Sheffield Industries

National Labor Relations Board - Board Decisions

Feb 26, 1988

287 N.L.R.B. 1264 (N.L.R.B. 1988)

1264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Faria Limited d/b/a Sheffield Industries and Local
Lodge 1279, District Lodge 104, International
Association of Machinists and Aerospace Work-
ers, AFL-CIO. Case 39-CA-3211
26 February 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On 21 July 1987 Administrative Law Judge
Elbert D. Gadsden issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions' and a brief in support thereof and in answer
to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record2 in light of the exceptions and briefs3 and
has decided to affirm the judge's rulings,4 find-
' The General Counsel seeks a modification of the bargaining unit
found appropriate to reflect the job classifications employed by the Re-
spondent The judge found the appropriate unit to be the historical bar-
gaining unit set forth in the complaint The record discloses that the Gen-
eral Counsel failed to move to amend the unit description in the com-
plaint at any time during the hearing Nor did the General Counsel move
at the end of the hearing that the pleadings be conformed to the evi-
dence Because we find that the Respondent has received no notice of the
General Counsel's intent to modify the historical bargaining unit, we
deny her exception
The General Counsel seeks a visitatorial clause authorizing the Board,
for compliance purposes, to obtain discovery from the Respondent under
the Federal Rules of Civil Procedure subject to the supervision of the
United States court of appeals enforcing this Order Under the circum-
stances of this case, we find it unnecessary to include such a clause See
Cherokee Marine, 287 NLRB 1080 (1988)
2 We correct the error in the transcript pp 27-29, L 8, so that when-
ever the name "Moschos" appears, it should read "Meiklejohn" and
whenever the name "Meiklejohn" appears, it should read "Moschos" We
correct the error in the transcript p 78, L 5, to read "Jabez West" rather
than "J Beswest "
2 The Respondent has requested oral argument The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties
4 The Respondent excepts to the judge's denial of its motion to include
in a rejected exhibit file a letter from the Respondent's counsel to the
Board regarding the nonavailability of the tally of ballots in a 1963 elec-
tion conducted among the employees of the predecessor company Ac-
cepting the Respondent's representations concerning the contents of the
letter, we find the letter irrelevant to the issues in this proceeding Thus,
the judge's ruling resulted in no prejudice to the Respondent and consti-
tuted harmless error
5 In adopting the judge's finding that the volume of the Respondent's
business operations satisfied the Board's jurisdictional standards, we note
that the Respondent admitted through its stipulation that its volume of
business at the time of the hearing was sufficient to meet the Board's
standards See Seafarers Pacific District (American Pacific Container Lines),
252 NLRB 736, 737 fn 4 (1980)
We correct the judge's statement in sec II,B, par I of his decision that
uncontroverted evidence of record established that Sheffield Tube closed
on 29 August 1986 and was purchased 3 weeks later by Faria Realty
Corporation The record establishes that Sheffield Tube closed on 8
August 1986 and was purchased by Faria Realty on 29 August 1986
In the next to the last paragraph of sec I1,13, the second sentence
should begin, "Respondent also hired four other employees whom it stip-
ulated were supervisors " instead of " 31 other employees
ings,5 and conclusions and to adopt the recom-
mended Order as modified .6
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Faria Limited d/b/a Sheffield Industries,
New London, Connecticut, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order as modified.
Substitute the following for paragraphs 2(b) and
(c).
"(b) Post at the Respondent's business facility lo-
cated at 170 Broad Street, New London, Connecti-
cut, copies of the attached notice marked "Appen-
dix."3 Copies of the notice, on forms provided by
the officer in charge for Subregion 39, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
"(c) Notify the officer in charge for Subregion
39 in writing within 20 days from the date of this
Order what steps the Respondent has taken to
comply."
5 We correct the judge's inadvertent reference to the Officer in Charge
of Subregion 39 as the "Regional Director for Region 39" in his recom-
mended Order
Thomas W. Meiklejohn, Esq., for the General Counsel.
Dean M. Moschos, Esq and John S. Chmtan, Esq. (Mirick,
O'Connell, De Mallie & Lougee), of Worcester, Massa-
chusetts, and Harry E Clamor, Esq. (Suisman, Shapiro,
Wool, Brennan & Gray, P. C.), of New London, Con-
necticut, for the Respondent.
