Moffitt Building Materials Co.

National Labor Relations Board - Board Decisions

Nov 5, 1974

214 N.L.R.B. 655 (N.L.R.B. 1974)

MOFFITT BUILDING MATERIALS CO.
Moffitt Building Materials Company and Lumber-
mans Wholesale Company and General Team and
Truck Drivers , Helpers and Warehousemen, Local
Union No . 90, affiliated with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America. Case 18-CA-4005
November 5, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On June 27, 1974, Administrative Law Judge Mau-
rice S. Bush issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, the Charging Party filed
exceptions, and Respondent filed cross-exceptions
and briefs in support thereof and in answer to the
General Counsel's and Charging Party's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, supporting briefs, and answering briefs, and
has decided to affirm the rulings,' findings, conclu-
sions,2 and recommendations of the Administrative
Law Judge only to the extent consistent herewith.
1. For the reasons stated in his Decision, we agree
with the Administrative Law Judge's finding that
Moffitt Building Materials Company and Lumber-
mans Wholesale Company constitute a single em-
ployer with a common crew of warehouse employees
serving both companies.
2. The Administrative Law Judge found the Re-
spondent in multiple violation of Section 8(a)(5) of
the Act.' We disagree as to each of these three find-
ings.
i We find no merit in Respondent 's contention that the Administrative
Law Judge's conduct of the hearing denied it due process, as it has not
shown that its substantive rights were prejudiced Spector Freight System,
Inc, 141 NLRB 1110 (1963)
Z We find no merit in the Charging Party's exception to the failure to
include Warehouse Leadman Jack Carnes as a discriminatee It is clear that
the complaint may not be so amended over the objection of the General
Counsel Sunbeam Plastics Corporation, 144 NLRB 1010, fn I (1963) Cf
Luxaire, Inc, 165 NLRB 54 (1967), enfd 393 F 2d 661, 664-665 (C.A D C,
1968)
3 In the absence of exceptions , we adopt pro forma the Administrative
Law Judge 's finding that Respondent bargained in good faith concerning
the effects of the discontinuance of Moffitt Building Materials Company,
despite its offer to consider negotiating severance pay for the discharged
warehouse employees "only on the condition that the Union 's unfair labor
practices charge (here under consideration under the allegations of the com-
plaint) be withdrawn " Accordingly , we shall dismiss that part of the com-
plaint alleging a refusal to bargain concerning the effects of the discontin-
uance
655
(a) The Administrative Law Judge's holding that
Respondent violated Section 8(a)(5) of the Act by its
"failure and refusal to cooperate with the Union in
seeking an ultimate resolution of the grievances of
Hockmuth and Allen over the loss of their jobs
through binding arbitration" is erroneous because
Respondent was under no contractual duty to arbi-
trate. In view of the fact that the collective-bargain-
ing agreement contained neither an arbitration nor a
no-strike clause, the Administrative Law Judge's
conclusion that a duty to arbitrate the issue of just
cause for discharges is inferable from the contract
itself is without basis in logic or law.
In addition, this finding must be reversed on the
further ground that this violation was neither alleged
in the complaint nor fully litigated at the hearing.
The complaint was specific in alleging a refusal to
bargain only "in that . . . Respondent did refuse and
is refusing to bargain with the Union concerning the
discontinuance of Moffitt Building Materials Com-
pany and the effects of the discontinuance on em-
ployees." The record reveals that at the hearing evi-
dence relating to the grievances was characterized
solely as background evidence by the Administrative
Law Judge and was so regarded by the General
Counsel and Respondent. Under these circum-
stances, we must conclude that the issue of whether
Respondent refused to bargain with the Union con-
cerning the grievances was not properly before the
Administrative Law Judge.
(b) The Administrative Law Judge's finding that
Respondent violated Section 8(a)(5) of the Act by
refusing to bargain with the Union for a new collec-
tive-bargaining agreement must be reversed for simi-
lar reasons. This violation also was not alleged in the
complaint. Nor does the record support the Adminis-
trative Law Judge's conclusion that the issue was
"tried by tacit consent of all parties."
(c) Finally, we find merit in Respondent's excep-
tion to the Administrative Law Judge's finding of a
refusal to bargain with the Union concerning the dis-
continuance of Moffitt Building Materials Company.
Although given prompt notice of the decision to li-
quidate the Company at the close of its fiscal year, at
no time did the Union request bargaining about the
decision itself. While the Union did request bargain-
ing concerning the effects of the discontinuance, we
have adopted the Administrative Law Judge's find-
ing that Respondent engaged in good-faith bargain-
ing with the Union on that subject. See footnote 3,
supra. Furthermore, in the circumstances of this case,
a finding of refusal to bargain concerning the change
in operations would not affect the scope of the reme-
dy. For these reasons, that part of the complaint al-
leging a refusal to bargain concerning the discontin-
214 NLRB No. 110
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
uance of Moffitt Building Materials Company will
be dismissed.
3. The Administrative Law Judge found that the
discharge, as of August 23, 1973, of five striking em-
ployees4 violated Section 8(a)(3) and (1) of the Act.
We agree. However, we do not agree with the Ad-
ministrative Law Judge's underlying rationale.
The Administrative Law Judge concluded that the
strike was caused by Respondent's failure to agree to
resolve the grievances through binding arbitration,
which failure was in violation of its collective-bar-
gaining duty under Section 8(a)(5). Accordingly, in
his view, the strike was apparently an unfair labor
practice strike and the replacement and discharge of
these unfair labor practice strikers was found to be
unlawful.
Our previous finding, supra, that Respondent's
failure to agree to arbitration as a means of resolving
the grievances did not violate Section 8(a)(5) leads us
to the conclusion that the strike, from the time it
began on August 1, 1973, was an economic, not an
unfair labor practice, strike. Therefore, the issue of
whether Respondent violated Section 8(a)(3) in dis-
charging the strikers turns on whether or not the re-
placements who had been hired shortly after the
strike began were temporary or permanent replace-
ments.
Respondent has not contended that the strikers
were permanently replaced. On the contrary,
Respondent's president, David Moffitt, testified at
the hearing,5 and Respondent argues strenuously in
its brief, that (1) none of the strikers were discharged
and (2) jobs were available for them until November
30, 1973,6 when Moffitt Building Materials Company
discontinued operations. Accordingly, Respondent's
argument and the testimony of its principal owner
regarding the availability of jobs establish that only
temporary, not permanent, replacements had been
hired during the period of the strike. In regard to the
discharge issue , the Administrative Law Judge's find-
ing that the strikers were in fact terminated as of
August 23, 1973, is amply supported by the evidence.
It is now well settled that a respondent's act of dis-
charging economic strikers prior to their permanent
replacement constitutes an unfair labor practice un-
4 These employees are Eugene R Brown, John H Gardner, John M
Lenihan, Jr, Neil E Mitchell, and Michael R Theis
5 Such testimony follows
Q [By Respondent 's attorney ] Regarding the warehousemen and the
people were picketing [sic], were there jobs for them until November
30, 1973?
A There were
6 It is not contested that since November 30, 1973, Lumbermans contin-
ued the warehouse operation with other employees
der Section 8(a)(3) and (1) of the Act.' In view of the
above findings, we conclude that the discharge of the
strikers in this case violated that section of the Act.
4. The Administrative Law Judge found and we
agree that Respondent violated Section 8(a)(1) of the
Act by threatening two employees' with criminal
prosecution because they had picketed and thereby
had caused Respondent's remaining warehouse em-
ployees concertedly to cease work and engage in a
strike.
We also agree that David Moffitt's telling the pick-
eting employees on approximately August 23, 1973,
that he was closing down Moffitt Building Materials
Company; that he hoped to do this at the end of its
fiscal year, November 30, 1973; and that all strikers
would shortly receive notice of their termination,
constituted a threat in violation of Section 8(a)(1).
