The Daneker Clock Co., Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1974

211 N.L.R.B. 719 (N.L.R.B. 1974)

DANEKER CLOCK CO. 719
The Daneker Clock Company, Inc. and Local 75,
United Furniture Workers of America, AFL-CIO.
Case 5-CA-6256
June 18, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 26, 1974, Administrative Law Judge
Alvin Lieberman issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, The Daneker Clock
Company, Inc., Fallston, Maryland, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN , Administrative Law Judge: The trial
in this proceeding , with all parties represented, was held
before me in Baltimore , Maryland, on January 29, 1974,
I The complaint was issued pursuant to a charge filed on August 15,
1973, by Local 75, United Furniture Workers of America, AFL-CIO.
2 During the trial the answer was amended to admit pars . 2(a), 3, and 7
of the complaint.
3 Set forth below are the relevant provisions of the Act to which
reference has been made in the text:
Sec. 8(a)-It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exercise of
the rights guaranteed in section 7;
M t Y
(5) to refuse to bargain collectively with the representatives of his
employees ... .
Insofar as pertinent, Sec. 7 is as follows:
Sec. 7. Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
upon the General Counsel's complaint dated December 19,
1973,1 and Respondent's answer .2 In general, the issue
litigated was whether Respondent violated Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended
(Act).3 Particularly, the principal questions for decision are
as follows:
1. Is Respondent a successor4 to Million-Rutherford
Company, Inc. (Million)?
2. Assuming an affirmative answer to the foregoing
question, is Respondent obligated to recognize and bargain
with Local 75, United Furniture Workers of America,
AFL-CIO (Union)?
Upon the entire record, upon my observation of the
witnesses and their demeanor while testifying, and having
taken into account the arguments made and the briefs
submitted,5 I make the following:
FINDINGS OF FACTS
1. JURISDICTION
Respondent, a Maryland corporation, is engaged at
Fallston, Maryland, in the manufacture of clocks, plaques,
and spinning wheels. From August 3, 1973,7 until January
29, 1974, Respondent sold merchandise valued at more
than $50,000 to customers located outside the State of
Maryland. Accordingly, I find that Respondent is engaged
in commerce and that the assertion of jurisdiction over this
matter by the National Labor Relations Board (Board) is
warranted. Siemons Mailing Service, 122 NLRB 81, 85.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. INTRODUCTION
Briefly, this case is concerned with Respondent' s refusal
to recognize and bargain with the Union, which had been
certified as the collective-bargaining representative of
Million's production and maintenance employees. The
General Counsel contends8 that Respondent is Million's
successor ; that as such it is obligated to recognize and
bargain with the Union; and that its refusal to do so is
violative of Section 8(a)(5) of the Act. Respondent, on the
representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection , and shall also have the right to refrain from any or all of
such activities . .
4 When used in this Decision "successor" and related words will be
deemed to have the special technical meanings attributed to them in the
field of labor management relations law. See, in this connection , N.LR.B. v.
Burns International Security Services, Inc., 406 U.S. 272 ; Simcox, 178 NLRB
516; Johnson Ready Mix Co., 142 NLRB 437; and Downtown Bakery Corp.,
139 NLRB 1352.
5 Although all the arguments of the parties and the authorities cited by
them, whether appearing in their briefs or made orally at the trial, may not
be discussed in this Decision , each has been carefully weighed and
considered.
6 Respondent's motion made at the conclusion of the trial, upon which I
reserved decision , is disposed of in accordance with the findings and
conclusions set forth in this Decision.
7 All dates hereinafter mentioned without stating a year fall within 1973.
8 As the contentions of the General Counsel and the Union are similar,
they will be referred to hereinafter as the General Counsel 's contentions.
211 NLRB No. 108
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other hand, argues that it is not Million's successor; that
the Union does not represent any of its employees; and
that, therefore, it is not required to deal with the Union.
IV. PRELIMINARY FINDINGS AND CONCLUSIONS9
A. Million's Business
For some 30 years, ending on about December 28, 1972,
Million operated a plant in Fallston, Maryland, for the
manufacture of clocks, plaques, and spinning wheels..The
buildings occupied by Million and the land on which they
stood were owned by Charles Daneker, Sr., and his son
Million Daneker, both of whom held stock in Million.
