Opinion

National Labor Relations Board v. Aluminum Tubular Corporation and American Flagpole Equipment Co., Inc.

  • 299 F.2d 595
  • 49 L.R.R.M. (BNA) 2682
  • 1962 U.S. App. LEXIS 5864
Court
Court of Appeals for the Second Circuit
Filed
Feb 19, 1962
Status
Published
Author
Clark
On the bench
Lumbard, Clark, Friendly
Cited by
8 cases
Authority
More cited than 24.7%

The opinion

CLARK, Circuit Judge

(dissenting in part).

I cannot agree with my brothers’ refusal to enforce this order against Flagpole. The trial examiner found that Flagpole was the alter ego of Aluminum; that is, in effect, that they are the same employer and thus the obligations which the National Labor Relations Act places on Aluminum must be borne by Flagpole. In this finding the Board concurred. The courts have recognized several crucial factors which, if found, justify such a finding of fact. Among these are (1) common ownership and control; (2) integration of operations or similarity of activity; and, in some cases, (3) use of common premises. See N.L.R.B. v. Somerset Classics, Inc., 2 Cir., 193 F.2d 613 , certiorari denied Modern Mfg. Co. v. N. L.R.B., 344 U.S. 816 , 73 S.Ct. 10 , 97 L.Ed. 635 ; N.L.R.B. v. Federal Engineering Co., 6 Cir., 153 F.2d 233 ; N.L.R.B. v. Condenser Corp. of America, 3 Cir., 128 F.2d 67 ; N.L.R.B. v. Jones Sausage Co., 4 Cir., 257 F.2d 878 . Here these factors were all present, and I see no reason to upset these findings. Since they are facts well supported by substantial evidence, they should be held conclusive on review, as the statute directs, 29 U.S.C. § 160 (e).

I do not read N.L.R.B. v. Rapid Bindery, Inc., 2 Cir., 293 F.2d 170 , as precluding the action the Board is here requesting. It is true that in that case we refused to order Frontier, which had been held to be the alter ego of Rapid, to recognize the union as exclusive bargaining agent at the Frontier plant in Tonawanda. But there all the employees at the Tonawanda plant were newly hired and had never voted for the union, while here some of the employees now working-for Flagpole were in the bargaining unit at Aluminum and voted for the union-originally. This would seem to require-us to reach the opposite result here. The-suggestion made by my brothers that we-do not know whether the transferred employees were the same men who voted', for the Carpenters is irrelevant, for a majority of the unit had selected the-union as their representative. Flagpole-should be ordered to recognize the union as exclusive bargaining agent of all the-former members of the Aluminum unit now in its employ.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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