Ohio Hoist and Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 28, 1954

108 N.L.R.B. 561 (N.L.R.B. 1954)

OHIO HOIST & MFG. CO., INC. 561
priately included in the same unit with the employees in voting
group jd) and their votes will' be pooled with those in voting
group (d).k4 The Regional Director conducting the elections is
instructed to issue a certification of representatives to the labor
organization selected by a majority • of the employees in the
pooled group , which the Board in such circumstances finds to
be a single unit appropriate for purposes of collective bar-
gaining.
(Text of Direction of Elections" omitted from publication.]
Member Beeson took no part in the consideration of the
above Decision and Direction of Elections.
14Following the hearing in this proceeding, the Board determined to apply in cases such
as these the pooling method of tallying ballots which was adopted in American Potash &
Chemical Corporation , 107 NLRB 1418. Schering Corporation , Cases Nos . 2-RC-6397, order
amending Decision and Direction of Election , dated April 6, 1954 (not reported in printed
volumes of Board Decisions and Orders.)
If the votes are pooled, they are to be tallied in the following manner : The votes for the
Operating Engineers, which seeks a separate unit only, shall be counted among the valid
votes cast but neither for nor against any union seeking to represent the more compre-
hensive unit ; all other votes are to be accorded their face value, whether for representation
by a union seeking the comprehensive unit or for no union.
u; With the gxception of the Operating Engineers, which desires to be on the ballot for
voting group ( a) only , all unions wish to appear on the ballots for voting groups (b), (c), and
(d). At the hearing, the IAM, the IBEW, and the UE stated that they did not desire to be
placed on the ballot for voting group (a), the powerhouse group. The IUE, however, wishes
to compete for these employees. Contrary to the situation at the time of the hearing in this
proceeding, the results of the election for the powerhouse group may now, under the recently
adopted pooling method of tallying ballots, affect the results of the election for the production
group for which the IAM, the IBEW, and the UE, as well as the IUE, wish to compete. Conse-
quently, we shall place the IAM, the IBEW, and the UE on the ballot for voting group (a). How-
ever, as these unions originally requested that they not be placed on the powerhouse group
ballots, we shall permit them, upon prompt request to the Regional Director, to have their
names removed from these ballots.
J. W. DICKEY AND R. L. ROUND, doing business as OHIO
HOIST AND MANUFACTURING COMPANY, A PARTNER-
SHIP, AND OHIO HOIST & MFG. CO., INC., A CORPO-
RATION and INTERNATIONAL BROTHERHOOD OF BOIL-
ERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORG-
ERS ,& HELPERS, AFL. Case No. 8-CA-856. April 28, 1954
DECISION AND ORDER
On January 11, 1954, Trial Examiner Arthur E. Reyman
issued his Intermediate Report in the above- entitled pro-
ceeding, finding that the Respondent Partnership and its
successor , the Respondent Corporation, had engaged in certain
unfair labor practices and recommending that the Respondent
Corporation cease and desist therefrom and that both Respond-
108 NLRB No. 89.
339676 0 - 55 - 37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto . Thereafter, the
Respondents filed " Exceptions to Trial Examiners Findings,
and Argument and Brief."
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed . The rulings are hereby affirmed . The Board
has considered the Intermediate Report , the Respondents'
exceptions and brief , and the entire record in the case, and
hereby adopts the findings , conclusions , and recommendations
of the Trial Examiner.'
ORDER
U on the entire record in the case, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that:
The Respondent , Ohio Hoist & Mfg. Co ., Inc., a corporation,
Lisbon, Ohio , its officers , agents , successors, and assigns,
shall:
(1) Cease and desist from:
(a) Refusing to bargain collectively with International
Brotherhood of Boilermakers , Iron Ship Builders , Blacksmiths,
Forgers & Helpers, AFL , as the exclusive bargaining repre-
sentative of all the production and maintenance employees at its
Lisbon, Ohio , plant , exclusive of all office and clerical
employees , professional employees , guards, and supervisors
as defined in the Act.
(b) Discouraging membership in International Brotherhood
of Boilermakers , Iron Ship Builders , Blacksmiths , Forgers &
Helpers, AFL, or any other labor organization of its employees,
by discriminating in regard to their hire or tenure of employ-
ment, or any term or condition of employment.
(c) In any manner interfering with , restraining , or coercing
its employees in the exercise of the right to self - organization,
to form, join , or assist International Brotherhood of Boiler-
makers, Iron Ship Builders , Blacksmiths , Forgers & Helpers,
AFL, or any other labor organization , to bargain collectively
'When the partnership was reorganized into a corporation during the plant shutdown,
Dickey, the dominant partner, became the sole stockholder and sole executive office holder
of the Corporation, and Plant Manager Lewis became president of the Corporation but
continued to direct the operations of the plant. The Corporation then carried on the same
operations at the same plant, fulfilling orders contracted for by the Partnership, with the
same employees who retained the seniority acquired while employed by the Partnership and
who worked under the direction and control of the same officials and supervisors.
We agree with the Trial Examiner's finding that the Corporation was the alter ego of the
Partnership and, as such, also responsible for the commission of the unfair labor practices.
See, for example, N. L. R. B. v. Fred P. Weissman Co., 170 F. 2d 952 (C. A 6). cert. denied
336 U S. 972; N. L. R. B. v. Colton, 105 F. 2d 179, 183 (C. A. 6). Unlike the Trial Examiner,
however, we do not rely on his citation of the Board's decision in The Alexander Milburn
Company, 78 NLRB 747, as that case did not involve an alter ego situation but rather that of
a bona fide purchaser with knowledge of the prior unfair labor practices.
OHIO HOIST & MFG. CO., INC. 563
through representatives of their own choosing , and to engage
in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and
all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in
Section 8 (a) (3) of the Act.
(2) Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with International
Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers, AFL, as the exclusive bargaining repre-
sentative of the employees in the bargaining unit hereinabove
described with respect to wages, rates of pay, hours of
employment, and other conditions of employment.
(b) Make whole Frank Allison, Floyd Bretz, Leo Chamber-
lain, Albert Cravenes, Lawrence Estill, Herbert Gouldsberry,
Andy Kundrick, Ray Morris, Lawrence Reynolds, Charles
Richards, Harry Rupp, Paul Stockman, William Thomas, and
Byron Williams, for any loss of pay they may have suffered
by reason of the lockout from April 27 to May 5, 1953, in the
manner provided in the section of the Intermediate Report
entitled "The Remedy."
(c) Upon request, make available to the National Labor
Relations Board , or its agents , for examination and copying,
all payroll records, social-security payment records, time-
cards, personnel records and reports, and all other records
necessary to an analysis of the amounts of back pay due in
accordance with this Order.
(d) Post at its Lisbon, Ohio, plant, copies of the notice
attached hereto and marked "Appendix A. "z Copies of said
notice, to be furnished by the Regional Director for the
Eighth Region, shall, after being duly signed by a representa-
tive of the Respondent Corporation, be posted by it for a period
of sixty (60) consecutive days thereafter inconspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall betakenbythe Respondent
Corporation to insure that said notice shall not be altered,
defaced, or covered by any other material.
(e) Notify the Re ional Director for the Eighth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent Corporation has taken to comply herewith.
The Respondent, J. W. Dickey and R. L. Round, formerly
doing business as Ohio Hoist and Manufacturing Company, a
partnership, shall make whole Frank Allison, Floyd Bretz,
Leo Chamberlain, Albert Cravenes, Lawrence Estill, Herbert
Gouldsberry, Andy Kundrick, Ray Morris, Lawrence Reynolds,
2 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an order."
5 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Richards, Harry Rupp, Paul Stockman, William
Thomas, and Byron Williams for any loss of pay they may
have suffered by reason of the lockout for the period from
April 27 to May 5, 1953, inclusive, or, in the alternative,
furnish proof to the Regional Director for the Eighth Region,
in writing, within ten (10) days from the date of this Order,
that the Respondent Corporation, Ohio Hoist & Mfg. Co., Inc.,
has made whole the said persons in accordance with paragraph
(2) (b) of this Order.
