Appendix — R. L. Sweet Lumber Co. v. National Labor Relations Board

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Supreme Court, U. S.

FILED

/ AG 29 1975

In the Supreme Court of the United States

OCTOBER TERM, 1975

75-3214

No.

R. L. SWEET LUMBER COMPANY,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD.

APPENDIX TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

CHARLES E. HOFFHAUS

HILirx, Brewer, HOFFHAUS, GRIER

& WHITTAKER

2715 Commerce Tower

Kansas City, Missouri 64105

Attorneys for Petitioner

August 25, 1975

E. L. Menpewnatt, Ivc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3080

roy

MICHAEL RODAK, JR., CLERA

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¢ » “os me

+ w—*

INDEX

Appendix A (Decision and Proposed Order of Admin-

istrative Law Judge) .. siabemeneniah ,

Appendix B (Decision and Order of National Labor Re-

lations Board)

Appendix C (Opinion of Court of Appeals for the Tenth

Circuit) ~

Appendix D (Judgment of Court of Appeals for the

Tenth Circuit)

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APPENDIX A

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D.C.

R. L. SWEET LUMBER COMPANY

and

CARPENTERS’ DISTRICT COUNCIL OF KANSAS

CITY AND VICINITY, AFL-CIO

and

TEAMSTERS LOCAL 541

Party to the Contract

7) anand [093

Case No. 17-CA-5292 f +e K [ N\ 7

(Decision Issued May 18, 1973)

DECISION

Statement of the Case

JOHN F. CORBLEY, Administrative Law Judge: A

hearing was held in this case on March 6, 7 and 8, 1973, at

Kansas City, Kansas, pursuant to a charge filed on August

18, 1972, a complaint and notice of hearing dated October

20, 1972, and an amended complaint and notice of hearing

dated December 26, 1972, both issued by the Regional Di-

rector for the Seventeenth Region of the National Labor

Relations Board and which were likewise duly served. The

charge was filed by Carpenters’ District Council of Kansas

City and Vicinity, AFL-CIO, sometimes hereinafter re-

ferred to as the Carpenters. The complaint alleges pri-

marily that Respondent violated Section 8(a)(5) and (1)

of the Act by unilaterally discontinuing certain unit work

at its Roe Boulevard Kansas City, Kansas, plant and trans-

ferring that work and certain employees from the latter

location to Standard Homes Company, alleged to be Re-

spondent’s alter ego, without prior consultation with the

Carpenters which was and is the representative of the unit

from which the work and employees were allegedly trans-

ferred.

The complaint further alleges that Respondent and its

claimed alter ego, Standard Homes Company, have further

violated Section 8(a)(5) and (1) by refusing to abide by

the terms of Respondent’s collective bargaining agreement

with the Carpenters covering the Roe Boulevard unit and

by other acts described in the complaint.

The complaint also alleges that Respondent acting by

and through Standard Homes Company has violated Sec-

tion 8(a) (1),(2) and (3) of the Act by recognizing Team-

sters Local 541 (hereinafter sometimes referred to as

Teamsters) as the exclusive representative of a unit of

production and maintenance employees at the Standard

Homes plant in Olathe, Kansas, pursuant to a collective

bargaining agreement with the Teamsters at a time when

the Teamsters did not represent an uncoerced majority of

the employees at the instant Standard Homes Company

plant. Finally the complaint alleges that Respondent by

other acts described in the complaint has violated Section

1. Both Standard Homes Company and Teamsters partici-

pated in the hearing.

TT me LE IE sR RG

8(a)(1),(2) and (3) of the Act. In its answer, amended

at the hearing, Respondent denied the commission of any

unfair labor practices. Teamsters also filed an answer to

the complaint, amended at the hearing, in which it denied

certain allegations of the complaint.

For reasons which will appear hereinafter, I find and

conclude that Respondent and Standard Homes Company

are a single employer within the meaning of the Act and

that the homes prefabrication and assembly employees

were removed from the Carpenters unit at Roe Boulevard

and, although assigned to the Olathe plant of Standard

Homes Company, continued to be a part of Carpenters Roe

Boulevard unit. I further find and conclude that by

unilaterally applying and enforcing the Teamsters contract

at Olathe to the employees who were moved out of the

Carpenters Roe Boulevard unit to work at Standard

Homes Company at Olathe and by enforcing the union

security provisions of that Teamsters contract to these

employees, Respondent by and through Standard Homes

Company has violated, and is violating, Section 8(a) (1),

(2), (3) and (5) of the Act.

At the hearing all parties including the Teamsters (the

Party to the Contract) and Standard Homes Company (the

Intervenor) were represented by counsel. All parties were

given full opportunity to examine and cross-examine wit-

nesses, to introduce evidence and to file briefs. The Gen-

eral Counsel, Respondent and Standard Homes Company

presented oral argument through their respective counsel

at the close of the hearing; the other parties waived this

right. Briefs have subsequently been filed by Respondent,

Teamsters Local 541, Standard Homes Company, and, on

April 26, 1973, by the General Counsel and have been duly

considered.

Upon the entire record? in the case including the briefs,

and from my observation of the witnesses, I make the fol-.

lowing:

Findings of Fact

I. The Business of Respondent

The Respondent is a Missouri corporation engaged in

the wholesale and retail sale of lumber and related prod-

ucts with its principal office and lumberyard located at

4400 Roe Boulevard, Kansas City, Kansas, one of the two

locations primarily involved in this proceeding. Respon-

dent annually sells lumber and related products valued in

excess of $50,000 to customers located outside of the State

of Kansas and annually has a gross volume of business in

excess of $500,000. Upon the foregoing facts, which are

alleged in the complaint and are admitted in Respondent’s

2. The record is hereby corrected in the following partic-

At page 34, line 22, insert the word “may” between the words

“you” and “have.”

At page 42, line 7, insert the word “or outside of” between

the words “within” and “the.”

At page 475, line 2, delete the word “swear” and substitute

“present” therefor.

At page 493, line 15, insert the word “not” between the words

“are” and “going.”

At page 513, line 6, the word “law” should be deleted and

“clause” substituted therefor.

At page 542, line 13, substitute the word “discontinue” for

the word “continue.”

At page 546, line 8, insert the word “not” between the words

“would” and “be.”

At page 554, line 16, delete the word “and” and substitute

therefor the punctuation mark “-’’; and in the next line insert

a “~” after the word “parties.”

To make the record absolutely clear at p. 417, line 23, insert the

ruling “Without objection Respondent’s Exhibit No. 7 is received

in evidence,” a ruling reflected in my trial notes.

5 cael i Mais

answer and Teamsters’ answer, I find, as also admitted in

these answers, that Respondent is an employer engaged in

commerce within the meaning of Section 2(6) and (7) of

the Act.

II. The Labor Organization Involved

The complaint alleges, Respondent admitted at the

hearing, and Teamsters also admitted in its answer, that

Carpenters’ District Council of Kansas City and Vicinity,

AFL-CIO, is a labor organization within the meaning of

the Act and that Teamsters Local 541 is also a labor or-

ganization within the meaning of the Act.

Ill. The Alleged Unfair Labor Practices

A. Background and sequence of events

Respondent was founded in 1936, and, although a Mis-

souri corporation, it is also qualified to do business in Kan-

sas. One of its locations, primarily involved in this pro-

ceeding, was established on a tract of land over 13 acres

in size at 4400 Roe Boulevard in Kansas City, Kansas,

and was opened for business in 1952. i

The founder of the firm, Mr. R. L. Sweet, passed away

in 1958 and since that time his widow, Mrs. Louise V.

