N.L.R.B. v. Security-Columbian Banknote Co., Div. of U.S. Banknote Corp.
| Decision Date | 19 August 1976 |
| Docket Number | No. 75-2273,SECURITY-COLUMBIAN,75-2273 |
| Citation | 541 F.2d 135 |
| Parties | 93 L.R.R.M. (BNA) 2049, 79 Lab.Cas. P 11,571 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.BANKNOTE COMPANY, a Division of U. S. Banknote Corporation, Respondent, Graphic Arts International Union, Local 14L, Intervenor. |
| Court | U.S. Court of Appeals — Third Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, Robert Sewell, John Depenbrock, N. L. R. B., Washington, D. C., for petitioner.
Malcolm L. Pritzker, Philadelphia, Pa., for respondent.
Richard H. Markowitz, Stephen C. Richman, Markowitz & Kirschner, Philadelphia, Pa., for intervenor.
Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges.
The delicate and subtle problems involved in the labor law doctrine of employer successorship are again presented in this proceeding. The National Labor Relations Board seeks enforcement of an order resulting from its determination that Security-Columbian Banknote Company (Security) is a successor employer of a company from which Security purchased printing plant assets. For the reasons stated hereinafter, we enforce the order only in part.
Like many successor stories, our saga must begin with the predecessor employer. Federated Banknote Company (Federated) engaged in engraved stock and bond printing at a plant located on Caroline Road, Philadelphia, Pennsylvania (Caroline plant). Its complement of sixty-six production employees was represented by several unions. Among these was the Philadelphia Printing Pressmen, Assistants and Offset Workers' Union No. 4 (Pressmen), which represented a unit composed of twelve letterpress and offset employees. The record does not reveal that the Pressmen were formally certified as a bargaining representative for this unit, but the union had negotiated collective bargaining agreements with Federated since 1967. The last such agreement ran from May 1, 1970 to April 30, 1973, and was extended by consent of the parties until May 18, 1973.
Security, the respondent herein, operates a plant, also in Philadelphia, at 55th and Sansom Streets (Sansom plant), approximately twenty miles from the Caroline plant, where it designs, engraves and prints stocks and bonds. It has been a member of a multi-employer association which has negotiated collective bargaining agreements with various unions. A unit of eight letterpress employees at the Sansom plant is covered by such an agreement with the Pressmen. A separate agreement with Graphic Arts International Union, Local 14L (Graphic Arts) covers a unit of twelve employees performing offset functions at the Sansom plant. Section 2 of this contract provided:
This contract shall be binding on all members of the Association for their plants or departments in the Philadelphia area. . . .
The agreement also contained a union security clause.
In the spring of 1973 respondent's parent company reached an agreement to purchase the Caroline plant from Federated. On April 18, Pressmen business agent Frederick Day informed respondent's parent that the Pressmen represented certain employees in a bargaining unit at the Caroline plant and had a collective bargaining agreement with Federated. Day demanded that Security recognize and bargain with the Pressmen for those employees as soon as Security took over the plant assets.
Later in April, Security's Sansom plant manager, Robert Christopherson, initiated a telephone conversation with Walter Buczko, secretary of Graphic Arts. Christopherson explained that Security was negotiating to purchase the Caroline plant and wanted to hire offset employees of Federated who were not members of Graphic Arts. Buczko posed no objection.
In further negotiations with the Pressmen, respondent took the position that it would recognize the Pressmen as representative of the retained letterpress operators at the Caroline plant, but the retained offset employees would become subject to Security's contract with Graphic Arts and would have to join the latter union.
