Decor Noel, Inc.

National Labor Relations Board - Board Decisions

May 6, 1987

283 N.L.R.B. 911 (N.L.R.B. 1987)

DECOR NOEL, INC.
Decor Noel, Inc. and Division 19, District 65,
United Auto Workers, AFL-CIO. Case 26-
CA-11307
6 May 1987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 18 November 1986 Administrative Law
Judge Lawrence W. Cullen issued the attached de-
cision. The General Counsel and the Respondent
filed exceptions and supporting briefs, and the Re-
spondent filed an answering brief.I
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the,
recommended Order of the administrative law
judge and orders that the Respondent, Decor Noel,
Inc., Memphis, Tennessee, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order.
i The Charging Party's motion to correct error in the date in sec. IV,
par. 6 of the judge's decision is granted, the date is corrected to read 6
August 15185
2 The General Counsel seeks a visitatorial clause authorizing the
Board, for compliance purposes, to obtain discovery from the Respond-
ent under the Federal Rules of Civil Procedure subject to the supervision
of the United States court of appeals enforcing this Order. Under the cir-
cumstances of this case, we find it unnecessary to include such a clause.
Accordingly, we deny the General Counsel's request.
The Respondent has requested oral argument The request is denied as
the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
The General Counsel excepted to the judge's failure to state affirma-
tively that the bargaining unit includes "all full-time and regular part-time
maintenance and production employees." We agree with the judge's find-
ing that neither the unit description nor the practice of the parties as de-
scribed at the hearing shows a limitation which would exclude employees
working less than 30 hours per week from the bargaining unit. We find it
inappropriate to redefine the bargaining unit, however, because the Gen-
eral Counsel first requested this in posthearing exceptions and the matter
was not fully litigated at the hearing.
William D. Levy, Esq., for the General Counsel.
Henry Shelton III, Esq., of Memphis Tennessee , for the
Respondent.
Howard `Paul, Esq., of Memphis Tennessee , for the
Charging Party.
DECISION
911
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me in Memphis, Tennessee,
on 24 February 1986. The original charge was filed by
Division 19, District 65, United Auto Workers, AFL-
CIO (the Union) on 20 September 1985 against Decor
Noel, Inc. and the original complaint was issued by the
Regional Director for Region 26 of the National Labor
Relations Board (the Board) in,.this case on 13 November
1985 and alleged that Respondent Decor Noel, Inc. had
violated Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act) by since about 6 August 1985
failing and refusing to recognize and bargain with the
Union as the exclusive bargaining representative of its
employees. On 18 December 1985 Respondent filed its
answer to the complaint denying the commission of any
violations of the Act and alleging that the Union did not
represent a majority of the employees of Respondent. On
9 January 1986 the Regional Director amended the com-
plaint by alleging that Creative Technology, Inc. and
Decor Noel Corporation constituted a single employer
within the meaning of -the Act. Respondent filed its
answer to this amendment on 22 January 1986 denying
that Creative Technology, Inc., and Decor Noel Corpo-
ration were a single employer'under the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Charging
Party, and the Respondent, I make the following t
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, the evidence shows, and I find
that Respondent Decor Noel , Inc. is a,Tennessee corpo-
ration with an office and place of business in Memphis,
Tennessee, where it has been engaged in the manufacture
of Christmas decorations, and that since 29 March 1985
it sold and shipped from its place of business products,
goods, and materials valued in excess of $50,000 directly
to points outside the State of Tennessee and that Re-
spondent Decor Noel, Inc. 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 ORGANIZATION
The complaint alleges, Respondent admits, and I find
that Division 19, District 65, United Auto Workers,
AFL-CIO is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE BARGAINING UNIT
The complaint alleges , and I find on the basis of the
evidence presented at the hearing, including a stipulation
i The findings of fact include a composite of the testimony of the wit-
nesses, admitted exhibits and stipulated facts, and'admissions made by Re-
spondent.