Sweet, has been president of the corporation. Some 95%

of the stock in Respondent is held in trust for Mrs. Sweet

and her two daughters. The trustees are the First National

Bank and the husbands of these two daughters.

At the Roe Boulevard location, the Respondent be-

came engaged in several aspects of the lumber business

including the manufacture and sale of windows, doors and

room dividers and single package prefabricated homes.

For a number of years a unit of Respondent’s warehouse

and yard employees (e.g., lumber handlers, truckdrivers,

loaders, forklift operators, stockmen, etc.) at Roe Boule-

vard have been represented by Teamsters Local 541, the

so-called Party to the Contract, which participated in these

proceedings. Certain of Respondent’s inside employees at

Roe Boulevard, who were engaged in the manufacturing

process (e.g., millmen and prefabricated homes assem-

blers) had been represented for some time by the Charg-

ing Party, Carpenters’ District Council of Kansas City and

Vicinity, AFL-CIO, in a separate unit. The prefabricated

homes manufacturing activity was known as the Standard

Homes Division of Respondent.

There came a time in 1971 when Respondent’s volume

of business at Roe Boulevard had developed to the point

where Respondent had outgrown its facilities at that loca-

tion.

The crowding at that facility was particularly notice-

able in the Standard Homes production activity which was

required to operate without an assembly line but utilizing

several separated work locations at the Roe Boulevard site.

Thus, window units were manufactured in one area and

wall panels in another. Rafter cutting took place in yet

a different area. Rafters and joints were stored in another

space which had a dirt floor. The assembly of the com-

pleted wall panels for delivery was in a different location

from that at which the panels were manufactured.

In view of this manifestly inefficient method of pro-

duction and the generally cramped quarters at Roe Boule-

vard it was decided at a meeting of Respondent’s directors

in June 1971 that the Standard Homes production opera-

tion would be moved to another site. Accordingly, land

was purchased and a new building was erected some 19

miles away at Olathe, Kansas, in the latter part of 1971.

POT a a ewer ve

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The new building is clear span (no intervening walls)

and provides for a continuous flow through production line

whereby lumber is brought in at one end, the walls are

manufactured and assembled and are carried out of the

other end of the building essentially as a package ready to

be sold and delivered. There is also a storage yard and a

railroad spur at the Olathe facility.

The land and building at Olathe are owned by R. L.

Sweet Investment Company and all the stock in that Com-

pany is held in trust for Mrs. Louise V. Sweet by the First

National Bank of Kansas City, Missouri and Mrs. Sweet’s

same two sons-in-law, mentioned previously.

Sometime in the late summer of 1971 a “Staff Bulle-

tin” from Mrs. Sweet dated August 5, 1971, was placed in

the timecard slots of all employees at Roe Boulevard an-

nouncing the purchase and the construction of the new

building at Olathe. This bulletin recited, inter alia, that

the new plant would be occupied by “Standard Homes

Company, a division of Sweet Lumber.’

For some time prior to 1971 there had been another

separate corporation, of which Mrs. Sweet was also presi-

dent, which was known as Construction Loan Company.

About October 31, 1971, legal action was taken to change

the name vi the latter corporation to Standard Homes

Company (thereby, in effect, separately incorporating the

Standard Homes Division of R. L. Sweet Company).

3. While some employees, who testified at the hearing did

not recall seeing this bulletin, others testified that they did see

the bulletin and it is undisputed that it was prominently rumored

among the employees at Roe Boulevard in the latter part of 1971

and early 1972 that a move of the Standard Homes operation was

imminent. Carpenters’ Business Representative, Harding, was

told in January 1972 about this impending move by Boyce, the

Carpenters’ steward at the Roe Boulevard plant.

Notwithstanding this incorporation of Standard Homes

Company, the prefabricated homes operation continued

at the Roe Boulevard plant the same as before. Thus, the

prefabricated homes continued to be manufactured and

shipped from that location and all production employees

continyed to be employed by R. L. Sweet Company and

were paid with its checks. All these arrangements came

to an end, however, in February 1972‘ when prefabricated

homes production was halted at Roe Boulevard.®

Meanwhile, the plant at Olathe was so near to comple-

tion that in early January 1972, Frank H. Woodbury, an

employee of Respondent, and Charles Roberts, now the

assistant plant manager of Standard Homes Company,

went to the Olathe site to check on the completion of the

plant with the general contractor, R. E. Dunn Construction

Company. Also by January 1972 lumber began to arrive

4. After the separate incorporation of Standard Homes Com-

pany but before the prefabricated homes production was discon-

tinued at the Roe Boulevard plant, an arrangement was arrived

at whereby Respondent sold its prefabricated homes to Standard

Homes Company for a price which included the value of the ma-

terials and a fixed labor cost for each unit. Much of the equip-

ment (such as saws, tables, desks, etc.) which had been used by

the Standard Homes Division were sold at their “book value” by

Respondent to Standard Homes Company on November 1, 1971.

A separate office was temporarily established for Standard

Homes Company office employees at Roe Boulevard and some

office employees were paid on Standard Homes Company checks

in January and February 1972. None of the latter were, how-

ever, shown to be unit employees.

5. Carpenters, which was the recognized representative of

the employees performing the homes prefabrication work at Roe

Boulevard as well as the mill employees at that location, was

not notified by Respondent that the prefabrication work was going

to be discontinued at Roe Boulevard in February 1972. The first

discussion of this matter between Respondent and Carpenters,

occurred ,as will appear, on February 20, 1972, when James Hard-

ing, the Carpenters’ business representative spoke about it with

Hatcher, Respondent’s vice president in charge of production,

after Harding had been informed by his steward that one of the

homes prefabrication employees, Coffelt, was about to leave the

Roe Boulevard plant to begin working at the Olathe location.

at the Olathe plant and four individuals (Streeter, Nicely,

Brown and Kline) were hired at the site to put the lum-

ber in place. In addition to moving lumber, these four in-

dividuals built some racks and other facilities to be used

in the plant’s operation.

On January 24, Aubrey Williamson, then a business

agent of Teamsters Local 541, went to the Olathe site,

spoke to the aforementioned four employees and obtained

from them signed authorizatinn cards for that union. There-

after Teamsters Local 541 sought recognition as the col-

lective bargaining representative of these employees.

On February 4, 1972, Williamson met with Eugene D.

Smith, vice president of Standard Homes Company (who

had previously been the vice president of Respondent and

manager of the old Standard Homes Division), and with

Respondent’s counsel, Hoffhaus, and presented the four

union authorization cards. After the signatures on these

authorization cards were verified, Smith and Hoffhaus

agreed to discuss a contract.

On February 8, 1972, Smith and Hoffhaus came to

Local 541’s office and began negotiating a collective bar-

gaining agreement.

Further meetings were held on February 9 and 11,

1972, and a contract was executed on the latter date effec-

tive February 7, 1972, until February 2, 1975, with a pro-

vision for subsequent automatic renewal. Pursuant to this

agreement Teamsters |ocal 541 was recognized in a pro-

duction and maintenance unit at the Olathe facility of

Standard Homes Company.

_ This agreement was a separate agreement from the

same Union’s previously mentioned contract covering the

yard employees at Respondent’s Roe Boulevard location.

The latter unit was covered at the time by a contract with

Teamsters Local 541, effective from April 1, 1969 to April

1, 1972, and said Roe Boulevard unit is currently covered

by a contract with the same labor organization, effective

from April 1, 1972 to March 31, 1975.

