BC Industries

National Labor Relations Board - Board Decisions

Jul 13, 1992

307 N.L.R.B. 1275 (N.L.R.B. 1992)

1275
307 NLRB No. 192
BC INDUSTRIES
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), endf.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
No exceptions were filed to the judge’s finding that Respondent
BC Industries, Inc. (BCI) unlawfully failed to notify and bargain
with the Union over the effects of closing its Morgantown and Fair-
mont plants.
We agree with the judge that Respondent BCI did not violate the
Act by failing to bargain over its decisions to close the Morgantown
plant and to close and relocate the Fairmont plant. The judge cor-
rectly found that all three decisions were motivated solely by eco-
nomic considerations. It is well established that an employer’s deci-
sion to close part of its business for purely economic reasons is not
a mandatory subject of bargaining. First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981). With respect to the alleged
duty to bargain over the relocation decision, we note that in his ex-
ceptions the General Counsel argues solely that the decision was un-
lawfully motivated, and expressly declines to make an argument
based on the Board’s analysis in Dubuque Packing Co., 303 NLRB
386 (1991).
We also agree with the judge that Respondent BCI did not violate
the Act by failing to furnish the Union the information it requested
on February 17, 1989. The information request was made for the ex-
press purpose of bargaining over Respondent BCI’s decision to close
the Morgantown plant. Because Respondent BCI had no statutory
obligation to bargain about the partial closure decision, we find that
it had no duty to furnish information for that purpose. See Cowles
Communications, 172 NLRB 1909 (1968) (duty to furnish informa-
tion stems from the underlying statutory duty to bargain with respect
to mandatory subjects of bargaining). We note that in the informa-
tion request, the Union also asked: ‘‘What relation BCI has with
Mountaineer Building Supply’’ (MBS). In light of the general nature
of this inquiry, we find that Respondent BCI adequately satisfied its
obligations on this score by its prior communication to the Union
that MBS was a separate corporation with separate stockholders and
officers, and was not to be construed as a part of BCI.
3 We modify the judge’s recommended remedy to provide that in-
terest shall be computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). In light of the fact that
Respondent BCI closed its Morgantown plant and relocated its Fair-
mont plant, we shall also modify the judge’s recommended Order to
require the mailing of copies of the notice to all unit employees em-
ployed at the time of the closing and the relocation.
BC Industries, Inc., wholly owned by Columbia
Portland Cement Company, wholly or partially
owned by Columbia Holding Company, Inc.
and/or SME Industries, Inc., wholly owned by
Frank Carlow Irrevocable Trust Fund and/or
Mountaineer Builders Supply Company, wholly
owned by Frank V. Carlow and/or Frank V.
Carlow and Teamsters Local Union No. 789
a/w International Brotherhood of Teamsters,
AFL–CIO.1 Cases 6–CA–21393, 6–CA–21851,
and 6–CA–21928
July 13, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 2, 1991, Administrative Law Judge Hu-
bert E. Lott issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondents filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that Respondent BC Indus-
tries, Inc., Morgantown, West Virginia, and Respond-
ent Premiere Concrete Products, Inc., Bellaire, Ohio,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
Add the following as paragraph 2(e) and reletter the
following paragraph.
‘‘(e) Mail signed and dated copies of the attached
notice marked ‘Appendix A’ to the last known address
of all unit employees as of the date of the closing of
the Morgantown, West Virginia facility and the reloca-
tion of the Fairmont, West Virginia facility. Copies of
the notice, on forms provided by the Regional Director
for Region 6, after being signed by the Respondent’s
authorized representative, shall be mailed immediately
on receipt.’’
Kim Siegert, Esq., for the General Counsel.
John C. Ross, Esq. (Ross & Robinson), of Canton, Ohio, for
Respondent BC Industries.
E. Donald Ladoy, Esq. (Cohen & Griasby), of Pittsburgh,
Pennsylvania, for Respondent Mountaineer Builders Sup-
ply.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This case
was heard in Fairmont, West Virginia, on December 3, 4,
and 5, 1990, on unfair labor practice charges and amended
charges filed on November 9, 1988, June 5, 1989, and July
10, 1989, by Teamsters Local Union No. 789 (the Union),
1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Effective April 1, 1990, Premiere Concrete Products, Inc. became
the successor of BC Industries, Inc.
against the above Respondents alleging violations of Section
8(a)(1), (3), (4), and (5) of the Act. The consolidated com-
plaint issued August 10, 1990.
The issues in this case are whether or not Mountaineer
Builders Supply Company (MBS) and/or Frank V. Carlow
are the alter ego employers of BC Industries (BCI).1 Whether
Respondent MBS violated Section 8(a)(1), (3), (4), and (5)
of the Act by refusing to hire former BCI employees and
failing to apply BCI labor agreement to its unit employees.
Whether BCI violated Section 8(a)(1), (3), and (5) of the Act
when it closed its Morgantown and Fairmont, West Virginia
plants and failed to bargain over the decision and its effects.
Whether BCI Fairmont violated Section 8(a)(5) of the Act by
refusing to furnish information to the Union over the closure
and whether or not BCI violated Section 8(a)(5) of the Act
by refusing to negotiate a new contract.
Respondent’s answer to the complaint, duly filed, denies
the commission of any unfair labor practices.
The parties were afforded an opportunity to be heard, to
call, to examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of hearing briefs
have been received from the parties.
On the entire record and based on my observation of the
witnesses, and in consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
BC Industries, Inc., an Ohio corporation with an office and
place of business in Morgantown, West Virginia, has oper-
ated ready-mix batch plants in various States of the United
States including Ohio, West Virginia, and Pennsylvania
where it is engaged in the nonretail sale of concrete. During
the 12-month period ending October 31, 1988, BCI, in the
course and conduct of its business operations, purchased and
received at its Morgantown and Fairmont, West Virginia fa-
cilities products, goods, and materials valued in excess of
$50,000 directly from points outside the State of West Vir-
ginia.
Mountaineer Builders Supply Company (MBS), a Dela-
ware corporation, has an office and place of business in Mor-
gantown, West Virginia, where it operates a ready-mix con-
crete batch plant and is engaged in the nonretail sale of con-
crete. During the 12-month period ending October 31, 1989,
MBS, in the course and conduct of its business operations
purchased and received at its Morgantown, West Virginia fa-
cility products, goods and materials valued in excess of
$50,000 directly from points outside the State of West Vir-
ginia.