283 NLRB No. 142
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
entered into by the parties , that the following employees
of Decor Noel Corporation and its successor Decor
Noel , Inc. constitute a unit appropriate for the purpose
of - collective bargaining within the meaning of Section
9(b) of the Act.2
All maintenance and production employees em-
ployed at the Employer 's Memphis , Tennessee loca-
tion, excluding all office clerical employees , super-
visors and guards as defined in the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The underlying facts in this case are largely undis-
puted . Decor Noel Corporation (DNC) had been en-
gaged in the manufacture of Christmas tinsel products
since at least 1974. Creative Technology Inc. (Creative)
was wholly owned by and engaged in the manufacture
of Christmas ornaments as an operating division of DNC.
DNC and Creative shared common premises , provided
services for each other , interchanged employees, main-
tained a common labor relations - policy, and shared
common management . I, accordingly , conclude that
DNC and Creative constituted a single-integrated enter-
prise and a single employer within the meaning of the
Act.
On I8 October 1974 Local 19, Distributive Workers of
America (DWA) (Local 19) was certified as the bargain-
ing representative of employees of DNC in the following
described unit in Case 26-RC-4825:
All maintenance and production employees em-
ployed at the Employer 's Memphis, Tennessee, lo-
cation, excluding all office clerical employees, su-
pervisors and guards as defined in the Act.
Local 19 and DNC were parties to a series of collective-
bargaining agreements covering the employees in the
above-described unit, including an agreement that, by its
terms, was effective from 18 January 1978 to 31 Decem-
ber 1980 . In 1979 Local 19 became affiliated with the
United Auto Workers (UAW), and the name of Local 19
was changed to Division 19, District 65, United Automo-
bile Workers of America , UAW (the Union). DNC en-
tered into a series of agreements with the Union cover-
ing the employees certified in Case 26-RC-4825 , the first
of which was , by its terms, effective from 5 March 1981
to 31 December 1983 and the second and most recent of
which was entered into on 29 February 1984 to be effec-
tive until 31 December 1986 and thereafter to be contin-
ued from , year to year unless terminated by the parties
under the terms of agreement.
On 6 February 1985 DNC and Creative filed petitions
for reorganization under Chapter 11 of the Bankruptcy
Code and on 8 March 1985 orders were issued by the
bankruptcy court authorization Citicorp Industrial
Credit, Inc. (Citicorp), the primary secured creditor of
DNC and Creative , to repossess and foreclose on the
assets of DNC -and Creative , and to seek bids for the sale
of the assets . On 22 March 1985 Citicorp and Irvin
2 1 find no merit to Respondent 's contention that the bargaining unit
should be limited to "regular full-time maintenance and production em-
ployees " See discussion of this issue infra.
Kaplan, DNC's chairman of its board of directors, en-
tered into a purchase agreement in which -Kaplan agreed
to acquire substantially all the assets of DNC and Cre-
ative . The sale was approved by the bankruptcy court on
28 March 1985 . On the same day (28 March 1985) DNI,
Inc. was incorporated . On 29 March 1985 Kaplan sold
all the assets acquired by him under the terms of the pur-
chase agreement to Decor Noel , Inc. (Respondent) and
on 29 April 1985 the name of DNI, Inc . was changed to
Decor Noel , Inc. On 22 April 1985 the board of direc-
tors of DNC had adopted a resolution waiving ' its rights
to the use of the name of Decor Noel to DNI, Inc. and
supporting the action of DNI, Inc., in changing its cor-
porate name to Decor Noel, Inc.
The record also established that the business of DNC
and Creative had been seasonal and that DNC and Cre-
ative had an established practice of laying off its em-
ployes in December and recalling them in February or a
later month of the following year and such a layoff had
occurred in December 1984 . In February 1985, employ-
ees in the glass ornament department of Creative were
recalled to complete an order of glass ornaments for
Hallmark, a customer of DNC and Creative. DNC and
Creative also recalled employees in January and Febru-
ary to manufacture samples for display in their New
York merchandise showroom, and in January 1985 DNC
had recalled warehouse employees to transfer goods
from one warehouse to another . Glass ornament employ-
ee Dorothy Lee worked in the glass ornament depart-
ment during January , February, and March 1985. On 7
March 1985 the debtor-in-possession of bankruptcy trust-
ee of DNC issued checks for wages to 12 employees for
completion of glass ornaments for Campbell Soup, a cus-
tomer of DNC.
