The Bedford-Nugent Corp.

National Labor Relations Board - Board Decisions

Feb 23, 1965

151 N.L.R.B. 216 (N.L.R.B. 1965)

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees may communicate directly with the Board's Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capital
8-0611, Extension 4271, if they have any question concerning this notice or compli-
ance with its provisions.
The Bedford -Nugent Corp ., James L. Nugent , Jr., and James
Nugent , Sr. and Chauffeurs, Teamsters and Helpers Local
Union No. 215 , International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
Evansville Materials , Inc., Henderson Materials , Inc., and Arnold
W. Mulzer, Roland P. Mulzer and Edgar C. Mulzer, a Partner-
ship , d/b/a Mulzer Brothers and Chauffeurs, Teamsters and
Helpers Local Union No. 215, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica. Cases Nos. 25-CA-1656 and 25-CA-1685. February 23, 1965
DECISION AND ORDER
On December 16, 1963, Trial Examiner Ivar H. Peterson issued
his Decision in the above-entitled proceeding, finding that Respond-
ent, The Bedford-Nugent Corp., had engaged in and was engaging
in certain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth
in the attached Decision. He further found that Respondent
Bedford-Nugent, and James L. Nugent, Jr., and James Nugent,
Sr., as individual Respondents, had not engaged in certain other
unfair labor practices alleged in the complaint and recommended
that such allegations be dismissed. He also found that Respondent
Evansville Materials, Inc., Henderson Materials, Inc., and Arnold
W. Mulzer, Roland P. Mulzer and Edgar C. Mulzer, a partnership,
d/b/a Mulzer Brothers, had not engaged in the unfair labor
practices alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, Respondent Bedford-Nugent
and the General Counsel filed exceptions to the Trial Examiner's
Decision and supporting briefs, and Respondent Mulzer Brothers
filed a brief supporting the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has con-
151 NLRB No. 26.
THE BEDFORD-NUGENT CORP., ET AL. 217
sidered the Trial Examiner's Decision, the exceptions and briefs,
and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations
Act, as amended, the Board hereby adopts as its Order the Order
recommended by the Trial Examiner, and orders that Respondent,
The Bedford-Nugent Corp., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon separate charges duly filed 1 by Chauffeurs, Teamsters and Helpers Local
Union No. 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, the General Counsel of the National
Labor Relations Board, by the Regional Director for Region 25, issued a consolidated
complaint on March 29, 1963, against the several Respondents herein,2 alleging that
the Bedford-Nugent Respondents had engaged in unfair labor practices violative of
Section 8(a) (1), (3), and (5) of the Act, and that the Tell City Respondents had
engaged in unfair labor practices violative of Section 8 (a) (1) and (3) of the Act.
More specifically, the complaint as amended, alleged that the Bedford-Nugent
Respondents unlawfully threatened to close down operations, discriminatorily laid off
or terminated 21 employees, illegally refused to bargain with the Union, and in
retaliation against their employees' union activities sold their sand and gravel opera-
tions and discharged all employees on July 31, 1962; and that the Tell City Respond-
ents, after acquiring the Bedford-Nugent sand and gravel operations, discriminatorily
refused to employ 26 named persons, formerly employed by the Bedford-Nugent
Respondents, because of their membership in and activities in behalf of the Union.
In their answers, the Respondents denied the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held in Evansville, Indiana, before Trial Exam-
iner Ivar H. Peterson, commencing June 10 and ending June 20, 1963. All parties
were represented by counsel and were afforded full opportunity to present evidence
and participate in the hearing. Briefs filed by the General Counsel and the Respond-
ents have been duly considered. Disposition of the Respondents' motions to dismiss
the complaint, upon which ruling was reserved at the conclusion of the hearing, is
made by the following findings and recommendations.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
The Bedford-Nugent Corp., an Indiana corporation, with its principal office and
place of business in Evansville, Indiana, was engaged principally in the extraction,
preparation, and sale of river sand and gravel, at facilities in Indiana and Kentucky,
prior to the cessation of such operations on July 31, 1962. Sand and gravel produced
at and sold from its Indiana facilities during the 12-month period ending July 31,
1962, to points outside the State of Indiana, exceeded $50,000 in value. James
Nugent, Sr., and James L. Nugent, Jr., are, respectively, president and vice president
'In Case No. 25-CA-1656, the original charge was filed on October 4, 1962, and an
amended charge on January 23, 1963; the original charge in Case No. 25-CA-1685 was
filed on December 4, 1962.
2 For convenience, the Respondents in Case No. 25-CA-1656 are referred to as the
Bedford-Nugent Respondents, and those in Case No. 25-CA-1685 are referred to as the
Tell City Respondents.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Respondent Bedford-Nugent. I find that at all times material the Bedford-
Nugent Respondents were and are employers engaged in commerce within the mean-
ing of the Act.3
Respondent Mulzer Brothers is a partnership equally owned by Arnold, Roland,
and Edgar Mulzer, with its principal office and place of business at Tell City, Indiana,
and is engaged, inter alia, in the business of quarrying and the production, sale, and
distribution of sand, gravel, and limestone. It operates facilities in Indiana and Ken-
tucky, and annually produces and sells materials valued in excess of $50,000 from
its locations in these States which are delivered to customers located outside these
States.
Evansville Materials, Inc., an Indiana corporation with its principal office and place
of business in Evansville, Indiana, is engaged in the production, sale, and distribution
of sand and gravel. Since August 1, 1962, Respondent Evansville purchased and
caused to be delivered to its places of business in Indiana from points outside the
State of Indiana, goods and materials valued in excess of $50,000.
Henderson Materials, Inc., a Kentucky corporation with its principal office and
place of business in Henderson, Kentucky, is engaged in the sale and distribution of
sand and gravel. Although it was stipulated that Henderson Materials, in the period
August 1, 1962, through May 31, 1963, made purchases from outside the State of
Kentucky in the total value of $4,844.66, there is no evidence that the business of
this Respondent, viewed apart from the business of and its relationship with the other
Tell City Respondents, meets the Board's jurisdictional standards. However, the
complaint alleges that the Tell City Respondents are "affiliated businesses, with com-
mon partners, officers, owners, directors and/or operators and constitute a single
business enterprise." These Respondents deny that they are in effect a single enter-
prise and further deny that Henderson Materials is an employer engaged in commerce
within the meaning of the Act.
The three Mulzer brothers are the sole owners of Mulzer Brothers, and are the
sole stockholders of each of the corporate respondents (Evansville Materials and
Henderson Materials), which they caused to be formed in July 1962 to take title to
the real and personal property of Bedford-Nugent used in connection with the sand
and gravel operations of the latter. Each of the brothers is a director and officer in
each of the corporations, and participates in the management and operation of the
partnership and the corporations. According to Roland Mulzer, the two corporations
were created primarily for "liabilities reasons" and because of the substantial differ-
ences in the tax provisions and corporate filing requirements of the two States, Indiana
and Kentucky, in which operations are conducted.
Prior to the acquisition of the Bedford-Nugent properties, Mulzer Brothers oper-
ated, inter aka, three limestone quarries in Indiana and had four storage yards for its
aggregate in that State. When the sand and gravel operations of Bedford-Nugent
were purchased by the Tell City Respondents, the Rockport and Evansville, Indiana,
yards of Bedford-Nugent were purchased by Evansville Materials, and Respondent
Henderson Materials acquired the Henderson, Kentucky, yard. The legal ownership
of the various items of Bedford-Nugent river equipment acquired (e.g., tugboats,
barges, derricks, and diggers) was vested in one or the other of the two corporations.
The new properties and equipment acquired from Bedford-Nugent have been operated
in conjunction with the theretofore existing comparable operations of Mulzer Broth-
ers. Employees and equipment are shifted from one location to another, as needed,
without regard to whether the partnership or one of the corporations employs the
men or owns the equipment. The three entities are not only under the common
ownership and control of the three Mulzer brothers and have a high degree of inter-
relationship in operations, but also have a centrally controlled and common policy
with respect to labor relations. I find, in view of the common ownership and con-
trol, the high degree of integration of operations and personnel, and the fact that their
policies, including labor policy, are centrally controlled and determined, that the Tell
City Respondents (Mulzer Brothers, Evansville Materials, Inc., and Henderson Mate-
rials, Inc.) constitute a single employer within the meaning of Section 2(2) of the'
Act, and that, singly and collectively, they are engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union, Chauffeurs, Teamsters and Helpers Local Union No. 215, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act.
3In a prior proceeding, to which reference will hereafter be made, the Board asserted
jurisdiction over Respondent Bedford-Nugent. See The Bedford-Nugent Corp., 137 NLRB
1030, enfd. as modified 317 F. 2d 861 (C.A. 7).
