Band-Age, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1975

217 N.L.R.B. 449 (N.L.R.B. 1975)

BAND-AGE, INC. 449
Band-Age,. Inc. and Textile Workers Union of
America, AFL-CIO. Case 1-CA-9767
April 21, 1975"
DECISION AND ORDER
By MEMBERS JENKINS, KENNEDY, AND PENELLO
On September 30, 1974, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
Our dissenting colleague has catalogued certain facts
and inferences which, standing alone, depict little or no
continuity between Paulis Silk Company and Respond-
ent. The Administrative Law Judge has presented, in
his factual findings, a more complete description of the.
relationship between the two which adequately sup-
ports his and our conclusion that Respondent is the
successor of Paulis Silk for the purpose of establishing.
its obligation to bargain with the Union when a
majority of its employees consisted of former Paulis
Silk employees.`
We limit our discussion of the facts to points raised
by the dissenting opinion. The point is made that Re-
spondent did not purchase fixed assets, machinery, fix-
tures, or furniture from Paulis Silk. As the dissent ac-
knowledges, Respondent leased such items from Paulis
Silk. We do not think the form of the business transac-
tion under which the parties agreed to have Respond-
ent take this equipment over is of great significance for
purposes of determining the rights and obligations un-
der the Act.
Although there was testimony that the narrow elas-
tic bandage made by Respondent is not the same
"type" that was produced by Paulis Silk, it is clear that
it was similar enough so that it was made with the same
machinery as a narrow elastic bandage Paulis Silk pro-
duced. Moreover, the operations are so similar that
most of Respondent's employees are doing the same
jobs they did at Paulis Silk. We think, finally, that our
See United Maintenance & Manufacturing Co., Inc., 214 NLRB No. 31
(1974).
dissenting colleague's statement, that the Paulis Silk
workers had been terminated for approximately a
month with little or no expectation of reemployment at
the plant, ignores the Administrative Law Judge's find-
ings that before Paulis Silk closed an employee who was
the president of the Union was told that the operations
would be continued, another employee was told Re-
spondent would reopen the plant, and Paulis Silk em-
ployees were told on their last day that Respondent
would be taking applications from "anyone that was
interested in coming back to work there."
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, Band-Age, Inc., Central Falls, Rhode Is-
land, its officers, agents, successors, and assigns, shall
take the action set forth in said recommended. Order.
MEMBER KENNEDY, dissenting:
Contrary to my colleagues, I do not agree with the
Administrative Law Judge's finding that Respondent
Band-Age, Inc., is a successor to Paulis Silk within the
meaning of the Act and thus obligated to bargain with
the Union which had previously represented the em-
ployees of Paulis Silk. The evidence clearly shows that
no substantial continuity in the work force exists, and
that Band-Age's operation resembles that of Paulis Silk
only to the minor extent that it is engaged in the same
general industry. I would dismiss the complaint in its
entirety.
Paulis Silk was engaged in manufacturing broad-
loom textile materials, industrial tape, narrow elastics,
ace bandages, and rubber elastic bandages at a plant
located in Central Falls, Rhode Island. The main oper-
ation was spread over four floors, including the base-
ment, using about 80,000 square feet of space. Paulis
Silk also used about 32,000 square feet of space in
another building. From a peak of about 250-300 em-
ployees, its employee complement gradually decreased
to about 150-170 employees in 15-20 job classifications
in 1972. In early 1973 it further decreased to 80 em-
ployees. At the time Paulis Silk went completely out of
business on December 18, 1973, it employed only 25 to
30 employees.
At the height of its operation, Paulis Silk had about
150 machines in 12-15 categories including narrow and
broad looms, weaving machines, warpers, quillers, and
packaging machines. Paulis Silk had four or five cus-
tomers, including Surgicot, a small customer which
bought only "irregular" goods.