Respondent continued to operate at the same facility
as DNC and Creative, hired Mitchell Rice from Hall-
mark as its president, and hired Danny Stone who had
been the vice president of DNC in January - 1985 as its
vice president of manufacturing . It also hired Nancy
Todd, a former vice , president of Creative , as its vice
president of manufacturing , and Billy Williams, the
former traffic manager of DNC, as its vice president and
retained Gene Davis, DNC's vice president of sales, in
that same capacity . Bill Daniel, the former president of
DNC, was asked to serve as a consultant for Respondent
and, according to the testimony of Daniel, was informal-
ly designated as chairman of the ; board but did not act in
that capacity nor was he utilized in the capacity of con-
sultant by Respondent's new management. Stone has
been terminated by Respondent at the time - of the hear-
ing. Additionally , four former supervisors of DNC were
hired as supervisors of Respondent and two mechanics
formerly employed by DNC were hired as supervisors of
Respondent. It is undisputed that Respondent continued
in the same business of DNC in the manufacture of tinsel
and Creative in'the manufacture of ornaments although it
served fewer customers in the tinsel area and its business
operated on a diminished scale. Respondent engaged in
operations on a preliminary basis as early as the week
ending 9 May 1985 when it started to gear up for pro-
duction according to the unrebutted testimony of Stone,
DECOR NOEL, INC.
which I credit. It also continued to employ production
employees from May through August 1985 at the same
premises and manufacturing the same products, utilizing
the same equipment as had DNC and Creative. Respond-
ent's records show that it had sales in the calendar year
1985 of which over 75 percent were made to the former
customers of DNC and Creative.
It was stipulated that on 6 August 1986 Respondent re-
ceived a written demand for recognition and bargaining
from the Union and that Respondent did not respond to
the demand. The payroll records of the week ending 11
August 1985 as designated at the hearing show that as of
that week Respondent employed 94 production and
maintenance employees, 57 of whom were former pro-
duction and maintenance employees of DNC and Cre-
ative. Additionally, the payroll registers of Respondent
and DNC and Creative showed that during the entire
period from the week ending 2 June 1985 until the week
ending 3 August 1985 a majority of the production and
maintenance employees of Respondent were former pro-
duction and maintenance employees of DNC and Cre-
ative.
Respondent made no response to the union demand for
recognition. Michael Rice, Respondent's president, testi-
fied he based his decision to decline to recognize the
Union because of his opinion that the "full-time perma-
nent employees did not wish to be represented by the
Union, based on conversations I had with them, and with
certain administrative people who used to be members of
the bargaining unit." He cited one conversation in
August 1985 with employees Terry Scott (who had been
promoted to supervisor from the bargaining unit in the
summer of 1985) and Gary Powell in which they told
him the Union had called an organizational meeting and
that most of the employees had not attended. He also
testified that Scott and Powell told him that the full-time
employees prefered the working conditions and environ-
ment of Respondent to those of DNC. In the first week
of December 1985 employee Ora Broome handed him a
letter from the International Union, informing her of her
nonpayment of dues and told him she was not going to
pay her dues. He could cite no other specific instances of
any employees allegedly expressing a lack of support for
the Union. He made his decision in August 1985 not to
recognize the Union based on his conversations with em-
ployees Scott and Powell and on recommendations from
his line supervisors. Subsequently, after consultation with
his attorney he conducted a poll of certain of the em-
ployees in February 1986 shortly before the hearing in
this matter. The poll was limited to employees who were
considered by him to be permanent full-time employees
as opposed to temporary part-time employees although
there had never been such a distinction drawn in' the rec-
ognition clause of the bargaining unit of DNC and Cre-
ative. There were also no safeguards provided to assure
that the person returning the ballot that was mailed to
the employees was the employee to whom it was mailed.