Greg D. Adler, Esq. (Kaster, Pogae & Gould), of Hartford,
Connecticut, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. On
a charge of unfair labor practices filed on 9 October
1986, by Local Lodge 1279, District Lodge 101, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO (the Union or the Charging Party ) against
Faria Limited d/b/a Sheffield Industries (the Respond-
ent), a complaint was issued on behalf of the General
Counsel by the subregional manager of Subregion 39 on
29 November 1986.
The complaint in susbstance alleges that Respondent is
the successor of Sheffield Tube Corporation, that the
287 NLRB No. 136
SHEFFIELD INDUSTRIES 1265
Union was and is the exclusive collective-bargaining rep-
resentative of the unit employees of the predecessor,
Sheffield Tube Corporation, who are now employees of
Respondent; that in a letter dated about 3 September
1986, the Union requested Respondent to recognize and
bargain with it as the exclusive collective-bargaining rep-
resentative of the employees in the unit, and that since its
request, Respondent has failed and refused to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of the employees in the unit, in
violation of Section 8(a)(1) and (5) of the Act
The Respondent filed an answer on 10 December
1986, and an amended answer on 12 March 1986, respec-
tively, denying that it has violated the Act as set forth in
the complaint; and that it affirmatively alleged that the
complaint fails to state a complaint on which relief can
be granted.
A hearing in the above matter was held before me in
Hartford, Connecticut, on 16 and 17 March 1987. Briefs
have been received from counsel for the General Coun-
sel and counsel for the Respondent, respectively, which
have been carefully considered
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION
The Respondent, Faria Limited d/b/a Sheffield Indus-
tries, acknowledges that it is a Connecticut corporation
with an office and place of business located in New
London, Connecticut (its facility); that it will annually
sell and ship from its facility goods in excess of $50,000;
that it expects to receive items in excess of $50,000 from
outside the State of Connecticut; and that as of 16 March
1987, it has been engaged in commerce within the mean-
ing of the Act, but it neither admits nor denies that it
was engaged in commerce within the meaning of the Act
prior to 16 March 1987.
Nevertheless, during the trial Respondent's plant man-
ager Michael Looney testified that on 9 September 1986,
Respondent began production and during the first month
of operation filled in excess of 575,496 tubes from cus-
tomers located outside the State of Connecticut. Unfilled
tubes sold for approximately 10 cents per tube, filled
tubes 85 cents per tube Under these circumstances, even
if all the tubes sold during the first month were unfilled,
the uncontroverted evidence arithmetically establishes
that Respondent sold $50,000 worth of tubes in interstate
commerce during its first month of operation Addition-
ally, during the trial Respondent stipulated it would sell-
and ship products in excess of $50,000 to business con-
cerns located outside the State of Connecticut during the
calendar year 1987.
Based on the foregoing undisputed and credited testi-
mony of Respondent's plant manager, Michael Looney,
and Respondent's stipulation, I conclude and find that
the volume of Respondent's business operations satisfied
the Board's jurisdictional standards during its first month
of production, and thereafter, and that Respondent was
then, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act. Siemons Mailing Service, 122 NLRB
81, 85 (1958); Seafarers (American Lines), 252 NLRB 736
(1980); Poor Richard's Pub, 217 NLRB 102 (1975)
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background Information
Since prior to 1963, Sheffield Tube Corporation (Shef-
field Tube) has been engaged in the manufacture of col-
lapsible metal tubes that were filled primarily with tooth-
paste, but also ointments and other jellylike substances,
at 170 Broad Street, New London, Connecticut. The
production employees of Sheffield Tube have been rep-
resented by Local 1279, District Lodge 104, the Union
herein, since 1963 when the Union was certified by the
Board. Sheffield Tube and the Union negotiated several
collective-bargaining agreements covering the produc-
tion employees The last of such agreements was effec-
tive by its terms from 2 August 1985 through 15 June
1986 Sheffield Tube and the Union had negotiated a suc-
cessor agreement that was interrupted by subsequent
events.
More specifically, Sheffield Tube ceased production
on 8 August 1986 and Thomas G Faria, owner of Faria
Realty Company, assumed control of the real estate in
which Sheffield Tube was located (170 Broad Street,
New London, Connecticut). Faria Limited assumed own-
ership of all Sheffield Tube's assets, machinery, equip-
ment, work in progress, inventory, and furniture, under
the title of Sheffield Industries, commenced hiring new
employees, and producing the same products with some
of the same employees who previously worked for Shef-
field Tube.
Based on the above sequence of events, the Charging
Party and the General Counsel contend that Sheffield In-
dustries (Faria Limited) is a successor of Sheffield Tube
because it is engaged in manufacturing the same product
(the same business), using the same production employ-
ees, the same machinery and equipment, inventory, and
performing the work that was in progress by Sheffield
Tube, at the same location and facility, 170 Broad Street,
New London, Connecticut.
On the contrary, Respondent Sheffield Industries
denies that it is a successor of Sheffield Tube, and con-
tends it is a new and independent company that manufac-
tures a new line of products, under a new and continu-
ingly changing production process, with some changes in
personnel and contemplated expansion in production and
work force It is for these reasons Respondent contends
it fails to recognize or supply the Union with information
requested by the Union, because it contends the Union
does not represent a majority, nor any of the employees
of its different business enterprises
It is out of these diverse contentions of the Union and
the Respondent that the following issues are raised and
presented for determination-
1. Is Sheffield Industries a successor of Sheffield Tube,
so as to require Sheffield Industries to recognize and bar-
gain with the Union?