The date when the Olathe plant contract was executed

—February 11, 1972—is prior to the 6 month statute of

limitations provision set forth in Section 10(b) of the Act.

On February 11, 1972, only the four individuals previ-

ously named (outside of Woodbury and Roberts) were

working at Olathe. The work they still were performing

consisted of unloading lumber, moving it with forklifts, and

putting up racks.’ No production work had as yet begun

at the Olathe plant.

In about the middle of February 1972 Smith began

interviewing employees of Respondent at its Roe Boulevard

plant and elsewhere to inquire whether they would accept

employment at the Olathe plant. As will appear, several of

these employees had been engaged for a number of years

in the building and assembly of wall sections and other

operations in the manufacture of the prefabricated housing

units for Standard Homes at Roe Boulevard. A number of

those interviewed including Coffelt, who was then consider-

ing retirement, and Schaffer, Phillip Fisher and John

Papineau accepted the offer of employment and began

working at the Olathe plant before the end of February

1972. These four employees were members of Carpenters

Local 1635 while working at Respondent’s Roe Boulevard

location.

7. Williamson and Smith credibly so testified.

The first prefabricated home package was produced

at the Standard Homes Company Olathe plant on February

29, 1972.

In the meantime James Harding, business represen-

tative of Carpenters’ District Council of Kansas City and

Vicinity, AFL-CIO, which, as previously noted, was the

recognized representative of the mill and prefabricated

homes unit at Respondent’s Roe Boulevard location, was

told by his steward, Louis Boyce,* on February 20, 1972,

that Coffelt, who had been employed in that unit, was about

to begin work at the new Olathe plant. Accordingly, Hard-

ing went to the office of Hatcher, Respondent’s vice presi-

dent in charge of production,’ to inquire about (what

Harding considered to be) the transfer of Coffelt from Roe

Boulevard to the Olathe facility. Hatcher informed Hard-

ing that the Olathe facility was not a part of the Respon-

dent, but was a separate Delaware corporation. Hence, said

Hatcher, he and Harding had nothing to discuss. Harding,

however, insisted that he would process the matter through

the grievance procedures of the Carpenters contract cover-

ing the Roe Boulevard plant.’®

Sometime in February or March of 1972 the office and

plant equipment—previously used at the Roe Boulevard

plant by the Standard Homes Division of Respondent and

which had been sold to Standard Homes Company by Re-

spondent on November 1, 1971,—were moved to the Olathe

plant, where such assets were put to use for the same pur-

8. Boyce was the steward of the Carpenters unit at Roe

Boulevard and was also employed by Respondent at that locaticn.

9. While Hatcher is not in charge of production at the Olathe

plant, he was in charge of all production of prefabricated homes

when that operation was still going on at the Roe Boulevard plant.

10. These findings are based on the credible testim of

Harding which was not denied by Hatcher. bad

poses and essentially in the same manner as their utilization

at Roe Boulevard.

Also in February and March 1972 other employees”

of Respondent left its Roe Boulevard plant and began work-

ing for Standard Homes Company in Olathe. These in-

cluded Dial and Quick who had been members of Carpen-

ters Local 1635 while working in the Carpenters unit at

Roe plant. Others were Berry, Donica, Dale Long and

Terry Long, Savage, Simpson, Vest and Webb who had

been members of Teamsters Local 541 while employed by

Respondent at its Roe Boulevard plant.

On March 17, 1972, Carpenters filed a grievance with

Respondent complaining, inter alia, that Respondent had

transferred bargaining unit work from Roe Boulevard to

Olathe without consultation with Carpenters; unilaterally

imposed a different collective bargaining agreement with

less favorable wages and working conditions upon Car-

penters unit employees; bypassed Carpenters in dealing

directly with Carpenters unit employees about their work-

ing conditions and threatened said employees with termi-

nation if they did not transfer to the Olathe plant—all in

violation of the Carpenters collective bargaining agree-

ment then in effect at the Roe Boulevard plant. By letter

dated March 22, 1972, Respondent denied the grievance on

the ground that the work to which the grievance referred

was then being performed by a different corporation (i.e.,

Standard Homes Company) and by employees of that cor-

poration under the aegis of a collective bargaining agree-

ment with a different union (i.e., Teamsters Local 541).

In a letter dated April 19, 1972, Respondent further took

the position that the grievance was not arbitrable, essen-

11. Besides Coffelt, Schaffer, Fisher and Papineau, who have

already been mentioned.

al werent.

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tially for the same reasons Respondent had denied the

grievance in its letter of March 22.

At about this same time the Carpenters contract cover-

ing the Roe Boulevard plant was nearing its termination

date and Carpenters gave timely notice at the end of

February 1972 that it sought to negotiate a new agreement

with Respondent for the Carpenters unit at Roe Boulevard.

In early April and May of 1972, Respondent and Car-

penters negotiated a new agreement covering the Carpen-

ters Roe Boulevard unit. The new agreement was ratified

by the unit employees about June 1, 1972, and was made

retroactive to May 1, 1972 (the day after the termination of

the prior contract). The new agreement is effective from

the latter date until April 30, 1974.

During the negotiations for this 1972-1974 contract, Re-

spondent’s claimed transfer of Roe Boulevard Carpenters

unit work to the Olathe plant was not discussed by the par-

ties. Nor did the parties advert, in these negotiations, to

the terms and conditions of employment of the former Roe

Boulevard Carpenters unit employees who were by then

working at the Olathe plant.

Since the spring of 1972 the prefabricated homes manu-

facturing operation continues to be carried on at the Olathe

plant.” And all production and maintenance employees at

the plant continue to be represented by Teamsters Local

541 under the terms of its contract for that plant.

Respondent’s cessation of the prefabricated homes op-

eration at Roe Boulevard utilizing Carpenters unit em-

12. According to the credible testimony of Harding, which

was not denied by Hatcher.

13. Although utilizing door and windows which are manu-

tactured by Respondent at the Roe Boulevard plant and sold by

Respondent to Standard Homes Company.

ployees at that location and the subsequent reconstitution

of that activity at the Olathe plant of Standard Homes

Company without notification to, and bargaining with, the

Carpenters are the principal bases of the Section 8(a) (5)

allegations of the complaint. The application of the Team-

sters Olathe plant contract to the former Roe Boulevard

Carpenters unit employees now working at Olathe, as well

as the application of that contract and its union security

provisions to all production and maintenance employees at

the Olathe plant, constitute the substance of the Section

8(a)(1), (2) and (3) allegations of the complaint as well

as other Section 8(a) (5) allegations of the complaint.

B. The supervisory status of

Smith and Kline

The complaint alleges that Eugene D. Smith and Wal-

ter Kline, both of Standard Homes Company, are super-

visors within the meaning of the Act. The answers deny

these allegations. I find and conclude, however, that both

are supervisors within the meaning of Section 2(11) of the

Act.

Smith is the vice president of Standar? Homes Com-

pany. He is in charge of the draftsmen who draw the

plans for Standard Homes Company, has the ultimate au-

thority over production at the Olathe facility and is in

charge of sales and marketing. Charles Roberts, assistant

plant manager, recommends hiring and firing to Wood-

bury who reports on such matters to Smith. Smith hired

Coffelt, Schaffer, Papineau and Fisher to work at the Ola-

the plant or, in any event, arranged for their employment

at that location. I find, therefore, that Smith responsibly

directs the activities of all employees at Olathe and has

authority to hire, fire and transfer employees, all in a man-

ner requiring the exercise of independent judgment. I con-

Pee FD a PP? OE rr ere

clude therefore that he is, and was at least since the hiring

or transfer of Coffelt, Schaffer, Papineau and Fisher in

February 1972, a supervisor within the meaning of Section

2(11) of the Act."