During the year 1973 Paulis Silk completely phased
out its operations in Rhode Island and arranged to sell
217 NLRB No. 71
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and transport about half of its machinery to another
employer in Puerto Rico. Paulis Silk planned to scrap
the balance of its machinery.
In the latter part of 1973 Surgicot2 hired Peacock,
who had been plant manager for Paulis Silk, and
Greco, who had been controller for Paulis Silk, as plant
manager and administrative manager , respectively, for
Respondent , which began its corporate existence in Oc-
tober 1973 . In January 1974 Respondent entered into
two lease agreements with Paul is Silk, one to lease
about 20,000 square feet, i.e., "all of the first floor
... and a portion of the basement ," of the building used
by Paulis Silk; and the other to lease office furniture
and equipment and about 46-50 machines , including
looms and quillers and three unspecified types for the
production of one product , a narrow rubber elastic
bandage.' Respondent purchased only remnants of
Paulis Silk's inventories and supplies , finished rubber
elastic bandages , work in process , and raw materials
related thereto. It did not purchase good will , customer
accounts , fixed assets , machinery , fixtures , or furniture.
Respondent Band -Age began production on or about
January 14, 1974, about 4 weeks after Paulis Silk had
ceased production . On January 2,3, and 4, 1974, Re-
spondent advertised for workers in the Pawtucket
Times newspaper and it received about 300 applicants.
The record does not show the number of employees on
its payroll at the start of operations , but at pertinent
times Respondent had a complement of about 37-40
employees in 7-8 job classifications . Thirty-five were
former Paulis Silk employees who at some time in the
past had been members of the Union . There was a
union -security clause in the contract between the
Union and Paulis Silk which expired on December 31,
1973. Respondent also hired three former Paulis Silk
supervisors , and as noted , supra, the former plant
manager and controller . There is no evidence as to
whether the 35 former employees of Paulis Silk con-
tinued their union membership beyond the expiration
of Paulis Silk's union -security and dues-checkoff
clauses.
Respondent makes only a narrow rubber elastic
bandage for its major customers , Surgicot , Eastern
Scientific , and American Hospital , and "drop ships" its
product to others unidentified on the record.
It is well settled that a change in ownership of a
business enterprise does not, of itself, relieve the new
owner from an obligation to recognize and bargain with
the union that represented the predecessor 's employees.
2 The record does not clarify the relationship between Surgicot and Re-
spondent.
3 The narrow rubber elastic bandage produced by Respondent is not the
same type of bandage which was produced by Paulis Silk. The latter made
industrial tapes , a fabric for airplane wings , adhesive bandages , cohesive
bandages , and fabric webbing for undergarments . Respondent does not
make any of the latter products.
N. L. R. B. v. Burns International Security Services, Inc.,
406 U.S. 272 (1972); John Wiley & Sons, Inc. v. Living-
ston , 376 U.S. 543 (1964). As the Supreme Court stated
in Wiley, "[t]he object of national labor policy, reflected
in established principles of federal law, require that the
rightful prerogatives of owners independently to ar-
range their business and even eliminate themselves as
employers be balanced by some protection to the em-
ployees from a sudden change in the employment rela-
tionship . . . .s4 The crucial test developed by the
Board- and sanctioned by the courts in determining
whether a successor-employer inherits the labor obliga-
tions of the predecessor is whether the employing in-
dustry remained the same after the transfer . Conse-
quently , the Board does not find successorship where
all the circumstances demonstrate that there has been
a substantial and material alteration in the employing
enterprise . Lincoln Private Police, Inc., 189 NLRB 717
(1971).
It is my view that the circumstances present in this
case cannot suffice under the legal tests set forth in the
precedents , including J-P Mfg., Inc., 194 NLRB 965
(1972), on which the Administrative Law Judge relied,
to establish successorship here. Respondent is not a
successor because there is no substantial continuity of
the same business operation . There is no dispute that
Respondent uses less than one-fourth of the floor space,
about one-third the number of machines , and about
one-tenth the number of employees that the predeces-
sor used at the peak of its operation . Furthermore Pau-
lis Silk had completely ceased production and laid off
its entire production work force almost 4 weeks before
the Respondent began production on January 14, 1974.