1266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. If Respondent is a successor of Sheffield Tube, is its
failure or refusal to bargain in good faith with the Union
in violation of Section 8(a)(1) and (5) of the Act?i
B Comparative Analysis of Employee Complement of
Sheffield Tube and Sheffield Industries
The uncontroverted evidence of record established
that Sheffield Tube closed on 29 August 1986. Three
weeks later , Sheffield Tube was purchased by Faria
Realty Corporation , and at the same time, Faria Limited
acquired ownership of all the property and assets of
Sheffield Tube On Friday , 29 August 1986, the New
Sheffield Industries hired its three employees, one of
whom is Jack Sheffield , who was previously vice presi-
dent of Sheffield Tube. He was hired by Respondent
Sheffield Industries as a salesman . Subsequently , sales-
man Jack Sheffield mailed a letter , the letterhead of
which read "Sheffield Industries ," to the customers of
Sheffield Tube containing the following language (G C
Exh 7).
As you know Sheffield Industries is under new
ownership Our facilities and goals however remain
the same; to serve your formulating and packaging
needs with the same experience and service we
have developed over the past 130 years At the
same time, however, policies and procedures do
change with new management additions. One area
that has been recognized is our sales representation
format. We have restructured this department to in-
clude additional sales and tele-marketing personnel
to handle all your sales and service needs directly
from the home office.
Respondent hired other salespeople, managers, and
clerical personnel the first week of September, and pro-
ceeded to organize the plant in preparation for opening.
All 10 employees hired during the first week were
former employees of Sheffield Tube. On 8 September
1986 Respondent began manufacturing the same products
(collapsible metal tubes, filled and unfilled) previously
manufactured by Sheffield Tube, and completing orders
originally placed with Sheffield Tube.
Management Staffs
Sheffield Tube Sheffield Industries
(1) Michael (1) Michael Looney, Plant
Looney,Plant Manager Manager, exercising the
same but expanded
authorities.
(2) Ronald Alexander, (2) Ronald Alexander,
Personnel Manager Personnel Manager. He
performs the same duties
except he has authority to
hire and fire, only after
consultation with Plant
Manager Looney and Mr.
Faria, owner
' The facts set forth are not disputed and are not in conflict in the
record
(3) Carol Snow, Carol Snow, Production
Supervisory Manager
Department Manager
The parties stipulated to the supervisory status of Re-
spondent's chemists, data processing manager, and plant
engineer, all of whom previously held the same position
with Sheffield Tube that they now hold at Sheffield In-
dustries.
In preparation for production, Respondent hired 44 in-
dividuals (some of whom were machinists) to prepare the
machines, employees to clean up various departments,
some supervisors and office employees, and employees
familiar with the work to act as leaders in directing the
work in each department
There is a dispute between the parties whether Harold
Fuller and Fred DeCosta are supervisors within the
meaning of the Act. Fuller is a setup person or group
leader in the pressroom. He trains employees, assigns
work on priority set by management production sched-
ules, directs the work, transmits orders from management
to employees, and he may assign an employee to another
department if the pressroom work is sufficient.
DeCosta is a setup person-group leader in the lining
department-and he exercises the same group leader au-
thority exercised by Fuller. Neither Fuller nor DeCosta
has authority to hire, fire, lay off, suspend, recall, pro-
mote, or issue warnings. DeCosta has authority to rec-
ommend hire, but the decision to do so is in the person-
nel manager Both Fuller and DeCosta are hourly paid
and have the same fringe benefits as other unit employ-
ees. They are not salaried like supervisors and other
management personnel.
All of Sheffield Industries' 31 newly hired production
and maintenance employees on 12 September were previ-
ous employees of Sheffield Tube except the purchasing
manager. Respondent also hired 31 other employees
whom it stipulated were supervisors, and all of whom
were prior employees of Sheffield Tube. By the end of
the week of 19 September 1986, Respondent had em-
ployed 34 production and maintenance employees, 33 of
whom were previously employed by Sheffield Tube On
26 September, Respondent employed 45 hourly employ-
ees, of whom 40 had been previously employed by Shef-
field Tube. The complement of hourly employees of Re-
spondent consists of 48 employees on 3 October, 42 of
whom were previously employed by Sheffield Tube.
Based on the foregoing essentially uncontroverted evi-
dence, I conclude and find that Respondent's work force
has remained essentially the same, with a fluctuation of
between 48 and 54 employees; and that the substantial
majority of its work force is comprised of employees
who were formerly employed by Sheffield Tube.
