Worcester Mfg.

National Labor Relations Board - Board Decisions

Jan 29, 1992

306 N.L.R.B. 218 (N.L.R.B. 1992)

218
306 NLRB No. 39
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In sec. III, par. 3, of his decision, the judge inadvertently referred
to certain events as having occurred in 1988. The correct year is
1989.
2 The judge’s recommended Order includes a visitatorial clause.
We find no need for such a remedial provision here. See Cherokee
Marine Terminal, 287 NLRB 1080 (1988).
3 NLRB v. Burns Security Services, 406 U.S. 272 (1972).
Level, a Division of Worcester Manufacturing, Inc.
and Local 154–136 BFW, International Union
of Electronic, Electrical, Salaried, Machine and
Furniture Workers, AFL–CIO. Case 1–CA–
27007
January 29, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On May 9, 1991, Administrative Law Judge Lowell
M. Goerlich issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed a brief in response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, as explained below, and to adopt the rec-
ommended Order as modified and set out in full
below.2
The judge found that the Respondent, as a Burns3
successor, violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Union
and by making certain unilateral changes in its em-
ployees’ rates of pay and benefits. The judge addition-
ally found that the Respondent violated Section 8(a)(1)
of the Act by telling employees that it expected to op-
erate nonunion and, further, that this conduct tainted
the Respondent’s asserted good-faith doubt of the
Union’s majority status.
We agree with the judge’s findings and with his rec-
ommended make-whole remedy but only for the rea-
sons set forth below.
Background
On Friday, December 1, 1989, Mason & Parker
Mfg. Co., Inc., then a party to a collective-bargaining
agreement with the Union covering a unit of produc-
tion and maintenance employees, concluded an assets
sale to the Respondent, ceased operations, and laid off
its three unit employees. Sometime earlier that week,
Charles Flanagan, the Respondent’s president, had met
with the Mason & Parker unit employees to discuss the
pending sale.
Flanagan testified that at that meeting he informed
the employees that he would extend offers of employ-
ment to ‘‘some experienced people,’’ that the Re-
spondent was nonunion in Worcester and that ‘‘I
would expect that we would be able to operate in a
nonunion environment’’ in the Mason & Parker facil-
ity. James Kublbeck, a unit employee, testified that
Flanagan stated that unit employees ‘‘were all going to
be dismissed and all rehired’’ by the Respondent and,
additionally, that ‘‘the pays [sic] and benefits would
not change.’’
On Monday, December 4, 1989, the Respondent re-
sumed operation of the purchased business at the same
location. That same day, two of the three Mason &
Parker unit employees who had been laid off the pre-
vious Friday applied for employment with the Re-
spondent and were immediately hired to perform the
same work they had done for Mason & Parker. They
received the wages and health insurance called for in
the 1987–1990 collective-bargaining agreement. On
December 8 and 11, the Respondent hired two addi-
tional former Mason & Parker employees. The size of
the work force remained at four until March 1990
when the Respondent hired two more former unit em-
ployees. The four employees hired after December 4,
1989, had been on layoff status from Mason & Parker
at the time of the assets sale.
The Union requested recognition and bargaining on
December 8, 1989, and the Respondent refused to
comply with that request on January 10, 1990. The Re-
spondent, without having informed the employees of
any changes in their terms and conditions of employ-
ment before hiring them, proceeded on and after De-
cember 4, 1989, to make certain changes from the
terms and conditions originally established by the con-
tract between the Union and Mason & Parker without
offering at any time to bargain with the Union about
them. The Respondent discontinued the pension and
disability plans, eliminated vacation leave and then
later reinstated it, eliminated the ‘‘well day’’ policy,
and reduced funeral leave. The employees did not re-
ceive the contractual wage increase scheduled for Janu-
ary 1, 1990, although they did receive a unilaterally
determined increase in mid-1990.
The Judge’s Decision
The judge found, inter alia, that the Respondent’s
operations following the transfer of assets from Mason
& Parker constituted a substantial continuity in the em-
ploying enterprise and concluded that the Respondent
was a Burns successor with an obligation to recognize
and bargain with the Union representing its prede-
cessor’s employees. The judge further found the bar-
gaining obligation arose on the first day of operations,
December 4, 1989, when the entire initial unit em-
ployee complement of two consisted of former em-
ployees of the predecessor.