Premiere Concrete Products, Inc., a Delaware corporation,
is the successor to BCI since April 1, 1990. Premiere has an
office and place of business in Bellaire, Ohio, and during the
past 12 months, a representative period, it has sold and
shipped goods valued in excess of $50,000 to points and
places directly outside the State of Ohio. It also purchased
and received goods valued in excess $50,000 from points di-
rectly outside the State of Ohio.
Counsel for Respondents admit and I find that BCI, MBS,
and Premiere Concrete are employers engaging in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Counsel for Respondents further admit, and I find, that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Refusal-to-Bargain Conduct
The Belot family began the BCI operations in the 1930s.
By the mid-1970s, sons Joe and John Belot owned and oper-
ated the Company which by the mid-1980s had facilities or
operations in Straton, Stubenville, Tiltonsville, Mingo Junc-
tion, Bellaire, Ohio, and Morgantown, Fairmont, and Weston,
West Virginia, and Enon, Pennsylvania. All these locations
were under Teamsters’ union contract. In November 1984,
Columbia Portland Cement Company (Columbia) acquired
60 percent of the BCI stock in exchange for debts owing on
cement supplied to BCI which was undergoing financial dif-
ficulties because of a decreasing market for ready-mix con-
crete. In October 1985, Columbia’s stock ownership in-
creased to 80 percent and the Belot Brothers’ was reduced
to 20-percent ownership. In April 1988, Columbia owned
100 percent of the BCI stock. Columbia, which is controlled
by Frank and his son Michael Carlow, continued to have
John and Joseph Belot manage BCI. Joe Belot directed sales
while John Belot managed production and administration.
Both brothers handled labor relations. During this period of
time, BCI maintained its own office force, supervisory staff,
drivers, and equipment. BCI continued to perform its own
accounting functions and filed separate income tax returns,
although it utilized the computer of Standard Machine and
Equipment Company (S.M.E.) in Uniontown, Pennsylvania,
to process its payroll.
BCI took possession of the Morgantown and Fairmont,
West Virginia facilities in January 1983, after purchasing an
option to buy the plants in 1982. The Morgantown plant is
stationary while the Fairmont facility is portable. Both facili-
ties were situated on leased property.
The Teamsters Union has represented BCI employees at
Morgantown and Fairmont under one collective-bargaining
agreement since 1970. The most recent collective-bargaining
agreement was effective from May 1, 1986, to April 30,
1989, and the unit covered by the agreement includes: truck-
drivers, warehousemen, batchmen, yardmen, helpers, block
plant employees, and precast plant employees. On balance
the Union and BCI had a good working relationship over the
years.
John Belot, president of BCI, testified that BCI’s Morgan-
town, West Virginia facility was not a profitable operation
and it lost money. BCI Morgantown was located on leased
property from Victory Rental. Although Belot was able to
negotiate a year’s extension of the lease in December 1986,
BCI thereafter became a month-to-month tenant. Belot tried
to negotiate for the sale of the property but Victory wanted
it for development purposes and set a prohibitive price. Ac-
cording to Belot, the EPA was going to require the installa-
tion of a water purification system at the Morgantown plant.
Belot was not in favor of investing any more money in Mor-
gantown because the market was deteriorating. Frank
Carlow, a member of the board of directors of BCI through
1277BC INDUSTRIES
Columbia Cement, testified that investing in BCI Morgan-
town would have been ‘‘putting good money after bad.’’ He
stated that they were losing money, their reputation was bad,
and he couldn’t see investing more money in BCI. John
Belot discussed the financial situation at BCI Morgantown
with Michael Carlow and they decided to close the plant. On
March 11, 1988, Morgantown BCI was closed and the eight
employees working there were transferred to BCI Fairmont.
Prior to the BCI Morgantown closing, BCI closed its
Straton and Bellaire, Ohio plants in 1983, and its Stubenville
plant in 1985. The Enon, Pennsylvania plant sat idle for 3
years from 1986 and all the employees were laid off.
Union President VanHorn testified that he was notified of
the closure by his business agent, Charles Morrison, on
March 11, 1988. Morrison serviced the BCI Morgantown and
Fairmont contracts. VanHorn knew that BCI Morgantown
was losing its lease and was not surprised when it closed
down.
Luther Lynch, union shop steward at BCI, testified that
from the closing of BCI Morgantown to August 1988, BCI
Morgantown Plant Manager Robert Hook and David
Schofield told him that employees would be working out of
the Fairmont plant until excavation work was completed and
a new plant was built. In April 1988, unit employees re-
ported to VanHorn that a road was being constructed and a
new batch plant was being built ‘‘up on the hill.’’ VanHorn
attempted to call BCI President John Belot at his office in
Bellaire, Ohio. He left messages with Belot’s secretary but
his two telephone calls were not returned.
In April 1988, the BCI Morgantown plant was torn down
and certain equipment was sold to MBS which was the name
of the company building the batch plant ‘‘up on the hill.’’
The invoice lists the following items which were sold at
book value because BCI estimated that it would be too ex-
pensive to move equipment elsewhere: office trailer $2413,
two 15-ton hoppers $6500, fuel tank $500, forklift $2349, fly
ash bin $l937, office furniture $l076, and conveyor $2100.
Total—$l6,876. According to Mark Sharp, vice president for
development at MBS, the hoppers and conveyor were never
used and the BCI batch plant was scrapped. This invoice was
offset by reclamation work done for BCI by MBS valued at
$7300. The rest of the bill was never paid. When the Fair-
mont plant was closed a testing lab and garage doors were
sent to MBS at no cost. In March 1988, Sharp took measure-
ments and helped install a fly ash bin which had been
brought from Morgantown to Fairmont.
During the summer of 1988, unit employees noticed Rob-
ert Hook who was still employed at BCI, at the MBS con-
struction site frequently observing the progress of construc-
tion. When they needed to contact him they called the old
BCI number at the office trailer which had been moved from
BCI Morgantown to MBS. The phone was answered ‘‘BCI.’’
Sometime after construction began at MBS, employee Dale
Kisner testified that he and Supervisor Larry Petro were at
the Fairmont facility. Kisner overheard Petro telling customer
Roy Sexton that they had an interest in the new plant being
constructed.