C Respondent's Customers
The documentary evidence established that prior to 3
October 1986, Respondent received orders for purchases
from 34 of Sheffield Tube's customers. It received 20 ad-
ditional orders during the same month, of which 19 were
former customers of Sheffield Tube. From October 1986
through February 1987, Respondent received Ill orders,
of which 103 were from customers of Sheffield Tube.
SHEFFIELD INDUSTRIES
It is clearly established by the foregoing uncontrovert-
ed evidence, and I find, that from October 1986 through
February 1987, Respondent's customers constituted es-
sentially the same prior customers of Sheffield Tube Al-
though the evidence shows that Respondent now buys a
substantial amount of its supplies from different suppliers
and it has restructured its marketing program, as late as
November 1986, Respondent was still utilizing the same
sales system that was used by Sheffield Tube However,
as of January 1987, sales offices were abandoned and a
new telemarketing system was implemented Respondent
increased its output of filled tubes and decreased its
output of unfilled tubes, with plans for further expansion
in that direction.
Notwithstanding Respondent's plans for expanded pro-
duction and sales, since 3 October 1986, Respondent has
had a relatively stable work force of approximately 50
employees. It continues to manufacture essentially the
same product (tubes, filled and unfilled) as Sheffield
Tube, using essentially the same manufacturing facility,
selling to essentially the same customers, and using at
least the same lead name (Sheffield Industries) of Shef-
field Tube.
Conclusion 4. Decorating
Department On third
floor, tubes coated,
lacquered and
sometimes capped
Employees worked
coding, printing
machines, and drying
gas-fired ovens.
5 Lining Department
On third floor waxing
lining was applied in
tubes, and tubes sealed
at the end On the
fourth floor was the
filling department
where tubes were
filled and packaged
6. Filling Department
Where tubes were
filled on two filling
machines
D Comparative Analysis of Manufacturing Processing
of Sheffield Tube and Sheffield Industries
Sheffield Tube
1. For more than 20
years prior to 8
August 1986, Sheffield
Tube manufactured
collapsible metal tubes
and filled some of
them with toothpaste
and other paste or
jellylike substances
2. Production Processes-
Basement metal
department-ingots
melted, poured into
slabs, rolled, stamped
into disks, lubricated,
and sent to pressroom
3 Pressroom. Tubes
stretched, shaped into
extrusion presses,
trimmed on trimmers,
and some threaded
necks added to tube.
Some tubes were sent
to customers and
other tubes to other
parts of the plant.-
Sheffield Industries
1 Since 8 September 1986,
Respondent Sheffield
Industries manufactures
collapsible metal tubes,
some of which are filled
with toothpaste and other
paste or jellylike substances,
except it has upgraded the
quality of its metal tubes
and produces a few
additional substances with
which the tubes are filled,
with plans to produce
others.
2 Production Processes: Same
processes , except tin is the
melting point of the metal.
The process is still
performed in the same metal
room or department on the
same machinery used by
Sheffield Tube
3 Pressroom : Same location,
using extrusion presses and
trimmers to make tubes. The
23 presses from Sheffield
Tube, except 4 large ones
were disconnected a week
before trial , while the
remainder are still in use by
Respondent
7 Subtance
Manufactured
Substances
manufactured in the
laboratory on the fifth
floor which fill the
tubes, include
toothpaste paste,
ointments, or other
jelly-like substances
8. Fourth Floor Paint
Room: Manufactures
coatings and ink
applied.
9 Quality Control
Inspectors. Inspected
every single tube
Employees in material
control packaged
tubes, cleaned up and
transported materials
10. Machine Shop:
Contains Lathes,
planers, grinders, and
drill presses to
manufacture
machines.
1267
4. Decorating Department.
Coat and print tubes on 18
coating, and 20 printing
machines, and 41 drying
ovens, all of which were
used by Sheffield Tube, one
oven was converted from
gas-fired ultra-drying to an
ultra-violet drying process
5 Lining Department. Same
process using same machines
obtained from Sheffield
Tube No change is
established
6 Filling Department. Seven
filling machines and two
automatic tube cutting
machines were obtained
from Sheffield Tube
Respondent has a new heat
sealing device which enables
it to fill different types of
tubes The work is the same.
7. Substance Manufactured.
Respondent manufactures
the same toothpaste and
other substances, using the
same kettles, mixers, pots,
pans, spatulas, and shovels
used by Sheffield Tube. It
makes a new toothpaste
formulated by Chemist
Kelly, who was a chemist
for Sheffield Tube
8. Fourth Floor Paint Room
Paints and ink for
decorating the department
are still made here in the
same mixers as they were at
Sheffield Tube
9. Quality Control Inspectors
Same visual inspection,
except, rather than
inspecting every tube,
Respondent uses a statistical
sampling inspection method.