However, we find merit in Respondent's exception
to the Administrative Law Judge's finding "that Re-
spondent discharged the same five warehouse em-
ployees for the foreseeable consequence of chilling
unionism among Respondent's remaining employees
in violation of Section 8(a)(1) of the Act." Although
not cited by him, the Administrative Law Judge ap-
parently was applying the doctrine of Textile Work-
ers Union v. Darlington Manufacturing Company, 380
U.S. 263 (1965). That approach is not applicable to
the circumstances of this case where the operation
which was "closed" (Respondent's common ware-
house) in fact continues, although possibly at a re-
duced level of activity.
REMEDY
Having found that Respondent violated Section
8(a)(1) and (3) of the Act, we shall order Respondent
to cease and desist therefrom and take certain affir-
mative action in order to effectuate the policies of the
Act.
Having also found that Respondent discriminato-
rily discharged five employees in violation of Section
8(a)(3) of the Act, we conclude that Respondent is
obligated to offer reinstatement to the discriminatees
despite the closing of Moffitt Building Materials
Company on November 30, 1973. Reinstatement by
Lumbermans is appropriate to remedy the unlawful
7 N L R B v Internationa l Van Lines, 409 U S 48 (1972)
8 We find no merit in Respondent 's contention that Hockmuth and Allen
were no longer "employees" at that time because they had resigned almost
2 months earlier We agree with the Administrative Law Judge's findings
that their "resignations" were involuntary and were therefore really dis-
charges , that under the collective -bargaining agreement a discharge did not
become final until it had been determined that it was with `just cause", and
that, at the time of the incident, the Respondent and the Union were in the
process of making that determination Thus , Hockmuth and Allen remained
"employees" within the meaning of Sec 2(3) of the Act, which defines that
term as including "any individual whose work has ceased in connection
with any current labor dispute
MOFFITT BUILDING MATERIALS CO.
discharges, in view of the facts that Moffitt and Lum-
bermans constitute a single employer and Lumber-
mans has continued to employ warehouse employees
performing the same work that had been performed
previously by the terminated employees. According-
ly, we shall order Respondent to offer them immedi-
ate and full reinstatement to their former fobs or, if
thosejobs no longer exist, to substantially equivalent
positions at Lumbermans Wholesale Company. If
employment is not available, Respondent shall place
them on a preferential hiring list and thereafter offer
them reemployment as such employment becomes
available and before other employees are hired for
such work. The Respondent shall also be required to
make whole the discriminatees for any losses they
may have suffered as a result of Respondent's failure
to reinstate them, beginning 5 days after their uncon-
ditional applications for reinstatement on December
5, 1973, and continuing until the discriminatees are
either offered employment or placed on a preferen-
tial hiring list by Respondent, or obtain substantially
equivalent fobs elsewhere, whichever occurs first.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Moffitt Building Materials Company and Lumber-
mans Wholesale Company, Des Moines, Iowa, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in General Team
and Truck Drivers, Helpers and Warehousemen, Lo-
cal Union No. 90, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organization
of its employees, by discharging or in any other man-
ner discriminating against employees in regard to
hire or tenure of employment or any term or condi-
tion of employment.
(b) Threatening any employees with retaliatory
action because they have picketed and thereby
caused other employees to engage in union and other
protected concerted activities in their behalf.
(c) Threatening employees with economic loss and
with discharge because of their union and other pro-
tected concerted activities.
(d) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Eugene R. Brown, John H. Gardner,
John M. Lenihan, Jr., Neil E. Mitchell, and Michael
657
R. Theis immediate and full reinstatement to their
former positions at Lumbermans Wholesale Compa-
ny or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights and privileges. If employ-
ment is not available, place them on a preferential
hiring list and thereafter offer them reemployment as
such employment becomes available and before
other employees are hired for such work and without
loss of seniority or other rights and privileges. Make
them whole for any loss of pay they may have suf-
fered by payment to them of a sum equal to that
which they would normally have earned, beginning 5
days after their unconditional applications for rein-
statement on December 5, 1973, and continuing until
the discriminatees are either offered employment or
placed on a preferential hiring list by Respondent, or
obtain substantially equivalent employment else-
where, whichever occurs first. Said backpay is to be
computed in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), to-
gether with interest thereon at the rate of 6 percent
per annum (Isis Plumbing & Heating Co., 138 NLRB
716 (1962) ).
(b) 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.
(c) Post at its warehouse in Des Moines, Iowa,
copies of the attached notice marked "Appendix." 9
Copies of said notice, on forms provided by the Re-
gional Director for Region 18, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent 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 to insure that said
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not
specifically found herein.
9In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX in Section 8(a)(3) of the Act, and as guaranteed in
Section 7 thereof.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
MOFFITT BUILDING MATE-
RIALS COMPANY AND LUM-
BERMANS WHOLESALE
COMPANY
WE WILL NOT discourage membership in Gen-
eral Team and Truck Drivers, Helpers and
Warehousemen, Local Union No. 90, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of Amer-
ica, or any other labor organization of our em-
ployees, by discharging or in any other manner
discriminating against employees in regard to
hire or tenure of employment or any terms or
conditions of employment.
WE WILL NOT threaten any employees with re-
taliatory action because they have picketed and
thereby caused other employees to engage in
union and other protected concerted activities in
their behalf.
WE WILL NOT threaten employees with eco-
nomic loss and with discharge because of their
union and other protected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of any rights guaranteed them by the
National Labor Relations Act.
WE WILL offer Eugene R. Brown, John H.
Gardner, John M. Lenihan, Jr., Neil E. Mitchell,
and Michael R. Theis immediate and full rein-
statement to their former jobs at Lumbermans
Wholesale Company or, if those jobs no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights
and privileges. If employment is not available,
WE WILL place them on a preferential hiring list
and thereafter offer them reemployment as such
employment becomes available and before other
employees are hired for such work and without
loss of seniority or other rights and privileges.
WE WILL pay them backpay, with interest at 6
percent, starting 5 days after their unconditional
applications for reinstatement and continuing
until they are offered employment or placed on
a preferential hiring list, or obtain substantially
equivalent employment elsewhere, whichever
occurs first.
All of our employees are free to become, remain,
or refrain from becoming or remaining, members of
the above-named or any other labor organization, ex-
cept to the extent that such right may be affected by
an agreement requiring membership in a labor orga-
nization as a condition of employment, as authorized
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH , Administrative Law Judge: On June 4,
1973, David Moffitt, president and principal owner of the
two above-named Respondent lumber companies, called
into his office Bob Hockmuth and Aries Allen, warehouse
employees in the common warehouse of the two compa-
nies. There, based on the reports of a city policeman hired
to work in his off duty hours in the warehouse as a private
undercover agent and in his presence, Moffitt accused
Hockmuth and Allen, individually and separately, of thefts
of building materials from the warehouse.
Moffitt then gave the two employees the choice of either
resigning without criminal prosecution for their alleged
thefts or of being prosecuted unless they resigned.
Faced with these alternatives, Hockmuth and Allen im-
mediately resigned their jobs. The next morning, having
second thoughts about their essentially forced resignations,
the two discharged employees, members of a unit repre-
sented by the above-named Union, filed grievances with
the Union concerning the events of the preceding day lead-
ing to the loss of their jobs.
The grievances being unresolved in the ensuing 7 weeks,
the Union, without notice or consultation with six other
employees in the unit, authorized Hockmuth and Allen to
start picketing on August 1, 1973. They commenced their
picketing at around noon that day. Although surprised by
the picketing, the other employees in the unit respected the
picketing sign , quit work, and joined the strike. All the
employees in the unit also joined the picket line except
Leadman Jack Carnes, a veteran employee of 19 years,
who joined the strike but did not participate in the picket-
ing.'