He contended at the hearing that many of the temporary
part-time employees had been discharged in late 1985
prior to the time of the poll, although this was contra-
dicted by Patricia Handy, Respondent's accounting man-
ager and payroll clerk, who testified that the term "tem-
913
porary employee" had never been used by Respondent
and that no records existed in Respondent's files desig-
nating employees as "temporary employees," and that
the employees had been laid off for lack of work in late
1985 and were never told that they were being dis-
charged or that they would not be recalled. She made
the determination to send the ballots only to those em-
ployees who worked 30 hours a week or more on an av-
erage as of the first month of their employment by Re-
spondent. I credit Handy's testimony in this regard.3
Contentions of the Parties
The General Counsel and the Charging Party contend
that Respondent is' a successor of DNC and Creative and
that Respondent, violated Section 8(a)(5) and (l) of the
Act by failing and refusing to recognize and, on request,
bargain with the Union on behalf of the employees in the
alleged appropriate unit. The Charging Party contends
that a remedy of the assumption of the contract between
the Union and the predecessor employers by the succes-
sor employer is appropriate. Respondent contends that
the issues are whether it is a successor to DNC, whether
Respondent's management entertained a good-faith doubt
concerning the Union's majority status as of the date of
demand, and whether the Union enjoys the support of a
majority of Respondent's employees.
The General Counsel and the Charging Party contend
that Respondent is a successor to previous employers
DNC and Creative as demonstrated by the evidence
showing that virtually no hiatus existed between the date
that DNC and Creative ceased manufacturing products
(January-March 1985) and the date on which Respond-
ent began preparing materials for production (May 1985)
and the initiation of full production in June 1985 , noting
that the employees of DNC and Creative were not in-
formed directly by DNC or Creative of the filing of
bankruptcy petitions or of any plans to cease operation
of the business but rather were laid off in December
1984 for lack of work and that Respondent called experi-
enced operators of DNC and Creative to return to work,
thus demonstrating sufficient continuity in operation to
establish a successor relationship, citing C. G. Conn Ltd.,
197 NLRB 442 (1972).
The General Counsel also contends that successorship
status should be accorded to Respondent as a result of
the evidence that Respondent continued to manufacture
the same goods as the predecessor employer at the same
location, utilized the same equipment, machinery, and
manufacturing processes, maintained the same job classi-
fications, and that employees in these job classifications
performed the same work functions under essentially the
same supervision and that Respondent was dependent on
former customer of DNC and Creative for more than
3 With respect to the issue of the scope of the bargaining unit raised by
Respondent, I find that the express language of the unit description con-
tains no limitation of members of the bargaining unit and the practice of
the parties as described by Handy shows that no limitation was ever
placed on employees that would exclude employees working less than 30
hours per week from the bargaining unit, and I conclude that all mainte-
nanpe and production employees were properly includable in the bargain-
ing unit.
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
three-fourths of its sales. The General Counsel also relies
on records of -Respondent that show that during each
payroll week from the week ending 2 June 1985 to the
week ending 11 August 1985 (the week in which Re-
spondent received 'the Union's demand for recognition)
Respondent employed as a majority of its production and
maintenance employees who were former, employees of
DNC and Creative, citing Eastone of Ohio, 277 NLRB
1652 (1986).
The General Counsel further contends that Respond-
ent's reliance on the poll taken by it in February 1986 is
immaterial as the poll occurred 6 months after its initial
declination-of the Union's demand for recognition, citing
Pre-Engineered Building Products, 228 NLRB 841 (1977),
in which the Board, held that the events occurring prior
to the date of the demand for recognition are, crucial in
determining whether the employer has successfully re-
butted the presumption of continued majority status ac-
corded to the union and contends that Respondent's poll
of its employees is immaterial to this determination as it
occurred substantially after the date of the Union's
demand for-recognition. The General Counsel also con-
tends that Respondent conducted its poll in an inappro-
priate grouping of employees and polled less than a ma-
jority in the established bargaining unit citing Crest
Floors &'Plastic, 274' NLRB 1230 (1985), and IMS Mfg.
Co., 278 NLRB 538 (1986), as it limited the conduct of
its poll to employees who had been employed on a regu-
lar basis for more than 30 hours per week during the first
month of employment and excluded those employees em-
ployed for 20 to 30 hours per week on a regular basis,
and who had been laid off due to lack of work rather
than discharged. The General Counsel, thus, contends
that Respondent, as successor to DNC and Creative,
lacked valid objective considerations for contesting ma-
jority status and that Respondent thereby failed to rebut
the presumption that the Union continued to enjoy ma-
jority status, citing Stratford Visiting Nurses Assn., 264
NLRB 1026 (1982).
