Phoenix Pipe & Tube Co.

National Labor Relations Board - Board Decisions

Mar 20, 1991

302 N.L.R.B. 122 (N.L.R.B. 1991)

122
302 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Additional duties performed by craft employees included some cleaning
and painting in their work areas during the 20 percent or less of their
worktime when steel pipe and tube is not being produced.
2 On May 16, when the Respondent denied the Union’s recognition request,
there were 54 production and maintenance employees.
In finding that the statements by the 24 employees did not provide a suffi-
cient objective basis for doubting the Union’s majority status, Chairman Ste-
phens does not rely solely on the fact that the 24 constituted less than a major-
ity of the unit. See NLRB v. Curtin Matheson Scientific, 110 S.Ct. 1542, 1550
fn. 8 (1990). He also relies on the judge’s finding that the comments of at
least 15 of the 24 employees were insufficiently specific to demonstrate a clear
repudiation of union representation. Moreover, he finds that the statements of
9 of those 15 (employees Rogala, Zuniga, Moore, Browne, Kucharick,
Dellaquila, Foreman, King, and Bradshaw) were unreliable on other grounds
as indicators of their sentiments. Their statements were made during and after
employment interviews in which they were told by the Respondent’s
manager/interviewers that the Respondent would be opening the plant on a
nonunion basis. While Chairman Stephens acknowledges that the Respondent’s
managers did not, like the interviewers in Middleboro Fire Apparatus, 234
NLRB 888, 894 (1978), enfd. 590 F.2d 4 (1st Cir. 1978), tell employees that
the Respondent had ‘‘no obligation to recognize anybody,’’ the managers’
comments nonetheless supplied a context that cannot be overlooked. An em-
ployee who wants a secure job at a plant that, he is told, is opening ‘‘non-
union’’ might well think it in his interest to make it clear, as did such employ-
ees as Zuniga and Browne, that this is acceptable to him and he does not need
a union. Under the circumstances here, this is a far cry from a forthright rejec-
tion of union representation. The shutdown of the employees’ former employer
and their uncertainties concerning the possible attitudes of the new one (the
Respondent) could reasonably be expected to dissuade them from making
statements favorable to unions for fear of jeopardizing their chances for em-
ployment. See Fall River Dyeing Corp. v. NLRB, supra, 482 U.S. at 40.
Phoenix Pipe & Tube, L.P. d/b/a Phoenix Pipe and
Tube Company, a Partnership Composed of 1st
P.S.C. Corporation, Blue Pearl Associates, Inc.,
Red Linden Corporation, Blue Linden Cor-
poration and Phoenixville Steel Corporation
and United Steelworkers of America, AFL–
CIO, CLC. Case 4–CA–17378
March 20, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 19, 1989, Administrative Law Judge
Peter E. Donnelly issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and Charging Party filed an-
swering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, as modified below,
and conclusions and to adopt the recommended Order.
1. In excepting to the judge’s finding that the Re-
spondent is the successor to Phoenix Steel, the Re-
spondent argues, inter alia, that differences in job clas-
sifications and requirements defeat the essential ele-
ment of continuity of the enterprise. We agree with the
judge, however, that notwithstanding the Respondent’s
transformation of numerous craft and noncraft classi-
fications into four basic pay groups the evidence
showed that at the relevant time—on May 2, 1988,
when the Respondent commenced operations with a
representative complement of employees and when a
union demand for recognition was pending—most em-
ployees continued to spend most of their day perform-
ing the same tasks and using the same skills they had
used in their work for the predecessor.1 As the Re-
spondent’s chief operating official acknowledged, it
was in the Respondent’s ‘‘best interests,’’ at least at
the outset, ‘‘to put the best operator doing what he
knows best right now.’’ When employees continue
doing substantially the same work that they did for a
predecessor, we will not find that the addition of some
new job duties is likely to change their attitude to-
wards their job to such an extent as to defeat a finding
of continuity of the enterprise. USG Acoustical Prod-
ucts, 286 NLRB 1, 9–10 (1987). See also Systems
Management v. NLRB, 901 F.2d 297 (3d Cir. 1990)
(change from full-time to part-time positions does not
show lack of continuity). We similarly find no merit
in the Respondent’s reliance on the reduced size of its
operations in comparison to that of the predecessor.
Roanwell Corp., 293 NLRB 20 (1989); Lloyd Flan-
ders, 280 NLRB 1216, 1218–1219 (1986). Such dimi-
nution in size does not defeat the employees’ expecta-
tions of continued representation by their union. Fall
River Dyeing Corp. v. NLRB, 482 U.S. 27, 46 fn. 11
(1987).
Finally, the Respondent’s contentions concerning
what the future might hold for employees if all its
cross-training plans are carried out is simply too specu-
lative a basis for finding substantial changes in em-
ployee attitudes towards union representation at the
time as of which successorship is to be determined.
See USG Acoustical Products, supra.
