Aluminum Tubular Corp.

National Labor Relations Board - Board Decisions

Mar 14, 1961

130 N.L.R.B. 1306 (N.L.R.B. 1961)

1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hun of a sum of money equal to the amount he would have earned in Respondent's
employ from that date to the date of offer of reinstatement less his net earnings
during that period. Backpay shall be computed in accordance with'the Board's
Woolworth formula.'
The circumstances of the discharge are not such as to indicate a fixed determination
on the part of the Respondent to deprive employees of rights secured by the Act. It
is at least possible that the discharge of Holt was made in the belief that no
statutory right was involved. In these circumstances I consider that a narrow cease-
and-desist order is adequate
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of America, Local Union No.
426, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the
Act.
2. By discriminating in regard to the tenure of employment of James Holt, the
Respondent has engaged in an unfair labor practice within the meaning of Section
8(a)(3) of the Act.
3. By the discharge of Holt the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act
and has thereby engaged in an unfair labor practice within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor practice affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
IF. W. Woolworth Company, 90 NLRB 289
Aluminum Tubular Corporation 1 and American Flagpole Equip-
ment Co., Inc 2 and Suffolk County District Council of United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO.3 Case No. 3-CA-6698. March 14, 1961
DECISION AND ORDER
On May 13, 1960, Trial Examiner John H. Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondents filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Leedom,
Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
I Hereinafter referred to as Aluminum.
Hereinafter referred to as Flagpole.
Hereinafter referred to as the Carpenters.
130 NLRB No. 137.
ALUMINUM TUBULAR CORPORATION, ETC. 1307
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations,' with the following modifications.
The Trial Examiner found that Aluminum's conduct on and after
June 4, 1959, was violative of Section 8(a) (1) and (5) of the Act in
that Aluminum refused to bargain in good faith with the Carpenters
by (a) ignoring the Carpenters' telegram of June 4, 1959, and-(b)
failing to notify the Carpenters of its intention to discontinue opera-
tions on or after June 30, 1959.
We agree with the Trial Examiner's conclusion that the Respondent
Aluminum violated Section 8(a) (5) and (1) by refusing to bargain in
good faith with the Carpenters, as set forth above.
,The Trial Examiner further found that the Respondents, Alumi-
num and Flagpole, "constituted a single employer at the East Setauket
plant" and that, "as the alter ego of Aluminum" Flagpole "is in viola-
tion of Section 8(a) (1) and (5) of the Act and is responsible for
remedying said unfair labor practice." The Trial Examiner also
found that "All production and maintenance employees employed
at the Respondents' East Setauket . plant . . . constitute a unit
appropriate for the purposes of collective bargaining . . . ," and he
recommended that the Respondents be directed to cease and desist from
refusing to bargain with the Carpenters with respect to such unit and
to bargain as to such unit.
We'agree with the Trial Examiner that Aluminum and Flagpole
comprise a single employer under the Act. Such a finding, we believe,
is compelled by the following facts, which are fully detailed in the
Intermediate Report : William and Margaret Johnson have control-
ling ownership in Aluminum and own all the stock of Flagpole. The
Johnsons exercise control over the labor policies of both companies.
