Ethan Allen, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1975

218 N.L.R.B. 208 (N.L.R.B. 1975)

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pine Valley Division of Ethan Allen, Inc. and
Upholsterers' International Union of North
America, Local 336, AFL-CIO. Case 11-CA-5422
June 4, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On September 16, 1974, Administrative Law Judge
John F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. The General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge to the extent consistent herein and to adopt his
recommended Order as modified.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act by withdrawing recognition
from the Union; refusing to bargain about its
determination to eliminate certain unit work; refus-
ing to honor and abide by the collective-bargaining
agreement executed by its predecessor and the
Union; and making unilateral changes in the wages,
hours, and other terms and conditions of employ-
ment of the employees in the appropriate unit, we
shall order that the Respondent cease and desist
therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
We shall further order that Respondent honor and
abide by the instant agreement for its term which will
require that it pay, to all the employees who were in
the collective-bargaining unit on June 29, 1973, the
vacation payments due them under the agreement.
This order shall not authorize or permit abandon-
ment of or reduction in benefits in excess of the
contract requirements which Respondent may have
given employees whom it rehired at the Asheville
plant on and after July` 10, 1973. Since the contract
by its terms has expired upon notice of reopening
filed by the Union, we shall also order that
Respondent be ordered to bargain, upon request,
with the Unions as the exclusive representative of all
218 NLgB No, 10
the employees in the unit found appropriate herein
and that such bargaining include, but not be limited
to, bargaining over the effects on its employee`s of the
termination of any of the Asheville's plant operations
which had been in effect during the period May 14,
1973, to June 29, 1973.
As there appears reason to believe that some of the
terminated employees could have been offered jobs
at Respondent's Asheville operation, we believe a
provision adapted to providing the affected employ-
ees with those jobs by a preferential hiring list would
be appropriate as a remedy. These employees should
be placed on a preferential hiring list based on their
seniority at the Asheville plant as of June 29, 1973.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Pine Valley Division of Ethan Allen, Inc., Asheville,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the
Administrative Law Judge's recommended Order, as
herein modified:
1. Substitute the following as paragraph 2(c) of
the recommended Order:
"(c) Place the names of any employees in the
collective-bargaining unit on June 29, 1973, who
were not rehired on July 10, 1973, on a preferen-
tial hiring list and offer them, as vacancies occur,
full and immediate reinstatement to their former
jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges, as set
forth in the Remedy."
2. Substitute the attached notice for that of the
Administrative Law Judge.
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc, 91 Nj,RB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 For the reasons discussed by the Administrative Law Judge, and under
the circumstances, we will not require reinstatement of the closed operation.
Further, since we are ordering Respondent to bargain with the Union and
to adopt the existing collective -b4rgainmg agreement , the wage payments as
proposed by the Administrative Law Judge seem unnecessary. The
Administrative Law Judge's reliance on Van's Packing Plant, 211 NLRB
692 (1974), appears misplaced . In that case , a total change of operations
from a wholesale to a retail facility was effectuated and, unlike the instant
case, the respondent was not ordered to bargain with the union in the
changed operation.
PINE VALLEY DIVISION OF ETHAN ALLEN, INC. 209
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to
give evidence it has been decided that we, Pine
Valley Division of Ethan Allen, Inc., have violated
the National Labor Relations Act and we have been
ordered to post this notice.
The National Labor Relations Act gives you, as
employees, certain rights including the rights:
To self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection or
To refrain from any or all such activities.
Accordingly we give you these assurances:
WE WILL NOT change or eliminate your wages,
hours, seniority, vacation benefits, or other terms
and conditions of employment established by
collective-bargaining agreement with Upholster-
ers' International Union of North America, Local
336, AFL-CIO, without the approval of that
Union; but WE wTLL continue in full force and
effect any wage increase or emolument or other
improved benefit you have received since July 10,
1973.
WE WILL continue to recognize that Union as
the exclusive bargaining representative of our
employees in the following appropriate collective-
bargaining unit:
All employees of our Asheville, North
Carolina, plant excluding pallet manufactur-
ing employees, clerical employees, superviso-
ry workers, foremen, office workers, watch-
men and truckdrivers.
WE WILL, upon request, bargain collectively
with the above-named Union with respect to rates
of pay, wages, hours, and other terms and
conditions of employment including the effects on
our employees of ourelimination of some of the
Asheville plant's operations on July 10, 1973, and,
if an understanding is reached, we will embody
such understanding in a signed agreement.
WE WILL honor and enforce the provisions of
the last contract between Hardwood Corporation
of America and the,above-named Union from
1972 to 1973, including that agreement's seniority
provisions and its requirement to pay vacation
benefits on July 1, 1973, to employees working at
the Asheville plant in May and June 1973 who
were entitled to vacation pay under the terms of
that contract.
WE WILL place all employees in the collective-
bargaining unit on June 29, 1973, who were not
rehired on July 10, 1973, on a preferential hiring
list and offer them, as vacancies occur, immediate
and full reinstatement to their former jobs or, if
these jobs no longer exist , to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges.
All of you, our employees, are free to become or
remain , or to refrain from becoming or remaining,
members of the above-named Union or any other
labor organization.
PINE VALLEY DIVISION
OF ETHAN ALLEN, INC.
DECISION
STATEMENT OF THE CASE
JOHN F. CoRBLEY, Administrative Law Judge: A hearing
was held in this case on June 13 and 14, 1974, at Asheville,
North Carolina, pursuant to a charge filed by Upholster-
ers' International Union of North America, Local 336,
AFL-CIO (hereinafter sometimes referred to as the Union
or the Charging Party) on August 2, 1973, which was
served on Respondent on the same date and a complaint
and notice of hearing issued by the Regional Director for
Region 11 of the National Labor ` Relations Board on
March 22, 1974. The complaint, which was amended at the
hearing, alleges that Respondent is the successor to
Hardwood Corporation of America (hereinafter Hard-
wood) that the Union has been, and is now , the exclusive
bargaining representative of a unit of employees of
Respondent's plant (which had been operated by Hard-
wood) at Asheville, North Carolina, and that Respondent
has violated Section 8(aX5) and (1) of the National Labor
Relations Act, as amended, by refusing to bargain in good
faith with the Union since on or about June 29, 1973, in a
unit of employees at the Asheville plant. More specifically
the complaint alleges that such unlawful refusal to bargain
derives from certain acts and the conduct of Respondent
on and after that date.
On the basis of certain stipulations received into
evidence at the hearing there is no issue that Respondent
did, in fact , engage in most of these acts as alleged in the
complaint. However, such conduct would not be violative
of the Act if Respondent is not the successor to Hardwood.
In its answer to the complaint, Respondent denied that it is
the successor to Hardwood.
The principal issue tried at the hearing and to be decided
herein is , therefore, whether or not Respondent is the
successor to Hardwood. For reasons which appear herein-
after, I conclude that it is. And I further conclude that by
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in certain actions alleged in the complaint it has
violated Section 8(a)(5) and (1) of the Act.
At the hearing the General Counsel and Respondent
were represented by counsel. The parties were given full
opportunity to examine and cross-examine witnesses, to
introduce evidence, and to file briefs. The General Counsel
waived the right to make a closing argument and, although
Respondent also waived' the right to make a complete
argument at that time, its counsel made a few remarks in
support of its position that the complaint -should be
dismissed. Briefs have subsequently been received from the
General Counsel and from Respondent and have been
considered.
Upon the entire record 1 in this case including the briefs
and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is now maintaining and has at all times
material herein maintained a plant at Old Fort, North
Carolina, where it is engaged in the manufacture of
furniture.2
During the 12 months preceding the issuance of the
complaint and notice of hearing, which period of time is
representative of all times material herein, Respondent
manufactured, sold, and shipped from its North Carolina
plants goods valued in excess-of $50,000 to points directly
outside the State of North Carolina and during said period
Respondent also purchased from points directly outside
the State of North Carolina goods valued in excess of
$50,000.
The complaint alleges, the answer admits, and I find,
that Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer does not deny, and I
fmd,3 that Upholsterers' International Union of North
America, Local 336, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. RESPONDENT'S HIERARCHY
The complaint alleges, the answer admits, and I find,
that Clint Walker (Respondent's president), Nat Ansell (its
board chairman), and Robert Schneble (its southeast
regional manager) are, and have been, supervisors within
the meaning of Section 2(11) of the Act. Since Schneble
had held his position as southeast regional manager for 18
months at the time of the hearing, I further conclude that
he was a supervisor within the meaning of the Act for that
period.
Jed Davidson began work with Respondent in 1972, as
an advisor or consultant to Schneble, and was transferred
by Schneble to the Asheville plant formerly operated by
Hardwood (hereinafter the Asheville plant) on or about
May 14, 1973, to manage the sawmill operation there.
Schneble admitted that, during Davidson's entire employ-
ment with Respondent, Davidson had always worked in a
supervisory position with Respondent and, at the hearing,
it was stipulated that he was a supervisor of Respondent
within the meaning of Section 2(11) of the Act. I,
accordingly, conclude that at least from May 14, 1973, to
the present Davidson has been a supervisor for Respon-
dent within the meaning of Section 2(11) of the Act and its
agent within the meaning of Section 2(13) of the Act.