Walter Kline, as previously noted, was one of the in-

dividuals originally hired in January 1972 to work at tne

Olathe plant.” When Coffelt, Schaffer, Fisher and Papi-

neau took up their duties at the Olathe plant in February

1972, Kline had become a foreman."* As a foreman, ac-

cording to the undisputed testimony of Smith, Kline has

the authority to recommend hiring and firing, and, ac-

cording to the admission of Smith, management has the

obligation to “back up” Kline. Further, Smith admitted,

Kline has enjoyed the status of non-working foreman since

he, Kline, “first came down to Olathe.”

I find, therefore, that Kline has been a foreman since

at least February 21, 1972 (when Coffelt began working at

Olathe) and has had the authority effectively to recom-

mend hiring and firing in a manner requiring the exer-

cise of independent judgment. I conclude, accordingly,

that he has been, at least since February 21, 1972, a super-

visor within the meaning of Section 2(11) of the Act.

C. The alleged status of Standard Homes Company

as an alter ego of Respondent

The complaint alleges that Standard Homes Com-

pany is an alter ego of Respondent. Respondent and Team-

14.- I make these findings on the basis of the credible and

— testimony of Smith, Coffelt, Schaffer, Fisher, and

‘a u.

15. Kiine also formerly worked at Respondent’s Roe Boule-

vard plant.

16. I make this finding on the basis of the undisputed tes-

timony of Coffelt. Kline did not testify.

sters 541 deny that Standard Homes Company occupies

such status. I find, in agreement with the General Counsel,

that Standard Homes Company is an alter ego of Respon-

dent and that the two companies are a single employer

within the meaning of the Act.

1. Both Respondent and Standard Homes Company

have essentially common ownership.

Standard Homes Company is almost entirely owned

by Respondent, by Mrs. KR. L. Sweet (the president of Re-

spondent and also of Standard Homes Company) and by

relatives or in-laws of Mrs. Sweet.’*

As previously noted, about 95% of the outstanding

stock in Respondent is held in trust for Mrs. Sweet, and her

two daughters, Marilyn S. Kiene and Athelia S. Clingan.

The trustees are Mrs. Sweet’s sons-in-law, Melvin H.

Clingan, Ralph Kiene and the First National Bank of

Kansas City.

2. Respondent and Standard Homes Company have a

number of common officers. Thus, Mrs. Sweet is the presi-

dent of both companies as well as the treasurer of Re-

spondent. Melvin H. Clingan (her son-in-law) is the secre-

tary of Respondent and is also the secretary and assistant

treasurer of Standard Homes Company, George E. Fischer

is a vice president (controller) of Respondent and assistant

secretary of Standard Homes Company.

3. The directors of Respondent and Standard Homes

Company were not shown. However, it is undisputed that

17. Thus, there are 10,000 outstanding shares of stock in

Standard Homes Rng any. Of these shares Respondent owns

8,950 (89.5%). weet owns 150 shares; her two daughters

Marilyn S. Kiene rans Athelia S. Clingan, 150 each; one son-in-

law, Melvin H. Clingan, 150; her four minor Kiene grandchildren,

150 ‘altogether; —for a total of 9%. Therefore, 98.5% of the stock

in Standard Homes Company is owned or controlled by Respondent

and members of Mrs. Sweet’s family.

we LR mene

www tee ee. =~ aan ™

the directors of Respondent are elected by the trustees of

95% of Respondent’s corporate stock. And, as noted, two

trustees are sons-in-law of Mrs. Sweet. Since Respondent

and members of the Sweet family own 98.5% of the Stan-

dard Homes Company, I conclude that Respondent and the

Sweet family also elect the directors of Standard Homes

Company.

4. Mrs. Sweet is actively engaged in overseeing both

corporations. She has an office on Roe Boulevard and an-

other at Olathe. She keeps office hours at Roe Boulevard

6 days per week and assists in sales promotion at Olathe

every Sunday. During the week, Mrs. Sweet is in contact

with Eugene D. Smith, the vice president of Standard

Homes Company and its manager, everyday—in person or

by telephone—and Mrs. Sweet must approve decisions of

Smith particularly major purchases recommended by him.

Mrs. Sweet signs all the paychecks'® for Standard Homes

Company employees.’®

5. Respondent and Standard Homes have a com-

monly controlled labor relations policy.

As noted, Mrs. Sweet is president of both companies.

A “Staff Bulletin” from Mrs. Sweet, dated August 24,

1972, was issued to all employees of Respondent and Stand-

ard Homes Company announcing that all offices and yards

of Respondent and Standard Homes Company including the

exhibition houses of Standard Homes Company would be

closed for all 3 days of the Labor Day weekend September

2, 3 and 4, 1972.

P > aoe Sen: Oo Seem Rp Saye. ie.

19. In her testimony Mrs. Sweet also referred to the product

of Standard Homes Company as “our home.”

Hoffhaus, who ably represented Respondent at the

hearing, also represented it in denying Carpenters demand

for arbitration in April 1972. Hoffhaus also participated

in the discussions and negotiations in early February 1972

between Teamsters 541 and Standard Homes Company

which resulted in the recognition of Teamsters by Standard

Homes Company and the execution of a contract between

Teamsters and Standard Homes Company which, by its

terms, covers a unit of the production and maintenance

employees at the Olathe plant.”

Officials of Respondent sent employees to see Smith at

Respondent’s Roe Boulevard plant to discuss the possibility

of their working at the Olathe plant. Thus, Hatcher, Re-

spondent’s vice president in charge of production at Roe

Boulevard, who also negotiated and signed the 1972 Car-

penters contract for that location (and admitted handling

Respondent’s labor relations for a number of years previ-

ously) summoned or accompanied employees Schaffer and

Fisher to their interviews with Smith. When Schaffer

originally turned down the Olathe opportunity due to the

low wage offer by Smith, Hatcher told Schaffer he might

get another call. Schaffer did get another call from Smith

and Schaffer was offered and accepted a higher hourly rate

at Olathe than he was first offered. Roe Boulevard fore-

man, Don Walker, sent employee Fisher to his interview

with Smith. Coffelt, Schaffer, Fisher and Papineau all

credibly testified, and I find, that Smith told them, when

he spoke to them at the Roe Boulevard plant in February

1972, that they would retain their seniority from their em-

20. Lowe, who capably represented Standard Homes Com-

pany at the hearing, was not present at these negotiations. I am

constrained to observe, in passing, that I was favorably im-

pressed by the high degree of professional competence and courtesy

demonstrated by all counsel who appeared at the hearing.

ployment with Respondent at least insofar as vacations at

Standard Homes were concerned.”

6. The initial complement at Olathe at the time pro-

duction began on February 29, 1972, consisted of employees

who had just been released from Respondent. Thus, of

some 18 production and maintenance employees working

at Olathe by the end of February 1972, some 14 had

formerly been employed at Roe Boulevard where they had

been represented in the Carpenters unit by Carpenters or

had been represented by Teamsters Local 541, apparently

in the latter’s unit at the Roe Boulevard plant.”