2. In adopting the judge’s finding that the Respond-
ent lacked a good-faith doubt that a majority of the
unit employees supported the Union, we rely solely on
the fact that, assuming arguendo, the statements of 24
employees to various of the Respondent’s managers
were a clear repudiation of the Union, this does not
constitute a majority of the unit.2
3. We agree with the judge that the petition signed
by 34 unit employees, and presented to the Respondent
around May 12, 1988, cannot serve as the basis for
good-faith doubt. By its express terms, the petition re-
quested the right to vote for or against a union shop—
it did not unequivocally repudiate the Union. See
Destileria Serralles, Inc., 882 F.2d 19, 21 (1st Cir.
1989). See also Bryan Memorial Hospital, 279 NLRB
222, 225 (1986), enfd. 814 F.2d 1259 (8th Cir. 1987),
cert. denied 484 U.S. 849 (1987) (affidavits from sev-
eral employees that a majority of employees do not
123PHOENIX PIPE & TUBE CO.
3 This is unlike the employee letters in AMBAC International, 299 NLRB
505 (1990), in which one-half of the bargaining unit employees stated, not that
they wanted to decide at some future point whether they did or did not want
a union, but that they wanted to bargain directly with the employer ‘‘not
through a third party, presently Local 112, IFPTE.’’ In AMBAC International,
we found that such statements clearly invited direct negotiations with the em-
ployees, thus repudiating the union’s role as exclusive bargaining representa-
tive and indicating that the employees did not want the union to represent
them. Here, by contrast, the employee petition ambiguously refers only to the
‘‘right to vote for or against a union shop.’’ It does not indicate a clear inten-
tion by the employees not to be represented by the Union. For these reasons,
we also find the employee petitions in Bil-Mar Foods, 286 NLRB 786, 795–
796 (1987); and Industrial Waste Service, 268 NLRB 1180, 1186 (1984),
which were relied on in fn. 7 of AMBAC International, to be inapposite be-
cause in those petitions the employees also conveyed the clear impression that
they no longer wanted union representation.
1 It appears that the distinction between pipe and tube lies in its end use.
want the union or want a new election fail to establish
that a majority no longer want representation).3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Phoenix Pipe & Tube, L.P.
d/b/a Phoenix Pipe and Tube Company, a partnership
composed of 1st P.S.C. Corporation, Blue Pearl Asso-
ciates, Inc., Red Linden Corporation, Blue Linden Cor-
poration, and Phoenixville Steel Corporation,
Phoenixville, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Scott Thompson, Esq., for the General Counsel.
Howard R. Flaxman, Esq., of Philadelphia, Pennsylvania, for
Respondent.
Richard W. Rosenblitt, Esq., of Philadelphia, Pennsylvania,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
charge here was filed on May 19, 1988, by United Steel-
workers of America, AFL–CIO, CLC (Union or Charging
Party). A complaint and notice of hearing issued on July 29,
1988, amended on December 2, 1988, alleging that Phoenix
Pipe & Tube, L.P. d/b/a Phoenix Pipe and Tube Company,
a partnership composed of 1st P.S.C. Corporation, Blue Pearl
Associates, Inc., Red Linden Corporation, Blue Linden Cor-
poration and Phoenixville Steel Corporation (Company or
Respondent) refused to bargain with the Charging Party in
violation of Section 8(a)(5) of the Act. Answers were timely
filed by Respondent to the effect that Respondent was not
obligated to bargain with the Union; first, because it was not
a legal successor corporation and, secondly, even assuming
that it were, it had a good-faith doubt based on objective
considerations that the Union represented a majority of its
employees.
Pursuant to notice, a hearing was held before me on De-
cember 12 and 13, 1988. Briefs have been timely filed by
the General Counsel, Charging Party, and Respondent, which
have been considered.
No objections thereto having been filed, the General Coun-
sel’s motion to correct transcript is granted.
FINDINGS OF FACT
I. THE EMPLOYER
Employer is a Delaware limited partnership engaged in the
manufacture of steel, pipe, and tube at its plant and principal
place of business in Phoenixville, Pennsylvania. Based on a
projection of its operation since or about May 2, 1988, at
which time it commenced operations, the Employer, in the
course and conduct of its business operations described
above, will sell and ship from its plant at Phoenixville, Penn-
sylvania products, goods, and materials valued in excess of
$50,000 directly to points outside the Commonwealth of
Pennsylvania. The complaint alleges, the answer admits, and
I find that the Employer is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the Respondent admits, and I find
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Successorship
Phoenix Steel Corporation (Phoenix Steel) operated for
many years a steel producing plant at Phoenixville, Pennsyl-
vania. In earlier years, Phoenix Steel had engaged in other
steel producing operations but, since 1982, was engaged ex-
clusively in the production of steel pipe and tube until it
ceased production on March 31, 1987. When it closed, ap-
proximately 8 percent of Phoenix Steel’s production was car-
bon-based pipe and tube, a product that does not require heat
treating.1
During the last approximately 40 years of its existence, the
production and maintenance employees of Phoenix Steel
were represented under contract by the Union. The unit em-
ployees were serviced under these contracts by Local 2322
of the Union which existed solely for that purpose. The most
recent contract expired by its terms on March 31, 1987.