Bill Glenn was transferred from Respondent's Old Fort
plant to the Asheville plant on or shortly after May 14,
1973, and carried out the duties of personnel manager at
that location. Glenn was stipulated to be a supervisor of
Respondent within the meaning of Section 2(11) of the Act
and I so find.
John Sorton is Respondent's controller and, on May 28,
1973, entered into an agreement on behalf of Respondent
with officials of the North Carolina National Bank for the
handling of payroll and withholding arrangements for
employees of the instant Asheville plant. It was stipulated
that Sorton was and has been a supervisor for Respondent
within the meaning of Section 2(11) of the Act. I conclude
from the foregoing that at least from May 28, 1973, and
thereafter Sorton was an agent of Respondent acting on its
behalf within the meaning of Section 2(13) of the Act.
Fred Vellance had been the plant manager of the
Asheville plant while it was operated by Hardwood from
August 1972 until the, spring of 1973. Beginning on May
14, 1973, until the Asheville plant was temporarily closed
on June 29, 1973, Vellance continued, as plant manager
reporting to Schneble, Respondent's regional manager.
Also during the latter period Vellance was paid by
Respondent. While functioning as plant manager and
reporting to Schneble during this period, Vellance directed
production operations of the Asheville plant and its
employees except for the sawmill and the yard which were
run under the direction of Davidson, and a pallet operation
which had ceased before that time. Not excluded and
therefore included among the operations 'directed by
Vellance during this period was rough blank production at
the Asheville plant - an operation which will be described
hereinafter. In carrying out his responsibilities for directing
plant operations, I conclude, Vellance exercised consider-
able discretion because Schneble was not always physically
present at that plant and was only contacted by Vellance
once every 1 to 3 days in person or by telephone. These
contacts concerned such "major" decisions as quality of
the production, change in design, or quantity changes.
In late May or early June 1973 Vellance recalled certain
employees to work at the Asheville plant who had been
previously laid off from that plant.
1 Errors in the record have been hereby noted and corrected. 3 Any allegation of the complaint not specifically denied shall be deemed
2 As will appear, Respondent, at least by July 10, 1973, was also admitted as true and shall be so found by the Board, unless the answer
operating certain parts of the plant, formerly run by Hardwood, at makes certain explanations of the failure to deny which was not done
Asheville, North Carolina, which is the plant primarily involved in the herein. See Sec. 102.20 of the Board 's Rules and Regulations and
proceeding. Statements of Procedure, Series 8, as amended.
PINE VALLEY DIVISION OF ETHAN ALLEN, INC.
I conclude on the basis of all the foregoing, that Vellance
had the authority to hire employees and responsibly to
direct them in a manner requiring the exercise of
independent judgment and that he exercised such authori-
ty, in both respects, on behalf of Respondent from May 14,
1973, to June 29, 1973, since Respondent through Schneble
directed Vellance and paid Vellance's salary during this
period. I further conclude that during the instant period
Vellance was a supervisor for Respondent within the
meaning of Section 2(11) of the Act and Respondent's
agent acting on its behalf within the meaning of Section
2(13) of the Act .4
IV. BACKGROUND AND SEQUENCE OF EVENTS
A. The Make-up of an Integrated Case Goods
Plant; the Operations of Respondents Old Fort Plant
and the Hardwood Plant in the Spring of 1973
For a proper understanding of the case, generally, and
Respondent's defense, particularly, it is first necessary to
explain the nature of the manufacturing operations of
Hardwood and Respondent.
Respondent has been, and Hardwood was, a manufac-
turer of wooden furniture. The extent to which they were
so engaged in the spring of 1973 differed, however, as will
appear.
By that time Hardwood under the direction of Vellance
had become, among other things, an integrated manufac-
turer of case goods (completed furniture) for general
customers. That is, Hardwood had the capacity of taking
lumber through all stages of manufacture to the finished
product packed and ready for shipment. More precisely,
Hardwood possessed at the Asheville plant facilities which
included a sawmill, dry kilns, a small pallet plant, a rough
mill, a finish mill (where parts could be shaped), a sanding
department, assembly department, a final finishing depart-
ment, a packing department, and a shipping department.
The rough mill produced so-called rough blanks for
Hardwood's own use. A rough blank is a piece of wood
which could be molded, shaped, and tenoned into a given
profile or furniture part or several parts from the same
board.
Hardwood also produced for sale and also apparently for
Hardwood's own use so-called dimension parts. A dimen-
sion part is a sanded part, such as a chair leg.5
Respondent's Old Fort plant, which is located 28 miles
away from the Asheville plant, does not have all the
operations which Hardwood's Asheville plant possessed in
the spring of 1973. The Old Fort plant then and now
machines furniture parts, assembles them, finishes them,
and packs them for shipment. It has never had a rough mill
4 These findings as to Vellance's status are based primarily upon the
credited testimony of Vellance in this regard and the admissions of
Schneble. Vellance was uncertain as to dates when laid-off employees were
recalled or rehired, hence the dates found above in respect to this action are
based on the more certain testimony of the union president, Lloyd Ellege.
My findings as to Vellance's authority over the rough mill operations during
this period are based on Vellance's credible testimony that the only
production operations excluded from tits jurisdiction, as plant manager at
such time were the sawmill and the yard which were run by Davidson, who
had been transferred by Respondent to the Ashevnlle plant. While Schneble
testified that he sent Davidson to the Asheville plant for the purpose, inter
211
operation to produce the rough blanks which are the raw
material for the machined parts which are assembled to
make up an item of finished furniture.
B. Difficulties Experienced by Respondent in
Obtaining Rough Blanks to be Manufactured into
Furniture Parts
Since Respondent's Old Fort plant did not produce
rough blanks, Respondent was obliged to obtain this
material or rough dimension parts from outside sources in
order to have the wherewithal to manufacture finished
furniture. A principal source of rough dimension parts in
1970 was Morgan Manufacturing Company. In 1970
Morgan was purchased by Drexel Manufacturing, a
competitor of Respondent.
Respondent's difficulties in obtaining rough dimension
parts from the old Morgan plant after Drexel purchased
that plant are described in considerable detail in corre-
spondence between Respondent and Drexel which was
received in evidence at the hearing. Among these was a
letter dated June 19, 1972, wherein Respondent's then
president, Ansell, was informed by Drexel's president,
Shaughnessey, that Morgan's supply of dimensions to
Respondent's Old Fort plant would be completely phased
out by June 1974. However, it was further shown that by
the fall of 1972 Drexel was not even fulfilling its then
remaining commitments to Respondent's Old Fort plant
for dimension parts.
This necessitated action on the part of Respondent to
cast about for other sources of supply of rough dimensions
or of rough blanks from which the rough dimensions could
be made. In September 1972, Respondent gave sizable
orders to Hardwood for rough dimension parts. In April
and May 1973 Respondent also gave Hardwood orders for
finished dimension parts and in May 1973, as will appear,
Respondent began receiving rough blanks as well from
Hardwood's Asheville paint.
C. The Decline of the Hardwood Plant at Asheville
Hardwood was a subsidiary of the Jet -X Corporation.
The headquarters of the latter were located in Denver,
Colorado. Hardwood at some date not shown by the
record had taken over the Asheville plant through
succession by merger with Williams- Brownell, Inc.
The Charging Party was recognized by Hardwood as the
exclusive representative of a unit of all employees at
Hardwood's Asheville plant excluding clerical employees,
truckdrivers, foremen, watchmen, and supervisors. The
latest collective-bargaining agreement entered into be-
tween Hardwood and the Charging Party was effective
from November 1, 1972, to October 31, 1973. The
alga, of managing the rough mill operation (where rough blanks are
produced), Schneble did not say Davidson , in fact, ever ran that operation,
whereas Vellance specifically testified that Davidson did not take over the
rough mill operation. Davidson did not testify . Vellance further credibly
testified that the pallet operation had been shut down by May 14, 1973,
before Davidson came to the Asheville plant.
5 Vellance was hired by Hardwood to change the Asheville plant from a
dimension plant to a finished goods plant. Vellance added the finishing
facility and assembly line. Pictures of completed furniture made by
Hardwood are set forth in the brochure for the auction of it which occurred
in June 1973.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement specified that it was binding on Hardwood and
its successors and assigns.
By the spring of 1973 Hardwood's Asheville plant
facilities had become old as was much of the machinery
there. Replacement parts for the machinery were some-
times difficult to obtain and expensive. Vellance, the plant
manager, was told by an official of Jet-X that the Asheville
plant operated with an overhead rate for cost purposes of
over 200 percent.