7. Smith admitted that all supervisors at Olathe had

formerly worked at Respondent’s Roe Boulevard plant, al-

though he further stated that some of the Olathe leadmen

had not been part of supervision at Roe Boulevard.

8. As will appear, Standard Homes Company is pro-

ducing essentially the same product as was produced when

the prefabrication operation was located at Roe Boulevard.

9. There continues to be a certain measure of product

integration between the Olathe and Roe Boulevard plants

in that the window and door units installed by Standard

Homes Company at Olathe are manufactured at Roe Boule-

vard and sold to Standard Homes Company by Respondent.

The window and door units utilized by the old Standard

Homes Division were also manufactured at Roe Boulevard.

21. Kline, whom I have found to be a supervisor, told Papi-

neau about March 1972 that Papineau could be transferred from

Olathe to another plant of Respondent at Lee’s Summit in Missouri.

22. 6 eae eae oe ee seer Net heen pegeenntet by

Teamsters Local 541 at Roe Boulevard. This accords

information given to Teamsters Local 541 representative, William-

son, by Dale Long, Teamsters’ steward at Roe Boulevard, then

about seven of Teamsters members at Roe Boulevard would be

laid off as the result of Standard Homes leaving that location

to go to Olathe.

10. All purchasing for Standard Homes Company and

Respondent is performed by Respondent although Standard

Homes Company pays Respondent for this and other ac-

counting services. As previously mentioned, George E.

Fischer is Respondent’s controller as well as the assistant

secretary of Standard Homes Company.

11. A-considerable amount of office and factory equip-

ment was sold by Respondent to Standard Homes Company

on or about November 1, 1971, at the equipment’s “book

value” which I conclude in numerous instances was sub-

stantially less than its actual value. For example, some 7

saws of various descriptions were sold for $1 each, 12 desks

were sold at the same unit price as were 7 file cabinets,

6 Friden calculators and 2 Marchant calculators. Eleven

typewriters, mostly Royal, were also sold to Standard

Homes Company by Respondent for $1 each. This equip-

ment, particularly the shop items (such as saws, tables,

etc.) continued to be used by Respondent’s employees at

Roe Boulevard until February 1972 and is now in use at

Olathe.

12. Finally, Standard Homes Company is still held out

to the public as a division of Respondent in the local tele-

phone “Yellow Pages” for 1972* and 1973.% In newspaper

advertising as recently as May 7, 1972, Standard Homes

Company was also held out to the public as a subsidiary of

Respondent. The Standard Homes advertising brochure for

1972 also recites that Standard Homes is a subsidiary of

Respondent.

23. The cut-off date for placement of advertising in the

Yellow Pages for 1972 was October 13, 1971.

24. The cut-off date for placement of advertising in the

Yellow Pages for 1973 was October 13, 1972.

Pee ee ee ee

In view of all the foregoing, I find and conclude that

Respondent and Standard Homes Company are, and were

at all times material hereto, a single employer within the

meaning of the Act.*

D. The appropriate unit; are the Standard Homes

Company prefabrication employees at Olathe a

part of the Carpenters unit at Roe Boulevard or

have they been merged into a plant-wide produc-

tion and maintenance unit at the Oiathe plant?

Having concluded that Respondent and Standard

Homes Company are a single employer within the meaning

of the Act, it follows that all employees of the Olathe plant

are employed by the same employing entity as the em-

ployes who continue to work at the Roe Boulevard plant.

The pertinent question, however, insofar as these pro-

ceedings are concerned, now becomes whether the homes

prefabrication and assembly employees—who were repre-

sented in the Carpenters unit at Roe Boulevard—remain a

part of that unit (or have become an accretion to it) not-

withstanding the fact that such employees are now located

at the Olathe plant. I conclude that the instant employees

continue to be—or are an accretion to—the Carpenters unit

at Roe Boulevard.”

Coffelt, Schaffer, Fisher and Papineau all credibly tes-

tified, and I find, that, since they have begun their employ-

ment at Olathe, they have performed the same work, using

25. E.g., Macke Laundry Service Company of D.C. et al.

a a No. 1; Manitowoc Shipbuilding Inc., et al., 191 NLRB

0. 137.

26. I do not reach or decide the question of whether the yard

employees, forklift loaders, etc., at Olathe are an accretion to

the Teamsters unit at Roe Boulevard. That question was not

presented in the complaint nor was it litigated at the hearing.

the same tables, jigs and tools, as they did when employed”

at the Roe Boulevard plant. This work is also performed

for many of the same customers (particularly builders)

who used to purchase the prefabricated homes when the

prefabrication and assembly operation was located at Roe

Boulevard.

This work also continues to be performed under the

supervision of Smith who was in charge of the old Stan-

dard Homes Division of Respondent at Roe Boulevard,

albeit Smith did not then directly supervise the production

operation. Also, as noted, Mrs. Sweet is president of Stan-

dard Homes Company as well as Respondent.

Further, as already found, the former Roe Boulevard

employees, now employed at Standard Homes, were as-

sured that their seniority with Respondent would be con-

tinued at Olathe at least insofar as vacations at Standard

Homes are concerned.

While there is some evidence that employees are inter-

changed in what Smith described as a “fairly standard”

manner in the production operation at Olathe (i.e., utilizing

yard employees to do some production work and vice

versa), Smith gave only one specific example” of this and

27. Coffelt retired at the end of August 1972. I also conclude

that Dial and Quick, two other former members of Local 1635

who terminated their employment with Respondent in February

1972 and began work for Standard Homes Company in the same

month, also performed the same work at both locations. I reach

this conclusion based on the fact that each has the same job

classification with Standard Homes Company as he did with

Respondent (i.e., assembler and rafter cutter, respectively).

28. Smith conceded at the hearing that the work is essen-

tially the same, requiring the same skills. The only difference

cited by Smith is that the product must now conform precisely to

the drawing, a policy which did not obtain at Roe Boulevard.

29. Williamson, the then Teamsters representative, also saw

one or two of the four employees, whom he originally signed up,

doing production work after production began.

LL _______

conceded that a majority of the employees are assigned to

one particular job at which they are most efficient. In this

connection it is also important to note that, in addition to

hir‘ng six Carpenters unit prefabrication employees from

Roe Boulevard to work in Olathe in February 1972 (Cof-

feit, Fisher, Schaffer, Papineau, Quick and Dial), Standard

Homes Company also hired Duxbury and Fitzpatrick to

work at Olathe in March 1972. These last two employees

were former members of Carpenters Local 1635 at Roe

Boulevard, but had left Respondent’s employ there in 1971

and 1970 respectively.*° They were hired for assembly

work at Olathe. Further Coffelt credibly testified, and I

find, that he never saw Brown, Streeter and Nicely (i.e.,

three of the four individuals originally hired at Olathe in

January 1972) performing production work.™

I conclude, based on the foregoing, that the prefabrica-

tion and assembly employees now working at Olathe con-

tinue to be—or are an accretion to—the Carpenters unit

at Roe Boulevard. This conclusion also rests on my sub-

sidiary findings, supra, in support of my conclusion that

Respondent and Standard Company are a single employer

within the meaning of the Act including, inter alia, the

integration of operations whereby Respondent’s mill em-

ployees continue to manufacture the window and door

units for the prefabricated homes assembled at Olathe just

as such mill employees manufactured the same components

when the prefabrication and assembly operation was

carried out at Re. Boulevard.

