Bel-Air Door

National Labor Relations Board - Board Decisions

Dec 16, 1964

150 N.L.R.B. 481 (N.L.R.B. 1964)

BEL-AIR DOOR, ETC. 481
any economic loss including loss of pay suffered by Rite-Way employees by reason of
Respondent 's failure to accord them benefits of his contract with Local 11. All such
reimbursements shall include interest at the rate of 6 percent per annum . Loss of pay
shall be computed in accordance with the formula prescribed in F. W. Woolworth
Company, 90 NLRB 289.
Although James Bernoudy, Respondent , has divested himself of interest and control
of Rite-Way, it is deemed appropriate to include in the Recommended Order a pro-
hibition aimed at avoiding a repetition of similar action.
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. Respondent James Bernoudy is engaged in commerce or in a business affecting
commerce within the meaning of the Act.
2. Local 11 and District 50 are labor organizations within the meaning of the Act.
3. At all times material, Local 11 has represented the majority of the employees
in the following-described bargaining unit:
All inside wiremen on construction of Bernoudy , Respondent , and Rite-Way, who
perform all electrical construction , installment , or erection work and all electrical
maintenance thereon, including the installation of all temporary power and light
wiring, the installation and maintenance of all electrical lighting, heating and power
equipment , and the installation and connecting of all electronic equipment , including
computing machines and devices , exclusive of all other employees , office clerical
employees , guards, professional employees , and supervisors , as defined in the Act, con-
stitute a single unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
4. From and after November 17, 1962, Respondent has violated Section 8 ( a)(1),
(2), and ( 3) of the Act, by reason of its contractual relationships with District 50.
5. By refusing to honor the obligation imposed upon Respondent by its contractual
relationship with District 50 and by the statutory requirements of good -faith bargain-
ing, Respondent has engaged in unfair labor practices violating Section 8(a) (1) and
(5) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
[Recommended Order omitted from publication.]
Bel-Air Door; Alhambra Metal Products , Inc.; and Tyre Mfg.
Co., Inc. and Building Material & Dump Truck Drivers, Local
No. 420, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America and United Brother-
hood of Carpenters & Joiners of America, Local 530, AFL-
CIO. Case No. 21-CA-5517. December 16, 1964
DECISION AND ORDER
On September 28, 1964, Trial Examiner Eugene K. Kennedy issued
his Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision
and a supporting brief. The Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Jenkins].
150 NLRB No. 49.
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial- error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed August 23, 1963, and an amended charge filed March 17, 1964,
by International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, the General Counsel of the National Labor Relations Board issued a
complaint charging respondents Alhambra Metal Products , Inc. and Tyre Manufactur-
ing Co., Inc. and Bel-Air Door with the commission of unfair labor practices violating
Section 8(a) (1), (2 ), ( 3), and (5) of the National Labor Relations Act, as amended,
herein called the Act. A hearing in this matter was held before Trial Examiner
Eugene K. Kennedy in Los Angeles on May 22, 1964.
Upon the entire record, including my observation of the demeanor of the witnesses,
and after consideration of the briefs filed by Respondent and the General Counsel, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANIES AND THE JURISDICTION OF THE BOARD
Alhambra Metal Products , Inc., at all times material herein, has been a California
corporation with its principal offices and place of business in Alhambra, California.
In the course of its business operations it annually ships products valued in excess of
$50,000 to locations outside of the State of California and annually imports products
directly to its place of business from places outside the State of California of a value
in excess of $50,000. It is engaged in the fabrication of metal door and window
frames. Alhambra is an employer engaged in commerce and in a business affecting
commerce within the meaning of the Act.