Since the Respondent did not start to hire employees
until January 1974 this meant that the workers had
been terminated for approximately 1 month with little
or no expectation of reemployment at the Paulis Silk
plant . While a majority of the employees subsequently
hired by the Respondent were former Paulis Silk em-
ployees, it cannot be said in these circumstances that
there was a sudden change in their employment rela-
tionship brought about by the sale of the business to the
Respondent . This hiatus in their employment is a sig-
nificant , although not controlling , factor in determin-
ing whether there was continuity in the employing in-
dustry.
Also to be considered is whether the changes in the
methods of the type of market supplied and the kind of
products produced substantially altered the nature and
character of the employing industry . These factors
show changes in the type of product made , a change
from supplying several products to supplying a single
product to a different market except for one customer.
Furthermore , there is not to be ignored the hiatus be-
John Wiley & Sons, Inc. v . Livingston , supra, 549.
BAND-AGE, INC.
tween the discontinuance of production by Paulis Silk
and the commencement of production by the Respond-
ent. Accordingly, I find that there was no continuity of
the employing enterprise. I further find that the nature
and character of the employing industry at Respondent
was sufficiently altered so that the Respondent could
not be considered a successor-employer to Paulis.
Gladding Corporation; Gladding-Paris Corporation, 192
NLRB 200 (1971). Cf. Galis Equipment Company, Inc.,
194 NLRB 799 (1972).
In my view, Respondent was not obligated to bargain
with the Union for the additional reason that there is
no proof in this record that the employees hired by
Respondent were union members at the time that Re-
spondent hired them. Thus, although they had been
members of the Union while employed some time by
Paulis Silk, the record does not contain any evidence as
to any employees' work history, e.g., when they were
hired or laid off by Paulis Silk, or whether they were
laid off sometime prior to the time that Paulis Silk
closed its operation in late 1973. There is no proof that
the 35 employees who were hired by Respondent after
it began operations in 1974 were employees on the
Paulis Silk payroll and on dues checkoff in late 1973
when the latter ceased operations. They may have been
employees who were laid off by Paulis Silk in 1972 or
early in 1973 when it began to cut back on its opera-
tions and significantly reduce its employee comple-
ment.
Apart from the fact that Respondent's operations are
a mere microcosm of those of Paulis Silk, Respondent
employs only a small number of the number of em-
ployees Paulis Silk had in 1972 and 1973 before its final
drastic cutback and phaseout of operations in Decem-
ber 1973. Plainly, there is no substantial continuity of
identity in the work force when Respondent hires a
small minority of the predecessor's employees. In How-
ard Johnson Co., Inc. v. Detroit Local Joint Executive
Board, Hotel & Restaurant Employees & Bartenders,
International Union, AFL-CIO, 417 U.S. 249 (1974),
the Supreme Court held that there was a successor
obligation in John Wiley & Sons, Inc. v. Livingston,
supra, because of "the wholesale transfer of . . . em-
ployees" to Wiley.' It is clear in this case that Re-
spondent does not have "the same or substantially the
same work force.s6
There is no evidence in this record to support a
finding that the Union has been selected by a majority
of Respondent's employees to represent them in bar-
gaining . We do not know how many of them would
want to have this Union represent them, nor do we
5 See my dissenting opinion in United Maintenance & Manufacturing Co.,
Inc, 214 NLRB No. 31 (1974).
6 Georgetown Stainless Mfg. Corp., 198 NLRB 234 (1972).
451
know whether or not they have continued to be union
members. . %
In my opinion , no statutory policy is served by a
bargaining order in this case since there is no basis for
finding that the Union represented a majority of the
employees after the change in ownership . My col-
leagues ignore the statutory policy banning recognition
of a minority union . International Ladies' Garment
Workers' Union , AFL-CIO v. N.L.R.B., 366 U.S. 731
(1961). It is not the prerogative of this Board to choose
a union as bargaining representative for employees.
