J & J Drainage Products Co.

National Labor Relations Board - Board Decisions

Apr 24, 1984

269 N.L.R.B. 1163 (N.L.R.B. 1984)

J & J DRAINAGE PRODUCTS CO.
J & J Drainage Products Company and The Inter-
national Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Help-
ers, Lodge No. 83, AFL-CIO. Case 17-CA-
10290
24 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 June 1982 Administrative Law Judge
Rodger B. Holmes issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
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 brief and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
I In adopting the judge's finding that the Respondent had sufficient ob-
jective considerations to rebut the presumption of the Union's majority
status, we find it unnecessary to consider the judge's reliance on the fact
that the Union had been certified 16-1/2 years earlier. In addition, Chair-
man Dotson and Member Hunter express no opinion as to the successor-
ship issue since no exceptions were filed, and further find it unnecessary
to rely on all cases cited by the judge on pp. 16 through 19 of the judge's
decision.
DECISION
ROGER B. HOLMES, Administrative Law Judge. Based
on an unfair labor practice charge filed on April 10,
1981, by the International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers,
Lodge No. 83, AFL-CIO, the General Counsel of the
Board issued on May 19, 1981, a complaint alleging vio-
lations of Section 8(aX)(1) and (5) of the Act by J & J
Drainage Products Company. The General Counsel's
complaint was amended during the early part of the trial
proceedings and prior to the presentation of evidence.
The trial was held on January 28 and 29, 1982, at
Hutchinson, Kansas.
As a preliminary matter in this decision, there is an
issue between the parties as to whether the Respondent's
269 NLRB No. 196
posttrial brief should be accepted. In summary, counsel
for the General Counsel takes the position that the Re-
spondent's brief was untimely and that it should not be
read or considered in this case. The attorney for the Re-
spondent urges that he relied on the due date reflected in
the transcript of the proceedings and that his brief should
be accepted as being timely filed.
The subject' of the filing of posttrial briefs was dis-
cussed at the trial after the parties had concluded their
presentation of the evidence. In part, the transcript re-
flects that my comments were:
The time for filing of the briefs will be Friday,
March 15, 1982. That is the maximum amount of
time which I can grant to you under the provisions
of Board regulations, so you want to be sure and
get your brief into San Francisco before 5:00 p.m.
on that date in order for it to be timely received.
In reality, I believe that court reporter made an error
in transcribing what was said concerning the due date
for posttrial briefs. I believe that I said the due date was
Friday, March 5, 1982, whereas the court reporter tran-
scribed it Friday, March 15, 1982. The reasons are: (1)
March 5 was a Friday, whereas March 15 was a
Monday; (2) March 5 was 35 days from the close of the
trial and, thus, as I stated at the trial, that was the maxi-
mum amount of time I was authorized to grant to the
parties. (See Sec. 102.42 of the Board's Rules and Regu-
lations.) March 15 was 45 days after the close of the
trial; (3) March 5 was consistent with the due date re-
ported by me to the clerical staff at the Division of
Judges after the close of the trial proceedings.
Counsel for the General Counsel mailed her brief on
Wednesday, March 3, 1982, which apparently anticipated
delivery by the Postal Service by Friday, March 5, 1982.
Actually, the date stamp used by the clerical staff at the
Division of Judges shows that the General Counsel's
brief was not received until Monday, March 8, 1982.
On Tuesday, March 9, 1982, the attorney for the Re-
spondent filed a request with the Deputy Chief Adminis-
trative Law Judge for an extension of time for the filing
of briefs from March 15, 1982, to March 25, 1982. On
March 11, 1982, counsel for the General Counsel filed a
telegraphic opposition to the Respondent's extension of
time request on the grounds that the due date for the
filing of posttrial briefs was March 5, 1982, and that the
Respondent's request was untimely made. On March 12,
1982, the Deputy Chief Administrative Law Judge
denied the extension of time request made by the Re-
spondent's attorney. Meanwhile, the Respondent's attor-
ney had mailed his posttrial brief on March 11, 1982.
The date stamp used by the clerical staff at the Division
of Judges indicates that the Respondent's brief was re-
ceived on Monday, March 15, 1982. The Respondent's
brief was received on Monday, March 15, 1982.
While the Respondent's posttrial brief does not pur-
port to be a reply brief in answer to the arguments made
in the General Counsel's posttrial brief, the time se-
quence in which the briefs were submitted is similar to
what the time sequence would have been if a reply brief
had been filed by the Respondent. In Allis-Chalmers
1163
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corp., 234 NLRB 350 (1978), Administrative Law Judge
Robert E. Mullin held at 351, fn. 4:
Sec[tion] 102.42 of the Board's rules (Rules and
Regulations and Statements of Procedure, National
Labor Relations Board, Series 8, as amended) makes
no provision for reply briefs. Neither does it prohib-
it them. Whether such briefs are to be permitted in
a specific case appears to lie within the discretion of
the Administrative Law Judge. Presumptively, the
ruling of the latter must be made with due regard
for that other section of the Rules which places on
the Administrative Law Judge the duty "to inquire
fully into the facts." Sec. 102.35 Cf. Leatherwood
Drilling Company, 180 NLRB 893 (1970).
Viewing the matter of reply briefs as being a discre-
tionary decision, I have rejected reply briefs on at least
two occasions. See International Harvester Co., 227
NLRB 85, 88 fn. 1 (1976), and A.T & S.F. Memorial
Hospitals, 234 NLRB 436, 438 (1978). However, in differ-
ent cases some other administrative law judges have ac-
cepted reply briefs. See, for example, Goshen Litho, 221
NLRB 795, fn. 1 (1975). I also note that the United
States Court of Appeals for the Second Circuit directed
that the Board consider late-filed exceptions and a sup-
porting brief where the employer in that case apparently
was confused as to the due date. See the Board's decision
in Maspeth Trucking Service, 240 NLRB 1225 (1979).