THE BEDFORD -NUGENT CORP., ET AL. 219
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and summary of events
1. The two prior proceedings
Essential to an understanding of the present proceeding is the background furnished
by two prior unfair labor practice proceedings involving Respondent Bedford-Nugent
and the Union, one concerning refusal-to-bargain charges against Bedford-Nugent
(Case No. 25-CA-1467, reported at 137 NLRB 1030, enfd. as modified 317 F. 2d
161 (C.A. 7)), and the other concerning violations of Section 8(b)(1)(A) found to
have been committed by the Union (Case No. 25-CB-473, reported at 137 NLRB
573). Both of these earlier cases had their setting in the organizational efforts of the
Union which commenced in September 1961, a strike that was conducted from the
latter part of that month and ending October 30, 1961, and the refusal of Bedford-
Nugent to recognize the Union as the exclusive representative of its employees.
The Board's Decision in the case in which the Union was the respondent issued on
June 11, 1962. Adopting the findings of Trial Examiner Whittemore, the Board found
that the Union, in the course of the 1961 strike, had restrained and coerced Bedford-
Nugent employees by certain conduct of its vice president,,Glenn Wilkinson, in plac-
ing nails and tacks in and around the highway and driveways leading to Bedford-
Nugent facilities, thereby damaging employees' property and interfering with ingress
to and egress from the Bedford-Nugent premises; brandishing an air pistol and firing
pellets therefrom at trucks of Bedford-Nugent and its customers entering Bedford-
Nugent premises; and damaging the automobile of an employee because the employee
crossed the picket line and worked during the strike.
On June 28, 1962, the Board issued its decision in the case in which Bedford-Nugent
was the respondent, in substance, adopting Trial Examiner Whittemore's findings that
Bedford-Nugent had engaged in various acts of interference, restraint, and coercion
and had unlawfully refused to bargain with the Union. Briefly stated, the Board
found that Bedford-Nugent had violated Section 8(a)(1) of the Act by requesting
employees to act as informers about the union activities of their fellow employees and
inquiring how the Union could be circumvented, by asserting in response to a request
for recognition that such would not be granted until every employee had been ques-
tioned as to whether he had signed a union card and why he belonged to a union;
by threatening to sell out or close the business before recognizing a union; by threat-
ening a picket that unless he abandoned the strike he would not be taken back after
the strike was over; and by granting and announcing a wage increase for a number of
employees the same day that it received the Union's first request for recognition.
With respect to the refusal-to-bargain charge, the Board found that the Union repre-
sented a majority of the employees in an agreed-upon unit on and after September
26, 1961,4 and rejected as without merit a contention of Bedford-Nugent that some of
the Union's authorization cards had been obtained by duress. As a further defense
to the refusal-to-bargain charge, Bedford-Nugent had contended that it entertained
a good-faith doubt regarding the Union's majority status. The Board, however, after
considering Bedford-Nugent's entire course of conduct, concluded that it "refused
the Union's requests for recognition not because it doubted the Union's majority or
the appropriateness of the unit, nor because it was awaiting a Board election, but
because it was seeking to forestall collective bargaining with a majority union in an
appropriate unit in violation of its obligations under the Act." Accordingly, the
Board ordered Bedford-Nugent to bargain with the Union and to cease and desist
from the unfair labor practices found. In due course, the Board petitioned the Court
of Appeals for the Seventh Circuit for enforcement of its Order against Bedford-
Nugent. The court's decision was handed down on May 29, 1963, shortly before the
hearing in the present proceeding, affirming the Board's findings of violation of Sec-
tion 8(a)(1) of the Act but concluding that the record did not support the Board's
finding that Bedford-Nugent was guilty of a Section 8(a) (5) violation. In determin-
ing that Bedford-Nugent's claim of good-faith doubt of the Union's majority status
was established, the court said:
It is important in evaluating the existence of good faith in this case that the
time element be consideied. According to the Board's own findings, not more
4 The Board found that on September 25, when the first request for recognition was
made, the Union had 33 authorization cards from employees in a unit consisting of a
maximum of 66 employees ; that immediately after a further request for recognition on
the morning of September 26, 2 more employees signed cards , that additional employees
signed cards after September 26 ; and that 45 employees participated in the strike which
started about noon on September 26.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than eight days expired between the time when the Union started its solicitation
and when the Company, previously unumonized, and with no anti-union history,
experienced a Union inspired strike. Added to this is the fact that on Septem-
ber 26, at the time Union president Arden made his request for recognition, the
Union did not in fact have authorization cards from a majority of the employ-
ees. The good faith of the Company must be viewed in the light of the rapidity
with which the events developed.
Parenthetically, it may be noted that the Company sought to introduce evi-
dence of Union coercion of employees in obtaining authorization cards, but this
line of evidence was excluded by the trial examiner. We agree with the Board
that one of the best ways to determine coercion of an employee is an examination
of the employee himself, however, when good faith of the employer is the issue,
evidence known to the employer that the union is employing strong-arm tactics
or threats on any of the Company's employees seems to us to be relevant....
In the instant case, the respondent's belief (not frivolous) that the Union had
threatened employees, coupled with the fact that the Union did not have a
majority when the first demand for recognition was made, and the brief span of
time in which the Union's "blitz" organization campaign took place, all combine
to establish the Company's claim of a good faith doubt of majority status. . . 1
I That the Company's belief that employees were being coerced was not frivolous is
supported by another Board decision growing out of this Caine labor controversy.
Though the conduct complained of therein took place after the start of the strike, we
take judicial notice of it in view of the exclusion of testimony in the instant proceed-
ing tending to show the methods and tactics of the Union orgnaizers. [The court
then cited the Board's decision involving the Union (137 NLRB 573) and summarized
the Board's findings.]
2. The April and June 1962 strikes for recognition
On April 11, 1962, following issuance of the Trial Examiner's Intermediate Report
on April 6, in Case No. 25-CA-1467, finding that Bedford-Nugent had unlawfully
refused to bargain, the Union renewed its request for recognition and bargaining. By
letter dated April 13, Respondent Bedford-Nugent refused recognition, stating that it
did not believe the Union represented a majority and offering to consent to a Board
election. On April 18 the Union called a strike, which lasted a week. During the
strike, Bedford-Nugent offered to abide by the Board's Decision in the pending case,
provided the strike was terminated. In the latter part of April, following a meeting
between representatives of the Union and Bedford-Nugent, Arthur Donovan, attorney
for Bedford-Nugent, drew up a proposed settlement agreement which he signed on
behalf of Bedford-Nugent. The Union, however, did not accept the agreement, for
the stated reason that it deemed the proposal illegal.
At a meeting on June 24, 1962, the Union determined to strike Respondent Bedford-
Nugent the following day, but that only a few pickets would be posted at the several
facilities while the rest of the employees would continue to work. Apparently this
strategy was adopted in the belief that the strike would be just as effective as if all
union members went on strike, and also in the belief that should those who continued
to work be laid off they would be entitled to collect unemployment benefits. Picket-
ing began on June 25, and that afternoon the Union sent a telegram to Bedford-Nugent
demanding recognition and a meeting to discuss negotiation of a collective-bargaining
agreement. In a reply dated June 26, Bedford-Nugent accused the Union of having
"flagrantly violated" the "agreement"-apparently referring to the proposed settle-
ment of April which the Union had rejected-and again expressed doubt as to the
Union's claimed majority. With respect to the latter position, the Respondent stated
"the lack of employee response to this strike action only serves to convince this Com-
pany that your union does not represent a majority of the employees in your described
unit," but expressed its willingness to meet within 24 hours "in an effort to arrive at
some satisfactory method of determining your alleged claim of majority status." The
Union replied on June 27, offering to submit signed cards to a neutral party provided
the Respondent agreed that if a majority were thus demonstrated the Respondent
would grant recognition.
As stated above, the Board's Decision in Case No. 25-CA-1467 issued on June 28
By letter of July 2, the Union, referring to the Decision of the Board, demanded a
meeting within 24 hours to negotiate an agreement. On July 6, Attorney Donovan
replied, reiterating the Respondent's claim of a good-faith doubt as to the Union's
majority status and offering to cooperate in arranging a Board election. The Union
again demanded a meeting on July 12, stating also that "our majority status has now
been decided by the Labor Board and there is no need to have an election since the
THE BEDFORD -NUGENT CORP., ET AL. 221
Board has ordered your company to bargain with the Union." Attorney Donovan
on behalf of the Respondent replied on July 13, again refusing recognition and assert-
ing that the Respondent had "a good faith doubt that your union represents a majority."
3. The June-July layoffs by Bedford-Nugent
After the strike and picketing began on June 25, 1962, Bedford-Nugent continued
to operate until July 31, when the sale of its sand and gravel operations to the Tell
City Respondents was completed. During the first week of the strike, Bedford-Nugent
laid off 19 employees,5 and on July 6, an additional 2 employees, William Blythe and
Clifford Gordon, were laid off. All of these employees were adherents of the Union.
Except for two (Garland Edwards and Clifford Gordon) who were recalled for brief
periods during the latter part of July,6 none of these laid-off employees was there-
after employed by Bedford-Nugent. Alex Burton, a delivery truck driver, was. the
only union adherent who was not laid off and who continued to work until Bedford-
Nugent went out of business on July 31. On the other hand, employees on the pay-
roll at the beginning of the strike, who were not members or supporters of the Union,
continued, with some few exceptions, to work throughout July, some with substantial
amounts of overtime.?
