United Maintenance & Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Nov 1, 1974

214 N.L.R.B. 529 (N.L.R.B. 1974)

UNITED MAINTENANCE & MANUFACTURING CO.
United Maintenance & Manufacturing Co., Inc. and
United Steelworkers of America , AFL-CIO-CLC.
Case 6-CA-6941
November 1, 1974
DECISION AND ORDER
On the basis of a charge filed by United Steelwork-
ers of America, AFL-CIO-CLC, hereafter referred
to as the Union, on August 29, 1973, and an amend-
ed charge filed on October 26, 1973, the General
Counsel of the National Labor Relations Board, by
the Acting Regional Director for Region 6, issued a
complaint against United Maintenance & Manufac-
turing Co., Inc., hereinafter referred to as Respon-
dent, on October 29, 1973. The complaint alleges that
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to recognize and bargain with the
Union and by unilaterally instituting changes in wag-
es, hours, and terms and conditions of employment
since on or about August 13, 1973. Respondent filed
an answer to the complaint on November 8, 1973, in
which it admitted certain of the allegations, but de-
nied the commission of any unfair labor practices.
On February 26, 1974, the parties entered into a
stipulation to transfer this proceeding to the Board
wherein they agreed that certain documents would
constitute the entire record herein,' waived all imme-
diate proceedings before an Administrative Law
Judge, and submitted this case directly to the Board
for it to make findings of fact and conclusions of law
and issue its Decision and Order. On March 11,
1974, the Board approved the stipulation and set a
date for the parties to file their briefs. Thereafter,
briefs were timely filed by all the parties.
The Board has considered the entire record herein,
as stipulated to by the parties, as well as their briefs,
and makes the following findings of fact and conclu-
sions of law:
1. THE BUSINESS OF THE EMPLOYER
United Maintenance & Manufacturing Co., Inc., is
a West Virginia corporation engaged in the repair of
mining equipment at a facility it operates in Morgan-
town, West Virginia. During its first 5 months of op-
eration, it performed services in the amount of
$130,000 for companies each of which annually pro-
duces and ships goods and materials valued in excess
of $50,000 directly out of States wherein said enter-
' The parties agreed that the charge, amended charge, complaint, answer
to the complaint, and the stipulation of facts constitute the entire record in
this case
529
prises are located. The parties stipulated, and we
find, that Respondent is, and at all times material
herein has been, an employer engaged in commerce
or an industry affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The parties stipulated , and we find, that the Union
is, and at all material times has been , a labor organi-
zation within the meaning of Section 2(5) of the Act
111. THE UNFAIR LABOR PRACTICES
A. Facts
Until March 28, 1973,2 United Electric & Machine
Company, Inc. (hereinafter referred to as Electric),
was engaged in the business of repairing mining
equipment at the same facility now being utilized by
Respondent. On January 3, the Union was certified
as the exclusive bargaining representative of
Electric's employees in the following unit:
All production and maintenance employees, in-
cluding truckdrivers and helpers, of the Employ-
er at its Morgantown, West Virginia location;
excluding office clerical employees and guards,
professional employees and supervisors as de-
fined in the Act.
Thereafter, the Union and Electric engaged in col-
lective-bargaining negotiations, but were unable to
agree upon a contract. On March 28, all of the em-
ployees went out on strike and commenced picket-
ing. Although the strike and picketing continued into
the summer, Electric hired no replacements.
As of March 27, the day before the strike, Electric
was utilizing 38 employees in the certified unit. Ap-
proximately six of these employees worked under the
supervision of Falbo, a part-owner of Electric, and
the remaining employees worked under the supervi-
sion of Lowell Cowell, who had no ownership inter-
est in Electric. As described more fully below, after
the transfer of ownership to Respondent, Cowell and
his family became the sole shareholders and Falbo
continued on as a supervisor without any ownership
interest.
In July 1973, Respondent was incorporated in
West Virginina with Lowell Cowell, his wife, and his
father as the sole shareholders. On August 7, Re-
spondent purchased all of Electric's personal proper-
ty, machinery, and equipment. On August 9, Respon-
dent purchased all Electric's accounts receivable and
2 Hereinafter all dates refer to 1973 unless otherwise specified
214 NLRB No. 31
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work in progress, and arranged to take over the lease
which Electric had on the real property.
Even before the purchase and sale agreement de-
scribed above had been consummated, however, Re-
spondent, on August 6, offered employment to 21 of
Electric's 38 striking employees by means of a form
letter. That letter informed them, in essence, that Re-
spondent would be opening at Electric's former
worksite on August 13; it set out the names of
Respondent's officers; and it requested individuals
interested in working for the Company to call Lowell
Cowell, Respondent's president and general manag-
er. There was no indication in the letter as to what
terms and conditions of employment Respondent in-
tended to offer. Since Respondent intended to hire
no more than 21 employees, it did not initially publi-
cize its interest in hiring employees beyond sending
out the letters to the individuals noted above, nor did
it offer employment to any other individuals.
On the morning of August 13, the date the Re-
spondent planned to commence operations, only the
supervisory personnel and clericals appeared for
work; none of the individuals who were sent the let-
ters described above presented themselves. That
same day the Union requested Respondent to recog-
nize and bargain with it. Respondent refused and has
continued to refuse, giving as its reason that the
Union has never been selected by its employees to
represent them. Throughout this time , the Union
continued its picketing.
Since no employees appeared for work during the
week of August 13, the only work performed that
week was performed by supervisory personnel. How-
ever, on August 18, Respondent succeeded in obtain-
ing a temporary restraining order against the Union's
continued picketing of its worksite from the Circuit
Court of Monongalia County, West Virginia. The
Union thereupon ceased its picketing while it ap-
pealed the order. The following Monday, August 20,
Respondent employed its first employee, an individ-
ual who had not previously been employed by Elec-
tric, at unilaterally instituted terms and conditions of
employment which were more favorable in several
respects than were those Electric had provided.
In the days that followed, the Respondent hired
more employees, some of whom had previously
worked for Electric, and some of whom had not.
Thus, by August 24, it had four employees, two of
whom were former Electric employees (old) and two
who were not (new); by August 28, it had 10 employ-
ees, 7 old and 3 new; by August 31, it had 13 employ-
ees, 8 old and 5 new; by September 7, it had 14 em-
ployees, 9 old and 5 new;' and by September 21,
3 The day before, September 6, Respondent for the first time advertised in
Respondent had hired 15 employees, 9 old and 6
new.