Having fallen on difficult economic times, it was nec-
essary for Phoenix Steel to cease production and lay off its
unit employees on March 31, 1987. At the time of this lay-
off, the employees were told, and their termination notices
reflect, that it was an ‘‘indefinite layoff.’’ Plant Manager
Ronald Anderson testified that while he suggested that the
laid-off employees seek other employment, he was still opti-
mistic that the plant would be purchased and reopened and
that they might be reemployed. The plant was maintained
during the subsequent shutdown in the hope that it would be
purchased and operated as a steel plant. On April 20, 1987,
Phoenix Steel entered bankruptcy proceedings pursuant to
Chapter 11 of the Bankruptcy Code. Thereafter, several pro-
spective purchasers showed an interest in the property, in-
cluding Robert Serlin, president of 1st P.S.C. Corporation,
the general partner of the limited partnership constituting the
124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Gold did not testify.
3 All dates refer to 1988 unless otherwise indicated.
4 On March 31, 1988, a year after Phoenix Steel shut down, the president
of the Union removed its officers and placed Local 2322 under an
administratorship pursuant to the terms of art. IX of its constitution. Vogle was
designated the administrator. It is undisputed that members of Local 2322 have
not paid dues since the shutdown on March 31, 1987.
5 Obviously, this leaves one-half percent unaccounted for but unexplained in
the record.
Respondent. After operations ceased, Local 2322 continued
to hold monthly meetings at which the membership was kept
apprised of developments concerning the sale and prospec-
tive purchasers, including Serlin. In November 1987, John C.
Vogle, the Union’s District 7 assistant director, was told by
Union Attorney Lynn Saionz that Serlin intended to buy the
plant whereupon Vogle arranged a meeting between himself,
Saionz, Serlin, and Serlin’s attorney, Peter Gold. At that
meeting on December 1, 1987, Vogle requested recognition
for the Union and asked to negotiate a contract. According
to Vogle, Gold responded that if the parties were able to ne-
gotiate a contract, the Respondent would recognize the
Union.2 In late December or early January, the Union re-
ceived a written contract proposal from Respondent. A meet-
ing was held on January 20 in which the proposed contract
was discussed. At this meeting, Gold told the Union that it
was anticipated that Respondent would hire about 80 em-
ployees, some 55 being production and maintenance employ-
ees to work on a one-shift operation.
A second meeting was held on January 25, 1988.3 Ander-
son explained the Respondent’s contract proposal to elimi-
nate some 30 odd job classifications that had existed at Phoe-
nix Steel and substitute three pay grades for pay purposes,
to be designated operations, services, and technical. The
Union objected, taking the position that the job classifica-
tions worked well and should not be changed. The Union
asked for and Respondent agreed to provide a proposal to
show which job classifications would be assigned to which
pay grades.
At the next meeting on January 29, that information was
provided and discussed.
At the following meeting on February 2, the Union made
a proposal retaining all the Phoenix Steel job classifications,
but assigning them to five groups, with a view toward dis-
cussing a pay rate for each of the groups. The Company ob-
jected to the retention of job classifications, but indicated
that it might go to four pay grades. The Union, however, re-
tained the position that it could not agree to substituting pay
grades for individual job classifications.
Sometime after February 2, Gold called Vogle and asked
for a meeting between Serlin and Jim Smith, an assistant to
the president of the Union in Pittsburgh. That meeting took
place on February 9. Gold explained the Company’s proposal
and told Smith that he was disappointed in the Union’s atti-
tude. Smith asked some questions about Respondent’s pro-
posal and concluded it was deficient and advised Serlin and
Gold that the Respondent would have to improve the pack-
age for a contract to be negotiated.
On March 23, with the approval of the bankruptcy court,
the plant and the real estate pertaining to the production of
pipe and tube was sold to Respondent.
Shortly before Respondent began producing steel pipe and
tube on May 2, the Union asked for a meeting with Gold and
Serlin. At this meeting on April 26, Vogle asked if there was
any way the Union could get negotiations ‘‘back on track’’;
that he would like to negotiate a contract. Gold responded
that Respondent was still upset about some of the things they
were hearing from Phoenixville about the attitude problems
of Local 2322 and that he would get back to them later about
‘‘whether we could get back together in negotiations.’’4
By letter dated April 29, from John Reck, director, District
7, the Union requested recognition as the exclusive bargain-
ing representative of Respondent’s production and mainte-
nance employees, because Respondent would be resuming
operations on May 2, with a majority of its work force being
union members formerly employed by Phoenix Steel.
By letter dated May 16, 1988, Gold responded that Re-
spondent maintains a ‘‘good faith doubt as to majority status
of the United Steelworkers of America . . . supported by ob-
jective considerations’’ and denied that Respondent was a
successor to Phoenixville Steel.
With respect to the matter of successorship, Respondent is
a Delaware limited partnership consisting of 1st P.S.C., the
general partner, and four limited partners, Blue Pearl Associ-
ates, Inc.; Red Linden Corporation; Blue Linden Corporation;
and Phoenixville Steel Corporation. 1st P.S.C. owns 42-1/2
percent of Respondent; Blue Pearl owns 32 percent; Red Lin-
den 6-1/2 percent; Blue Linden 3-1/2 percent; and
Phoenixville Steel Corporation, a wholly owned subsidiary of
Phoenix Steel, owns 15 percent.5 Ownership of Red Linden
is shared equally by Anderson, Respondent’s executive vice
president and chief operating officer, Louis K. Brown, Re-
spondent’s vice president of sales, and Doug Craner, Re-
spondent’s tube mill manager. All three held similar posi-
tions with Phoenix Steel. Anderson had been plant manager
for Phoenix Steel, and his duties are substantially the same
with Respondent. The same is true of Craner who had been
tube mill manager and Brown who had been vice president
for sales. Likewise, Dan Fittro, who had been general fore-
man of maintenance for Phoenix Steel, became maintenance
manager for Respondent with substantially the same duties.