The extent to which Bedford-Nugent's operations were affected by the strike and
picketing is not fully disclosed by the record. It does appear, however, that in general
drivers for customers did not cross the picket lines and that sales were substantially
lower than normal. During the months of May, June, and July in the 3 years 1960,
1961, and 1962, sales of sand and gravel were as follows, in tons:
Year May June July
1960----------------------------------------------------------- 60,000 57,000 66,760
1961---------------------------------------------------------- 52,000 63,000 59,800
1962----------------------------------------------------------- 48, 000 43,000 20,160
The record does not permit a comparison of current production with sales during the
strike period, although the evidence shows that dredging operations continued in
order to obtain aggregate in fulfillment of a contract with the Dravo Corporation.
4. Bedford-Nugent sells its business to Tell City Respondents
According to James L. Nugent, Jr., vice president of Bedford-Nugent, serious dis-
cussions were had with Mulzer Brothers relative to the latter acquiring Bedford-
Nugent's business as early as 1955 or 1956. He further testified that in the winter
and spring of 1962 the sale "had crystalized." Roland Mulzer, the principal witness
for the Tell City Respondents, testified that negotiations with the Nugents had been
going on for a number of years, but it was not until April or May 1962 that Mulzer
Brothers retained counsel to represent the partnership in connection with the purchase
of the Bedford-Nugent properties. Whatever the course of negotiations and the period
covered by them-and on these matters the record is unrevealing as to details-it was
not until July 1962 that definite steps were taken to consummate the sale. The two
corporate Tell City Respondents were formed in July (one on July 9 and the other
on July 13) for the purpose of acquiring the Bedford-Nugent properties. Nugent,
Junior, testified that the sale was concluded in principal 2 or 3 weeks before the
July 31 closing date, and that the parties, in order to have a convenient cutoff date,
waited until the end of the month to sign the necessary documents.
s The names of the employees and the dates they were laid off are as follows : June 25-
Richard Kratzer , Donald Lancaster, William Lancaster, and John Newman ; June 26-
John Amos, Rachel Garchson, and Virgil Phillips ; June 28-Walter Brackett, Harry
Campbell, Cecil Colburn, Roland McLain, Jesse Lee, and James Vincent; June 29-Ernest
Blythe, Donald Gordon, and Ora Ice; June 30-Garnett Baker, Garland Edwards, and
Leslie Tinsley.
O Edwards was called back on July 30 and worked 21 days ; Gordon worked 241/ hours
during the pay period ending July 30
7 The Bedford-Nugent payroll records show that Paul Bateman and George Keller last
worked during the period ending June 30; that James Payne's last pay period was the
one ending July 9; and that Eugene Horn did not work after the period ending July 23.
The record does not disclose the reason for their not working after the period indicated.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the close of business on July 31, Bedford-Nugent notified its land-based employ-
ees it was closing down all operations and that they were terminated at the close of
business that day. The river crews were similarly advised the morning of August 1.
At approximately 4:45 p.m., on July 31, Bedford-Nugent delivered by messenger a
letter to the Union announcing that it was as of that date closing down and would
not thereafter operate its river and land operations. The reason assigned for this
action was that it "has just been impossible to operate efficiently due to your picket
line." Nothing was said in the letter to the Union about the sale of the business to
the Tell City Respondents.8
The Tell City Respondents took over operations on August 1. The river crews
then operating in the Tell City area were informed by Vice President Nugent of
Bedford-Nugent that they were terminated by that concern. The employees then
went to Mulzer Brothers' office in Tell City where they filled out applications for
employment. After an interval of waiting, while some final arrangements such as
insurance coverage for the equipment were made by Tell City Respondents, the
employees (other than Garland Edwards) were told by Roland Mulzer they were
hired and should return to their regular jobs. Garland Edwards, who had been
recalled by Bedford-Nugent on July 30 to work on the No. 8 dredge in place of an
employee who had quit, was told by Roland Mulzer that he was not needed, and his
place was taken by Roy Chapman.
The Tell City Respondents began operations at the former Bedford-Nugent Rock-
port and Henderson yards about a week after August 1. The Evansville yard remained
closed until the early part of September, as the Tell City Respondents were supplying
customers in that area through their yards at Newburgh and Dogtown, which are in
the vicinity of Evansville.
In the meantime, the Union sought to find out what disposition Bedford-Nugent had
made of its business and to initiate collective-bargaining. Clifford Arden, union presi-
dent, on August 8 wrote to Bedford-Nugent stating he had information Bedford-
Nugent had not gone out of business but was still operating dredges on the Ohio
River. In reply, Bedford-Nugent affirmed that it had shut down all operations and
denied that it was operating any dredges on the Ohio River. On August 13 Arden
wrote President Nugent and asked to be informed "to whom you have sold your
corporation" in order that the Union might demand recognition of that concern.
Attorney Donovan replied on August 16, stating that the Bedford-Nugent Corpora-
tion still existed, but that all assets pertaining to the sand and gravel operations had
been sold. The next day the Union's president wrote to Bedford-Nugent, stating that
he "would still like an answer to just one question. To whom did Bedford-Nugent
sell their sand and gravel operations?" Attorney Donovan replied on August 18,
as follows:
Answer: The Bedford Nugent Corporation did NOT sell its sand and gravel
operations, as we have told you consistently. The Bedford-Nugent Corporation
has just ceased operating its sand and gravel operations.9
A number of the Bedford-Nugent employees who were laid off after the strike began
on June 25 filed claims for unemployment compensation benefits with the Indiana
Employment Security Division. A decision of the appeals referee was rendered on
August 17, denying eligibility for benefits to the claimants for the June 25 to July 31
period on the ground that unemployment was due to participation and interest in the
labor dispute which caused their unemployment. This determination was discussed
at a meeting of a group of the unemployed Bedford-Nugent workers at the Union's
hall on September 4, and as a result it was decided that picketing of the former
Bedford-Nugent facilities would be terminated and the laid-off employees would
apply for work at the Evansville yard. Accordingly, a group of some 20 or 25
went to the Evansville yard, accompanied by Glenn Wilkinson, union vice president.
On behalf of the group, Wilkinson told an employee of Mulzer Brothers with whom
he spoke, Kenneth Drexler, that the men were applying for reinstatement. After
communicating by radio telephone with Roland Mulzer, Drexler handed out applica-
tion forms, which were filled out and returned by most of the group, and informed
the applicants that if work became available they would be notified.
8 The following day, August 1, an article appeared in The Evansville Courier, based
on a press release furnished by Bedford-Nugent, which reported the closing of the business
and that in a statement issued the preceding day President Nugent "said the Company
found it impossible to operate efficiently due to the picket line "
9 No explanation was given for the apparent inconsistency between this statement and
Donovan's letter 2 days earlier, in which he advised Arden that assets pertaining to the
sand and gravel operations had been sold.
THE BEDFORD -NUGENT CORP., ET AL. 223
None of the Bedford-Nugent employees who participated in the June 25, 1962,
strike, nor any of the union adherents who were laid off during the course of it, were
hired by the Tell City Respondents.
B Issues and contentions as to the Bedford-Nugent Respondents
The issues with respect to the Bedford-Nugent Respondents relate principally to
the layoff of 21 employees following the strike which began on June 25, 1962, the
closing down and sale of the business on July 31, with the consequent termination of
all employees, and the refusal of these Respondents to bargain with the Union on and
after April 4, 1962. According to the complaint, the 21 employees were laid off
because of their union membership and activities and because these Respondents pre-
ferred for employment employees who had not engaged in or had renounced or aban-
doned such activities. Bedford-Nugent, on the other hand, asserts that the layoffs
were attributable to loss of business and decreasing sales occasioned by the Union's
effective strike, and that employees were selected for layoff on a nondiscriminatory
basis. The closing down and sale of the sand and gravel operations, and the resulting
discharge of all employees, are alleged to have been due to the fact that a substantial
number of the employees joined or assisted the Union or engaged in other union or
concerted activity, and in order to evade or avoid Bedford-Nugent's obligation to
bargain with the Union. The complaint alleges that Bedford-Nugent unlawfully
refused to bargain with the Union on and after April 4, 1962, by refusing to recognize
or meet with the Union, on various dates specified, as the exclusive representative of
its employees in an appropriate unit; by selling and teimmating its sand and gravel
operations without adequate notice to the Union and without affording the Union an
opportunity to bargain concerning the termination of operations and the effect thereof
on employees, and by failing and refusing to furnish information as to the identity
of the purchaser of the properties.
The Bedford-Nugent Respondents contend that the decision to liquidate and go
out of the sand and gravel business was prompted by legitimate business reasons in
an endeavor to save business investment. In support of this contention, Bedford-
Nugent adduced testimony to the effect that economic factors affecting the business
and personal considerations of the owners, coupled with the fact that Mulzei Brothers,
who for a number of years had been interested in acquiring the business, made an
attractive offer for the equipment and properties, persuaded the owners that it was
advisable to get out of the aggregate business. These economic factors and personal
considerations will be treated infra. Additionally, these Respondents contend that
they had the absolute right to go out of business permanently and that, even if union
animosity contributed to such decision, no violation of the Act was thereby committed.