Member Beeson took no part in the consideration of the
above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board , and in order to effectuate the policies of
the National Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in International
Brotherhood of Boilermakers , Iron Ship Builders , Black-
smiths , Forgers & Helpers, AFL, by discriminating in
regard to hire or tenure of employment or any term or
condition of employment.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of the right to
self-organization , to form, join , or assist International
Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers & Helpers, AFL, or any other labor
organization, to bargain collectively through representa-
tives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities except to the extent that such right
may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
WE WILL make Frank Allison, Floyd Bretz, Leo Cham-
berlain, Albert Cravenes, Lawrence Estill, Herbert
Gouldsberry, Andy Kundrick, Ray Morris, Lawrence
Reynolds, Charles Richards, Harry Rupp, Paul Stockman,
William Thomas, and Byron Williams whole for any loss
of pay suffered by reason of being laid off from April 27
to May 5, 1953.
WE WILL bargain collectively, upon request, with
International Brotherhood of Boilermakers , Iron Ship
Builders, Blacksmiths, Forgers & Helpers, AFL, as the
OHIO HOIST & MFG. CO., INC. 565
exclusive representative of the employees in the bargain-
ing unit described below with respect to rates of pay,
wages , hours of employment , and other conditions of
employment, and, if an understanding is reached, embody
such understanding in a signed agreement . The bargaining
unit is :
All production and maintenance employees employed
by Ohio Hoist & Mfg. Co., Inc., at its Lisbon, Ohio,
plant , excluding all office and clerical employees,
professional employees , guards, and supervisors as
defined in the Act.
OHIO HOIST & MFG. CO., INC.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from date hereof,
and must not be altered, defaced, or coveredby any other mate-
rial.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
After a charge filed May 8, 1953, a first amended charge filed August 21, 1953, by Inter-
national Brotherhood of Blacksmiths, Drop Forgers and Helpers, AFL, i and a second amended
charge filed September 14, 1953, by the International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers, AFL,2 the General Counsel of the National Labor
Relations Board, by the Regional Director for the Eighth Region, 3 on September 14, 1953,
issued a complaint against J. W. Dickey and R. L. Round, doing business as Ohio Hoist and
Manufacturing Company4 and Ohio Hoist & Mfg. Co., Inc.,5 alleguig that they had engaged in
unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the National Labor
Relations Act, as amended (Labor Management Relations Act, 1947; 61 Stat. 136), herein
called the Act. The Partnership and the Corporation each filed an answer to the complaint,
effectively denying its substantive allegations , and each filed a statement of defense, denying
that it had engaged in or was engaging in the unfair labor practices set forth in the complaint 6
Upon the complaint and notice of hearing, and the answers and statements of defense of the
partnership and corporate Respondents, this matter came on for hearing before the under-
signed Trial Examiner at Lisbon, Ohio, on October 26, 1953, and was closed at Cleveland.
Ohio, on October 28, 1953. At the hearing, the Boilermakers was represented by counsel
and a business representative , and the Respondents and the General Counsel were represented
by counsel. Full opportunity was afforded the parties to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues, to argue the issues
[Herein sometimes called the Blacksmiths or the Union.
2 Herein sometimes called the Boilermakers. In the second amended charge and in the
complaint this union was called "International Brotherhoods" etc. At the hearing, a motion
was allowed to correct the inadvertency.
SHereinafter called the Regional Director.
4Herein sometimes called the Partnership. Round, according to Dickey, was an inactive
partner.
5 Herein sometimes called the Corporation.
6Certain amendments to each answer were made at the hearing, but all essential denials
of contravention of the Act remained after amendment.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
orally upon the record , and to file briefs and proposed findings of fact and conclusions of
law. Counsel for the Respondents have filed a brief with proposed findings and conclusions
which has received careful consideration.
Upon the entire record in the case, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
A. Respondent Partnership
The Respondents, J. W. Dickey and R. L. Round, until on or about May 7, 1953, were co-
partners doing business under the trade name and style of Ohio Hoist and Manufacturing
Company at their Lisbon, Ohio, plant, where they were engaged in the manufacture, sale,
and distribution of hoists and other commodities. In the course and conduct of their business
operations, they continuously caused finished products valued in excess of $25,000 annually
(during the times material herein) to be sold, delivered, and transported in interstate
commerce to and through States of the United States other than the State of Ohio from their
Lisbon, Ohio, plant; and during such times were engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act. 7
B. Respondent Corporation
The Respondent, Ohio Hoist & Mfg. Co., Inc., is, and at all times material hereto since
about May 7, 1953, has been, a corporation duly organized under and existing by virtue
of the laws of the State of Ohio, and is engaged at its Lisbon, Ohio, plant in the manufacture,
sale, and distribution of hoists and other commodities. In the course and conduct of its
business operations at its said plant, it has caused and will continuously cause, annually,
finished products valued in excess of $25,000 to be sold, delivered, and transported in inter-
state commerce to and through States of the United States other than the State of Ohio from
its said plant. The Respondent Corporation is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
A: The Blacksmiths
International Brotherhood of Blacksmiths, Drop Forgers and Helpers, affiliated with the
American Federation of Labor, was, at all times material herein, until on or about July 7,
1953, a labor organization within the meaning of Section 2 (5) of the Act, when it formally
merged or amalgamated with International Brotherhood of Boilermakers, Iron Ship Builders
and Helpers of America, affiliated with the American Federation of Labor.
B. The Boilermakers
After the merger or amalgamation of the Blacksmiths on or about July 7, 1953, with
International Brotherhood of Boilermakers, Iron Ship Builders and Helpers of America,
AFL, the new single union became known as International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL, and is, and since on or about
July 7, 1953, has been, a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Preliminary Findings
On January 5, 1953, the Blacksmiths, by John P. Zalac, district representative, filed a
petition with the Board for certification as representative of all production and maintenance
7 These formal findings principally are based on the allegations of the complaint and the
admissions of the answer. By stipulation at the hearing, it was shown that the Partnership
in April 1953 entered into a Government contract with a dollar value of approximately
$700,000 and that the Corporation undertook to perform it.
OHIO HOIST & MFG. CO., INC. 567
employees of the partnership employed at their Lisbon plant . On January 19 8 the petitioner
and the Partnership agreed to a consent election, which was approved by the Regional
Director, and thereafter, on February 2, the Blacksmiths was certified as the representative
of the employees in the appropriate bargaining unit9 after an election in which 7 of 9 eligible
voters had voted for representation by the Blacksmiths. (Case No. 8-RC-1863.)
On Saturday, April 18, Joseph A. Piccoli, director of industrial relations for the Associated
Industries of Cleveland, who had represented the Partnership theretofore in the consent-
election proceedings, one Moffat, who was described as general manager , and Reese Lewis,
plant manager, as representatives of management , met with Zalac and two shop stewards,
Leo Chamberlain and William Thomas, representing the Blacksmiths. The Union presented
a complete proposed collective agreement, which provided, in addition to paid holidays,
shift premiums, and other benefits, a flat 15-cent-an-hour increase in wages . Piccoli, as
he said, had been given "authority to negotiate to completion all noneconomic issues"
except union-security and checkoff clauses, and "authority to negotiate economic issues
with the understanding that final approval must be granted by the management of the Company."
After a general discussion, and apparent agreement on minor clauses , Piccoli promised con-
sideration of the proposed agreement, expressed doubt that any wage increase could be granted,
and promised to take the proposed agreement back to management for review. This first
meeting lasted approximately 2, hours.
On the following Saturday, Apri125,asecondmeeting was held between the same individuals,
representing the same parties , when the agreement proposed by the Blacksmiths was reviewed,
ind counterproposals presented by Piccoh were discussed. On some contract clauses the
parties found tentative agreement ; on others, no agreement could be reached. Piccoli assertea
that the Partnership was operating the plant at a loss, and flatly refused the granting of any
wage increase. Zalac says, in this connection, that he suggested that Piccoli obtain from
management approval of a 30-day wage reopening clause to be effective "when the company
is making money." This meeting was adjourned upon agreement of the parties to meet again
on May 2. That meeting never occurred.
