-CA-
2725
April 22, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On December 31, 1975, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting 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 at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge I and
to adopt his recommended Order.
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, Pacific Hide & Fur De-
pot, Inc., Portland, Oregon, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, except that the at-
tached notice is substituted for the Administrative
Law Judge's notice.
It was neither alleged nor found that the new terms and conditions of
employment offered by the Respondent to its predecessor 's employees con-
stituted unilateral changes in violation of Sec. 8(a)(5) of the Act and it is
therefore unnecessary to pass on this question.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, bargain collectively
with Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 656,
AFL-CIO, as the exclusive representative of our
Wilbur Avenue plant employees, excluding of-
fice clerical employees, truckdrivers, guards,
professional employees, and supervisors as de-
fined in the National Labor Relations Act, with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and we
will sign a contract covering any agreement
reached.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed under
Section 7 of the Act.
PACIFIC HIDE & FUR DEPOT, INC.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at Portland, Oregon, on September 18 1
based on a charge filed on May 8 and complaint issued on
July 11 alleging that Pacific Hide & Fur Depot, Inc., herein
called Respondent, violated Section 8(a)(1) and (5) of the
Act by refusing, as asserted successor to Cahen Trading
Co., to recognize Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 656, AFL-CIO,
herein called the Union, as collective-bargaining represen-
tative for a unit admittedly appropriate within the meaning
of Section 9(b) of the Act consisting of all employees at a
Wilbur Avenue plant, Portland, Oregon, excluding office
clerical employees, truckdrivers, guards, professional em-
ployees, and supervisors as defined in the Act.
Upon the entire record in this case, including my obser-
vation of the witnesses, and upon consideration of briefs
filed by each party, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
Respondent, a corporation engaged in processing hides
at Portland, Oregon, annually purchases goods valued in
excess of $50,000 directly from outside the State of Oregon
and annually sells finished products valued in excess of
$50,000 which are shipped directly to points outside the
State of Oregon. I find, as Respondent admits, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. The Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
1 All dates and named months hereafter are in 1975, unless indicated
otherwise.
223 NLRB No. 149
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It. THE ALLEGED UNFAIR LABOR PRACTICES
Facts and Discussion
Respondent is a Montana corporation operating hide-
processing facilities in several Western States. During
March it contracted with all Portland, Oregon, area meat
packers to process hides on a bailor-bailee arrangement.
Respondent then purchased the personal property of Ca-
hen Trading Co. and acquired a lessee's interest in the Wil-
bur Avenue plant that Cahen occupied. Cahen had en-
gaged in hide processing at the Wilbur Avenue facility for
many years. Its mode of operation was to purchase hides
from meat packers and process a majority of these by brine
soaking, baking , grading, and tying for ultimate open mar-
ket sale. A portion of the hides Cahen purchased were sold
to a local tannery without being cured. Cahen utilized
graders, forklift drivers, and salter-spreaders in a comple-
ment that fluctuated between 12 and 18. For over 20 years
Cahen had recognized the Union as exclusive collective-
bargaining representative of such employees and had been
party to successive contracts , the most recent effective for a
3-year period through August 1, 1977. By prearrangement
each Cahen employee was terminated at the close of work
shift on April 10. Simultaneously they were referred to
John Thiebes, Respondent's vice president and intended
Portland manager, who was present for the purpose of con-
ducting interviews. He spoke separately for approximately
5 minutes with each of 18 persons employed by Cahen and
hired 6 of these plus Robert Park, an individual then on
temporary layoff status from Cahen.2
Respondent commenced operations April 11 with the
described crew and hired one additional laborer 3 on each
of the days April 11, 16, 17, 18, and May 5. Between May
22 and June 6 Respondent hired an additional 7 persons to
reach what it considered a full employee complement (pla-
teau) of 19. None of the 12 persons hired on or after April
II had previously worked for Cahen, except for 2 that
previously had been laid off by Cahen without expectancy
of future employment. Since commencing operations
Respondent's business has primarily consisted of fee in-
come for processing green hides and shipping them pur-
suant to bailors' instructions plus sale within the local area
of previously cured hides received from its other plants.
Respondent has eliminated any sale or shipment of un-
cured hides , but otherwise processes green hides in sub-
stantially the same manner as Cahen had done."
On April 17 Keith W. Jons, union secretary-treasurer,
visited Thiebes at the premises and delivered a letter de-
manding immediate recognition and compliance in all re-
spects with the existing contract. Respondent declined
2 Individuals not hired were told Respondent might require their services
in the future . Additionally, Cahen's two supervisors were employed and (I I
days later ) the nonunit truckdriver.
Respondent's policy for facilities of this type is not to utilize descriptive
job classifications for functions of handling and processing hides, but in-
stead term all employees so engaged as laborers.
The agreement of sale between Respondent and Cahen provided that a
mixer remain available for Respondent's use until October 15. Respondent
contemplates replacing the mixer with a raceway through which green hides
will pass in a brine solution.
both requests by letter dated April 29.
The stipulated facts of this case establish "requisite con-
tinuity in the identity of the [Respondent' s] enterprise so as
to constitute the [Respondent] a successor employer as that
term is used in labor law terminology," Alliance Industries,
Inc., 198 NLRB 646 (1972). This conclusion is based on
factors of similar product, comparable business relation-
ships, same physical plant (including "personal property"
thereon), same direct supervision and utilization of sub-
stantially identical employee skills, coupled with employ-
ment of a relevant majority from Cahen's bargaining unit.