Hardwood had been experiencing financial difficulties
for some time before the spring of 1973. At some point the
North Carolina National Bank (NCNB) became Hard-
wood's creditor and its indebtedness to that bank was
secured by a deed of trust dated May 17, 1972, and a
security -agreement dated August 18, 1972, covering the
land, building, fixtures, furniture, and equipment of the
Asheville plant. By January 1973, Hardwood had also
assigned its accounts receivable to North Carolina Nation-
al Bank Financial Services, Inc., a subsidiary of the NCNB
corporation,6 as security for loans received from NCNB
Financial Services. The amount of these accounts receiva-
ble declined from $520,742.87 in January 1973 to
$198,717.98 in April 1973. Hardwood also pledged invento-
ries and certain fixed assets as collateral for loans received
from NCNB Financial Services, Inc.
By April 1973, Hardwood was in default on its various
loans from the Bank and the Bank determined that it
would advance no more funds to Hardwood. Hardwood,
therefore, gave over and surrendered the Asheville plant
and its equipment to the Bank and the Bank sent two of its
officials, Arnold Benton and Pete Frendano, to the
Asheville plant where, on April 16, they set up offices.
Benton told Vellance, the plant manager (who had held
that position since August 1972), that he was desirous of
selling the Asheville facility while its employees were still
working there in the hope that such a going enterprise
would be more attractive to potential buyers.
Vellance then set about contacting possible purchasers
for the plant. Among these was Schneble, Respondent's
regional manager , who indicated an interest in buying the
plant on April 19, 1973, and in hiring Vellance. Vellance
thereafter told several employees at the Asheville plant of
Respondent's interest in purchasing the plant.
Meanwhile, the operations at the plant declined substan-
tially and by some time in late April or early May 1973 the
pallet operation and some sawmill activities had shut
down. Indeed, Herschel Fogleman, an official of the Bank
who was sent by his employer to the Asheville plant to
"watch our collateral," testified that as the result of his
employer's refusal to advance any more funds to Hard-
wood, the Asheville plant probably would have gone out of
business and closed by May 1973. This did not happen at
that time, however, at least in part for the reason that
Respondent stepped into the picture, as will appear.
After' Schneble had informed Vellance on April 19, 1973,
that Respondent was interested in purchasing the plant,
6 The North Carolina National Bank and North Carolina National Bank
Financial Services, Inc., are subsidiaries of the North Carolina National
Bank . The North Carolina National Bank also has a division known as
Automated Custom Services which ran the payroll at the Asheville plant for
Hardwood until May 14, 1973, and for Respondent thereafter until at least
Schneble and Vellance continued to have conversations
over the telephone. These conversations related to the
progress of production of Hardwood's line and of orders
from, other manufacturers then in process at the Asheville
plant. Schneble and Vellance also discussed the condition
of the equipment at the instant plant and the possibility
that Respondent might give certain orders to this plant.
Between April 27, 1973, and May 14, 1973, Respondent
gave this plant orders for blank dimension or finished
dimension parts totaling in value about $90,000.7
On May 14, 1973, Schneble informed Vellance that
Respondent's president, Ansell, had worked out an
arrangement with the North Carolina National Bank and
that Respondent was going to take over operations of the
Asheville plant as of that date.
D. Dealings between Respondent and the North
Carolina National Bank, Auction of the Plant and
Equipment; Operations of the Asheville Plant
Between May 14, 1973, and June 29, 1973
On May 14, 1973, Respondent through Schneble began
to supervise the operations of the Asheville plant. In
carrying out this responsibility Schneble continued to
employ the plant manager, Vellance, and the plant
superintendent, Marc Frampton, and Schneble directed
both.
Pursuant to Schneble's instructions a notice dictated by
Schneble was posted on bulletin boards of the Asheville
plant and announced Respondent 's presence at the plant.
More specifically this notice, which was printed on
Hardwood stationery, signed by Schneble, and addressed
"To All Personnel," stated, inter alia:
As of this date I am proud to announce you are 100
percent affiliated and owned by ETHAN ALLEN. You
no longer need to be concerned about your future or
the future of the Company.
Schneble credibly explained in his testimony at the
hearing that at the time this notice was put up Schneble
thought that all negotiations for Respondent to obtain the
plant from the Bank had been finalized except transfer of
the title to Respondent. He further stated that, since the
Bank was one of the largest banks in North Carolina, he
foresaw no problem with obtaining that title. The next day,
May 15, 1973, he learned that his appreciation of the
situation was in error. For on that date an involuntary
bankruptcy petition against Hardwood was filed by still
other creditors of Hardwood. This petition among other
things charged that certain assets of Hardwood had been
improperly assigned to Hardwood's parent, Jet X, and
then transferred to the Bank at a time when the claims of
these other creditors were in existence. In view of this
petition, Schneble further explained, the courts would not
allow the Bank to transfer title to Respondent.
,June 29, 1973 . Each of these various companies will sometimes be referred
to hereinafter as the Bank.
7 These orders use the term blank dimension or finished dimension
except for one order dated April 27, 1973. But the latter includes some of
the same items by description and number as the finished dimension order
lof May 4, 1973.
PINE VALLEY DIVISION OF ETHAN ALLEN, INC.
Respondent nonetheless continued to operate the Ashe-
ville plant on and after May 15, 1973, under the
supervision of Schneble. To accomplish this Schneble
continued to direct the work of Vellance and Frampton
and it transferred Davidson, who took over the plant's
sawmill operation. Respondent also sent its personnel
manager , Glenn, to the Asheville plant in May 1973.
Schneble informed Vellance at this time that, although
Respondent had not purchased the Asheville plant as
Schneble had previously informed the plant employees,
Respondent had instead entered into a "lease agreement"
for that plant. But no further notice was posted to the
employees telling them of this.
The "lease agreement" spoken of by Schneble was,
apparently, an oral one between the Bank and Respondent.
This agreement was not memorialized in a written
agreement until June 18, 1973.8 The latter document which
refers to Respondent's presence in the Asheville plant as "it
lease and/or the use and occupancy" of the Asheville plant
provided Respondent with a temporary tenancy and was a
conditional agreement by Respondent to buy the plant and
equipment - the principal condition for the sale being the
capability of the Bank to convey clear title to said plant
and equipment. This capability would depend in large
measure upon the outcome of auctions of the plant and
equipment which were held in June 1973.
More specifically this agreement recited, inter alia,
(a) That the Bank was a creditor of Hardwood, that
Hardwood's indebtedness was secured by a deed of
trust dated May 17, 1972, and a security agreement
dated August 18, 1972, whereunder Hardwood had
provided the land, buildings, fixtures, furniture, and
equipment of the Asheville plant as collateral for the
indebtedness.
(b) That Hardwood was in default of these agree-
ments and had accordingly surrendered the premises of
the plant to the Bank.
(c) That Respondent was desirous of purchasing the
plant and equipment and of operating the plant.
(d) That the value of the collateral would be
enhanced by the continued operation of the plant and
would redound to the benefit of Hardwood and all the
parties.
(e) That Hardwood had consented to and urged the
Bank to permit Respondent to enter into joint
possession of the plant and to permit Respondent to
operate the plant 'and to continue to employ the skilled
labor force.
(f) That the Bank had consented to allow Respon-
dent to enter into joint possession of the plant with the
Bank.
(g) That all of the foregoing had been agreed to on or
about May 12, 1973.
(h) That on May 14, 1973, the Bank did permit
Respondent to enter into joint possession of the
premises with the Bank.
(i) That on May 15, 1973, an involuntary petition
under the Bankruptcy Act was filed against Hardwood
8 This agreement specifically recites that one of the premises for its
consummation was the desire of the parties to formahze their understand-
213
in the United States District Court for the Western
District of North Carolina.
(j) That it was the intention of Respondent and the
Bank to formalize their understandings.
(k) That the agreement was entered into in consider-
ation of the premises and the mutual covenants
contained in the instant written agreement of June 18,
1973.
(1) That it was the intention of the Bank and
Respondent for the Bank to convey and Respondent to
purchase all the land, buildings, equipment, etc., of the
Asheville plant - but that since foreclosure proceed-
ings and auction sales must first be consummated, the
parties could not predict whether Respondent or the
Bank would be the successful bidder in such sales.
(m) That the Bank agreed to use its best efforts to
cause foreclosure proceedings in regard to the land and
equipment to be consummated but that if Respondent
did not acquire title to the land and buildings on or
before May 15, 1974, liquidated damages in favor of
Respondent were set at $ 100,000.
(n) That the Bank agreed to defend at the Bank's
expense the right of Respondent and the Bank to hold
the property jointly until the foreclosure proceedings
were consummated but that should an injunction issue,
the Bank would not be liable to Respondent unless
Respondent was prohibited from operating the plant
for a period of more than 5 working days in which case
the liquidated damages were set at $100,000.
(o) That, if the Bank became the successful bidder
for land and buildings and equipment and machinery,
the Bank agreed to convey the land and buildings to
Respondent for the purchase price of $400,000 and the
equipment for the purchase price of $300,000 - 10
percent of such total purchase price (i.e. 10 percent of
$700,000) to be paid within 48 hours of the conclusion
of the auctions and the balance upon closing (the 10
percent to be returned however, if no conveyance was
made).
(p) That the conveyance of title by the Bank of the
land and buildings to Respondent would be subject,
inter alia, to zoning regulations, to all acts of Respon-
dent after May 14, 1973, and to assessments to be
adjusted as of the same date.