On Sunday, April 26, Lewis, the plant manager, with the aid of a foreman notified employees
by telephone not to report for work the next day, telling them there would be no work until
further notice. In response to questions from employees, he told them in effect that he did
not know why the plant was being shut down, that he would let them know when he learned
the reason, and when work would again be started at the plant.
On May 7, articles of incorporation were filed for Ohio Hoist & Mfg. Co., Inc., an Ohio
corporation, the articles being signed as of April 30, by A. H. Ganger, Gilbert Weider,
and M. L. Ganger as incorporators. 10
On about April 29, Lewis was informed by Moffat that the Company intended to incorporate
and then reopen; on May 4, Lewis informed the employees to return to work on the following
day; and the following day the plant was reopened and all the employees ( with one exception)
who were on the Partnership payroll returned to work.
Increased hourly rates for all except 5 of the 14 employees returning to work on May 7
were put into effect. The hourly rates paid by the Partnership when the plant closed, and
the hourly rates put into effect by the Corporation, as to those hourly rated employees in
the certified bargaining unit who were on the payroll of the Partnership on April 25, and
who returned to work on May 5, are as folldws:
Name April 25 May 5
William Thomas $1.45 $1.55
Herbert Gouldsberry 1.25 1.35
Leo Chamberlain 1.50 1.55
Andy Kundrick 1.25 1.30
Byron Williams 1.40 1.45
Frank Allison 1.25 1.25
BUnless otherwise specifically shown, all dates hereinafter mentioned are for the year
1953.
9 The bargaining unit is comprised of all production and maintenance employees, but
excluding all office and clerical employees, professional employees, guards, and supervisors.
10 At the hearing James W. Dickey, the active partner in the Partnership, said he was the
sole owner of the stock of this Corporation, and was chairman of the board of directors and
acted as secretary and treasurer.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Name April 25 May 5
Paul Stockman $1.55 $1.65
Henry Rupp 1.40 1.50
Floyd Bretz 1.40 1.50
Lawrence Reynolds 1.40 1.45
Charles Richards 1.25 1.25
Albert Cravenes 1.25 1.25
Lawrence Estill 1.25 1.25
Ray Morris 1.75 1.75
The Blacksmiths - was not notified either by the Partnership or the Corporation of the
closing down or the reopening of the plant . By letter dated May 18, directed to the Corpora-
tion, Zalac for the Blacksmiths served notice of its intention to continue negotiations and
requested a conference; by telegram on May 26 to Dickey he asked for a conference for
the following day; by letter dated May 27, signed by a member ofahe personnel department
of the Cleveland Chain & Mfg. Co." Zalac was advised that Dickey was no longer an officer
of the Corporation and that he might want to direct his correspondence "to an officer of
the company , which is located in Lisbon"; in response to a telegram directed to the corpora-
tion, Zalac was advised by W. B. Moore, one of counsel herein for the Respondents, by letter
dated June 3, that "the firm of Harrington, Huxley & Smith, 1200 Mahonmg Bank Building,
Youngstown, Ohio, are authorized to handle labor relations and labor contract negotiations
for said company"; on June 5 Zalac by letter requested a conference with that firm and
received a reply by letter suggesting that Zalac talk to T. Lamar Jackson of the firm regarding
a meeting ; Zalac on June 9 telegraphed a suggestion for a meeting on June 12. A meeting was
arranged for that day, but because of a misunderstanding concerning the place of meeting,
it was not held. A conference finally was held at Jackson's office in Youngstown on July 25
at which Jackson. Zalac, and Chamberlain were present. After reviewing the proposals of the
Blacksmiths u and after Zalac had withdrawn or amended some of the original proposals,
Jackson asked for time to give him an opportunity to review the demands and to consult with
management. Another meeting was arranged for and held on August 10 at which Jackson,
Lewis, and one McClay represented the corporation, and Zalac and Chamberlain represented
the Boilermakers.
With respect to these two meetings, Jackson testified that he had authority to negotiate a
contract. At the second meeting on August 10, Zalac testified, he questioned Lewis (who was
president of the corporation) and McClay concerning their authority, and upon their assertion
that neither had full authority to negotiate an agreement, suggested to Lewis: "Then, are
you willing to show us your financial standings, and if the corporation is losing the amount of
money that you claim, maybewecandraftup a contract that will be workable for our member-
ship and also for the company, with a wage proviso, and again, when the Company is in a
position to grant an increase, we can reopen this contract on a thirty-day proviso," and that
finally "they told us that they would take it back to Mr. Dickey and let us know. Since then,
all we have received is a letter from Mr. Jackson ." That letter , dated August 13, directed
to Zalac, reads:
Dear Mr. Zalac:
As we advised your office this morning, we have been dismissed as counsel in the
above subject matter and consequently can assume no further responsibility. After
the conference held in our office last Monday morning, we advised Mr. McClay of certain
matters that mustbe clarified . Thenet result of that request apparently was our dismissal.
Very truly yours,
Harrington, Huxley & Smith
ii The Partnership and later the Corporation were closely related to this company in that
they used the facilities of its office and personnel, located in Cleveland; Lewis testified that
checks were drawn on Cleveland Chain at times for payment of wages and salaries, and that
he received instructions from persons connected with it; Dickey was one of its active exec-
utives.
12 The Blacksmiths at this time had formally merged or become amalgamated with the
Boilermakers.
OHIO HOIST & MFG. CO., INC. 569
Under date of August 25 Dickey, as executive vice president of the Corporation, directed a
letter to the Board in which in effect he took the position that the employees of the Corpora-
tion had repudiated the Blacksmiths as their bargainingagent in writing and that the Corpora-
tion as a matter of law was bound thereby. Dickey's letter reads as follows:
Gentlemen:
We send you herewith a photostatic copy of a written direction of the employees of
this company that the International Brotherhood ofBlacksmiths,Drop Forgers & Helpers,
AFL, discontinue negotiating a union contract for them.
This amounts to a repudiation of such union as bargaining agent. Eleven of a total
of thirteen employees in this unit at the time, signed the directive. The status of this
company in connection therewith is fixed by laws as of the same time. Fifty one people
are now on the payroll.
In this situation, the decision in the Mid-Continent Petroleum Corporation Case,
204 Federal "Second" 613 by the United States Court of Appeals, 6th Circuit, in which
we are located, would seem to make it unlawful for this company to further recognize
the union as bargaining agent for its employees. A simple and orderly way to resolve
the matter may be your decision to order an election immediately, provided of course
it is the wishes of the employees to have an election. Otherwise, we take the position
that the court's decision is currently respected by you.
Very truly yours
OHIO HOIST & MFG. CO.
The written direction , referred to by Dickey, dated June 3, bears the signatures of 11 em-
ployees 13 and reads:
We, the employees of Ohio Hoist & Mfg . Co. Inc., wish to have the International
Brotherhood of Blacksmiths , Drop Forgers and Helpers , (A. F. of L.), discontinue
negotiating a union contract with this company.
On August 31 the Boilermakers filed a motion with the Regional Director asking that the
certification in Case No. 8-RC-1863 be amended`to designate the Boilermakers in the place
and stead of the Blacksmiths as the certified bargaining agent for the employees included
within the bargaining unit as certified by the Board on February 2; the Regional Director
forthwith served a notice upon all the parties to show cause, on or before September 9, why
the motion to amend should not be granted; the Partnership opposed the motion to amend
the certification, and upon the granting of the motion to amend by the Regional Director,
appealed to the Board from the order of the Regional Director amending the certification
of the Blacksmiths and naming the Boilermakers as the certified representative; on October
2 the Board directed the entry of an order denying the appeal.