On September 17, the Union was successful in get-
ting the temporary restraining order against its pick-
eting dissolved by the Supreme Court of Appeals of
the State of West Virginia, and it consequently re-
sumed its picketing on September 22.4 Thereafter,
three of the Respondent's employees who had previ-
ously worked for Electric, and one who had not, ter-
nunated their employment. As a result, Respondent
only had 11 "active" 5 employees as of September 23,
6 old and 5 new. From that date up until the time of
the stipulation in this case, the breakdown of old and
new employees was as follows: October 5 (6 old-6
new); October 9 (6-5); October 10 (6-6); October 23
(6-7); November 6 (6-8); November 19 (6-8); No-
vember 26 (6-9); December 7 (6-8); January 7, 1974
(7-8); January 8, 1974 (8-8); January 30, 1974 (8-7).
Meanwhile, on September 17, Respondent filed a
petition seeking a Board election to determine if its
employees wanted representation. However, on No-
vember 6, the Acting Regional Director for Region 6
dismissed Respondent's petition on the ground that it
was "blocked" by the complaint he had issued in the
present proceeding. Respondent appealed the dis-
missal of its petition to the Board, but the Board
sustained the dismissal by telegraphic order dated
December 27.
B. Contentions of the Parties
General Counsel and Charging Party contend that
Respondent is a "successor employer" to Electric,
that as such it succeeded to Electric's bargaining
obligation, and that, by failing and refusing to bar-
gain since on or about August 13, the Respondent
violated Section 8(a)(5) and (1) of the Act. They fur-
ther contend that since the Respondent clearly in-
tended to fill its complement of employees with indi-
viduals who had previously been employed by Elec-
tric, for whom the Union had only recently been
certified as exclusive bargaining agent. Respondent
was obligated to consult with the Union before ef-
fecting changes in the terms and conditions of em-
ployment that had been provided by Electric; and
the Morgantown newspapers for shop personnel to fill its intended comple-
ment of 21 employees
4 The parties' stipulation of facts states that the Union 's strike and picket-
ing "was caused, continued and prolonged " by Respondent 's refusal to rec-
ognize and bargain and by its unilateral institution of different terms of
employment
General Counsel and Charging Party assert that the four employees
whose employment was terminated on September 21 and 22 ceased working
in sympathy with the Union's strike and out of respect for its resumed
picketing, and therefore remained "employees" of Respondent We discuss
that contention infra For our purposes here , we use "active " to distinguish
those who continued working during the picketing from those , if any, who
ceased their employment to support the Union's concerted activity
UNITED MAINTENANCE & MANUFACTURING CO. 531
that by its failure to do so and by unilaterally insti-
tuting different terms on August 20, Respondent in-
dependently violated Section 8(a)(5) and (1) of the
Act. And finally, General Counsel contends that the
Respondent's aforementioned violations had the ef-
fect of prolonging the existing strike, thereby trans-
forming it into an unfair labor practice strike as of
August 13.
Charging Party separately argues that the Respon-
dent committed an independent violation of Section
8(a)(1) in bypassing the Union and dealing with the
employees individually in offering 21 of them em-
ployment by means of the August 6 letter.
Respondent essentially contends that it should not
be held to have succeeded to the bargaining obliga-
tions of the predecessor because, during the bulk of
the time since it commenced operations, its work
force has been made up primarily of new employees
who have never expressed any desire to be repre-
sented by the Union.
agreement with Wackenhut. Of the 42 guards that
had previously been employed by Wackenhut, Burns
retained 27 and brought in 15 of its own guards from
other locations. Shortly after Burns commenced op-
erations, the union requested it to honor its contract
with the predecessor, but Burns refused. The Su-
preme Court reversed the Board's decision to the ex-
tent that it held Burns to be bound by the
predecessor's collective-bargaining agreement, but it
enforced so much of the Board's decision as held
Burns to have succeeded to the bargaining obligation
of the predecessor. The Court stated:
, . . where the bargaining unit remains un-
changed and a majority of the employees hired
by the new employer are represented by a re-
cently certified bargaining agent there is little
basis for faulting the Board's implementation of
the express mandates of §8(a)(5) and §9(a) by
ordering the employer to bargain with the in-
cumbent union. [406 U.S. at 281.]
C. Discussion and Conclusion
We are faced with essentially two issues on the
foregoing facts: (1) Were the nature of Respondent's
operations and the indentity of its work force suffi-
ciently similar to those of its predecessor, Electric, so
as to have continued the Union's presumption of ma-
jority status against Respondent under our "succes-
sor employer" doctrine? and (2) did Respondent
have an obligation to bargain with the Union, even
prior to hiring any employees, with regard to its ini-
tial terms and conditions of employment?
For the reasons set forth below, we find that Re-
spondent did succeed to the bargaining obligations
of Electric, on and after August 28, when a majority
of its complement of employees consisted of former
Electric employees. However, we do not find that
Respondent had any obligation to bargain with the
Union over the initial terms of employment which it
unilaterally instituted on August 20.
1. Successorship
We take our guidance in this area from the Su-
preme Couit's decision in N. L. R B v. Burns Interna-
tional Security Services, Inc. 6 In that case, Burns took
over a contract to perform security services which
had previously been performed by Wackenhut. Only
4 months earlier the Board had certified the union as
exclusive representative of the Wackenhut employees
for purposes of collective bargaining , and the union
had since negotiated a 3-year collective -bargaining
6 406 U S 272 (1972)
We find the same considerations present in the
case before us. The parties stipulated to the facts that
the Respondent is performing the same operations,
using the very same facilities, and serving some of the
very same customers as Electric. Respondent, fur-
ther, does not question the continued appropriate-
ness of the certified unit. Finally, it is clear from the
parties' stipulation that, at least from August 28 to
October 5, a majority of the Respondent's employees
were individuals who had previously worked in the
certified unit of the predecessor.'
The Respondent would have us distinguish the
Burns case on grounds that (1) here the Union does
not have an outstanding collective-bargaining agree-
ment with the predecessor; (2) there was a substan-
tial hiatus between March 28, when the predecessor's
operations ceased as a result of the Union's strike,
and August 13, when Respondent commenced oper-
ations; (3) here Respondent did not employ a majori-
ty of the predecessor's employees; and (4) it was only
for a few days that a majority of its own employee
complement consisted of former Electric employees.
We will discuss these contentions seriatim.
