N.L.R.B. v. Fall River Dyeing & Finishing Corp., 85-1019

• Citation: 775 F.2d 425
• Decision Date: 18 October 1985
• Docket Number: No. 85-1019,85-1019
• Parties: 120 L.R.R.M. (BNA) 2825, 54 USLW 2249, 103 Lab.Cas. P 11,618 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FALL RIVER DYEING & FINISHING CORP., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 425

775 F.2d 425

120 L.R.R.M. (BNA) 2825, 54 USLW 2249,

103 Lab.Cas. P 11,618

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FALL RIVER DYEING & FINISHING CORP., Respondent.

No. 85-1019.

United States Court of Appeals, First Circuit.

Argued June 6, 1985.

Decided Oct. 18, 1985.

Ira Drogin, New York City, with whom Leaf, Sternklar & Drogin, New York City, was on brief for respondent.

William M. Bernstein, Washington, D.C., with whom Elinor Hadley Stillman, Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D.C., were on brief for petitioner.

Before BOWNES, ALVIN B. RUBIN ^* and TORRUELLA, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge.

The National Labor Relations Board found that Fall River Dyeing & Finishing Corporation (the Company) was the successor to Sterlingwale Corporation, most of whose assets the Company acquired when Sterlingwale became insolvent and was liquidated. The Board also found that a premature demand for collective bargaining made by the Union that had represented Sterlingwale's employees continued in force and became effective against Fall River upon its employment of a representative complement of Sterlingwale employees. Because Fall River, upon reaching its representative complement of employees, did not recognize and bargain with the Union, the Board found that it had violated Section 8(b)(5) and (1) of the National Labor Relations Act. We enforce the Board's order, finding that substantial evidence on the record as a whole supports the Board's conclusions and the legal principles it applied do not violate the Act.

I.

For more than thirty years before 1982, Sterlingwale, which was owned by the Ansin family, operated a plant at Fall River, Massachusetts, in which it engaged primarily in dyeing and finishing textiles. Sterlingwale bought unfinished fabrics for its own account, dyed and finished them, then offered the fabrics for sale to apparel manufacturers. This business is known in the trade as "converting." Sterlingwale also dyed and finished fabrics owned by other customers to the customers' specifications, a business known as "commission finishing." In 1981, sixty to seventy percent of Sterlingwale's volume was converting and the rest commission finishing.

The process for dyeing and finishing fabrics is the same whether the work is done for resale or on commission. However, the financing and customer relations aspects of the two types of businesses are different. Converting requires capital to buy merchandise and a sales force. Several major national firms are engaged in this business, and it is intensely competitive. Commission finishing serves a different market and involves supplying only the services designated by the customer.

Adverse economic conditions and foreign competition afflicted the textile industry in the 1970's. Sterlingwale's business became unprofitable but Ansin, its president and principal stockholder, tried to stay in business because he thought that he "owed that to the community" and to the company's employees, many of whom had been employed by it for over twenty-five years. Early in 1982, after years of losses amounting to millions of dollars, Sterlingwale ran out of cash and could no longer buy fabric for its converting business. Consequently, Ansin ceased normal production operations and began to liquidate the company, laying off employees and selling its inventory. In July 1982, Sterlingwale employed a professional liquidator to sell the firm's remaining assets. Sterlingwale then executed an assignment of its assets for the benefit of its creditors.

Through another company, Arthur Friedman, who is now the President of Fall River, acquired Sterlingwale's equipment and the real property formerly used by it at a mortgage foreclosure sale. Friedman's company conveyed the equipment and leased part of the original Sterlingwale plant to Fall River Dyeing & Finishing.

Fall River, operating out of one of the three former Sterlingwale buildings, began hiring employes on September 20, 1982. The employees then spent approximately four to six weeks on start-up operations, cleaning, relocating and repairing machines. They spent the next four to five weeks on experimental production to ensure that everything was in working order. Following the start-up stage, employees did much the same work they had done for Sterlingwale. The Company conducted all of its operations in what had been Sterlingwale's production building, using the same machinery and the same basic process. It did commission work, as Sterlingwale had done, but did no converter work.