(q) That if the Bank became the successful bidder for
the equipment at public auction, said equipment would
be conveyed on an "as is" basis with no deduction for
defects but with warranty of title.
(r) That no inventory of niechandise or supplies,
which would be used or consumed or, applied to
inventory, was included in the sale.
(s) That during the term of Respondent's lease
and/or the use and occupancy of the plant, Respon-
dent agreed to pay interest at the Bank's prime rate on
the $700,000 purchase price from May 14, 1973 - the
first payment to be made upon the signing of the
agreement, thereafter on the first of each month (the
interest was tantamount to rent).
mgs which had been reached beginning on May 12, 1973.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(t) That Respondent further agreed to pay during the
term of such "lease and/or use and occupancy of the
plant" all taxes, sewer rents, water charges, fuel
requirements, utilities, insurance, and all expenses
necessary to keep land, buildings, and equipment free
from claims arising from Respondent's use after May
14, 1973, until termination of the "lease and/or use and
occupancy of the premises" by Respondent and all
upkeep expenses with certain limitations.
(u) That Respondent agreed to indemnify the Bank
against claims for personal injuries arising from use of
the premises on and after May 14, 1973, up to the
termination of the "lease, etc.," and to indemnify the
Bank against the claims of any brokers.
(v) That Respondent agreed to cooperate fully in
connection with the Banks efforts to cause the
foreclosure to occur as expeditiously as possible and
would permit the auctioneers to show the property to
prospective bidders during normal business hours.
(w) That Respondent would not obstruct the auction
nor would it operate on the day of the auction or the
day preceding it and that Respondent would do the
same in connection with the auction of the inventory
scheduled to be sold on June 14, 1973.
(x) That any controversy arising out of the agree-
ment would be settled through a certain arbitration
process.
(y) That the agreement was not assignable by the
Respondent without the consent of the Bank and that
the agreement was effective as of May 30, 1973 (even
though several of its provisions became operative on
and after May 14, 1973).9
Respondent did in fact make the 10 percent down
payment ($70,000) and it paid the interest as agreed from
May 14, 1973, until about July 13, 1973, when it ultimately
purchased the plant. Respondent also paid for 'fire
insurance and workmen's compensation during the lease
period, the payments being made at the time that the sale
of the plant to Respondent was completed on July 13,
1973. Respondent also then assumed the balance of 1973
real and personal property taxes for the Asheville plant as
well as electric, water, fuel, and utility charges for the plant
accruing on and after May 14, 1973.
Another memorandum of understanding was entered
into on May 28, 1973, between Sorton for Respondent and
certain Bank officials, including Fogleman, whereunder it
was understood that all employees would continue as
employees of Hardwood until such time as an agreement
was reached between Respondent and NCNB Financial
Services, Inc., that the Bank would remit Federal With-
holding and "F.I.C.A." (apparently social security tax)
payments to the Federal Depository as long as the
9 Parenthetical comments mine.
1o A further agreement was entered into between Respondent and
NCNB Financial Services , Inc., on June 19, 1973, whereunder Respondent's
responsibility for wages and advances on wages of plant employees during
Respondent's occupancy was affirmed and it was also agreed that if the
Bank declined to offer a bulk bid at the auction of the plant and machinery
then Respondent could do so and, if successful, the puce paid by
Respondent would be credited against the aforementioned agreed-upon
purchase price of $700,000 for the land , building, equipment, and
machinery.
personnel were employees of Hardwood and that the Bank
would file all payroll returns (including final returns) for as
long as the employees remained on the Hardwood payroll.
The agreement further provided that the Bank would bill
Respondent for all payroll amounts and payroll taxes
remitted for work performed from May 14, 1973, on and
that the Bank would bill Respondent for payroll servicing
from May 14, 197310
The arrangements pursuant to the instant May 28, 1973,
agreement were in fact carried out and Respondent
reimbursed the Bank for the Asheville plant payroll,
payroll taxes, and payroll servicing until the plant shut
down on June 29, 1973. Respondent, however, received a
rebate from the Bank for a certain portion of the plant
payroll attributed to work necessary to finish certain
furniture'or dimension parts being manufactured for other
furniture companies (e.g., Burris and Broyhill). This work
was completed on 'or about May 25, 1973. The amount
Respondent received for this work was $6,164.60 or an
amount equal to about two-thirds the payroll for 1 week
during the period May 14, 1973, to June 29, 1973.11
Respondent also paid the salary of Plant Manager
Vellance and Hardwood's plant superintendent, Marc
Frampton, after May 14, 1973, until the plant shut down
on June 29, 1973.
From May 14, 1973, to June 29, 1973, when the Asheville
plant was shut down, most of the sections of the plant
continued in operation with the exception of: the pallet
section which had shut down before May 14, 1973; the
final finishing department which closed during the latter
portion of this period; and the assembly sections, which
closed down after the Burris and Broyhill orders were
filled. The shipping department continued to ship items
made for Respondent to Respondent's Old Fort plant and
was engaged in arranging the finished furniture invento-
ry-apparently of Hardwood's own furniture line-for the
Bank so that it could be sold by the Bank at retail12 or in
the auction.
All employees remained employed during this period,
however, being shifted, as needed, from one operation to
another. Indeed, those employees laid off from the sawmill
in April 1973 who desired recall were in fact recalled in late
May or early June 1973. During the period May 14, 1973,
to June 29, 1973, the employees were engaged only in
performing work for Respondent, with the exception of
completing the Burris and Broyhill orders and furniture
arranging for the Bank, as previously noted. The work
being performed for Respondent included the manufactur-
ing, machining, sanding, finishing, packing, and shipping,
variously, of rough blanks, rough dimension parts, and
finished dimension parts.13
On June 14, 1973, an auction was held for the lumber
and furniture inventory at the Asheville plant. Excluded
11 This "2/3" figure is based on the average of the weekly payroll
amounts paid by Respondent for the period May 14 to June 29, 1973.
12 The Bank operated a small retail sales operation on the premises of
the Asheville plant after the Bank took possession of the plant and
Hardwood's inventory in April 1973.
13 1 make these findings primarily on the basis of the credible testimony
of Vellance in respect to the sections of the plant which were in operation
during this period and the work in which they were engaged . To the extent
that Schneble's testimony in this regard disagrees with that of Vellance, I
credit Vellance in view of the latter's more immediate knowledge and
PINE VALLEY DIVISION OF ETHAN ALLEN, INC.
from this auction was certain lumber which Respondent
required for its own operations. The Bank which had
obtained title to this excluded lumber billed Respondent
for it on July 2, 1973. This bill, which Respondent paid by
check dated July 4, 1973, was in the amount of $55,000.
The, lumber had been stored in the kilns and dry shed of
the Asheville plant. Respondent also purchased $14,738.50
worth of lumber originally gold to another bidder at the
auction. Respondent did not purchase any of the other
items advertised in the brochure for this auction.
The Asheville plant was shut down for 2 days on June 18
and 19, 1973, for an auction of plant equipment and
machinery. There were apparently numerous bidders for
this equipment and machinery. However, the Bank
eventually succeeded in obtaining title to all of it on the
basis of a bulk bid and resold it to Respondent consistent
with the agreement between Respondent and the Bank,
dated June 18, 1973, and the rider to that agreement, dated
June 19, 1973. The value of the equipment was $394,987.50.
Of this equipment the Respondent retained $226,034 worth
at the Asheville plant and transferred $70,520 worth to its
Pine Valley (Old Fort) plant. The remainder, or $98,433.50
worth, was turned over by Respondent to individuals who
had bid on it at the auction, apparently by resale to such
bidders on the basis of their bids at the auction. In any
event, this last group of equipment was not retained by
Respondent for use either at Old Fort or at the Asheville
plant. The equipment which was not retained at the
Asheville plant was moved during the period June 29, 1973,
to July 10, 1973. The reason for the delay in the disposition
of the equipment after the auction was that the auction
could not be fmalized until the period for so-called upset
bids had expired on July 6, 1973.
After the actual auction on June 19, 1973, however, the
Asheville plant reopened and continued operating until
June 29, 1973, when it shut down. On the latter date
Schneble called the Asheville plant employees together and
read a prepared speech to them. Among other things, he
told them that Respondent would not pay the employees
vacation pay, about which more will be said hereinafter.
He also told them that the Bank was in the process of
drawing up a deed to the plant for presentation to
Respondent after which Respondent would assume owner-
ship. He assured the employees that Respondent would do
its best to "take this bankrupt company and make it a
successful operation. Finally, he told the employees the
plant would be closed the following week, that Respondent
would take employment applications on July 6, 1973, and
reopen the plant on July 10, 1973.
The plant was closed from June 29 to July 10, 1973, as
Schneble had advised.
control of the activities of the Asheville plant. Further, Vellance's testimony
is supported and supplemented by the following , on which I also rely:
(a) The undisputed fact that Respondent's unfilled orders placed in
September 1972 were completed during this period.