Variation respecting the bailment arrangement, cessation
of uncured hide sale, receipt of cured hides from sister fa-
cilities, and abandonment of distinctive job classification
terminology is inconsequential to this determination. The
issue is whether by authority of N. L. R. B. v. Burns Interna-
tional Security Services, Inc., 406 U.S. 272 (1972), or other-
wise, the recognitional obligation imposed on a successor
employer may be escaped because the numerical comple-
ment of employees needed to perform a settled volume of
business was not reached until June 6, at which point a
majority of such employees had not previously worked for
Callen. This issue must be resolved against Respondent.
To the extent that language in Burns alludes to certainty, or
lack thereof, in whether a "new" employer plans to retain
unit employees, this relates to issues of whether unilateral
change in terms and conditions of employment may law-
fully be made. That portion of the rationale in Burns does
not affect traditional principles governing when an em-
ployer becomes successor to an earlier employing industry
and must recognize an incumbent labor organization. Re-
spondent misperceives the meaning of "full complement"
in a situation of this kind .6 No break in operations oc-
curred and the nucleus of needed plant skills was created
by hiring persons, all of whom had previously been Cahen
employees. When the Union demanded recognition a pre-
ponderance of former employees was 7 out of 10 and this
ratio remained essentially unchanged through the time that
recognition was refused. Just as Cahen's work force had
fluctuated between 12 and 18, so too Respondent em-
ployed increasingly more as flow, handling, and shipment
of hides progressed under revised marketing patterns. But
Respondent is without poser to defer a successorship con-
sequence until some point in time when it considers, in a
business management sense, that full employee comple-
ment has been reached.7 It is not a matter of whether a
5 The date appearing at p. 5, I. 12 of Respondent 's brief is understood to
mean June 6.
6 In Burns, the Court articulated this term while dealing with the issue of
whether assertedly unilateral changes warranted a "make whole " remedy.
The real significance of Burns to a classific successorship case , as here in-
volved. is its treatment of certification year principles after "address[ing]
first [the] alleged duty to bargain ." In Spruce Up Corporation, 209 NLRB
194 (1974), the Board discussed the Burns "caveat," finding its "precise
meaning . . . not easy to discern" but believing that "restricted" application
was merited.
' This view was espoused by Members Fanning and Penello in Spruce Up,
each of whom (in partial dissent) believed a "legally significant portion of
the successor's employment force consists of employees previously em-
ployed in the bargaining unit" Furthermore, testimony here establishes that
the same approximate number of hides (1.200 per day) were being handled
when former Cahen employees were a majority of Respondent's actual work
force as when the percentage fell below half.
PACIFIC HIDE & FUR DEPOT
majority of former employees are among the total denomi-
nated an ultimate complement ; but instead whether under
"substantially unchanged" operations a work complement
is composed primarily of predecessor employees at the
time a perfected demand for recognition arises. United
Maintenance & Manufacturing Co., Inc., 214 NLRB 160
(1974). Respondent's analysis of United Maintenance is
faulty because it associates the August 28, 1973, date in
that case with the notion of "complete work complement";
whereas in truth the Board emphasized that date merely
because it was the first point in time (following hiatus in
operations) that a majority of employees (calculated in an
"old-new" mix of 10) were from the predecessor. The dis-
tinction involved is best understood by noting that in Unit-
ed Maintenance, during several months following August
1973, the number of "active" employees then ranged up-
ward between 11 and 16. Here the greater number (arith-
metically a "majority") of employees actually utilized dur-
ing a significant period of time had been with the
predecessor employer Cahen. It is this configuration that
impregnates Respondent's assumption of operations with
concomitant obligation to recognize the Union's settled
bargaining relationship. Cf. C. G. Conn, Ltd., a wholly
owned subsidiary of Crowell Collier and MacMillan, Inc., 197
NLRB 442 (1972).
CONCLUSION OF LAW
Respondent, by refusing to recognize the Union as ex-
clusive collective-bargaining representative of its employ-
ees, has engaged in unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the Act, affecting
commerce within the meaning of Section 2(6) and (7).
Disposition
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
8 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations . be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
ORDER8
1031
Respondent, Pacific Hide & Fur Depot, Inc., Portland,
Oregon, its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Amalgamated
Meat Cutters and Butcher Workmen of North America,
Local No. 656, AFL-CIO as exclusive representative of the
following unit:
All employees at the Wilbur Avenue plant, Portland,
Oregon, excluding office clerical employees, truckdri-
vers, guards, professional employees and supervisors
as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Upon request, bargain with the above-named Union
as exclusive representative of employees in the described
unit with respect to rates of pay, wages , hours, and other
terms and conditions of employment and, if an agreement
is reached, embody it in a signed contract.
(b) Post at its Portland, Oregon, plant copies of the at-
tached notice marked "Appendix." I Copies of said notice,
on forms provided by the Regional Director for Region 19,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it 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. Rea-
sonable steps shall be taken by Respondent to ensure that
such notices are not altered, defaced, or covered by any
other material.
(c) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
9In the event that the Board's 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."