10. Machine Shop Same
machines used by Sheffield
Tube except a new milling
machine was added. Milling
machines are used to make
parts for tube manufacturing
machines, as they were so
used by Sheffield Tube
1268
11. Packing Process.
Pack tubes into chip-
board boxes, then
later pack them into
corrugated boxes
12 Location:
Manufactures product
in five-story plant
located at 170 Broad
Street, New London,
Connecticut . Sheffield
Tube was the only
such manufacturer of
tubes filled and
unfilled in the
country.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11. Packing Process. Now
tubes are packed directly
into corrugated boxes, not
using chip -board boxes
12. Location Manufactures
products in same five-story
plant, located at 170 Broad
Street, New London,
Connecticut, except it has
relocated some departments
at other locations in the
plant for efficiency and cost
savings.
Respondent has modernized its data processing which
it purchased from Sheffield Tube, and pursuant to con-
sultation , eliminated its sales offices and established a
telemarketing system, focusing on increasing sales of
filled tubes, rather than unfilled tubes . Respondent also
plans further automation of its manufacturing process to
increase efficiency. Otherwise , Respondent 's manufactur-
ing process remains the same
As a result of its anticipation of a significant increase
in sales, Faria reportedly told Personnel Manager Ronald
Alexander , that Respondent hopes to increase its work
force to 120 or 160 by the end of 1988 . At the time of
the hearing here, Respondent was seeking to employ six
employees with no plans to hire others before August
1987. Respondent concedes it does not know whether its
contemplated increase in sales will materialize . Respond-
ent's work force has remained essentially stable at about
50 since it commenced operations about 3 October 1986.
Respondent continues to manufacture essentially the
same product (tubes, filled and unfilled) as Sheffield
Tube, using essentially the same manufacturing process,
essentially the same employees performing essentially the
same manufacturing work, in the same manufacturing fa-
cility, selling to essentially the same customers , and using
at least the same lead name (Sheffield Industries) of Shef-
field Tube.
Conclusion
A careful review of the foregoing essentially uncontro-
verted evidence reveals, and I thereupon conclude and
find, that Respondent has made some minor modifica-
tions in some of the steps of its production processes;
that such modifications were largely achieved by the in-
stallation of a few modern mechanical or electronic de-
vices, which accelerated the production process, in some
instances , sometimes eliminating manual assistance, or
improving efficiency in the operation to an appreciable
degree. In actuality , these production modifications and
those contemplated by the Respondent have, or will
result in, essentially updating the manufacturing process
However, more significantly , Respondent 's manufactur-
ing process still involves the production of collapsible
tubes some of which are filled primarily with toothpaste,
ointments , or other cream or jellylike substances , but Re-
spondent does not manufacture a new and different prod-
uct such as bicycle wheels
Respondent ' s products are manufactured on the same
machinery from Sheffield Industries , with a few new and
more modern machines. They are processed essentially in
the same departments even though some of the depart-
ments have been relocated or consolidated in the same
building, on different floors, to save time and enhance ef-
ficiency in operation Under these circumstances, I fur-
ther find that Respondent is engaged in manufacturing
the same product , with the use of the same, or partially
updated and improved manufacturing processes, in the
same physical setting (building) and for the same and
new and expanding customers . Although Respondent
now purchases some of its manufacturing materials (some
of which are the same) from some different manufactur-
ers, I do not find such facts sufficiently significant, so as
to conclude that Respondent is engaged in a new or dif-
ferent manufacturing operation than that carried by Shef-
field Tube. In fact Respondent carries on the same manu-
facturing process as its predecessor , Sheffield Tube, with
increasing efficiency and expansion.
The record shows that Respondent continued to re-
ceive and fill orders from former customers of Sheffield
Tube during the months of October 1986 through Febru-
ary 1987
E Union Demands Recognition and Bargaining
A letter to Respondent from the Union's John Walker,
dated 4 September 1987, reads as follows-
Dear Sirs:
As a successor Company to Sheffield Tube Cor-
poration , you are obligated to collectively bargain
with the Union , Local Lodge No . 1279 of District
Lodge No. 104, International Association of Ma-
chinists & Aerospace Workers, AFL-CIO.
We are prepared to negotiate and we request that
you contact the undersigned at 25 Oak Street, West-
erly, Rhode Island , or by telephoning 401-596-2141
(home) or 401 -596-0313 (office) in order that ar-
rangements may be made for the commencement of
negotiations
A month later , in a letter dated 3 October 1986, Re-
spondent replied as follows:
Dear Mr . Walker:
With respect to your letter of September, 1986,
we must note that we are not related in any fashion
to the former Sheffield Tube Corporation At this
time, we are manning our operation on a very limit-
ed basis and have not hired our full complement of
employees . Accordingly , we have no duty to bar-
gain with your union.