(b) The fact that, although some $4,680.75 worth of work remained
from the 1972 orders as of April 27, 1972, and some $90,000 in orders
were placed by Respondent with the Asheville plant between April 27,
1973, and May 14, 1973, the Bank only billed Respondent for
$25,478.72 for work in process as of May 14, 1973- leaving a balance
of almost $70,000 worth of orders to be completed after May 14, 1973,
which included both rough and finished dimension parts.
215
E. Dealings Between Respondent and the Charging
Party During the Period May 14, 1973, to June 29,
1973; Respondent's Dealings With the Individual
Employees
When Respondent began operating the Asheville plant
on May 14, 1973, under the direction of Schneble, it was
aware that this plant's employees were represented by the
Union. Thus, on May 14, 1973, Schneble discussed the
Union with Vellance and asked Vellance's opinion of it.
Vellance described the Union in favorable terms to
Schneble.
It does not appear from this discussion or any other that
Schneble ever advised Vellance not to deal with the Union
thereafter. It was rather shown that during the period May
14, 1973, until June 29, 1973, Respondent honored the
Union's contract with Hardwood covering the Asheville
plant and recognized and dealt with the Union pursuant to
this contract largely through Vellance, whom I have
already found to be Respondent's agent acting on its
behalf at such time. Thus, sometime after May 14, 1973,
the union president, Ellege, spoke to Vellance about the
sawmill employees who had been laid off prior to May 14,
1973. Ellege informed Vellance that under the Union's
contract these employees were entitled to obtain their jobs
back, because of their seniority. Vellance agreed to place
these employees in other jobs at the plant and those who
desired to return were so placed in late May or early June
1973.
Ellege also approached Vellance on June 18, 1973, about
the paid vacations of the employees and Vellance told
Ellege that the vacations would be handled in accordance
with the Union's contract.
In mid-June 1973, Ellege, as union president, was
provided from the office at the Asheville plant with a copy
of the employees' vacation list stating how many days
various named employees would receive for vacations and
noting that certain other employees would receive none.
(However, still later, on June 29, 1973, as already found,
Schneble told the plant employees that they would not
receive vacation pay.)
Ellege , as union president, was also provided with the
seniority list of the plant employees for the month of June
1973. This continued the practice which had been followed
by Hardwood on a monthly basis prior thereto. By
receiving this list each month Ellege was able to know what
employees were working in the plant and was in a position
to insure compliance with the seniority provisions of the
contract.
The Union was also consulted on matters of employee
discipline during this period. Thus, on June 12, 1973, a
These orders were given by Respondent to the Asheville plant after
Vellance discussed with Schneble the possibility of such orders from
Respondent to keep the plant busy. On May 8, 1973, Respondent sent a
letter to Vellance, received on May 10, giving Vellance specific
instructions regarding completion of the orders placed up to that time.
(c) The further fact that the Bank billed Respondent for $58,897.21
worth of lumber placed in process during the period May 14, 1973, to
June 13, 1973. (It is noted that no inventory or supplies, such as lumber,
were included in the conditional sales agreement executed between
Respondent and the Bank on June 18, 1973, effective May 14, 1973.)
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting was held to consider the continued employment
status of employee David Rice who had been charged with
excessive absenteeism. Present at this meeting were, inter
alia, Rice, Ellege (who, as union president, represented
Rice), and Plant Superintendent Marc Frampton. As the
result of this meeting Frampton sent a memorandum to the
personnel department, dated June 12, 1973, notifying them
that Rice was being given another chance.14
Further, consistent with a prior oral agreement between
the Union and Hardwood, the Union was given a copy of a
"correction notice" dated May 29, 1973, issued to
employee Edward Livesay who was charged with bringing
alcoholic beverages on the plant property. Livesay was
ordered sent home for the day and warned that termina-
tion would result from one more offense. Ellege, as union
president, represented Livesay in this matter. The correc-
tion notice was signed by a supervisor and was witnessed
by Frampton.
Hardwood had permitted the Union to maintain an
office at the Asheville plant since February 1972. It
continued to do so while the plant was operated by
Respondent during the period May 14, 1973, to June 29,
1973. Also during the latter period Ellege was permitted to
conduct union business on company time without going'off
the timeclock. On some such occasions he met with Albert
Crawley, a representative of the Charging Party's Interna-
tional Union. During this same period Crawley was not
prohibited by Respondent from entering and leaving the
working areas of the plant.
The economic terms of the union contract with Hard-
wood for the Asheville plant were also followed by
Respondent during the period May 14, 1973, to June 29,
1973. That is, the same working conditions, pay rates, job
classifications, and fringe benefits in effect before Hard-
wood went out of business remained in effect not only
from April 16, 1973,-to, May 14, 1973, while the Bank's
representatives were on the premises, but also during the
period May 14, 1973, to June 29, 1973 while Respondent
operated the plant.
Also certain employees were granted 10-cent pay raises
due under the contract in June 1973, after Ellege had
notified the office at, the Asheville plant that these raises
were then due.
The contract likewise specified that Hardwood (or its
successors and assigns) pay a sum of money equal to 4.2
percent of the total gross monthly earnings of the
employees to the Charging Party's International Union's
Health and Welfare Fund. A payment to this fund was
made by Respondent by check ' dated July 13, 1973
(apparently based on the June payroll). Claims occurring
within the period May and June 1973 were also paid by the
fund.
Also during the period Respondent operated the Ashe-
ville plant in May and June 1973, union dues were
withheld from the paychecks of all employees who had
submitted checkoff designations. These dues were remitted
to the Union at least as late as June 23, 1973, although such
payments were discontinued as of June 29, 1973. The
contract between Hardwood and the Union provided for
such a dues-checkoff arrangement with payment to be
made to the Union each month.
A week before the plant closed on June 29, 1973,
Respondent made up pay shortages to two employees, Rice
and Wood. Each, respectively, received the difference due
him on one of Respondent's checks.
F. Respondent 's Refusal To Bargqin , With the
Union; Other Events on or Subsequent to June 29,
1973
The statement in Schneble's speech on June 29, 1973,
that the employees were not going to be paid for their
vacations pursuant to the union contract was the first
inkling the Union received that Respondent was no longer
going to follow that contract.
After Schneble's speech on that date Ellege, the Union's
president, followed Schneble to the plant office and
reminded the latter that Respondent had an obligation to
follow the contract with the Union. Schneble did not agree
but rather suggested to Ellege that Ellege take the matter
up with Ellege's attorney: Ellege then asked Schneble if the
Union should move its office out of the plant. Schneble
answered, "If I was you, I would."
The employees did not, in fact, receive their vacation pay
on June 29, 1973.
It was stipulated that Ellege's request to Schneble on
June 29, 1973, to honor the union contiact was, in effect, a
request for Respondent to recognize the Union, and that
Schneble declined to do so. I so find.
The Asheville plant remained closed from June 29, 1973,
to July 10, 1973. Applications for subsequent employment
from individuals who had been employed at the Asheville
plant as well as other individuals were accepted by
Frampton and Respondent's personnel manager, Glenn,
on July 6, 7, and 9. Glenn consulted with Vellance in
evaluating some of these applicants.
Only those individuals who applied for employment at
this time were considered for employment when the
Asheville plant was reopened by Respondent on July 10,
1973. Fifty-four employees were hired by Respondent on
that date. All of these 54 had previously been employed
before June 29, 1973, and they represented 100 percent of
the work force at the reopened plant. Subsequently, nine
more former plant employees were employed by Respon-
dent at the Asheville plant. This means that Respondent
has now rehired at that plant 63 employees out the total
employee complement of 104 which existed at the plant on
June 29, 1973. Respondent has not rehired the remainder
of that complement.
The terms and conditions of employment of the
employees at the Asheville plant on and after July 10, 1973,
were different from those which had prevailed at the plant
on June 29, 1973.
14 Under the union contract with Hardwood , the plant superintendent instance. Frampton was still employed by Respondent at the time of the
was specifically authorized as a management agent. Since Frampton at the hearing.
time was being paid by Respondent and worked under the direction of The written contract further provides for union representation in the
Schneble, I conclude that Frampton was an agent of Respondent acting in processing of grievances , such as grievances over disciplinary actions and
its behalf within the meaning of Sec. 2(13) of the Act, at least in this discharges.
PINE VALLEY DIVISION OF ETHAN ALLEN, INC. 217
Also when the Asheville plant reopened on July 10, 1973,
Respondent did not engage in pallet manufacturing nor
did it reactivate the plant's machine room, sanding
department, assembly department, finishing department,
packing department, or shipping department. In the
absence of any showing to the contrary and in view of the
credible testimony of Schneble that Respondent's rough
mill and kiln operations are now carried out at the
Asheville plant and the furniture manufacturing operations
are carried out at the old Fort plant (as they had previously
been), I conclude that the aforementioned departments or
activities formerly operated at the Asheville plant continue
to be closed. Schneble further credibly testified, and I find,
that Respondent now uses only about one-third of the
Asheville plant floor space.
The Bank acquired title to the Asheville plant on July 9,
1973, and deeded it to Respondent on July 12, 1973.