Million's principal product was clocks. These and the
other items it manufactured were merchandised under the
trade name of "Daneker." This name was plainly imprint-
ed on the face of all clocks made by Million and also
appeared on its plaques and spinning wheels.
At the time Million went out of business it employed a
work force of about 60 production employees. Also at that
time there was in Million's plant a substantial inventory of
raw material and supplies.
B. The Union's Certification
On December 18, 1972, the Union was certified as the
exclusive collective -bargaining representative of Million's
employees in the following unit:
All production and maintenance employees, including
group leaders, employed by [Million] at its Fallston,
Maryland location; but excluding all office clerical
employees, guards and supervisors as defined in the
Act.
It does not appear that this certificate was ever revoked or
rescinded. Nor does it appear that Million ever bargained
with the Union.
C. Respondent 's Business
Respondent was incorporated on July 26, 1973. Its
president and vice president are, respectively, Charles
Chian and Bancroft Livingston.
On August 1, Respondent bought from Million all of the
latter's machinery, material, supplies, equipment, furniture,
and the right to use the "Daneker" trade name for 5 years.
On the same date Respondent purchased from Charles
Daneker, Sr., and Million Daneker, the buildings in which
Million had conducted its operations and the land on
which they stood.
On August 3, Respondent started to manufacture clocks
in the buildings which had formerly been occupied by
Daneker. In doing so it utilized the machines, equipment,
materials, and supplies it had acquired from Million. At a
9 The purpose of these findings is to furnish a frame of reference within
which to consider the facts relating to respondent 's alleged unfair labor
practices and the conclusions to which they may give rise . To the extent that
the contentions of the parties relate specifically to the findings made here
they will be treated here , although they as well as the findings , may again be
considered in other contexts.
10 G.C. Exh. 5.
11 In this connection , it should be borne in mind that , as has been found,
later date, and in the same premises, Respondent began to
produce plaques and spinning wheels.
As was the case with Million, clocks constitute Respon-
dent's principal product. These, like the clocks made by
Million, bear the "Daneker" trade name.
Concerning the items manufactured by Respondent, the
equipment it uses, and the place in which its business is
carried on, Chian, Respondent's president, stated in an
affidavit10 that Respondent "produce[s] essentially [the]
same product, using the same equipment at the same
location as did Million." Chian could also have said, as the
evidence indicates and as I find, that Respondent also
follows Million's production method.
Between August 3 and 10, Respondent hired 26
production and maintenance employees. Of these, 21 had
worked for Million. By August 28 Respondent's comple-
ment of production and maintenance employees had
grown to 40, 25 of whom were former Million employees.
A substantial number of the latter performed for Respon-
dent work identical, or similar, to that which they did for
Million.
D. The Relationship Between Respondent and
Million
As noted in the introductory portion of this Decision, the
General Counsel contends that Respondent is Million's
successor and Respondent argues that it is not. Respon-
dent's argument is based principally on two facts. The first
is that it employs fewer than 50 percent of the employees
who had formerly worked for Million.tt The second fact
relied on by Respondent is that there was a 7-month hiatus
between Million's closing and the commencement of
Respondent's operations.
Whether an employer is another's successor turns upon
the continuation of what has come to be known as the
"employing industry." As was recently stated, in this
regard, the "continuity of the employing industry . . . is
the keystone of [the Board's] successorship doctrine"
Spruce Up Corporation, 209 NLRB No. 19. Where one
employer purchases the plant and physical assets of
another the employing industry is continued and the
purchaser is deemed to be the seller's successor if the
"purchaser continues its predecessor's business from the
same location, handling the same products, and employing
its predecessors employees." Downtown Bakery Corp., 139
NLRB 1352, 1354, enfd. in this respect 330 F.2d 921 (C.A.
6, 1964).