The fact that the Union here did not have a collec-
'General Counsel and the Union assert that former Electric employees
also remained in the majority after October 5, inasmuch as three former
Electric employees ceased their employment on September 21 and 22 in
sympathy with the Union's cause and out of respect for the Union's picket
line which was reestablished on September 22, and that these individuals
therefore retained their status as "employees" of the Respondent The
Charging Party further asserts that a fourth employee, who had not previ-
ously worked for Electric but was a brother of one of the three employees
referred to immediately above , also ceased work on September 21 in sympa-
thy with the Union's cause Although the Respondent does not challenge
these assertions, they are not a part of the stipulated record, and we cannot
therefore properly consider them
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive-bargaining agreement with Electric at the time
Respondent took over does not relieve the Respon-
dent of the obligation to bargain. As the Court stated
in Burns: 8 "The source of its duty to bargain with the
union is not the collective-bargaining contract but
the fact that it voluntarily took over a bargaining
unit that was largely intact and that had been certi-
fied within the past year." Here, Respondent, on and
after August 28, employed more than a majority of
its substantially complete work complement out of
the predecessor's work force, and otherwise contin-
ued substantially the same operations. Under these
circumstances, the Board has long held, for reasons
of stability in industrial relations, that the presump-
tion of the Union's continuing majority status during
its certification year remains operative and that the
new employer or successor-employer has the same
bargaining obligations as the predecessor during this
period. As the Supreme Court noted with approval in
Burns, 406 U.S. at 279:
It has been consistently held that a mere change
of employers or of ownership in the employing
industry is not such an "unusual circumstance"
as to affect the force of the Board's certification
within the normal operative period if a majority
of employees after the change of ownership or
management were employed by the preceding
employer. [Citations omitted.]
We further find no significance in the fact that
Electric had not been operating for approximately
4-1/2 months when the Respondent took over opera-
tions. It is true that the Board has sometimes relied
upon a substantial hiatus between the termination of
the predecessor's operations and the commencement
of the new employer's operations in finding that the
new employer did not succeed to the predecessor's
obligation to bargain.' But in those cases the hiatus
arose in the context of the predecessor's ceasing op-
erations for economic reasons (frequently because it
had failed financially and had fallen into the hands
of creditors), whereupon the business was purchased
by a new employer who commenced operations after
having made, or while in the process of making, sub-
stantial changes in the management and organiza-
tion, product line, equipment, or customers of the
predecessor's operations. In those cases, then, the
Board relied on the hiatus in operations as one of
many factors pointing to such a substantial transfor-
mation in the nature of the predecessor's operations
that a real question was presented, by the combina-
tion of circumstances, as to the employees' desires
with regard to representation. That a hiatus in opera-
tions is ordinarily material only where there have
been substantial other changes is reflected in cases
where the hiatus in operations was even greater than
that present here, and yet the Board found that the
new employer succeeded to the obligations of the
predecessor because operations were continued by
the new employer substantially unchanged.1°
Unlike the cases referred to above in which the
Board relied on a hiatus in operations as one of
many factors in finding that the new employer could
reasonably question the union's continuing represen-
tative status, we see nothing in the circumstances of
the hiatus here which would provide any basis for
challenging the Union's majority status during the
term of the certification year. Here the hiatus result-
ed from the employees' strike, not from the
Employer's decision to cease operations. In the latter
situation the employees' desires with regard to repre-
sentation under the new employer may be ambigu-
ous at best, particularly where the new employer has
instituted changes in operations. However, where, as
here, the hiatus in operations was caused by a strike
in which the vast majority of employees participated,
it is clear that throughout the term of the strike the
Union still enjoyed the support of the employees.
This is especially true in this case where none of the
21 employees who were offered employment by Re-
spondent on August 6 accepted it and returned to
work prior to the state court's injunction against the
Union's picketing. In view of the foregoing, and es-
pecially since operations under Respondent contin-
ued substantially unchanged and the certified unit
remained intact, we find nothing in the circum-
stances of the hiatus here which provides any basis
for the Respondent to question the Union's represen-
tative status during the operative period of the certifi-
cation year."
Respondent's reliance on the fact that it did not
retain a majority of the predecessor's employees is
also misplaced. Under circumstances, as here, where
the new employer continues operations substantially
unchanged and the bargaining unit continues intact,
the Board has traditionally held that the new em-
ployer succeeds to the predecessor's bargaining obli-
gations when a majority of the new employer's work
complement is determined to have come from the
8 406 U S. at 287 "o See e g , C G Conn , Lid, a wholly onned subsidiary of Cron ell Colher
'See, eg , Georgetown Stainless Mfg, Corp, 198 NLRB 234 (1972) (3- and MacMillan, Inc, 197 NLRB 442 (1972) ( where there was a complete
week hiatus), Gladding Corporation, 192 NLRB 200 (1971) (over 2-month cessation of operations for approximately 4-1/2 months, and where subtitan-
hiatus), Diamond National Corporation, 133 NLRB 268 (1961) (nearly 2- rally limited operations were engaged in for several additional months)
month hiatus) " C G Conn, Ltd, supra
UNITED MAINTENANCE & MANUFACTURING CO.
predecessor's bargaining unit.12 And the Board has so
found even in cases where the new employer com-
menced operations on a substantially diminished
scale and consequently employed less than a majori-
ty of the employees in the predecessor's bargaining
unit." Thus, under circumstances where operations
under the new employer have not been changed in
any substantial way, the standard for determining
the new employer's obligations to bargain with the
union representing the employees of the predecessor
is not, as Respondent contends, the percentage of the
predecessor's total complement that the new employ-
er retains, but the percentage of the new employer's
work force which had previously worked for the pre-
decessor in the bargaining unit, 14
12 See generally Goldberg, The Labor Law Obligations of a Successor Em-
ployer, 63 Nw U L Rev 735 (1969) at 793, fn 197, and accompanying
discussion in text
13 See, e g , The Northwest Glove Co, Inc, 74 N LRB 1697 (1947) (work
force reduced from 105 to 25), Krantz Wire & Mfg Co 97 NLRB 971
(1952) (work force reduced from 25 to 8 at time bargaining obligation held
to have attached , although later increased to 25 again with the addition of
17 new employees), enfd sub nom N L R B v Albert Armato, 199 F 2d 800
(CA 7, 1952), Johnson Ready Mix Co, 142 NLRB 437 (1963) (work force
reduced from 83 to 56, 36 of whom worked in the predecessor's bargaining
unit), Rohlik, Inc , 145 NLRB 1236 (1964) (new employer's work force of
between 35 and 40 employees constituted approximately one-third of
predecessor 's work force in bargaining unit), Western Freight Association,
172 NLRB 303 (1968) (work force reduced from 500 to 110 and yet the
Board found new employer to have succeeded to the labor obligations of the
predecessor ) In the latter decision , the Board stated at 305
The acquisition of the physical assets of the predecessor by the succes-
sor is not a determinative factor But, where the majority of the employ-
ees hired by the employer are former employees of the predecessor, doing
essentially the same work , a successor relationship obligating the suc-
cessor to bargain with the representative of the predecessor's employees
has been found even though the successor 's employee complement is
smaller than its predecessor 's [Footnotes omitted and emphasis sup-
plied.]