Tyre annually imports products valued in excess of $50,000 directly to its place of
business in California from points outside the State of California and annually exports
products valued in excess of $50,000 directly outside the State of California. Tyre
at one time engaged in the manufacture of wooden doors and windows. In 1962 it
abandoned a substantial part of its manufacturing processes and entered into the
business of importing glass from Formosa . Tyre is a business engaged in commerce
and in a business affecting commerce within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
Building Material & Dump Truck Drivers, Local No. 420, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , herein some-
times called Local No. 420, and United Brotherhood of Carpenters & Joiners of
America, Local 530, AFL-CIO, herein sometimes called Local 530, are labor organi-
zations within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background events
Tyre Manufacturing Co., one of the corporations involved as Respondent in this
case, was incorporated in 1946 . Bel-Air Door operated as a sales division of'Tyre.
At one time Bel-Air had been incorporated but was dissolved prior to the hearing
herein . The most recent contract with the Charging Party, Teamsters Local 420, indi-
cated the employer as Bel-Air Door . For the purposes of this decision Tyre Manu-
facturing Co. and Bel-Air Door are treated as interchangeable designations of the
same business entity.
Alhambra Metal Products , Inc., the other corporation involved as Respondent, was
incorporated in 1959. At the time of the origin of these corporations the record does
BEL-AIR DOOR, ETC. 483
not reflect any factor linking them. Alhambra, at its inception, was owned in equal
parts by Sam Fineman and Albert Coberly and located about a mile distant from the
premises occupied by Tyre. In late 1960 Alhambra moved to premises adjacent to
Tyre. In 1959 Coberly disposed of his interest and the ownership of Tyre and
Alhambra from that date was substantially as follows: Sam Fineman owned 25 per-
cent of Alhambra. His wife, Bayla Fineman, daughter of Morris Tyre, owned 25
percent of Alhambra and about 25 percent of Tyre. Morris Tyre owned about 70
percent of Tyre and about 50 percent of Alhambra. Morris Tyre assumed the
capacity of president; his daughter, Bayla Fineman, the capacity of vice-president;
and Sam Fineman, the capacity of treasurer in Tyre and Alhambra.
1. The collective-bargaining history
For several years prior to the hearing herein, Teamsters Local 420 had a collective-
bargaining agreement with Tyre or Bel-Air which covered individuals employed as
truckdrivers.
Also for several years Carpenters Local 530 had a collective-bargaining agreement
with Tyre for individuals employed in production and maintenance work. The manu-
facturing carried on by Tyre was chiefly concerned with wood as the basic material.
The contract in effect between Tyre and Local 530 did not include a classification of
truckdriver.
In August 1959 Alhambra and Carpenters Local 530 entered into a collective-
bargaining agreement which was renewed in 1962 until June 30, 1965. This agree-
ment in many respects including job classifications and rates of pay differed from the
agreement Local 530 had in effect with Tyre.
The classifications in the agreement between Local 530 and Alhambra were in the
main related to metal manufacturing as distinguished from the classifications in the
agreement with Tyre and Local 530 which reflected emphasis on wood-manufacturing
processes.
Of significance here is that the agreement between Local 530 and Alhambra con-
tained a classification of truckdriver. The inclusion of this classification was a
factor in Sam Fineman's rejection of Teamsters Local 420 demands with respect to
Alhambra truckdrivers which will be considered below.
2. Nature and development of the businesses of Tyre and Alhambra
In 1959 Tyre was Alhambra's sole customer. Commencing in 1962, Alhambra
had acquired other customers and approximately 50 percent of its products were sold
to other businesses, some of which were in competition with Tyre. Between 1959
and 1964 the number of Alhambra employees had increased from approximately 10
to 40. Over the same period the number of Tyre employees dropped from approxi-
mately 225 to 10. Tyre disposed of practically all its manufacturing operations,
accounting for the decrease in the number of its employees. During this time Tyre
became a distributor for glass imported frordFormosa. A portion of this glass was
processed by Tyre's employees but the balance of the glass was delivered to customers
of Tyre by public conveyance or by trucks driven by employees of Alhambra or Tyre.
After May 6, 1963, no employee of Tyre worked as a truckdriver. Alhambra billed
Tyre for delivery services performed after May 6, 1963. Tyre also billed Alhambra
for deliveries prior to May 1963.