The Plant Shutdown
The Respondents contend that the plant was shut down purely for business reasons . Dickey
stated that:
We Shad some losses and were suffering further losses, and it looked as if the opera-
tion was going to require more of our time, my time and money, and it looked like
generally a bad investment. With all of those losses, the Union came along and wanted
more money, and a union spokesman, a representative by the name of Mr. Zalac--I
don't think I had ever seen the gentleman before--told our negotiating committee that
unless we could pay more money we should shut the plant down, and after reviewing
it with our negotiating committee and in view of Mr. Zalac's--the union representative's
--statement , I considered he was a greater economist than we were and a much smarter
man, so we therefore accepted his advice and shut the thing down.
Q. Did you intend shutting down the plant permanently?
A. Very definitely.
isSeven of these eleven employees had been laid off and recalled to work on May 5.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You didn't hear Mr. Zalac make any statement to that effect, did you?
A. No, sir, but when Mr. Zalac called me to work out a deal, I confronted him with
it, and he said he did make it.
Q. Prom whom did you first hear that statement?
A. May I answer your question , sir? You asked me two questions . You asked me one
and then asked me another. Then I asked the vice president of the National Organization,
when he talked to me. When he talked to me, I told hun about it, and he said, "Well,
you know, people make mistakes." And I said, "Yes, that he was a spokesman for your
organization and he advised us what he thought we should do, and we did it, and the plant
is shut down."
The General Counsel contends that the Respondents shut down the plant and laid off its
employees in order to avoid collective bargaining with the Blacksmiths , to discourage mem-
bership in and activities on behalf of the Blacksmiths and other concerted activities for the
mutual aid and protection of the employees , and to interfere with , restrain , and coerce
the employees in the exercise of their rights guaranteed by the Act. During the course of his
case, the General Counsel proved, without contradiction, that prior to the plant shutdown,
work was in progress to provide facilities for women employees, no women then being
employed ; and that thereafter upon the opening of the plant women were employed; and that
the Partnership had in effect a Government contract to the value of several hundred thousand
dollars which was signed by the Air Force on April 6 and acknowledged by Dickey
on April 10. 14
At the time the contract was entered into with the Air Force it was contemplated by
both parties that work on that contract, or a considerable part of the work to be performed,
was to be done at the Lisbon plant.
According to Dickey, he did not remember exactly when the decision was made to incor-
porate the business and make the Partnership a corporation. He thought that the essential
papers had been prepared by the Partnership's attorneys some time before the actual close-
down. The fact remains that the Respondents contend that the plant was closed down for
business reasons, because of the advice of Zalac as reported by Dickey, and that the decision
to incorporate and to reopen the plant was made during the week immediately following the
closing down of the plant. In this connection. Dickey's testimony is interesting:
Q. Then you intended to incorporate even before you shut down?
A. No, Sir, I repeat this, that we would not incorporate until around the time of the
shut down or when we found ourselves in what looked like an impossible situation with
the union. Union's demand, I would like to say.
Q. Was it because of the union you decided to incorporate?
A. No, Sir, but I say that the union, in giving us advice, as they had, on our economic
problems, the feasibility of continuing to operate as a partnership, provoked our doing
something, should we decide to continue in business or resume operations.
Q. So that was the culminating point, deciding you to incorporate?
A. We don't necessarily agree with that. After we shut the plant down we became a
little annoyed with ourselves that we had gone as far as we had with the union's advice,
and our red blood started flowing in proper channels in our systems, and we thought
that possibly we had better take a firm position, which we did by incorporating and
resuming business.
i4A stipulation was entered into at the hearing to the effect that Ohio Hoist and Manu-
facturing Company entered into a contract on April 6, 1953, with the Air Force, said contract
being No. A. F. 33 (600) 24156 for production of cargo tie-down assemblies, type C-2, the
value of the contract being approximately $700,000; it was signed by the Air Force on
April 6, and receipt of the signed contract was acknowledged by J. W. Dickey on April 10,
1953; and that 1,000 units of the cargo tie-down assemblies type C-2 were to be delivered
during the month of June 1953. It was further stipulated that a conversation was held relative
to the aforementioned contract at Cleveland, Ohio, on April 29, 1953, among J. W Dickey,
2 other representatives of Ohio Hoist and Manufacturing Company, Mr. Murphy and Mr.
Schwartz, and also 2 representatives of the Central Air Procurement District, Cleveland
Air Regional Office; that during the conversation, company representatives stated to the
Air Force representatives that a part of the work to be performed under the contract was
to be performed at the Company's Lisbon plant.
Murphy is purchasing agent for Cleveland Chain and was acting in the same capacity for
the Partnership. Schwartz was a technical engineer.
OHIO HOIST & MFG. CO., INC. 571
It seems quite apparent from the record that at the meetings between management and
Union representatives on April 18 and 25 these respective representatives entered into and
continued bargaining negotiations in good faith as between themselves. The record of the
second meeting on April 25 shows a meticulous across-the-table discussion regarding the
contract provisions previously proposed by the Blacksmiths; and shows too that Piccoli,
according to his promise, had very carefully reviewed the Union proposals. It now is con-
tended by the Respondents that the parties had reached an impasse at the time of the adjourn-
ment of the April 25 meeting. This contention is not borne out by the evidence in the case.
Piccoli for management said that he had been unable to obtain authority to grant a general
wage increase; however, Zalac made a counterproposal to the effect that the Union would
consider a reopening clause in the contract to provide for wage increases at such time as
the Respondent Corporation would be making money. This counterproposal was never acted
upon by management, nor did the Union ever receive a reply to that proposal. -
Piccoli disappeared from the scene after the April 25 meeting. Dickey, the dominant
partner, never entered negotiations personally. In summary, the Partnership negotiations
with the Union had reached the stage where the Union demands as to wages were to be the
principal subject for discussion. At that point, the Partnership, without consultation with the
Union, shut down its plant; on the reopening of the plant by the corporate Respondent some
10 days later, it without consultation with the Union unilaterally granted wage increases to
its employees who had been in the employ of the Partnership, and granted increases to new
employees as they were employed after the opening of the plant. There is no proof in the
record other than the bare statements of Dickey and Piccoli that the Partnership was losing
money at the time first in April and later-in August when contract negotiations were going
forward and when requests for wage increases and other benefits were presented by the
Blacksmiths. To accept Dickey's statement that the plant was closed on advice of the busi-
ness representative of the Union would be to believe arrant nonsense. At the time, the con-
tract with the Air Force had been closed, and Dickey had committed himself and his partner
to perform the work so that it is equally difficult to believe that the plant was closed because
the partners were losing money. A presumption which in the mind of this Trial Examiner is
unrebuttable on the evidence in the case, arises to the effect that without regard to any busi-
ness reasons, the Partnership locked out its employees in an effort to discourage them in
their Union activities and in their concerted activities for the purpose of collective bargain-
ing. The Respondent Corporation demonstrated a complete lack of good faith in dealing with
the Union within a reasonable period after the reopening of the plant, and it was not until
late July that the Union representatives were able to sit down to again begin negotiations
with new representatives of the Company--new in the sense that Jackson, recently employed
to conduct these negotiations, was completely unfamiliar with prior discussions. Although
Jackson may have thought he had authority to negotiate an agreement when he sat down, with
the Union on July 25 and again on August 10, his letter of August 13 to Zajac indicates that
his understanding of the extent of his authority had been actually limited, and that he did not
have authority to negotiate on the renewed request for a reopening clause in the proposed
agreement covering future increases of wages for employees in the unit. The closing of the
plant, the locking out of the employees for a 10-day interval, the granting of unilateral wage
increases both to old and new employees after the reopening of the plant, the employment of
female labor where none theretofore had been employed, the fact that the-Partnership was
engaged in preparation for the employment of females prior to the closing down, and the
subsequent difficulty encountered by the Union in continuing negotiations, all go to prove
that the Respondent did not wish to and did not engage in good-faith bargaining after the
meeting on April 25; and that the closing down of the plant had for at least one of its pur-
poses the discouragement of the Union and the interest of the employees in the Union.