14 However, one should not lose sight of the fact that the Board, in de-
termining a new employer's obligation to bargain with the union which
represented the predecessor 's employees , does not rely on any one factor
exclusively , but looks to all the factors which might have any relevance on
(I) the continuity of the employing industry, and (2) employees' desires with
regard to continued representation Consequently the Board in certain
cases has found that the new employer did not succeed to the bargaining
obligation of the predecessor, even though the new employer hired most of
its employees from the bargaining unit of the predecessor because other
circumstances were present which provided grounds for questioning the
union's majority status or the continuity of the employing industry See, e g ,
Atlantic Technical Services Corporation, 202 NLRB 300 (1973), enfd 86
LRRM 2182 (C A D.C, 1974) (where the new employer took over only a
minuscule part of the predecessor 's bargaining unit, and these employees
never had an opportunity to express themselves on union representation
because they had been accreted into the larger bargaining unit by agreement
of the parties), Lincoln Private Police, Inc, as Successor to Industrial Security
Guards, Inc, 189 NLRB 717 (1971) (where the Board found, after consider-
ing all the circumstances of the new employer's operations , that the new
employer was operating an entirely new and independent business enter-
prise) in this latter case, the Board stated at 720
While we do not mean to imply by our decision herein that succes-
sorship can never be found where the new employer acquires less than
the predecessor 's entire business , or hires less than a majority of the
predecessor employer's workforce-indeed the Board has held other-
wise in prior cases [Footnote omitted] -we do require in such circum-
stances that other sufficient criteria exist which, in balance , warrant a
finding that there has been no basic change in the employing industry
533
Although the Court was not presented the issue in
Burns, since the number of former Wackenhut em-
ployees retained by Burns sat(sifted both standards,
it is clear that the Court was using as its standard the
relative composition of the work force actually hired
by the new employer. Thus, the Court stated at 406
U.S. at 281:
But where the bargaining unit remains un-
changed and a majority of the employees hired by
the new employer are represented by a recently
certified bargaining agent there is little basis for
faulting the Board's implementation of the ex-
press mandates of §8(a)(5) and §9(a) by ordering
the employer to bargain with the incumbent
union [Emphasis supplied.]
And the Court stated at 406 U.S. at 279:
It has been consistently held that a mere change
of employers or of ownership in the employing
industry is not such an "unusual circumstance"
as to affect the force of the Board's certification
within the normal operative period if a majority
of employees after the change of ownership or man-
agement were employed by the preceding employer.
[Emphasis supplied.]
Further evidence that the Court was using the new
employer's work complement in determining whether
sufficient former unit employees have been retained
to require the new employer to bargain with the certi-
fied bargaining representative comes in the context
of the Court's discussion of when a new employer
has an obligation to bargain over the fixing of its
initial terms. Thus, the Court stated that ordinarily a
new employer is free to set initial terms on which it
will hire the employees of a predecessor, and ex-
plained why in the very next sentence at 406 U.S. at
295:
. . , it may not be clear until the successor em-
ployer has hired his full complement of employ-
ees that he has a duty to bargain with a union,
since it will not be evident until then that the
bargaining representative represents a majority
of the employees in the unit as required by §9(a)
of the Act. . . .
On the other hand, where as in the present case there has been no substan-
tial change in the employing industry and the only real change is in the size
of the employee complement, we see no reason to require the bargaining
representative to prove its majority status anew where the new employer
retains as a majority of its smaller work complement , employees from the
predecessor's bargaining unit and where , as here , it is still within the certifi-
cation year N L R B v Albert Armato and Wire & Sheet Metal Spec ialti
Co, 199 F 2d 800 (C A 7. 1952), Makela Welding, Inc, and Kemp Welding,
Inc v N L R B 387 F 2d 40 (C A 6, 1967), enfg 159 NLRB 964 (1966)
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from the context that the "majority" there
referred to by the Court was to be determined from
the new employer 's work complement,15
Finally, Respondent's contention that it was only
for a few days after August 28 that a majority of its
15 See N L R B v Polytech, Incorporated, 469 F 2d 1226. 1230 (C A 8,
1972), enfg 186 NLRB 984 (1970) In his dissent , Member Kennedy relies
to a large extent on certain language by the Supreme Court in its decision in
Howard Johnson Company v Detroit Local Joint Executive Board Hotel and
Restaurant Employees and Bartenders, International Union , AFL-CIO, 94 S
Ct 2236, 2244, (1974), which seems on its face to suggest that the Court
requires that a majority of the predecessor's employees be retained by the
new employer in order for there to be sufficient continuity in the identity of
the business entity for the new employer to be held to the predecessor's
labor obligations However , the Court there was addressing itself to labor
obligations under Sec 301, relating to the circumstances under which a new
employer will be held bound by the grievance- arbitration clause in the
predecessor 's contract The Court itself said in that same decision at 2243
In 9
The question whether Howard Johnson is a "successor" is simply not
meaningful in the abstract Howard Johnson is of course a successor
employer in the sense that it succeeded to operation of a restaurant and
motor lodge formerly operated by the Grissoms But the real question
in each of these "successorship" cases is , on the particular facts, what
are the legal obligations of the new employer to the employees of the
former owner or their representative The answer to this inquiry re-
quires analysis of the interests of the new employer and the employees
and of the policies of the labor laws in light of the facts of each case
and the particular legal obligation which is at issue , whether it be the
duty to recognize and bargain with the union , the duty to remedy un-
fair labor practices , the duty to arbitrate , etc There is, and can be, no
single definition of "successor" which is applicable in every legal con-
text A new employer, in other words, may be a successor for some
purposes and not for others
Thus, while the Court may have been indicating in its Howard Johnson
decision that it will require a showing that a majority of the predecessor's
employees have been retained by the alleged successor before it will hold a
new employer to be bound by an arbitration clause in the predecessor's
contract , we do not read that decision as announcing a departure from the
differing requirement applicable to determining the existence of a duty to
bargain Nothing in Howard Johnson indicates a disposition on the part of
the Court to depart from its Burns doctrine in which the Court found a
continuing duty to bargain "if a majority of employees after the change in
ownership or management were employed by the preceding employer" It is
worth noting in this regard that in Burns the Court did not impose contrac-
tual obligations on the successor , just as it did not impose contractual arbi-
tral requirements on the employer in Howard Johnson It nevertheless did
impose a duty to bargain in Burns, as we are doing here In our view, such
a distinction is supportable, in that the entrepreneurial considerations which
the Court gave great weight in Burns may well have been deemed sufficient-
ly important so as to militate against imposing a full set of contractually
inherited requirements on the new owner or operator of a business except in
very limited kinds of cases Yet the statutory policies favoring employee
rights to be represented collectively may well be construed by the courts-
and surely by this Board whose duty it is to implement those facets of public
policy-to be more significant than considerations of purely private con-
tract law
Thus the somewhat less stringent requirement of Burns seems to us quite
properly to be the appropriate one for deciding representational rights, even
though the Court has established a more stringent test for determining con-
tractual rights in a Sec 301 proceeding See also Zim's Foodliner, inc v
N L R.B, 495 F 2d 1131 (C A 7, 1974)
We would also distinguish N L R B v John Stepp's Friendly Ford, Inc
338 F 2d 833 (C A 9, 1964), and International Association of Machinists
District Lodge 94, AFL-CIO, v N L R B, 414 F 2d 1135 (C A D C. 1969),
cited by Member Kennedy in his dissent Unlike the circumstances here in
both of those cases the new employer 's work complement was not composed
of a majority of employees that had come from the predecessor 's bargaining
unit
work complement was composed of former Electric
employees is contradicted by the facts stipulated to
by the parties. From the data provided therein relat-
ing to dates of hire and termination of the employees
who had previously worked for Electric and those
who had not, it is clear that, at least from August 28
to October 5, a majority of Respondent's work com-
plement had previously worked in the Electric certi-
fied bargaining unit. Moreover, even assuming, ar-
guendo, that the Respondent's work force composi-
tion changed on and after October 5, that would still
not affect our determination to issue a bargaining
order to remedy Respondent's unlawful refusal to
bargain before that time.