3. History of delivery operations of Tyre and Alhambra
In 1962 when Alhambra. acquired other customers it hired truckdrivers to make
deliveries. As of May 1964 deliveries by Alhambra employees included approxi-
mately 55 percent of Alhambra's products and 45 percent of Tyre's products., Tyre's
last truckdriver quit on May 6, 1963. Prior to this he made deliveries for both Tyre
and Alhambra. About 45 to 50 percent of the products were delivered for Tyre and
the balance for Alhambra.
Truckdrivers under the Local 530 contract with Alhambra received less pay by
about 30 cents an hour than the truckdrivers of Tyre covered by the Local 420 con-
tract. Fineman offered Boyer, the last truckdriver who worked for Tyre, the rate that
he received under the Local 420 contract if Boyer would join Local 530.
1 After Tyre sold its manufacturing operations the delivery of glass represented a differ-
ent type of delivery and one which did not require as many stops and, according to
Fineman , resulted in a simpler type of delivery.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The demands of Teamsters Local 420 on Sam Fineman
Approximately in mid-August 1963 representatives of Teamsters Local 420 and
representatives of Carpenters Local 530 met with Sam Fineman. Local 420 repre-
sentatives were complaining that employees were delivering Tyre products and that
payments were not being made into the Teamsters health and welfare fund. Fineman
took the position he had an agreement with Local 530 covering truckdrivers and he
expected representatives of that Local to live up to the agreement. Local 530 repre-
sentatives took the position that they did not want to be exposed to a jurisdictional
dispute with the Teamsters and did not wish to admit truckdrivers to membership.
It was explained by a Local 530 representative the reason the classification of truck-
driver was in the agreement with Alhambra was because it was part of a master
agreement and the classification truckdriver was included because the National Labor
Relations Board had included this classification in some of the Carpenters' collective-
bargaining agreements.
Local 530's contract with Alhambra contained a union security clause. The General
Counsel contends the evidence spells out violations of Section 8(a)(1), (2), (3) and
(5), resulting from the action of enforcing and maintaining the Local 530 agreement.
3. Additional facts and concluding findings
The record establishes that both Alhambra and Tyre meet the dollar volume of busi-
ness to come within the jurisdictional standards set by the Board. The inquiry here is
thus not directed to the question of whether Tyre and Alhambra constitute a single
employer with respect to the Board's jurisdiction but rather to the question as to
whether the circumstances presented by this record establish that the truckdrivers of
Alhambra properly can be considered an accretion to the truckdriver unit covered by
the agreement between Tyre and Local 420. If the contention of the General Counsel
that Alhambra is the alter ego of Tyre, the accretion would be a natural incident.
However there are a variety of factors to be considered.
The factors here present supporting the contention that Alhambra truckdrivers prop-
erly belong in the unit of Tyre truckdrivers will be set forth followed by the considera-
tions opposing such a result.
(1) Tyre and Alhambra are completely owned by the same family.' Sam Fineman
on occasion acts in a responsible manner for Tyre as well as Alhambra. Illustrations
of this include his signing the collective-bargaining agreement with Local 420 on
behalf of Bel-Air and his action in employing a truckdriver for Tyre. The same
individuals act as president, vice president, and treasurer for Tyre and Alhambra.
(2) The agreement between Local 420 and Tyre antedated the agreement between
Alhambra and Local 530 which included the truckdriver classification. This priority
of execution is a factor in a consideration as to whether Alhambra truckdrivers should
be accreted into the Tyre unit rather than Tyre's drivers being accreted into the
Alhambra unit if the circumstances present indicate any accretion is proper.
(3) Whether the truckdrivers were employed by Tyre or Alhambra, their duties
were identical. That is to say before Tyre's last driver quit he was delivering both
Tyre and Alhambra products as did the Alhambra Drivers before and after May 1963.
Factors opposing the inclusion of Alhambra truckdrivers in the bargaining unit of
Tyre's truckdrivers include the following:
(a) Tyre and Alhambra are separate corporations. At the time of the respective
incorporations there was no common ownership or linkage between the two. Subse-
quently, although Morris Tyre acquired a stock interest in Alhambra, Sam Fineman
did not acquire an interest in Tyre although he did assume the position of treasurer in
Tyre. The record does not establish that Sam Fineman was legally entitled to partici-
pate in his wife's interest in Tyre.