In support 'of its -contention' that Respondent is a suc-
cessor to Decor Noel Corporation and Creative, the
Charging Party relies on Great Lakes Chemical Corp.,
280 NLRB 1131 (1986), and Grico Corp., 265 NLRB
1344 (1982), which it contends concerned a situation
almost identical to the instant - case. The Charging Party
also relies on" Golden State Habilitation Convalescent
Center, 224 NLRB 1618 (1976), in support of its conten-
tion that the various defenses raised by Respondent con-
cerning the alleged loss 'of majority of the Union and
good-faith doubt of Respondent of the-Union's majority
such as nonpayment of union dues, small participation in
checkoff, and turnover among employees, did not estab-
lish'a -reasonable basis for Respondent to assert a good-
faith doubt of the Union's majority. The Charging Party
contends that Respondent should be required to remedy
the unfair labor practices by assuming the collective-bar-
gaining agreement . The Charging Party relies on article
XIX, section 2, of the contract between DNC and Re-
spondent, which provides, "This agreement shall- be
binding on the successors and assigns of the employer"
and contends that Respondent is charged with knowl-
edge of this provision as the employer representatives
who signed the agreement are officers and management
officials of Respondent.
Respondent contends the following : It is not a succes-
sor to DNC as it purchased the assets of DNC from a
third party following a foreclosure on the assets of DNC
by its creditor Citicorp in a bankruptcy proceeding and
the subsequent sale of those assets to a third party indi-
vidual pursuant to an order of the bankruptcy court for
the sum of $2 million and that the third party subse-
quently assigned his interest in these assets to Respond-
ent after it had received its-charter from the State of
Tennessee, all of which ensured that these transactions
were of an arm's-length nature. It is owned by different
parties, managed by different persons, and sells a greatly
reduced volume of its products to a significantly smaller
share of the market than did DNC. All the evidence
available to management in August 1985 at the time of
demand for recognition by the Union indicated a lack of
union support among its employees. None of its hourly
employees desire representation by the Union as shown
by its poll of these employees conducted in February
1986.
Respondent, accordingly, contends in argument that
the instant case is distinguishable from the case of NLRB
v. Burns Security Services, 406 U.S. 272 (1972), and its
progeny including Grico Corp., supra, both of which
found the new employer to be a successor, as in the in-
stant case there was a hiatus, in production for resale (as
opposed to isolated sample manufacturing or manage-
ment of stock) of approximately 6 months; at the peak of
production, on the demand date, there was barely a ma-
jority of employees and the volume of goods manufac-
tured and sold by Respondent amounted to less than 40
percent of that manufactured and sold by Decor Noel
Corporation in its last year of operation. In addition, Re-
spondent contends that unlike Grico Corp., Respondent's
management was new and substantially different from
that of Decor Noel Corporation, Respondent further
contends that because DNC formerly served all the
wholesale customers in the continental United States, it
must necessarily sell to a former customer of DNC's and
accordingly this criteria should not be utilized in deter-
mining successorship. Respondent relies on Spencer
Foods, 268 NLRB 1483 (1984), revd. 768 F.2d 1463 (D.C.
Cir. 1986), for its position that it should not be found a
successor as • the assets of Respondent constitute only a
part of the assets of DNC and were purchased from a
third party who had purchased the assets from a third
party. It also contends that entirely new high-level man-
agement and substantially new plant supervisory person-
nel were hired by Respondent, that the work force of
Respondent is substantially smaller than that of DNC
and organized along substantially different lines, and the
volume of goods sold is substantially less than that sold
by DNC.
Respondent also contends' that it had operated its plant
for 2 months without any indication of union ' support,
and ' management had been advised of the employees'
lack of interest in the Union and rif the Union's futile ef-
forts to organize the new shop. It contends that in simi-
lar circumstances the Board and courts have found suffi-
DECOR NOEL, INC.