In August 1988, Lynch asked Hook about jobs at MBS for
the employees. Hook said he had nothing to do with MBS.
Lynch asked him why he was there all the time and Hook
said he was just overseeing the project. Although Lynch
never applied for a job at MBS, in December 1988, he asked
Hook and David Schofield, a consultant for U.S. cement,
how to get a job there. They referred him to the state unem-
ployment office (Job Partnership Training Assistance).
In 1988 Carl Jones was state project supervisor for a
bridge construction project for which BCI supplied concrete.
Problems arose with the concrete meeting specifications.
David Schofield and Jones discussed the matter. Jones testi-
fied that he told Schofield that the problem with the concrete
was related to the distance BCI was hauling it from Fairmont
to the jobsite. According to Jones, Schofield replied that they
would be resolving that problem because they already shut
down the BCI operation in Morgantown and the operations
in Fairmont would be closed and that he would be hauling
out of the new facility. According to Jones, Schofield said
they were having problems with the unit people there
throughout the life of those jobs and they would be getting
new people to handle the work at the new plant they were
opening up. Schofield added that when they opened up,
union personnel would not be coming over there. Schofield
also mentioned that other suppliers were nonunion. Jones ad-
mitted on cross-examination that in his sworn affidavit dated
November 30, 1990, he didn’t mention length of haul as a
problem or that Schofield mentioned closing BCI Morgan-
town. He further admitted that Schofield didn’t mention
union personnel or money but limited his remarks to non-
union suppliers. Then he admitted that there was nothing in
his affidavit about nonunion suppliers.
In August 1988, the employees notified VanHorn that the
batch plant was set up at the new site and would operate
under the name of MBS. VanHorn again tried to call John
Belot but was unsuccessful in reaching him. On August 26,
1988, he wrote a letter to BCI in Bellaire, Ohio, stating that
he had been advised that a company called MBS would
shortly be operating a batch plant. He claimed the work for
his members under the existing contract and requested a
meeting before the new plant opened. On September 2, 1988,
MBS commenced operations making ready-mix cement.
In a letter dated September 19, 1988, John Belot informed
VanHorn that MBS and BCI were separate corporations with
separate officers and stockholders and that MBS was not
covered under the labor agreement between BCI and the
Union. He requested that VanHorn direct correspondence
concerning this matter to MBS.
Luther Lynch testified that in October 1988, he asked
Schofield about being hired at MBS. Schofield said he had
nothing to do with MBS and asked why they needed a union
anyway because the Union would not back up its members
when the Company lost the Riverview Memorial Hospital
job because of price. Lynch said if the Company approached
them they could work something out.
Employee Dale Risner testified that in October 1988, he
talked to Supervisor Larry Petro at the Fairmont plant. He
asked Petro why they were doing this to us, referring to the
new plant. Petro responded that it was to prove a point to
the Union. Kisner said the Union had gone along with the
Company in the past. He further testified that some time be-
fore March 11, 1989, Robert Hook told him that they would
transfer employees to the Fairmont plant when Morgantown
closed and then transfer employees to the plant on the hill
when it was completed. On cross-examination, Kisner admit-
ted that neither of these statements appeared in his sworn af-
fidavits dated December 1988 and June 1989.
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lynch testified that on November 30, 1988, at the Fair-
mont trailer, Larry Petro was overheard telling a customer
that he couldn’t supply concrete and they should go to MBS.
He said he heard this a couple of times. Lynch asked why
he was turning down orders and Petro replied that the Com-
pany said not to take any more concrete orders.
According to Luther Lynch, on January 10 and 11, 1989,
Larry Petro told the employees at the Fairmont plant they
were being permanently laid off. They received their final
paychecks and vacation pay. Petro said the trucks were to be
moved to Bellaire, Ohio.
Lynch testified that he, Dale Risner, and Robert Tomago
applied for jobs with MBS through the unemployment office
(Job Partnership Training Assistance) but were turned down
because they had earned too much money.
VanHorn, after receiving the layoff information from em-
ployees, called John Belot and related what he had been told.
Belot assured him the Fairmont plant was not permanently
closed and the employees would be recalled as soon as there
was work. VanHorn took no further action at that time.
VanHorn testified that he wrote a letter to BCI dated Feb-
ruary 17, 1989, accusing the Company of closing the Fair-
mont plant without notifying the Union or giving the Union
an opportunity to bargain over the decision or the effects. In
the same letter VanHorn requested a meeting and information
on the reason for closing, disposition of customers and
equipment, relationship between BCI and MBS, and letters,
reports, and documents.
Belot responded in a letter dated February 24, 1989,
wherein he advised VanHorn that the plant had not been
closed and the employees terminated. He explained that it
had been shut down due to lack of work and it would be
reopened and employees called back as soon as work became
available in the Fairmont area.
VanHorn in a letter dated February 28, 1989, gave John
Belot notice of the Union’s desire to negotiate changes in the
existing contract that was due to expire on April 30, 1989.
Additional unfair labor practice charges were filed by the
Union on June 5, 1989, and July 10, 1989.
On October 17, 1989, Belot wrote a letter to VanHorn in-
forming him that the Company was bidding on a mine sub-
sidence job in Fairmont and if successful they would utilize
the Fairmont plant. He requested a list of Fairmont drivers
that would be available. On October 23, 1989, the Union
supplied the requested list.
On December 5, 1989, Belot wrote a letter to the Union
informing it that BCI had obtained a contract to furnish con-
crete to the Bailey Mine in Enon, Pennsylvania, and they
would be contacting union members that week utilizing the
list furnished by the Union on October 23, 1989.
On December 13, 1989, the Union and Company held a
meeting at the Union’s Fairmont hall. Belot explained to
VanHorn and the union members about the Bailey mine
project in Enon and his intention to utilize not only Fairmont
drivers but drivers from other BCI locations and that the
Fairmont portable plant would be moved to Enon, Pennsyl-
vania. Mike Roman, BCI’s labor consultant, accompanied
Belot and they both agreed to submit a contract proposal to
the Union.
On December 20, 1989, the Company submitted its con-
tract proposal to the Union and according to VanHorn it was
rejected because it was concessionary, reducing wages and
benefits below the old contract rates. In December 1989,
VanHorn talked to Belot informing him of the employees de-
cision to reject the contract offer. Belot said he would con-
tact VanHorn but nothing occurred.