The statute guarantees to employees the right to make
the choice and it does not empower this Board to make
the choice for them.
Based on the evidence in this case, I would find that
there was not a substantial continuity of identity in the
work force , nor in the business operations . Therefore,
the complaint should be dismissed.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This was
heard at Providence, Rhode Island , on August 14, 1974,
based on charges filed April 16, 1974, and a complaint issued
June 5, 1974, alleging that Respondent violated Section
8(a)(1) and (5) of the Act.
Upon the entire record in the case, including my observa-
tion of the witnesses, and upon consideration of briefs, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION
INVOLVED
Respondent is, as it admits, a Rhode Island corporation,
and an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act at its plant at 131 Clay
Street, Central Falls, Rhode Island. At this plant, Respond-
ent manufactures narrow elastic bandages. The Union is a
labor organization within the meaning of Section 2(5) of the
Act.
11. THE UNFAIR LABOR PRACTICES
A. The Issue
The sole issue in this case is whether Respondent, Band-
Age, Inc ., was a "successor" to Paulis Silk Company. If it
was, then it was obligated to bargain with the Union, which
had represented the employees of Paulis Silk, and it violates
Section 8(a)(5) and (1) of the Act by refusing to do so.
B. The Facts
The operative facts are virtually undisputed, although
some of the relationships between and among various compa-
nies involved in different transactions do not emerge too
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly from the evidence . Essentially , Paulis Silk was en-
gaged , until December , 1973, in manufacturing plastic band-
ages of various sorts ,' at its plant located at 131 Clay Street,
Central Falls , Rhode Island . At one time, Paulis Silk also
utilized some other space in unspecified other buildings; the
record does not show when . Paulis Silk's principal customers
were Becton-Dickinson and the United States Government.
It also sold products to Surgicot , but only "seconds ," and to
two smaller customers . At its 131 Clay Street plant , Paulis
Silk utilized about 80,000 square feet of floor space on all four
floors . Some other companies , Harcourt and York Finishing,
also occupied space in that plant , and were apparently related
to Paulis Silk, but , as noted above, the relationships do not
clearly appear from the testimony . At its peak , some 8 to 10
years ago , Paulis Silk employed about 250 to 300 employees.
By 1972, its employee complement was down to about 150 to
170 employees , in some 15 to 20 classifications . In 1973, it
was down to approximately 80 employees , and, at the end of
1973, about 25 to 30 employees remained.'
The Union , Textile Workers Union of America,
AFL-CIO, which has represented employees of Paulis Silk
for many years , in April 1973 executed a new contract with
the Company , with an expiration date of December 31, 1973.
The reason for the short time of, and the increased severance
pay provided in, the new contract was Paulis Silk's represen-
tation to the Union it would be out of business by the end of
the year . Paulis Silk ceased doing business as such on Decem-
ber 18, 1973. Prior thereto , Becton -Dickinson had purchased
close to 50 of Paulis Silk's broadloom machines and taken
them to Puerto Rico . In addition, a number of Paulis Silk's
supervisors , office personnel, and employees had gone to
Puerto Rico to help Becton -Dickinson establish a factory
there.'
Band-Age, Inc., began operations at 131 Clay Street on
January 14, 1974. Prior thereto, Band -Age had arranged to
lease the factory at that location , as well as about 50 ma-
chines, from Paulis Silk.4
On January 2,3, and 4 , 1974, Band-Age advertised in the
Pawtucket Times for employees . Out of approximately 300
replies to the ads , Band -Age hired about 35 employees, and,
by the middle of April 1974, it had approximately 37 em-
ployees, of whom all but two had been Paulis Silk employees
and were members of the Union . Some time early in October,
Paulis Silk foreman Roland LaForge had told employee and
President of the Union Rita McCabe that the operations
would be continued . Late in November , Peacock was advised
that he would remain with the new company' as plant
I Consisting of broadloom textile materials , industrial tapes, narrow elas-
tics, ace bandages , and rubber elastic bandages.