On August 24, 1973, Moffitt sent a "Notice of Separa-
tion" to striking warehouse employees Eugene R. Brown,
John H. Gardner, John M. Lenihan, Jr., Neil E. Mitchell,
and Michael R. Theis, together with a letter which stated
they had been terminated as of August 23, 1973, because of
a decision to liquidate Moffitt Building Materials Compa-
ny. These dischargees are the only striking employees for
In this preliminary summary of only the undisputed facts in the case to
make more meaningful the statement of the issues below , findings are defer-
red to a later section of this Decision on the disputed allegation of the
complaint that David Moffitt on August 1, 1973, threatened Hockmuth and
Allen with criminal prosecution for their alleged thefts of warehouse sup-
plies because they had caused other warehousemen to engage in union and
other protected activities in their behalf For similar reasons findings are
deferred on allegations of the complaint that Moffitt on August 21, 1973,
made threats to his warehouse employees to close down Moffitt Building
Materials Company and discharge them "because of their union and other
protected concerted activities "
MOFFITT BUILDING MATERIALS CO. 659
which the complaint seeks reinstatement to their former
jobs and backpay. The complaint does not seek reinstate-
ment for Hockmuth and Allen who quit their jobs on June
4 when confronted with charges of theft from the ware-
house. Similarly the complaint does not seek reinstatement
for the aforementioned Leadman Carnes.
As of the same date of August 24, 1973, Mr. Moffitt by
letter also notified the Union of the decision to liquidate
Moffitt Building Materials Company. The letter stated that
because of the decision to liquidate the Company "there
was no reason to continue bargaining" with the Union. On
August 28, Mr. Moffitt under the letterhead of Moffitt
Building Materials Company sent the Union notice of the
termination of its then current collective-bargaining agree-
ment as of its expiration date in view "of our intention to
get out of business."
The Union, however, throughout its communications
with Mr. Moffitt took the position that the work of the
involved members of the appropriate unit was still being
performed at Respondent's warehouse and accordingly
made a timely request on August 30, 1973, for renegotia-
tions of the current but soon to expire existing collective-
bargaining agreement.
On September 7, 1973, Mr. Moffitt by letter called the
attention of the Union to its earlier notice that the Moffitt
Building Materials Company was "going out of business"
and stated that under such circumstances "it makes no
sense to discuss a new contract covering employer and no
employees" but offered to meet with the Union "if you
wish."
As a result of these conflicting positions, no contract
negotiations to replace the then existing collective-bargain-
ing agreement have taken place between Respondent and
the Union.
On November 30, 1973, Moffitt Building Materials
Company, a retail lumber firm, ceased doing business as of
that date. However, Lumbermans Wholesale Company
continues to occupy the same place of business and ware-
house that it had formerly occupied jointly with Moffitt
Building Materials Company.
Not long after the discharge of the above-identified five
warehouse employees who had performed services indis-
criminately for both the retail and wholesale companies in
their common warehouse, Mr. Moffitt hired replacements
for some and eventually for all of these discharged employ-
ees to work for Lumbermans Wholesale Company. These
replacements do precisely the same work the discharged
employees had done.
On December 5, 1973, the five dischargees made an un-
conditional offer to return to their work as warehouse em-
ployees. The Respondent refuses to reinstate any of these
discharged employees.
Moffitt Building Materials Company, hereinafter re-
ferred to as Moffitt Retail, has at all times here material
been engaged exclusively in the retail sale of lumber and
other building materials. Lumbermans Wholesale Compa-
ny, hereinafter called Lumbermans Wholesale, has at all
times here involved been exclusively engaged in the whole-
sale sale of lumber and other building materials. Moffitt at
all times here material purchased all of its lumber and
building materials from Lumbermans Wholesale and was
Lumbermans Wholesale's principal customer. As hereto-
fore noted both companies have a common warehouse and
Mr. Moffitt is president and principal owner of both com-
panies.
Moffitt Retail has been under successive collective-bar-
gaining agreements with the Union for the past 25 years.
At the time Moffitt Retail discharged the aforementioned
five warehouse employees on August 23, 1973, it was under
a collective-bargaining agreement with the Union not
scheduled to expire until October 31, 1973.
Lumbermans Wholesale has never been under a collec-
tive-bargaining agreement with the Union or any other la-
bor organization.
As elucidated in broad outline by the above-conceded
facts, the issues herein under the pleading are: (1) whether
the two companies, Moffitt Retail and Lumbermans
Wholesale, referred to in the complaint jointly as the Re-
spondent, constitute a single integrated enterprise so as to
make all the warehouse employees of Moffitt Retail also
the warehouse employees of Lumbermans Wholesale; (2)
whether the warehouse employees here involved, who have
concededly performed duties as warehouse employees in-
discriminately for both companies in their common ware-
house, constitute a single appropriate bargaining unit rep-
resented by the Union; (3) whether on August 1, 1973, the
same warehouse employees ceased work concertedly and
went out on strike; (4) whether on August 1, 1973, David
Moffitt, president of the two Respondent companies, un-
lawfully threatened former employees, Bob Hockmuth and
Arles Allen, while they were picketing, with criminal prose-
cution for alleged thefts from the warehouse because they
had caused other warehouse employees to engage in pro-
tected concerted union activities on their behalf; (5) wheth-
er on August 21, 1973, David Moffitt threatened the ware-
house employees on the picket line with closure of Moffitt
Retail and with their discharge because of their union and
other protected concerted activities; (6) whether on August
24, 1973, David Moffitt unlawfully discharged warehouse
employees Eugene R. Brown, John H. Gardner, John Leni-
han, Jr., Neil E. Mitchell, and Michael R. Theis because
they had engaged in a strike against the two companies
named in the complaint as the Respondent; (7) whether
Lumbermans Wholesale continued to engage in the perfor-
mance of bargaining unit work after the business cessation
of Moffitt Retail on November 30, 1973; and (8) whether
the two companies named in the complaint as the Respon-
dent unlawfully failed and refused to bargain with the
Union concerning grievances arising under the contract,
concerning changes in Respondent's operations, and con-
cerning the effect of such changes upon the bargaining unit
employees.
Some of the above issues will be combined for purposes
of findings of fact and discussion below.
The complaint herein was issued on January 3, 1974,
pursuant to a charge filed on October 23, 1973, copies of
which were duly served on each of the above-named com-
panies. The separate answers of the two companies, named
in the complaint collectively as the Respondent, deny the
alleged unfair labor practices.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The case was heard on March 14 and 15, 1974, at Des
Moines, Iowa. The briefs filed by the parties on April 29,
1973, have been carefully reviewed and considered.
For reasons hereinafter indicated, I find the Respondent
in multiple violation of the Act as alleged in the complaint
except for the failure of proof on only one of such allega-
tions as hereinafter shown.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Moffitt Retail and Lumbermans Wholesale, both of
which are corporations under the laws of the State of Iowa,
have at all times here material maintained and occupied a
common principal place of business and warehouse at Des
Moines, Iowa, where they have been engaged in the retail
sale and wholesale sale of building materials, respectively.
During the past year, a representative penod, Moffitt
Retail in the course and conduct of its business operations,
had gross sales of goods and services valued in excess of
$500,000 and purchased goods valued in excess of $500,000
of which goods valued in excess of $50,000 was purchased
from points directly outside the State of Iowa.
Similarly, Lumbermans Wholesale during the past year,
a representative penod, in the course and conduct of its
business operations, purchased goods valued in excess of
$50,000 from points directly outside the State of Iowa.