With respect to the opening complement of employees,
Respondent was seeking an experienced work force and drew
primarily on those previously employed at Phoenix Steel.
Forty-eight production and maintenance workers were hired
when Respondent began production on May 2. Thirty-eight
had been employed by Phoenix Steel at the time the plant
closed on March 31, 1987. As of May 16, 41 of the 54 pro-
duction and maintenance employees had been employed by
Phoenix Steel when it shut down. At the time of the hearing,
44 of Respondent’s 58 production and maintenance employ-
ees were working for Phoenix Steel when it shut down oper-
ations.
With respect to supervision, it appears, as noted earlier,
that Anderson, Brown, Craner, and Fittro held basically the
same supervisory managerial positions with Phoenix Steel as
they do now with Respondent. Craner and Fittro report to
Anderson, as they had at Phoenix Steel. John Ceianti, Re-
spondent’s manager of human resources, serves in that same
position with Phoenix Steel. Respondent’s eight first-level
supervisors are called ‘‘coordinators.’’ They report to Fittro
and Craner. One of these, Vic Cusco, had been a mainte-
nance supervisor with Phoenix Steel. Of the remaining seven,
125PHOENIX PIPE & TUBE CO.
6 Specialist, technical, operations, and general services.
six had been unit employees at Phoenix Steel. It appears that
in addition to supervision, coordinators perform some unit
work.
Respondent produces steel pipe and tube. These are the
same products that had been produced at Phoenix Steel.
However, there has been a change in the mix of the product.
It appears that 85 percent of the Phoenix Steel production
was a carbon-based pipe and tube, a product that does not
require heat treating. The remaining 15 percent was an alloy
pipe and tube which did require heat treating to improve cer-
tain physical properties in the steel. Respondent does not
produce heat treated pipe and tube, although it does produce
it as ‘‘rolled’’ product ready for heat treatment by others.
Phoenix Steel used about four employees per shift in heat
treatment process. About 25 percent of the pipe and tube
produced by Phoenix Steel was light wall pipe and tube (less
than one-half inch thick). About 75 percent was heavy wall
pipe and tube (more than one-half inch thick). About 99 per-
cent of Respondent’s production is heavy wall pipe and tube.
Only about 1 percent is light wall pipe and tube.
Respondent uses the same production processes and ma-
chinery, except for heat treating and certain special finishing
and the machine used for those purposes, as those that Phoe-
nix Steel used to produce pipe and tube. Anderson testified
that ‘‘the primary process is virtually identical with the ex-
ception of several of our operations that have been elimi-
nated.’’
As to customers, with the exception of those customers
who purchased light wall and heat-treated alloy pipe and
tube, the Respondent sells its products to substantially the
same customers as those to whom Phoenix Steel sold its
products.
With respect to the utilization of employees, it appears that
while job classifications were replaced by four pay groups,6
those employees formerly employed by Phoenix Steel were
utilized in basically the same positions with the Respondent.
This was necessarily so as there was no new machinery and
the same basic production machinery was used by both Phoe-
nix Steel and the Respondent. However, some production
employees perform additional duties for the Respondent
which they did not perform for Phoenix Steel. Anderson tes-
tified that he anticipates that employees within the four pay
groups will become interchangeable, but that at present, until
more cross-training can be accomplished, such flexibility is
mostly limited to technical group employees. For example,
pipefitters do the work previously done by millwrights or
welders. Among the production employees, Anderson testi-
fied that a cross-training is more prospective and that during
the initial stages of the production operation, ‘‘it has been in
our best interests to put the best operator doing what he
knows best right now. And as time and money allows, there
will be cross-training to expand those people into other areas.
Not only for the benefit of the company, but also for their
own benefit.’’
Certain other changes in various working conditions and
fringe benefits were introduced by Respondent. Thus, while
Respondent’s wage rates are now lower, it offers a bonus
plan for 6 months for perfect attendance and does not require
punching a timecard. Respondent has a 4-day rather than a
5-day 40-hour workweek and a guaranteed 40-hour work-
week whereas only 32 hours were guaranteed at Phoenix
Steel. Other benefits available at Phoenix Steel were also
available to Respondent’s employees. These are set out in a
booklet called ‘‘Summary of Compensation and Benefits to
Our Employees.’’ The extent of the benefits vary, but both
Respondent and Phoenix Steel offered a health benefit plan,
paid vacation, holidays, shift differentials, and a pension
plan.
2. Good-faith doubt based on objective considerations
as to majority status
For many years, as noted above, the Union represented
Phoenix Steel unit employees under a series of contracts, the
most recent expiring on March 31, 1987. It was at that same
time that Phoenix Steel laid off its 123 unit employees and
closed the plant. When the plant was reopened by Respond-
ent, 13 months later on May 2, 1988, Respondent hired 48
production and maintenance workers, 38 of whom had pre-
viously been employed as unit employees with Phoenix
Steel.