219WORCESTER MFG.
4 See Burns, supra at 294–295: ‘‘[T]here will be instances 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 representa-
tive before he fixes terms.’’
In finding the alleged refusal-to-bargain violation,
the judge rejected the Respondent’s defense that
antiunion statements by employees constituted an ob-
jective basis for a good-faith doubt of the Union’s ma-
jority status. The judge found that Flanagan’s state-
ment to the Mason & Parker employees at a pre-
employment meeting in late November that he ex-
pected to operate in a ‘‘nonunion environment’’ vio-
lated Section 8(a)(1). The Respondent, the judge held,
could not, in such circumstances, base a good-faith
doubt on employee sentiment against union representa-
tion expressed after the takeover in light of that viola-
tion. The judge stressed the Supreme Court’s observa-
tion that a predecessor’s employees, during their initial
period of employment with a successor, ‘‘might be in-
clined to shun support for their former union, espe-
cially if they believe that such support will jeopardize
their jobs with the successor.’’ Fall River Dyeing
Corp. v. NLRB, 482 U.S. 27, 40 (1987).
The judge also found that the Respondent further
violated Section 8(a)(5) by unilaterally changing, on
and after December 4, 1989, the wages, benefits, and
other terms and conditions of employment of its em-
ployees hired from Mason & Parker. The judge noted
that under the Burns rule a successor employer is ordi-
narily free to set the initial terms on which it will hire
the employees of a predecessor. He found, however,
that the ‘‘perfectly clear’’ exception to that rule applies
here.4 In particular, because the Respondent had stated
its intention, in late November 1989, to offer employ-
ment to all unit employees, it was obligated to consult
with the Union before departing from the existing
wages and benefits. Here, those wages and benefits
were established by the collective-bargaining agree-
ment between Mason & Parker and the Union. The
judge recommended a make-whole Order, relying on
State Distributing Co., 282 NLRB 1048 (1987), and
U.S. Marine Corp., 293 NLRB 669 (1989).
The Respondent’s Exceptions
While now conceding that it is a Burns successor,
the Respondent argues that its refusal to recognize the
Union did not violate Section 8(a)(5) because at that
time certain antiunion statements by its employees pro-
vided it with an objective basis for a good-faith doubt
of the Union’s majority status. Specifically, the Re-
spondent excepts to the judge’s finding that Flanagan’s
November 1989 statement that he ‘‘would expect’’ to
operate nonunion violated Section 8(a)(1) and tainted
the employees’ repudiation of the Union.
The Respondent further excepts to the finding of an
8(a)(5) violation with respect to unilateral changes and
to the corresponding remedy requiring it to reinstate
those terms and conditions of employment that were
not continued after it purchased its predecessor’s as-
sets. The Respondent argues that its due-process rights
have been violated because the General Counsel did
not seek to amend the complaint to allege unlawful
unilateral changes. The Respondent contends that the
General Counsel’s request of the judge at the hearing
for a status quo ante remedy, standing alone, provided
insufficient notice that the General Counsel was chal-
lenging the Respondent’s Burns right to set initial
terms. Further, the Respondent contends that, in the
absence of any 8(a)(3) discriminatory refusals to hire
the predecessor’s employees, the cases relied on by the
General Counsel and the judge to support the latter’s
remedy are inapposite.
Analysis
1. We agree with the judge that the Respondent vio-
lated Section 8(a)(1) of the Act by telling employees
that it would expect to operate nonunion. As discussed
more fully below, the Respondent’s statements to em-
ployees during the last week of November were suffi-
cient to establish a bargaining obligation under Spruce
Up Corp., 209 NLRB 194 (1974). By saying that it
would expect to operate nonunion, the Respondent was
telling its employees that it would not honor its statu-
tory obligation to bargain. Where, as here, an employer
tells employees of facts which generate an obligation
to bargain, and then tells them that it will not honor
that obligation to bargain, such conduct intefers with
the Section 7 right of employees to bargain through
their chosen representative. See also Kessel Food Mar-
kets, 287 NLRB 426, 429 (1987), enfd. 868 F.2d 881,
884 (6th Cir. 1989), and Fall River Dyeing, supra at
40.
2. The Respondent has raised a due-process excep-
tion to the judge’s finding that it violated Section
8(a)(5) and (1) through its unilateral implementation of
new terms and conditions of employment for unit em-
ployees and the judge’s recommendation that the Re-
spondent be ordered to reinstate the status quo ante.