It is admitted and found that both companies have at all
times here material been engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
At all times here material the two companies have had a
common crew of eight warehouse employees heretofore
identified by name. Although these employees are exclu-
sively on the payroll of Moffitt Retail, their work is divided
about equally between the two companies. Their work has
consisted (a) of unloading and stocking incoming mer-
chandise for both companies and (b) of filling orders for
both companies. They received their work instructions
from Leadman Carnes who indiscriminately directed work
for one or the other of the two companies as necessity
required during the course of the workday. The warehouse
employees were not required to keep an account of the
worktime spent for one or the other of the two companies.
Although Lumbermans Wholesale employs some over-the-
road truckdrivers who assist in loading and unloading
trucks, Lumbermans did not at any time here material
have a separate complement of warehouse employees, but
depended exclusively on the services of the same ware-
housemen who were on the payroll of the Moffitt Retail.
For many years Moffitt Retail has been Lumbermans
Wholesale's largest customer. Both companies operate on
an identical fiscal year basis. At the end of each fiscal year
the percentage of Lumbermans' sales to the total sales of
the two companies is computed. That percentage is then
applied to the total expense of the two companies for all
administrative, clerical, and warehouse labor expenses to
determine for bookkeeping purposes Lumbermans' share
of such total expense and for charging same to Lumber-
mans. Thus, for illustration as applicable to warehouse la-
bor expenses, if for any fiscal year, Lumbermans' sales
came to one-third of the total sales of the two companies,
Lumbermans would be charged one-third of the total ware-
house labor expense expended by Moffitt Retail for the
fiscal year for the common use of both companies.
II. THE LABOR ORGANIZATION INVOLVED
General Team and Truck Drivers, Helpers and Ware-
housemen, Local Union No. 90, affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, the Charging Party, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issue as to the Single Integrated Operations of the Two
Companies
At all times here material Moffitt Retail and Lumber-
mans Wholesale, although separate corporations, have had
common officers, stockholders, and directors. David Mof-
fitt is president and principal owner of the two corpora-
tions.
For many years the two companies have occupied and
shared the same principal office and warehouse in Des
Moines, Iowa, in a facility covering from 3 to 5 acres. Both
companies, as heretofore noted, are engaged in the lumber
or building material business, with Moffitt Retail doing
business as a retailer and Lumbermans Wholesale, doing
business as a wholesaler. The building material stocks of
the two companies are commingled, not segregated. When
the two companies receive identical purchase orders, they
are filled from the same pile or bin of building materials.
Conclusions
From the above evidentiary findings, based on the un-
disputed facts of record, I find and conclude that at all
times here material the warehouse employees on the pay-
roll of Moffitt Retail were also the warehouse employees of
Lumbermans Wholesale; that the two companies are affili-
ated businesses with common officers, ownership, direc-
tors, and operations; and that the two companies consti-
tute a single integrated business enterprise with a common
labor policy with respect to its warehouse employees.
These conclusions are self-evident from the findings. Cf.
Royal Typewriter Company, 209 NLRB 1006 (1974); Cal-
Sample Printers, Inc., 156 NLRB 543 (1965).
B. Issue as to the Appropriate Unit
The complaint alleges that all employees employed by
Moffitt Retail at its Des Moines, Iowa, facility, excluding
guards and supervisors, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
Although the separate answers of Moffitt Retail and
Lumbermans Wholesale deny the allegation, Respondent
in its brief does not list the appropriate unit herein as an
issue in the case and presents no argument thereon.
The record shows that Moffitt has been under successive
MOFFITT BUILDING MATERIALS CO.
collective-bargaining agreements with the Union for the
past 25 years. The current agreement here involved became
effective on November 1, 1972, and expired on October 31,
1973, and all the events alleged by the complaint to be
unfair labor practices took place within 3 months prior to
the expiration of the agreement.
Although the complaint alleges that "all" of the employ-
ees of Moffitt Retail constitute an appropriate unit, the
evidence shows that in fact the appropriate unit herein is
limited to the warehouse employees of Moffitt Retail de-
spite the fact that the recognition clause in the collective-
bargaining agreement states that , "The Employer recogniz-
es the Union as the exclusive bargaining agent for all em-
ployees."
It is evident from the collective -bargaining agreement
itself that the agreement was not intended to apply to "all"
of the employees of Moffitt Retail. This follows from arti-
cle 11 of the agreement which sets up minimum hourly
rates of pay for only, "Truck Drivers, Warehousemen,
Greasers, Tire Repairmen, Yard men, Plant Mixer Opera-
tors and Loading Equipment Operators." There is no refer-
ence in the agreement to the office or clerical employees of
Moffitt Retail.
It is also self-evident from the same article 11 of the
agreement that it is a shotgun contract intended to cover
manifold business enterprises, some of which are wholly
unrelated to the business of Moffitt Retail , such as cement
mixer companies who employ plant mixer operators. There
is no evidence in the case that Moffitt Retail employs any
greasers, tire repairmen, yardmen, or plant mixer opera-
tors.
The record here fails to show that there are any employ-
ees in the unit here under discussion other than warehouse-
men who also as required serve as local truckdrivers and
lift truck operators, but work primarily as warehousemen.
Accordingly, I find the only employees in the unit here
under consideration are warehouse employees.
Conclusions
As there is no evidence or claims to the contrary, I find
that the employees employed by Moffitt Retail as ware-
housemen constituted an appropriate unit for collective
bargaining within the meaning of Section 9(b) of the Act
excluding guards and supervisors.
In view of the above prior finding that Moffitt Retail
and Lumbermans Wholesale constitute a single integrated
business enterprise in which the warehouse employees of
Moffitt Retail are also the warehouse employees of Lum-
bermans Wholesale, I further find and conclude that the
warehouse employees of the two companies, named in the
complaint as a single Respondent , constitute a single ap-
propriate unit for purposes of collective bargaining WI Min
the meaning of Section 9(b) of the Act
I further find and conclude that the Union here involved
has been the exclusive bargaining representative of the sin-
gle appropriate unit of warehouse employees of the two
companies at all times here material
661
C. Issue as to Concerted Stoppage of Work and Strike on
August 1, 1973
As heretofore noted warehouse employees Bob Hock-
muth and Arles Allen resigned their employment with Re-
spondent on June 4, 1973, when they were threatened by
David Moffitt , president of the two affiliated retail and
wholesale lumber companies , with criminal prosecution for
alleged thefts of building materials from Respondent's
warehouse unless they resigned . From all the evidence
bearing on the circumstances of their resignation, I find
that they were panicked into resigning and that their termi-
nations were involuntary. At the date of the trial herein
some 9 months after their involuntary separation, no crimi-
nal charges have been lodged by David Moffitt or the Re-
spondent against Hockmuth and Allen for their alleged
thefts from Respondent 's warehouse . At the time of their
separation, Allen had some 17 years of employment and
Hockmuth, some 7 years of employment with Respondent.
Both had been members of the Union for years. Hockmuth
had been the union steward for 3-1/2 years before his sepa-
ration from Respondent.
Greatly distressed by the sudden loss of their long-term
jobs, both men filed grievances the very next day with the
Union over their discharges. Hockmuth in his grievance
stated that he "was forced to quit or be charged of giving
materials to customer and having a criminal record as a
result of the charge." Allen in his grievance simply stated
that he had been, "Forced to quit job."
Under a clause in the collective-bargaining agreement2
which provides that ". . . the Company shall not discharge
an employee without dust cause .. ," the Union on June
7, 1973, under the signature of its secretary-treasurer, Ed-
gar C. Hartzer, sent a notice to President David Moffitt
that he "was appealing the compulsory termination of Bob
Hockmuth and Arlis Allen," and requested a meeting to
discuss the terminations at the earliest possible date.