Respondent also sold the equipment for the Asheville plant
to Respondent on July 13, 1973. As previously noted
Respondent gave the Bank its initial 10-percent deposit
($70,000) on the entire transaction on June 29, 1973. The
remainder ($630,000) of the sales price was paid by
Respondent to the Bank on July 12, 1973. All other dollar
obligations, due to the Bank from Respondent pursuant to
their June 18, 1973, lease/conditional sales agreement and
which had not already been satisfied, were paid by
Respondent to the Bank between July 13, 1973, and July
18, 1973. As previously noted Respondent did not retain all
of the Asheville equipment. Out of this equipment, valued
at $394,987.50, Respondent kept $226,034 worth for use at
the Asheville plant, transferred $70,720 worth to the Pine
Valley (Old Fort) plant, and turned over the remainder, or
$98,433.50 worth, to individual bidders from the auction of
June 19, 1973.
On July 27, 1973, the Union's attorney, Elmore, again
demanded that Respondent recognize the Union at the
Asheville plant. In a letter to Elmore, dated July 30, 1973,
Schneble denied this request claiming that Respondent had
not purchased the Hardwood Corporation but had merely
obtained Hardwood's assets through a bankruptcy pro-
ceeding. Schneble further stated in this letter that Respon-
dent was not operating the plant with the same employee
complement and that it did not plan to operate the plant as
it had been operated in the past. Schneble added that
Respondent questioned the majority status of the Union
but offered to go to a Labor Board election if the Union
sought one.
On August 27, 1973, Crawley, the Union's International
representative, sent a letter to Respondent "to advise the
company, as the successor to the Hardwood Corp." of the
Union's intention to reopen the 1972-73 agreement
between Hardwood and Union which by its terms expired
on October 31, 1973. This request was declined by
Schneble in a letter sent to Crawley's attention on
September 10, 1973. In this letter Schneble also stated
Respondent did not intend to be bound by the instant
contract.
On September 4, 1973, a notice was published at the
Asheville plant over the signature of Glenn, Respondent's
personnel manager, stating that Respondent would be
hiring more employees over the succeeding months.
Ellege, who was not rehired by Respondent, received at
sometime, not shown by the record, certain forms mailed
in one of Respondent envelopes. These forms showing
Ellege's 1973 earnings were to be used in filing his income
tax return.
G. Respondent's Contentions; Concluding Findings
As noted at the outset of this Decision, the principal
question to be decided here is whether or not Respondent
is the successor to Hardwood. If this question be answered
in the affirmative, it follows that the obligation of
Hardwood to bargain with the Union has devolved upon
Respondent 15
The answer to this question turns on the determination
whether or not the employing enterprise has remained the
same after Respondent's takeover as it was when Hard-
wood was operating the Asheville plant. This determina-
tion, the Board has held, proceeds from the examination of
some seven criteria, which are: (1) whether there has been
a substantial continuity of the same business operations;
(2) whether the- new employer uses the same plant; (3)
whether he has the same or substantially the same work
force; (4) whether the same jobs exist under the same
working conditions; (5) whether Respondent employs the
same supervisors; (6) whether he uses the same machinery,
equipment, and methods of production; and (7) whether he
manufactures the same product or offers the same
services.ls I find no indication in the Board decisions,
however, that the foregoing list is intended to be exhaus-
tive, hence, I will also consider yet another factor, as will
appear.
Before proceeding to analyze these criteria I will first
pass upon Respondent's contentions.
Respondent in its brief does not analyze the situation
existing at the 'plant during the' period May 14 to June 29,
1973. It merely characterizes this period, in passing, as
being a time in which it was the caretaker of the Asheville
plant. Having thus essentially ignored this period , Respon-
dent contends that the examination of the instant seven
criteria should begin with the situation existing when the
plant reopened on July 10, 1973. It then argues that it has
only operated the sawmill and rough mill at the Asheville
plant since the latter date; that these operations are a mere
fraction of work formerly performed there by Hardwood;
that these fractional operations have become integrated
with its Old Fort plant; that both plants are directed from
Old Fort; that there is interchange between the two plants;
and that employees may be hired at either plant to work at
both. From these facts, Respondent concludes that it is not
the successor to Hardwood and that the Hardwood unit
has become submerged in a two-plant unit . It says, in sum,
that it has taken over the Asheville rough mill and sawmill
to insure against shortages of rough blanks and has
combined that sawmill and rough mill with its Old Fort
plant so that the two plants together now make up a
complete furniture manufacturing operation, in which the
15 See, e.g., J-P Mfg„ Inc., Successor to Traverse City Manufactunn& Inc.,
194 NLRB 965, 968 (1972).
16 I'l
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Asheville operation has lost any separate identity it may
once have had.
I fmd no merit in these contentions because they rest
ultimately on the incorrect view that the criteria for
successorship must be considered in the light of events
beginning on July 10, 1973.
The complaint rather alleges that Respondent became
the successor to Hardwood on May 14, 1973. The
examination of the criteria must therefore consider what
happened on and after that date. Further, Respondent was
not, as it contends, a mere caretaker of the premises during
the period May 14 to, June 29, 1973. It rather leased the
plant during this period and it directed and paid plant
supervision. It also manufactured rough blank and
dimension parts for its own use there and it paid the
salaries of plant employees. While an agreement was made
between Respondent and the Bank to treat these plant
employees as employees of Hardwood and the Bank
processed employee-paychecks and tax withholding during
this period, these matters pale to insignificance in the glare
of the further facts that it was Respondent who furnished
the money for the payroll and withholding and also paid
the Bank for processing the payroll.17
I shall, accordingly, consider the successorship criteria
on the basis of the events of May 14, 1973, and thereafter.
1. Substantial continuity of the same business
operations
At the time Respondent took over the plant on May 14,
the plant was performing all work in which it had been
engaged at the time Hardwood was in operation except for
pallet manufacture which had ceased some 3 weeks before
- apparently during the interregnum from April 16,,1973,
to May 14, 1973, while the Bank had taken over the plant.
The other Hardwood operations had continued during this
interregnum period, however, except for a cutback in the
sawmill activities . As previously noted, the laid-off sawmill
employees who desired to return to work were recalled in
late May or early June 1973.18
Hence the Asheville plant, during the period May 14,
1973, to June 29, 1973, was engaged, like Hardwood, in the
manufacture of finished furniture for the first 10 days.
Further, for the entire period, it also engaged, as had
Hardwood, in the manufacture of finished dimension
parts, rough dimension parts, and rough blanks, and in
sawmill operations. Only Hardwood's pallet construction
had been discontinued.
While Respondent vigorously contended at the hearing
that the work of finishing furniture for the first 10 days of
this period was not for its own account (unlike the finished
and rough dimension parts and the rough blanks) but was
instead carried on to satisfy prior orders for Broyhill and
Bums and although Respondent further points out that the
17 With the single exception that Respondent received a rebate equal to
about two-thirds of a week's payroll for completing furniture and parts
ordered by Broyhill and Burris.
is I must conclude that the sawmill operations were not completely shut
down during the period May 14, 1973, to June 29, 1973, because Schneble
sent Davidson from the Old Fort plant on the former date to be in charge of
these operations. Also, Vellance credibly testified that Davidson ran the
yard and sawmill . Further the sawmill was clearly operating after the plant
reopened in July 1973, as employee Rice credibly testified.
Bank rebated Respondent for this work, the fact 'remains
that Respondent directed the completion- of these orders.
But even if Respondent had not done so, it is not necessary
to fmd that Respondent engaged in all the activities of
Hardwood to meet with this criterion.19 And there is no
question that the making of rough blanks, rough dimension
parts, and finished dimension parts, and the operation of a
sawmill are all aspects of the furniture making process.
On the basis of the foregoing I find that the facts here
substantially satisfy the first criterion. -
2. Use of the plant
During the period May 14, 1973, to June 29, 1973,
Respondent used the same Asheville, plant formerly
operated by Hardwood.
I therefore conclude that the second criterion is satisfied.
3. The same or substantially the same work force
Vellance credibly testified, and I find, that no major
change in the work force occurred during the period May
14, 1973, to June 29, 1973. The only change shown, was the
recall of certain sawmill employees, who had previously
been laid off during the period April 16, 1973, to May 14,
1973, while the Bank was in charge of the plant. The only
other change during this latter period was, as noted, the
discontinuance of the pallet-making venture.
Hence, I conclude that the work force during the period
May 14, 1973, to June 29, 1973, was substantially the same
as it had been when the Bank took over'from Hardwood
on April 16, 1973. '
4. Existence of the same jobs under the same
working conditions
As Vellance credibly testified, basically the same "jobs"
existed at the plant during the period -May 14, 1973, to at
least June 19, 1973, as had existed under Hardwood. Also
during the instant period, as I have already found, the
same working conditions, wage rates, fringe benefits, and
job classifications were in effect at the Asheville plant as
had existed prior to April 16, 1973.
Accordingly, I conclude that this criterion is satisfied.