At East Setauket, where the operation involved is located, both com-
panies have carried on their business in the same building since Sep-
tember 1958, maintaining a common stockpile of aluminum. Both
companies produce identical products and Flagpole has used Alumi-
num's employees for construction and production work. Following
Aluminum's unlawful refusal to bargain with the Carpenters, and
its cessation of operations, Flagpole continued to operate Aluminum's
business. It carried on the business with most of Aluminum's em-
ployees; using Aluminum's equipment, and fulfilling Aluminum's
contracts. And, Aluminum depended on Flagpole's credit rating for
the procurement of its raw materials. In view thereof it follows that
both are responsible for the unlawful refusal to bargain herein. We
4 In the absence of any exceptions to the Trial Examiner's failure to recommend specif-
ically a remedy for violation of Section 8(a) (1) of the Act, we adopt, pro forma ,his
recommendation in effect that the remedy be limited solely to the 8( a) (5) violation.' See
Gulf Atlantic Warehouse Co., 129 NLRB 42.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would therefore require both Respondents to bargain. However, con-
trary to the Trial Examiner, Aluminum's and Flagpole's bargaining
obligations under the Board's Order shall be limited to bargaining
with respect to the unit of Aluminum's employees for which the Car-
penters was certified.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Aluminum Tu-
bular Corporation and American Flagpole Equipment Co., Inc., New
York, New York, their officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Suffolk County District
Council of United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, as the exclusive bargaining representative of its employees
in the unit found appropriate by the Board on March 6, 1959, in Case
No. 2-RC-9703.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Suffolk County Dis-
trict Council of United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, as the exclusive representative of all employees
in the aforesaid appropriate unit.
(b) Post at their plant at East Setauket, Long Island, New York,
copies of the notice attached hereto marked "Appendix." 5 Copies of
said notice, to be furnished by the Regional Director for the Second
Region, shall, after being duly signed by an authorized representa-
tive of the Respondents, be posted by the Respondents immediately
upon receipt thereof, and be maintained by them for a period of 60
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondents to insure that said notices are not
altered, defaced; or covered by any other material.
(c) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondents have taken to comply herewith.
MEMBER LEEDOM, concurring in part and dissenting in part :
I concur in the decision of my colleagues that Aluminum unlaw-
fully refused to bargain with the Carpenters. However, I do not
agree with them insofar as they hold Flagpole responsible for the un-
6 In the event that this Order is enforced by a decree of a United States Court of
Appeals , 'there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
ALUMINUM TUBULAR CORPORATION, ETC. 1309
fair labor practices of Aluminum. In their view, Flagpole is respon-
sible for the unfair labor practices of Aluminum mainly because the
Johnsons, who own 51 percent of the stock in Aluminum, own all the
stock of Flagpole, serve as directors and officers of both corporations,
and control the operations of each. But, in addition to being a sepa-
rate legal entity from Aluminum, the record shows that Flagpole has
its own employees, and conducts its labor relations separately. Fur-
ther, the Board certification of the Carpenters as the exclusive bar-
gaining representative of Aluminum's production and maintenance
employees makes no mention of Flagpole. - In fact, Flagpole had at
that time a contract with another union at the same location covering
Flagpole's production and maintenance employees. The foregoing
demonstrate to me that, under the circumstances, Aluminum and Flag-
pole do not constitute a single employer and that it is improper to
require Flagpole to bargain concerning Aluminum's employees.
As I do not find Flagpole responsible for the unfair labor practices
of Aluminum, I would dismiss the complaint as to Flagpole.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL bargain collectively upon request with Suffolk County
District Council of United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO, in the following appropriate bargain-
ing unit :
All production and maintenance employees employed at our
East Setauket, Long Island, New York, plant, exclusive of
office clerical employees, professional employees, watchmen,
guards, and all supervisors as defined in Section 2(11) of the
Act.
ALUMINUM TUBULAR CORPORATION,
Employer.
AMERICAN FLAGPOLE EQUIPMENT CO., INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered. defaced, or covered by any other material.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE -REPORT
STATEMENT OF THE CASE
Upon a charge filed by Suffolk County District Council of United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, herein called the Union , the General
Counsel of. the National Labor Relations Board, by the Regional Director for the
Second Region, issued a complaint dated August 27, 1959, against "Aluminum Tubu-
lar Corporation and American Flagpole Equipment Co., Inc., Alter Ego, Successor
and Party in Interest ," respectively herein called Aluminum and Flagpole , alleging
that the Respondents had engaged in unfair labor practices within the meaning of
Section 8 ( a)(1) and ( 5) and Section 2(6) and (7) of the National Labor Relations
Act, as amended , herein called the Act.