The requested meeting was held at the union offices on
June 10, 1973, to discuss the grievances of Hockmuth and
Allen under a further provision of the collective-bargaining
agreement which provides3 that "A discharged employee
may request an investigation as to his discharge, and
should such investigation disclose that an injustice has
been done, the employee shall be reinstated and compen-
sated at his usual rate of pay while he has been out of
work. Appeals from discharge must be taken within five (5)
days, by written notice, and a decision reached within ten
(10) days from such discharge." In attendance at the meet-
ing were the Union's secretary-treasurer, Hartzer, and the
grievants, Hockmuth and Allen, and David Moffitt and his
undercover agent Fred Snethen for the Respondent.
At the June 10 and subsequent meetings, Hartzer and
Moffitt were unable to reach an agreement as to whether
the Respondent had "just cause" for the discharge of
Hockmuth and Allen. In the absence of such agreement,
Hartzer urged binding arbitration on the question. There is
a conflict of testimony as to whether Moffitt agreed to such
arbitration, with Hartzer testifying that Moffitt agreed to
2 Joint Exh 1, art 2(1)
3 Joint Exh 1, art 2(2)
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the arbitration and Moffitt testifying that he did not. At
any rate the record is clear through the credited testimony
of undercover agent Snethen that Hartzer told Moffitt that
"if he didn't arbitrate, they [Union] would place pickets."
As Moffitt for some 7 weeks after the discharges of
Hockmuth and Allen still declined to submit the alleged
"just cause" of their discharges to binding arbitration al-
though the collective -bargaining agreement calls for the
settlement of such disputes within 10 days from the date of
the discharge, the Union on August 1, 1973, authorized
Hockmuth and Allen to commence picketing Respondent's
place of business on that day.
Hockmuth and Allen, pursuant to their authorization,
commenced their picketing on August 1, 1973, at around
noontime. Within minutes of observing the picket line, the
remaining warehouse employees heretofore named quit
working, joined the picket line, and engaged in the strike.
Discussion and Conclusions
From the evidence of record as set forth above ,5 I find
and conclude that the Respondent caused the strike which
commenced on August 1, 1973, by its failure to deal with
the Union to resolve the grievances of Hockmuth and Al-
len over their discharges , either for or against them,
through binding arbitration and that this failure to deal
with the Union was a serious breach of Respondent's col-
lective-bargaining duty.
I further find and conclude that the heretofore identified
warehouse employees who joined Hockmuth and Allen on
the picket line ceased work concertedly and went on strike
commencing August 1 , 1973, in support of the efforts of
Hockmuth and Allen to get their grievances over their dis-
charges resolved.6
Although the collective -bargaining agreement does not have a specific
provision for binding arbitration on the question of just cause for dis-
charges , it is obvious that in the absence of any agreement between the
Union and the Employer on the merits of a discharge , the only method for
the resolution of whether there isjust cause for a discharge is binding arbi-
tration I find and conclude that this is inferable from the collective-bar-
gaining agreement itself
5 The findings of fact set forth above are based on the credited and essen-
tially undisputed testimony of all the witnesses in the case and the inferenc-
es therefrom and upon the terms of the collective-bargaining agreement and
inferences therefrom
6 In connection with the above finding, the credited testimony of John M
Lenihan , Jr, one of the sinking warehouse employees , shows the following
Q (By counsel for General Counsel ) Do you know whether or not
these individuals [ Hockmuth and Allen] filed a grievance"
A Yes, sir, they did
D. Issue as to Threats of Criminal Prosecution by David
Moffitt to Hockmuth and Allen while on the Picket Line
The complaint alleges that on or about August 1, 1973,
outside of Respondent's facility in Des Moines "David
Moffitt, in the presence of Respondent's employees, threat-
ened two employees whom Respondent had discharged
with criminal prosecution because other employees of Re-
spondent had engaged in union and protected concerted
activities on their behalf."
The record shows that the "two employees" referred to
in the above allegation were the aforementioned employees
Hockmuth and Allen who had "resigned" on June 4, 1973,
under threats of criminal prosecution for alleged thefts
from Respondent's warehouse.
The record is undisputed that an incident took place on
the picket line on August 1, 1973, between Hockmuth and
David Moffitt, president of Moffitt Retail and Lumber-
mans Wholesale, about a half-hour after Hockmuth and
Allen had started picketing Respondent's place of business
pursuant to authorization of the Union.
The record is also undisputed that in that incident Mof-
fitt walked up to Hockmuth on the picket line and said to
him, "Now I know I am going to file criminal charges
against you." It is clear from the record that this threat of
criminal charges was a reference to the earlier threatened
criminal charges for alleged thefts by Hockmuth and Allen
from Respondent's warehouse which caused Hockmuth
and Allen to lose their jobs with Respondent on June 4,
1973.
At the time Moffitt made the above statement to Hock-
muth, Allen, who did not testify in this proceeding, was
about 2 feet away on the picket line. I find that the threat
was directed against Allen as well as Hockmuth.
The above findings are based on the fully credited and
undenied testimony of Hockmuth. It is not clear from
Hockmuth's testimony whether there were any other ware-
house employees on the picket line other than Allen at the
time that Moffitt made the above threat to Hockmuth and
Allen, but as it is undisputed that the incident took place
about a half an hour after Hockmuth and Allen started
picketing, and that the remaining warehouse employees
stopped working the moment they saw the picketing, I in-
fer and find that at the time Moffitt made the above threat
to Hockmuth and Allen the remaining warehousemen at
Respondent's warehouse had ceased work and engaged in
a concerted work stoppage and strike.7
Discussion and Conclusions
Q As a result of that grievance, did picketing take place at the place
of your employment"
A Yes, sir, it did
Q When did that picketing start"
A August I, 1973
r Respondent in its brief admits that , " in any event , shortly after Hock-
muth and Allen arrived with their picket signs, other MBM employees
walked off of their jobs and joined the picketing which continued until late
November or early December 1973 "
From the above evidentiary findings, I find and con-
clude that the Respondent, by the acts and conduct of its
agent David Moffitt in threatening Hockmuth and Allen
with criminal prosecution for alleged thefts because they
had caused Respondent's remaining warehouse employees
to concertedly cease work and engage in a strike in support
of the unresolved grievances of Hockmuth and Allen over
MOFFITT BUILDING MATERIALS CO.
the loss of their jobs, has interfered with , restrained, and
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act. By reason of such unlawful conduct I
find Respondent in violation of Section 8(a)(1) of the Act.
E. Issue as to Threats by Moffitt to Close Business of
Moffitt Retail and to Discharge its Employees
The complaint alleges that David Moffitt "threatened to
close down Moffitt Building Materials Company and dis-
charge all of the employees of Moffitt Building Materials
Company because of their union and other protected con-
certed activities." The complaint further alleges that Re-
spondent on August 24, 1973, discharged aforementioned
warehouse employees Brown, Gardner, Lenihan, Mitchell,
and Theis because they engaged in a strike against Respon-
dent.
The undisputed record shows that on some date between
August 18 and 23, 1973, but not later than August 23, Da-
vid Moffitt approached the picket line and there, address-
ing his picketing warehouse employees with abusive lan-
guage, informed them that he would be closing down Mof-
fitt Retail at the end of its fiscal year on November 30,
1973. More specifically, Hockmuth in his testimony quoted
Moffitt as saying, "I've made up my mind, we'll close the
books on this company. Probably [in] a week you'll be get-
ting a letter notifying you're all terminated." Similarly
Moffitt in his testimony admitted using "profanity at the
curbing at that time." He also admitted that he "informed
them [the picketers] that every effort was going to be made
to close down the operation of the company [Moffitt Re-
tail] by the end of our fiscal year "
Moffitt told his picketing employees that he had come to
the decision to liquidate Moffitt Retail because of the
threatening telephone calls his family had been receiving
from unidentified and seemingly union sources. Moffitt's
own testimony, however, shows, "denial came up immedi-
ately" from the employees on the picket line that they had
anything to do with the threatening telephone calls Moffitt
said his family was receiving from union sources. In his
testimony Moffitt never claimed that the threatening tele-
phone calls had come from any of his striking warehouse
employees.