Consequently, we find that Respondent succeeded
to the bargaining obligations of Electric on and after
August 28, when a majority of its work force was
composed of former Electric employees from the cer-
tified unit.16
2. Prior obligation to bargain
While we have found above that Respondent satis-
fied all the requisite elements for succeeding to the
bargaining obligations of Electric at least by August
28, there remains the issue of whether Respondent
had any obligation to bargain with the Union even
prior to that date. The complaint alleges Respondent
to have succeeded to the bargaining obligations of
the predecessor since on or about August 13, the date
which Respondent announced, in its letter to the 21
employees, that it intended to commence operations,
and the same date on which the Union requested
Respondent to bargain. Accordingly, the complaint
alleges that Respondent violated Section 8(a)(5) and
(1) of the Act in refusing to bargain with the Union
since that date, and by subsequently instituting its
initial terms and conditions of employment without
first consulting with the Union." For the reasons de-
veloped below, we find that Respondent had no obli-
gation to bargain prior to August 28.
In the context of discussing a new employer's obli-
gation to bargain over the setting of initial terms, the
Supreme Court in Burns gave us some general guide-
lines as to when the bargaining obligation attaches:
16 Mahela Welding, Inc, and Kemp Welding, inc, 159 NLRB 964 (1966),
enfd 387 F 2d 40 (C A 6, 1967), where the Board found the new employer
to have succeeded to the bargaining obligations of the predecessor under
circumstances similar to those present here
17 As noted earlier, Charging Party additionally contends that Respon-
dent independently violated Sec 8(a)(1) of the Act by its conduct on August
6 in sending the form letter offers of employment to 21 of the striking 38
Electric employees It vigorously contends that this conduct bypassed and
undermined the Union However since this contention goes beyond the
allegations in the complaint , we cannot properly consider it
UNITED MAINTENANCE & MANUFACTURING CO
Although a successor employer is ordinarily
free to set initial terms on which it will hire the
employees of a predecessor, there will be in-
stances in which it is perfectly clear that the new
employer plans to retain all of the employees in
the unit and in which it will be appropriate to
have him initially consult with the employees'
bargaining representative before he fixes terms.
In other situations, however, it may not be clear
until the successor employer has hired his full
complement of employees that he has a duty to
bargain with a union, since it will not be evident
until then that the bargaining representative rep-
resents a majority of the employees in the unit as
required by §9(a) of the Act, 29 U.S.C. § 159(a).
[406 U.S. 272 at 294-295.]
We recently had occasion to consider these stan-
dards in Spruce Up Corporation 11 and Anita Shops,
Inc., d/b/a Arden's.19 In Arden's, the new employer
announced to the employees of the predecessor
about 2 weeks prior to takeover that it had purchased
the operations and that it intended to retain them as
its own employees. A few days prior to takeover the
new employer addressed a letter to the union repre-
senting the predecessor's employees, wherein it indi-
cated its intention to retain the predecessor's employ-
ees and recognize and bargain with the union upon
being requested to do so. The new employer further
indicated in its letter , however, that it was not legally
obligated to adopt the terms of the predecessor's con-
tract and that, pending negotiations, it would install
the terms and conditions of employment that it had
in effect at other locations. The union did not receive
the letter until the date of takeover, and did not re-
spond until some 2 weeks later when it requested the
new employer to continue in effect the terms prevail-
ing under the predecessor. On the date of takeover,
the new employer, consistent with its announced in-
tention as set out in its letter to the union, offered
each employee, as he appeared for work, employ-
ment under its prevailing terms of employment
(which were less favorable to the employees than
those prevailing under the predecessor) on a take-it-
or-leave-it basis. All the employees accepted.
On those facts, a majority of the Board held that
the new employer was free to institute the new terms
of employment on the date of -takeover without bar-
gaining with the union. In so concluding, the majori-
ty considered it significant that the new employer
had not committed itself or misled the employees
into believing that it would continue the terms and
18 209 NLRB 194 (1974)
i9 211 NLRB 501 (1974)
535
conditions of the predecessor. Therefore, the majori-
ty reasoned, the new employer was not changing
terms, but instituting its initial terms, as it was free to
do unilaterally since the union had not requested it
to bargain up till that point.20
In Spruce Up, the successor-employer told the
union, almost a month before it was scheduled to
take over operations, that it intended to retain all of
the incumbent employees, but at the same time told
the union that it intended to provide less advanta-
geous commission rates. The great bulk of the incum-
bent employees refused to accept employment on
those terms, and instead commenced picketing. The
successor eventually filled out his work complement
with former employees who crossed the picket lines
and other individuals who had not worked for the
predecessor. The majority of the Board held that the
new employer had not committed any violation in
setting its initial terms without consulting with the
union, since only subsequently did it become clear
that a majority of its work force would be composed
of individuals who had worked in the certified bar-
gaining unit of the predecessor. The Board majority
stated there
Although, at the February meeting, Fowler
[the new employer] expressed a general willing-
ness to hire the barbers employed by the former
employer, he at the same time indicated that he
was going to be paying different commission
rates. Fowler thereby made it clear from the out-
set that he intended to set his own initial terms,
and that whether or not he would in fact retain
the incumbent barbers would depend upon their
willingness to accept those terms. When an em-
ployer who has not yet commenced operations
announces new terms prior to or simultaneously
with his invitation to the previous work force to
accept employment under those terms, we do
not think it can fairly be said that the new em-
ployer "plans to retain all of the employees in
the unit," as that phrase was intended by the
Supreme Court. The possibility that the old em-
ployees may not enter into an employment rela-
tionship with the new employer is a real one, as
illustrated by the present facts. Many of the for-
mer employees here did not desire to be em-
ployed by the new employer under the terms set
by him-a fact which will often be operative,
and which any new employer must realistically
anticipate. Since that is so, it is surely not "per-
fectly clear" to either the employer or to us that
20 Member Fanning , though agreeing with the result in Arden 's, did so for
different reasons Member Penello , for the reasons set forth in his dissent
would have found a refusal to bargain concerning initial terms and condi-
tions of employment
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he can "plan to retain all of the employees in the
unit" under such a set of facts.