Under the unusual circumstances presented here, and
especially considering the fact the transcript does indi-
cate that the posttrial briefs were due on March 15, 1982,
I believe there has been some confusion as to the correct
due date. Accordingly, I will accept counsel for the
General Counsel's posttrial brief because she had mailed
it in time to have reasonably expected her brief would be
delivered before what I believe was the correct due date
of March 5, 1982. I will also accept the Respondent's
posttrial brief because it was mailed in time to be re-
ceived by what the transcript shows to be the due date.
For purposes of this analysis and ruling on the motion to
strike, I have treated the Respondent's brief in the same
manner as a reply brief which, as indicated above, af-
fords some discretion to the administrative law judge
who heard the case.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Board's jurisdiction over the business operations
of the Respondent is not in issue in this proceeding. The
Respondent is engaged in the manufacture of drainage
products at its Hutchinson, Kansas facility. The Re-
spondent's operations meet the Board's direct inflow and
direct outflow jurisdictional standards.
The status of the Charging Party as being a labor or-
ganization within the meaning of the Act also is not in
issue in this case. Such status was stipulated during the
trial.
11. THE WITNESSES AND CREDIBILITY RESOLUTIONS
Six persons were called as witnesses to testify during
the trial proceedings. In alphabetical order by their last
names, they are: Kenneth Cox, who is a machine opera-
tor employed by the Respondent; Larry G. Daugherty,
who is the assistant business manager and the recording
secretary of the Union; J. W. Kelley, who is the presi-
dent of J & J Holding Company, which owns and man-
ages three other companies, including the Respondent;
Betty Pinkston, who is a former employee of the Re-
spondent; Dale Smith, who is the vice president and gen-
eral manager of the Respondent, and Wayne J. White,
who is an employee of the Respondent and who had
worked at the Hutchinson facility for over 24 years at
the time of the trial.
The findings of fact to be made herein will be based
on portions of the testimony from each one of the six
witnesses who testified at the trial; on documentary evi-
dence introduced by the parties, and on stipulations
which the parties were able to agree upon. Particularly
in view of the passage of time between the occurrence of
the past events in this case and the time that the wit-
nesses testified at the trial, it is not surprising that there
were variations in the recollections of the witnesses
when they attempted to relate those past events. Some
witnesses were able to remember with greater certainty
than other witnesses the things which were said; the
dates on which the events occurred, and the sequence of
the past events. To take just one example, note the
candid testimony of Pinkston about a conversation be-
tween Smith and her:
Q.... Would say first conversation occurred
very close to the time that you heard about the
sale?
A. I don't know. I don't know, because I can't
remember, you know, how much time had elapsed
in between, but I know I asked-I feel like I went
in and asked Mr. Smith one time, about the Union,
whether or not there was going to be one, and what
was going on, and this is, I feel, is at that time that
he told me that the J & J had bought the company,
not the Union. Now, I feel like that was at that
time, and I am-I don't feel like I am wrong, so I
think maybe this was what happened. But my gosh,
I don't know. That's been a year ago, and that isn't
my life any more, and I haven't got any reason to
remember all that.
To avoid any misunderstanding, the foregoing is recit-
ed not to suggest any criticism of Pinkston as a witness.
On the contrary, it shows candor on her part at the trial.
In contrast, Smith was more certain in his recall of the
conversations he had with Pinkston and the dates of
those conversations. Kelley's testimony regarding his
conversations with Smith and regarding the sequence of
events lends support to Smith's account, while Daugher-
ty's testimony regarding his meeting with Kelley and re-
garding his conversations with Pinkston and Cox con-
flicts with the sequence of events given by Smith.
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J & J DRAINAGE PRODUCTS CO.
In this connection, I have considered certain state-
ments made, after the Union filed the unfair labor prac-
tice charge, in the Respondent's "position paper," which
was submitted on May 6, 1981, to an agent of Region 17
of the Board. The letter was submitted to the Region on
behalf of the Respondent by an attorney who was repre-
senting the Respondent at that point in time, but not the
attorney who appeared for the Respondent at the trial.
(Tr. 458.) The statement of position was received into
evidence as General Counsel's Exhibit 15 under the
Board's decision in Steve Aloi Ford, Inc., 179 NLRB 229
(1969), and the cases cited in fn. 2 therein. However, I
indicated (during the discussion reflected at tr. 459-464)
that I would once again read the Board's decision in
Steve Aloi Ford. Having done so, I adhere to the ruling
made at the trial that the Respondent's statement of posi-
tion was admissible. The Board has applied the Steve Aloi
Ford holding in subsequent cases. See, for example, the
Board's decision in Bond Press, 254 NLRB 1227 (1981),
where the statements of position were held to be admissi-
ble although, in that particular case, it was not necessary
for the Board to rely on them.
In the present case, the statement of position by the
Respondent does assert that Daugherty had spoken with
Pinkston "on or about the 27th of February, 1981," with
regard to holding a meeting with employees in Hutchin-
son, and that Pinkston had told him the employees were
no longer interested in the Union, and further it was un-
necessary for him to travel to Hutchinson. (See G.C.
Exh. 15.) Insofar as the date of their conversation is con-
cerned, the Respondent's statement lends support to
Daugherty's testimony that the conversation was on Feb-
ruary 27, 1981. The statement of position does not assert
what date Pinkston spoke with Smith, or even that such
a conversation took place between those two persons.
However, as related at the trial, the contents of the con-
versation between Pinkston and Smith disclosed that the
conversation between Pinkston and Daugherty had al-
ready taken place. Nevertheless, after considering all of
the foregoing, I found persuasive Smith's testimony on
this point that he spoke with Pinkston on February 23 or
24, 1981, with regard to the conversation in question,
and then again on February 27, 1981. Accordingly, I
have based the findings of fact on this matter on his ver-
sion. (See sec. 5 and 7 herein.)