As clearly related in the above-written communica-
tions between the parties, the Union asserts that Re-
spondent is a successor of Sheffield Tube and is thereby
obliged to recognize and bargain with the Union. On the
contrary, Respondent denies that it is such a successor
because it contends it is an essentially different enterprise
SHEFFIELD INDUSTRIES 1269
and, therefore, is not obligated to recognize or bargain
with the Union
1 Analysis and conclusions
Whether Respondent is a successor of Sheffield Tube
depends on a determination of whether it, as an enter-
prise, remains essentially the same, or whether the nature
or extent of Respondent as an employing enterprise, or
the work of the employees, is substantially changed. In
view of the multiple and varied situations which may ac-
company change in the employing enterprise, the Board
has long established the criteria for determining whether
there is substantial evidence of change in the following
aspects of the purchased enterprise
(1) Continuity in the same business
(2) Use of the same plant
(3) Employs the same or substantially the same
work force.
(4) The same jobs exist under the same working
conditions
(5) Employs the same supervisors
(6) Use of the same machinery, equipment and
methods of production
(7) Manufactures the same product or offers the
same services
Aircraft Magnesium , 265 NLRB 1344, 1345 (1982)
Applying these criteria to the credited evidence of Re-
spondent's operations, I find that Respondent com-
menced manufacturing the same product (collapsible
tubes-filled and unfilled ) only about 30 days after it ac-
quired the assets of Sheffield Tube , that there was no sig-
nificant hiatus between the manufacturing operation of
Respondent and Sheffield Tube, that Respondent operat-
ed its business with essentially the same work force per-
forming essentially the same work function , utilizing es-
sentially the same machinery and equipment, with essen-
tially the same manufacturing processes , in the same fa-
cility (plant), selling to essentially the same customers,
using at least the same lead name (Sheffield ) of Sheffield
Tube, and that there is continuity in the business enter-
prise previously operated by Sheffield Tube
I further conclude and find, on the uncontroverted
record evidence , that since Respondent commenced busi-
ness operations, and continues to operate business at the
same facility ( 170 Broad Street , New London, Connecti-
cut), as did Sheffield Tube , Respondent uses the same
plant that was used by Sheffield Tube
2 Successorship
The Board had held that when all or a part of a busi-
ness is sold, the purchaser of the business is a legal
successorship to the predecessor business entity, and has
inherited the obligation to recognize and bargain with
the Union which represents the employees of the prede-
cessor Indianapolis Mack Sales, 272 NLRB 690, 694
(1984) The fact that the Respondent here obtained ac-
quisition of the assets of Sheffield Tube by a foreclosure
is not material because such an acquisition is still a form
of purchase. Band-Age, Inc, 217 NLRB 449 (1975), enfd
534 F 2d 1 (1st Cir. 1976)
Most recently, the Board has held that a new owner of
a business is obligated to recognize and bargain with a
union which represents the employees of the previous
owner, provided "there is substantial continuity in the
employing enterprise." Eastone of Ohio, 277 NLRB 187,
(1986), and that "where there is such continuity, the pre-
sumption of majority status by the union under the pred-
ecessor is not affected by the change in ownership." Air-
craft Magnesium, 265 NLRB 1344, 1345, supra, Burns Se-
curity Services, 406 U S. 272, 279 (1972)
The criteria for determining successorship are not to
be mechanically applied Instead, the Board applies these
factors "to the totality of the circumstances" in each
case Eastone of Ohio, supra.
Thus, a careful review of all the evidence in this case
reveals that it is more than substantial in satisfying all the
criteria enunciated by the Board of determining the
successorship of an enterprise. More specifically, after
acquiring all the assets of Sheffield Tube, Respondent
(Sheffield Industries), a month later, proceeded to oper-
ate the business in substantially the same manner, filling
orders for the same customers of Sheffield Tube, and
carried on this business as follows
1. Although several weeks and months later, Respond-
ent reduced some supervisory levels and consolidated
some others, these changes did not make a substantial
change in its mode of operation
2 Respondent utilized the same plant although some
departments were consolidated and/or were relocated in
the same building facility
3 Respondent's work force constituted 43 or 50 of the
employees who previously worked for Sheffield Tube
4. Jobs and working conditions at Respondent were es-
sentially the same as they existed at Sheffield Tube,
except for minor modifications resulting from some up-
dating of machinery, equipment, or processes which en-
hanced the efficiency in production or processing.
5 Respondent's supervisors, professional, and clerical
employees consist primarily of personnel who previously
worked for Sheffield Tube.