. Duxbury had been an apprentice assembler and

Pispatrick an aul ler operator toe Boulvard

is not necessarily inconsistent with that

of ~~ My only saw “one or two” of these f -

slepene weuliinn an the soeteldion tine sana a

I am not persuaded in all the foregoing circumstances

that there has been sufficient interchange of the produc-

tion, maintenance and yard employees at Olathe to dis-

establish the integrity of the Standard Homes Company

prefabrication and assembly employees with the Carpen-

ters unit at Roe Boulevard. For under Board law, the

perimeters of an otherwise appropriate unit—here one

founded on bargaining history®? and a Board certification

(according to the language of the 1970-1972 contract be-

tween Carpenters and Respondent)—will not be washed

away merely by general testimony that interchange has

occurred into and out of such a unit. What is required to

defeat the appropriateness of such a unit on this basis is

a demonstration that the amount of such interchange has

been significant and such a showing would normally re-

quire evidence of the regularity and identity of individual

employees who have participated in such interchange.™

I do not find such a demonstration present in this

record.**

I further find, based upon the prior and current col-

lective bargaining agreement between Carpenters and Re-

spondent, and the apparent Board certification, both cover-

ing the Boulevard unit, that Carpenters was, at all times

relevant hereto, and remains, the majority representative

32. Where the same employees did essentially the same work

using the same equipment when members of the Roe Boulevard

Carpenters unit.

33. In fact a stipulation entered into by the parties, styled

General Counsel’s Exhibit No. 8, sets forth separate job assign-

ments for the Olathe plant employees which clearly place such

employees in homes assembly (Carpenters unit) work (e.g., “Ray

L. Dial—assembler of panels”) or non-Carpenters unit warehouse

work (e.g., “David N. Nicely—lift truck operator”).

34. See Big Y Supermarkets, 161 NLRB 1263, 1267-1268; cf.

American Cyanamid Company, 131 NLRB 909, 910.

——y

of that unit including the homes prefabrication and assem-

bly employees now working at the Standard Homes Com-

pany plant in Olathe.*

E. The alleged Section 8(a) (2) violations

The complaint alleges, as amended at the hearing, that

Respondent by and through Standard Homes Company un-

lawfully recognized Teamsters Local 541 as the exclusive

representative of the production and maintenance em-

ployees at the Olathe plant of Standard Homes Company

on February 4, 1972, at a time when Teamsters did not

represent an uncoerced majority of the Olathe plant em-

ployees and when a substantial and representative comple-

ment was not yet employed at the plant. Also alleged as

violative of Section 8(a)(2) and (1) of the Act was the

subsequent execution of the collective bargaining agree-

ment between Teamsters and Standard Homes Company

on February 11, 1972, effective from February 7, 1972. And

bers of Carpenters oy 1635 and had immediately prior thereto

su tly hired at Olathe to do homes pretabrication and

— i (as of September 1972, the hiring record

shown a

until March 21, 1972.

Pursuant to the union security provisions of

Roe Boulevard contract (Article (c)) employees desig-

;

to remedy these alleged unfair labor practices the General

Counsel asks to have me recommend an order setting aside

the instant contract.

For its part, Respondent contends, that the recogni-

tion of, and execution of a contract with, the Teamsters at

the Olathe plant cannot be found to be unfair labor prac-

tices, if only for the reason that said events occurred prior

to the 6 month statute of limitations period set forth in

Section 10(b) of the Act. I have already found that these

events did, in fact, occur prior to the Section 10(b) period.**

I agree with Respondent’s contention. Since the rec-

ognition and contract execution occurred more than 6

months prior to the filing and service of the charge in the

instant case, the circumstances surrounding these matters

cannot be utilized to set aside the contract. Section 10(b)

so prescribes.** Nor does the possibility that such a con-

tract would not serve as a contract bar to a representation

petition under principles enunciated by the Board in its

General Extrusion Company, Inc.,* decision serve to in-

validate such an agreement in an unfair labor practice case,

where the agreement was entered into prior to the Section

10(b) period.*®

36. I conclude that the 6-month period of limitation began

on or about February 19, 1972, a date 6 months preceding the

filing and service of the charge. Even if said period were to

begin on February 18, 1972 (to account for the shortness of the

month of February) this would not alter my conclusion because

the events in question occurred on February 11 or earlier.

37. Local No, 1424, 1AM v. N.L.R.B., 362 U.S. 411.

38. 121 NLRB 1165.

39. The Kroger Company, 165 NLRB 872. I am not impressed

with the General Counsel’s argument in his brief that the Sec-

tion 10(b) period should begin with the hiring of Coffelt on

February 21, because, says the General Counsel, Coffelt was the

first employee whose rights were unlawfully affected by the con-

tract.

(Continued on following page)

Altogether different questions are, however, posed by

the further allegations of the complaint that said agreement

was enforced in violation of Section 8(a)(1), (2) and (3)

of the Act with respect to employees at the Standard

Homes Company Olathe plant and that Teamsters was un-

lawfully assisted by officials of Standard Homes Company

at a time when Teamsters did not represent an uncoerced

majority of employees at said plant. For, as will be dis-

cussed, said agreement, including its union security pro-

visions, was applied and enforced to the homes prefabrica-

tion and assembly employees at Olathe and said assistance

occurred at times clearly occurring within the Section

10(b) period. And, as already found, Teamsters Local 541

did not represent these employees (even though said em-

ployees had become a part of the complement at the Olathe

plant) since, despite their assignment to Olathe, such em-

ployees continued to be included in the Carpenters unit at

Roe Boulevard, as also already found.

I find, for reasons explained hereafter, that Teamsters

never represented an uncoerced majority of this group of

employees at Olathe nor the unit of which they were, and

are, a part. Rather Carpenters, was, and is, the exclusive

bargaining representative of these homes prefabrication

and assembly employees of Standard Homes Company.

Footnote Continued—

_ The General Counsel’s argument rests on Southern California

District Council of Laborers v. Ordman, 318 F. Supp. 633, which is

distinguishable on its facts. There, no employees were hired

when the complained of contract was executed and the court

held that the Section 10(b) period began with the hiring of the

first employees whose rights were affected by the contract. Here

three, or more probably four, employees (if Kline was not then

a supervisor) were hired before the execution of the contract.

The rights of all three or four would have to be “affected” by

the contract, which covered their terms and conditions of employ-

ment if, as the General Counsel says, that contract was executed

in violation of Section 8(a)(1) and (2) of the Act and none could

lawfully be deprived of an opportunity to file a charge with the

Board so alleging.

As previously found, the only individuals working at

the time the contract was executed on February 11, 1972,

were four who were engaged primarily in unloading lum-

ber, in moving it on forklift trucks and in making racks.

Production did not begin until February 29, i.e., a date by

which some six Carpenters unit employees from Roe

Boulevard—who had performed homes prefabrication and

assembly work at Roe Boulevard—resumed these same

duties at the Olathe plant; the first, Coffelt, having begun

work there on or about February 21.

It is undisputed that the Teamsters contract, with its

lower wage rates and different benefits, was applied to

the prefabrication and assembly employees upon their em-

ployment at Olathe.*

I further conclude that this contract’s provisions rec-

ognizing the Teamsters as the bargaining representative

of the instant prefabrication and assembly employees and

requiring membership in Teamsters as a condition of em-

ployment were enforced as to these employees. Thus,

Smith advised Coffelt on about February 17, 1972, and

Papineau and Fisher a few days later, that the employees

at Olathe would be represented by one union, the Team-

sters.“ The contract which had already been entered into

contains a union security provision requiring membership

in the Teamsters as a condition of employment and Coffelt,

Fisher and Papineau did, in fact, subsequently join that

labor organization.