With respect to the refusal-to-bargain charge, Bedford-Nugent Respondents contend
that the Union was not entitled to exclusive recognition and point to the decision of
the court of appeals in the earlier case sustaining their contention of a good-faith
doubt of the Union's majority status (a position these Respondents have steadfastly
maintained throughout the events covered by the present proceeding.)
C. Concluding findings as to the Bedford-Nugent Respondents
1. The refusal to bargain
a. The appropriate unit
In Case No. 25-CA-1467 the Board found, in agreement with the stipulation of
the parties thereto, that the appropriate unit consists of "all employees of the Respond-
ent [Bedford-Nugent], including river crews, employed at its Rockport and Evansville,
Indiana, and Henderson, Kentucky, establishments, excluding all office clerical
employees, professional employees, guards, and supervisors as defined in the Act."
The complaint herein alleged that the aforesaid unit was appropriate, and no evi-
dence was adduced at the hearing tending to show that at any time material herein
the unit as found by the Board ceased to be appropriate. Accordingly, I find that
at all times material the aforesaid unit was appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
b. The Union's representative status
In the prior case, the Board found that the Union on September 26, 1961, and at
all times thereafter, represented a majority of Respondent Bedford-Nugent's employ-
ees in the aforesaid appropriate unit. Paragraph 9(b) of the complaint herein alleged
that "Prior to April 4, 1962, a majority of the employees of Respondents Nugents in
the unit described . . . designated or selected the Union as their representative for
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the purposes of collective bargaining," and Paragraph 9(c) alleged that at all times
since April 4, 1962, the Union was the exclusive representative of the employees in
the described unit.
At the outset of the hearing, the Bedford-Nugent Respondents moved to dismiss
the complaint, both generally and particularly with respect to the refusal-to-bargain
allegations. These Respondents asserted that the decision of the Court of Appeals
for the Seventh Circuit, which was handed down after issuance of the complaint but
prior to hearing, denying enforcement of the Board's refusal-to-bargain order in the
earlier case, established that the Union was not the representative of an uncoerced
majority and thus necessitated dismissal of the refusal-to-bargain allegations. Counsel
for the General Counsel, in response to my inquiry, stated that while he was not
retreating from the position that the Union's majority status must be regarded as
established in September 1961, as found by the Board in the eailier case, he took the
further position that the refusal-to-bargain allegations of the complaint could be
supported without regard to the Board's prior findings. In denying the motion to
dismiss the Section 8(a)(5) allegations, I stated that I deemed myself bound by the
Board's determinations in the earlier case relative to appropriate unit, majority status
of the Union, and the refusal to bargain, and thus stated that I perceived "no present
necessity for litigating the majority status [of the Union] as of the spring or summer of
1962." Counsel for the General Counsel indicated agreement with my view. Later
in the hearing, counsel for the General Counsel offered in evidence a quantity of union
authorization cards bearing dates on and after June 28, 1962.10 The following col-
loquy then occurred, after which the cards were received in evidence.
Mr. KENNY: We would at this time offer General Counsel's Exhibits 33-A
through 33-FF into evidence.
Mr. DONOVAN: I might first ask for what purpose, if I may.
Mr. KENNY: The purpose of showing continuous union adherence of the
people who signed the cards, to show that they
Mr. DONOVAN. In other words, attempting to establish a majority status.
Mr. KENNY: We're not attempting to establish a majority. The majority was
established by the Board.
Mr. DONOVAN: I see. So we have-at least the purpose is not to establish
the majority status at this time. You say it was previously established by the
Board, itself. Is that correct?
Mr. KENNY: That's right.
Mr. DONOVAN: All right. So that's the purpose.
Consistent with the foregoing exchange, counsel for the General Counsel then stated
that he relied upon the Board's prior decision as establishing the appropriate unit and
majority status allegations of the complaint.
While I deem myself bound by the Boaid's Decision in the earlier case, including
its finding that the Union represented a majority of the employees in the appropriate
unit on September 26, 1961, and the record before me plainly establishes that Bed-
ford-Nugent refused to recognize or bargain with the Union as the exclusive repre-
sentative, that does not dispose of this aspect of the case Although the court of
appeals did not reject the Board's finding that the Union had been designated by a
majority of the employees on September 26, 1961, it concluded, however, that Bed-
ford-Nugent, contrary to the Board's finding, did have a good-faith doubt of the
Union's majority. In my view, this determination by the court of appeals constitutes
the law of that case, and precludes me from relying upon the Board's majority finding
there made as establishing that on and after April 4, 1962, the Union was the exclusive
representative of Bedford-Nugent's employees in the appropriate unit. No other evi-
dence was offered to prove that the Union did in fact represent a majority following
April 4, 1962. The authorization cards signed on and after June 28, 1962, were not
offered by counsel for the General Counsel to prove the Union's majority; he specif-
ically stated that in offering these cards he was "not attempting to establish a majority,"
because that had been "established by the Board," but that they were being offered for
the "purpose of showing continuous union adherence of the people who signed"
them. It seems plain that in view of the limited purpose for which these cards were
offered, together with the General Counsel's expressed reliance on the Board's majority
status finding in the earlier case as carrying over and constituting proof of continuing
10 It will be recalled that on June 27 the Union wrote Bedford-Nugent offering to submit
signed authorization cards to a neutral person in order to demonstrate its majority status.
Union Vice President Wilkinson, through whom the cards referred to in the text were
offered, testified that at a meeting in June during the course of the strike authorization
cards were distributed to the striking employees present with the explanation "that we
might have to again sign cards . . . that we wanted to be prepared "
THE BEDFORD-NUGENT CORP., ET AL. 225
majority status as of the period subsequent to April 4, 1962, it would be improper
to consider the cards for the purpose of establishing the Union's majority during the
critical period here involved. But even if the cards may be so considered, they
obviously cannot be regarded as valid designations as of a date earlier than that on
which signed. In short, I conclude and find that the record fails to establish that the
Union had been designated and selected as their representative by a majority of the
employees in the appropriate unit as of April 4, 1962, or any material date thereafter.
In view of the foregoing findings, it will be recommended that the refusal-to-bargain
allegations of the complaint be dismissed.
2. The layoffs by Bedford-Nugent
By the close of business on June 30, 1962, the first week of the strike and picketing,
Bedford-Nugent had laid off 19 of the 21 employees whose layoffs are asserted to
have been violative of the Act; the other two employees (William Blythe and Clifford
Gordon) were laid off on July 6. As we have seen above, the Union's strategy in
this strike was to limit the number of pickets to a minimum while the nonpicketing
adherents of the Union continued to work. Bedford-Nugent admittedly was aware
of this strategy. Although Bedford-Nugent's sales of products diminished substan-
tially during the course of the strike, it did not undertake to close down any of the
yards or lay up any of the river equipment. Indeed, not only did Bedford-Nugent
continue to operate, but those employees who were not laid off worked substantial
amounts of overtime from the latter part of June until the sale of the business on
July 31. Moreover, with the exception of Alex Burton, the delivery truck drivers at
the Evansville yard, who worked regularly until July 31, and Garland Edwards and
Clifford Gordon, who were each recalled for a few days during the last week in July,
no adherent of the Union worked after July 6. Conversely, of the employees on the
payroll at the beginning of the strike, all but four nonadherents of the Union it con-
tinued working until the end of July when Bedford-Nugent went out of business.
The laid-off employees were known to Bedford-Nugent to be supporters of the
Union. All of them had participated in the September 1961 strike, and several of
them picketed during the 1-week strike in April 1962. Except for Jesse Lee, each of
them testified for the General Counsel at the February 1962 hearing in Case No.
25-CA-1467. Moreover, as found by the Board in that case, Vice President Nugent
requested employees to keep him informed about union activities, and sought to
ascertain who had or had not signed union cards, and Superintendent Land also inter-
rogated employees about union activities.
That Bedford-Nugent's hostility toward the union activities of its employees, as
found in the earlier case, had not abated is evident from the antiunion remarks made
by its officials during the period here under consideration. Vice President Nugent,
according to employee Edwards' credited testimony, was overheard by Edwards to
tell Supervisor Clayton Westbrook, in April 1962, that "he would do anything he could
to get around the Union." Employee Campbell testified that after the June strike
began but before he was laid off he overheard Vice President Nugent tell Captain
Hatcher of the tugboat J. W. Bedford that "he was going to close down" and that he
"wasn't going to have the Union telling him what to do." According to employee
James Moore, Superintendent Land, shortly before the June picketing began, said in
effect that Bedford-Nugent would have no trouble if it "got rid of" all those employees
that participated in union activity. Vice President Nugent denied having had the
conversation with Captain Hatcher as testified to by Campbell; he was not questioned
about the statement attributed to him by Edwards. Superintendent Land denied that
he made the statement attributed to him by Moore I credit the testimony of the
employees, as I was more favorably impressed with their demeanor when testifying
than with the manner of Nugent or Land when they denied having made the state-
ments, and since the remarks attributed to them are consistent with the hostility
toward the Union displayed by them in the earlier proceeding.