6 Except for a few new machines, or equipment for
old machines, and some new processing methods imple-
mented to accelerate production and increase efficiency,
Respondent's machinery, equipment, and methods of
production are essentially the same as those maintained
and employed by its predecessor, Sheffield Tube. Al-
though Respondent states its contemplates making con-
siderable changes in these elements, such greater changes
had not materialized at the time of the hearing in this
matter
7. Respondent's entire manufacturing operation is en-
gaged in producing exclusively the same product pro-
duced by its predecessor, Sheffield Tube, namely, col-
lapsible tubes, filled or unfilled, for toothpaste, or other
creams, ointments, or jellylike substances.
I am therefore constrained to conclude and find on the
foregoing essentially uncontroverted evidence that there
is continuity in the business operation of Sheffield Tube
by the Respondent, and that Respondent is the successor
of Sheffield Tube, that the production and maintenance
employees of Respondent are essentially employees who
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were production and maintenance employees in the col-
lective-bargaining unit at Sheffield Tube, and they con-
tinue to be, and are presumed to constitute a majority
part of, the appropriate bargaining unit represented by
the Union, and that Respondent is obligated to recognize
and bargain with the Union as the exclusive bargaining
representative of its production and maintenance employ-
ees. Appliance Supply, 127 NLRB 319, 321 (1960); Indian-
apolis Mack Sales, supra.
As counsel for the General Counsel and counsel for
the Union argue, the evidence shows that both employ-
ees Fuller and DeCosta are both classified by the Re-
spondent as setup men or group leaders. The record
shows that their duties coincide with the duties of other
group leaders whom Respondent has stipulated are not
supervisors. The record evidence further shows that
Fuller and DeCosta trained the employees, directed their
work, and transmited orders to them from supervisors.
They do not have authority to hire, fire, discipline, sus-
pend, promote, lay off, or recall employees. Nor do they
exercise independent judgment in assigning work but,
rather, comply with the manufacturing schedule pre-
pared by Plant Manager Looney. Neither Fuller nor De-
Costa is salaried as are supervisors, but both are hourly
paid and receive the same benefits received by other
hourly employees. Both Fuller and DeCosta are group
leaders, a position long recognized by the Board as not
necessarily clothed with supervisory authority. Risdon
Mfg. Co., 195 NLRB 579, 581 (1972).
The evidence also amply shows that as of 3 October
1986, when Respondent received and rejected the
Union's request for recognition and bargaining, 43 of 50
of its work force were former employees of Sheffield
Tube, and its work force remained relatively stable since
that time. Under these circumstances, I find that on 3
October 1986, Respondent had hired a substantial and
representative complement of its work force that was
stabilized. The record contains no evidence that at that
time Respondent had definite and timely plans to expand
its work force. Even at the time of the hearing, Respond-
ent's plan for expanding the work force was still a plan,
dependent on the uncertain increase in sales. Such a
speculative plan cannot serve as a substitute for a definite
plan, the implementation of which is timely scheduled
with relative certainty. Great Lakes Chemical Corp., 280
NLRB 66 (1987); Cencom of Missouri, 282 NLRB 253 fn.
2 (1986).
Consequently, I find on the foregoing evidence and
cited legal authority that on 3 October 1986, Respondent
was legally obligated to recognize and bargain with the
Union as the exclusive bargaining representative of its
production and maintenance employees. Respondent's
written and actual failure and refusal to do so violated
Section 8(a)(1) and (5) of the Act, as alleged Taylor
Stone, supra; Indianapolis Mack Sales Service, supra.
Respondent consistently argued during the hearing and
in its brief that Respondent should not be obligated to
recognize and bargain with the Union since Respondent
has not hired its contemplated full complement of em-
ployees; and that requiring Respondent to do so as a suc-
cessor of Sheffield Tube would be unfair to new employ-
ees as well as employees who were formerly employed
by Sheffield Tube, some of whom may not desire to be
represented by the Union. This argument, however, ad-
vanced in NLRB v. Fall River Dyeing Corp., 775 F 2d 425
(1st Cir. 1985), was appealed to the U.S. Supreme Court.
Respondent even requested that I postpone the hearing
and/or issue a decision in this case, pending a decision
by the Supreme Court. Although both of the Respond-
ent's requests were denied, fortuitously, on 1 June 1987,
the Supreme Court rejected the employer's argument,
and affirmed the Board's finding of successorship and ob-
ligation of the employer to recognize and bargain with
the union Fall River Dyeing Corp. v. NLRB, 482 U S 27
(1987).
In his posthearing brief, counsel for the General Coun-
sel urged the issuance of an order containing a visitator-
ial provision for discovery, to assure full compliance
with any Board order issued in favor of the Charging
Party. Counsel for Respondent filed a written objection
to such an order on the grounds that counsel for the
General Counsel made no such request during the hear-
ing when Respondent could have opposed it, and be-
cause no evidence was offered demonstrating a necessity
for such an order.
Notwithstanding, not only do I find that the record
does not contain evidence warranting such an order, but
the Board has not thus far issued a ruling on visitatorial
clauses involving posthearing discovery I therefore see
no need to further address these arguments.