The Respondents filed an answer on or about September 25, 1959 , in which they
admitted the jurisdictional allegations of the complaint insofar as they relate to Flag-
pole, but denied such allegations as to Aluminum and the commission of any unfair
labor practices.
Pursuant to notice , a hearing was held at New York, New York, before the duly
designated Trial Examiner on November 16 and 17, 1959. At the conclusion of
the General Counsel 's case the Respondents moved to dismiss the complaint . Ruling
was reserved . The motions to dismiss are disposed of as hereinafter indicated. At
the close of the hearing the General Counsel presented oral argument on the record.
The General Counsel and the Respondents filed briefs with the Trial Examiner after
the conclusion of the hearing.
The parties also filed with the Trial Examiner a stipulation dated December 28,
1959, which provides for the correction of the transcript of record . The stipulation
is received in evidence as Trial Examiner 's Exhibit No. 1.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Aluminum was incorporated under the laws of the State of New York on August
1, 1955. On or about June 30, 1959 , Aluminum discontinued its manufacturing op-
erations. Prior to that time it manufactured tubular aluminum poles and related
products at is plant located at East Setauket , Long Island , New York. During the
year preceding the date of the hearing herein, Aluminum caused to be purchased,
transferred , and delivered to its plant aluminum and other goods and materials,
valued at in excess of $50,000, which were transported to said plant in interstate
commerce directly from States of the United States other than the State of New
York.
Flagpole is a New York corporation with plants located in the Borough of the
Bronx, city and State of New York, and in East Setauket, Long Island, New York.
It is engaged at said plants in the manufacture , sale, and distribution of tubular
aluminum poles , flagpoles, and related products . During the year preceding the
date of the complaint herein , Flagpole, in the course and conduct of its business
operations , caused to be purchased, transferred , and delivered to its Bronx plant
aluminum and other goods and materials , valued at in excess of $50,000, which were
transported to said plant in interstate commerce directly from . States of the United
States other than the State of New York.
II. THE LABOR ORGANIZATION INVOLVED
Suffolk County District Council of-United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, is a labor organization which admits to membership em-
ployees of the Respondents.
In. THE UNFAIR LABOR PRACTICES
A. Statement of facts
William Johnson and Margaret Johnson , husband and wife, are president and
secretary -treasurer of Aluminum , respectively. Chad . Raseman is its vice president.
William Johnson , Margaret Johnson , Raseman , and B . Russell Gibbs are members
of Aluminum 's board of directors . Gibbs acted as engineer and plant manager until
about March 1959. The stock of Aluminum is owned 51 percent by the Johnsons
and 49 percent by Raseman and Gibbs.
ALUMINUM TUBULAR CORPORATION, ETC. 1311
William Johnson and Margaret Johnson are president and secretary-treasurer of
Flagpole, respectively. They also are members of its board of directors and own all
of its stock..
After its incorporation and until about September 1, 1958, Aluminum conducted
its business in a converted barn in East Setauket. Flagpole did not use this barn
for its production operations.
At all times material herein, Flagpole had a collective-bargaining agreement with
International Association of Bridge, Structural and Ornamental Iron Workers, AFL-
CIO, covering "all" of Flagpole's "production and maintenance employees." The
contract presently in effect is "a renewal with some union fringe changes of a pre-.
viously existing contract which expired just prior to July 1, 1958."
Since September 1, 1958, Aluminum and Flagpole "each had and still has a lease
on the premises at East Setauket" (a new building). On or about January 26, 1959;
Aluminum and Flagpole entered into a "Secured Distribution Agreement" with
Bridgeport Brass Company "to store certain aluminum sold to them by said Bridge-
port Brass Company in a field warehouse to be maintained for such purpose by
Lawrence Warehouse Company." On the same date a field warehousing agreement
was entered into between Flagpole and Lawrence Warehouse Company. On Febru-
ary 2, 1959, space at the Respondents' East Setauket plant was leased to Lawrence
Warehouse Company, which space was used by said Company for establishing and
maintaining a field warehouse in accordance with the above agreement.