In weighing the testimony from all the witnesses, I
have considered whether the record shows the basis for
the witness' knowledge concerning the matters about
which the witness testified. Of course, the occupation of
each witness has been a factor to consider in determining
whether the witness is identified with one of the parties
to the case and whether the witness would likely have an
interest in the outcome of the litigation. In addition, I
have considered whether a witness' testimony is consist-
ent or inconsistent with the accounts from other wit-
nesses and with documentary evidence. Having examined
all the foregoing criteria, I have based the findings of
fact to be set forth herein on the portions of the testimo-
ny from each witness which appear to me to be the cred-
ible, accurate, and reliable portions of their accounts of
the past events.
II. SEQUENCE OF EVENTS
1. The events prior to February 1981
Introduced into evidence as General Counsel's Exhibit
11 was a copy of a Certification of Representative in
Case 17-RC-4567, which had been issued on September
28, 1964, on behalf of the Board by the Regional Direc-
tor for Region 17 of the Board. The certification was
issued to the International union of the Charging Party.
The employer listed on the document was Eaton Metal
Products Corporation (Kansas Division). The unit de-
scription was:
All production and maintenance employees of the
employer's Hutchinson, Kansas, plant, including
truck drivers and plant janitor, but excluding sales-
men, office clerical employees, office janitor,
guards, professional employees, and supervisors as
defined in the Act.
According to employee White and union assistant busi-
ness manager Daugherty, the Union had been recognized
as the collective-bargaining representative of the unit em-
ployees at the Hutchinson facility from its certification in
1964 through February 20, 1981. According to Plant
Manger Smith, it was in 1974 that Allied Products Cor-
poration acquired Eaton Metal Products and began oper-
ating the Hutchinson facility. The most recent collective-
bargaining agreement at the Hutchinson plant was be-
tween Bush/Hog Eaton, a subsidiary of Allied Products
Corporation and the Charging Party union. (See G.C.
Exh. 7.) The effective dates of that agreement are from
February 25, 1980, to February 24, 1983. (See art. 26,
sec. B of G.C. Exh. 7.)
Prior to the negotiations for that last collective-bar-
gaining agreement, the Union had held a meeting on Jan-
uary 23, 1980, to explore suggestions for the Union's
contract proposals. A notice dated January 18, 1980, and
addressed "To all members and employees of Eaton
Metal Works" was posted at the facility. (See G.C. Exh.
12.) A "sign-in-sheet" was available at the union meeting
location for persons in attendance to sign. There are 12
names on the sheet. (See G.C. Exh. 13.) Daugherty ex-
plained at the trial that all the persons who attended that
meeting were not union members, and that the meeting
was open to all unit employees. He estimated that there
were approximately 10 persons who paid union dues in
January 1980. There were 39 employees in the unit as of
January 14, 1980. (See G.C. Exh. 14.) The collective-bar-
gaining agreement contains a union dues-deduction
clause. (See art. 24 of G.C. Exh. 7.)
Kenneth Cox was the chief union steward at the
Hutchinson facility, and Betty Pinkston also was a union
steward.
According to Smith, who was the plant manager for
Allied, his former employer was engaged at Hutchinson
in "manufacturing of corrugated steel pipe, manufactur-
ing of metal end sections, and 'some finish work on farm
line products, and marketing of this product in Kansas,
and Colorado, and part of Oklahoma." With regard to
what was known as the farm line products, Smith ex-
plained at the trial that the Hutchinson facility under
1165
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allied performed "the finish work [which] was the final
forming of the side wall sheets, and this would be on
grain bins, on bulk feed bins, on what they market as a
handi-hut, which is a small farm building."
2. The events on February 17, 1981
Introduced into evidence as General Counsel's Exhibit
2 was a copy of the purchase agreement between Allied
and the Respondent dated February 17, 1981. The agree-
ment provided for the Respondent to acquire certain
assets which "have been used by the Eaton Division in
the manufacture and sale of riveted corrugated steel
highway culverts and related products at Hutchinson,
Kansas." The "acquired assets" purchased by the Re-
spondent included:
Acquired Assets. Subject to the terms and condi-
tions hereinafter set forth, Seller agrees to sell,
assign, transfer, convey and deliver to Buyer, and
Buyer agrees to purchase from Seller, as of the
close of business on February 20, 1981,(the "Clos-
ing Date"), the following assets and properties of
Seller (the "Acquired Assets"):
(a) Certain real estate and improvements thereon
located in Hutchinson, Kansas (the "Hutchinson Fa-
cility") as more particularly described in the real
estate contract to be executed by the parties hereto
in substantially the form attached hereto as Exhibit
A (the "Real Estate Contract").
(b) All inventories of finished goods (including
goods on consignment, if any) work-in-process, raw
materials and purchased parts located at Hutchin-
son, Kansas (collectively, the "Inventory") relating
to the Culvert Products. It is agreed that the term
Inventory shall include Spirol culvert products lo-
cated at Hutchinson, but shall not include any farm
products such as grain bins and components or parts
related thereto which may be located at the Hutch-
inson Facility.
(c) The machinery and equipment and furniture
(collectively, the "Machinery"), substantially as set
forth in Exhibit B, together with all jigs, fixtures,
tooling and miscellaneous equipment relating to the
manufacturing of the Culvert Products located at
the Hutchinson Facility.
(d) All contracts and purchase orders for Culvert
Products received by the Eaton Division, or parts
and services of similar items relating thereto, to the
extent performance thereof by the Eaton Division
has not been completed on or prior to the Closing
Date.
(e) All assignable warranties of any sort issued by
third parties to Seller or which relate to the Ac-
quired Assets.
(f) All of Seller's right, title and interest in cer-
tain Agreements, substantially as set forth on Exhib-
it C.
(g) Subject to to the provisions of Pargagraph 15,
all of Seller's right, title and interest in and to the
name Eaton, as a trade name utilized in the manu-
facture and sale of Culvert Products.