The Respondent argues that it had inadequate notice,
i.e., that the unilateral change findings and the status
quo ante remedy are impermissible because the com-
plaint did not specifically allege that the General
Counsel would be seeking relief for unilateral changes.
We find that the General Counsel did give the Re-
spondent adequate notice. The complaint alleged, and
the Respondent denied in its answer, that the Respond-
ent had a bargaining obligation as a Burns successor.
It was in this context during the hearing that the coun-
sel for the General Counsel stated at the close of his
opening statement:
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See N.C. Coastal Motor Lines, 219 NLRB 1009 (1975), enfd.
542 F.2d 637 (4th Cir. 1976).
6 Also, Flanagan testified that he told the supervisors who actually
processed the hiring of the predecessor’s employees to tell the em-
ployees ‘‘nothing except that they would be extended an opportunity
to work for’’ the Respondent. Flanagan also stated that he did not
tell the supervisors to discuss wages or benefits with the employees
during the hiring process because ‘‘that was all covered’’ in his pre-
employment meeting with employees in late November.
7 Blitz Maintenance, 297 NLRB 1005 (1990); Kirby’s Restaurant,
295 NLRB 897 (1989).
8 We agree with the Respondent that the judge’s reliance on State
Distributing, supra, and U.S. Marine Corp., supra, is misplaced. Un-
like those cases, this case does not involve an employer whose viola-
tion of Sec. 8(a)(5) is grounded on the uncertainties created by a de-
liberate avoidance of successorship through discriminatory hiring.
Here, there is no violation of Sec. 8(a)(3) and the Respondent does
not contest its successorship status. Nothing in our Order is to be
construed as requiring rescission of any wage increase or other bene-
fits that have been granted the unit employees.
We would also add, for the General Counsel, that
as part of a remedy in the case we believe that
since the employer has not recognized the union,
has not made any attempts to contact the union,
to notify the union of any changes, because [of]
the way it took over its business the remedy
should be that it should restore the status quo
ante, as it existed prior to the Respondent taking
over as a successor. [Emphasis added.]
The judge then asked counsel for the General Counsel
if he was claiming that the Respondent had made uni-
lateral changes. The judge received an affirmative an-
swer. In these circumstances, and because the unilat-
eral changes are closely related to the complaint’s
successorship allegations, we reject the Respondent’s
contention that it had insufficient notice and oppor-
tunity to litigate the unilateral changes and the rem-
edy5 sought for them by the General Counsel.
3. Turning to the merits, we agree with the judge
that the Respondent violated Section 8(a)(5) by unilat-
erally changing its unit employees’ wages and benefits
on and after December 4, 1989. We find, based on em-
ployee Kublbeck’s credited testimony, that the Re-
spondent, in late November 1989, indicated its inten-
tion to retain its predecessor’s entire work force. We
further find that the Respondent, although on timely
notice that its Burns right to set initial employment
terms was in issue, failed to present evidence that it
had informed unit employees that the terms and condi-
tions of employment would differ from those under
Mason & Parker. Based on these facts, we agree with
the judge that the Respondent brought itself within the
special circumstances that Burns indicated would
oblige a successor employer to maintain the pre-
existing terms and conditions of employment while it
bargains with the incumbent union.
In Spruce Up Corp., 209 NLRB 194 (1974), the
Board considered the parameters of the ‘‘perfectly
clear’’ exception to the Burns rule that a successor is
entitled to set initial terms of employment. In that case,
the Board held that the exception was inapplicable in
a situation in which the successor declared its intention
to hire the predecessor’s employees and at the same
time offered continued employment only on different
terms. But the Board also stated in Spruce Up that the
‘‘perfectly clear’’ exception would apply if the suc-
cessor misled employees into believing that they would
all be retained without change in their terms and con-
ditions of employment or when the successor failed to
announce clearly its intent to alter terms and conditions
prior to offering employment to incumbent employees.
Id. at 195.