Robert Rinsley, an employee at the Fairmont plant testified
that Larry Petro, in reply to his question about working at
MBS, advised him to make application with the unemploy-
ment office. He never had an interview or a job offer. In
June 1989, he talked to David Lowther about a job with
MBS. Lowther said he would talk to Schofield and get back
with him. He was never contacted.
BCI employee Harlan Miller testified that when he asked
Petro about working for MBS, Petro told him that it was a
different company. He further testified that on April 26,
1989, he had another conversation wherein Petro asked
whether Miller was working. Miller said no. Petro asked if
he knew anything about the labor charges. Miller said no.
Petro then said that the only way he (Petro) would get his
job back was if we won our case.
Miller further testified that on May 12, 1989, he was in
the Star City Laundromat when he met Dave Lowther who
gave him his card which indicated that Lowther was oper-
ations manager of MBS. Miller asked for a job. Lowther re-
plied that as long as there are labor relations charges against
the Company, he could not hire him or anyone else.
On April 12, 1990, Miller received a call from unemploy-
ment asking him to call MBS. He called a women named
Rosemary at MBS who told him they were looking for some-
one in the future.
Miller admitted on cross-examination that when working
at BCI Dave Lowther was assigned his job as batch man and
he was assigned to driving a truck which was less desirable.
Miller also admitted keeping a notebook of important events
that occurred but did not make a note of the May 12 encoun-
ter with Lowther.
Henry Hart, a BCI employee who last worked on Decem-
ber 7, 1987, and was released from workmen’s compensation
on January 17, 1989, testified that he talked to Dave Lowther
several times in April and May 1989, about a job at MBS.
Lowther said he was going to hire when the weather broke.
He never heard from Lowther.
On May 30, 1989, he met Lowther at the firemen’s parade
at Star City and asked him for a job. Lowther said his hands
were tied, he couldn’t hire any BCI drivers until this thing
was settled. He asked Hart if had heard anything and Hart
said no.
John Belot testified that when he finished the mine subsid-
ence job in January 1989 there was no more work at the
Fairmont plant and since the portable plant was not winter-
ized, he temporarily shut it down and laid off the employees.
He stated that he scanned the Dodge Reports for jobs, the
salesmen submitted bids on every job in the Fairmont area,
and he made personal calls to get work for Fairmont but was
unsuccessful. Belot told VanHorn in February 1989 that as
soon as the Company found work for the men, he would
contact VanHorn to begin negotiations for the labor agree-
ment. VanHorn agreed. Finally on December 5, 1989, BCI
obtained the mine contract in Enon, Pennsylvania. He and
Roman submitted a contract proposal to the Union on De-
cember 20, 1989, which was rejected. The portable plant in
Fairmont was not moved to Enon until June 1990, when it
was staffed with Teamsters from Bellaire and Stubenville.
1279BC INDUSTRIES
Belot testified that in reply to VanHorn’s letter of Feb-
ruary 17, 1989, he told VanHorn that the reason for closing
Fairmont was because the market was flat, there was not one
major job in the Fairmont area. He further told VanHorn that
he had only two customers and they moved out of the area
once the mine subsidence jobs were over. He also explained
that the Fairmont equipment was moved to BCI’s other loca-
tions and sat idle. He testified that he already explained to
VanHorn in a letter dated September 19, 1988 that BCI and
MBS were separate corporations and he had nothing to do
with Mountaineer.
Belot stated the Michael Roman works as an industrial re-
lations director for U.S. Cement. He aided Belot as a paid
consultant in 1989 and thereafter has the same job with S
Rock Cement of France. Belot stated that he and his brother
ran BCI and he, as president, was responsible for the oper-
ations. Frank Carlow had nothing to do with the operations
of BCI, but he attended board of directors meetings.
Mark Sharpe testified that he was hired by Frank Carlow
as vice president of development. In February 1988, Sharp
surveyed a tract of land near Morgantown. Later Sharpe rec-
ommended that a ready-mix facility could be built on the
property. Frank Carlow approved the design and directed that
the plant be built on property owned by First Commerce In-
vestment Company. Sharpe started excavation of the property
in May 1988. He built a state-of-the-art ready-mix plant and
hired a five-man crew who began construction of the plant
in June. The Mountaineer plant is a permanent, all-weather
facility which cost approximately $350,000. It is built into
the hillside to accommodate a continuous truck turnaround
for unloading and is heated with a fuel efficient hot water
system. The MBS plant was completed and ready for produc-
tion of concrete on September 2, 1988. Robert Hahn, a
former Marcus Paulson plant manager was hired as vice
president of operations in September 1988 because he had
experience operating a ready-mix plant. David Lowther, a
batch plant operator and former union shop steward at BCI
was hired in September 1988 to be operations manager at
MBS. In October 1988, Robert Hook who was a former BCI
general manager was hired as a sales supervisor at MBS. He
retired in February 1989, but was retained by MBS as a con-
sultant.
Sharpe testified that Hook was usually making sales calls
for BCI and would drop in to see how things were going.
According to Sharpe, he used Hook’s knowledge of the con-
crete business to help him locate contractors and suppliers
and to help him with other problems because Sharpe’s
knowledge of the ready-mix business in the area was limited.
Sharpe testified that Hook had no supervisory authority at
MBS until he was hired in September 1988. The only other
BCI employee hired was L. Lenhart. Other operating em-
ployees were hired through the West Virginia State Office of
Employment beginning in September 1988 pursuant to a
Federal job training program agreement which the State ad-
ministered.
In May MBS had one employee. In June 1988 three em-
ployees were on the payroll. The number rose to five for
payroll period ending, September 3, 1988. From September
17, 1988, through February 4, 1989, the number of employ-
ees remained constant at eight. Frank Carlow set the wage
and benefit level for these employees.
Sharpe testified David Schofield was a technical advisor
working for U.S. Cement who sold cement to MBS. He was
not employed by MBS until he was hired as a supervisor in
August 1989. While working for U.S. Cement, Schofield in-
structed MBS drivers on how to clean and maintain their
trucks. He had no supervisory authority until hired by MBS.
Sharpe stated that MBS had its own telephone number
p]us the old BCI telephone number which was retained after
BCI canceled it, in order to stay in contact with contractors.
He stated that the Union was never considered when hiring
for MBS nor did the Union ever make a demand for recogni-
tion on MBS. He also testified that he never changed his hir-
ing practices because of the unfair labor practice charges
filed. He still hired through the state employment agency.