The "definitive version" of attachment C to General
Counsel's Exhibit 2 was introduced into evidence as
General Counsel's Exhibit 4.
Introduced into evidence as General Counsel's Exhibit
3 was a copy of the bill of sale of certain machinery,
equipment, and furniture, as described therein, from
Allied to the Respondent.
3. The events on February 20, 1981
On Friday, February 20, 1981, chief union steward
Cox met briefly at 9:30 a.m. in Plant Manager Smith's
office with a representative of Allied. Cox believed that
the Allied representative was from Chicago, but Cox
was not able to recall the person's name at the trial. Just
Cox and the Allied representative were present during
the conversation. Cox testified, ". . . he informed me
that Allied was selling out, and that J & J Drainage was
the buyers. And he informed me that as of that date,
February 20, 1981, that the Union was ended."
After the morning break ended at 9:40 a.m. on Febru-
ary 20, 1981, a meeting was held at the Hutchinson facil-
ity. Present was the employees of Allied; Plant Manager
Smith; Plant Superintendent Alton J. Neill; Respondent
President Kelley, and the representative of Allied who
Cox believed was from Chicago. The meeting lasted for
approximately 20 minutes. During that meeting, Kelley
was introduced to the employees of Allied, and Kelley
spoke to them. Cox testified, "Well, he said that he had
bought the J & J Drainage, and that Monday morning,
everyone was to come back to be hired, and he also
stated that the pay raise that the Union had going in
effect February 25, would go in effect Monday morning,
February 23, 1981."
During that meeting, Kelley was asked about union
representation. According to Kelley, he responded,
"That is strictly up to the majority of you people."
Kelley added, "At our other operations, they expect me
to take care of their needs. If you feel you want the
Union, then it's up to the majority of you people."
4. The events on February 23, 1981
Introduced into evidence as General Counsel's Exhibit
5 was a list of all of the unit employees employed by the
Respondent on February 23, 1981, at the Hutchinson fa-
cility. (See the stipulations at Tr. 32-34.) All of the indi-
viduals named on General Counsel's Exhibit 5 had been
previously employed by Allied on February 20, 1981, at
the Hutchinson facility. Except for one person, the Re-
spondent hired on February 23, 1981, all of the unit em-
ployees previously employed by Allied at Hutchinson.
Thus, there were 32 unit employees as of February 23,
1981.
Pinkston pointed out at the trial that there were no
"new employees" on February 23, 1981, who had not
worked for Allied at Hutchinson. When she came to the
plant on that first day of the Respondent's operations,
Pinkston performed her work "just like normal." How-
ever, she later was laid off on March 13, 1981. She had
been one of the three Allied employees directly involved
in the finishing work on the farm line products, which
had been performed by Allied at Hutchinson. The other
1166
J & J DRAINAGE PRODUCTS CO.
two Allied employees were Jeff Flynn and Martha John.
Both Flynn and John were transferred to other jobs at
the Hutchinson plant, but Pinkston was laid off because
she was under doctor's orders to perform only "light
duties."
Cox said that his job did not change on February 23,
1981, when the Respondent began operations at Hutchin-
son. Cox used the same equipment at the plant to
produce the same products. He worked the same hours
and under the same supervisor. He filled out an employ-
ment application during the morning of February 23,
1981, after he had begun working that day. The employ-
ees were called in alphabetical order by Personnel Man-
ager Burdick to fill out their applications.
Because White was on the road for Allied on Febru-
ary 20, 1981, he was not informed until February 23,
1981, that the Respondent had begun operations at the
Hutchinson facility. At that time, Plant Superintendent
Neill told White that Allied had sold the facility and that
White could go to work for the Respondent if he wanted
to do so. White testified, "Well, he said I could continue
with my job just as always." Neill also told White that
the Respondent would start paying on that Monday the
wage increase which had been scheduled by Allied to go
into effect on Wednesday of that week. White was dis-
patched on a truck that day, and later he filled out an
employment application for the Respondent. White
stated at the trial that Allied had leased trucks, whereas
the Respondent purchased its own trucks.
According to chief union steward Cox, there were six
union members at the Hutchinson facility at that time,
but two of those were not required to pay union dues be-
cause of their union positions. Those two persons were
Cox and Pinkston. At the trial, Smith said he was aware
that only four employees were having union dues de-
ducted from their wages. It was stipulated at the trial
that Kansas is a "right-to-work" State. (See Tr. 144.)
Introduced into evidence as General Counsel's Exhibit
6 was a list of the salaried persons who were employed
by the Respondent at the Hutchinson facility on Febru-
ary 23, 1981. It was stipulated at the trial that all those
persons had been employed by Allied at the Hutchinson
facility on February 20, 1981. (See Tr. 34-35.) Smith,
who had been the plant manager for Allied at Hutchin-
son, became the vice president and general manager for
the Respondent at Hutchinson. Neill, who had been the
plant superintendent for Allied at Hutchinson, continued
to be the plant superintendent at the Hutchinson facility
after the Respondent began operations there. Paul Bur-
dick, who had been the personnel manager for Allied at
Hutchinson, continued to be the personnel manager for
the Respondent at Hutchinson, but later on, Burdick left
Respondent's employ when the position was eliminated.
According to Kelley, the "main objective" of the Re-
spondent's purchase of the assets of Allied at the Hutch-
inson facility was to obtain Allied's equipment to
produce metal end sections. In some geographical areas,
metal end sections are referred to as "flared ends,"
which are attached to corrugated steel pipe.
The Respondent was not interested in performing the
fabricating work on the farm line products, which Allied
had manufactured at Allied's Omaha, Nebraska facility
and shipped to Allied's Hutchinson plant for the finishing
work on those products. Kelley said that, within a
couple of weeks after the Respondent began operations
at Hutchinson, the Respondent had cleaned out the in-
ventory of the farm line products and shipped the equip-
ment to Allied in Omaha. As indicated above, Pinkston
was laid off as a result of the discontinuance of the fin-
ishing work on the farm line products and because of her
inability to perform other than "light duties." As indicat-
ed previously, the other two employees directly involved
with the farm line products at Hutchinson were trans-
ferred to other jobs in the Hutchinson plant.