While the record reveals the Respondent’s intent to
retain all the incumbent employees, it is devoid of any
evidence of an offer of employment conditioned on
their accepting new terms. In fact, the credited testi-
mony shows that Flanagan told the Mason & Parker
employees that the wages and benefits would not
change.6 Accordingly, we conclude that this case falls
within the Burns exception because the Respondent
failed to take advantage of its Spruce Up opportunity
to ‘‘clearly announce’’ new terms before inviting the
predecessor’s employees to accept employment. Con-
sequently, the Respondent was obligated to bargain
with the Union before making any changes in existing
terms and conditions of employment.7 By unilaterally
discontinuing certain benefits and failing to grant a
January 1990 wage increase, the Respondent failed to
honor its bargaining obligation and thereby violated
Section 8(a)(5).
As noted above, the Respondent, on January 10,
1990, declined to recognize the Union. The Respond-
ent asserts that it had a good-faith doubt of majority
status. This asserted doubt was based on statements
from two employees between January 5 and 10. How-
ever, that claim must be assessed in the context of the
Respondent’s antecedent unfair labor practices–the
8(a)(1) statement about operating nonunion and the
8(a)(5) unilateral changes. In such circumstances, the
Respondent is not privileged to rely on an assertion of
doubt as a basis for its failure to recognize the Union.
Accordingly, we agree with the judge that the Re-
spondent, as a Burns successor, further violated Sec-
tion 8(a)(5) by refusing to recognize the Union.
We adopt the judge’s remedy and shall order the
Respondent to rescind all adverse unilateral changes
from the terms and conditions of employment that ex-
isted immediately before it became Mason & Parker’s
successor and to make the employees whole.8
ORDER
The National Labor Relations Board orders that the
Respondent, Level, a Division of Worcester Manufac-
221WORCESTER MFG.
9 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
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.’’
turing, Inc., Winchendon, Massachusetts, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain in good faith
with Local 154–136 BFW, International Union of
Electronic, Electrical, Salaried, Machine and Furniture
Workers, AFL–CIO as the exclusive collective-bar-
gaining representative of its employees in the fol-
lowing appropriate unit:
All production and maintenance employees em-
ployed by the Respondent at its Winchendon,
Massachusetts facility, excluding office and cler-
ical employees, professional employees, execu-
tives, foremen and all supervisory employees as
defined in the Act.
(b) Unilaterally changing rates of pay, wages, hours,
and other terms and conditions of employment for the
unit employees.
(c) Advising unit employees that it anticipated oper-
ating its plant nonunion.
(d) In any like or related manner interfering with,
restraining, 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 the Union as the exclusive representative of the
Respondent’s employees in the above unit, with re-
spect to the rates of pay, wages, hours, and other terms
and conditions of employment and, if an agreement is
reached, embody it in a signed agreement.
(b) On request of the Union, rescind any departures
from terms and conditions of employment that existed
immediately before the Respondent’s takeover from
Mason & Parker Mfg. Co., Inc., retroactively restoring
preexisting terms and conditions of employment, in-
cluding wage rates and benefit plans, and make the
employees whole by remitting all wages and benefits
that would have been paid in the absence of the unilat-
eral changes from December 4, 1989, until it nego-
tiates in good faith with the Union or to impasse. The
reimbursement of wages shall be computed as in Ogle
Protection Service, 182 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), plus interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987). The Respondent shall remit all payments it
owes to the employee benefit funds and reimburse its
employees in the manner set forth in Kraft Plumbing
& Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661
F.2d 940 (9th Cir. 1981), for any expenses resulting
from the Respondent’s failure to make these payments.
Any amounts that the Respondent must pay in to the
benefit funds shall be determined in the manner set
forth in Merryweather Optical Co., 240 NLRB 1213
(1979).
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its Winchendon, Massachusetts plant cop-
ies of the attached notice marked ‘‘Appendix.’’9 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 1, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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.
WE WILL NOT refuse to recognize and bargain in
good faith with Local 154–136 BFW, International
Union of Electronic, Electrical, Salaried, Machine and
Furniture Workers, AFL–CIO as the exclusive collec-
tive-bargaining representative of our employees in the
following appropriate unit:
All production and maintenance employees em-
ployed by the Employer at its Winchendon, Mas-
sachusetts facility, excluding office and clerical
employees, professional employees, executives,
foremen and all supervisory employees as defined
in the Act.
WE WILL NOT unilaterally change your rates of pay,
wages, hours, and other terms and conditions of em-
ployment.
WE WILL NOT advise you that we anticipate oper-
ating our plant nonunion.
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain collec-
tively with the Union as the exclusive representative of
the unit employees with respect to rates of pay, wages,
hours, and other terms and conditions of employment
and, if an agreement is reached, embody it in a signed
agreement.