Lawrence Petro testified that he worked at Fairmont BCI
from April 1, 1988, to January 1989, when he laid off all
the Fairmont employees. He asserted that he never told em-
ployees that BCI would no longer be in West Virginia. He
further testified that he did refer some customer orders to
MBS because they were too small. Furthermore, Fairmont
was engaged in a mine-grout job and their bins contained
stone, sand, and fly ash which could not be used in pouring
residential driveways. He stated that he referred Bob Kinsley
to the unemployment office if he wanted to apply for a job
at MBS and he never told Dale Kisner that they were trying
to prove a point to the Union. He finally testified that al-
though he talked by telephone with Harlan Miller in April
1989 about finishing a patio at his home, he never discussed
NLRB charges with him.
David Schofield testified that from 1986 to August 1989,
he worked as a technical advisor for U.S. Cement in Poland,
Ohio. In that capacity he visited various U.S. Cement cus-
tomers in an effort to help them correct problems with their
trucks, ready-mix, raw cement, and sand. He visited BCI
Morgantown infrequently and Fairmont less than Morgan-
town. From August 1988 to August 1989, he visited MBS
sometimes once a week and sometimes once a month. As
technical advisor he instructed employees as well as manage-
ment on how to correct their problems but he had no super-
visory authority. And he had no supervisory authority at
MBS until he was hired by Michael Carlow as plant manager
in August 1989. He testified that he never told Butch Lynch,
or any employee during the period from March 1988 to Au-
gust 1988, that employees would be moving from BCI Mor-
gantown to MBS, nor did he tell them they would be hired
by MBS. He stated that BCI lost a job to a nonunion com-
petitor. He asked Lynch why the Union wasn’t supporting
BCI employees in getting the work back because the hospital
job was completely union. He told Lynch or any employee
asking about a job at MBS that they should apply to job
service.
On August 18, 1988, he testified he had an argument with
Carl Jones over whether BCI concrete met standards. He
stated that he never told Jones that after they closed Fairmont
they would be hauling concrete from MBS or they were hav-
ing problems with the Union. He never told Jones he was
general manager of MBS but he did overhear Dave Lowther
tell Jones he was quitting BCI to become operations manager
at MBS. He never told Bowther not to hire BCI employees
or not to hire them until unfair labor practice charges are re-
solved. He stated that when MBS was hiring through job
service, he received 50 job applications per week.
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Marcus Paulson is a building supply company located in Denbo,
Pennsylvania, which is owned by Frank Carlow.
Frank Carlow testified that he was directly involved in the
construction and hiring at MBS but that he was not involved
in the management of BCI or the day-to-day operations of
that company. He played no part in the closing of the BCI
plants. Labor relations are handled by his various companies
and he does not get involved. BCI is a self-operating com-
pany and he is not informed about labor relations decisions.
There is no relationship between MBS and BCI and he never
paid the debts of BCI and refused to invest more money in
BCI because it had a bad reputation. He may have visited
Fairmont once when he first bought the Company but that
was all. The Union had nothing to do with building MBS.
The reason he built MBS was to get into the ready-mix and
building supply business with customers from his Marcus
Paulson Company.2 He stated that MBS bought equipment
from BCI but most of it was never used. He finally testified
that he owns 25 or 30 companies and 75 percent of them are
unionized.
A check of the records indicates that only 17 percent (28
of 169) of former BCI customers are presently customers of
MBS, while 21 percent (15 of 72) of former BCI suppliers
are presently suppliers of MBS.
III. ANALYSIS AND CONCLUSIONS
A. Alleged Refusal-to-Bargain Conduct
1. Single employer status of MBS and BCI
(a) Ownership
The evidence indicates that Frank Carlow owns both BCI
and MBS. Carlow gained complete control over BCI in April
1988 through an arm’s-length transaction of stock for debt.
(b) Common management and control
The evidence indicates that John Belot manages the day-
to-day operations of BCI with virtually no input from Frank
and Michael Carlow. Belot consulted with Michael Carlow
before he closed the Morgantown BCI plant but he unilater-
ally moved the Fairmont plant and laid off the Fairmont em-
ployees as president of BCI. Furthermore, although Michael
Roman assisted Belot in the labor relations area, VanHorn
and the Union always looked to John Belot when labor rela-
tions problems arose. On the other hand, Frank Carlow han-
dled the labor relations (wages and benefits) at MBS. Mark
Sharpe did the initial hiring which was later turned over to
David Lowther who did the hiring through a Government
program established by Sharpe.
Frank Carlow and John Belot gave undisputed testimony
that Carlow had virtually no management input into the BCI
operation.
The only evidence of common supervision was testimony
that Robert Hooks spent time at the MBS construction site
during the summer of 1988. But there was no evidence (ex-
cept the uncorroborated statement of Lynch which I dis-
credit) that he exercised any supervisory control over the
MBS operations before he was hired by that company.
Sharpe credibly testified that he had none. There was some
testimony that David Schofield gave orders to BCI and MBS
drivers but that was rebutted by Schofield’s testimony that
correcting problems was part of his job as a technical advisor
and he visited these locations infrequently. I credit his testi-
mony and corroborating evidence that Schofield had no su-
pervisory authority at either location before he was hired as
plant manager of MBS in August 1989. The evidence further
does not support a finding of agency.
Accordingly, I find that there was no substantially iden-
tical management or supervision at BCI and MBS.
(c) Employee interchange
The evidence indicates that MBS hired Robert Hook and
David Lowther after they resigned from BCI. One other BCI
employee (L. Lenhart) was hired by MBS after he resigned.
Aside from this, there was no employee interchange between
the two companies.
(d) Business purpose
The purpose of both companies was to produce ready-mix
concrete. However, the Morgantown BCI permanent plant
had been closed, dismantled, and scrapped 6 months before
MBS opened for business at a different location. According
to Carlow’s unrefuted testimony MBS was created to extend
the business to Marcus Paulson customers in the Morgan-
town area. According to Carlow he didn’t want MBS to be
associated with BCI because of its negative business reputa-
tion. MBS had retained the telephone number of BCI, but it
also had its own telephone number. The BCI number was not
advertised and MBS was identified to customers who called
either number.