2 Again , the testimony is somewhat confusing . Plant Manager John Pea-
cock testified that there were about 25 to 30 employees remaining at the end
of the year , but Controller Robert Greco testified that there "were 98 union
employees " on Paulis Silk 's final day of operations . I think Greco was
confused , and find in accordance with Peacock 's testimony , which comports
with the other factors , such as the decline in the number of machines by that
time because of the sale of many to Becton-Dickinson.
3 Another company , Ace Bandage, was set up for this purpose. It is
apparently an alter ego for Becton - Dickinson , but again the relationships
were not clearly established by the testimony . They are not significant, in
any event.
' The lease was actually from 131 Realty Co., apparently part of Paulis
Silk, as the testimony generally was in terms of a lease between Paulis Silk
and Band-Age.
manager , and he supervised the moving of machinery to
where the new company wanted it . Peacock also told em-
ployee Russel Levasseur that he could leave his personal
belongings in his locker to await the reopening of the plant
by Band -Age. On the last day of Paulis Silk's operations,
Peacock advised the remaining employees to "watch the
newspaper, and they were going to take applications for em-
ployment , and that anyone that was interested in coming
back to work there would come and fill out an application."
As noted , John Peacock , who had been plant manager of
Paulis Silk, did become plant manager of Band -Age. Paulis
Silk supervisors Ray Fournier , Roger Tondreau , and Real
Pare also became supervisors for Band - Age, and Frances
Podolski, who had been "floorlady" for Paulis Silk, occupied
the same position for Band -Age. Robert Greco, who was the
controller for Paulis Silk, and represented Surgicot in the
negotiations leading to Band -Age leasing the factory and
equipment described above, became Administrative Manager
of Band-Age, although he spends only about 50 percent of his
time on Band -Age matters , as he also runs Harcourt.'
Plant Manager Peacock testified that "most of the em-
ployees I hired [at Band- Age] are doing the same jobs [as at
Paulis Silk]." During 1972, when Paulis Silk had between 150
and 170 employees , there was about 15 to 20 categories of
employees . The record does not show the number of classifi-
cations extant during 1973, or just prior to the Paulis Silk's
closing . Band -Age, at material times, had about seven or
eight classifications of employees .7 Paulis Silk had used
some 150 machines , whereas Band-Age used about 46 ma-
chines. The former number was obviously the figure either at
Paulis Silk's peak employment , or at the latest in 1972, for
many machines had long before the end of 1973 been sold to
Becton -Dickinson , and others had been scrapped.
On April 3, 1974 , the Union requested Band- Age to recog-
nize it as the exclusive bargaining representative for its em-
ployees, and Band -Age declined to recognize the Union. As
indicated above, if Band -Age was a successor to Paulis Silk,
Band -Age was obligated to recognize the Union.
C. Discussion
The General Counsel and Respondent are in agreement as
to the principles of law applicable to this case . Each cites
f-P Mfg., Inc., Successor to Traverse City Manufacturing,
Inc., 194 NLRB 965, 968 ( 1972), where the Board adopted
the Administrative Law Judge 's formulation of the "ques-
tions asked" in determining successorship, as follows:
(1) Whether there has been a substantial continuity of
the same business operations ; (2) whether the new em-
ployees use the same plant ; (3) whether he has the same
5 At this point he had dealt with officials of Surgicot , but it was clear that
his employment as plant manager would be with Band-Age . Although there
is evidently some relationship between Surgicot and Band-Age, other than
that of the former being a customer of the latter , the testimony does not
clarify this relationship.
6 Harcourt has four employees , and is also located at 131 Clay Street. Two
Band-Age employees sometimes do work for Harcourt . They are paid by
both companies.