Introduced into evidence as Respondent's Exhibit 2
was a document prepared by Smith during the week of
the trial from Allied's profit and loss statements for the
years 1977, 1978, 1979, and 1980. The document com-
pares for that 4-1/2 year period the marketing figures for
the "products included in Bush Hog/Eaton total sales
which are now marketed by J & J Drainage Products"
with marketing figures for "products included in Bush
Hog/Eaton total sales which were moved from Hutchin-
son facility." The document indicates that 53 percent of
the total sales during those 4 years were in the former
category, whereas 47 percent of the total sales were in
the latter category. At the trial, Smith acknowledged
that the sales figures included the farm line products
which had been manufactured by Allied at Allied's
Omaha facility and then shipped to Allied's Hutchinson
facility where only finishing work had been done.
The Respondent was given a record of Allied's cus-
tomer accounts, insofar as metal end sections were con-
cerned, at the time that the Respondent began operations
at Hutchinson. Through his efforts, Kelley was able to
regain Wheeling Corrugating Company and Coldwell
Culvert as customers for metal end sections produced by
the Respondent at the Hutchinson facility. Kelley ex-
plained, "They were new in the sense that it had been
some time since they had bought from Bush Hog, be-
cause they had been buying from this competitor."
Kelley believed there were others, but he could not
recall them at the trial.
According to White, all of the regular customers to
whom White has delivered products since the Respond-
ent began operations at the Hutchinson facility were cus-
tomers of Allied.
5. The conversation on February 23 or 24, 1981
On either February 23 or 24, 1981, Smith had a con-
versation with Pinkston in the culvert shop at the Hutch-
inson facility. Smith testified, "I had asked Mrs. Pink-
ston, just in general conversation, how things were
going, and she indicated to me that Mr. Daugherty had
called her and had indicated that he would like to ar-
range a meeting in Hutchinson so he could visit with the
people, and that she had told him that it really wasn't
necessary because the people were not interested in the
Union."
Pinkston recalled that "We talked about the plant, and
the people in the plant, and the interest of the Union."
With regard to the Hutchinson employees, Pinkston had
formed the opinion "they want the benefits but they
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
don't want to pay for them." At the trial, she explained
that she had talked with various employees during Janu-
ary and February 1981 at the plant. She did not recall
how many employees spoke with her, but she stated, "I
would say probably most of them, most everyone that
was there, at one time or another, I visited with them."
Her conclusion expressed at the trial was that the em-
ployees were interested in the wages and benefits con-
tained in the collective-bargaining agreement, but the
employees were not willing to pay union dues. Pinkston
testified, ". . . well, really, what people seemed to me
like they're doing, the Union was real neat for every-
body, and got them overtime, got them this and that, and
something else, but when they got all the benefits, then
they decided now that we have them, we are going to
get out of the Union, and we are not going to pay our
Union dues any more, and we will just ride on the free
sled."
On the same day as his conversation with Pinkston,
Smith also had a conversation regarding the above with
Kelley. They usually spoke on the telephone each day
during that time period on other matters. With regard to
his conversation that day with Pinkston, Smith said that
he told Kelley "That the Union Business Manager had
called and talked to her as the steward, and wanted to
arrange a meeting in Hutchinson, and that she had told
him that the members, or the majority of the people
were not interested in the Union."
6. The conversation between Daugherty and Kelley
on February 25, 1981
On February 25, 1981, Daugherty and Kelley had a
conversation in Kelley's office at Paola, Kansas. Just
those two persons were present during that conversation.
Daugherty testified:
Well, first, I introduced myself, and who I was
from, and who I worked for, and requested-told
Mr. Kelly that the Local 83 had a Collective-Bar-
gaining Agreement with-had had one with Allied
Products, and made a request that J & J recognize
our agreement, and he told me at this time, he says,
"There's no successorship in that contract, and that
Allied terminated all of their employees on Febru-
ary 20, and we gave the employees the option of
coming back to work for us on February 23, if they
so chose."
We talked some about the-one of the oper-
ations, and he told me that it would be primarily an
operation like that, the Paola, was mostly drainage
pipe, culvert part of it, and the grain bin of the busi-
ness, would be eliminated, of whatever that was at
the other facility, and that's about the extent of our
conversation. I don't recall anything else.
Kelley recalled at the trial that he told Daugherty that
he did not feel that the people in Hutchinson were inter-
ested in being represented by Daugherty. Kelley said
that he told Daugherty that he had been informed by the
general counsel of Allied that the contract was not a part
of the deal with him, and that there was no successorship
clause in the contract. At the trial, Kelley acknowledged
that he was aware that there was a union contract at the
Hutchinson facility at the time that the Respondent
bought the assets there, but Kelley testified, "I was told
they represented six people." Kelley also said that, prior
to his conversation with Daugherty, he had been in-
formed by Allied that there were only four employees
who were having union dues withheld from their wages.
7. The conversation between Pinkston and Smith on
February 27, 1981
After the Respondent had begun operations at the
Hutchinson facility, Pinkston was asked by several em-
ployees as to whether there was going to be a union at
the plant. As a result of those conversations, Pinkston
again spoke with Smith. Smith testified, "On Friday,
February 27, in my office, Mrs. Pinkston came in and
said-told me [that] she had been getting a number of
questions from people in the plant about the status of the
Union. And she wondered if I could clarify or say any-
thing about it, and I told her it was really up to the
people what happened to the Union, and she asked me if
it was possible that they could buy the company and not
buy the Union, and I told her that I didn't know."
Either on February 27, 1981, or the following
Monday, March 2, 1981, Smith related to Kelley the sub-
stance of his conversation with Pinkston. During the first
few weeks of the Respondent's operation of the Hutchin-
son facility, Kelley had additional conversations with
Smith in which Kelley asked Smith if there was any
union activity at the facility.