Beford-Nugent contends that layoffs were necessitated by the drop in sales occa-
sioned by the picketing activities, and that the selection of individuals to be laid off
was on the basis of skill and experience. The decrease in sales, as shown by the
record, was substantial, and may well have required some reduction in the number of
employees. However, the generalized testimony of Vice President Nugent, that "as
our business went down we gradually laid men off," keeping those "who had the best
ability for the job at the time," hardly serves to explain the fact that by the end of
the first week of the strike 19 of the 21 employees laid off were union adherents and
after July 6, only I union supporter, truckdriver Burton, worked regularly. In its
" See footnote 7, supra.
783-133-66-vol 151 16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brief, Bedford-Nugent seeks to justify the layoff of nine of these employees 12 who
were employed on river equipment on the ground that by June 30 dredging operations
had shut down, with the result that boatcrews were not needed. The fact is, however,
that dredging operations did not cease on June 30 , but on the contrary some of the
river equipment was thereafter used to dredge sand to supply the Dravo contract
prior to the closedown on July 31.
In a number of instances laid-off employees were told that the reason for their
layoff was because of and would continue for the duration of the labor dispute.
Walter Bracket, a payloader operator at the Evansville yard, testified that when he
and James Vincent, a bargeman, were laid off on June 28, they were told by Super-
intendent Land "that this would be our last day until they took the picket line off
or something got straightened out." The next day, Robert Gaines and Cecil Wester,
both of whom had signed cards repudiating the Union in November 1961, took their
places. Roland McLain , a crane operator at the Rockport yard, also laid off on
June 28, at noon , was told by Acting Plant Manager Eugene Ford that the layoff would
continue "until the strike ... was settled." On June 29, Ford laid off three other
union adherents at the Rockport yard, Donald Gordon, Ora Ice, and Ernest Blythe,
telling them, according to Gordon's undenied testimony, that Superintendent Land
"has called me and told me to tell you three that you are not to come back after today
until the labor dispute is settled." Virgil Phillips, the second engineer on the Bedford,
was laid off on June 26, together with the rest of the crew (other than Harry Campbell
and Cecil Colburn, who worked an additional day or two on cleanup operations).
The vessel was going into drydock for repair to the propeller shaft, but Captain
Hatcher told Phillips that the employees would probably be called back within 2
or 3 days. Later that week, on June 29 or 30, Phillips asked Superintendent Land
when the crew would be going out; Land replied he did not know "if we are going
out," and that Phillips should go home and await a call. None of the Bedford crew
laid off on June 26 was recalled, although the vessel was later placed in service. On
July 12, Superintendent Land gave Phillips a "low wages report" on an Indiana
Employment Security Division form and wrote thereon that the reason for Phillips'
unemployment was that he had been "laid off due to strike "
Upon all the evidence, I am unable to agree with the contention of the Bedford-
Nugent Respondents, set forth in their brief, that "all the layoffs were necessitated
by the economic position in which the Company found itself during the period from
June 25 to July 31, and that antiunion discrimination was not a factor in any of the
layoffs." As we have seen, only one union adherent worked regularly throughout
the June 25 to July 31 period, while the record shows that by July 6 the other 21
union adherents had been laid off. In marked contrast, 24 nonadherents of the
Union (exclusive of supervisors, clerical employees, and watchmen) were on the pay-
roll for the period ending July 30, and at least 18 of them worked regularly through-
out the June 25 to July 31 period; only 4 nonunion employees on the payroll on
June 25 were terminated during the June 25 to July 31 period, and as to them the
record does not disclose whether they quit or were laid off. If it be assumed that these
4 were laid off, then we find that out of 25 employees laid off between June 25 and
July 30, 21 were union supporters, whereas of the 25 employees on the payroll and
in the appropriate unit on July 30, only 1 was an adherent of the Union
In view of such a disproportionately large number of union adherents in the ranks
of those laid off (21 to 4) and, conversely, the retention of a disproportionately large
number of nonadherents of the Union during the period after July 6 (24 out of 25),
a strong inference arises that a causal relationship exists between union adherence
and selection for layoff. I do not think that such an inference is overcome by the
conclusionary testimony of Vice President Nugent to the effect that those not laid
off were more skilled and versatile or were older in point of service. The demon-
strated hostility of Bedford-Nugent toward the union activities of its employees, the
fact that the employees selected for layoff were known to be supporters of the Union
while those retained had not engaged in such activities or had repudiated the Union,
and the marked disparity in the treatment of adherents and nonadherents of the
Union, persuade me that Bedford-Nugent was discriminatorily motivated in selecting
the 21 employees for layoff. This is not to say that no layoffs were necessitated or
that none of the union adherents would have been affected if selection had been
made for nondiscriminatory reasons. But I think it most unlikely and improbable
that absent antiunion considerations the proportion of union adherents among those
laid off and nonadherents among those retained would have been as high as in fact
was the case. On the evidence as a whole, I find that the Bedford-Nugent Respondents
" John Amos, Garnett Baker, Harry Campbell, Cecil Colburn, Garland Edwards, Rachel
Garchson, Richard Kratzer, Virgil Phillips, and James Vincent
THE BEDFORD -NUGENT CORP., ET AL. 227
laid off the 21 employees because of their desire to eliminate from their employ adher-
ents or supporters of the Union, and thereby violated Section 8(a)(3) and (1) of
the Act.
3. The cessation of business by Bedford-Nugent
The Bedford-Nugent Respondents advance a number of reasons which they con-
tend prompted them in going out of business and selling the assets and equipment to
the Tell City Respondents, and they urge that in combination these considerations
compel the conclusion that the decision to discontinue operations must be attributed
to the exercise of legitimate business judgment and was not motivated, in whole or in
part, by hostility to the Union or the union activities of their employees. These
Respondents further argue that even if union animus was a factor influencing them
to go out of business, the Act was not thereby violated. The General Counsel urges
that on analysis the explanations offered by these Respondents are lacking in merit
and that the record demonstrates that "the sale and close of operations was motivated
solely by a desire to avoid dealing with the Union."
Vice President Nugent testified that the gravel industry in the southern Indiana
area was a "dying business," and had been in a generally poor condition for some time.
Several factors contributed to this unfavorable outlook- the increased competition
from crushed limestone, which was replacing gravel as a coarse aggregate in the
building and construction industry; the poor quality of the gravel obtained from the
Ohio River in the area south of Louisville; and the more stringent specifications relat-
ing to gravel which became applicable in January 1961 on construction projects in
which Federal, State, or local funds are used.
Much of the gravel obtained from the Ohio River by Bedford-Nugent contained
excessive quantities of chert, which is a lightweight, water-absorbent aggregate that
bursts when subjected to freezing temperatures. The new specifications that went
into effect in January 1961 provided that gravel used in cement concrete surface
courses, in all exposed concrete, and in culverts could not contain more than 3 per-
cent chert. For other types of construction, such as cement concrete base courses,
foundations, and footings, and as aggregate for bituminous shoulders, the specifica-
tions permitted a maximum of 6 percent chert. Only about 5 percent of Bedford-
Nugent's gravel contained 3 percent or less chert, and Nugent, Junior, testified that
the balance of the giavel dredged had percentages of chert varying up to 15 percent.
While chert may be reduced or eliminated by the installation of a flotation refining
process, this was not feasible because of the cost involved, considering the narrow
price differential favoring gravel over stone. Aside from the chert problem, the
supply of river gravel in the vicinity of Bedford-Nugent's operations was becoming
depleted, necessitating longer barge hauls from distant gravel bars, with consequent
added expense. As of the time of the events here involved, about 65 percent of Bed-
ford-Nugent's sales were sand and it had not been successful in furnishing gravel to
major construction jobs because of the poor quality of the product and the increasing
preference of contractors for stone.
In December 1961, James Nugent, Sr , the 76-year-old president of the Company
and the directing head for many years, became seriously ill and thereafter was unable
to devote any time to the active management of Bedford-Nugent. His son, Vice
President Nugent, Junior, who had been associated with the business since 1946,
testified he was not interested in carrying on the business, after it became apparent
that his father would no longer be active, "especially since the gravel industry was
dying." Nugent, Junior, had other financial and professional interests, including real
estate holdings in Evansville and lecturing on early American history.
In late 1961, after his father had become ill and had had an operation. Nugent,
Junior, discussed the financial condition of the business with John Buchanan, a
certified public accountant, whose accounting firm had been retained by Bedford-
Nugent for many years. Buchanan testified that in 1960 the business had sustained
a loss and that in 1961 the return on invested capital was approximately 11/4 percent.
The Company had debts totaling about $575,000, exclusive of taxes and the usual
accounts payable, and a leasehold liability of $36,000 per year extending through
1969. Included in the debts was $375,000 owed by the Company to members of the
Nugent family, which loans carried an interest rate of 31/2 percent.