In the presentation of Respondent's case in chief the first
testimony of such threatening telephone calls came from
Mr. Moffitt's wife, Susan Ann Moffitt. She testified that on
the afternoon of August 23, 1973, she received a telephone
call from a man who said to her, "If your husband doesn't
get us back to work, there is going to be big trouble." Mrs.
Moffitt admits that she did not recognize the voice of the
caller and that she could not identify him. She also testified
that their 12-year old daughter, Kelley, also received a
threatening telephone call earlier that day Kelley testified
after her mother had testified. Her testimony shows that on
the morning of the same day of August 23, 1973, she re-
ceived a telephone call from someone who asked if this was
the residence of David C. Moffitt and that upon answering
"Yes, it is," the voice said to her, "If we don't get back to
work down there, there is going to be trouble." Mrs. Mof-
fitt and Kelley, frightened by the calls, reported them to
Mr. Moffitt. Called to testify after his wife and daughter
663
had testified, David Moffitt testified that these threatening
telephone calls greatly disturbed him because they were
directed to members of his family but admitted when asked
by his counsel that he had no knowledge of the identity of
the callers
From the record as a whole I find that there is no evi-
dence that links in any way the single threatening tele-
phone call received by Moffitt's wife and the single similar
call received by his daughter to any of Respondent's strik-
ing warehouse employees.
The record also contains testimony by two long term
salesmen of Respondent, Richard Bruce and Charles Proc-
tor, that they received similar threatening telephone calls
from unidentified persons which they reported to David
Moffitt. Another witness, Maurice Guy, one of
Respondent's roofing material customers, testified that
some of his drivers had reported to him that Respondent's
picketing employees were keeping track of them and had
indicated that they would cause them trouble in the future
after the strike was over in "picking out materials." Guy
further testified that one of the picketers, the aforemen-
tioned Allen, on August 7, 1973, had threatened to place a
picket at Guy's place of business but admitted that this was
never done.
Moffitt testified that it was these incidents that led him
on the aforementioned date of August 23 to tell his striking
employees on the picket line that he would close down
Moffitt Retail on November 30, 1973, but would discharge
within the week the warehouse employees who had joined
Hockmuth and Allen in the strike. The very next day, Au-
gust 24, Moffitt sent a "Notice of Termination" to each of
the striking employees named in the complaint as alleged
discriminatees, to wit, Brown, Gardner, Lenihan, Mitchell,
and Theis,' together with a letter of the same date, stating
that "A decision has been made to liquidate Moffitt Build-
ing Material Co."
Thus, although the evidence shows that Moffitt Retail
remained in business at least until November 30, 1973, and
accordingly had need for warehouse laborers to perform
the duties heretofore described, the five warehouse employ-
ees here involved were discharged some 3 months before
Moffitt Retail ceased doing business. The record is likewise
undisputed that Lumbermans Wholesale during that same
period and beyond also had need for warehouse employ-
ees.
Evidence of the continued need of Respondent as a sin-
gle integrated business enterprise for warehouse laborers is
reflected in an ad Respondent placed in the August 13,
1973, issue of the Des Moines Tribune, a newspaper of
general circulation, under the name of Lumbermans
Wholesale which takes note of the "Labor dispute current-
ly in effect." The full text of the ad reads, "Warehouse and
delivery, two or three employees needed. Heavy work, ex-
cellent working conditions, wages. Labor dispute currently
8It is again noted that the complaint seeks reinstatement with backpay
only for the five above-named warehouse employees The complaint does
not seek reinstatement for warehouse Leadman Carnes, a long term employ-
ee of 19 years of service, who also engaged in the strike but did not partici-
pate in the picketing Likewise the complaint does not seek reinstatement
for warehousemen Hockmuth and Allen who lost their jobs under accusa-
tions of thefts of building materials from Respondent's warehouse
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in effect. Call for interview 288-8964, Lumbermans Whole-
sale Company, 621 Southwest Seventh Street."
The above ad appeared in the Des Moines Tribune a full
10 days before the above-noted anonymous threatening
telephone calls to David Moffitt's 12-year old daughter
and his wife which Moffitt in his testimony assigned as the
principal reasons for his decision to close down Moffitt
Retail and to discharge the warehouse employees on its
payroll.
The record shows that from about the time the strike
began on August 1, 1973, or shortly thereafter, Respondent
began to hire replacements for the striking employees here-
in involved who were discharged on August 24, 1973. This
is evident from Moffitt's own testimony which reads as
follows:
JUDGE BUSH: You have hired replacement employees
for Eugene Brown, John Gardner, John Lenihan, and
Neal Mitchell, and Michael Theis, have you not?
THE WITNESS. No, sir, I have not hired five other
men to replace those five men.
JUDGE BUSH : How many men have you hired to re-
place these five?
THE WITNESS: It has varied over the months since
the strike started. Today there are replacement employ-
ees. [Emphasis supplied.]
From the above evidentiary facts, I find and conclude as
self-evident that Lumbermans Wholesale continued to en-
gage in the performance of the bargaining unit work here-
tofore described after the business cessation of Moffitt Re-
tail on November 30, 1973.9
It is again noted that on December 5, 1973, the five
above-named dischargees made an unconditional offer to
Respondent to return to their work as warehouse employ-
ees. The offer was made through the Union's attorney at
an unemployment compensation hearing before the Iowa
Employment Security Commission. In addition at least
three of the five dischargees went to Respondent's ware-
house in person on or about December 6 and submitted to
David Moffitt as president of both Moffitt Retail and
Lumbermans Wholesale individual written unconditional
offers to return to work.
Notwithstanding these offers to return to their jobs, Re-
spondent has at all times refused to reinstate any of the
said five dischargees.
Discussion and Conclusions
The above findings show, and the Respondent through
its agent David Moffitt admits, that Respondent as of Au-
gust 23, 1973, threatened the five striking warehouse em-
ployees, here involved as alleged discriminatees, with the
closure of Moffitt Retail and with their discharge. Similarly
it is admitted that the same five employees were discharged
9 The above findings of fact and conclusions therefrom also dispose of
as of August 24, 1973, and that Moffitt Retail ceased doing
business as of November 30, 1973.
Under these facts the issue here is whether the Respon-
dent had legitimate and lawful cause to make the above-
described threats and to actually carry them out.
One of Respondent's two asserted defenses and justifica-
tions for its acts and conduct are the anonymous threaten-
ing telephone calls received by David Moffitt's wife and
12-year old daughter and similar anonymous calls to two
of Respondent's salesmen, together with a complaint from
Respondent's customer Maurice Guy that he and some of
his drivers had been threatened by the picketing employees
with future retaliatory action for crossing the picket lme,10
The only picketing employee Guy could identify as making
such a threat was Allen for whom the complaint does not
seek reinstatement.
As there is no showing in the record that any of the five
striking employees for whom the complaint seeks reinstate-
ment had anything to do with the threatening telephone
calls received by Moffitt's wife and daughter or with any
other misconduct, I find that such misconduct by persons
other than the striking employees here involved does not
constitute lawful justification for the discharge of the in-
volved striking employees.
I further find and conclude that Respondent's use of
such acts of misconduct by persons other than the five
striking employees for the discharge of such employees
were pretextual excuses to disguise the real reason for their
discharge. From all the evidence of record I find that the
genuine reason for their discharge was their engagement in
a concerted work stoppage and strike as alleged in the
complaint.