cient objective circumstances to justify a good-faith
doubt of majority support of the Union, citing Houston
Shopping News Co., 233 NLRB 105 (1977); White Castle
System, 224 NLRB 1089 (1976); and Landmark Trucks,
272 NLRB 675 (1984).
Discussion
I find that Respondent is a successor of DNC and Cre-
ative as I find that it is substantially the same enterprise
as DNC and Creative, and that the continuity of the
business operation has been demonstrated in C. G. Conn
Ltd., supra, citing Alamo White Truck Service, 273 F.2d
238, 240 (5th Cir. 1959); and citing NLRB v. Zayre Corp.,
424 F.2d 1159, 1162 (5th Cir. 1970).
As set out above the material facts of this case are
largely undisputed. The crux of the differences between
the parties rest on the weight to be accorded the fact as
applied to the cases cited by the parties. 1 find the Gen-
eral Counsel's argument in this case compelling as sup-
ported by its cited cases, supra. I also find applicable the
cases cited, supra, by the Charging Party. I find the
Spencer case, supra, cited by Respondent does not equate
with the instant case in certain of the facts, notably the
length of the hiatus and other factors including the shut-
down of facilities and elimination of a product line all of
which make this case factually distinguishable from the
instant ease that involves a much shorter hiatus in oper-
ations and the continuation of both of its former product
lines. Initially, I find that the evidence demonstrates that
there was virtually no hiatus existing between the cessa-
tion of production between January and March 1985 and
the preparation by Respondent for new production in
May 1985. During this period of time several of Re-
spondent's management officials remained on duty and
sample runs of Christmas ornaments were run by calling
in previously laid-off employees to operate certain of
these machines. Respondent operated the same equip-
ment and manufacturing processes in the same plant. It
maintained the same job classifications, recalled its
skilled employees, and although it advertised in a general
circulation newspaper for unskilled employees, it hired
its former unskilled employees who applied. ,Respondent
employed as a majority of its production and mainte-
nance employees the former employees of DNC and
Creative. It is undisputed that Respondent remained in
the same business and sold to the same customers as its
predecessor. Although this may have been inevitable as
contended by Respondent because the predecessor had
previously sold to all wholesale customers in the conti-
nental United States according to the unrebutted testimo-
ny of the predecessor's former president, Daniel, these
facts should not be ignored in determining whether the
employing enterprise is substantially the same as its pred-
ecessors. Respondent employed the former employees of
DNC and Creative as a majority of its production and
maintenance employees at the time of the Union's
demand for recognition. It is well settled that the date of
the demand for recognition is the,critical date to consid-
er in determining whether the request for recognition
could properly have ' been refused or ignored by Re-
spondent. Thus, the poll conducted 6 months after the
demand for recognition 'and the refusal by Respondent to
915
recognize and bargain with the Union has no relevancy
to the majority status of the Union at the time of the
demand Pre-Engineered Building Products, supra.4 Nor
were the conversations of Respondent's president, Rice,
with two employees or the other unspecified conversa-
tions with Respondent's employees and supervisors suffi-
cient to raise a reasonable doubt of the Union's contin-
ued majority status. I also find that the cases cited by
Respondent in support of its position that it has sufficient
objective circumstances to justify good-faith doubt as to
majority support of the Union are not controlling in this
case as they involved substantially different fact situa-
tions from these presented in the instant case. Houston
Shopping, supra, involved a situation in which a substan-
tial number of the employees in the unit (12 out of a unit
of 31) expressed their own sentiments against the Union
and a long-term employee expressed the sentiment "that
nobody back there wants the Union." In White Castle
System, supra, 224 NLRB at 1092, the administrative law
judge relied on factors other than those present in the in-
stant case. He specifically cited the following as "valid
objective considerations: only one grievance in 10 years;
no union stewards; no employees on the,bargaining com-
mittee; statements of union representatives in bargaining
supportive of an inference that the Union lacked majori-
ty support . . . and expressions of employee dissatisfac-
tion with the Union, communicated to Respondent by a
majority of the employees." In Landmark Truck, the
Board found that "the withdrawal of recognition was un-
lawful because it was predicated upon information ob-
tained in an unlawful manner." The information in ques-
tion consisted of the receipt by the employer of resigna-
tion and revocation letters from the Union from 13 of
the 18 department employees.
It should also be noted that the advent of a bankruptcy
of a predecessor and the purchase of assets under court
order by a third party does not bar a finding of succes-
sorship. Rather, the Board looks at all the circumstances
to determine whether the employing entity is the same.