8. The union meeting held on March 4, 1981
Daugherty contacted both Cox and Pinkston with
regard to arranging a union meeting for the employees in
Hutchinson. Daugherty said, "I had called Kenny and
Betty, and told them to tell the people, to invite them"
Unlike the union meeting held in January 1980, Daugh-
erty said that he did not have an opportunity to post a
notice of the meeting at the plant.
Cox said that he made an effort to invite other em-
ployees to attend the union meeting, Cox said, "Some of
them said they would try to 'make it, and some of them
said they had other plans." Cox was the only employee
who attended the meeting. Daugherty testified with
regard to Cox, "He said the-basically the same thing
that Betty said, that the people just don't seem interest-
ed."
At the trial, Cox related that he talked with employees
after the Respondent began operations at Hutchinson.
Cox expressed at the trial his conclusion, "Well, I just
feel they may have not really wanted the Union. They
just didn't want to pay the dues, and I think, mainly, was
the reason. That of the dues, having to pay the dues."
No other union meetings were held.
9. The letter dated March 19, 1981, from the Union
to the Respondent
By letter dated March 19, 1981, the Union made a
formal demand on the Respondent for recognition and
also a request for collective-bargaining negotiations. (See
G.C. Exh. 9.) In part, the Union's letter stated:
1168
J & J DRAINAGE PRODUCTS CO.
Boilermakers Lodge 83 was the certified collec-
tive bargaining representative for employees in the
appropriate collective bargaining unit at your newly
acquired facility in Hutchinson, Kansas. This letter
is a formal demand for recognition and a request to
bargain collectively on behalf of your employees at
the Hutchinson facility. Such demand for recogni-
tion is made pursuant to our status as collective bar-
gaining representative as established by the National
Labor Relations Board. Any unilateral changes you
make concerning the terms or conditions of employ-
ment for the unit employees at the Hutchinson facil-
ity from the receipt of this letter shall be deemed a
breach of your bargaining obligation. I am available
to meet with you at a mutually convenient time to
negotiate. I am available to meet on the following
dates: March 26, 1981, March 27, 1981, April 2,
1981. If these dates are not convenient for you
please let me know what dates would be.
Please contact me at your earliest convenience to
set a meeting. I am looking forward to hearing from
you.
10. The letter dated April 3, 1981, from the
Respondent to the Union
By letter dated April 3, 1981, the Respondent replied
to the Union's letter of March 19, 1981. (See G.C. Exh.
10.) In part, the Respondent's letter stated:
It is my understanding that Boilermakers Lodge
83 was the collective bargaining representative for
some of the employees for Bush Hog/Eaton's oper-
ation in Hutchinson, Kansas.
As I explained to you when you were in my
office, Allied Products Corporation terminated all
Bush Hog/Eaton employees at the Hutchinson,
Kansas facility. On the same date, J & J Drainage
Products Company bought from Allied part of the
fixed assets and part of the inventory located at
Hutchinson. As of February 23, 1981, J & J Drain-
age Products Company did hire most of the people
Allied had terminated.
To my knowledge, the employees at J & J Drain-
age Products Company have not requested you to
represent them in any way.
11. Subsequent events after the Respondent's
refusals to recognize the Union
On April 30, 1981, Smith had a conversation with
Plant Superintendent Neill in Smith's office. Neill report-
ed to Smith that Cox had told him that Cox had told
Daugherty that the people were not interested in the
Union. Neill also reported to Smith that Cox told him
that a union meeting had been held during the first part
of March, and that Cox was the only one who attended.
(The foregoing was not received for the truth of the
matter asserted by the out-of-court declarant. See the dis-
cussion at Tr. 439-446. However, also note the findings
in sec. 8 herein.)
As a result of his conversation with Neill, Smith in-
formed Kelley by letter of the conversation Smith had
with Neill.
By June 1981, the Respondent had 33 employees.
Kelley said that two or three employees had quit work-
ing for the Respondent, and that the Respondent had laid
off four or five employees from work.
IV. CONCLUSIONS
1. As to successorship
The United States Supreme Court held in NLRB v.
Burns Security Services, 406 U.S. 272, 279 (1972), "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 em-
ployer."
In its decision in Saks Fifth Avenue, 247 NLRB 1047,
1050-51 (1980), the Board stated:
The Board has held that, in determining succes-
sorship, the keystone is whether there is substantial
continuity of the employing industry.6 Continuity
of the employing industry requires consideration of
the work done . . . as well as consideration of the
work force ....
I Miami Industrial Trucks Inc., 221 NLRB 1223 (1975), where
the Board recognized a successorship to a portion of the predeces-
sor's operation, to wit, one product line with the successor con-
tinuing to service it for the same customers employing four service
employees, three of whom were employees of the predecessor. See
also Mondovi Foods Corporation, 235 NLRB 1080, fn. 8 (1978).
Without repeating here the findings of fact which have
been set forth previously, I conclude that the evidence
shows that there was continuity in the employing indus-
try when the Respondent began its operation of the
Hutchinson facility on February 23, 1981. 1 find the fol-
lowing factors to be persuasive; (1) the Respondent com-
menced its operations at the same facility and location as
Allied had occupied; (2) the Respondent employed the
same unit employees, with one exception, as Allied had
employed; (3) the Respondent had the same plant man-
agement and supervisors as Allied had; (4) there was no
hiatus in plant operations because Allied ceased oper-
ations on Friday and the Respondent commenced oper-
ations on Monday; (5) the Respondent utilized the same
equipment, except for the farm products line, as Allied
had used; (6) the Respondent manufactured substantially
the same products, except for the finishing work on the
farm products line, as Allied had manufactured at the fa-
cility; and (7) the Respondent served substantially the
same customers as Allied had previously served.