The third criterion mentioned in Downtown Bakery, is
satisfied if a majority of the second employer's comple-
ment of employees consists of people who formerly worked
for the first in the unit concerned. Johnson Ready Mix Co.,
142 NLRB 437, 441.12 It is also satisfied if the second
employer hires all or a majority of the first's work force.
John Wiley & Sons, Inc. v. Livingston, etc., 376 U.S. 543,
within a month after Respondent became a going concern a majority of its
production and maintenance employees had been in Million's service.
12 See also, to the same effect , N.L.R.B. v. Polytech, Incorporated 469
F.2d 1226, 1230 (C.A. 8, 1973); Tom-a-Hawk Transit, Inc. v. N.L.R.B., 419
F.2d 1025, 1027 (C.A. 7, 1969); Makela Welding Inc. v. N.LR.B., 387 F.2d
40, 46 (C.A. 6, 1967); N.LR.B. v. John Stepp's Friendly Forit, Inc., 338 F.2d
833, 836 (C.A. 9, 1964); N. L. R. B. v. Lunder Shoe Corp., 211 F.2d 284, 287
(C.A. 1); Hecker Machine Inc., 198 NLRB No. 161; Tellakson Forth Inc., 171
DANEKER CLOCK CO.
551; Spruce Up Corporation, 209 NLRB No. 19. According-
ly, as a majority of Respondent's employees were formerly
employed by Million the argument made by Respondent
that it is not Million's successor because it did not hire a
majority of Million's employees is rejected.
Also rejected is the argument that Respondent is not
Million's successor because of the lapse of time between
Million's closing and the commencement of Respondent's
operations. To be sure, a hiatus, such as occurred here,
between the closing of a plant by a seller and its reopening
by a buyer is relevant to the question of whether the buyer
is the seller 's successor . This element, however, is not to be
taken in isolation. As was made plain in Norton Precision,
Inc., etc., 199 NLRB 1003, "also to be considered [in
determining whether there was a continuity of the
employing industry] is whether the changes in the methods
of production, the type of market supplied, and the kind of
products produced substantially altered the nature of the
employing industry."
In several cases where a hiatus was deemed significant in
determining that there was no successorship there were
other factors present which, when considered together with
the time lapse, seemed to break the continuity of the
employing industry. Thus, for example, where the products
of the second employer were different from those of the
first employer, or were of a substantially different mix;
where the second performed only a fraction of the first's
manufacturing operations; where the second engaged in a
business different from that carried on by the first; where
the second made substantial changes in the first's pro-
duction process and machinery; or where there was a
bankruptcy proceeding initiated by the first employer
accompanied by disruptions in its business operations, the
Board also relied on the existence of a hiatus in holding
that the second employer was not the first's successor.13 On
the other hand, in cases where, as here, the second
employer, after a hiatus, manufactured the same products
as the first employer in the plant used by the first, followed
the first's production process, and hired a complement of
workers, a majority of whom had worked for the first, the
Board held, despite the hiatus, that the second employer
was the first's successor . C. G. Conn, Ltd., 197 NLRB 442,
enfd. 374 F.2d 1344 (C.A. 5, 1973); Cf., Polytech,
Incorporated, 186 NLRB 984, 990, enfd. in this respect 469
F.2d 1226 (C.A. 8, 1973).
I have found that Respondent purchased from Million
its machines, equipment, inventory of supplies and
materials , and trade name ; it acquired the land and
buildings occupied by Million; it manufactured in those
buildings with the machinery and equipment it bought
from Million the same products as Million had manufac-
tured, using the production process followed by Million;
and within a month after Respondent started in business a
majority of its employees were people who had been
employed by Million, a substantial number of whom
NLRB 503, 504; Rohlik, Inc., 145 NLRB 1236, 1239, 1242; Colony
Materials, Inc., l30 NLRB 105, 106, 110, 112; Royal Brand Cutlery
Company, 122 NLRB 901, 904, 908-909; Northwest Glove Co., Inc., 74
NLRB 1697,1699-1700.
13 See Radiant Fashions, Inc„ 202 NLRB 938; Norton Precision, Inc., 199
N LRB 1003; Gladding Corporation, 192 NLRB 200; Ellary Lace Corp., 178
NLRB 73, 78.