7 The General Counsel states this figure , in his brief, at p.12 . 1 believe he
is mistaken, having taken this figure from the testimony of Peacock concern-
ing the varieties of machines used by Band-Age.
BAND-AGE, INC. 453
or substantially the same work force; (4) whether the
same jobs exist under the same working conditions; (5)
whether he employs the same supervisors; (6) whether
he uses the same machinery, equipment, and methods of
production; and (7) whether he manufactures the same
product or offers the same services.
They part company, however, in the application of these
principles to the facts of this case. In essence, the General
Counsel-claims that each criterion for finding successorship
is satisfied by these facts, while the Respondent claims that
none is.
The arguments advanced by each side as to several of the
criteria, "use of the same plant," and "use of the same equip-
ment ," where the facts are crystal clear, point up the nature
of the disagreement as to all the criteria. Thus, the General
Counsel asserts, correctly, that Band-Age used the same
plant that Paulis Silk had used. And Respondent asserts, also
correctly, that Paulis Silk had used 80,000 square feet on all
four floors of the plant at 131 Clay Street, while Band-Age
uses only about 25,000 square feet and on only one floor and
part of another, and that while Paulis Silk used some 32,000
additional square feet in other buildings, Band-Age does not.
The General Counsel correctly asserts that all of the ma-
chinery, some 46 machines, used by Band -Age were also used
by (and are leased from) Paulis Silk. Respondent asserts, also
correctly, that Paulis Silk had at one time over 200 machines,
the majority of which were broadloom machines either sold
to Becton-Dickinson or scrapped, and that Band-Age uses
only about 50 machines that Paulis Silk had used, and all are
"narrow loom" machines.
In short, the differences are quantitative, rather than
qualitative, with respect to these two criteria. Band-Age does
use the same plant, but does not use all of it, but only about
35 percent of it. All of Band-Age's machinery had been used
by Paulis Silk, but Band-Age uses only about 25 percent of
the machinery that Paulis Silk had used. With respect to the
other criteria, too, the differences between Band-Age and
Paulis Silk are basically quantitative rather than qualitative.
Thus, although virtually all the Band-Age employees were
Paulis Silk employees, the employee complement at Band-
Age, at pertinent times, was about 40, as against 250 to 300
employees at Paulis Silk 8 or 10 years earlier, 150 to 170 in
1972, and perhaps 80 to 100 at various times during 1973,
with a complement of only about 25 at the end of 1973. Paulis
Silk manufactured five "different products"; Band-Age
manufactures only one. There were close to 20 classifications
of employees in 1972 at Paulis Silk; there are only 7 or 8 at
Band-Age. Only Surgicot, of Band-Age's customers, was a
customer of Paulis Silk, and Surgicot bought only "seconds"
from Paulis Silk and was not a major customer. Only with
respect to "supervision" are the two companies (contrary to
Respondent's contention) substantially the same numerically,
based on the record facts.
This case turns, in short, on whether a diminution in size,
in virtually all respects of the alleged successor from that of
the predecessor, precludes a finding that the former is legally
successor to the latter. Although there is language in Board
decisions that seems to support such a conclusion,' other
Board decisions specifically hold to the contrary .' Indeed,
in The Westgate Corporation, 196 NLRB 306 (1972), the
Board found successorship even though the "successor" took
over only one of two contracts formerly held by the predeces-
sor. See also Polytech, Incorporated, and Terrence McGowan
d/b/a Polytech, Incorporated, 186 NLRB 984 (1970).
In the instant case, any fair comparison between Band-Age
and Paulis Silk must be with Paulis Silk at least during its
final year in business , and certainly not with Paulis Silk at its
employment peak 8 to 10 years earlier . Manifestly , Paulis Silk
was not , in 1973, with perhaps a complement of about 80
employees , and much less at the end of that year , utilizing all
the space and all the machinery that it had used earlier.