The Board has heretofore held that ordinarily a good-faith bargaining impasse connotes
the futility of further negotiations and in the case of the employer-party to the collective
relations, leaves the employer free to take certain economic steps not dependent upon
the mutual consent of the union. Central Metallic Casket Co., 91 NLRB 572. This doctrine
of permissable unilateral conduct by the employer is limited, however, to matters which,
before the good-faith impasse, had at least been presented by the employer to the union
as a subject for bargaining or had been discussed at a bargaining conference. I. B. S. Manu-
facturing Co., 96 NLRB 1263. Here such unilateral action clearly went beyond the limitation
of the rule. The employer bypassed the certified representative of its employees, and such
conduct reasonably could have been interpreted by the Respondents' employees as a with-
drawal of recognition of the Union's representative status and was, in effect, an impairment
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the collective -bargaining process . In the circumstances of this case, the action of the
Respondent constituted, per se , a violation of Section 8 (a) (5) and (1) of the Act. N. L R. B.
v. J. H. Allison Co., 165 F. 2d 766 (C. A. 6).
Here the cessation of work at the plant during the time it was shut down constituted a
temporary lockout. The Trial Examiner finds that the employees were locked out because
of their membership in and their concerted activities on their own behalf and on behalf of
the. Union. Had the negotiating parties exhausted the possibilities of good-faith collective
bargaining , then the Employer in these circumstances might with some color or right
claim the plant was closed because of and only because of adverse business conditions.
The circumstances in this case demonstrate , however , that the Blacksmiths had a right to
believe that negotiations should have been continued after they had been suspended on April
25; that thereafter the Respondents made no effort to continue bargaining ; and that when
bargaining was resumed it was not resumed in good faith on the part of the Employer. Com-
pare Davis Furniture Co. v. N L. R. B., 127 F. 2d 435 (C. A. 9).
The Alleged Repudiation of the Union
The Respondents contend that the employees legally repudiated the certified Union on June
3, 1953 , and that their action released the Respondents of further obligation to bargain It is
urged further that any bargaining subsequent to the date of repudiation by the employees
between the Company and the Union would not operate as a waiver of such repudiation since
the employees did not consent thereto or participate therein.
There is set forth above in the preliminary findings the content of the letter sent by Dickey
under date of August 25 to the Board , in which he enclosed a so-called written 3irection
signed by 11 employees expressing a wish that the Employer discontinue negotiating a union
contract " with this company" ; and it has been noted that on August 31 the Boilermakers
filed a motion with the Regional Director asking for an amendment of certification to the
effect that the Boilermakers be substituted as the certified party. The amendment was
allowed and , on appeal was sustained by the Board.
The Respondents , in support of their legal position , assert that they are bound by the deci-
sion of the Court of Appeals for the Sixth Circuit, wherein they do business , in Mid- Continent
Petroleum Core . 204 F. 2d 613 , decided in May 1953 There , in a consent election under the
Act, the truckdrivers operating from a plant of the employer , having been found to constitute
an appropriate bargaining unit, selected the Teamsters ' union as their exclusive representative
for collective-bargaining purposes Six employees composed the unit involved , of which 4
voted for the union representation , and 2 against it . After the union ' s certification on March
12, 1951, as bargaining representative for the employees in the unit , the employer entered
into collective -bargaining negotiations with the union . Thereafter , without any unfair labor
practices by the employer , 1 of the 6 truckdrivers included in the bargaining unit quit his job
for personal reasons , and on April 16, 1951 , another employee was hired in his stead . There-
after, within the next 10 days, the new employee and 2 others in the bargaining unit, without
the intervention of any unfair labor practices by the employer , delivered to it separate
letters stating , in substance , that they did not want the union or any other labor organization
as their bargaining representative. Subsequently , on or about May 14, 1951, the company
withdrew recognition from the union on the ground that it no longer represented a majority
of the 6 employees in the unit The court , in its decision , held that a small unit of 6 truck-
drivers had the right to revoke the power of the bargaining agent and that the employer was
not guilty of an unfair labor practice for having failed to bargain with the agent in question
after its power had been revoked , that whenever the will of the employees to revoke the power
of their bargaining agent is clear and unquestioned , effect must be given under the Act to such
revocation, and the employees are thenceforth free to bargain collectively through an agent
of their choice, if they so desire ; and further that Section 9 (c) (3) of the Act, which prohibits
the Board from holding more than 1 representation election each year in any given bargaining
unit , does not imply that employees may not repudiate a bargaining agent within such a yearly
period . The court reviewed the judicial authority at length , noting those decisions in support
of its expressed view , including N. L. R. B v. Vulcan Forging Co., 188 F. 2d 927 (C. A. 6)
and also the cases in conflict with its view in other circuits The court also wrote
There is no doubt, of course, that where the employer's obstructive tactics, delays,
and other unfair labor practices may have contributed to a loss of majority status,
OHIO HOIST & MFG. CO., INC. 573
the employer is guilty of an unfair labor practice in not recognizing the bargaining
agent selected before such unfair labor practices took place . (Citing Franks Brothers
Co v. N. L. R. B., 321 U. S. 702.)
The Respondents ' position , that any bargaining subsequent to the date of the alleged repu-
diation by the employees between the Company and the Union would not operate as a waiver
of such repudiation because the employees did not consent thereto or participate therein,
is beside the point , since the preponderance of the evidence herein proves the commission
of unfair labor practices by the Respondents prior to the resumption of meetings between
the Boilermakers and representatives of the Respondents in July and, further , bargaining
negotiations were not conducted in good faith on the part of the Corporation on July 25 and
August 10.
In the instant case , the reliance of the Respondents on Mid-Continent Petroleum is mis-
placed ; the rule in Frank ' s Brothers Co. must here prevail.
The Wage Increases
The complaint as amended charges that the Respondents, since about May 5, unilaterally
granted wage increases and other benefits to their employees.
It appears that prior to this time and before the Blacksmiths was certified as bargaining
representative, it had been the custom of Lewis, as plant manager for the Partnership, to
"requisition" individual merit and length-of-service increases, according to his judgment,
by written memoranda (which he called "raise slips") which he forwarded to the payroll
department in Cleveland. Lewis claims that during the time of the negotiations with Zajac
and the other Union representatives in April, he was told by Floyd Bretz that Zajac would
have no objection if Lewis put into effect merit and length-of-service increases, and Lewis
said further that he had talked with the men and that they had told him that Zajac had said
it would be all right if he gave them 50 cents an hour. Lewis testified further that he might
hire a man and later feel that he had hired him too cheaply and give him a"merit raise in
2 weeks or so, but that he had given very few length-of-service increases as such, that the
increases he gave generally were according to his judgment as to an employee's worth.
His best testimony seems to be to the effect that the question of whether or not he could
grant raises during the course of Union negotiations came up shortly after the April 25
meeting when he talked to Zalac and the latter asked him if he would give Bretz a 5-cent-an-
hour raise; that during the course of the discussion the men employed at the plant told
Lewis one reason he would not give them raises was because he was "using union negotia-
tions as an excuse" and that the men, including Bretz, then told him that Zajac had said
"he didn't care if Lewis gave them 50 cents an hour." Compared to Lewis' recollection of
what occurred, the recollection of Zalac is clear and concise. He testified
At that particular meeting the question was asked me by Mr Floyd Bretz if the
organization had any objections to merit increases after the contract was signed. I had
questioned the man on the statement. I asked him again what he meant by that and he
said Mr. Reece Lewis informed him after the contract was signed no increases would
be granted on merit I said to him that if his job classification called for merit increases,
presuming there was a fluctuation of say 10 or 15 cents, as long as we were notified,
that Mr. Lewis had the authority to grant the maximum . Particularly in that conversation
the 50 cents was spoken of. I said if he wanted to go as high as 50 cents it would be
perfectly all right with me, as long as you can do the job in that particular job classifi-
cation.
r
Well, what started the whole affair was Leo Chamberlain and Mr Lewis on the
merit increases that were granted in the past and how they were done At that particular
time Mr. Reece Lewis pulled out a requisition showing how the merit increases were
applied for, and he signed his name to it and sent it in to Cleveland and got approval
through the Cleveland office. The question came to me if I had any objection on the
requisition, and I told Mr Lewis I didn't have any objection to his requisition, they
applied for increases in that way.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From the testimony of the two men, it is quite apparent that the discussions involved the
right of Lewis to continue making merit increases as he had in the past, and not his right
to forthwith make such increases or any other increases, including those of a general nature,
without consultation with the Union representative during the course of contract negotiations.