Respondent's other defense for the discharge of the five
striking warehouse employees is that their services as ware-
house laborers were no longer needed with the closing
down of the operations of Moffitt Retail. The first difficul-
ty with this defense is that the involved dischargees were
discharged on August 24 whereas Moffitt Retail continued
to operate until the end of its fiscal year on November 30,
1973. It is thus obvious that in that 3-month interval Mof-
fitt Retail could not and did not operate without at least
some warehouse employees as the work of such warehouse
laborers is essential to the operation of its business.
But the more basic defect of Respondent's defense that it
could lawfully dispense with the services of the involved
warehousemen on the payroll of Moffitt Retail because
with the closing of that company their services were no
longer needed flies in the face of the undisputed fact that
the discharged warehousemen worked indiscriminately for
both Moffitt Retail and Lumbermans Wholesale whose
joint and combined operations were found above to be that
of single integrated enterprise named in the complaint as
the Respondent herein. As shown and found above the
warehouse employees here involved constitute a single bar-
gaining unit for both companies. The record shows that the
work of that bargaining unit was never abolished or done
away with with the closing of Moffitt Retail but continued
one of the issues set forth in the summaries of the issues set forth in the 10 Respondent at p 13 of its brief states, "As a result of the above de-
forepart of this Decision, to wit, whether Lumbermans Wholesale continued scribed incidents [as summarized above by the Administrative Law Judge],
to engage in the performance of bargaining unit work after the business David Moffitt decided to close MBM [Moffitt Retail] effective November
cessation of Moffitt Retail on November 30, 1973 30, 1973, the end of its fiscal year"
MOFFITT BUILDING MATERIALS CO.
unabatedly for the remaining affiliated Lumbermans
Wholesale, the other arm of the Respondent, after Moffitt
Retail ceased doing business . David Moffitt admitted that
he made replacements of the discharged employees after the
closure of Moffitt Retail. The record further shows that
such replacements were made even before the closing
down of Moffitt Retail on November 30, 1973.
I accordingly find that Respondent's second defense or
justification for the discharge of the involved five ware-
housemen in the unit is also spurious and that the real
reason for their discharge, as under the first defense was
their engagement in concerted activities and a strike in be-
half of Hockmuth and Allen over their still pending griev-
ances on the loss of their unit jobs.
For these reasons I find and conclude that the discharge
of the five employees here involved are in violation of Sec-
tion 8(a)(1) and (3) of the Act.
I further find and conclude that Respondent discharged
the same five warehouse employees for the foreseeable
consequence of chilling unionism among Respondent's re-
maining employees in violation of Section 8(a)(1) of the
Act.
Finally I find and conclude that Respondent's threat
through its agent David Moffitt to Hockmuth and Allen of
criminal prosecution because they had caused other em-
ployees of Respondent to engage in union and protected
concerted activities on their behalf and Respondent's
threat through Moffitt to the striking employees on the
picket line to close down Moffitt Retail and to discharge
them because of their union and other protected concerted
activities are acts in violation of Section 8(a)(1) of the Act.
F. Issues as to Respondent's Refusals to Bargain
The last issue under the pleadings is whether Respon-
dent unlawfully failed and refused to bargain with the
Union (a) concerning grievances arising under the con-
tract, (b) concerning changes in Respondent's operations,
and (c) concerning the effect of such changes upon the
bargaining unit in violation of Section 8(a)(5) of the Act. 11
Finally there is an additional issue not covered by the
pleadings but teed by tacit consent of all parties. That
issue is on the question of whether the Respondent in vio-
lation of Section 8(a)(5) of the Act refused to enter into
negotiations with the Union for a new collective-bargain-
ing agreement covering the subjects of wages and working
conditions.12 Dealing with this issue first, the record shows
that the Respondent at all times here pertinent had an ex-
isting collective-bargaining agreement with the Union with
an October 31, 1973, expiration date.
On August 24, 1973, Moffitt Retail served a notice on
11 See pars 17 and 18 of the complaint and their references to other
paragraphs of the complaint It is noted that par 19 of the complaint raises
an issue as to whether Respondent in violation of Section 8(a)(5) of the Act
refused to bargain with the Union on the grievances of Hockmuth and
Allen over the loss of their jobs The briefs of both parties appear to be
devoid of any discussion of that issue, although the brief of General Counsel
shows it to be one of the issues in the case Respondent's brief does not
show it as an issue in the case
12 The briefs of the parties are similarly devoid of anN treatment of this
issue
665
the Union that it saw "no reason to continue bargaining"
because of a decision it had made to liquidate Moffitt Re-
tail. The letter under the signature of David Moffitt further
informed the Union that, ". . . effective this date, I intend
on making every effort to close the books and operations
of this company." As heretofore shown Moffitt Retail by
its own admissions did not in fact "close the books and
operations of this company" until November 30, 1973. 1
find this letter by Moffitt to be a refusal to bargain with the
Union for a new contract.
On August 28, 1973, Moffitt Retail sent the Union a
more definite and timely "notice of termination" of its col-
lective-bargaining agreement with the Union as of its Octo-
ber 31, 1973, expiration date because of "its intention to go
out of business." I find this letter like the first a refusal to
bargain with the Union on a new contract.
Ignoring the above notice, Edgar Hartzer, secretary-trea-
surer of the Union, on August 30, 1973, sent a timely stan-
dard reopening notice to Moffitt as president of Moffitt
Retail that the Union "does hereby open" the existing col-
lective-bargaining agreement in accordance with the terms
and conditions of the contract for the purpose of negotiat-
ing changes or revisions in the contract covering wages and
general working conditions. In his testimony Hartzer stat-
ed that he ignored Moffitt's notice that a decision had been
made to liquidate Moffitt Retail because he was not con-
vinced the Company "went out of business" and, more-
over, believed that "they dust changed shirts."
Responding to Hartzer's standard reopening notice,
Moffitt by letter dated September 7, 1973, called Hartzer's
attention to his earlier notice of August 28 that Moffitt
Retail was "going out of business" and stated that "it
makes no sense to discuss a new contract covering no em-
ployer and no employees" but offered to meet with him "if
you wish."
I find Moffitt's letter of September 7 to the Union to be
a continued refusal to bargain with the Union for a new
contract I further find that the Respondent has at all times
here pertinent refused to enter into negotiations with the
Union for a new contract.
As the earlier findings above show that Respondent's
business operations under the aegises of Moffitt Retail and
Lumbermans Wholesale have at all times here material
constituted a single integrated business enterprise with a
common bargaining unit of warehouse employees serving
both companies and that after Moffitt Retail ceased opera-
tions there has been an unbroken continuation of the same
bargaining unit work for the surviving Lumbermans
Wholesale, I find and conclude that Respondent's failure
and refusal to bargain with the Union for a new contract
covering wages and general working conditions is in viola-
tion of Section 8(a)(5) of the Act.
Turning now to the issue of whether the Respondent
unlawfully failed and refused to bargain with the Union
concerning changes in Respondent's operations, and con-
cerning the effect of such changes upon the bargaining unit
in violation of Section 8(a)(5) of the Act, the record shows
that Paul L. Neal, the Union's assistant business agent, on
December 28, 1973, sent a letter jointly addressed to Mof-
fitt Retail and Lumbermans Wholesale, for the attention of
David Moffitt as President, which reads as follows'
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We hereby request that you contact the undersigned
as soon as possible and make arrangements to meet
and negotiate concerning wages, hours and working
conditions of employees and any impact which your
change of operations might have on the employees.
I find that Neal's letter was in part a renewed request for
negotiations on a new collective-bargaining agreement to
replace the agreement that had expired on October 31,
1973, and that in part it was the Union's first request for
negotiations on "any impact which your change of opera-
tions might have on the employees."