As a part of the hiring process, all 38 former Phoenix
Steel employees were interviewed. Under instructions from
Anderson, the interviewers, Ceianti, Fittro, and Craner, were
to tell any employee, if the matter was raised, that the Re-
spondent was opening without a union but that they did not
know what the future would hold. According to Ceianti, who
first interviewed them, the matter was raised by at least nine
applicants, although he testified to conversations with only
eight. Only Dennis Ubert, Nick Dellaquila, and Charles
Evans stated, in effect, that they did not want a union. Enous
Moore and Henry Browne were less definitive. Moore states
that ‘‘as far as he was concerned he was just as well off
without a union than he was with the union, and he preferred
it that way’’; Henry Browne said that ‘‘he didn’t need a
union, he didn’t feel as though a union did anything for him
so why should we have a union, why should he pay dues.’’
John Rogala, Claudio Zuniga, and Michael Kucharik var-
iously told Ceianti that it was ‘‘just as well’’ not to have a
union, that the Union ‘‘didn’t do anything,’’ and that they
did not ‘‘need’’ the Union.
After having been interviewed by Ceianti, the employees
were interviewed by the department managers. With respect
to the technical department, Fittro testified that when the
subject of a union came up, he told the employees that there
was presently no union but he did not know about the future.
The employees’ comments varied. Ralph Quay, Joseph
Hrubos, and Lloyd Cannon expressed opinions that were in-
consistent with any desire for union representation and were,
essentially, expressions of rejection. Others like Charles
Evans, Kenneth Himes, Wayne Gardner, and Michael Getzey
expressed to Fittro the thought that they would be better off
without a union; that they did not need a union; did not care
if there was a union; and, in Getzey’s case, did not want to
pay dues because he was retiring in about a year and a half.
After their hiring and before May 16, Fittro testified about
daily unsolicited conversations with many technical depart-
ment employees. Michael McGuigan, who is not a former
Phoenix Steel employee, expressed concern for losing his job
if the Union came in because, unlike most others, he had not
previously been employed by Phoenix Steel as a union mem-
ber. Evans, Robert Hendricks, Hrubos, Quay, and Cannon all
had several conversations with Fittro, all to the effect that
126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Fall River Dyeing, supra at 43–44.
they did not want to be represented by the Union. Taggert
said that he did not want a union because he did not want
to pay union dues. Himes was somewhat more equivocal, ex-
pressing the sentiment that he felt no need for a union and
was glad there was none. Gardner said that things were
going well without a union; that he saw no need for one and
hoped there would not be one. Getzey reiterated his hope
that there would be no union because he was close to retire-
ment and did not want to pay union dues.
Craner interviewed operations department employees.
Some of them spoke disapprovingly of the Union. These
were Willis Foreman, Glenn King, Henry Browne, Larry
Bradshaw, Mike Kucharik, Ron Smith, Roger Ceivien,
Lauren Biedlar, Ron Denn, and Dennis Ubert. All expressed
their dissatisfaction with being represented by the Union. For
the most part, they spoke about being glad or happy that
there was no union or that they did not need a union or pre-
ferred not to have a union. These remarks typified the senti-
ments of King, Browne, Bradshaw, Kucharik, Ceivien, and
Bradshaw. Smith said that he did not care if there was a
union or not. Foreman said he was glad Respondent was not
union because he wanted to work in a nonunion atmosphere.
Denn was more negative, saying that he would not come
back if there was a union. Ubert was also opposed, saying
that he did not want a union and would do ‘‘whatever it
takes to keep the union out of here.’’
Anderson was advised by Ceianti, Fittro, and Craner of
these conversations. Anderson had some discussions with
employees concerning their union sentiments. In conversation
with Ubert, he was told that Ubert did not want to work if
there was a union. Evans also indicated a strong desire not
to have a union as did Hendricks, and both said that these
were the feelings of the people in the mill.
In connection with Respondent’s assertion of a good-faith
doubt, Respondent offered certain newspaper articles dated
May 1, attributing to Albert Di Arcangelo, former president
of Local 2322, statements critical of the Union, Respondent
and the ‘‘scabs’’ now working for Respondent. He was criti-
cal of the Union for imposing a trusteeship on Local 2322
and the Respondent for discriminatory hiring practices
against some former Phoenix Steel employees. Concerning
the latter, the articles read, in part:
If he’s mad at the international [sic] Di Arcangelo is fu-
rious with former union members who have recently
taken jobs at the mill.
People are saying (I’m angry) because I don’t have a
job. That’s not the damn key. The key was the scabs
in there today. They’re the sons of guns that said to me,
‘‘don’t give in, we want our seniority.’’ Di Arcangelo
said, ‘‘what happened to them. I did what the people
said and my own (betrayed) me. They sold me down
the river.’’ Di Arcangelo said, ‘‘The membership that’s
in the mill today sold me down the river to fill their
own pockets.’’
Part of a second article states ‘‘The new operation will
start out non union, although there are intentions of organiz-
ing the plant, union officials said.’’