5. Whether Respondent employed the same
supervisors
The only changes in the supervision of the Asheville
plant from what it had been previously were the additions
of Jed Davidson who came from Respondent's Old Fort
plant to manage the Asheville plant sawmill on May 14,
1973, and Bill Glenn, Respondent's personnel manager,
who came shortly thereafter. Hardwoods president, Eli
Gussen, departed on May 18, 1973. Other than the
In addition to the yard and sawmill, the sawmill operation also includes a
kiln.
19 J P Mfg., Inc., supra at 968, and cases cited therein . In any event
Vellance credibly testified that the furniture manufacturing operation
during his tenure (which tenure began in August 1972) was a "small pilot"
operation and that Hardwood ran out of money before it had made the full
transition to an integrated manufacturer of finished furniture from its status
as a dimension manufacturer which it had been when Vellance came to the
plant.
PINE VALLEY DIVISION OF ETHAN ALLEN, INC.
foregoing, Vellance credibly testified he could recall no
change in supervision and none was otherwise shown.
1[ conclude that this criterion is substantially satisfied by
the evidence.
6. Use of the same equipment, machinery, and
methods of production
When Respondent took over the Asheville plant on May
14, 1973, it thereafter utilized essentially all that plant's
facilities excluding the pallet-making capacity. That is, as
heretofore described, Respondent ran, or supervised the
running of, the Asheville plant's sawmill, kiln, rough mill,
finish mill, its final finishing section, and its assembly,
packing, and shipping activities during all of, or part of, the
period May 14, 1973, to June 29, 1973.
There is no showing that any of the equipment for any of
these activities was moved from the plant until after July 6,
1973, the approximate deadline for the auction upset bids,
whereas Schneble admitted that the equipment was moved
from the plant during the period June 29, 1973, and July
10, 1973.
Hence, I conclude that no equipment was moved from
the plant before that time.
I further conclude that this criterion is substantially
satisfied by the evidence.
7. Whether the same product manufactured by
Hardwood or services offered by it were continued
by Respondent
As I have already found, from May 14, 1973, until May
23, 1973, Respondent supervised the completion of finished
furniture ordered from Hardwood by Burris and Broyhill.
At all times until the last few days before June 29, 1973,
Respondent continued to produce at the Asheville plant
rough blanks, rough dimension parts, and finished dimen-
sion parts, which had also been manufactured by Hard-
wood and all of which would be utilized in what ultimately
would become furniture. There is no showing that
Respondent has ever manufactured any new or different
products at the Asheville plant.
11 find that this criterion, too, is substantially satisfied by
the evidence.
As I previously mentioned, I will consider an additional
factor in arriving at the answer to the question whether
Respondent is the successor to Hardwood. This additional
factor is Respondent's conduct vis-a-vis the Union and
Hardwood's union contract after Respondent took over the
plant on May 14, 1973.
My reason for considering this factor is as follows. While
Board precedents require the examination of the foregoing
seven criteria to determine whether successorship has
occurred - and, consequently, whether the predecessor's
bargaining obligation has now devolved upon the succes-
sor - it seems to me that any actual conduct of the
apparent successor showing its assumption of that obliga-
tion is yet stronger evidence of successorship. Indeed, such
an assumption suggests that the successor has, in effect,
conceded that it has that obligation.
70 See, e g., Huttig Sash and Door Company, 173 NLRB 770 (1968), Lloyd
A Fry Roofing Co, Inc., 176 NLRB 1025(1969), 192 NLRB 791 (1971). Cf.
219
As previously set forth in detail, Respondent did, by its
actions, assume Hardwood's contract and did bargain with
the Union during the period May 14, 1973, to June 29,
1973. I, accordingly, conclude that by these actions
Respondent conceded its obligation to bargain with the
Union as the successor to Hardwood.
On the basis of all the foregoing, I conclude that
Respondent is the successor to Hardwood.20
In making this finding I have concentrated on the events
occurring between May 14, 1973, and June 29, 1973,
because I am satisfied that the successorship took place
within this period. To the extent that the facts bearing on
the successorship criteria may have changed on and after
July 10, 1973, such changes were intertwined with
Respondent's unfair labor practices, as will appear, and
have not therefore been considered in making the succes-
sorship determination here.
The complaint alleges that the Respondent violated
Section 8(a)(5) and (1) of the Act in the following
particulars:
1. By refusing to meet and bargain with the Union
on June 29, 1973.
2. By withdrawing recognition from the Union on
June 29, 1973.
3. By unilaterally changing the terms and condi-
tions of employment on June 29, 1973.
4. By refusing to comply with the agreed-upon
method for granting employees vacation time and pay
on June 29, 1973.
5. By unilaterally closing the plant for a period of 1
week on June 29, 1973.
6. By requiring employees to reapply for employ-
ment as new employees.
7. By refusing, on July 10, 1973, to rehire all
employees who were working at the plant on June 29,
1973.
8. On July 10, 1973, by unilaterally closing down
four of five departments of the plant and otherwise
altering the work to be performed by employees.
9. By unilaterally instituting wage increases and
other benefits for employees on July 10, 1973.
The facts concerning these allegations were largely
stipulated at the hearing and have been found heretofore in
this decision.
The question now becomes whether these acts of
Respondent, as the successor to Hardwood, constitute
unfair labor practices.
Since these allegations may be summarized under such
general topics as refusal to bargain, unilateral change in
working conditions, and unilateral elimination of unit
work, I will group them for the purposes of discussion
under such headings.
1. The refusal to bargain: It was stipulated and I have
found that Respondent through Schneble refused to
recognize the Union on June 28, 1973. Since, as I have also
found, Respondent had previously bargained with the
Union and, indeed, by its actions has assumed Hardwood's
Eklund's Sweden House Inn, Inc., 203 NLRB 413 (1973).
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract with the Union, it follows that Schneble's refusal
to recognize the Union on June 29, 1973, was also a
withdrawal by Respondent of its recognition of the Union.
Since Respondent is the successor to Hardwood, had
already bargained with the Union, and had assumed
Hardwood's contract with the Union, Respondent was
obliged to continue to recognize and bargain with the
Union on and after June 29, 1973.21
Moreover, Respondent cannot now claim that the unit
was inappropriate for collective-bargaining or that the
Union lacked a majority on that date. For the bargaining
unit was, and is, a presumptively appropriate single
location unit at Asheville, North Carolina, and is the same
unit as that in which Hardwood had bargained with the
Union (with the exception of the previously discontinued
pallet-manufacturing operation). Further, totally aside
from any presumption of the Union's continuing majority
based on its existing contract, which was honored by
Respondent in May and June 1973, the record shows that
out of the unit complement of 104 on June 29, 1973, 65
continued to have their dues checked off in June 1973.
I, accordingly, conclude that by refusing to meet and
bargain with the Union on and after June 29, 1973,
Respondent violated Section 8(a)(5) and (1)22 of the Act.23
2. The unilateral change in working conditions: It is a
fundamental principle under this Act that an employer
with a lawful, obligation to bargain with a Union as the
exclusive representative of its employees may not change
their wages, hours, or other terms and conditions of
employment without first discussing these changes with
that representative. For each such unilateral action
necessarily obstructs bargaining.24
I have already found that Respondent by Schneble told
the employees on June 29, 1973, that they could reapply for
employment as new employees. This was a direct change of
their working conditions under the existing contract which
gave them seniority. Schneble also declined on June 29,
1973, to give these employees their vacation pay even
though the contract likewise so provided. When Ellege, the
union president, insisted to Schneble on that date that the
contract be followed, Schneble refused to bargain with
him. Further, subsequent to this refusal to bargain by
Respondent and after July 10, 1973, when it reopened the
Asheville plant, Respondent instituted different wages and
other terms and conditions of employment from those set
forth in Hardwood's contract with the Union, which
contract, I have found, Respondent had already assumed
before that time.
Since Respondent, after refusing to bargain with the
Union, unilaterally changed - or unilaterally failed to live
up to - the provisions of the contract concerning,
variously, seniority, vacations, wages, and other terms and
conditions of employment, I conclude that by each such
unilateral change in, or failure to honor, the terms and
21 E.g , Eklund's Sweden House Inn, Inc., supra The instant contract, as
noted, did not expire by its terms until October 31, 1973.
22 Eklund's Sweden House Inn, Inc , supra.
23 The appropriate unit, based on the contract (as altered by the
discontinuance of the pallet operation before Respondent came on the
scene), is. All employees of Respondent 's Asheville , North Carolina, plant,
excluding pallet manufacturing employees, clerical employees , supervisory
conditions of employment established by the contract
Respondent violated Section 8(a)(5) and (1) of the Act.
Respondent also shut down the plant for 1 week or more
during the period June 29, 1973, to July 10, 1973. However,
consistent with the credible explanation of Schneble in this
regard, it would have been impractical to operate the plant
during this period even though the Bank had apparently
already submitted the winning bid for the equipment. For
higher upset bids could be received until July 6, 1973, and
the upset bidders or individual bidders (to whom Respon-
dent was going to assign the equipment it did not want)
would be removing this equipment from the plant during
that period. Inasmuch as the motivation for shutting down
the plant was clearly economic and since bargaining
between Respondent and the Union could not alter
matters over which neither had control - the expected
disruption of plant operations during the ensuing 10-11
days - I conclude that by closing the plant for this period,
Respondent did not violate Section 8(a)(5) and (1) of the
Act.