WE WILL, on request of the Union, cancel any de-
partures from terms and conditions of employment that
existed immediately before our takeover of Mason &
Parker Mfg. Co., Inc., retroactively restoring pre-
existing terms and conditions of employment, includ-
ing wage rates and benefit plans. WE WILL make em-
ployees whole by remitting all wages and benefits that
would have been paid in the absence of such unilateral
changes from December 4, 1989, until we negotiate in
good faith with the Union to agreement or to impasse,
with interest. WE WILL remit any payments we owe to
benefit funds and reimburse our employees for any ex-
penses resulting from our failure to make the required
payments.
LEVEL, A DIVISION OF WORCESTER
MANUFACTURING, INC.
Avron J. Herbster, Esq., for the General Counsel.
Stephen T. Fanning, Esq., of Springfield, Massachusetts, for
the Respondent.
Keith E. Sweeney, Esq., of Gardner, Massachusetts, for the
Charging Party.
DECISION
STATEMENT OF CASE
LOWELL M. GOERLICH, Administrative Law Judge. The
original charge in this case filed by Local 154–136 BFW,
International Union of Electronic, Electrical, Salaried, Ma-
chine and Furniture Workers, AFL–CIO (the Union) on Janu-
ary 23, 1990, was served by certified mail on Level, a Divi-
sion of Worcester Manufacturing, Inc. (the Respondent), on
January 26, 1990. An amended charge filed by the Union on
February 26, 1990, was served by certified mail on Respond-
ent on February 27, 1990.
A complaint and notice of hearing was issued on March
16, 1990. It was alleged in the complaint that the Respond-
ent, as a successor employer, has failed to recognize and bar-
gain with the Union as an appropriate unit in violation of
Section 8(a)(1) and (5) of the National Labor Relations Act
(the Act).
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged.
The matter was heard on December 4 and 5, 1990, at Bos-
ton, Massachusetts. Each party was afforded a full oppor-
tunity to be heard, to call, examine and cross-examine wit-
nesses, to argue orally in the record, to submit proposed find-
ings of facts and conclusions, and to file briefs. All briefs
have been carefully considered.
On the entire in this case and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT, CONCLUSIONS, AND
REASONS THEREFOR
I. BUSINESS OF RESPONDENT
At all times material, Respondent, a corporation with its
principal office and place of business in Worcester, Massa-
chusetts, and with an office and place of business in
Winchendon, Massachusetts (Respondent’s Winchendon fa-
cility) has been engaged in the manufacture and sale of res-
taurant and institutional furniture and related products.
During the 12-month period ending January 31, 1990, Re-
spondent, in the course and conduct of its operations de-
scribed above, sold and shipped from its Worcester, Massa-
chusetts facility products, goods, and materials valued in ex-
cess of $50,000 directly to points outside the Commonwealth
of Massachusetts.
Based on a projection of the operations at its Winchendon
facility since on or about December 1, 1989, at which time
Respondent commenced its operations, Respondent, in the
course and conduct of its operations described above, will
annually sell and ship from its Winchendon, Massachusetts
facility products, goods, and materials valued in excess of
$50,000 directly to points outside the Commonwealth of
Massachusetts.
The Respondent is now, and has been at all times material,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR UNION INVOLVED
The Union is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICE
The Facts
On December 1, 1989, the Respondent (the buyer) exe-
cuted an Asset Purchase Agreement with Mason & Parker
Mfg. Co., Inc. (the seller) and Warren Harris (the Share-
holder). According to the agreement the seller was engaged
‘‘in the business of manufacturing and selling certain types
of furniture other than household furniture under the same
trade names of ‘Level’ or ‘Level of Winchendon’ (the Pur-
chased Business).’’
The Respondent purchased ‘‘all seller’s assets, properties
and rights used or usable in the conduct of the Purchased
Business.’’ Listed more specifically were:
(a) All machinery, equipment, tools, dies, jigs, and
other equipment listed on Schedule 1.1(a) hereto;
(b) Raw materials, work-in-progress, supplies and
finished goods in the inventory of Seller associated
with the Purchased Business with respect to which
Buyer notifies Seller from time to time of Buyer’s need
therefor;
(c) Except as set forth in Schedule 1.1(c) hereto, any
and all sales orders with respect to the Purchased Busi-
ness outstanding on the Closing Date;
223WORCESTER MFG.