Becton -Dickinson , before the end of 1973, had purchased
much of the broadloom machinery . So the comparison is
between 70 to 100 machines at Paulis Silk, and 50 at Band-
Age, and between the prorated use of space at Paulis Silk, as
had to be the fact in 1973, as against the lesser amount of
space used by Band -Age. The same considerations show that
the number of classifications to be compared could not be 20
for Paulis Silk as against 7 or 8 for Band -Age, but the former
figure had to be considerably less toward the end of 1973.
Thus, even the quantitative differences are not so great as
might at first blush appear . The hiatus of about 3 or 4 weeks
between the closing of Paulis Silk and the opening of Band-
Age is of little consequence . Cf. N.L.R.B. v. Foodway of El
Paso, 496 F .2d 117 (C.A. 5, 1974), where a closing of 3 weeks
did not preclude a finding of successorship . The Food way case
is also instructive in that the court rejected the company's
argument that 24 enumerated differences between it and its
predecessor demonstrated that it was not a "successor," as
many . of the factors enumerated are of the same type as the
differences between Paulis Silk and Band -Age relied upon by
Respondent here.
For all these reasons, I am convinced that the General
Counsel has established by a preponderance of the evidence
that Band -Age is a successor to Paulis Silk. As Band-Age
admittedly did not recognize the Union , the finding of succes-
sorship requires a finding that Band -Age refused, in violation
of Section 8(a)(5) and ( 1), to bargain with the Union, as well
as the issuance of a bargaining order herein.
CONCLUSIONS OF LAW
1. All production and maintenance employees, excluding
office clerical, laundry department employees, professional
employees, guards, watchmen, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining with the meaning of Section 9(b) of the
Act.
8 E.g., the language in .1--P Mfg., Inc., supra, cited by Respondent, that
"On principle it would seem that Respondent is not using the 'same' machin-
ery and equipment when, as here, it uses only a small portion thereof."
9 E.g., Lloyd A. Fry Roofing Co., Inc., 176 NLRB 1025, fn. 6 (1969),
where the Board said "where as here nearly all, if not all, the employees in
the continuing operation were former National employees on the date of the
demand, we find irrelevant the Respondent's objection that they neverthe-
less constituted only a small percentage of the number of employees for-
merly employed by National to do unit work." Subsequent court and Board
decisions involving this same case did not alter either the result or this
language.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2.- By refusing to recognize Textile Workers Union of
America, AFL-CIO, as the collective-bargaining representa-
tive of the employees in the foregoing unit, Respondent has
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and (5)and Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices , I shall recommend that they cease and desist there-
from and take certain affirmative action designed to effectu-
ate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'o
Respondent, Band-Age, Inc., Central Falls, Rhode Island,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
Textile Workers Union of America, AFL-CIO, as to wages,
hours, and other terms and conditions of employment cover-
ing employees in the unit found appropriate herein.
(b) In any like or related manner interfering with , restrain-
ing or coercing employees in the exercise of their rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Upon request, recognize and bargain collectively with
Textile Workers Union of America, AFL-CIO, as the exclu-
sive bargaining representative of the employees in the unit
found appropriate herein, and if agreement is reached, em-
body such agreement in a signed contract.
(b) Post at its plant in Central Falls, Rhode Island , copies
of the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for Re-
gion 1 , after being duly signed by Respondent's representa-
tive, shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 days thereafter , in conspicuous
places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced or covered by any other material.
(c) Notify said Regional Director , in writing , within 20
days from the date of this Order, what steps the Respondent
has taken to comply herewith.
10 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions , and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings conclusions, and Order , and all objections thereto shall
be deemed waived for all purposes.
11 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with the
Union as the exclusive bargaining representative of our
employees in an appropriate unit regarding wages,
hours, and other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request , bargain with the above-named
Union, as the exclusive representative of all employees
in the appropriate unit described below, 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 agree-
ment . The bargaining unit is:
All production and maintenance employees, ex-
cluding office clerical, laundry department employees,
professional employees, guards , watchmen, and
supervisors as defined in the Act.
BAND-AGE, INC