Responding to Neal's letter, David Moffitt by letter dat-
ed January 8, 1974 , again in effect declined entering into
any negotiations on a new collective-bargaining agreement
to replace the expired agreement on the ground that Mof-
fitt Retail had been liquidated on November 30, 1973,
"and is no longer doing business ," but agreed to meet with
Neal "concerning the effects of said liquidation upon for-
mer employees" of Moffitt Retail and suggested a meeting
thereon on January 11, 1974, in Des Moines, at the law
offices of attorneys Swanger and Rogers who represented
the Respondent at the trial of the present proceeding.
The meeting took place at the indicated date and place.
Neal was unable to attend the meeting because his car
broke down, but arranged to have Robert E. Conley, the
attorney for the Union, represent the Union at the meeting.
Hartzer, the Union's secretary-treasurer, did not attend the
meeting because he was in Florida attending an annual
union convention. Both Attorney Swanger and David
Moffitt were at the meeting for the Respondent.
The only testimony of record as to what discussion took
place at the meeting is that of David Moffitt. From
Moffitt's testimony under cross-examination, I find that
most of the discussion related to Conley's insistence that
the Respondent reinstate at least some of the warehouse
employees who had been discharged on the ground that
their work was still going on at the warehouse. Swanger
rejected that request on the ground that Moffitt Retail had
gone out of business. When the meeting got around to the
discussion of severance pay for the involved discharged
warehouse employees, Swanger offered to consider negoti-
ating severance pay for such employees but only on the
condition that the Union's unfair labor practices charge
(here under consideration under the allegations of the com-
plaint) be withdrawn.
No agreement was reached at the meeting on severance
pay for the involved dischargees. The meeting broke up
with Conley's agreement to take up Swanger's conditional
offer of severance pay with union officials. No further bar-
gaining meetings were held by the Union and the Respon-
dent "concerning the discontinuance of Moffitt Building
Materials Company and the effects of the discontinuance
on employees" in the language of the complaint, presum-
ably because of the Union's decision not to withdraw the
unfair labor charges which has resulted in the trial herein.
From the above I find and conclude that Respondent
did meet and bargain with the Union pursuant to the
Union's request "concerning. . the effects of the discon-
tinuance [of Moffitt Retail] on employees," contrary to the
allegation on the complaint that Respondent refused to en-
gage in such bargaining. The fact that Respondent through
its attorney offered to negotiate severance pay for the dis-
charged warehouse employees subject to the condition that
the Union drop its unfair labor practices charge does not
make the bargaining that took place on January 11, 1974,
bad-faith bargaining . Swanger's conditional offer was the
sort of offer that virtually all lawyers would make under
the same circumstances . I find that under all the circum-
stances of the case the Respondent engaged in good-faith
bargaining with the Union at the meeting of January 11,
1974, on the subject of the effects of the discontinuance of
Moffitt Retail on the employees. Accordingly, I find and
conclude that there is failure of proof on the allegation of
the complaint that the Respondent refused "to bargain
with the Union concerning the . . . effects of the discontin-
uance on employees."
The remaining issue under this section is whether the
Respondent failed and refused to bargain with the Union
concerning grievances arising under the collective-bargain-
ing agreement in violation of Section 8(a)(5) of the Act.
The reference here is to the unresolved grievances filed
by Hockmuth and Allen with the Union over the loss of
their jobs as warehouse employees in Respondent's ware-
house under accusations of thefts from the warehouse. The
facts concerning their separation from their jobs and the
grievances they filed with the Union thereon have been
fully set forth in a prior section of this Decision entitled
"C. Issue as to Concerted Stoppage of Work and Strike on
August 1, 1973."
Summarized, these facts show that Hockmuth and Allen
on June 4, 1973, involuntarily resigned from their jobs in
Respondent's warehouse under threats of criminal prose-
cution for thefts from the warehouse if they did not resign.
The next day, June 5, they filed grievances with the Union
that they were forced to resign under accusations of ware-
house thefts. On June 7, the Union wrote David Moffitt
that it was "appealing the compulsory termination of Bob
Hockmuth and Arlis F. Allen." At a meeting held on June
10 and in subsequent meetings Hartzer, the Union's secre-
tary-treasurer, and Moffitt were unable to agree on wheth-
er "just cause" as provided in the collective-bargaining
agreement was shown for the discharge of Hockmuth and
Allen. Under this stalemate, Hartzer urged submitting the
"just cause" of the discharge of the two employees to bind-
ing arbitration. Moffitt refused to submit the matter to ar-
bitration. Although there is no express provision in the col-
lective-bargaining agreement for arbitration, I infer and
find as heretofore noted that the duty to arbitrate "just
cause" for a discharge where the Union and the Employer
are unable to agree thereon, is inferable from the agree-
ment. As heretofore shown, David Moffitt's failure to
agree to arbitration on the just cause for the discharge of
the two employees resulted in the strike of his warehouse
employees on August 1, 1973.
I find and conclude that Respondent's failure and refus-
al to cooperate with the Union in seeking an ultimate reso-
lution of the grievances of Hockmuth and Allen over the
MOFFITT BUILDING MATERIALS CO.
loss of their jobs through binding arbitration constitutes a
failure and refusal to bargain over such grievances in viola-
tion of Section 8(a)(5) of the Act.
Summarized Conclusions
For the reasons stated above, I find and conclude in
summary that Respondent is in violation of Section 8(a)(1)
of the Act by reason of its failure and refusal to bargain
with the Union (a) concerning grievances arising under its
then existing collective -bargaining agreement and (b) con-
cerning changes in Respondent's operations , but find that
there is a failure of proof on that part of the allegation of
the complaint here under consideration which alleges that
Respondent also refused to bargain with the Union con-
cerning ". . . the effects of the discontinuance [of Moffitt
Retail ] on the employees ." Accordingly that part of the
allegation is recommended for dismissal.
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. Moffitt Building Materials Company and Lumber-
mans Wholesale Company are employers engaged in com-
merce within the meaning of Section 2(6) of the Act.
2. Moffitt Building Materials Company and Lumber-
mans Wholesale Company , hereinafter called Respondent,
have been at all times here material affiliated businesses
with common officers , ownership, directors , and operators,
and constitute a single integrated business enterprise whose
directors and operators formulate and administer a com-
mon labor policy for the above-named companies affecting
the employees of said companies.
3. All warehouse employees of Respondent employed at
its facility at Des Moines, Iowa , excluding guards and su-
pervisors as defined in the Act, constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
4. At all times here material the above-named Union
667
has been the representative for purposes of collective bar-
gaining of the employees in the above-described appropri-
ate unit.
5. By interfering with, restraining , and coercing its em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. By discharging Eugene R. Brown , John H. Gardner,
John M. Lenihan, Jr., Neil E. Mitchell, and Michael R.
Theis because of their concerted work stoppage and strike,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act.
7. By refusing to bargain with the Union for a new col-
lective-bargaining agreement to replace the expiring old
agreement Respondent has engaged in unfair labor practic-
es within the meaning of Section 8(a)(5) and (1) of the Act.
8. By refusing to bargain with the Union concerning the
discontinuance of Moffitt Building Materials Company
and concerning the grievances of Bob Hockmuth and Arles
Allen over their discharges , Respondent has engaged in
further unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action of the type
which is conventionally ordered in such cases as provided
in the recommended Order below, which I find necessary
to remedy and to remove the effects of the unfair labor
practices and to effectuate the policies of the Act . Because
of the character and scope of the unfair labor practices
found, I shall recommend a broad cease and desist order.13
[Recommended Order omitted from publication.]
13 N L.R B v Express Publishing Company, 312 U S 426 (1941), N L R B
v Entwistle Mfg Co, 120 F 2d 532 (C.A 4, 1941), Consolidated Industries,
Inc, 108 NLRB 60 (1954), and cases therein