There was testimony offered by General Counsel to show
that both companies were held out as one entity. I have dis-
credited the testimony of Carl Jones because of material con-
flicts between his testimony and his sworn affidavit and be-
cause Schofield was not a supervisor or agent. I discredited
the testimony of Dale Kisner on the statements attributed to
Petro and Hook because the statements do not appear in ei-
ther of his affidavits. I further find that credible evidence
supports my conclusion that when employees inquired about
jobs at MBS, they were referred to the state unemployment
office which they in fact did. The testimony relating to refer-
ring orders to MBS, I find was adequately explained by
Petro who stated that they were too small and required a dif-
ferent mix from what the Fairmont plant was then supplying
(grout).
I further find that the records and accounts of the corpora-
tions were separately maintained. BCI maintained its ac-
counts in Bellaire, Ohio, while MBS kept its records in Mor-
gantown, West Virginia, and Uniontown, Pennsylvania.
The record evidence also reveals that BCI and MBS did
not have the same customers or suppliers.
Accordingly, while the two corporations were engaged in
producing the same product, they were substantially unre-
lated in all other aspects.
(e) Plant and equipment
Most of the Morgantown BCI plant was dismantled and
scrapped. Some equipment was sold to MBS for $16,876.
Equipment valued at $8600 was never used by MBS but is
located on MBS property. An offset of $7300 was paid to
BCI for this equipment. When compared with the total cost
1281BC INDUSTRIES
3 General Counsel’s renewed motion to have the complaint allega-
tions relating to Frank Carlow deemed true and correct is denied.
Companies owned by Frank Carlow filed answers denying all allega-
tions including those relating to Carlow. To deem those allegations
as admitted would, under the circumstances of this case, be preju-
dicial and a denial of due process.
of the MBS plant which was $350,000, the equipment pro-
vided and used was negligible. Furthermore, there is insuffi-
cient evidence to establish that the equipment sale was not
an arms-length transaction in view of the testimony that it
would have cost BCI more to haul the equipment away then
to sell it at book value to MBS.
(f) Antiunion motive, i.e., avoiding responsibilities
under the Act
All the BCI plants are unionized and the ones that remain
open are still unionized. The decision to close BCI Morgan-
town was economically motivated and there is virtually no
credible evidence that it was to evade union responsibilities.
The evidence supports a finding that Morgantown was closed
because it was losing money and has for many years. Fur-
thermore, Morgantown’s lease expired and the lessor wanted
the property for development purposes. Finally, no one, in-
cluding Carlow, would lend Morgantown BCI any more
money because the company was a bad risk. Of equal impor-
tance, however, was the fact that when Morgantown BCI
closed, all the union members then working were transferred
to BCI Fairmont.
When BCI Fairmont laid off all its employees on January
11, 1989, it was because the mine grout job was completed
and no new contracts had been successfully bid, despite the
efforts of John Belot and his salesmen. Additionally the port-
able Fairmont plant was not winterized. When the Fairmont
plant was eventually moved in June 1990, it was because
Belot had obtained a contract to provide concrete at the Bai-
ley mine in Enon, Pennsylvania. Belot informed the Union
of this fact on December 5, 1989. He offered to hire the laid-
off Fairmont workers and presented a new contract on De-
cember 20, 1989, which was rejected by the Union. Finally,
when the Bailey job commenced, Belot staffed it with union
members from his other plant locations.
If the BCI plants were not closed to evade the Union, it
hardly follows that MBS was opened for that reason. I find
that MBS was constructed and opened for the business rea-
son cited by Frank Carlow. Hiring was done through a state
administered job training program. Final]y, it strains credu-
lity to believe that Carlow would acquire a unionized com-
pany just to close it and spend $350,000 to construct and
open a new company in an effort to rid himself of a max-
imum of eight union employees.
Accordingly, I find that there was no antiunion motive in
the closing of the BCI plants or the opening of the MBS
plant. First Class Maintenance, 289 NLRB 484 (1988).
Based on the above findings, I conclude that MBS is not
a disguised continuance of BCI although there is common
ownership between the two companies and they produced the
same product. Counsel for General Counsel did not prove by
a preponderance of the evidence that the two companies had
substantially identical management, supervision, employees,
plant and equipment and business purpose. Moreover I find
that General Counsel did not prove antiunion motive. First
Class Maintenance, supra; Electrical Workers IBEW Local 3
(Telecom Plus), 286 NLRB 235 (1987).
Since I have found no single employer, alter ego status be-
tween BCI and MBS, I also find that Frank Carlow person-
ally is not the alter ego of BCI since the same facts apply
to his situation. Moreover, the criteria set forth in Riley Aero-
nautics Corp., 178 NLRB 495 (1969), were not proven and
therefore can not be applied to find Frank Carlow personally
liable.3
Accordingly, I will recommend dismissal of the 8(a)(1)
and (5) allegations relating to MBS’ refusal to hire BCI em-
ployees and MBS’ refusal to apply the BCI labor agreement
to its employees. I also recommend dismissing the allega-
tions relating to Frank V. Carlow.
2. Failure to bargain over BCI Morgantown and
Fairmont plants
BCI Morgantown plant was closed on March 11, 1988,
and all the employees were transferred to the Fairmont plant.
There is no indication that the Union was ever notified of
this fact. VanHorn testified that he found out from Business
Agent Charles Morrison on March 11, 1988, and from other
employees. It is unclear whether he attempted to find out
more about the closure or the construction of the MBS plant
when he called John Belot in April 1988. Although he left
messages for Belot, his telephone calls were never returned.
Under these circumstances the evidence warrants a finding
that BCI did not give timely notice of the closing to the
Union.
I have already found that the decision to close Morgan-
town BCI was motivated by economic factors, unrelated to
labor costs and antiunion motivation. Therefore, I conclude
that bargaining over the decision constituted a managerial de-
cision which is outside the scope of Section 8(d). Otis Eleva-
tor Co., 269 NLRB 891 (1964); Stamina Specialist Co., 294
NLRB 703 (1989). See also Dubuque Packing Co., 303
NLRB 386 (1991).
Accordingly, I recommend that the 8(a)(5) allegation relat-
ing to BCI’s decision to close BCI Morgantown be dis-
missed. However, I find that BCI Morgantown violated Sec-
tion 8(a)(5) of the Act when it failed to give timely notice
to the Union and bargain over the effects of the closing. Met-
ropolitan Teletronics, 279 NLRB 957, 958 (1986).