It also appears, and the parties stipulated, that on May 12,
an employee left on Craner’s desk a petition bearing the sig-
natures of 34 production and maintenance employees. The
petition reads:
We, the workers at Phoenix Pipe and Tube Company
wish to have the right to vote for or against a union
shop.
B. Analysis and Conclusions
1. Successorship
In Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987),
the Supreme Court adopted the approach taken by the Board
and approved by the Court in NLRB v. Burns Security Serv-
ices, 406 U.S. 272 (1972), with respect to the issue of deter-
mining the matter of successorship between companies. In
Fall River Dyeing at 43–44, the Court said:
In Burns we approved the approach taken by the
Board and accepted by courts with respect to determin-
ing whether a new company was indeed the successor
to the old. 406 U.S., at 280–281, and n. 4. This ap-
proach, which is primarily factual in nature and is
based upon the totality of the circumstances of a given
situation, requires that the Board focus on whether the
new company has ‘‘acquired substantial assets of its
predecessor and continued, without interruption or sub-
stantial change, the predecessor’s business operations.’’
Golden State Bottling Co. v. N.L.R.B., 414 U.S., at 184.
Hence, the focus is on whether there is ‘‘substantial
continuity’’ between the enterprises. Under this ap-
proach, the Board examines a number of factors:
Whether the business of both employers is essentially
the same; whether employees of the new company are
doing the same jobs in the same working conditions
under the same supervisors; and whether the new entity
has the same production process, produces the same
products, and basically has the same body of customers.
See Burns, 406 U.S., at 280, n. 4; Aircraft Magnesium,
a Division of Grico Corp., 265 N.L.R.B. 1344, 1345
(1982), enf’d, 730 F.2d 767 (CA9 1984); Premium
Foods, Inc., 260 N.L.R.B. 708, 714 (1982), enf’d, 709
F.2d 623 (CA9 1983).
In conducting the analysis, the Board keeps in mind
the question whether ‘‘those employees who have been
retained will understandably view their job situations as
essentially unaltered.’’ See Golden State Bottling Co.,
414 U.S., at 184; NLRB v. Jeffries Lithograph Co., 752
F.2d 459, 464 (CA9 1985). This emphasis on the em-
ployees’ perspective furthers the Act’s policy of indus-
trial peace. If the employees find themselves in essen-
tially the same jobs after the employer transition and if
their legitimate expectations in continued representation
by their union are thwarted, their dissatisfaction may
lead to labor unrest. See Golden State Bottling Co., 419
U.S., at 184.7
Obviously, a review of these factors is appropriate to the in-
stant case. With respect to the sale, it appears that on March
23, Respondent, with the approval of the Bankruptcy Court,
purchased the plant and real estate of Phoenix Steel pertain-
ing to the production of steel pipe and tube and commenced
127PHOENIX PIPE & TUBE CO.
8 Cencom of Missouri, 282 NLRB 253 fn. 1 (1986).
9 USG Acoustical Products Co., 286 NLRB 1 (1987).
10 While not a successor case, the Board held in Sterling Processing Corp.,
291 NLRB 208 (1988), that an employer who closed its facility for 19 months
was obliged to recognize and bargain with the Union when it reopened with
substantially the same work force.
11 That Local 2232 was in administratorship and its members were not pay-
ing dues is not significant. The Union remained a viable and legitimate collec-
tive-bargaining entity.
12 Pennco, Inc., 250 NLRB 716, 716–717 (1980), enfd. 684 F.2d 340 (6th
Cir. 1982); Petoskey Geriatric Village, 295 NLRB 800 (1989).
production on May 2. The parties stipulated that Respondent
uses the same production processes and machinery as those
used by Phoenix Steel to produce the same products, steel
pipe, and tube. While Respondent has eliminated certain
minor operations such as heat treating, the major basic item
produced, both before and after the purchase, was and is
heavy wall pipe and tool. This is virtually all that Respond-
ent is producing and it constitutes 75 percent of Phoenix
Steel’s production. No new products were manufactured.
With respect to the matter of ownership, there exists par-
tial common ownership since Phoenixville Steel Corporation,
one of the limited partners of the Respondent, owns a 15-
percent share of the Respondent and is itself a wholly owned
subsidiary of Phoenix Steel. In addition, Red Linden, another
limited partner with about 6-1/2 percent ownership of Re-
spondent, is owned by three former managers of Phoenix
Steel, Ronald Anderson, Louis Brown, and Doug Craner.
Clearly, a substantial majority of Respondent’s work force
had been employed by Phoenix Steel. At the time Respond-
ent began production on May 2, Respondent employed 48
production and maintenance employees, and 38 of them had
been unit employees at Phoenix Steel. On May 16, some 41
of Respondent’s production and maintenance employees had
been unit enployees at Phoenix Steel.
As to its customers, the parties stipulated that with the ex-
ception of those customers who purchased light wall and
heat-treated alloy pipe and tube from Phoenix Steel, Re-
spondent sells its product to substantially the same customers
as Phoenix Steel.
With respect to Respondent’s management and super-
vision, as set out above, former Phoenix Steel management
officials Brown, Anderson, Fittro, and Craner have substan-
tially the same duties with Respondent as they had with
Phoenix Steel. Among the first-line supervision at Respond-
ent, six out of eight had previously been employed by Phoe-
nix Steel as unit employees and another, Cusco, had been
employed by Phoenix Steel as a supervisor.