Applying the above precedent to the facts here, we
find that here, as much as in Spruce Up, it would be
pure speculation to say that, without question, a suf-
ficient number of those offered employment would
have accepted it, so as to have established the
Union's continuing representative status, but for
Respondent's refusal to recognize and bargain with
the Union. True, here there was no indication that
Respondent intended to condition employment on
the acceptance of less favorable terms, as was the
case in Spruce Up. But here it is equally clear that the
employees would not accept an offer of the same
terms of employment provided by the predecessor, as
evidenced by the fact that they had been striking the
predecessor for over 4 months in order to improve
those terms. Indeed, the very duration of the strike
makes it likely that some of the 21 individuals of-
fered employment may no longer have been avail-
able for employment for one reason or another.
Nor is there any evidence that Respondent's im-
proved terms, initiated on August 20, were any more
acceptable to the striking Electric employees. Thus,
there is no indication in the record whatsoever that
the only reason the Union continued its picketing
was because Respondent refused to recognize and
bargain with it. Instead, it seems likely that
Respondent's improved terms on August 20 went
only part of the way in meeting the Union's demands
against the predecessor, Electric, which resulted in
the original strike.
For the foregoing reasons, we do not believe that
there is sufficient evidence here that a majority of the
predecessor's employees would unquestionably com-
pose Respondent's work force at any time prior to
August 28, when it actually hired a majority, and we
therefore do not find that Respondent had any obli-
gation to bargain prior to that date. Similarly, as in
Arden's, supra, there is no evidence that Respondent
changed the terms and conditions of employment,
which we have already found it was free to set on
August 20, at any time after its obligation to bargain
with the Union attached on August 28. Accordingly,
we shall dismiss so much of the complaint as alleges
that Respondent was obligated to bargain with the
Union when the Union requested it to do so on Au-
gust 13, and was obligated to consult with the Union
prior to establishing its initial terms on August 20.21
2i Members Fanning and Penello would also find that Respondent was
obligated to bargain with the Union when it was requested to do so on and
after August 13 including bargaining over the initial terms of employment
offered by Respondent Under their interpretation of the applicable Burns
"plans to retain" language, excerpted above, they would find a successor
IV. REMEDY
Having found that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to recognize
and bargain with the Union on and after August 28,
1973, we shall order it to cease and desist therefrom
and, affirmatively, to bargain with the Union upon
request.
General Counsel contends that the employees'
economic strike against Electric was transformed
into an unfair labor practice strike against Respon-
dent by Respondent's unlawful refusal to recognize
and bargain with the Union. When faced with a simi-
lar contention in Spruce Up Corporation, supra, we
employer obligated to bargain with the representative of the predecessor's
employees as soon as it manifests an intent to look primarily to the
predecessor's unit employees to fill its work force For a more detailed
exposition of their individual positions, see their separate dissents in Spruce
Up Corporation, supra and their dissent in The Boeing Company. 214 NLRB
No 32 ( 1974) Notwithstanding their disagreement here with the decision's
failure to find Respondent obligated to bargain with the Union over the
initial terms of employment on and after August 13, and to provide an
appropriate remedy therefor, they join in the remedy provided since they do
not have a majority for their position
Like Chairman Miller and Member Jenkins, Members Fanning and Pe-
nello disagree with Member Kennedy that successor status depends on
whether a majority of the predecessor's employees are retained by the suc-
cessor However, they believe, as the Court said in Howard Johnson, supra,
that successorship "requires analysis of the interests of the new employer
and the employees and of the policies of the labor laws in light of the facts
of each case and the particular legal obligation which is at issue ," and that
employee complement is but one factor among many to be considered
Accordingly, they do not believe that in every case there must be an abso-
lute majority of the predecessor's employees before a duty to bargain can be
found See their separate dissents in Spruce Up Corporation, supra, and their
dissent in Boeing. supra, Polytech, Incorporated, 186 NLRB 984 (1970), enfd
469 F 2d 1226 (C A 8 1972)
Chairman Miller and Member Jenkins interpret the Supreme Court's lan-
guage in Burns as requiring more than a mere showing of a manifestation of
intention on the part of the new employer to retain all the former unit
employees they interpret this language in context as also requiring that
there he some substantial likelihood that those offered employment will
accept it on the terms offered by the new employer See their positions as
expressed in the majority decision in Spruce Up Corporation, supra Their
reason for so interpreting Burns to require that this additional element be
present is that they do not believe the Supreme Court intended to impose on
the new employer an obligation to bargain prior to takeover under circum-
stances where, after takeover, the new employer has actually hired less than
a majority of its work force from the predecessor's complement For pre-
sumably in the latter situation the new employer would not have an obliga-
tion to bargain after its employee complement has been established, since
the presumption of the continuing majority status of the union has been lost
by the relative makeup of its work force Consequently any prior bargain-
ing would arguably be subject to attack under Sec 8(a)(2) of the Act, since
it would amount to recognition and bargaining with a union which did not
have majority status or even the presumption of same with respect to the
employer's "employees -
Accordingly, Chairman Miller and Member Jenkins are of the view that
the only useful standard for determining a new employer's obligation to
bargain with the representative of the predecessor's employees prior to com-
mencing operations is on the basis of (I) how many employees of the prede-
cessor are not only offered employment by the new employer but actually
accept it thereby becoming the new employer's "employees" for purposes
of Sec 8(a)(5) of the Act (see Member Jenkins' partial dissent in ChentrocA
Corporation, 151 NLRB 1074, 1085 (1965) ), and (2) from the date when a
sufficient number of the former unit employees who have been offered em-
ployment, clearly manifest their acceptance of same and their availability
for work, so that from that date it is clear that a majority of the employer's
work complement will be composed of former unit employees
UNITED MAINTENANCE & MANUFACTURING CO
adopted the Administrative Law Judge's recommen-
dation that the individuals who had withheld their
services from the new employer could not be treated
as unfair labor practice strikers because they had
never become "employees" of the new employer."
Although in Spruce Up we ultimately ordered the re-
spondent to offer immediate reinstatement to certain
of the former employees who had previously uncon-
ditionally offered to return to work (on the rationale
that these employees would have been offered em-
ployment and clearly would have accepted it were it
not for the respondent's unlawful refusal to bargain),
such a remedy is not warranted here since there is no
evidence that any of the 21 former Electric employ-
ees offered employment by Respondent ever ten-
dered an unconditional offer to return to work.23
CONCLUSIONS OF LAW
1. United Maintenance & Manufacturing Co.,
Inc., is an employer engaged in commerce or opera-
tions affecting commerce within the meaning of the
Act.