Piccoli, chief representative of the Employer, and Zalac, businesg representative for the
Blacksmiths, were experienced negotiators and there is no reason to believe that Zajac would
abdicate his right to negotiate wage rates and job classifications on behalf of the employees
represented by his Union Zalac at all times was a direct and forthright witness while Lewis,
on the other hand, was evasive and faulty of memory in respect to many things For example,
he did not know who "hired" him as president of the Corporation, he did not know who signed
the pay checks for the men working under him, he said he did not know whether or not wage
increases were granted to new employees after the plant reopened on May 5, he was unsure
of the duties of the plant manager, and in several other respects his testimony was unreliable.
Chamberlain, a credible witness, confirmed Zalac's testimony in its essential part The
Trial Examiner has had no difficulty in finding that Lewis had no cause or justification to
believe that Zajac had agreed that Lewis could grant wage increases of any kind during the
course of contract negotiations. It is a fair presumption, on the basis of his testimony and
behavior, that Lewis was almost afraid to take any definitive action without express permis-
sion from Dickey or someone in authority in the Cleveland office. The inference is plain
that the increases put into effect on May 5 were upon express instruction from Dickey or
someone else in authority in the Cleveland office, and not as a result of independent action
taken by Lewis.
It is contended on behalf of the Respondents that the so-called merit increases granted
on and after May 5, 1953, were given with the consent of the Union and that there is a clear
preponderance of the evidence on this point, therefore, they say, such increases were not
given in violation of law. It is the opinion of this Trial Examiner, based upon the testimony
of the witnesses Zajac, Piccoli, Chamberlain, and Lewis, that the Union or the Union repre-
sentatives at no time agreed that increases could be granted without prior consultation with
them. Zalac's testimony was clear as to what had transpired between him and Lewis, and
had the ring of truth, on the other hand, the testimony of Lewis on the points involved was
muddled and his recollection seemed to be somewhat vague. The testimony of Piccoli, as to
that part of the conversation which he overheard between Zajac and Lewis, is not helpful
on the question of credibility. Accordingly, the Trial Examiner, on the basis of the testimony
of Zajac and Lewis and upon his observation of the witnesses at the hearing, is constrained
to find that Zajac did not, nor did any other Union representative, ever agree that Lewis or
the Respondent Partnership could proceed to put wage increases into effect without com-
municating with the Union representatives.
As the record demonstrates, Zajac and his colleagues experienced considerable difficulty
in arranging another meeting with representatives of the Respondents after April 25 and it
was not until July 10 that they were able to meet with them again During this comparatively
long interval no effort whatsoever was made to communicate with the Union with respect to
these wage increases. Consequently, the Union's bargaining position was impaired. The
closing down of the plant and the subsequent unilateral granting of wage increases both to
new and old employees, together with the failure of the Respondents to resume bargaining
negotiations with the Union, must necessarily have discouraged the interests of many of the
employees in the Union. The Trial Examiner so finds. The unilateral action as to subject
matter proper for bargaining negotiations was further evidence of a failure on the part of
the Respondents to bargain in good faith, in violation of Section 8 (a) (5) and (1) of the Act.
N. L R. B. v. Century Cement Manufacturing Company, Inc., 208 F. 2d 84 (C. A. 2), and cit-
ing N L. R. B. v Crompton-Highland Mills Inc., 337 U. S. 217, N. L R. B v. Niles-Bement-
Pond Co., 199 F. 2d 713, (C. A . 2) and others.
The Bargaining Relationship Between the Parties Hereto
As the record herein shows, the Blacksmiths was certified as representative of the
employees of the Partnership in an agreed-upon unit after a consent election which followed
the execution of a consent-election agreement The certification was issued on February
2 by the Regional Director, according to the authority vested in him by the Rules and Regula-
tions and under the Statements of Procedure of the Board. Thereafter, on August 31, the
Blacksmiths filed a motion to amend the certification in that case (Case No 8-RC-1863)
The motion to amend showed on its face the prior certification of the Blacksmiths on February
OHIO HOIST & MFG. CO., INC. 575
2; set forth that subsequent thereto at a convention held June 29 to July 7 the Blacksmiths
formally merged or amalgamated with the Boilermakers; that thereafter the Boilermakers
filed the necessary affidavits and financial statements with the Board and the Department
of Labor in order to effect compliance with Section 9 (f) and (g) of the Act; and were sub-
sequently advised under date of July 30 that the Boilermakers union was in registration for
90 days after the close of its fiscal year. The Regional Director, upon receipt of the motion
to amend, issued his order to show cause, setting forth the nature of the motion of the Black-
smiths and thereafter the Partnership opposed the motion to amend the certification and,
upon denial by the Regional Director of the motion in opposition, filed its appeal with the
Board, which caused an order to be entered sustaining the amendment to the certification.
As related above, the Partnership was succeeded in business by the Corporation on or
about May 7.
At the hearing the Respondents moved to dismiss the complaint on several stated grounds:
(1) That the amendment to the original certification is a nullity, the Regional Director
having no power to amend election certificates except such as is given to him by the parties.
(2) That the Respondent Corporation is a legal entity separate and distinct from the
Partnership and not subject to the same labor relations as may be applied to the Partnership;
and that the Respondent Corporation is not and never has been subject to any election, certifi-
cation , or amendment thereof issued pursuant to theAct or'any other law, rule, or regulation,
contract or otherwise, and therefore not a party in interest herein; that no privity exists
between the Respondent Corporation and the Partnership or the Boilermakers or the Black-
smiths.
(3) That the Respondent Partnership is dissolved and no longer in existence; that the
Blacksmith's union ceased to be a labor organization on July 7, 1953, and, therefore, is no
longer a party in interest, that the privity in the matter of labor relations once prevalent
between the Respondent Partnership and the Blacksmiths no longer exists and further
proceedings herein would be to no avail; and that no privity has ever existed between the
Respondent Partnership and the Boilermakers by law, rule, regulation, contract or otherwise.
These several motions, made at the opening of the hearing, were then denied by the Trial
Examiner principally on the basis that there were no facts in the record to permit ruling
on any one of them, and are now considered and disposed of as follows:
When the Corporation succeeded to the business of the Partnership on or about May 7,
it continued operations in the same factory, doing the same kind of work, with the same
employees on its payroll as were employed by the Partnership. Dickey, the dominant partner,
became the sole stockholder and chief executive officer of the Corporation. Lewis, the
plant manager for the Partnership, became the president of the Corporation, and the record
clearly shows that the Corporation continued to utilize the services of what is loosely
described in the record as the Cleveland office, but which in effect means the personnel
department shared with Cleveland Chain Manufacturing Company, of which Dickey was
executive vice president . It clearly appears, too, that Dickey was the final authority in
connection with labor matters with the Corporation, as he previously had been with the
Partnership. The Corporation having assumed full control of the plant and having made no
changes in the essential conditions of employment of the employees employed by the Partner-
ship, had to be continued to be bound by the certification of the Boilermakers and to
continue to recognize the Boilermakers as the representative of the employees in the
agreed-upon unit. There is adequate evidence in the record to show that the Corporation had
knowledge of the change in the internal organization of the Blacksmiths long before the rule to
show cause issued. Dickey was an officer of Cleveland Chain and other corporations which
dealt with the Blacksmiths. The Trial Examiner does not regard this as a material fact of
much value since the shutdown occurred before July 7, and the Corporation did not raise
the question until it interposed its opposition to the motion to amend. The Corporation, in
respect to its dealing with the Blacksmiths, must be regarded as the alter ego of the former
partner proprietorship. Rome Lincoln-Mercury Corp., 86 NLRB 397, 182 F. 2d 621 (C. A. 2);
N. L. R. B. v. O'Keefe, 178 F. 2d 445 (C. A. 9); Gerber Products Co., 93 NLRB
1668. Because of the lockout, and the procrastination of the Respondents in connection
with continuing bona fide collective-bargaining negotiations with the Union in the interim
between April 25 and July 25, with the concurrent failure of the Respondents to meet the
counterproposals of the Blacksmiths advanced at the meeting on April 25, the Respondents
must be held jointly responsible for the commission of these unfair labor practices,
and the successor Corporation Respondent must be found to have assumed the obligation of
remedying these unfair labor practices. National Garment Company, 69 NLRB 1208, en-
57 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forced 166 F. 2d 233, cert. den. 334 U. S. 845. See also Alexander Milburn Co., 78 NLRB
747.