(b) Alhambra is engaged in producing metal products. Tyre was formerly prin-
cipally engaged in producing wood products. The collective-bargaining contracts
with Local 530 reflect that Alhambra and Tyre had different job classifications and
wage rates. Since 1962 Tyre has abandoned substantially all its manufacturing and
acts primarily as an importer of Formosan glass. Consequently, it is apparent there
is a substantial difference in the business activities of Tyre and Alhambra.
(c) Although the stock ownership is all in the family in the sense that Morris Tyre
owns 70 percent of Tyre and 50 percent of Alhambra, and his daughter, Bayla Fine-
man, owns 25 percent of Tyre and 25 percent of Alhambra, and Sam Fineman, Bon-
in-law of Morris Tyre and husband of his daughter, owns 25 percent of Alhambra,
the record establishes that Sam Fineman was the responsible manager of Alhambra
and Morris Tyre exercised operational control of Tyre being assisted by Sam Fineman
on occasions when Morris Tyre was absent and Tyre's superintendent would seek
Fineman's advice. Generally the operations of Tyre and Alhambra were separate.
BEL-AIR DOOR, ETC. 485
Under Morris Tyre, at Tyre, a Wendel Boden was in charge and, at Alhambra, under
Sam Fineman a Rudy Ramirez was in charge of operations. Although certainly not
free from doubt, it appears this record does not establish by an adequate
measure of proof that there was a common labor relations policy exercised by Sam
Fineman or by any other individual with respect to the employees of Tyre and Alham-
bra. The testimony of Sam Fineman, which was convincing, indicated that Morris
Tyre was very much in control of Tyre and Fineman exhibited some pride in relating
that he was the boss at Alhambra and that he was in charge of the metal work which
was done only at Alhambra.2
(d) In addition to being separate corporate entities there are numerous additional
formal differences between Tyre and Alhambra. These companies have separate
collective-bargaining agreements with Local 530, separate unemployment and social
security accounts, separate workmen's compensation accounts, and separate tax
returns.
(e) Commencing in 1962 Tyre has drastically curtailed its operations, reducing
the number of its employees from 225 to 10. Coincident with this, the products of
Tyre required to be delivered by its truckdrivers was also greatly reduced.
At the same time Alhambra has been expanding its operations, increasing the num-
ber of its employees from 10 to 40. Although still performing a service for Tyre by
delivering its products, the proportion of Alhambra products delivered by Alhambra
drivers is constantly increasing.3
The General Counsel rests his case squarely on the existence of the bargaining unit
consisting of the truckdrivers of Tyre and Alhambra because Tyre and Alhambra
were alter egos. If in fact Tyre and Alhambra were interchangeable designations or
the alter ego one for another as the General Counsel contends the position of the
General Counsel would have solid support. Although there are areas of common
interest between the owners of Tyre and Alhambra, the evidence presented compels
a rejection of the fact that these companies are synonymous entities. It is quite
conceivable that due to personal predilections of Morris Tyre or Sam Fineman,
the operations of Tyre and Alhambra would be at least competitive as reflected in
the credited testimony of Fineman.
2 With respect to the procedure whereby the truckdrivers obtained products of Tyre for
delivery since the departure of Tyre's last truckdriver on May 6, 1963, the record is silent
as it relates to the question of who issued instructions when there were deliveries to
be made for Tyre.
The delivery services performed by Alhambra drivers were charged to Tyre.' In effect
this was subcontracting to Alhambra of Tyre's delivery operations. The complaint does not
allege nor does the General Counsel in his brief argue any violation based on subcontract-
ing unit work without consultation with Local 420. Hence no finding will be made with
respect to the question of subcontracting the delivery services by Tyre to Alhambra.