After Flagpole joined in leasing the plant at East Setauket, it continued to operate
its plant in the Bronx. At times some of Aluminum's employees performed. work
for Flagpole. Such work was "mostly construction"; and the employees involved
were transferred to Flagpole's payroll.
On June 2, 1959, the Board certified the Union as the exclusive bargaining repre-
sentative of Aluminum's production and maintenance employees at its plant at East
. Setauket. On June 4, 1959, the Union sent Aluminum the following telegram: i
We have received certification issued by the National Labor Relations Board
designating our brotherhood as the collective bargaining agency for your em-
ployees you are requested to contact the undersigned at Mohawk 16507 for the
purpose of arranging a mutually satisfactory time and place for the negotiation
of a labor management agreement.
George Schmitt, financial secretary of the Union, testified credibly that within the
week following the date of the above telegram he made about three "telephone calls
to Mr. Johnson's office"; that some unidentified person in Aluminum's office told
him that Johnson was not present; that he identified himself when he called; that
about a week later he went to Aluminum's plant; that "on the two occasions I went
[to the plant], the gate was locked. There was a sign on the gate, `Blow Horn,' which
I did. On one time of the two, someone started to walk down toward the gate.
When they got half way down, they turned around and walked back"; and that the
Union never received any reply from Aluminum in answer to its telegram or his
telephonic calls. Schmitt went to Aluminum's plant again in August 1959 and had
a conversation with Margaret Johnson. He told her that the purpose of his visit
had "reference to the telegram-served as to the notice on bargaining." She told
him that Aluminum was "no longer in business" and that "It was now American
Flagpole." Schmitt then left the plant.
As related and found above, Aluminum ceased its operations on June 30, 1959.
It had nine employees on its last payroll for the week ending July 1, 1959. There-
after, and as of the date of the hearing herein, Flagpole employed five of the nine
employees who formerly had worked for Aluminum. Flagpole also had two other
production employees on its payroll as of the date of the hearing. Flagpole com=
pleted some of Aluminum's unfinished contracts, taking losses on some of the work
which had been guaranteed personally by William Johnson. Since Aluminum ceased
operations, Flagpole has used the equipment which was owned by Aluminum paying
rent to Aluminum. As of the date of the hearing, Aluminum had not been dissolved.
For the year.ending December 31, 1958,. Aluminum had a deficit of $59,665.76.
Up to the end of May 1959, Aluminum had a further loss of approximately $37,000.
The telegram was addressed to "Johnson" and "Aluminum Tubular Corp." The
parties stipulated that "This telegram was called in by Western Union to the addressee" ;
and that William Johnson was not present at the plant at the time. Margaret Johnson
testified that she did not receive the telegram over the telephone and that she was not
at the East Setauket plant on June 4. However, counsel for Aluminum admitted that
the telegram from the Union was received by Aluminum "sometime in June."
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About August 1958 , Aluminum applied to the Franklin National Bank at Roose-
velt Field, New York, for a loan of $250,000 to cover the purchase of automatic
machines . The bank advised Aluminum that it could not make the loan "because
of the inadequacy , the incompleteness , of the financial statements that were sub-
mitted," and recommended that it retain the accounting firm of A. M. Pullen &
Company. Pullen & Company thereafter prepared a financial report for Aluminum.
for the year ending December 31, 1958. From "an accounting point of view," this
report showed that Aluminum was "insolvent." On about May 13, 1959, William
and Margaret Johnson met with representatives of the Franklin Bank and Pullen &
Company. The representative of the bank told the Johnsons , in substance , that the
bank could not make the requested loan because of the "insolvent condition" of
Aluminum , and recommended that Aluminum and Flagpole be consolidated "so as
to eliminate that condition and have a better financial condition."