3. The unilateral elimination of unit work: As I have
found, after refusing to bargain with the Union on June 29,
1973, Respondent reopened the Asheville plant on July 10,
1973, with only the sawmill, yard, and rough null
operations, thereby eliminating all plant, operations subse-
quent in the production scheme to the rough mill - e.g.,
finishing, sanding, final finishing, packing, and shipping 25
One result of these eliminations was that Respondent, on
July 10, 1973, did not rehire the employees who had
formerly operated these departments. It is well settled that
the elimination of work from the unit is a mandatory
subject of bargaining, hence I further find that Respon-
dent's unilateral action in failing to reopen these operations
and its consequent failure to continue the employment of
employees engaged in them was also violative of Section
8(a)(5) and (1) of the Act.26
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section IV,
above, occurring in connection with its operations de-
scribed 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 of
commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
and the Union is a labor organization, both within the
meaning of the Act.
2. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
workers, foremen , office workers, watchmen , and truckdnvers.
24 See N.LR B v. Katz, et al., 369 U.S 736 (1962).
25 Although assembly had already been eliminated in May 1973, the
assembly employees were then merely transferred to other duties.
26 See Fiberboard Paper Products Corp v. N.L.R B., 379 U.S 203 (1964);
Ozark Trailers Incorporate4 161 NLRB 561 (1966); Van's Packing Plant,
211 NLRB 692 (1974).
PINE VALLEY DIVISION OF ETHAN ALLEN, INC. 221
All employees of Respondent's Asheville, North
Carolina, plant, excluding pallet manufacturing em-
ployees, clerical employees, supervisory workers, fore-
men, office workers, watchmen, and truckdrivers.
3. By withdrawing recognition and refusing to bargain
with the Union in that unit on and after June 29, 1973,
Respondent has violated Section 8(a)(5) and (1) of the Act.
4. By unilaterally changing the terms and conditions of
employment of the employees in the appropriate unit
found above, on and after June 29, 1973, as found in
section IV, supra, of this Decision, Respondent has violated
Section 8(a)(5) and (1) of the Act.
5. By its action of July 10,' 1973, in unilaterally
eliminating work from the instant appropriate collective-
bargaining unit and the jobs of certain employees who
were working in that unit on June 29, 1973, Respondent
violated Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Respondent did not engage in unfair labor practices
other than as found herein.
THE REMEDY
Having found that Respondent has violated Section
8(a)(5) and (1) of the Act, variously, by withdrawing
recognition from the Union, refusing to bargain about its
determination to eliminate certain unit work, refusing to
honor and abide by the collective-bargaming agreement
executed by its predecessor and the Union (even though
Respondent by its actions had already adopted that
agreement) and, finally, by making unilateral changes in
the wages, hours, and other terms and conditions of
employment of the employees in the appropriate unit of the
Asheville plant, I shall recommend that it cease and desist
therefrom. I shall further recommend that it honor and
abide by the instant-agreement for its term27 which will
require that it pay to all the employees who were in the
colllective-bargaining unit on June 29, 1973, the vacation
payments due them under the agreement.28 But my
recommendation that Respondent abide by this agreement
is made with the express understanding that Respondent
be ordered not to abandon or vary such benefits which it
may have given those employees whom it rehired at the
Asheville plant on and after July 10, 1973, where such
benefits exceed the contract's requirements.29 Since that
contract by its terms has expired upon notice of reopening
filed by the Union, I shall also recommend that Respon-
dent be ordered to bargain, upon request, with the Union
as the exclusive representative of all the employees in the
unit found appropriate herein and that such bargaining
include, but not be limited to, bargaining over the effects
on its employees of the termination of any of the
''r Eklund's Sweden House Inn, Inc., supra, N L.RB v. Burns Internation-
al Security Services, Inc, 406 U S 272, 291 (1972).
R8 In so directing, I find Respondent liable for such payments because it
has assumed Hardwood 's contract . I specifically do not reach or pass upon
the question whether Respondent is responsible for the debts of Hardwood
'9 Eklund's Sweden House Inn, Inc, supra.
Asheville's plant's operations which had been in effect
during the period May 14, 1973, to June 29, 1973.
While the General Counsel specifically does not seek
reconstitution of the instant terminated operations nor
reinstatement of all employees of the Asheville plant who
have not been rehired, he does request an order directing
the reinstatement of such employees to' existing unfilled
jobs at the Asheville plant or jobs now filled by new
employees not in the unit on June 29, 1973 (even if this
requires displacement of such new employees), and the
establishment of a preferential hiring list for any remaining
unrehired employees from the June 29, 1973, complement.
In making this request the General Counsel relies upon
Rushton & Mercier Woodworking Co., Inc., et al., 203
NLRB 123 (1973).
I reject this request. Rushton was a case involving, inter
alia, violations of Section 8(a)(3) of the Act which the
reinstatement order therein was designed to remedy. Here
no violations of Section 8(a)(3) have been alleged.
Moreover, in a recent case, a like remedy to that requested
by the General Counsel here was recommended by an
Administrative Law Judge to remedy violations of Section
8(a)(5) and (I) of the Act similar to those found herein, but
was rejected by the Board which instead issued an order
for a different remedy. Van's Packing Plant, supra.
I shall, accordingly, recommend, in addition to my
foregoing recommendations, an order with essentially the
same provisions as that directed by the Board in Van's.
This order will contain a limited backpay requirement
designed both to make whole the employees for losses
suffered as a result of the violations (the unilateral partial
elimination of operations and the failure to follow the
contract, particularly in regard to its seniority provisions
which deal with decrease in the employee complement)
and to recreate in some practicable manner a situation in
which the parties' bargaining position is not entirely devoid
of economic consequences for Respondent. Thus, Respon-
dent shall be required to pay all employees - not rehired
by it on July 10, 1973, but who had been in the collective-
bargaining unit on June 29, 1973,30 - backpay at the rate
of their normal wages as of June 29, 1973, from 5 days after
the issuance of this Decision until the occurrence of the
earliest of the following conditions: (1) the date the
Respondent bargains to agreement with the Union on
those subjects pertaining to the effects of the discontin-
uance of plant operations on these employees; (2) a bona
fide impasse in bargaining; (3) the failure of the Union to
request bargaining within 5 days of Respondent's notice of
its desire to bargain with the Union; or (4) the subsequent
failure 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 would have earned as wages from July 10,
1973 (the date on which Respondent offered to rehire old
employees as new hires and unilaterally failed to reopen
non-sawmill and non-rough mill plant operations in
existence during the period May 14 to June 29, 1973) to the
30 This group would, inter alga, include any employee who declined to
seek rehire as a new employee on July 10, 1973, inasmuch as rehire as a new -
employee was in direct contravention of the employee's contractual
semonty rights. This group will also include any employee rejected for
rehire where his rejection is shown to be contrary to any other seniority
provision of the contract.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time he 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 these employees
would have earned for a 2-week period, at the rate of their
normal wages when employed prior to June 29, 1973.
Finally, I shall recommend that Respondent be ordered
to post appropriate notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER31
The Respondent, Pine Valley Division of Ethan Allen,
Inc., Asheville, North Carolina, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of
employment, including the effects on its employees of the
termination of any of its operations, with Upholsterers'
International Union of North America, Local 336, AFL-
CIO, as the exclusive representative of its employees in the
following unit found to be appropriate for the purposes of
collective bargaining:
All employees of Respondent's Asheville, North
Carolina, plant, excluding pallet manufacturing em-
ployees, clerical employees, supervisory workers, fore-
men, office workers, watchmen, and truckdrivers.
(b) Unilaterally changing or canceling employees' wages,
hours, seniority, vacation benefits, or other terms and
conditions of their employment established by prior
agreement with their exclusive collective-bargaining repre-
sentative.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative of
31 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
all the employees in the aforementioned appropriate unit
with respect to rates of pay, wages, hours, and other terms
and conditions of employment, including the effects on its
employees of its termination of operations, and reduce to
writing any agreement reached as the result of such
bargaining.
(b) Honor and enforce the terms of the collective-
bargaming agreement with the Union effective from
November 1, 1972, to October 31, 1973, which Respondent
had assumed, including, inter alia, that agreement's
vacation benefits and seniority provisions; provided
however, that Respondent will continue in full force and
effect any improved benefits and emoluments which it may
have granted its employees during the period of its unfair
labor practices and the pendency of these proceedings.
(c) Pay all employees in the collective-bargaining unit on
June 29, 1973, who were not rehired on July 10, 1973, their
normal wages for the period set forth in "The Remedy"
section of the Administrative Law Judge's Decision herein.
(d) Preserve and, upon 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.
(e) Post at its Asheville, North Carolina, plant copies of
the attached notice marked "Appendix." 32 Copies of said
notice on forms provided by the Regional Director for
Region 11, after being duly signed by Respondent, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor
practices not found herein.
32 In the event that the Board's 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."