Nugent, Senior, and his wife had in excess of $500,000 of their personal fortune
invested in Bedford-Nugent. Because of their advancing years, Buchanan advised
that it would be desirable to get more liquidity in their estates in order to meet
inheritance taxes. A further tax consideration making it advantageous to dispose of
the business assets in 1962 was a change in the Internal Revenue Code, effective in
1963, which made gains from the disposition of depreciable property taxable as income
rather than as capital gains. Buchanan testified that by selling in 1962 Bedford-Nugent
realized a tax saving of $28,000. ,
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That Mulzer Brothers had been interested in acquiring the Bedford-Nugents' sand
and gravel properties for several years prior to 1962 is not disputed. The partnership
had access to ample supplies of limestone which was becoming more acceptable than
gravel as a coarse aggregate, and thus the opportunity for acquiring a ready source
of river sand and the equipment for dredging and processing it presented by the
availability of the Bedford-Nugent properties was understandably attractive, thereby
enabling Mulzer Brothers to offer customers both fine and coarse aggregate in a wider
market and with less competition.
Although it is recognized that the testimony concerning when serious negotiations
began between Mulzer Brothers and Bedford-Nugent for the sale of the latter's prop-
erties is of a self-servicing character and not readily susceptible of independent verifi-
cation, no reason appears for disregarding or discrediting Buchanan's testimony that
in the late 1961 conference with Nugent, Junior, the latter revealed that Mulzer
Brothers was interested in purchasing the Bedford-Nugent operating assets, that the
Nugents were desirous of selling, and that thereafter Buchanan participated in numer-
ous conferences relative to the sale. According to Buchanan, the price received by
Bedford-Nugent for the assets exceeded their book value by approximately $300,000
or 22 percent and was financially advantageous to the Nugents.
General Counsel contends that the installation of a new conveyor system by
Bedford-Nugent during the early months of 1962, at a cost of about $140,000, demon-
strates that at that time the owners of the business intended to continue in operations
and that the decision to sell was made subsequently and in order to avoid dealing
with the Union. Bedford-Nugent, however, argues that the improvements were made
in an effort to make the business more attractive for sale and also to keep the business
in a competitive position. Late in November 1961, Bedford-Nugent contracted with
an engineering firm for the installation of the conveyor system, which was completed
in the following spring. When the sale to the Tell City Respondents was made, these
Respondents assumed the outstanding obligations pertaining to the system and this
capital improvement was not treated for tax purposes as a part of the sale from
Bedford-Nugent to the Tell City Respondents.
It seems reasonable to infer from all the evidence that no firm decision to sell out
had been made by Bedford-Nugent when the construction of the conveyor system was
undertaken, and that negotiations with Mulzer Brothers did not assume a serious
aspect until the period April to July 1962.13 Thus the period during which discussions
and negotiations for the sale of Bedford-Nugent's operating assets were being held
coincided with the occurrence of major events in the labor dispute between Bedford-
Nugent and the Union, and the culmination of negotiations was reached during the
month following the beginning of the Union's third strike and the issuance of the
Board's Decision directing Bedford-Nugent to bargain with the Union. As found by
the Board in the earlier case, Bedford-Nugent at the inception of organizational
activities threatened that the business would be sold or closed before a union would be
recognized. Moreover, as I have found above, in April 1962 Vice President Nugent
was heard to say that he would do anything he could to get around the Union and
shortly after the June strike started told Captain Hatcher that he was going to close
down and did not intend to have the Union telling him what to do. I have also
found that Bedford-Nugent was discriminatorily motivated in selecting 21 employees
for layoff after the start of the June strike. These factors-the timing of the sale, the
demonstrated and continuing hostility to the union activities of its employees, and the
discriminatory selection of 21 union adherents for layoff-strongly suggest that
Bedford-Nugent determined to and did go out of business because it desired to avoid
dealing with the Union and because of its opposition to the union activities of its
employees.
On the other hand, the record shows that considerations of a nondiscriminatory
nature existed for the decision to liquidate. Operations in 1960 had resulted in a loss,
and in 1961 the return on investment was an unattractive 11/4 percent. Because of the
poor quality of gravel available, the more stringent specifications applicable to gravel
as a coarse aggregate, and the increasing use of crushed limestone instead of gravel,
the outlook for improvement in Bedford-Nugent's business was not promising. More-
over, and especially relevant in view of the fact that the business was a closely held
family operation, were considerations of a personal nature involving the elder Nugents
and Nugent, Junior. Nugent, Senior, for years the directing head of the business,
became ill in December 1961 and thereafter was unable to devote any time to manag-
ing the business. In view of his age and the nature of his illness, it was evident that
13 It will be recalled that Mulzer Brothers employed counsel in connection with the
negotiations in April or May 1962, and that Henderson Materials and Evansville Materials
were torined on July 9 and 13, respectively. It seems doubtful that these entities would
have been chartered unless negotiations had reached a final stage.
THE BEDFORD -NUGENT CORP., ET AL. 229
management responsibilities would have to be assumed by Nugent, Junior. However,
he had other interests, felt himself inadequate to cope with problems of management
in the absence of his father, and thus was not interested in continuing the business.
A further factor was the desire of the elder Nugents, who had about $500,000 of their
personal fortune invested in the business, to place their estates in a more liquid condi-
tion. Added to these economic and personal considerations was the fact that Mulzer
Brothers for some years had been interested in acquiring the business and made an
offer which was acceptable to the Nugent family and, according to the credited testi-
mony of Buchanan, the accountant who advised the Nugents, the price received by
the owners was financially advantageous to them.
After weighing and appraising the evidence, objective and subjective, bearing on
Bedford-Nugent's purpose or motivation in liquidating the business at the time it did,
no manifestly clear-cut answer is discernible to this trier of the facts. Recognizing
the Respondent's expressed hostility to unionization and the discriminatory selection
of union adherents for layoff when curtailed business made some reduction in force
necessary during the last strike, I am nonetheless not convinced that a decision to
liquidate would not have been made but for the protected organizational activity of the
employees. I have no doubt that Bedford-Nugent was desirous of avoiding dealing
with the Union; it steadfastly refused to do so and its officials expressed an intention
not to bargain with the Union even if that meant closing down or going out of business.
Aside from the fact that the court of appeals found in the earlier case that Bedford-
Nugent had a good-faith doubt of the Union's majority status and thus refused to
enforce the Board's bargaining order, and that I have found evidence of majority
status lacking in the period here under review, I am not persuaded that opposition to
dealing with the Union or to the unionization of its employees necessarily compels
the conclusion that such considerations weighed heavily or materially in the decision
to go out of business. The business had not been profitable in the 2 years preceding
the liquidation, and the outlook for the future, considering the poor quality of gravel
available and increasing competition from crushed stone, was certainly not promising.
In these circumstances it seems that good business judgment would lead the owners to
give serious consideration to an offer to dispose of the physical assets at a price in
excess of 22 percent of their book value. Moreover, it is undisputed that the elder
Nugent, who had been the guiding force in the enterprise for many years, was no
longer available to direct the business because of physical incapacity which developed
shortly after the inception of this labor dispute. In a small, closely held family
corporation such as Bedford-Nugent, this factor assumes importance, especially when
the only other owner-member of the family associated in conducting day-to-day
affairs is disinterested in carrying on the business.14
To summarize, and cognizant of the real likelihood that another trier of the facts
might reasonably reach a different conclusion, I find that the sale of Bedford-Nugent's
physical assets, with the consequent closing of the business and termination of all
employees, was motivated by the lawful economic and personal considerations set
forth above and not by animosity toward the union activities of its employees.
Accordingly, it will be recommended that the complaint, insofar as it alleges that the
Bedford-Nugent Respondents violated Section 8(a)(3) and (1) by going out of busi-
ness, be dismissed.15
D. Concluding findings as to the Tell City Respondents
The only unfair labor practice issue involving the Tell City Respondents concerns
their failure or refusal to employ 26 former Bedford -Nugent employees . Denying
any discriminatory motivation in not employing them, these Respondents ascribe the
failure to hire the alleged discriminatees to lack of jobs for which they were qualified
14 Despite its self-serving and subjective nature, I believe Nugent , Junior's testimony
that after he knew his father was no longer available to direct the business he "had no
desire at all" to remain in the business and did not regard himself as capable of running
it alone. From observing him as a witness and particularly his demeanor when the fore-
going testimony was elicited , I am persuaded that in so testifying he spoke the truth.
15 In view of my finding as to Bedford -Nugent's motivation , it has been unnecessary to
reach consideration of the applicability of the Board's Decision in Darlington Manufac-
turing Company, 139 NLRB 241, enforcement denied 325 F. 2d 682 (C.A. 4), to which both
the General Counsel and counsel for Bedford -Nugent refer in their briefs. Suffice it to say
that if I had found , as the Board there found ( 139 NLRB at 246), that the shutdown
would not have been made "but for" the protected organizational activities of the employ-
ees or was "partly due" to such activities , that Decision would have been binding upon me
notwithstanding its reversal by the court appeals. Insurance Agents' International Union,
AFL-CIO ( the Prudential Insurance Company of America ), 119 NLRB 768, 773.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the time of application and thereafter and also adduced testimony of a valid basis
for preferring other employees who were hired in jobs which were comparable to jobs
certain of the applicants had filled while in the employ of Bedford-Nugent.