The discontinuance of the finishing work on the farm
products line affected only 3 unit employees out of 32
employees. Two of these three employees were trans-
ferred to other jobs in the plant. The evidence shows
that Pinkston was laid off from work not just because of
the discontinuance of the farm products line, but also be-
cause her doctor had restricted her to performing "light
duties." In these circumstances, the discontinuance of the
finishing work had relatively little effect on the unit em-
1169
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees. Furthermore, I find persuasive counsel for the
General Counsel's argument with regard to the figures
shown on Respondent's Exhibit 2. The exhibit reflects
the total value of the farm products line, rather than just
the finishing work which had been performed at the
Hutchinson facility. The evidence seems clear that the
farm products were manufactured by Allied elsewhere
and sent to the Hutchinson facility only for finishing
work.
After considering all of the foregoing, I conclude that
the evidence establishes that the Respondent is a succes-
sor employer. See the Board's decision in First Food Ven-
tures, 229 NLRB 1228 (1977).
2. Continuing majority status
Having concluded that the Respondent is a successor
employer, I turn now to the issues raised by the Re-
spondent's refusal to recognize the Union as the collec-
tive-bargaining representative of the unit employees. In
this connection, it is helpful to study the Board's decision
in Pennco, Inc., 250 NLRB 716 (1980), where the Board
stated at 716-717:
..absent unusual circumstances, a union is irrebu-
tably presumed to enjoy majority status during the
first year following its certification. 2 Upon expira-
tion of the certification year, the presumption of
majority status continues but becomes rebuttable. 3
An employer who wishes to withdraw recognition
from a certified union after a year may rebut the
presumption in one of two ways; (1) by showing
that on the date recognition was withdrawn the
union did not in fact enjoy majority support, or (2)
by presenting evidence of a sufficient objective basis
for a reasonable doubt of the union's majority status
at the time the employer refused to bargain.4
The presumption of continuing majority status es-
sentially serves two important functions of Federal
labor policy. First, it promotes continuity in bar-
gaining relationships. Thus, section 9 of the Act
gives the Board authority to supervise elections and
to certify as the exclusive collective-bargaining rep-
resentative a labor organization which wins an elec-
tion and "inherent in any sucessful administration of
such a system is some measure of permanence in the
results....-"5 The resulting industrial stability re-
mains a primary objective of the Wagner Act and
to an even greater extent, the Taft-Hartley Act. 6
Second, the presumption of continuing majority
status protects the express statutory right of em-
ployees to designate a collective-bargaining repre-
sentative of their own choosing, and to prevent an
employer from impairing that right without some
objective evidence that the representative the em-
ployees have designated no longer enjoys majority
support.
As set forth above, the employer after the certifi-
cation year may rebut the presumption of majority
status with less than actual proof that a.union lacks
majority support by establishing objective evidence
forming a reasonable basis for a good-faith doubt of
that status. However, in light of the dual policies
underlying the presumption, the employer's burden
is a heavy one. Thus, "it is insufficient . . . that the
employer merely intuits nonsupport," 7 and good-
faith doubt "may not depend solely on unfounded
speculation or a subjective state of mind." 8
2 Ray Brooks v. N.L.R.B., 348 U.S. 96, 98-104 (1954).
s J. Ray McDermott & Co., Inc. v. N.L.R.B., 571 F.2d 850 (5th
Cir. 1978), enfg. 233 NLRB 1087 (1978); N.LR.B. v. Windham
Community Memorial Hospital and Hotel Hospital Corporation, 577
F.2d 805 (2d Cir. 1978), enfg. 230 NLRB 1070 (1977); N.LR.B. v.
Frick Company, 423 F.2d 1327 (3d Cir. 1970), enfg. 175 NLRB 233
(1969); and Celanese Corporation of America, 95 NLRB 664 (1951),
cited with approval in Ray Brooks v. NLRB, supra.
4 Retired Persons Pharmacy v. NLRB, 519 F.2d 486 (2d Cir.
1975), enfg. 210 NLRB 443 (1974); Allied Industrial Workers, AFL-
CIO, Local Union No 289 [Cavalier Division of Seeburg Corporation]
v. NLRB, 476 F.2d 868 (D.C. Cir. 1973), enfg. 192 NLRB 290
(1971); Terrell Machine Company v. N.LR.B., 427 F.2d 1088 (4th
Cir. 1970), enfg. 173 NLRB 1480 (1969).
a N.LR.B. v. Century Oxford Mfg. Corporation, 140 F.2d 541,
542 (2d Cir. 1944), enfg. 47 NLRB 835 (1943).
6 N.L.R.B. v. Brooks, 204 F.2d 899 (9th Cir. 1953), enfg. 98
NLRB 976 (1952), affd. J. Ray Brooks v. NLR.B., 348 U.S. 96
(1954).
7 Ray McDermott and Co., Inc. v. NLRB. supra at 859.
a N.LR.B. v. Gulfmont Hotel Company, 362 F.2d 588 (5th Cir.
1966), enfg. 147 NLRB 997 (1964).
With the foregoing guidance from the Board in mind,
the legal principles summarized by the Board will be ap-
plied to the facts presented in this case. First of all, it is
clear in this case that the certification year had expired
long ago. In fact, about 16-1/2 years had elapsed be-
tween the certification of the Union on September 28,
1964, as the collective-bargaining representative of cer-
tain employees of the predecessor employer, and the re-
fusals by the Respondent as a successor employer to rec-
ognize the Union. Thus, the presumption of the Union's
majority status arising from the Union's certification and
the Union's subsequent collective-bargaining agreement
with the predecessor employer is a rebuttable presump-
tion.
As indicated in the Board's decision quoted above, an
employer may rebut the presumption in two different
ways. As to the first method, I conclude that the evi-
dence has not established that the Union did not, in fact,
enjoy majority support among the unit employees at the
time of the Respondent's refusals to recognize the Union.