B. Conclusions
It is clear from the evidence and I find that Aluminum's conduct on and after
about June 4, 1959, was violative of Section 8(a) (1) and (5) of the Act. It refused
to bargain in good faith with the Union by ignoring the Union's telegram of June
4, 1959, and by failing to notify the Union of its intentions to discontinue opera-
tions on and after June 30, 1959.
I find that Flagpole is the alter ego for Aluminum, as alleged in the complaint.
For the purposes of the Act both Respondents constituted a single employer at the
East Setauket plant. The evidence shows that the Johnson family has a controlling
ownership in and exercises control over the policies of both companies ? Before
June 30 , 1959 , Flagpole used Aluminum's employees for both construction and pro-
duction work. After Aluminum ceased operations, Flagpole continued to perform
Aluminum 's contracts and retained five of Aluminum 's nine employees in its em-
ploy. Both Respondents produced identical products , flagpoles and light poles.
Aluminum depended on Flagpole's credit rating for the. procurement of its raw
materials and for performance of its contracts. Finally, the Johnsons were the
actual participants in the unfair labor practices of Aluminum , as found above.
Accordingly, Flagpole, as the alter ego of Aluminum, is in violation of Section
8(a)(1) and ( 5) of the Act and is responsible for remedying said unfair labor
practices.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with their business operations described in section I, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
it will be recommended that they cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondents , and each of them , are engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act and constitute a single employer for the
purposes of the Act.
2. Suffolk County District Council of United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. All production and maintenance employees employed at the Respondents' East
Setauket , Long Island , New York, plant, exclusive of office clerical employees, pro-
fessional employees, watchmen, guards, and all supervisors as defined in Section
2(11) of the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
2 As found above, Gibbs did not act as plant manager for Aluminum after March 1959.
When Aluminum was incorporated , the Johnsons made all capital investments.
DAL-TEX OPTICAL COMPANY, INC. 1313
4. The Union was, on June 2, 1959, and at all times since has been , the exclusive
representative of all employees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act. '
5. By refusing to bargain with the Union on and after June 4, 1959, the Respond-
ents have engaged in unfair labor practices within the meaning of Section 8(a) (5)
and (1) of the Act.
6. By interfering with, restraining , and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Dal-Tex Optical Company, Inc. and International Union of
Electrical , Radio and Machine Workers, AFL-CIO. Cases Nos.
16-CA-1325 and 16-RC-571. March 14, 1961
DECISION AND ORDER
On October 1, 1960, Trial Examiner Henry S. Salim issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner further found
that the Board-directed election in Case No. 16-RC-2571 should be set
aside. Thereafter, the Respondent filed exceptions to the Interme-
diate Report.
Pursuant to the provision of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.' The Board has considered the
'In its exceptions , Respondent contends that the Trial Examiner erred in not finding
that certain procedural objections made by it during the course of the hearing were meri-
torious. In substance , Respondent's contentions in this regard are as follows : (1) That
there is a fatal variance between the charge and the complaint ; ( 2) that it was im-
proper to consolidate the representation case with the complaint case in this proceed-
ing; (3 ) that its motion for a bill of particulars should have been granted; and
(4) that its request for a continuance should have been granted . As to ( 1), the charge
alleged that Respondent violated Section 8 ( a)(1) and ( 3) of the Act by discriminatorily
discharging certain named employees . It further alleged that by the acts set forth, and
"by other acts and conduct , it, by its officers , agents , and employees , interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act." The complaint is limited to allegations of independent Section 8(a) (1)
violations . As it is clear that the allegations of the complaint grew out of and were a
part of the same fact situation which gave rise to the charge, we find no merit in this
contention . See N .L.R.B. v. Fant Milling Company, 360 U . S. 301 ; N.L.R.B. v. Kohler
Company, 220 F. 2d 3 (C.A. 7). As to (2), the complaint contains allegations of Sec-
tion 8 ( a) (1) conduct which would have a direct bearing upon the validity of the prior
election. In such circumstances , we believe the Regional Director acted properly in con-
130 NLRB No. 142.
597254-61-vol. 130-84