Based on the above consideration and a review of the en-
tire record, I am convinced that a totality of the cir-
cumstances in this case makes it clear that Respondent was
a successor to Phoenix Steel.
Respondent argues that despite the similarities in the oper-
ations, Respondent is not a successor to Phoenix Steel be-
cause Respondent’s employees do not view their job situa-
tions as essentially unaltered, because they were told they
were on indefinite layoff when Phoenix Steel ceased produc-
tion; they were advised to seek other employment; the Union
went into the trusteeship, the assets of Phoenix Steel were
purchased by an unrelated entity; and there had been a 13-
month hiatus from the time that Phoenix Steel ceased oper-
ations until Respondent resumed production. However, I do
not regard these contentions individually or collectively to
compel a different conclusion. When Phoenix Steel closed,
the employees were laid off ‘‘indefinitely.’’ However, it was
the expressed hope of management that the plant would re-
open and the plant was maintained to facilitate the resump-
tion of operations and the membership was kept advised of
the ongoing negotiations for the purchase and, in fact, oper-
ations were resumed after the purchase. While it is true that
employees were hired without job classifications and paid ac-
cording to wage groups, the jobs performed by them were
not substantially different. Respondent produced the same
products on the same machines which were sold to the same
customers. While it appears that some employees performed
certain tasks in addition to what they had performed at Phoe-
nix Steel and that maintenance employees did some work
different from the work normally done by their crafts under
the prior contract with Phoenix Steel, these facts are not sig-
nificant considerations.8 Similarly, while the employee bene-
fits varied to some extent, both Respondent and Phoenix
Steel offered basic fringe benefits, and the fact that the sub-
stance of some benefits were different is not a compelling
factor.9 Respondent also cites the 13-month hiatus as evi-
dence that the enployees must have perceived their employ-
ment as substantially different. However, I do not view the
hiatus here as compelling such a result. Like the Court in
Fall River, I conclude that the hiatus was not, on balance,
a definitive or conclusive event.10 In evaluating the totality
of the circumstances, I conclude that there is a substantial
continuity between the enterprises and that Respondent is a
successor to Phoenix Steel.11
2. Good-faith doubt based on objective considerations
as to majority status
Having concluded that Respondent is the lawful successor
to Phoenix Steel, it was obligated upon demand to bargain
with the Union as the collective-bargaining representative of
Respondent’s production and maintenance employees. Fall
River Dyeing Corp. v. NLRB, supra.
The Respondent may rebut this presumption of continuing
majority status by showing that it had an objectively based
reasonable doubt that the Union continued to represent a ma-
jority of its production and maintenance employees. While it
appears that an employer may rebut this presumption of ma-
jority status with less than actual proof that a majority have
rejected union representation, the Board notes that in view of
the policies underlying the presumption, ‘‘the employer’s
burden is a heavy one.’’12 In my opinion, that burden has
not been met in the instant case.
Let us turn to those employee comments relied on by Re-
spondent to show good-faith doubt. None of the testimony
concerning employee comments came from any of the em-
ployees themselves. All the testimony came from Executive
Vice President Anderson, Maintenance Manager Fittro, Tube
Department Manager Craner, and Human Resources Manager
Ceianti. Most of the employees made their antiunion com-
ments only during employment interviews with the managers.
While this does not invalidate the testimony, it is obvious
that the testimony from the employees themselves would be
more persuasive than the recollections of managers about
what they were told by some 24 employees.
I also note, in evaluating the content of the comments, that
it is necessary for the employees to be expressing in an un-
equivocal manner their desire to no longer be represented by
128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Middleboro Fire Apparatus, 234 NLRB 888, 894 (1978).
14 The term ‘‘union shop’’ as used in the petition creates some ambiguity
as to whether the petitioning employees were referring to a vote on union rep-
resentation or a vote on an agreement for compulsory union membership after
30 days of employment, as provided in Sec. 8(a)(3) of the Act. However, the
intent of the petition is immaterial because, in either case, no petition simply
for a vote can be construed as a rejection of the Union as the employees’ col-
lective-bargaining representative.
the Union. Destileria Serralles, Inc., 289 NLRB 51 (1988).
It is not sufficient that an employee express dissatisfaction
with union representation. It is not sufficient that an em-
ployee says he does not need union representation. It is not
sufficient that an employee be critical of his representation.
It is not sufficient to say that he does not care if he is rep-
resented or not. It is not sufficient that the employee says he
is content without union representation.