While it is clear in this case that the Union had only 6
members out of a unit of 32 employees, the Board has
drawn a distinction between union membership and em-
ployee support of a union. In Wald Transfer & Storage
Co., 218 NLRB 592 (1975), the Board held:
It has been clearly established that a distinction
exists between union membership and union sup-
port, foreclosing relying upon one as evidence of
the other. Here, union membership being voluntary
in this right-to-work State emphasizes that distinc-
tion. Many employees while approving of the
1170
J & J DRAINAGE PRODUCTS CO.
Union may not choose to give it their financial sup-
port or participate as members.8
S See Terrell Machine Company, 173 NLRB 1480 (1969), enfd.
427 F.2d 1088 (C.A. 4, 1970), cert. denied 398 U.S. 929; N.LR.B.
v. Gulfmont Hotel Company, 362 F.2d 588, 592 (C.A. 5, 1966).
The Board stated in its decision in Hotel & Restaurant
Employers Bargaining Assn. of Pocatello, Idaho, 213
NLRB 651, 652 (1974):
Similarly, the Board, with court approval, has
held that a showing that less than a majority of the
employees in the unit are members of the union is
not the equivalent of showing lack of majority sup-
port. The reason is substantially the same as that re-
garding the checkoff figures, namely, that no one
can know how many employees who favor union
representation do not become or remain members of
the Union.
Thus, while the evidence regarding union membership
and the other matters to be discussed herein do not es-
tablish the first method for rebutting the Union's pre-
sumption of majority status, I conclude that such factors
may be considered in analyzing the second method, i.e.,
"(2) by presenting evidence of a sufficient objective basis
for a reasonable doubt of the union's majority status at
the time the employer refused to bargain." Pennco, supra,
250 NLRB at 716. At first, this may appear to be an in-
consistent approach; that is, suggesting that evidence
which fails to establish the first test may still be urged by
the Respondent to meet the second test for rebutting the
presumption of the union's majority status. However, the
reason that such an approach does not appear to be in-
consistent is that the two tests, or two methods, are dif-
ferent. The first method deals with establishing a fact,
whereas the second method pertains to "a sufficient ob-
jective basis for a reasonable doubt." Therefore, I con-
clude that the Respondent here is not precluded from re-
lying upon its knowledge that only 6 out of the 32 unit
employees were union members as one factor to support
the Respondent's claim that it had a reasonable doubt of
the Union's majority status.
Another basis urged by the Respondent is the state-
ment from union steward Pinkston that the employees
were not interested in the Union. The fact that Pinkston
was one of the two union stewards at the plant, and the
fact that the unit was relatively small with 32 employees,
both are matters which would warrant giving Pinkston's
comment more weight. Thus, I conclude that this situa-
tion is different from the one in Golden State Habilitation
Center, 224 NLRB 1618 (1976), where the Board held at
1619-1620:
The employee statements are some indication of em-
ployee dissatisfaction. However, they are entitled to
little weight to the extent they purport to convey
the sentiments of employees other than themselves.
Otherwise, a few antiunion employees could pro-
vide the basis for a withdrawal of recognition when
in fact there is actually an insufficient basis for
doubting the Union's continued majority. Since
those who expressed antiunion sentiments were few
in number, we conclude that Respondent could not
rely heavily on these expressions in refusing to bar-
gain.
While Pinkston's comment to management does not es-
tablish proof of the first method for rebutting the
Union's majority status, I conclude that the Respondent
may rely on her statement in support of the Respondent's
reasonable doubt. With regard to the Respondent's reof-
fering of the evidence regarding statements made by em-
ployees to a union steward as being an exception to the
hearsay rule based on a "present sense impression" (Tr.
365-368), see the Board's discussion of that exception to
the hearsay rule in its decision in Cumberland Farms
Dairy, 258 NLRB 900 fn. 1 (1981). With the Board's dis-
cussion of that exception to the hearsay rule in mind, I
conclude that the exception is not applicable to the evi-
dence being offered here.
Significantly, there are no other unfair labor practices
alleged to have occurred during the period of time that
the Respondent refused to recognize the union. Thus, the
Respondent has asserted its reasonable doubt of the
union's majority status in a context which is free of
unfair labor practices.
The matters which are described in section 11 herein
took place subsequent to the Respondent's two refusals
to recognize the Union and, therefore, I conclude that
those matters cannot be relied on as objective bases for
the Respondent's earlier decisions because they came to
the Respondent's knowledge after the fact. Although the
union meeting occurred on March 4, 1981, which was
prior to the Respondent's second refusal to recognize the
union, I conclude that the evidence does not prove that
the Respondent had knowledge prior to its April 3, 1981
letter to the Union that only Cox had attended the union
meeting.
In summary, I conclude that the Respondent has re-
butted the presumption of the Union's majority status at
the times of the Respondent's two refusals to recognize
the Union by the following objective bases for the Re-
spondent's reasonable doubt: (1) the fact that the certifi-
cation of the Union had occurred 16-1/2 years ago in a
unit of the predecessor's employees; (2) the fact that only
6 out of the 32 unit empoyees were union members; (3)
the comments made to the Respondent by union steward
Pinkston; and (4) the fact that the foregoing occurred in
a context free of any unfair labor practices by the Re-
spondent.
In view of the foregoing, I conclude that a preponder-
ance of the evidence does not support the General Coun-
sel's complaint allegations, and that I must recommend
to the Board that the General Counsel's complaint be
dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a successor employer to the busi-
ness at the Hutchinson, Kansas facility formerly operated
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Bush Hog/Eaton, a subsidiary of Allied Products
Corporation.
3. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
4. The Respondent has not engaged in the unfair labor
practices alleged in the General Counsel's complaint in
this proceeding for the reasons which have been set forth
above.
On the basis of the foregoing findings of fact and con-
clusions of law and on the entire record in this proceed-
ing, I issue the following recommended'
ORDER
It is hereby ordered that the complaint in this proceed-
ing be dismissed in its entirety.
I 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.
1172