40. Except for Fisher during the first 2 days of his employ-

ment there. He credibly testified that he worked “unofficially”

at Olathe for 2 days, at the Roe Boulevard Carpenters hourly rate,

setting up tables and lining up machinery. Thereafter he was

paid the Teamsters Olathe leadman rate which was less.

41. Coffelt, Fisher and Papineau credibly so testified and

Smith did not deny it.

“Oa -

I am not persuaded that the fact that Kansas is a so-

called “Right to Work” state exculpates Respondent from

the charge that it enforced the union security provisions of

the Teamsters agreement. That is, the argument goes,

since Kansas has a “Right to Work” law union membership

must be considered voluntary. I reject this argument on

the simple basis of the fact of Smith’s foregoing admonition

to these three employees that there would be one union at

Olathe—the Teamsters.** If Respondent had intended to

rely on the voluntary character of union membership un-

der such a law there would have been no reason for Smith

to have advised the employees that the Teamsters was to

be the only union at Olathe.

However, by making the statement that Teamsters was

the only union, in the context of an employment or transfer

interview, the implication was clearly left in the minds of

the employees that this was the union which they had best

join.

After these employees had begun work at Olathe, fur-

ther efforts were expended by Respondent to have them

join the Teamsters. Thus, as has already been mentioned

in part, Supervisor Kline spoke to Papineau in March 1972

about the matter of Papineau’s joining that union. To

Papineau’s statement that he, Papineau, thought that Kan-

sas had a “Right to Work” law, Kline retorted that Re-

spondent also had a plant in Missouri (which does not have

a “Right to Work” law) and there would be nothing to

stop Respondent from transferring Papineau to that loca-

tion. Papineau subsequently joined the Teamsters.“

42. In view of Smith’s failure to deny these admonitions, I

—! no weight to his general testimony that he did not enforce

at clause.

43. Papineau credibly testified to this conversation. Kline

did not testify.

Smith also offered to pay Fisher’s initiation fee of

$100 to the Teamsters several weeks after Fisher began

work at Olathe. Fisher declined the offer and paid the

fee himself when he later joined.“

The application and enforcement of this contract to

these prefabrication and assembly employees would not be

unlawful if the work in which they were to be engaged

would have been an accretion to the unit work already

being performed at Olathe.“ But the work being per-

formed at Olathe at the time the contract was executed

did not include production and assembly of prefabricated

homes. Nor was such production and assembly begun at

Olathe until the homes prefabrication and assembly em-

ployees from the Carpenters unit at Roe Boulevard were

assigned to work at Olathe on and after February 21, 1972.

But, as I have found, these prefabrication and assembly

employees continue to be—or are on accretion to—the Car-

penters unit at Roe Boulevard despite their assignment to

the Olathe plant subsequent to the execution of the Olathe

Teamsters contract. Hence, that contract when applied

and enforced with respect to these employees has been

applied to employees in a different unit, not represented

by the Teamsters.

The application of a collective bargaining agreement

with one labor organization (here Teamsters) and enforce-

44. Fisher credibly so testified. Smith stated in relation

to this offer to pay the fee that he, Smith, “sort of left him

[Fisher] with the impression that I [Smith] would check on it

and see,” but he later told Fisher that “the ce” had told Smith

that it could not pay the initiation fee.

In offering this somewhat different version in his testimony

Smith looked at me with a resigned expression on his face. To

the extent that the versions differ, I credit Fisher.

45. E.g., The Great Atlantic and Pacific Tea Company (Fam-

ily Savings Center), 140 NLRB 1011.

—

ment of that contract’s union security provisions to em-

ployees in a different unit represented by a different labor

organization (here Carpenters) is violative of Section

8(a) (1), (2) and (3) of the Act,** even though the contract

thus applied and enforced was entered into prior to the

Section 10(b) period.

I therefore find that Respondent through Standard

Homes on and after February 21, 1972, violated Sections

8(a)(1),(2) and (3) of the Act by applying and enforcing

the Teamsters Olathe contract to the homes prefabrication

and assembly employees who were then, and still are, a

part of the Carpenters unit at Roe Boulevard.”

And in reaching the conclusion that Respondent

through Standard Homes Company unlawfully assisted

Teamsters in violation of Section 8(a)(1) and (2) of the

Act, I rely not only on the undisputed application of Team-

sters contract to the instant production employees but also

upon Smith’s aforedescribed statements to Fisher and

Papineau in February 1972 and Smith’s and Kline’s afore-

mentioned remarks to Fisher and Papineau in March 1972,

whereby I have concluded that Respondent enforced the

union security provisions of this contract.

46. Wolfer Printing Co., Inc, 145 NLRB 695; White Front

Stores, Inc., 166 NLRB 175.

47. See Sewanee Coal Association et al., 167 NLRB

172, 181-182, enf. denied, sub nom. Tennessee Products, Chemical

Corporation v. N.L.R.B., 423 F. 2d 169, C.A. 6. The Board decision

is binding upon me. Prudential Insurance Agents, 119 NLRB 768,

reversed on other grounds, 361 U.S. 477. Moreover, I am con-

strained to observe that the Sixth Circuit’s disagreement with the

Board in the Sewanee case stemmed mainly from its disagreement

with the Board’s determination in the underlying representation

case as to the identity of the majority representative of the unit in

which, - Board found, the contract therein had been unlawfully

entered into.

48. See Sheraton Kauai Corporation, 177 NLRB 25, enf.

429 F. 2d 1352, C.A. 9.

F. The Section 8(a)(5) allegations of the complaint

On February 20, 1972, the day before the first of these

employees (Coffelt) reported for work at Olathe, Car-

penters Representative Harding sought to discuss the

matter of “the transfer” of the instant employees \. ith

Hatcher, Respondent’s vice president in charge of produc-

tion (Hatcher was also Respondent’s principal bargainer in

the Carpenters unit contract negotiations in 1972 and ad-

mitted that he had handled Respondent’s labor relations

prior to that time). Hatcher told Harding there was

nothing to discuss because the Olathe plant was a “wholly

owned Delaware corporation and was not part of Sweet

Company.”

To the extent that Hatcher’s response may have in-

tended the meaning that Respondent was contending that

Standard Homes Company was a separate employer, I

have already rejected this contention in my conclusion that

Respondent and Standard Homes Company are a single

employer within the meaning of the Act. I have also al-

ready found that the homes prefabrication and ~ssembly

employees continue to be a part of—or are an accretion

to—the Carpenters unit at Roe Boulevard notwithstanding

the present assignment of these employees to the Olathe

plant. I have further found that the Teamsters contract

at Olathe was unlawfully applied and enforced as to these

employees after they began work at the Olathe plant.

In these circumstances, it follows that Respondent by

Hatcher, on February 20, 1972, refused to bargain with re-

spect to the wages, hours and other terms and conditions

of employment with Carpenters, the recognized represen-

tative of the unit in which these employees were employed.

It likewise follows that the application of the Teamsters

Olathe contract, with its lower wage rates and different

benefits, was a unilaterial change by Respondent, through

Standard Homes Company, in the terms and conditions of

employment of these employees. Respondent continued its

refusal to bargain with Carpenters about these matters by

denying Carpenters grievance in March 1972 and also by

denying Carpenters request for arbitration in April 1972,

both of which dealt, inter alia, with the same unilateral

changes in the terms and conditions of employment of

these employees. And the prefabrication and assembly

employees at Olathe continue to work under the unilater-

ally changed terms and conditions of employment imposed

upon them by the unlawful application to them of the

Teamsters Olathe contract.