In the face of the facts herein, the claim of the Respondents of lack of privity of interest
between the Blacksmiths and the Corporation and the Blacksmiths and the Boilermakers,
and between the Blacksmiths and the Corporation, is ill founded. The evidence herein clearly
shows that the amalgamation or merger of the Blacksmiths with the International Brother-
hood of Boilermakers, Iron Ship Builders and Helpers of America on or about July 7 was
exactly that, and that no new legal union entity resulted other than through the change of
name and the resultant coalition of internal activity between the Blacksmiths and the other
union. The legal results of the merger or amalgamation between the 2 unions in effect is
the same as if it had occurred between 2 banks or 2 mercantile establishments. The internal
readjustment of the affairs of these 2 Incorporated associations had no effect whatsoever
on the obligation existing between the parties to the original consent-election agreement.
The business representative of the Blacksmiths simply became the business representative
of the Boilermakers, the newly named union, the employees within the unit remained the
same, and neither the Corporation nor the former Partnership could claim any injury what-
soever as a result of the amalgamation. The defense of lack of privity between the parties
as stated in the motions to dismiss made by the Respondents is a legal nullity. In moving to
dismiss on the grounds that the Regional Director was without authority to amend the certi-
fication of representative issued by him on February 2 to the Blacksmiths, the Respondents
disregard the nature of representation proceedings. To this Trial Examiner it is sufficient
that through its appeal from the action of the Regional Director permitting the amendment
to the certification, the Respondents had the benefit of the consideration of the question by
the Board itself. Certainly, the Trial Examiner will not undertake to interfere with the
actions of the Regional Director or the Board in this respect in the representation pro-
ceeding. Such proceedings are not adversary, but are designed merely to ascertain whether
or not a question concerning representation exists. It is immaterial which party represents
the factual material, and it is only necessary that there be a full and complete disclosure of
the facts. Here there is a conclusive presumption, so far as the Trial Examiner is concerned,
that the Regional Director had before him the facts set forth above in connection with the
change in name of the certified unit when he permitted the amendment of the certification of
representation. The record in the instant case shows that the Respondent Partnership was
afforded opportunity through notice upon it to show cause why the certification should not be
granted. The Respondent Partnership did take advantage of its opportunity to show cause and
the reasons for its opposition to the motion to amend were fully set forth (it is presumed) by
it in the proceedings in Case No. 8-RC-1863. The Trial Examiner will not disturb the action
of the Board in that respect.
Accordingly, the motions of the Respondents and each of them, as set forth above, are
denied.
Concluding Findings
The Blacksmiths , the certified representative of the employees in the designated unit,
did not lose its identity as such representative merely by reason of its merger or amalgama-
tion with the Boilermakers on or about July 7, 1953. The situation represented nothing more
than a change of name, insofar as the interest of the Respondents lay, and the cases cited
by the Respondents in support of their theory of lack of privity of the interest between the
Boilermakers and themselves are not in point. The circumstances here do not show the
dissolution of a certified union, or the abandonment of a union desiring certification by
employees within an appropriate unit before certification; they amount to nothing more than
a change in the internal organization of the certified union in which the Board does not, and
the employer may not, have any interest so far as the legality of the change is concerned.
The decision of the Court of Appeals for the Sixth Circuit in Mid-Continent Petroleum is
Inapplicable on the facts in this case . It is undisputed that here the Union had been designated
as bargaining agent by a majority of the employees , and the Respondent Partnership and its
successor, the Respondent Corporation , each therefore was under a statutory duty to bargain
in good faith with the Union. The doctrine of the responsibility of a successor to remedy
the unfair labor practices of its predecessor , announced in Alexander Milburn, 78 NLRB 747,
is applicable here, and should be applied in conjunction with the principle stated in Franks
Brothers Company v. N, L. R. B., 321 U. S. 702. The Partnership by the locking out of its
employees , and the Partnership and the Corporation by the granting of unilateral wage
OHIO HOIST & MFG. CO., INC. 577
increases and continuous refusal to bargain in good faith, contravened the provisions of
Section 8 (a), (1) and (5) of the Act.
The Trial Examiner finds that the so-called repudiation of the Union by the employees,
as expressed in the communication transmitted by some of them to the Corporation on or
about June 3, was a nullity. s The Trial Examiner here adheres to the rule that a certification
by the Board, or by the Regional Director as in this case, to the fact that a union is the
exclusive bargaining representative of employees within the meaning of the Act creates a
presumption of majority status, rebuttable during the first year of the certification only by
a showing of unusual circumstances; and thereaftev by evidence raising doubt as to continued
majority status. Celanese Corp., 95 NLRB 664; Southerland's Inc., 102 NLRB 1178.
At the hearing, the Trial Examiner rejected evidence going to show that three of the em-
ployees who had signed the so-called repudiation on June 3 subsequently had filed authori-
zation cards with the Union, on the theory that, in the face of continued unfair labor practices,
employees might change their minds from day to day and that nothing conclusive could be
inferred from the fact that on a particular day an employee felt in a particular way regarding
his membership or nonmembership in a union. He made his choice when he participated in
the secret-ballot election. Certifications by the Board based upon secret-ballot elections
must be effective for a reasonable period; and during that time even revocations of designa-
tions, e.cept in unusual situations, should not impair the validity of the certification. Appa-
lachian Power Co , 140 F. 2d 217 (C. A. 4): see also Whittier Mills. 111 F. 2d 474 (C. A. 5);
Reeder Motor Co., 96 NLRB 83: Poole Foundry Co., 192 F. 2d 740 (C. A. 4), cert. den. 324
U. S. 954; Sanson Hosiery Mills. 195 F. 2d 350 (C. A. 5).
The Respondent Partnership on or about April 18. 1953, and thereafter, and the Respondent
Corporation on and after May 5, 1953, and at all times thereafter refused and continued to
refuse to bargain collectively with the Blacksmiths and its successor, the Boilermakers,
as the exclusive representative in the duly certified bargaining unit of their employees, on
or about April 27, 1953, the Respondents shut down the plant then operated by the Respondent
Partnership and later operated by the Respondent Corporation and laid off the employees
named in the margin hereof, is and did not reinstate them until on or about May 5, 1953; the
Respondents shut down their plant and laid off these employees in order to avoid collective
bargaining with the Blacksmiths, to discourage membership in, and activities on behalf of,
the Blacksmiths and other concerted activities for the mutual aid and protection of the em-
ployees, and to interfere with, restrain, and coerce the employees in the exercise of their
rights guaranteed by the Act, and further, the Respondents and each of them on or about
May 5, 1953, and thereafter unilaterally granted wage increases and other benefits to the
employees; and by each of these acts the Respondents and each of them interfered with,
restrained, and coerced their employees in the'exercise of the rights guaranteed in Section
7 of the Act, and thereby engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (5) and (1) of the Act. Further, by reason of the shutting down of
the plant and laying off and locking out the employees named in footnote 16 the Respondents
and each of them did discriminate and are discriminating in regard to the hire or tenure or
terms or conditions of employment of these employees, thereby discouraging membership
in the Boilermakers and its predecessor union, the Blacksmiths, and the Respondents did
therefore engage in and are engaging in unfair labor practices within the meaning of Section 8
(a) 3 of the Act.