$ The complaint by Local 420 stemmed from the fact that employees delivering Tyre
products were not having payments on their behalf paid into the Teamsters health and
welfare fund. There is nothing in this record which would suggest Local 420 representa-
tives were claiming jurisdiction over Alhambra drivers per se. Representative Fred
Hunziker testified as follows with reference to the August 1963 meeting with Fireman:
So we had a meeting at 9:30 in Mr. Fineman's office, and a rather heated discussion
there for awhile, and Mr. Fineman reiterated that he didn't have a contract with the
Teamsters Union and he had a contract with 530, and Mr. Benfatti was going to
live up to it.
I immediately asked Mr. Fineman just why drivers' tickets out there were under
the name of "Tyre," and he said there was no more "Tyre," it was all Alhambra
On cross-examination Mr. Hunziker related on the same subject:
Q. Let me ask you this: Did he say that, "Tyre no longer has any drivers" or
did he say, "Tyre is no longer in existence."
A. Well, he could have meant it either way, but I gathered that there was no Tyre.
This extract of testimony creates an inference that Local 420 would have been content
with having as members employees of Tyre who delivered Tyre products if employees of
Alhambra delivered only Alhambra products.
This inference is largely negated however by the fact that Local 530 would not admit
Alhambra truckdrivers to membership. Since the record does not disclose what the at-
titude of Local 530 would have been if Alhambra drivers were not delivering Tyre prod-
ucts, no reliance is made on the testimony of Hunzlker relative to the finding of whether
there was or was not an accretion of Alhambra truckdrivers to the unit of Tyre drivers.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated previously the principal question here is whether the appropriate unit
consists of truckdrivers of Tyre and Alhambra. If the truckdrivers of Alhambra
were not accreted into the unit of the drivers of Tyre there would be no basis for
the claimed violations of Sections 8(a)(1), (2), (3), and (5) of the Act.
In making a determination as to whether there has been an accretion to a bargain-
ing unit all the pertinent factors should be considered. The factors supporting as well
as opposing an accretion here have been set forth above. All of them have been con-
sidered without producing any clear conviction as to the correct answer. However,
considerations opposing an accretion are regarded as more persuasive and lead to a
rejection of the proposition that Alhambra drivers were accreted into the Tyre unit
of drivers.
The expansion of Alhambra and the sharp reduction in the number of Tyre employ-
ees with no prospect of a revival of its former manufacturing operations has been
regarded as an important factor leading to the finding that the Alhambra bargaining
unit designated in an agreement with Local 530 including truckdrivers is appropriate
and that Local 420 has no claim on employees of Alhambra who are employed as
truckdrivers, as a result of an accretion process.
CONCLUSIONS OF LAW
1. Respondents Alhambra and Tyre are corporations engaged in commerce and
in business affecting commerce within the meaning of the. Act.
2. Local 420 and Local 530 are labor organizations within the meaning of the Act.
3. Respondent has not engaged in the unfair labor practices alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record it is recommended that the complaint be dismissed.
Midas International Corp ., Pan Enterprises , Inc., Atlantic Muf-
fler, Inc., Queens Muffler, Inc. and Amalgamated Union, Local
15, affiliated with District 5. Case No. 2-CA-10054. Decem-
ber 16, 1964
DECISION AND ORDER
On October 19, 1964, Trial Examiner John F. Funke issued his Deci-
sion in this proceeding, finding that Respondents Atlantic Muffler, Inc.,
and Queens Muffler, Inc., herein jointly called the Respondents, vio-
lated Section 8(a) (5) and (1) of the Act by refusing to bargain with
Amalgamated Union, Local 15, and recommending that Respondents
cease and desist from the unlawful conduct and take certain remedial
action as set forth in the Trial Examiner's attached Decision.' There-
after, Respondents and the General Counsel filed exceptions and sup-
porting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
1 The Trial Examiner also found that Midas International Corp. and Pan Enterprises,
Inc., did not participate in or authorize the unfair labor practices of the Respondents
found by him, and recommended dismissal of the complaint as to them.
150 NLRB No. 51.