2. Since January 3, 1973, the Union has been the
exclusive representative of the following employees
pursuant to Board certification:
All production and maintenance employees, in-
cluding truckdrivers and helpers, of the Employ-
er at its Morgantown, West Virginia location;
excluding office clerical employees and guards,
professional employees and supervisors as de-
fined in the Act.
3. On and after August 28 , 1973, United Mainte-
nance succeeded to the bargaining obligations of its
predecessor , United Electric & Machine Company,
Inc., under the foregoing certification , and has since
that date violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Union
as the exclusive representative of its employees in the
22 We leave to the compliance stage of this proceeding any issue with
regard to the four employees who allegedly withheld their services from
Respondent out of respect for the Union 's resumed picketing on September
22. These employees would of course be entitled to reinstatement upon their
unconditional offer to return to work if it is established that they terminated
their employment in support of the Union 's concerted activity since they
would then have taken on the status of unfair labor practice strikers
23 Members Fanning and Penello would order Respondent to offer rein-
statement to the 21 employees to whom it originally offered employment on
August 6 As noted earlier , they believe that Respondent was obligated to
recognize and bargain with the Union when the Union requested it to do so
on August 13 and , accordingly , they believe that, had Respondent honored
its bargaining obligation , the 21 former Electric employees offered employ-
ment would have accepted it and returned to work For the same reasons.
Members Fanning and Penello would also order Respondent to place the
names of the 17 employees not offered employment on August 6 on a pref-
erential hiring list
537
above-described unit.
4. The foregoing is an unfair labor practice affect-
ing commerce within the meaning of the Act.
5. All other complaint allegations, not specifically
found above, are hereby dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that the Respondent,
United Maintenance & Manufacturing Co., Inc.,
Morgantown , West Virginia , its officers , agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Steelworkers of America , AFL-CIO-CLC, as the ex-
clusive bargaining representative of the following
unit.
All production and maintenance employees, in-
cluding truckdrivers and helpers, of the Employ-
er at its Morgantown, West Virginia location;
excluding office clerical employees and guards,
professional employees and supervisors as de-
fined in the Act.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form, loin, or
assist the above-named Union, or any other labor
organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
other concerted activities guaranteed by Section 7 of
the Act, for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the
Act:
(a) Upon request, bargain with the above-named
Union as the exclusive representative of the employ-
ees in the unit defined above with respect to wages,
hours, and other terms and conditions of employ-
ment and, if an agreement is reached, embody it in a
signed contract.
(b) Post at its Morgantown, West Virginia, plant
copies of the attached notice marked "Appendix. 24
Copies of said notice, on forms provided by the Re-
gional Director for Region 6, after being duly signed
by Respondent's representative, shall be posted by
24 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board -
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable 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 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER KENNEDY, dissenting:
I do not believe Respondent was obligated to bar-
gain with the Union because "there was plainly no
substantial continuity of the identity in the work
force" after Respondent began operation of the
plant. Howard Johnson Company v. Detroit Local
Joint Executive Board, Hotel and Restaurant Employ-
ees and Bartenders, International Union, AFL-CIO,
94 S.Ct. 2236 (1974).
In the Howard Johnson case, the Supreme Court
held inapplicable its decisions in Wiley 25 and Burns 26
to a situation in which the new operator hired only 9
of a total of 53 employees of the predecessor. Under
such circumstances, the Court held that the new em-
ployer could not be compelled to arbitrate by the
union representing the predecessor's employees. Un-
like dissenting Justice Douglas, the majority found
no significance in the fact that the "business contin-
ued without interruption at the same location, offer-
ing the same products and services to the same pub-
lic, under the same name and in the same manner,
with almost the same number of employees." The
majority opinion stated (94 S.Ct. at 2244):
This continuity of identity in the business enter-
prise necessarily includes, we think, a substantial
continuity in the identity of the work force across
the change in ownership. The Wiley Court seem-
ingly recognized this, as it found the requisite
continuity present there in reliance on the
"wholesale transfer" of Interscience employees to
Wiley. Ibid. This view is reflected in the empha-
sis most of the lower courts have placed on
whether the successor employer hires a majority of
the predecessor's employees in determining the le-
gal obligations of the successor in §301 suits un-
der Wiley. [Footnote omitted.] This interpreta-
tion of Wiley is consistent also with the Court's
concern with affording protection to those em-
ployees who are in fact retained in "the transl-
tion from one corporate organization to anoth-
er" from sudden changes in the terms and con-
ditions of their employment, and with its belief
that industrial strife would be avoided if these
employees' claims were resolved by arbitration
rather than by "the relative strength . . . of the
contending forces." 376 U.S., at 549, 84 S.Ct., at
914, quoting United Steelworkers v. Warrior &
Gulf Navigation Co., 363 U.S. 574, 580.. .
(1960). At the same time, it recognizes that the
employees of the terminating employer have no
legal right to continued employment with the
new employer, and avoids the difficulties inher-
ent in the union's position in this case. This
holding is compelled, in our view, if the protec-
tion afforded employee interests in a change of
ownership by Wiley is to be reconciled with the
new employer's right to operate the enterprise
with his own independent labor force.
Since there was plainly no substantial continuity
of identity in the work force hired by Howard
Johnson with that of the Grissoms, and no express
or implied assumption of the agreement to arbi-
trate, the courts below erred in compelling the
Company to arbitrate the extent of its obligations
to the former Grissom employees. Accordingly, the
judgment of the Court of Appeals must be reversed.
[Emphasis supplied.]
Reversed.
Turning to the facts in the instant case, it appears
that Respondent never had in its employ more than 9
of the 38 former employees of Electric at any time
prior to the hearing.27Plainly there is no substantial
continuity of identity in the work force hired by Re-
spondent with that of the predecessor Electric.