1 Kublbeck was employed for about 14 years.
2 Boucher was employed 9-1/2 years.
3 On January 10, 1990, Flanagan addressed a letter to the Union
in which he wrote, ‘‘I met with several of the experienced people,
explained our business intentions and that we anticipated trying to
rebuild a business in a nonunion environment. A few of the previous
employers accepted employment with the new company.’’ G.C. Exh.
10.
4 According to Boucher, ‘‘He [Flanagan] said that we were going
to be laid off and then in turn rehired come Monday.’’
(d) Any and all rights of Seller with respect to pat-
ents, patent applications, trade names, service marks,
trademarks, servicemark and trademark registrations and
applications therefor, licenses, franchises and other as-
sets of like kind relating to the Purchased Business or
its products, including, without limitation, Seller’s
rights with respect to the trade names ‘‘LEVEL’’ and
‘‘LEVEL of Winchendon’’;
(e) All of the operations books and records of Seller
relating to the Purchased Business, including, without
limitation, customer lists, lists of suppliers, mailing
lists, files and delivery receipts relating to accounts re-
ceivable, business forms and stationery.
Mason & Parker ceased the operation of the purchased
business described in the Asset Purchase Agreement and laid
off its employees on December 1, 1988; the Respondent re-
sumed operations for the next Monday, December 4, 1988,
at the same location.
In the last week of November, according to Charles D.
Flanagan, president of the Respondent, he met with their
Mason & Parker employers Flanagan described the purpose
of the meeting:
The meeting was held downstairs in the manufac-
turing area during one of the breaks and the purpose
was to indicate that I had been in negotiations with
Mason & Parker relative to buying some of the assets.’’
Present were Mason & Parker’s production employees
Kublbeck1 and Clarence Boucher2 and maintenance em-
ployee John Pace. Also present were Supervisors Roger
LeBlanc and Kurt Kublbeck. Dini Harris also attended.
According to Flanagan, he told the employees that the Re-
spondent would ‘‘extend offers of employment for some ex-
perienced people’’ and in answer to a question ‘‘relative to
the Union, that they were unionized there’’ he said, ‘‘We
were nonunion in Worcester and I would expect that we
would be able to operate in a nonunion environment in
Winchendon.’’3
James Kublbeck related that at the employer’s meeting,
among other things, Flanagan stated that
It was mentioned that as of Friday, that day, that we
all were going to be dismissed and all rehired under
this plant.4 Charles [Flanagan] was explaining that as
far as the pays and benefits would not change.
On the following Monday, after the meeting, James
Kublbeck signed an employment application and went to
work for the Respondent doing the same work he had per-
formed for Mason & Parker the prior week. The same was
true of Boucher.
At the same time Mason & Parker surrendered the busi-
ness to the Respondent and dismissed its employees, James
Kublbeck and Boucher were the only production workers for
Mason & Parker. Thereafter, the Respondent hired Francis
Couture, December 8, 1989; Ryan Fitzmaurice, December
11, 1989; Jean Rivard, March 12, 1990, and Paul Breen,
March 5, 1990. All the employees had been employees of
Mason & Parker and were members of the Union. Each of
the employees had been on a union dues checkoff while
working for Mason & Parker. Dues had been checked off for
Boucher, Couture, James Kublbeck, and Pace in December
1989. Couture was the union steward. Couture considered
himself as the steward ‘‘[a]s long as the union’s in there,
yes.’’ Kublbeck was ‘‘second and assistant steward.’’ A
labor agreement between Mason & Parker and the Union ex-
tended from July 15, 1987, to July 15, 1990. The agreement
included a union-security clause. The Respondent had knowl-
edge of the contract and the membership in the Union of the
workers of Mason & Parker when it acquired the purchased
business. When the Union learned of the Respondent’s acqui-
sition, it, by a letter dated December 8, 1989, requested that
the Respondent bargain collectively with the Union for the
employees it hired who had formerly worked for Parker and
Mason. The Respondent declined. Appropriate charges were
filed by the Union.
In addition to Boucher and Kublbeck the Respondent hired
Roger LeBlanc as a supervisor of a portion of the manufac-
turing operations and Kurt Kublbeck as supervisor in manu-
facturing. Both had performed substantially the same work
for Mason & Parker. The Respondent also hired Dini Harris
for customer service work. She had also worked for Mason
& Parker. According to Flanagan, Boucher and James
Kublbeck ‘‘were told on Friday that they would be hired.’’