As stated above, when the Tell City Respondents took over operations on August 1,
the Bedford-Nugent employees (other than Garland Edwards) then engaged in dredg-
ing activities in the Tell City area were employed by the Tell City Respondents. On
that date a total of 23 employees were hired, all of them having been immediately
theretofore in the employ of Bedford-Nugent.'° All but one of them continued on the
payroll through the fall season and was employed at the time of the hearing. Paul
Shelton, hired on August 1, worked only 1 week but was reemployed in April 1963.
As of August 1, only Garland Edwards and Archibald Stephens of the alleged dis-
criminatees had applied for employment with Tell City Respondents.17 Several regu-
lar employees of Mulzer Brothers who had been engaged in other work for that con-
cern prior to the acquisition of the Bedford-Nugent properties were assigned to sand
and gravel operations on August 1. Between August 3 and 26 Tell City Respondents,
as they activated the Rockport and Henderson yards, hired some 28 new employees,
including 1 clerical employee (Janet Klenck), in connection with the sand and gravel
operations, but 3 of these (Furman, Small, and Robert Smith) were released as of the
payroll period ending August 25, and another (Arthur Durbin) did not work after
the September 8 pay period. Thirteen of these had been recent Bedford-Nugent
employees, most of the thirteen had worked during the June strike and none of them
was a current adherent of the Union. During the period following August 1 and prior
to September 4, the only alleged discriminatees who made written application for
employment were Clifford and Donald Gordon and Roland McLain, who applied on
August 19,18 and Alex Burton, who made two applications, the first sometime in
August and the second on September 4. Excluding the alleged discriminatees and the
new hires made in August, Tell City Respondents between August 1 and September 4
had received applications from 79 other persons.
When the Union ended the strike and picketing on September 4, the following 20
alleged discriminatees made written application at the Evansville yard on that date: 19
Garnett Baker Alex Burton Ora Ice John Newman
Charles Beach Harry Campbell Richard Kratzer Virgil Phillips
Ernest Blythe William Carter Donald Lancaster Roger Rust
William Blythe Clay Damrath William Lancaster Archibald Stephens
Walter Brackett Rachel Garchson Jesse Lee James Vincent
Cecil Colburn applied several times in September after the large group had applied.
Willis Hoosier, the remaining alleged discriminatee, did not testify and I accept Roland
Mulzer's uncontradicted testimony that he never did apply.
Between September 4 and 23, Tell City Respondents hired 12 employees, including
Laura Fetscher, a former Bedford-Nugent clerical employee; so far as appears, none
of the others hired during this period except John Harrod, hired as a watchman, had
had prior employment with Bedford-Nugent. Two of these were terminated in
September (Boyd Denton and Herbert Dayman) and four were terminated in October
(Ona Few, Richard Beard, James Blanford, and Ed Lett). Paul Bateman, hired
August 20, was terminated as of the period ending September 8. During October, Tell
City Respondents hired four employees; one of these (John Swaney) worked only a
week, and another (Donald Sixx) was released November 17. Sam Sutherland, hired
August 18, was terminated in the period ending October 6.
I' This total includes Edna Schmidt, an office clerical, and the following who had been
supervisory personnel of Bedford -Nugent: Superintendent Jack Land Capt. Plummer
Hatcher, and Paul Perierra , Robert Chapman, Eugene Ford, and Clayton Westbrook.
17 Archibald Stephens, who had last worked for Bedford-Nugent during the payroll
period ending May 21, 1962, testified that he made written application at the Tell City
Respondents' of ee on July 30. From the context of his testimony, however, I am satin=
fled and find that he was there on August 1 rather than July 30. The Tell City Re-
spondents deny that he applied earlier than September 4 when he made written applica-
tion at Evansville along with a number of other alleged discriminatees. It was stipulated
however, that he made two applications, and I find the first one was made on August 1
and the second on September 4.
is The complaint , as amended , alleged and the Tell City Respondents admitted in
their answer thereto that Garnett Baker applied on August 4. His testimony, however,
makes clear that his first and only application was made on September 4 and I so find
to Although these Respondents denied having received any applications from Ernest
and William Blythe, Burton, Carter, Newman, and Phillips, I find from the credited
testimony of these applicants that they did in fact apply on September 4.
THE BEDFORD-NUGENT CORP., ET AL. 231
To summarize these employment figures, it appears that by August 26 Tell City
Respondents had hired 44 employees, excluding supervisors and clericals; however, 5
of these were released during this period, and 2 others were terminated later, in Sep-
tember (Bateman) and October (Sutherland). By August 26, only six of the alleged'
discriminatees had made application-Edwards and Stephens on August 1, the two
Gordons and McLain on August 19, and Burton sometime in August. Following
August 26 and through the month of October, 16 additional new employees were
hired and 9 were released, making a net addition of 7. During this period (August 26'
through October) 19 of the alleged discriminatees first applied for employment, all of
them on September 4 except Colburn, who applied thereafter.2o
There is no evidence that the Tell City Respondents were opposed to union mem-'
bership or activities of their employees, nor does the record show that any of the
owners and principal officials of these Respondents made any statements of an anti-'
union character. The General Counsel, however, argues that the proven animosity of
Superintendent Land during the course of the labor dispute between Bedford-Nugenti
and the Union, the testimony of Archibald Stephens placing Land in the Tell City'
office of these Respondents on July 30, and the fact that Land was present with
Roland Mulzer on August 1, when the river crews, except Garland Edwards, were
hired, compel the conclusion that Land was freely consulted by and freely advised the
Tell City Respondents on the employment of persons formerly employed by Bedford-
Nugent and, when considered together with the circumstance that none of the appli-,
cants who was an adherent of the Union was hired whereas later applicants who were
not adherents of the Union were hired, justify the inference that the Tell City Respond-
ents discriminated against these employees.
Roland Mulzer testified he called Land the morning of August 1 and asked whether
he was interested in employment as superintendent of the sand and gravel operation,
that he employed the former Bedford-Nugent employees hired on August 1 before
Land was hired, and that he did not talk to Land about these employees before hiring
Land. There is no testimony to the contrary and I credit Mulzer.21 Much is made'
by counsel for the General Counsel of the rejection of Garland Edwards on August 1,
since he was the only member of the river crews not hired that day and was the only'
adherent of the Union so employed at the time. However, Roland Mulzer testified
that Roy Chapman, previously employed on No. 8 dredge and who he understood'
had been off from work for a few days, appeared that morning for work and that he
chose Chapman instead of Edwards because Chapman was a younger man. Mulzer
denied that he knew anything at the time of the union membership or activities of
either Chapman or Edwards, and I accept his testimony concerning the employment of
Chapman rather than Edwards.22
The three former Bedford-Nugent employees at the Rockport yard who applied on,
August 19, Clifford and Donald Gordon and Roland McLain, were interviewed by
Arnold Mulzer. According to their undenied testimony, which I credit, they were
told by Arnold Mulzer that he had nothing against unions and that if need arose for
their services they would be contacted. Donald Gordon and McLain were crane
operators and Clifford Gordon had worked as a laborer and apprentice high-lift,
operator. None of them thereafter made any inquiry about employment nor were
they contacted. Subsequently, on September 19, Roland Mulzer employed a crane,
operator, Will Vincent, after having unsuccessfully attempted the day before to con-
tact Clay Damrath, one of the alleged discrimmatees who also had worked as a crane
operator for Bedford-Nugent. Stephens, who I have found applied on August 1, was
not hired, so Roland Mulzer testified, because of his age and excess weight. While I
do not believe that Mulzer had these considerations regarding Stephens in mind on
August 1, the fact is that the only persons hired on that date were then working
whereas Stephens had not worked for Bedford-Nugent since in the preceding May.,
Burton, who had worked as a delivery truckdriver for Bedford-Nugent, applied at;
some unspecified date in August and again on September 4, was not hired because the,
Tell City Respondents, as Roland Mulzer credibly testified, employed outside truck-
ing concerns to make deliveries, and, therefore, had no occasion to employ a
truckdriver.