On January 11, 1989, BCI laid off all the Fairmont em-
ployees without notifying the Union which still had a labor
agreement with BCI covering these employees. Respondent
asserts that it didn’t close the plant and the Union asserts that
it did. The fact remains that layoffs are a mandatory subject
of bargaining whether the plant was closed or not and this
obligation was never met by Respondent despite requests
from the Union. Eventually the Fairmont mobile plant was
moved to Enon, Pennsylvania, in June 1990, solely because
Belot obtained a contract to supply the Bailey mine with
concrete. At that point Respondent notified the Union of its
intentions and reasons for moving the plant. It requested a
list of available employees from the Union which was pro-
vided. Respondent BCI offered a contract proposal covering
these employees which was rejected by the Union. After that,
Respondent hired union employees from its other plant loca-
tions to work the Enon project.
I find based on the evidence that Respondent was under
no obligation to bargain over the decision to move the Fair-
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mont mobile plant because it is outside the scope of Section
8(d). The decision to move was not motivated by antiunion
animus, nor was it based on labor costs, the motivating force
behind the move was the Bailey mine contract at Enon,
Pennsylvania. Had this contract not been obtained, the evi-
dence supports a finding that the Fairmont plant would never
have been moved to Enon, Pennsylvania.
I further find that the Fairmont plant was closed in January
1989, and remained closed because of purely economic fac-
tors unrelated to labor costs, i.e., the mine grout contract ran
out and there was no more work to be had in the Fairmont
area. Fairmont’s closing was also unrelated to antiunion ani-
mus. Therefore, I find no obligation to bargain over the deci-
sion to close since it was a management decision outside the
scope of Section 8(d).
Moreover, I find that the information requested by the
Union on February 17, 1989, related to the closing and the
relationship between BCI and MBS. Respondent was not ob-
ligated to provide it. Otis Elevator Co., supra at 894.
Accordingly, I recommend dismissing the allegations relat-
ing to the refusal to bargain over the decision to close the
Morgantown and Fairmont plants and the decision to move
the Fairmont plant and the refusal to furnish information over
those decisions.
However, I recommend finding a violation of Section
8(a)(5) of the Act by Respondent BCI’s failure to give notice
to the Union and its refusal to bargain over the effects of the
Fairmont closing and layoffs. Metropolitan Telectronics,
supra.
3. Failure of BCI to bargain over a new contract
The current collective-bargaining agreement expired on
April 30, 1989. On February 28, 1989, VanHorn notified
John Belot of the Union’s desire to negotiate a new agree-
ment. Sometime thereafter Belot told VanHorn that since
there was no work on Fairmont, there was no point in nego-
tiating a contract.
According to Belot, VanHorn agreed. On December 13,
1989, Belot informed VanHorn that BCI had obtained the
Bailey mine contract in Enon, Pennsylvania. The parties
agreed to meet and in fact met on December 13, 1989, and
discussed the Bailey mine job and Belot’s intention to utilize
the Fairmont drivers after the portable plant was moved from
Fairmont to Enon, Pennsylvania. At this meeting the parties
agreed on the terms for and agreement. At least VanHorn
thought they had agreed to keeping the wages and benefits
contained in the expired agreement. When the Company sub-
mitted its contract proposal on December 20, 1989, VanHorn
rejected it because the proposal reduced wages and benefits
below the old contract rates. Nothing happened after this
communication. The Union never presented a counter-
proposal or requested another meeting.
The evidence reveals that the parties were used to negoti-
ating very informally at best. However, I cannot find that Re-
spondent refused to bargain when it was never requested to
bargain after December 20, 1989. Prior to that the evidence
supports finding that VanHorn agreed to delay bargaining
until such time as Respondent had work (contracts), requiring
the hiring of Fairmont employees. When that occurred, Re-
spondent met with the Union and discussed terms and condi-
tions of employment. Later it made a contract proposal
which was rejected.
Under these circumstances, I will recommend that the
8(a)(5) allegation relating to the refusal to negotiate the new
agreement be dismissed.
B. Alleged 8(a)(3) Conduct Over MBS’s Refusal to
Hire BCI Employees
Other than the testimony of Jones, Kisner, and Lynch,
there is virtually no evidence that MBS refused to hire
former BCI employees because of their union activities. I
discredited the testimony of Jones and Kisner and found that
Schofield was not a supervisor or working for MBS at the
critical time (see above).
On the other hand, Respondent satisfied its Wright Line
burden by offering evidence that it hired employees through
a federally funded job partnership training program adminis-
tered by the State. Respondent received 50 applications per
week and only hired a total of eight employees. Moreover,
evidence was offered that at least three BCI employees ap-
plied for jobs at the state unemployment office and were
turned down because they had earned too much money.
Accordingly, I will recommend that this allegation be dis-
missed.
C. Closure of BCI Morgantown and Fairmont Plants
I have already found that the closing of the BCI Morgan-
town and Fairmont plants was purely economic and unrelated
to antiunion motivation (see above). Morgantown was closed
because its lease expired and the lessor wanted to develop
the property. It had lost money for many years and could
find no new capital. The market was deteriorating and the
EPA was about to require the installation of a water purifi-
cation system at the plant. Finally, the employees at Morgan-
town were transferred to the Fairmont plant when the Mor-
gantown BCI plant closed. The Fairmont plant closed be-
cause it completed its last contract job and no more jobs
were forthcoming. When the Fairmont plant was moved to
Enon, Pennsylvania, Belot offered to hire the laid-off Fair-
mont employees and when they refused, he hired union
members from his other plant locations.
I find that based upon the evidence presented, Respondent
BCI satisfied its Wright Line burden and accordingly I rec-
ommend dismissal of this allegation.
D. Alleged 8(a)(1) and (4) Conduct
These allegations stem from certain alleged conversations
that took place which are related in more detail above. Har-
lan Miller testified that on April 22, 1989, Larry Petro told
him the only way Petro would get his job back was if they
won their case. He further testified that on May 12, 1989,
David Lowther told him that as long as there were labor rela-
tions charges against the Company, he could not hire him or
anyone else. Larry Petro denies that he discussed NLRB
charges with Miller. Aside from that, the uncorroborated
statement itself does not amount to a threat against Miller be-
cause Petro was talking about himself. The statement attrib-
uted to Lowther is discredited because it is biased and
uncorroborated. Lowther took his job at BCI leaving him
with a less desirable position and Miller never recorded the
Lowther conversation in his notebook where he wrote down
important events. Accordingly, I discredit the testimony of
Harlan Miller.
