Briggs Plumbingware, Inc. v. N.L.R.B., AFL-CI

• Citation: 877 F.2d 1282
• Decision Date: 15 June 1989
• Docket Number: AFL-CI,P,CL,88-5041,Nos. 87-6361,88-5081,s. 87-6361
• Parties: 131 L.R.R.M. (BNA) 2810, 112 Lab.Cas. P 11,261 BRIGGS PLUMBINGWARE, INC., Petitioner (87-6361), Cross-Respondent, Glass, Molders, Pottery, Plastics & Allied Workers International Union,etitioner (88-5041), v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner (88-5081).
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1282

877 F.2d 1282

131 L.R.R.M. (BNA) 2810, 112 Lab.Cas. P 11,261

BRIGGS PLUMBINGWARE, INC., Petitioner (87-6361), Cross-Respondent,

Glass, Molders, Pottery, Plastics & Allied Workers

International Union, AFL-CIO, CLC, Petitioner (88-5041), v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner

(88-5081).

Nos. 87-6361, 88-5081, 88-5041.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 21, 1989.

Decided June 15, 1989.

Sarah E. Hall, Robert J. Mignin, Douglas A. Darch argued, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for petitioner cross-respondent.

Aileen A. Armstrong, Deputy Associate General Counsel, N.L.R.B., John S. Gill, Linda Dreeben, John Gill, Barbara Atkin Laurance Zakson argued, Washington, D.C., for respondent, cross-petitioner.

Carl S. Yaller argued, Media, for intervenor Glass, Pottery, Plastics & Allied Workers Intern.

Before KENNEDY and NELSON, Circuit Judges, and PECK, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge.

These cases are consolidated before this court on petitions to review and set aside an order of the National Labor Relations Board ("the Board") reported at 286 NLRB, No. 121 (1986) by Briggs Plumbingware, Inc. ("Briggs") and Glass, Pottery, Plastics and Allied Workers International Union, AFL-CIO, CLC ("the Union") and on cross-application for enforcement of the order by the Board.

I.

During October 1979, Colton-Wartsila, Inc. ("C-W") began manufacturing bathroom fixtures at a facility in Colton, California. Following a secret ballot election by C-W employees on January 27, 1982, the Board certified the Union as the exclusive bargaining representative for C-W's approximately 120 production and maintenance employees.

On June 14, 1985, Briggs, a wholly-owned subsidiary of J.P. Industries, Inc. ("JPI") and a Michigan corporation which currently operates seven bathroom fixture plants, signed a ten year lease with C-W for its Colton facility and equipment. Beginning June 25, 1985 and ending August 2, 1985, C-W terminated its workforce. In mid-July, Briggs began contacting former C-W employees by telephone to offer them employment, followed on July 18, 1985 by forty-two letters containing employment offers. Thirty-nine former C-W employees showed up for renovation work on July 29, which lasted until September 24, 1985 and involved safety changes, clean-up and maintenance, and mold production. Actual production began on September 24, 1985, when the first molds were cast, with 40 employees, almost all of whom had worked for C-W. By October 29, 1985, Briggs' production capacity reached 50% with seventy-one employees, fifty-nine of whom had worked for C-W, and filling twenty-four of twenty-seven job classifications. By May 1986, all twenty-seven job classifications were filled with a total of 105 employees. Briggs also hired eight of C-W's ten line supervisors and Paul Blalock, C-W's employee relations manager, for similar positions within Briggs.

The Union first learned of Briggs' lease of the Colton facility and of C-W's intention to cease production late in June 1985. Jesse Garcia, the representative for the International Union, contacted Blalock to express concern over the effect of the recent transaction on C-W employees. On July 2, 1985, a "feeling out" meeting was held between the Union and Briggs' management, at which little happened except that the Union was told it would be kept informed. On July 21, 1985, just after Briggs mailed the job offers to former C-W employees, Garcia met with Blalock and Daniel Schelker, Briggs' Operations Manager, expressing the Union's concern over Briggs' bad faith in making the job offers.

On July 29, 1985, Garcia again met with Blalock and Schelker, who were this time accompanied by Douglas Lalama, Director of Employee Relations for JPI. Garcia was informed that Briggs would recognize the Union if presented with union authorization cards from a majority of unit employees by July 31, when Lalama was leaving town.