There is no substantial continuity of identity of the
work force when the new employer hires a small mi-
nority of the predecessor's employees. Respondent's
work complement has never comprised as much as
27 The record reflects the following with respect to Respondent's employ-
ment complement of employees on various dates
August 24 4 employees, 2 old and 2 new
August 28 10 employees, 7 old and 3 new
August 31 13 employees, 8 old and 5 new
September 7 14 employees, 9 old and 5 new
September 21 15 employees, 9 old and 6 new
September 23 11 employees, 6 old and 5 new
October 5 12 employees, 6 old and 6 new
October 9 11 employees, 6 old and 5 new
October 10 12 employees, 6 old and 6 new
October 23 13 employees, 6 old and 7 new
November 6 14 employees, 6 old and 8 new
November 19 14 employees, 6 old and 8 new
November 26 15 employees, 6 old and 9 new
December 7 14 employees, 6 old and 8 new
25John Wiley & Sons, Inc, v Livingston, 376 U S 543 (1964)
January 7
January 8
15 employees, 7 old and 8 new
16 employees 8 old and 8 new
26 N L R B v Burns International Security Services, Inc, 406 U S 272 January 30 15 employees, 8 old and 7 new
(1972)
UNITED MAINTENANCE & MANUFACTURING CO. 539
25 percent of the former employees of Electric. In
Howard Johnson, the Supreme Court emphasized that
there was a successor obligation in Wiley because of
"the wholesale transfer of Interscience employees to
Wiley." In the instant case, there has been no
"wholesale transfer" of Electric's employees to Re-
spondent. The similarities in the mathematics of this
case and Howard Johnson compel us to follow the
Howard Johnson decision. That decision is in accord
with earlier precedent. Judge Leventhal of the Circuit
Court of Appeals for the District of Columbia has
observed that: "The cases involving the presumption
of full majority status for a certified union are pri-
marily instances where the purchasing enterprise has
retained all or most of the old employees." 28 The
ninth circuit refused enforcement of John Stepp's
Friendly Ford, Inc., 141 NLRB 1065 (1963), enfd. 338
F.2d 833, 836 (1964). There the new employer hired
only 3 employees of the former employer in a unit of
12 salesmen . The court ruled that the certification
did not survive the change in ownership. The per-
centage of the old employees retained by the new
operator in John Stepp's is approximately the same as
in the instant case.
My colleagues concede in footnote 15 that the
Howard Johnson decision "seems on its face to sug-
gest that the Court requires that a majority of the
predecessor's employees be retained by the new em-
ployer" to justify imposition of a bargaining obliga-
tion on Respondent. They decline to apply that deci-
sion to the instant case because the successorship
question there arose under Section 301 of the Act. I
do not perceive the logic in the distinction which my
colleagues find "supportable." The distinction adopt-
ed by my colleagues is contrary to the views ex-
pressed by this Board during the past 2 decades. As I
pointed out in footnote 17 of my opinion in Spruce
Up Corporation, 209 NLRB 194 (1974), Member Fan-
ning correctly stated in a 1967 speech to the Texas
Bar Association that in deciding whether the "em-
ploying industry" remains the same the Board relies
on a set of criteria which includes "(3) whether he has
the same or substantially the same work force." Why
does this Board now decide to eliminate this criteria
in deciding successorship in unfair labor practice
cases when the Supreme Court found it to be decisive
in Section 301 litigation?
In our recent decision in Georgetown Stainless Mfg.
Corp., 198 NLRB 234 (1972), we affirmed the dis-
missal of the complaint by the Administrative Law
Judge. We did not disavow the statement of the Ad-
ministrative Law Judge who set forth that the Board
has evolved over the years a set of criteria for resolv-
ing successorship issues which includes whether the
new employer "has the same or substantially the
same work force." 29 Manifestly, in Howard Johnson
the Supreme Court adopted the same test for Section
301 actions that the Board has traditionally applied
in unfair labor practice cases.
Nor do I believe the Supreme Court's decision in
Burns supports the conclusion of my colleagues here-
in. The Court's conclusion in Burns rested on the
finding that Burns' Lockheed work force of 42 em-
ployees consisted of 27 guards who had formerly
been employed by Wackenhut. On page 8 of its peti-
tion for a writ of certiorari, the Board urged that "an
employer who takes over the business of another em-
ployer, and continues to operate it in essentially the
same manner with a large proportion of the former em-
ployees, is a `successor' employer for purposes of the
National Labor Relations Act." (Emphasis supplied.)
The composition of the work force in Burns was such
that the Supreme Court's decision cannot be con-
strued as sanctioning a bargaining order where, as
here, the new employer's work force includes a small
minority of the former employees.
There is no evidence in this record tending to
prove that the Union has been selected by a majority
of Respondent's employees to represent them. No
one knows how any of the nine former Electric em-
ployees voted in the earlier Board election. The so-
called expertise of this Board provides no basis for it
to assume, surmise, or presume that all or any of the
nine former employees supported the Union. The
Board has dismissed the representation petition
which would have provided the employees an oppor-
tunity to express their desires in a secret ballot elec-
tion. There is no claim that the Employer has en-
gaged in any conduct which would have prevented
the employees from making a free choice.
I have previously indicated that, where substantial-
ly all of the former employees are hired by a new
owner, it is proper for this Board to presume that the
ratio of union supporters to nonunion employees af-
ter the change of ownership remains the same as be-
fore the change.30 But where the new operator hires
less than 25 percent of the former employees and
they are crossing the union's picket line to report to
work, there is no reason to assume that the union
enjoys majority support among the employees of the
new employer.
29 On p 6 of his sl op , the Administrative Law Judge listed the same
seven criteria for determining successorship that the Board has incorporated
in its enforcement briefs for years For example , see the Board's brief to the
ninth circuit in Golden State Bottling Co, et at, Nos 71-1290 and 71-1324,
p 11, brief to the second circuit in the William J Burns International Detet-
nve Agency, Inc, No 34889. p 17
28 International Association of Machinists, District Lodge 94, AFL-CIO v 30 See my concurrence and dissent in Spruce Up Corporation. 209 NLRB
NLRB , 414 F 2d 1135 (1969) 194
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In my opinion, no statutory policy is implemented
by a bargaining order since there is no basis for find-
ing that the Union represented a majority of the em-
ployees after the change in ownership. My colleagues
ignore the statutory policy banning recognition of a
minority union. International Ladies' Garment Work-
ers' Union, AFL-CIO v. N.L.R.B., 366 U.S. 731
(1961). It is not the prerogative of this Board, under
the guise of effectuating statutory policy, to choose a
union as bargaining representatives for employees.
The statute guarantees employees the right to make
the choice and it does not empower this Board to
make the choice for them.
Since there was not a substantial continuity of
identity in the work force after the change in opera-
tions, Respondent was not obligated to bargain with
the Union, and the complaint should be dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate the
purposes of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT refuse to bargain collectively
with United Steelworkers of America, AFL-
CIO-CLC, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our employees
in the exercise of their right to self -organization,
to form , join, or assist the above -named Union,
or any other labor organization , to bargain col-
lectively through representatives of their own
choosing, and to engage in any other concerted
activities for the purposes of collective bargain-
ing or other mutual aid or protection , or to re-
frain from any or all such activities.
WE WILL, upon request , bargain collectively
with the said Union as the exclusive representa-
tive of all our employees in the appropriate unit
with respect to wage increases and related mat-
ters, and , if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees,
including truckdrivers and helpers , of the Em-
ployer at its Morgantown , West Virginia loca-
tion ; excluding office clerical employees and
guards, professional employees and supervi-
sors as defined in the Act.
UNITED MAINTENANCE &
MANUFACTURING CO., INC.