1283BC INDUSTRIES
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Henry Hart testified that on May 30, 1989, Lowther told
him that his hands were tied, he couldn’t hire any BCI driv-
ers until ‘‘this thing was settled.’’ I discredit this statement
because it was uncorroborated and self-serving. Moreover
there was no evidence that Respondent MBS would have or
did hire anyone after September 17, 1988. The evidence also
strongly suggests that all the former BCI employees knew
that MBS was hiring, if at all, through the state unemploy-
ment office.
Accordingly, since I have discredited the above testimony
of Miller and Hart I recommend dismissing these allegations.
(See Appendix B.)
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All truckdrivers, warehousemen, batchmen, yardmen,
helpers, block plant employees, and precast plant employees
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. Respondent BCI violated Section 8(a)(1) and (5) of the
Act when it closed the Morgantown plant without notice to
the Union and without affording the Union and opportunity
to bargain over the effects of the closing.
5. Respondent BCI violated Section 8(a)(1) and (5) of the
Act when it closed its Fairmont plant without notice to the
Union and without affording the Union and opportunity to
bargain over the effects of the closing and the resulting lay-
offs.
6. The aforesaid unfair labor practices affects commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
7. All other allegations not mentioned above are not found
to be violations of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent BCI closed its Morgantown
plant without notice to the Union and without affording the
Union an opportunity to bargain over the effects of the clos-
ing, it is recommended that a Transmarine Navigation Corp.,
170 NLRB 389 (1968), remedy be applied. However, the
evidence indicates that when the Morgantown plant was
closed on March 11, 1988 with no transfer of unit work,
those employees working at the time were transferred to the
Fairmont location which was covered under the same labor
agreement as Morgantown. Consequently there would be no
economic remedy for the employees at that time.
The situation at the Fairmont plant is different. Accord-
ingly, I shall recommend that the laid-off employees be paid
limited backpay from 5 days after the date of this decision
until the occurrence of the earliest of the following condi-
tions: (1) The date the Respondent bargains to agreement
with the Union on those subjects pertaining to the effects of
its decision to close the Fairmont plant; (2) a bona fide im-
passe in bargaining; (3) the failure of the Union to request
bargaining within 5 days of the Respondent’s notice of its
desire to bargain with the Union; or (4) the subsequent fail-
ure of the Union to bargain in good faith; but in no event
shall the sum paid to any of these employees exceed the
amount he or she would have earned as wages from January
11, 1989, the date Respondent closed the Fairmont plant, to
the time he or she secured equivalent employment elsewhere,
or the date on which the Respondent shall have offered to
bargain, whichever occurs sooner; provided, however, that in
no event shall this sum be less than what these employees
would have earned for a 2-week period at the rate of the
their normal wages when last in the Respondent’s employ.
Fast Food Merchandisers, 291 NLRB 897, 902 (1988).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, BC Industries, Inc., Morgantown, West
Virginia, and Respondent Premiere Concrete Products, Inc.,
Bellaire, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unlawfully refusing to bargain collectively with the
Union over the effects of the closure of the Morgantown and
Fairmont plants and the resulting layoffs at the Fairmont
plant.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain collectively with the Union over
the effects of the closure of the Morgantown and Fairmont
plants and resulting layoffs of employees affected thereby
and reduce to writing any agreement reached as a result of
such bargaining.
(b) Pay the laid-off employees their normal wages for the
period set forth in the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Bellaire, Ohio, copies of the at-
tached notice marked ‘‘Appendix A.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 6,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
1284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondents have
taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain with the Union over the
affects of the closure of the Morgantown and Fairmont, West
Virginia plants.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain collectively with the Union
over the effects of closing the Morgantown and Fairmont
plants and the resulting layoff of employees affected thereby.
WE WILL pay the laid-off employees their normal wages
for the period set forth in the remedy section of this decision.
BCI INDUSTRIES, INC.
APPENDIX B
COMPANY OWNERSHIP DIRECTORS OFFICERS SUPERVISORS
B.C. Industries Columbia Frank Carlow John Belot, Pres. John Belot
Portland Michael Carlow Wm. Mohler, Robert Hook,
Cement Co. Wm. Mohler Secy./Trea. Mgr. Morgantown
Laurence Ousky (quit 9/30/88)
Laurence Petro,
Mgr. Fairmont
(l/o 1/13/89)
Michael Roman,
I.R. Director
1987–1989
Barbara Brown,
General Director
Columbia SME Industries, Frank Carlow Frank Carlow, Pres./
Portland Inc. Michael Carlow Trea. until 8/31/87
Cement Co. Wm. Mohler, Secy./
Trea. after 8/31/87
SME Industries, Frank Carlow Frank Carlow Frank Carlow
Inc. Irrevocable Trust Michael Carlow Michael Carlow
Marie Carlow
Anna Carlow
Frank V. Carlow Frank Carlow TRUSTEES
Irrevocable Trust Settlor Frank Carlow
Michael Carlow
Marie Carlow
Mountaineer Frank Carlow Frank Carlow Frank Carlow David Lowther,
Builders Supply Michael Carlow Robert Hahne, Operations Mgr.
V.P. Oper. Robert Hook, Sales
Mark Sharpe, Supervisor
V.P. Devel. David Schofield,
Plant Mgr.
Premier Concrete U.S. Cement John Belot John Belot, Pres.
Products, Inc. Frank Carlow Larry Ousky, V.P.
Michael Carlow Operations
Larry Ousky Nick DeFino, Secy.
U.S. Cement SME Industries, Frank Carlow Michael Roman, I.R.
Inc. Michael Carlow
1285BC INDUSTRIES
APPENDIX B—Continued
COMPANY OWNERSHIP DIRECTORS OFFICERS SUPERVISORS
Marcus Paulson Frank Carlow Robert Hahne, V.P. Robert Hahne,
Ready-mix plant Plant Mgr.
Columbia SME Industries, Frank Carlow Robert Smith
Portland Inc. Michael Carlow Wm. Mohler
Holding,
Co. Inc.
First Commerce Frank Carlow Frank Carlow, Pres.
Investment Co. Michael Carlow