On Friday, May 18, Security acquired the Caroline plant assets from Federated. The purchase agreement included rights to the land and buildings, fixed assets, machinery, equipment, inventories, copyrights, contracts, orders and work in progress. Security hired forty-five production employees, all of whom had been employed by Federated. These people were hired after interviews and consideration of their work records. They all received new seniority dates. Included in that group were eight of the twelve letterpress-offset employees who had formed the Federated unit represented by the Pressmen. Security assigned four of these individuals to offset work and four to letterpress work; the two groups were placed in separate departments. Security extended the bargaining rights of all the unions with which it had contracts at the Sansom plant to cover the employees working at Caroline Road who were working within the jurisdiction of the unions' respective collective bargaining agreements. Following this practice, respondent recognized the Pressmen as bargaining representative for employees engaged in letterpress work, and recognized Graphic Arts as bargaining representative for employees doing offset work. It also applied the collective bargaining agreement it had with Graphic Arts at the Sansom plant to the four Caroline plant offset employees.
Federated management was not hired by respondent. Security's Sansom plant manager, Christopherson, became manager for both plants, and spends approximately forty percent of his time at the Caroline plant. Security retained four of the seven Federated foremen; one was put in charge of production and given the title of "Assistant Plant Manager." Another was hired and employed only as a production worker. Three new assistant foremen were hired. Christopherson distributes printing work between the two plants, sets personnel policies for both, and except for collective bargaining handled by the multi-employer association, he is in charge of labor relations for both plants. Personnel records for employees of both plants are maintained at the Sansom plant. Some department foremen also divide their time between the two plants. A single sales force sells the product manufactured at both plants.
Respondent purchased almost all of Federated's equipment and used approximately 70% to continue operations at the Caroline plant; the other 30% was discarded. Respondent also shifted equipment from its other plants to the Caroline plant, and in at least one case transferred employees to operate a piece of equipment. Some equipment was moved from the Caroline plant to the Sansom plant and other locations. There is some interchange of common work materials between these plants.
Security also continued Federated's work in progress, completed 65% of it, and completed more than half of the new orders solicited by Federated but not previously processed. Ninety percent of the engravings done at the Sansom plant were printed at the Caroline plant. Security also closed Federated's composing room, moved some work previously done at the Caroline plant to the Sansom plant, and relocated other work to Security's Chicago plant.
Based on these facts, the General Counsel argued to the Administrative Law Judge (ALJ) and the Board that Security was a successor employer to Federated and as such was obligated to recognize and bargain with the Pressmen as representative of the retained employees of the Federated printing and offset unit. Respondent's principal defense was that acquisition of the Caroline plant was an accretion to its already existing operations in Philadelphia, that it was obligated under its contract with Graphic Arts to recognize the latter as bargaining representative for the offset employees at Caroline Road, and that the bargaining units at the Caroline plant were properly treated as accretions to units at the Sansom plant. The ALJ rejected the accretion argument and held, that by recognizing Graphic Arts and applying its collective bargaining agreement to the Caroline offset employees, respondent violated sections 8(a)(1), (2) and (3) of the National Labor Relations Act. The ALJ also rejected the General Counsel's successorship argument and held that Security did not violate sections 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Pressmen as representative of the offset employees.
The Board affirmed the ALJ's accretion findings, but found that respondent was a successor employer to Federated and was, therefore, obligated to recognize and bargain with the Pressmen. Its failure to do so was held to be violative of sections 8(a)(5) and (1). Security was ordered to cease and desist from the unfair labor practices found, to withdraw and withhold recognition from Graphic Arts as representative of the Caroline plant offset employees and to recognize and bargain with the Pressmen as the exclusive bargaining representative of those employees.
The context of this case is but one of several in which the successorship question can arise. See, e. g., John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964) (); Golden State Bottling Co. v. N. L. R. B., 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973) (). In each of these situations, the underlying policy of the successor employer doctrine is the same: it seeks to facilitate transfers of capital to enable reorganization and vitalization of business enterprises but at the same time protect employee rights and assure the accomplishment of the transition in an environment of industrial peace. See International Ass'n of Machinists, Dist. Lodge 94 v. N. L. R. B., 134 U.S.App.D.C. 239, 414 F.2d 1135, 1139 (1969) (Leventhal, J.,...
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