721
performed for Respondent the same work they had
formerly done for Million. In view of these factors,
strongly militating in favor of a judgment that the
employing industry originated by Million was continued
by Respondent, the hiatus in time between Million's
closing and Respondent's opening pales into insignifi-
cance.
Accordingly, I conclude that Respondent is Million's
successor.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts Concerning Respondent 's Alleged
Violations of Section 8(a)(5) and (1) of the Act
The complaint alleges that by refusing to recognize and
bargain with the Union Respondent has violated Section
8(a)(5) and (1) of the Act. The facts bearing on these
allegations are not in dispute. Accordingly, they will be
briefly stated.
As will be remembered, on December 18, 1972, the
Union was certified as the exclusive collective-bargaining
representative of Million's production and maintenance
employees. Referring to the certification, the Union, on
August 8, 1973, requested, in writing, that Respondent
bargain with it. Although the receipt of this request was
acknowledged by Respondent on August 10, Respondent
has never bargained with the Union, nor has it ever
recognized the Union.
B. Contentions and Concluding Findings Concerning
Respondent's Alleged Violations of Section 8(a)(5)
and (1) of the Act
To justify its failure to recognize and bargain with the
Union Respondent makes two claims . Respondent first
argues that not being Million's successor it is a stranger to
the Union.14 Respondent's second contention is that the
Union no longer represents a majority of its employees and
that, therefore, it is not required to bargain with the
Union.15
The obligation of a successor to bargain with the
certified representative of his predecessor's employees is no
longer open to question. N.L.R.B. v. Burns International
Security Services, Inc., 406 U.S. 272, 281 (1972). It having
been found that Respondent is Million's successor,
Respondent's duty to recognize and bargain with the
Union is clear, unless there is substance to Respondent's
second contention.
As noted, this argument is grounded on evidence that as
of January 29, 1974, the Union lacked representation
among Respondent's employees. However, the critical date
for determining a union's majority status is the date on
which the union's request for bargaining is received by the
14 Respondent having been found to be Million's successor, this phase of
Respondent's defense will not again be adverted to except to the extent of
discussing a successor's obligation to bargain with the union which
represented its predecessor 's employees.
15 This contention is based on testimony given by a representative of the
Union that as of the date of the trial , January 29, 1974, the Union did not
represent any of Respondent's employees.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer. Federal Stainless Sink Div. etc., 197 NLRB 489.
In this case that date is August 10, 1973.16
It is well settled that absent "unusual circumstances" a
union's majority, memorialized by a Board certificate, is
conclusively presumed to continue for a year following the
certification and that during this period the "certification
... must be honored." Brooks v. N.L.R.B., 348 U.S. 96,
98. It is equally well settled 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 a
Board's certification within the normal operative period if
[as here] a majority of employees after the change of
ownership or management were employed by the preced-
ing employer." N.L.R.B. v. Burns International Security
Services, Inc., 406 U.S. 272, 279 (1972).
The foregoing principles nullify Respondent's majority
argument. Having been certified on December 18, 1972, as
the bargaining representative of the employees of Respon-
dent's predecessor in the unit here involved, the Union's
status as the representative of a majority ofiRespondent's
employees on August 10, 1973, the date on which the
Union's bargaining request was received by Respondent,
may not be questioned. Furthermore, any loss of majority
after December 18, 1973, the anniversary date of the
Union's certification is immaterial , as, in the context of this
case , such a loss may have been brought about by
Respondent's failure to bargain with the Union. Cf. Franks
Bros. Company v. N.L.R.B., 321 U.S. 702,704-705.
Accordingly, I conclude that by not bargaining with the
Union pursuant to its request Respondent violated Section
8(a)(5) and (1) of the Act.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section V,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade , traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
VII. THE REMEDY
Having found that Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act, my recommended Order will require Respondent
to cease and desist therefrom and to take such affirmative
action as will effectuate the purposes of the Act. To insure
that Respondent's employees enjoy the benefits of repre-
sentation by the Union for the full period provided by law,
my Order will also provide that the initial year of the
Union's certification shall be deemed to begin on the date
Respondent starts to bargain in good faith with the Union.