First, let us examine the setting in which these antiunion
comments were made. The Union had been following the
progress of the purchase. The parties had been attemping to
negotiate a contract since December and through April 26,
with Respondent taking the position that it would recognize
the Union if a contract could be negotiated. Negotiations
failed because the Union would not accept the Respondent’s
proposals which included elimination of job classifications
and the substitution of four wage groups. In this context, we
must evaluate the employment interviews in April. Whenever
the subject was raised, the manager conducting the interview
made it clear that they were opening nonunion, followed by
some observation that the organizational future was uncer-
tain. It is not surprising that employees would conclude, par-
ticularly in view of the failed negotiations and the Respond-
ent’s implementation of its own contract proposal, that it
would be prudent to align his sentiments with the sentiments
of the Respondent. It would be naive to expect an employee
in those circumstances to express a preference for union rep-
resentation. Accordingly, even as to those whose comments
can be viewed as rejecting union representation, I conclude
that such testimony is not probative and I am unwilling to
accept it as support of Respondent’s assertion of ‘‘reasonable
doubt based on objective considerations.’’13
However, even assuming that such testimony was reliable,
having carefully reviewed the record, it appears that only
nine employees expressed what I regard as an unequivocal
desire that the Union no longer represent them. These were
Charles Evans, Dennis Ubert, Ralph Quay, Joseph Hrubos,
Lloyd Cannon, Michael McGuigan, Robert Hendricks, Thom-
as Taggert, and Ron Denn. I note also that all made known
their views on more than one occasion and in the case of
Evans, Ubert, Hendricks, and Denn, to more than one super-
visor. However, even conceding that these nine rejected the
Union, the percentage rejecting union representation is not
sufficient to support a good-faith doubt based on objective
considerations that the Union had lost its majority status.
Louisiana-Pacific Corp., 283 NLRB 1079 (1987).
Nor can the comments of employees about the union senti-
ments of other employees be regarded as persuasive. Other-
wise, ‘‘a few antiunion employees could provide the basis
for withdrawal of recognition when, in fact, there is actually
an insufficient basis for doubting the Union’s continued ma-
jority.’’ Golden State Habilitation Convalescent Center, 224
NLRB 1618, 1619–1620 (1976).
3. Newspaper articles
Respondent argues, in brief, that ‘‘union officials’’ and
newspaper articles appearing on May 1 purporting to present
the views of the former president of Local 2322 to the effect
that Respondent had employed ‘‘scabs’’ to the exclusion of
himself and former Phoenix Steel employees ‘‘clearly but-
tressed Respondent’s doubts concerning the Union’s status
among the work force. Such hearsay accounts, however, are
simply insufficient as ‘‘objective considerations’’ necessary
to support any finding that Respondent had a good-faith
doubt based on the Union’s continuing majority status.
4. The employee petition
As noted above, on May 12, a petition was left on
Craner’s desk signed by 34 of 58 production and mainte-
nance employees stating their desire to ‘‘vote for or against
a union shop.’’ Respondent argues that this petition is a clear
indication that the employees did not want union representa-
tion. I do not agree. The signers were not rejecting union
representation, they were simply asking to vote for the pur-
pose of deciding themselves whether they would be rep-
resented or not.14
In summary, I conclude that the probative evidence ad-
duced by Respondent is insufficient to support its burden of
establishing a good-faith doubt based on objective consider-
ations that the Union did not represent a majority of its pro-
duction and maintenance employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent as set forth in section III
above, in connection with the Respondent’s operations de-
scribed in section I above, have a close and intimate relation-
ship to traffic and commerce among the several States and
tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(5) and (1)
of the Act, I shall recommend that it cease and desist there-
from and from infringing in any like or related manner on
its employees’ Section 7 rights and that it take certain affirm-
ative action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production and maintenance employees employed
by Respondent at its plant in Phoenixville, Pennsylvania, ex-
cluding salaried employees, watchmen, guards, confidential
employees, clerical employees, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act.
4. By refusing on or after May 16, 1988, to bargain with
the Union as the exclusive collective-bargaining representa-
tive of employees in the appropriate unit, Respondent has en-
129PHOENIX PIPE & TUBE CO.
15 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 objec-
tions to them shall be deemed waived for all purposes.
16 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
gaged in unfair labor practices within the meaning of Section
8(a)(5) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
ORDER
The Respondent, Phoenix Pipe & Tube, L.P. d/b/a Phoenix
Pipe and Tube Company, a partnership composed of 1st
P.S.C. Corporation, Blue Pearl Associates, Inc., Red Linden
Corporation, Blue Linden Corporation and Phoenixville Steel
Corporation, Phoenixville, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Steelworkers of Amer-
ica, AFL–CIO, CLC as the exclusive bargaining representa-
tive of the employees in the bargaining unit.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit on terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a signed
agreement:
All production and maintenance employees employed
by the Employer at its plant in Phoenixville, Pennsyl-
vania, excluding salaried employees, watchmen, guards,
confidential employees, clericals and supervisors as de-
fined in the Act.
(b) Post at its Phoenixville, Pennsylvania facility copies of
the attached notice marked ‘‘Appendix.’’16 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable 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 Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain with United Steelworkers
of America, AFL–CIO, CLC as the exclusive bargaining rep-
resentative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the exclu-
sive representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement.
All production and maintenance employees employed at
the Phoenixville, Pennsylvania plant, excluding salaried
employees, watchmen, guards, confidential employees,
clericals and supervisors as defined in the Act.
PHOENIX PIPE TUBE, L.P. D/B/A PHOENIX PIPE
AND TUBE COMPANY, A PARTNERSHIP COM-
POSED OF 1ST P.S.C. CORPORATION, BLUE
PEARL ASSOCIATES, INC., RED LINDEN COR-
PORATION, BLUE LINDEN CORPORATION AND
PHOENIXVILLE STEEL CORPORATION