By a letter dated October 19, the union demanded that Fall River recognize it as its employees' collective bargaining agent. The Company replied that it did not intend to comply with the request. At that time, the Company was still engaged in start-up operations, and, as the Board found, did not have a representative complement of employees.

The Company's initial production goal was to have one full shift operation employing fifty-five to sixty employees. Upon reaching that goal, the Company intended to "see how business would be," and planned to expand to a two-shift operation by April 1983. Such a sixteen-hour operation is desirable, indeed almost essential to the production process because the fabrics emerge from the process wet and the entire operation, including drying, cannot be completed in eight hours.

By November 1982, employees had been hired in virtually all job classifications. In mid-January 1983, the first shift was in full operation and the Company had begun a second shift. At that time, the Company had hired at least fifty percent of those it would ultimately employ in the majority of existing job classifications and 55 of the 106-109 employees it was to employ in April, the month in which the Company reached its anticipated employee complement. Of the fifty-five employees hired by mid-January, approximately thirty-six were former Sterlingwale employees. Eight of the Company's twelve supervisors were former Sterlingwale supervisors and three of the other four were former Sterlingwale employees. Over half of the dollar volume of the Company's business came from former customers of Sterlingwale.

The Board found that, as of January 15, 1983, the Company had employed a representative complement of employees in an appropriate unit and that at that time the Company was a successor employer to Sterlingwale. The Board further found that the Union's bargaining request constituted a continuing demand for recognition and bargaining and that the Company violated Section 8(a)(5) and (1) of the National Labor Relations Act ¹ by refusing to recognize and bargain with the Union once its successor bargaining obligation arose.

Member Hunter dissented on the ground that the Company did not have a representative complement of unit employees at the time of the Union's October 19 recognition demand and the Company's October 22 refusal. Absent a renewed Union bargaining demand at a time when the Company had reached a representative complement, Member Hunter would find no bargaining obligation.

II.

"[A] mere change of employers or of ownership in the employing industry," the Supreme Court held in NLRB v. Burns International Security Services, Inc., ² does not affect the Board's certification of a bargaining unit. The successor employer's obligation to bargain is founded on the mandate of Sections 8(a)(5) and 9(a) of the Act ³--an employer must bargain with "[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes." ⁴ The successor employer's obligation also arises from the rule that a mere change in ownership does not destroy the presumption of continuing employee support for a certified union. ⁵ "The basic rationale is that a mere change in ownership, without an essential change in working conditions, would not be likely to change employee attitudes toward representation." ⁶ If, after a change in ownership, the essential nature of the enterprise remains unchanged, and a majority of the "new" firm's employees or management were employed by the predecessor company, the new employer is considered the old employer's "successor." As such, the new employer must recognize the incumbent union and deal with it as the bargaining representative of the employees. ⁷

In determining whether an employer must recognize and bargain with a union that has represented the employees of the former employer, "the Board looks to the totality of the circumstances to determine whether there has been a substantial and material alteration in the employing enterprises." ⁸ In making this determination, the Board considers various factors, among them the percentage of employees who were employed by the previous employer, the extent to which their former supervisors have been retained, the identity of skills used and functions performed by the employees, the continuation of the business in the same physical facility with the same or similar equipment, the continuity of products sold or services rendered, and the identity of the customers. ⁹ Significant changes in the scope of the new employer's business are to be considered, but alone they do not negate the possible successorship status of the new business. ¹⁰ The critical inquiry is whether any changes in operation have significantly altered the employees' working conditions, the employment relationship, and correspondingly, the employees' expectations and needs with regard to representation. ¹¹

The seven-month hiatus between the cessation of production at Sterlingwale and the commencement of the Company's operations is to be considered, but it is similarly not dispositive. ¹² A hiatus does not of itself preclude a successorship finding because the inquiry focuses...