UNITED AUTOMOBILE, A. & A. IMP. WKRS. OF AMER. v. NLRB

• Decision Date: 29 June 1971
• Docket Number: No. 25706.,25706.
• Citation: 442 F.2d 1180
• Parties: UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

442 F.2d 1180 (1971)

UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD, Defendant-Appellant.

No. 25706.

United States Court of Appeals, Ninth Circuit.

May 19, 1971.

Rehearing Denied June 29, 1971.

George Arnold (argued), of Arnold, Smith & Schwartz, Los Angeles, Cal., for defendant-appellant.

Thomas Silfen (argued), Atty. for NLRB, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Washington, D. C., Ralph E. Kennedy, Director, NLRB, Munger, Tolles, Hills & Rickershauser, Los Angeles, Cal., for plaintiff-appellee.

Before CHAMBERS, TUTTLE^* and ELY, Circuit Judges.

TUTTLE, Circuit Judge:

This Petition for Review filed by the union complains of the failure of the National Labor Relations Board to make a "successor" employer fully liable to respond to the relief ordered by the Board against the original employer, found to be in violation of Section 8(a) (1), (3) (4) of the National Labor Relations Act 29 U.S.C.A. § 151 et seq.

The case comes to us without any dispute as to the facts. The Board stated the basic facts as follows:

"The Trial Examiner found, and we agree, that Thomas, which operated an engine rebuilding plant in the City of Industry, California, until September 9, 1968, violated Section 8(a) (1), (3) and (4) of the Act by engaging in unlawful conduct, including discriminatory warning notices to two employees and the discriminatory discharge of employees Richard Dickey, James Wilkins, Arthur Pollack, and David Dick. The Trial Examiner also correctly found that Upshur, which took over Thomas\' business with knowledge of the latter\'s unfair labor practices, and resumed operations of the plant on September 25, 1968, was the successor employer to Thomas."

The Board also adopted the following findings of fact by the Examiner:

"When Thomas closed on September 9, it had in its employ 120-130 production and maintenance employees and about 25 clerical employees. At the time Thomas\' employees picked up their checks for work performed until September 9, they were given application forms for work with Upshur. Thomas\' employees applied for work with Upshur. As of December 17, Upshur had approximately 97 production and maintenance employees of whom 90 were employed by Thomas on September 9. Also on December 17, Upshur had about 25 clerical employees, 15 of whom had been employed by Thomas on September 9. The production and maintenance employees of Upshur have the same working hours, same lunch periods and the same break periods as did the Thomas employees. Walker became the plant superintendent at Upshur and hired Thomas applicants for employment. Walker was hired by Upshur on September 15. On the entire record, I find according to the credible evidence, that the Upshur employees exercise substantially the same skills and perform the same jobs as they did for Thomas.

"While some of the top supervision of Thomas were not employed by Upshur, some of key supervision went over to Upshur. These included Walker, Zalinski, Hollenbeck, Peta, Wiggins, Byers and Stegmair. Fagardo and DeLeat, who had been at least leadmen at Thomas, went with Upshur. The record is silent as to how many other members of supervision went to Upshur from Thomas."

In addition, the trial examiner found:

"Upshur is in the same `employing industry\' as was Thomas. There has been a continuity of the original business. The same plant and substantially the same facilities have been used. There has been substantially the same work force. The business is the same (emphasis added)."

The Board did not expressly find to the contrary of the italicized fact finding, but neither did it approve or adopt the findings. The Board used its "boiler plate" language¹ which, unfortunately leaves it to us to make a detailed analysis of its decision to determine whether the critical finding emphasized above was approved by the Board.

In view of the fact that the Union places its case almost entirely on the Board's decision in Perma Vinyl Corp., 164 N.L.R.B. 968 (1967) and the order enforcing it at United States Pipe and Foundry Co. v. N. L. R. B., 398 F.2d 544 (1968), we conclude that, as to the principal issues before us — reinstatement and backpay obligations of the successor corporation — it is necessary to determine whether this finding of "substantially the same work force" made by the Trial Examiner became a finding by the Board.

In Perma Vinyl, supra, the successor employed "essentially the same personnel" as its predecessor. Under these circumstances the Board stated in Perma Vinyl:

"We are persuaded that one who acquires and operates a business of an Employer found guilty of unfair labor practices in basically unchanged form under circumstances which charge him with notice of unfair labor charges against his predecessor should be held responsible for remedying his predecessor\'s unlawful conduct."

The Union, in its reply brief, states flatly that the Trial Examiner's finding emphasized above — "There has been substantially the same work force * * *" "was adopted by the Board." This is an incorrect statement.

Although not expressly rejecting the finding, the board took pains to distinguish this case from Perma Vinyl in the following passage:

"As noted above, the Trial Examiner found that Thomas discriminatorily discharged Dickey, Pollock, Wilkins, and Dick, and he recommended that Upshur be ordered to offer them immediate reinstatement and jointly and severally with Thomas, to make them whole for loss of earnings suffered as a result of the discrimination. In making these findings, the Trial Examiner found Upshur has "substantially the same work force" as Thomas. In Perma Vinyl, on which the Trial Examiner relied, the successor employed "essentially the same personnel" as its predecessor. However, the record herein shows that when Thomas closed down on September 9, 1968, it had 120-130 production and maintenance employees and within a week after Upshur reopened the plant on September 25, 1968, the latter had taken on 97 production and maintenance employees, 90 of whom were employees of Thomas and 7

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