James Kublbeck and Boucher commenced work with the
Respondent with the same wages Mason & Parker had paid
them. The health plan was also continued, however, Re-
spondent did not continue the pension plan or paid vacations,
although the employees now receive 2 weeks’ vacation. The
Respondent also continued the same ‘‘holiday pattern’’ but
the employees received no funeral leave or ‘‘well day,’’
which is similar to sick leave. Although the employees re-
ceived a raise during mid-1990 they did not receive the con-
tractual wage increase due January 1, 1990, of 20 cents per
hour under contract. The wages and working conditions of
the Respondent’s employees were established unilaterally.
At Level, a Division of Worcester Manufacturing, in the
same area in which Mason & Parker had been operating, the
Respondent manufactured ‘‘molded plywood booth assem-
blies and tables and bases for restaurant tables predomi-
nantly’’ and some chair assembly. To make these products
Respondent used ‘‘glueing machines, presses, saws, shapers’’
which it purchased from Mason & Parker. The above-men-
tioned products that had been made by Mason & Parker con-
tinued to be manufactured by the Respondent immediately
when it commenced operations at the Mason & Parker prem-
ises. About 10 days after acquisition the Respondents pur-
chased the work in progress of Mason & Parker. The Re-
spondent leased 23,000 square feet of Mason & Parker’s fa-
cility, space used by Mason & Parker.
According to Flanagan, the Respondent acquired ‘‘about
150’’ customers from Mason & Parker with which the Re-
spondent now does business.
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Burns Security Services v. NLRB, 406 U.S. 272 (1972).
6 I have carefully examined the citations of the Respondent and
find them not to support the Respondent’s contentions.
7 The appropriate unit was established in the contract.
Conclusions and Reasons Therefor
The Respondent maintains that the complaint should be
dismissed because the employer is not a successor under
Burns;5 that in the alternative a substantial and representative
complement of employees did not exist on the date of the
transfer of assets, and that the Employer had a sufficient ob-
jective basis for a reasonable doubt of the Union’s majority
status. I find that these contentions are not well taken for the
reasons which follow.6
The Respondent is a successor to Mason & Parker (see
NLRB v. Burns Security Services, supra) because the Re-
spondent’s operations are essentially the same business as its
predecessor; the Respondent is occupying the same location;
the Respondent is utilizing the same work force and skills;
the Respondent’s jobs and working conditions are substan-
tially the same; the Respondent is employing the same super-
visors; the Respondent is using substantially the same ma-
chinery and equipment; and the Respondent is producing
substantially the same products for substantially the same
customers. Any alleged changes in operation have not sig-
nificantly altered the employees’ working conditions, the em-
ployment relationship, and, correspondingly, the employees’
expectations and needs in regard to representation. Cf. USG
Acoustical Products Co., 286 NLRB 1 (1987). Under these
circumstances the ‘‘employees who have been retained will
understandingly view their job situations as essentially
unaltered.’’ Cf. Fall River Dying Corp. v. NLRB, 482 U.S.
27 (1987).
These facts meet the Board’s test for determining
successorship status, i.e., ‘‘whether there is a substantial con-
tinuity in identity of the employing enterprise.’’ Inland Con-
tainer Corp., 275 NLRB 378 (1985).
As a successor employer the Respondent was obligated to
recognize the Union which represented its predecessor’s em-
ployees, for at the time of the acquisition, the employer put
to work a majority of union partisans in the continuing ap-
propriate unit.7 ‘‘If the new employer makes a conscious de-
cision to maintain generally the same business and to hire a
majority of its employees from the predecessor, than the bar-
gaining obligation of Section 8(a)(5) is activated.’’ Fall River
Dying Corp. v. NLRB, supra.
The Supreme Court has said in Fall River Dying Corp. v.
NLRB, supra at 39–40:
If the employees find themselves in a new enterprise
that substantially resembles the old, but without their
chosen bargaining representative, they may feel that
there choice of union is subject to the vagaries of an
enterprise’s transformation. This feeling is not condu-
cive to industrial peace. In addition, after being hired
by a new company following a layoff from the old, em-
ployees initially will be concerned primarily with main-
taining their new jobs. In fact, they might be inclined
to shun support for their former union, especially if
they believe that such support will jeopardize their jobs
with the successor or if they are inclined to blame the
union for their layoff and problems associated with it.’’