X The following named employees appeared on the list of eligible voters and they all
voted in the consent election held on January 26: Herbert Gouldsberry, Leo Chamberlain,
Andy Kundrick, Byron Williams, Paul Stockman, Harry Rupp, Floyd Bretz, John Armstrong,
and Lawrence Reynolds. Of these men, Floyd Bretz, Leo Chamberlain, Herbert Gouldsberry,
Andy Kundrick, Lawrence Reynolds, Harry Rupp, Paul Stockman, and Byron Williams re-
turned to work on May 5, 1953. Floyd Bretz, William Thomas, Harry Rupp, Andy Kundrick,
and Herbert Gouldsberry were among those who signed the so-called written direction on
June 3 which was presented to Dickey, requesting that the Blacksmiths discontinue nego-
tiating a Union contract with the Company. Charles Richards, who also voted in the election.
was one of those reinstated after the lockout but who did not vote in the election.
isFrank Allison, Floyd Bretz, Leo Chamberlain, Albert Cravens, Herbert Gouldsberry,
Andy Kundrick, Ray Morris, Lawrence Reynolds, Charles Richards, Harry Rupp, Paul
Stockman, William Thomas, Byron Williams, and Lawrence Estill.
339676 0 - 55 - 38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents and each of them as set forth in section III, above,
occurring in connection with the operations of the Respondents described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing the free flow
of commerce.
V. THE REMEDY
Having found that the Respondent Corporation has engaged in unfair labor practices, and
as the successor of the Respondent Partnership with notice of unfair labor practices engaged
in by the Partnership, the Trial Examiner will recommend that the Corporation cease and
desist therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
It has been found that the Respondent Partnership on or about April 27, 1953, discriminated
in regard to hire and tenure of employment of its employees named in footnote 16 by laying
them off and locking them out from their employment and failing to reinstate them until
May 5, 1953. It has been found that the laying off and locking up of these employees ended on
or about May 5, 1953, when they returned to their employment as employees of the Corpo-
ration. The Trial Examiner will therefore recommend that J. W. Dickey and R L Round,
the partners, and the Corporation as the successor to the Partnership, or any or each of
them, make each of the said employees whole for any loss of pay he may suffer by reason
of such discrimination by payment to him of a sum of money equal to that which he would
have earned as wages during the period August 27 through May 5, 1953, inclusive, less his
net earnings during such period in accordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289 Having found that the Respondent Partnership on April 18, 1953•,
an at all times thereafter until May 5, 1953, refused to bargain collectively in good faith
with the Union as the exclusive representative of its employees in the appropriate unit and
having found that the Corporation had notice thereof, and having found that the Corporation
since May 5, 1953, and all times thereafter, has refused to bargain collectively in good
faith with the Union as the exclusive representative of its employees in the appropriate
unit, it will be recommended that the Respondent Corporation, upon request, bargain collec-
tively with the Union with respect to wages, hours of employment, conditions of employment,
and all other matters as required by the Act. It having also been found that the Respondent
Corporation by various acts interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by the Act, it will be recommended that the Respondent
Corporation be ordered to cease and desist therefrom
Upon the consideration of the record as a whole, the Trial Examiner is convinced that the
conduct of the corporate Respondent in employing the unfair labor practice tactics it did in
order to evade its duty to bargain with the Union indicates an attitude of opposition to the
purposes of the Act generally. In order, therefore, to make effective the interdependent
guarantees of Section 7 of the Act, thereby minimizing industrial strife which burdens and
obstructs commerce, and thus effectuate the policies of the Act, it will be recommended
that the said Respondent cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record, the Trial
Examiner makes the following-
CONCLUSIONS OF LAW
1. International Brotherhood of Blacksmiths , Drop Forgers and Helpers , AFL, on and
prior to January 5, 1953 , and until on or about July 7, 1953, was a legal organization within
the meaning of Section 2 (5) of the Act. On or about July 7, 1953, said International Brother-
hood of Blacksmiths , Drop Forgers and Helpers , AFL, formally merged or amalgamated
with International Brotherhood of Boilermakers , Iron Ship Builders and Helpers of America,
AFL, with the new single union being known as International Brotherhood of Boilermakers,
Iron Ship Builders , Blacksmiths , Forgers & Helpers, AFL ; and that the international Brother-
hood of Boilermakers , Iron Ship Builders , Blacksmiths , Forgers & Helpers , AFL, is and has
been continuously since on or about July 7, 1953, a labor organization within the meaning of
Section 2, (5) of the Act, and since on or about that date has been the successor to Interna-
tional Brotherhood of Blacksmiths , Drop Forgers and Helpers, AFL.
SHIRLINGTON SUPERMARKET, INC. 579
2. All production and maintenance employees of the Respondent Partnership employed at
its Lisbon plant, exclusive of all office and clerical employees, professional employees,
guards, and supervisors as defined in the Act, constituted and constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act.
3. International Brotherhood of Blacksmiths, Drop Forgers and Helpers, AFL, was, on
February 2, 1953, until on or about July 7, 1953, the exclusive representative of all the em-
ployees in the above-described unit for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act; and thereafter, from on or about July 7, 1953, and at all
times thereafter, International Brotherhood of Boilermakers, Iron and Ship Builders, Black-
smiths, Forgers and Helpers, AFL, was and has been continuously the exclusive represen-
tative of all of the said employees in the above-described unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on April 18 and 25, 1953, and until on or about May 5, 1953, to bargain in
good faith with International Brotherhood of Blacksmiths, Drop Forgers and Helpers, AFL,
as exclusive representative of the employees In the above-described unit, the Respondent
Partnership engaged in unfair labor practices affecting commerce within the meaning of
Section 8 (a) 5 of the Act; that by refusing on or about May 5, 1953, and at all times there-
after, to bargain in good faith with International Brotherhood of Blacksmiths, Drop Forgers
and Helpers, AFL, and its successor International Brotherhood of Boilermakers, Iron and
Ship Builders, Blacksmiths, Forgers & Helpers, AFL, as the exclusive representative of
the employees in the above-described unit, the corporate Respondent has engaged in and is
engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a), (5)
of the Act.
5. By discriminating in regard to the hire and tenure of employment and in the terms and
conditions of employment of the employees named in the margin hereof rr by laying them off
and locking them out on or about April 27, 1953, the Respondent Partnership engaged in un-
fair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
6. By interfering with, restraining, and coercing the employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent Partnership has engaged in, and
the Respondent Corporation has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
The aforesaid unfair labor practices are unfair labor practices affecting commerce within
the meaning of Section 2 (6) and (7) of the Act.
(Recommendations omitted from publication.]
rn Frank Allison Andy Kindrick Paul Stockman
Floyd Bretz Ray Morris William Thomas
Leo Chamberlain Lawrence Reynolds Bryon Williams
Albert Cravenes Charles Richards Lawrence Estill
Herbert Gouldsberry Harry Rupp
SHIRLINGTON SUPERMARKET, INC., and Its Subsidiaries,
SHIRLEY FOOD STORE NO. 1, INC., SHIRLEY FOOD
STORE NO. 2, INC., SHIRLEY FOOD STORE NO. 5, INC.,
SHIRLEY FOOD STORE NO.. 6, INC., and WESTMONT
SUPERMARKET, INC. and LOCAL 1501 , RETAIL CLERKS
INTERNATIONAL ASSOCIATION, AFL. Case No. 5-CA-775.
April 29, 1954
DECISION AND ORDER
STATEMENT OF THE CASE
Upon a charge filed on September 22, 1953, by Local 1501,
Retail Clerks International Association, AFL, herein called
108 NLRB No. 90.