During the hearing in this matter, and again in a letter
dated 6 May 1987 to me, counsel for Respondent moved
to have included in a rejected exhibit file communica-
tions between himself and the deputy in charge of the
Regional Office, regarding the nonavailability of the
Union's certification of a tally vote of the employees of
the predecessor (Sheffield Tube) conducted in 1963
Because Respondent offered no probative evidence or
convincing reason why such tally vote is necessary or
relevant to this proceeding, and since the predecessor
recognized and bargained with the Union for 23 or more
years, I fail to comprehend any relevance of such com-
munications to this proceeding It would appear that
even if such tally vote were available, Respondent's un-
stated mission appears to be one of a reason in this
record Respondent's motion to include such communica-
tions into a rejected exhibit file is therefore denied.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it be or-
dered to cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the policies
of the Act
Having found that Respondent violated Section 8(a)(1)
and (5) of the Act by unlawfully failing and refusing to
recognize and bargain with Charging Party, Union,
Local Lodge 1279, District Lodge 104, International As-
sociation of Machinists and Aerospace Workers, AFL-
CIO as the exclusive collective-bargaining representative
of its employees in the appropriate collective-bargaining
unit, I will recommend that Respondent cease and desist
from engaging in such conduct; that it be ordered to rec-
SHEFFIELD INDUSTRIES 1271
ognize and, on request, bargain in good faith with Local
Lodge 1279, District Lodge 104, International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO,
as the exclusive collective-bargaining representative of its
employees in the following appropriate bargaining unit
All production and maintenance employees at the
company plant located at Broad Street, New
London, Connecticut, excluding executives, super-
visor(s), office clerical employees, assistant chem-
ists, first-aid attendants, draftmen, watchmen,
guards and professional employees
CONCLUSIONS OF LAW
1. The Respondent, Faria Limited d/b/a Sheffield In-
dustries, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 Local Lodge 1279, District Lodge 104, International
Association of Machinists and Aerospace Workers,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act
3 By unlawfully failing and refusing to recognize and
bargain with the Charging Party Union, Respondent vio-
lated Section 8(a)(1) and (5) of the Act
4. All of the below-described employees employed by
Respondent constitute an appropriate unit for purposes
of collective bargaining within the meaning of Section
9(b) of the Act
All production and maintenance employees at the
company plant located at Broad Street, New
London, Connecticut, excluding executives, super-
visor(s), office clerical employees, assistant chem-
ists, first-aid attendants, draftmen, watchmen,
guards and professional employees.
5 At all times material, Local Lodge 1279, District
Lodge 104, International Association of Machinists and
Aerospace Workers, AFL-CIO has been the exclusive
collective-bargaining representative of the employees in
the above-described appropriate unit, within the meaning
Section 9(a) of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Faria Limited d/b/a Sheffield Indus-
tries of 170 Broad Street, New London, Connecticut, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Local
Lodge 1279, District Lodge 104, International Associa-
tion of Machinists and Aerospace Workers, AFL-CIO as
the exclusive collective-bargaining representative of the
employees in the appropriate unit described above, with
regard to the wages, hours, working conditions, and
other terms and conditions of employment
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Recognize and, on request, bargain collectively
with Local Lodge 1279, District Lodge 104, Internation-
al Association of Machinists and Aerospace Workers,
AFL-CIO as the exclusive bargaining representative of
the employees in the appropriate unit described above,
with regard to wages, hours, working conditions, and
other terms and conditions of employment of unit em-
ployees and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at Respondent's business facility located at 170
Broad Street, New London, Connecticut, copies of the
attached notice marked "Appendix."3 Copies of the
notice, on forms provided by the Regional Director for
Region 39, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
a If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
WE WILL NOT fail or refuse to recognize and bargain
with Local Lodge 1279, District Lodge 104, Internation-
al Association of Machinists and Aerospace Workers,
1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
AFL-CIO as the exclusive bargaining representative of
the employees in the Broad Street , New London, Con-
necticut facility in the appropriate unit described below
with regard to wages, hours, working conditions, and
other terms and conditions of employment:
All production and maintenance employees at the
company plant located at Broad Street, New
London, Connecticut, excluding executives, super-
visor(s), office clerical employees , assistant chem-
ists, first -aid attendants , draftmen , watchmen,
guards and professional employees
WE WILL NOT in any like or related matter interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL recognize and, on request , bargain with
Local Lodge 1279, District Lodge 104, International As-
sociation of Machinists and Aerospace Workers, AFL-
CIO as the collective -bargaining representative of our
employees in the unit described above with respect to
wages, hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such
understanding in a signed agreement.
FARIA LIMITED D/B/A SHEFFIELD INDUS-
TRIES