20 Burton and Stephens, who had previously applied, also filed applications on Septem-
ber 4. As stated above, no application was made by Hoosier
211 have found above that Stephens was in the Tell City office on August 1 rather than
July 30 His testimony that he saw Land there on that occasion is credited, but in view'
of the date no inference is warranted that Roland Mulzer consulted Land about hiring
prior to August 1
22 It is also noted that Chapman had been employed by Bedford-Nugent as first engineer,
whereas Edwards was a fireman on a dredge.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By September 4, when the remaining alleged discriminatees first sought employment,
the Tell City Respondents were substantially fully staffed in the sand and gravel
operations . In fact, these Respondents employed fewer persons in the sand and
gravel operations than did Bedford-Nugent. The record affirmatively shows that after
September 4 these applicants did not pursue their interest in employment with the
Tell City Respondents by seeking personal interviews with management, but appar-
ently relied upon the sufficiency of the written applications filed on September 4 with
a nonsupervisory employee, not known to them, at the Evansville yard. Aside from
the applications made by the alleged discriminatees, Tell City Respondents received
numerous other applications for employment in the first months of operation. With
respect to some of the jobs filled after September 4 for which one of the alleged dis-
criminatees appeared to have been qualified by reason of having been similarly
employed by Bedford-Nugent, Roland Mulzer gave a plausible and nondiscriminatory
reason for preferring the person actually hired. Thus he hired Bessie Westbrook as a
cook on the Bedford on October 15, a job held by Rachel Garchson until her layoff on
June 28 by Bedford-Nugent. Westbrook had applied in August and pursued her
application with Roland Mulzer, who was favorably impressed with her qualifica-
tions.23 Virgil Phillips had been employed on the Bedford as second engineer. Don
Woolen was employed in that capacity on September 13, and was so employed at the
time of the hearing. Roland Mulzer testified Woolen had special qualifications, having
gone to a diesel training school. Phillips was unable to read or write.
Upon a consideration of the entire record, I am not convinced that a preponderance
of the evidence establishes that the Tell City Respondents refused to hire the alleged
discriminatees because of their union membership and activities. These Respondents
had no history of hostility toward the Union or employee union membership or activi-
ties. The employment of Superintendent Land to be in charge of the sand and gravel
operations raises some suspicion in view of his demonstrated hostility to union activi-
ties while employed in a similar capacity by Bedford-Nugent. But I think it would be
stretching the thread of inference to the breaking point to attribute the nonemployment
of the applicants to his union animus, particularly since it does not appear that he was
responsible for hiring and there is no showing that he in fact was consulted by higher
management with respect to the qualifications of the alleged discriminatees. When
the mass applications were made on September 4, it is clear that most available jobs
had been filled and that to have employed all or any substantial number of the appli-
cants at that time would have required the release of persons previously hired.
Although the applicants were passed over in the filling of the few vacancies that sub-
sequently occurred, this circumstance alone does not in my judgment spell out unlaw-
ful discrimination , especially in view of the fact that the applicants made little or no
effort to press their applications and since the reasons given by Roland Mulzer for
selecting others do not appear implausible. The Tell City Respondents were not
obliged to give preference to the former Bedford-Nugent employees over other or
subsequent applicants for employment. Even though their hiring practices may
appear haphazard or fail to measure up to the best standards of personnel policy, I
cannot on this record conclude that these Respondents failed or refused to hire the
alleged discriminatees because of their membership in or activities in behalf of the
Union . Accordingly, it will be recommended that the complaint be dismissed in all
respects as to the Tell City Respondents.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Bedford-Nugent, found to constitute unfair labor
practices as set forth in section III, C, 2, above, occurring in connection with its opera-
tions 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 dis-
putes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found above that Bedford-Nugent discriminated against 21 employees in
selecting them for layoff, it will be recommended that appropriate remedial action be
taken in order to effectuate the policies of the Act. Since I have found that Bedford-
Nugent permanently closed down its sand and gravel operations on July 31, 1962, for
reasons which were not violative of the Act, it follows that the employment relation-
at Ona Few had been hired as a cook on September 7 and last worked during the pay
period ending October 6. There is no showing that Roland Mulzer was aware, on Sep-
tember 7, of Garchson's application 3 days earlier.
THE BEDFORD -NUGENT CORP., ET AL . 233
ship of all employees, including the employees unlawfully laid off in June and July
1962, was validly terminated on that date, and thus backpay is to be limited to the
period from the date of layoff to July 31, 1962, the date of cessation of business.
Backpay shall be computed in accordance with the formula approved in F. W. Wool-
worth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum, as
provided in Isis Plumbing & Heating Co., 138 NLRB 716. As it is possible that one or
more of the laid-off employees might have been laid off even if the Respondent
Bedford-Nugent had not engaged in any unfair labor practices, this possibility will be
taken into consideration in determining the amounts of backpay due to these individu-
als. Although I find that the strike commencing on June 25, 1962, was not caused
or prolonged by any unfair labor practices found to have been committed, I do not
find that any of the employees discriminatorily laid off withheld their services, after
being laid off, in order to participate in the strike; accordingly, I recommend there
be no tolling of backpay on that account.
The complaint named James Nugent, Sr., and James L. Nugent, Jr., as individual
Respondents. Since each is an officer of Bedford-Nugent, which is still in existence,
and the Recommended Order will include as bound thereby officers and agents of the
corporate Respondent, and since there has been no showing that in regard to the unfair
labor practices found they acted in their individual rather than corporate capacities, it
will be recommended that the complaint be dismissed as to them as individuals.
It will be further recommended that Bedford-Nugent preserve and make available
to the Board, upon request, payroll and other records to facilitate the computation of
backpay due.
In view of the fact that Bedford-Nugent has permanently gone out of business and
has no plants or employees, and inasmuch as the affirmative relief being recommended
to former employees is limited to backpay for the period from the date of their layoff
to the date of cessation of operations, no necessity appears for requiring the posting of
notices. Nor does it appear necessary to require notices to be mailed by Bedford-
Nugent to the victims of the discrimination, since they will be appropriately notified
in the event of compliance with or enforcement of the Recommended Order.
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. Bedford-Nugent Corp., at all times material, was an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Evansville Materials, Inc., Henderson Materials, Inc., and Arnold W. Mulzer,
Roland P. Mulzer and Edgar C. Mulzer, a partnership, d/b/a Mulzer Brothers, con-
stitute a single employer within the meaning of Section 2(6) and (7) of the Act.
3. The Union is a labor organization within the meaning of Section 2(5) of the Act.
4. By discriminatorily laying off certain of its employees, Respondent Bedford-
Nugent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (I) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondent Bedford-Nugent has not refused to bargain with the Union in viola-
tion of Section 8(a)(5) of the Act, or engaged in any unfair labor practice violative
of Section 8 (a) (3) or (1) except as specifically found above.
7. James Nugent, Sr, and James L. Nugent, Jr., as individuals, and the Tell City
Respondents, have not engaged in any unfair labor practices within the meaning of
the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, it is recommended that Bedford-Nugent Corp., Evansville,
Indiana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Chauffeurs, Teamsters and Helpers Local Union
No. 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization of its employees, by discrimi-
natorily laying off such employees, or in any other manner discriminating in regard
to their hire or tenure of employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join, or assist the aforesaid
labor organization, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
'234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Make whole the following named individuals for any loss of pay they may have
suffered by reason of the discrimination against them, in the manner set forth in the
section herein entitled "The Remedy":
John Amos Harry Campbell Donald Gordon Jesse Lee
Garnett Baker Cecil Colburn Ora Ice Roland McLain
Ernest Blythe Garland Edwards Richard Kratzer John Newman
William Blythe Rachel Garchson Donald Lancaster Virgil Phillips
Walter Brackett Clifford Gordon William Lancaster Leslie Tinsley
James Vincent
(b) Preserve and, upon request, make available to the 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 for determination
'of the amount of backpay due.
(c) Notify the Regional Director for Region 25, in writing, within 20 days from
the date of receipt of the Trial Examiner 's Decision and Recommended Order, what
steps Respondent has taken to comply herewith.24
It is further recommended that the complaint be dismissed as to James Nugent, Sr.,
and James L. Nugent, Jr., as individuals , and Evansville Materials, Inc., Henderson
Materials , Inc., and Arnold W. Mulzer, Roland P. Mulzer, and Edgar C. Mulzer, a
partnership , d/b/a Mulzer Brothers ; and insofar as it alleges violations of the Act by
Bedford -Nugent Corp. other than these specifically found herein.
24 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify the Regional Director for Region 25, in writing , within
10 days from the date of this Order , what steps Respondent has taken to comply
herewith."
Thos. de la Rue, Inc. and Local 49, Amalgamated Lithographers
of America, Petitioner. Case No. 23-RC-2290. February 23,
196.5
DECISION ON REVIEW AND ORDER
On October 26, 1964, the Regional Director for Region 23 issued
a Decision and Direction of Elections 1 in the above-entitled pro-
ceeding. Thereafter, the Employer, in accordance with Section
102.67 of the Board's Rules and Regulations, Series 8,. as amended,
filed with the National Labor Relations Board a timely request
for review2 of such Decision on the ground that the Regional
Director erred in finding a single-employer unit of the Employer's
lithographic production employees appropriate and directing an
election confined to such unit. On November 19, 1964, the Board
granted the request for review and postponed the election pend-
ing review. Thereafter, the Petitioner filed a brief with the Board.
The Board has considered the entire record in this case with
respect to the issues under review, including the Petitioner's
brief on review, and makes the following findings :
1 An election was also directed in May Printing & Lithographing, Inc., Case No. 23-
RC-2291 , a case which had been consolidated with the instant matter for purposes of
hearing . No request for review thereof was filed.
? The request for review included a motion for reconsideration of the Decision which was
thereafter denied by the Regional Director.
" `151 NLRB No. 27.