Lloyd Flanders, 280 NLRB 1216 (1986), citing Premium
Foods Y. NLRB, 709 F.2d 623 (9th Cir. 1984). It is thus
clear that under all the circumstances Respondent is a
new employer conducting substantially the same business
as DNC and Creative, employing the former employees
of DNC and Creative as a majority of its employees, op-
erating at the same plant and utilizing the same equip-
ment, job classifications, and selling to substantially the
same customers as DNC and Creative. Respondent is
clearly a successor employer to DNC and' Creative. The
Union thus enjoyed the presumption of continued major-
ity status and Respondent has failed to establish that it
had'a sufficient basis for a reasonable doubt of the major-
ity status. Its refusal to recognize and bargain with the
Union on its demand constitutes a violation of Section
8(a)(5) and (1) of the Act.
With respect to the Charging Party's contention that
Respondent should be required to assume the collective-
4 In view of this finding, I find it unnecessary to determine whether
the poll was a valid one However, assuming arguendo, I would find the
relevancy of the poll invalid for the reasons cited by the General Counsel
as outlined above,
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
bargaining agreement of the predecesser employer, I find
that such a remedy is precluded by the Burns case in
which the Supreme Court expressly held that a successor
is not obligated to assume nor is it bound by the substan-
tive terms of the labor agreement of its predecessor. Ac-
cordingly, I decline to recommend such a remedy.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent, as found
herein in section IV, above, in connection with the busi-
ness of Respondent as found in section I ,above, have a
close, intimate, ' and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to`labor disputes obstructing the free flow of-com-
merce.
On the above findings of fact, and on the entire
record, I make the following
CONCLUSIONS OF LAW
1. Respondent Decor Noel, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and is a successor of Decor Noel Cor-
poration and Creative Technology, Inc.
2. Division 19, District 65, United Auto Workers,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act and is the exclusive collective-
bargaining representative of the unit employees in the
following described bargaining unit:
All maintenance and production employees em-
ployed at the Employer's Memphis, Tennessee loca-
tion, excluding all office clerical employees, super-
visors and guards as defined in the Act.
3. By its refusal to recognize and bargain with the
Union on demand, Respondent violated Section 8(a)(5)
and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
violations of Section 8(a)(5) and (1) of the Act, it will be
ordered to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purpose
and policies of the Act, and to post the appropriate
notice. I recommend- that Respondent bargain, on re-
quest, with the Union as the collective-bargaining repre-
sentative of its employees in the appropriate unit, with
respect to rates of pay, wages, -hours, and other terms
and 'conditions of employment and, if an agreement is
reached, embody it in a signed contract.
On these findings of fact and conclusions of law' and
on the entire record, I issue the following recommend-
eds
s If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
The Respondent, Decor Noe), Inc., Memphis, Tennes-
see, its officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain in good faith
with Division 19, District 65, United Auto Workers,
AFL-CIO as exclusive collective -bargaining representa-
tive of the employees in the following bargaining unit:
All maintenance and production employees em-
ployed at the Employer's Memphis, Tennessee loca-
tion, excluding all office clerical employees, super-
visors ' and guards as defined in the Act. .
(b) In any like,or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Recognize and, on request, bargain in good faith
with Division 19, District 65, United Auto Workers,
AFL-CIO, with respect to rates of pay, wages, hours,
and other terms and conditions of employment, and, if an
agreement is reached , embody it in a signed contract.
(b) Post at its Memphis, Tennessee facility, copies of
the attached notice marked "Appendix."6 Copies of the
notice, on, forms provided by the Regional Director for
Region 26, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days` in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent,has taken to comply.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of-the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
DECOR NOEL, INC.
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these, protect-
ed concerted activities.
WE WILL NOT refuse to recognize and, on request, bar-
gain in good faith with Division 19, District 65, United
Auto Workers, AFL-CIO as the exclusive representative
of the employees in the following appropriate unit:
All maintenance and production employees em-
ployed at the Employer's Memphis, Tennessee loca-
tion, excluding all office clerical employees, super-
visors and guards as defined in the Act.
917
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request,"bargain collectively with Divi-
sion 19, District 65, United Auto Workers, AFL-CIO as
the exclusive representative of employees in the appro-
priate bargaining unit described above with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding is reached,
embody such understanding in a signed contract.
DECOR NOEL, INC.