Between July 29 and 31, Garcia and Benny Espinosa, a Briggs employee and the Local Union's president, collected authorization cards from employees. During this time, Briggs received reports from several employees and supervisors that the Union was threatening employees with the loss of their jobs and insurance if they did not sign the authorization cards. On the morning of July 31, Briggs instructed Garcia to stop soliciting cards during work time and stop threatening employees. Lalama instructed Schelker and Blalock not to examine any cards the Union might try to present. Later the same day, Lalama refused to examine the cards Garcia produced that he claimed represented a majority of the employees. During the next week, eight employees reported dissatisfaction with the Union to their supervisors and others reported being threatened to sign authorization cards. On August 2, 1985, Jeffrey Thomas, a Briggs employee, held a meeting with fellow employees, which resulted in a list of ten employees who had refused to sign cards and twelve revocations of authorization cards. It is undisputed that Briggs management gave Thomas permission to hold the meeting during working time, instructed him on the procedure for revoking existing authorization cards, and supplied him with paper and writing implements for the meeting.

On August 7, the Briggs management formally decided not to recognize the Union. That decision was reported to Garcia at a meeting the next day, at which Briggs invited the Union to petition the Board for an election if it still wished to be recognized. Immediately following the meeting, Garcia sent a written, formal request to Briggs for recognition. On August 28, 1985, Schelker responded to Garcia's letter, reaffirming Briggs' decision not to recognize the Union based on its good faith doubt of the Union's majority status.

On September 5, 1985 the Union filed unfair labor practice charges against Briggs for its refusal to recognize and bargain with the Union. During the pendency of the charges on October 18, Teamsters Local 166 ("the Teamsters") filed an election petition with the Board. On November 26, 1985, in this case, Briggs employees, at the behest of Jeffrey Thomas, filed a petition with the Board to decertify the Union. On July 25, 1986, the Administrative Law Judge ("ALJ") issued his decision which determined Briggs was a successor employer and employed a substantial and representative complement of employees on September 24, 1985 or in the alternative on October 29, 1985. The ALJ also determined Briggs violated section 8(a)(1) and 8(a)(5) of the National Labor Relations Act ("the Act") ¹ by coercing its employees in the exercise of their rights, in an effort to obtain objective evidence of its good faith doubt of the Union's majority status and by refusing to recognize and bargain with the Union. The Board adopted the ALJ's findings of fact, conclusions of law, and order to recognize in pertinent part, concluding however, that Briggs' obligation to bargain matured October 29. From this decision and order, Briggs and the Union filed this appeal and the Board petitions for enforcement of its order. Briggs appeals the decision of the Board finding it a successor employer, concluding it violated sections 8(a)(1) and (5) of the Act for refusing to recognize and bargain with the Union, and permitting the General Counsel to amend its complaint. The Union appeals that portion of the decision concluding Briggs' bargaining obligation did not accrue until October 29, 1985 and was with the Local Union only.

II. Successorship Determination

In NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 280-81, 92 S.Ct. 1571, 1578-79, 32 L.Ed.2d 61 (1972), the Supreme Court approved the Board's approach to determine whether a new employer is the successor to the old one. The focus in a successorship determination is on the substantial continuity in the enterprises. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 107 S.Ct. 2225, 2236, 96 L.Ed.2d 22 (1987). The perspective from which the Board must conduct this analysis, "whether 'those employees who have been retained will understandably view their job situations as essentially unaltered,' " furthers the Act's policy of preserving industrial peace. Id. (quoting Golden State Bottling Co. v NLRB, 414 U.S. 168, 184, 94 S.Ct. 414, 425, 38 L.Ed.2d 388 (1973) ). The successor determination is important because of the presumption which follows: that the union with which the predecessor bargained continues to enjoy majority status with the successor's employees. Burns, 406 U.S. at 279, 92 S.Ct. at 1577; Makela Welding v. NLRB, 387 F.2d 40, 46 (6th Cir.1967). A union retains a rebuttable presumption of majority status upon the expiration of the certification year, sufficient to establish a prima facie case for a successor employer's continuing obligation to bargain. See NLRB v. Downtown Bakery Corp., 330 F.2d 921, 925 (6th Cir.1964); Harley Davidson Transportation Co., 273 N.L.R.B. 1531, 1531 (1985).

The Board considers a number of factors in assessing the substantial continuity of the enterprise: the degree of similarity in the nature of the businesses, the extent to which the employees of the new company are performing the same jobs they did in their old jobs under the same conditions and supervisors, and the degree of similarity between the products, the production process, and the customers. Fall River Dyeing, 107 S.Ct. at 2236 (citing Burns, 406 U.S. at 280 n. 4, 92 S.Ct. at 1578 n. 4). This primarily factual pattern is analyzed on the basis of the totality of the circumstances. Id.

Briggs contends that substantial evidence does not establish it as a successor employer, evidencing instead substantial differences between its operations and those of C-W. Briggs urges that the Board single-mindedly focused on the fact it hired a majority of its employees from the former C-W workforce, to the exclusion of...