[Emphasis added.]
Additionally, the Respondent’s claim that it should be ex-
cused from recognizing the Union because its hires were
union defectors lacks persuasion in light of its representation
to its employees that it would operate nonunion. Under these
circumstances, it is likely that the employees would leave the
Union to save their jobs. Nor may the Respondent draw an
alleged good-faith doubt from a situation which it may well
have created itself by its expressing to employees that its
preference was to operate nonunion. Moreover, it was not
until after Flanagan had expressed his antiunion views that
he claimed he had heard some antiunion sentiment. Thus, not
only was there reason for the employees to shun the Union
as anticipated by the Supreme Court in Fall River Dying
Corp., supra, but employees were also subjected to a dissua-
sion from continuing their union affection because of the Re-
spondent’s expression of nonunion preference. Indeed the
Respondent clinched its nonunion preference by refusing to
recognize the union, by not recanting its antiunion position,
and by actually operating nonunion. Under these cir-
cumstances, an employer could not expect an employee to
stand with the union.
In the case of NLRB v. Burns Security Services, supra at
294, the Supreme Court opinioned:
[t]here will be instances in which it is perfectly clear
that the new employer plans to retain all of the employ-
ees in the unit and which it will be appropriate to have
him initially consult with the employees’ bargaining
representative before he fixes terms. [See also U.S. Ma-
rine Corp., 293 NLRB 669 (1989); State Distributing
Co., 282 NLRB 1048 (1987).]
This case presents such an instance as is described in the
Supreme Court’s decisions. Thus, the Respondent was obli-
gated to bargain with the union before it fixed conditions of
employment for the predecessor’s employees. Its unilateral
changes in the working conditions of the employees hired
from its predecessor were unlawful. Cf. NLRB v. Katz, 369
U.S. 736 (1962). Accordingly, the Respondent by unilaterally
changing terms and conditions of employment and by unilat-
erally departing from existing terms and conditions of em-
ployment reflected in the collective-bargaining agreement be-
tween Mason & Parker and the Union violated Section
8(a)(5) of the Act. State Distributing Co., supra; U.S. Marine
Corp., supra.
I further find that Flanagan’s statement to employees of
his anticipated operation of the Respondent nonunion re-
strained, interfered with, and coerced employees in their Sec-
tion 7 rights and violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and it
will effectuate the purposes of the Act for jurisdiction to be
exercised.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees employed at Level of
Winchendon, a Division of Worcester Manufacturing, Inc., as
225WORCESTER MFG.
8 See Kraft Plumbing & Heating, 252 NLRB 891 (1980);
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
9 See State Distributing Co., supra; American Press, 280 NLRB
937 (1986).
successor to Mason & Parker Mfg. Co., Inc., constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All production and maintenance employees employed
by Respondent at its Winchendon facility, excluding of-
fice and clerical employees, professional employees, ex-
ecutives, foremen and all supervisory employees as de-
fined in the Act.
4. At all times the Union has been the exclusive represent-
ative of all the employees in the above unit for the purpose
of collective bargaining within the meaning of Section 9(a)
of the Act.
5. Respondent is a successor employer to Mason & Parker
and by disavowing its bargaining obligations to the Union
and departing from preexisting rates of pay and benefits
without prior notification to and bargaining with the Union
the Respondent violated Section 8(a)(5) and (1) of the Act.
6. These unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it cease
and desist and take certain affirmative action necessary to ef-
fectuate the policies of the Act. It is recommended that the
Respondent be required to recognize and bargain with the
Union in an appropriate collective-bargaining unit and, if an
agreement is reached, to reduce the agreement to a written
contract. In addition, it is recommended that Respondent can-
cel, on request by the Union, any departures from terms and
conditions of employment, including rates of pay and bene-
fits unilaterally effected and make whole the employees by
remitting all wages and benefits,8 that would have been
made, including remittance of the payment the Respondent
owes the benefit funds and reimbursement to unit employees
for any expenses resulting from Respondent’s failure to make
such payments, absent the Respondent’s unlawful conduct
from December 4, 1989, until the Respondent negotiates in
good faith to agreement or impasse.9
[Recommended Order omitted from publication.]