Farah Manufacturing Company, Inc., 203 NLRB No. 78.
16 Although no evidence was adduced concerning the date on which
Respondent received the Union 's bargaining request, I will assume that it
was received on August 10, the day on which its receipt was acknowledged
by Respondent.
17 In the event no exceptions are filed as provided by Sec. 102.46 of the
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer 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. Respondent is Million's successor.
4. All production and maintenance employees, includ-
ing group leaders, employed by Respondent at its Fallston,
Maryland, location; but excluding all office clerical
employees, guards and supervisors as defined in the Act
constitute a unit appropriate for collective bargaining.
5. Since the Union's certification, the Union has been
the exclusive collective-bargaining representative of all
employees in the unit set forth in Conclusion of Law 4,
above.
6. By failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining represent-
ative of the employees in the unit set forth in Conclusion of
Law 4, above, Respondent has engaged, and is engaging, in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
7. The unfair labor practices engaged in by Respon-
dent, as set forth in Conclusion of Law 6, above, affect
commerce within the meaning of Section 2(6) and (7) 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 17
Respondent , The Daneker Clock Company, Inc., its
officers , agents, successors , and assigns shall:
1. Cease and desist from:
(a) Failing or refusing to recognize Local 75, United
Furniture Workers of America, AFL-CIO, as the exclusive
collective-bargaining representative of its employees in the
following appropriate unit:
All production and maintenance employees, includ-
ing group leaders , employed by it at its Fallston,
Maryland, location ; but excluding all office clerical
employees , guards and supervisors as defined in the
National Labor Relations Act, as amended.
or failing or refusing , upon request, to bargain with Local
75, United Furniture Workers of America, AFL-CIO, re-
presenting rates of pay , wages, hours , or other terms or
conditions of employment of its employees in the aforesaid
appropriate unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to self-organization , to form , join, or assist labor
organizations , to bargain collectively through representa-
tives of their own choosing , or to engage in other concerted
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
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.
DANEKER CLOCK CO. 723
activities for the purpose of collective-bargaining, or other
mutual aid or protection, as guaranteed in Section 7 of the
National Labor Relations Act, as amended, or to refrain
from any or all such activities, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment in conformity with Section 8(a)(3) of said Act.
2. Take the following action which, it is found, will
effectuate the policies of the National Labor Relations Act,
as amended:
(a) Upon request, bargain with Local 75, United
Furniture Workers of America, AFL-CIO, as the exclusive
collective-bargaining representative of the employees in the
aforesaid appropriate unit respecting rates of pay, wages,
hours, or other terms or conditions of employment and, if
an understanding is reached, embody such understanding
in a signed agreement.
(b) Post at its premises, in Faliston, Maryland, copies of
the attached notice marked "Appendix." 18 Copies of said
notice, on forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's
representative, shall be posted by Respondent immediately
upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 5, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that for the purpose of
determining the effective period of duration if the
Certification of Representative issued on December 18,
1972, by the National Labor Relations Board in Case
5-RC-8246, the initial year of certification shall be deemed
to begin on the date Respondent starts to bargain in good
faith with Local 75, United Furniture Workers of America,
AFL-CIO , as the exclusive collective -bargaining represent-
ative of the employees in the aforesaid appropriate unit.
18 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 be changed to 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
After a trial in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice and we intend to carry out the Order of the
Board and abide by the following:
WE WILL NOT refuse to recognize or bargain with
Local 75, United Furniture Workers Union as your
union about your rates of pay, wages , working hours,
and other matters connected with your work.
WE WILL, if we are asked to do so by Local 75,
United Furniture Workers Union, recognize and
bargain with it as your union about your rates of pay,
wages , working hours, and other matters connected
with your work. If we come to an agreement about any
of these things with Local 75, United Furniture
Workers Union WE WILL put that agreement in writing
and sign it.
THE DANEKER CLOCK
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Room
1019, Federal Building, Charles Center, Baltimore, Mary-
land 21201, Telephone 301-962-2822.