In so refusing to bargain with Carpenters and unilater-

ally changing the terms and conditions of employment of

these employees, I find that Respondent itself, and Re-

spondent by and through Standard Homes Company, on

and after February 20, 1972, has violated and continues to

violate Sections 8(a) (5) and (1) of the Act.”

In reaching this conclusion I have carefully considered

each of the defenses offered by Respondent and Teamsters

at the hearing and in their briefs but reject them.

1. The defense of constructive notice. It is argued

that by placing a notice to each employee in the timecard

rack at Roe Boulevard in August 1971 informing the em-

ployees of the expected move by Standard Homes to

Olathe, as well as through the rumors about the move

which were rife at the Roe plant thereafter, Carpenters was

constructively notified of the move and should have taken

prompt action to bargain about it. I disagree.

It is clear the Carpenters was never formally notified

of the move nor offered a reasonable opportunity to bar-

gain about that move or any consequence from it upon the

49. See N.L.R.B. v. Katz, 369 U.S. 736.

terms and conditions of employment of the Carpenters

unit employees.

But even if it could be held that notice to the em-

ployees of the move and the aforementioned rumors some-

how stand on the same footing as a formal notice to the

Union of an opportunity to bargain, I would still disagree

that Carpenters was thereby given an adequate notice of

the opportunity to bargain on this matter. For there is

no indication in the notice itself that the move would re-

sult in any change in the terms and conditions of employ-

ment of Carpenters unit employees. The notice merely

recited in this regard that the “new plant [at Olathe] will

be occupied by Standard Homes Company, a division of

Sweet Lumber,” and no mention was made of a separate

corporation at the Olathe location. Since the production

employees of “Standard Homes Company, a division of

Sweet Lumber” were already a part of the Carpenters

unit at Roe Boulevard, the notice provided no basis for

any expectation that such employees would not continue

to be a part of that unit after the move of the “division”

to Olathe.

Nor does it appear that the separate incorporation of

Standard Homes Company on November 1, 1971, was made

known to the Carpenters or the Carpenters unit employees.

In fact, despite the existence of this separate corporation,

as of November 1, 1971, the Standard Homes production

operations continued at Roe Boulevard from November 1,

1971, into February 1972 and the production employees

continued to be paid on Respondent’s checks, as already

found.

I conclude rather that the matter was timely raised

by Harding’s unsuccessful effort to consult with manage-

ment the day before Coffelt, the first Carpenters unit em-

ployee to go to Olathe, began work there.

2. Exercise of the prerogative of management rights

under the management rights clause of the Carpenters con-

tract. While management obviously has the right to make

management decisions under a “management rights” con-

tract provision this does not permit management to avoid

the obligation to bargain about any change in the terms

and conditions of employment which might result from

such management decisions. While it is true that a labor

organization may enter into an agreement in which it

waives the right to bargain about mandatory subjects of

bargaining (wages, hours, etc.) such a waiver must be

“in clear and unmistakable” language and will not readily

be implied.” I find no clear and unmistakabie language

in the management rights provision of the applicable con-

tract herein whereby Carpenters could be deemed to have

waived the right to bargain over reassignment of unit em-

ployees and unit work at lower wage rates and different

benefits than they were already receiving.

3. The employees themselves agreed to the assign-

ment at Olathe. Since by obtaining the employees’ agree-

ment to the assignment, Respondent thereby bypassed their

bargaining representative, this defense need not detain us

long. Bypassing of the bargaining representative in a situ-

ation wherein an employer refuses to bargain with the em-

ployees’ exclusive representative about these same matters

is the very practice inveighed against by the Supreme

Court in Katz, supra.

4. The Carpenters failed to raise the question of the

relocation of bargaining unit work and unit employees to

Olathe when Carpenters bargained with Respondent in the

spring of 1972 for a new contract covering the Carpenters

Roe Boulevard unit.

. E.g., Smith Cabinet Manufacturing Company, Inc., 147

NLRB 1506. The Timken Timken Roller Bearing Co. v. N.L.R.B., 325 ¥. 24

746, C.A. 6, cert. denied, 376 U.S. 971.

It is undisputed that no mention was made by Car-

penters or Respondent of the matter of the relocation of

the Standard Homes prefabrication and assembly em-

ployees and their work to the Olathe plant, when Car-

penters and Respondent bargained in the spring of 1972

for a new agreement covering the Carpenters unit at Roe

Boulevard.

However, I do not believe that Carpenters’ failure to

bring up the matter during these negotiations absolved

Respondent of any obligation to bargain about it. For

Carpenters is not required to engage in a futile act. The

door to bargain on this subject had already thrice been

closed in Carpenters’ face before the spring 1972 negoti-

ations had begun—when Hatcher refused Harding’s re-

quest to discuss the matter on February 20, 1972, after the

first Carpenters unit employee, Coffelt, was about to begin

work at Olathe; again when Carpenters grievance over

this matter was rejected by Respondent in March 1972 and

for the third time when Carpenters request to arbitrate

the issue was also rejected by Respondent in April 1972.

5. The fact that the Carpenters contract coverage was

explicitly limited to the Roe Boulevard “plant.” The agree-

ment, which was in effect at the time of the relocation of

the homes prefabrication and assembly work (and the

employees performing that work) from Roe Boulevard to

Olathe, was the Carpenters Roe Boulevard contract which

was effective from June 1, 1970, to April 30, 1972.

The aforementioned management rights clause (Arti-

cle XIX) speaks of the “management of [this] plant” in the

singular. But at the time this agreement was entered into

on June 30, 1970, all of the instant work and employees

were located at the Roe Boulevard plant.

In these circumstances, I am not persuaded that this

language precludes Carpenters from bargaining over work

or employees subsequently removed from the “plant” to

another location, again, as supra, in the absence of “clear

anu unmistakable” language to the contrary. For, to hold

otherwise would mean that an employer operating under

a collective bargaining agreement containing such language

could avoid that agreement and its bargaining obligation

entirely, merely by a unilateral shutdown of the “plant”

and removal of all plant work and employees to a location

only one city block away.

I accordingly, conclude that Respondent itself and Re-

spondent by and through Standard Homes Company have

violated Section 8(a)(5) and (1) of the Act by refusing

rest on my other findings and the Katz decision, supra, I am con-

I make this alternative in the event the Board or

the Courts disagree with my usions—that t and

Standard Homes Company are a single employer wi the mean-

erations at Olathe remain or are an accretion to

Carpenters unit at Roe and that the Teamsters Olathe

(Continued on following page)

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Respondent and Standard Homes

Company, above, occurring in connection with the opera-

tions of Respondent described in section I, above, have a

close, intimate and substantial relation to trade, traffic

and commerce among the several states, and tend to lead

to labor disputes burdening and obstructing commerce and

the free flow of commerce.

Footnote Continued—

All the elements of proof of this violation have already been

found with the possible exception of “substantial impact” or “sub-

stantial detriment” to the employees who left the homes pre-

fabrication and assembly operation at Roe Boulevard to work at

Olathe. I conclude that this detriment is established by the fact

that—if it is assumed that Standard Homes Company is a -

rate employer—at least six employees in the Carpenters

Boulevard unit lost their jobs with Respondent. See Royal Alu-

minum, Inc., supra.

I am not persuaded that this loss of jobs can be said to be

mitigated by the voluntary acceptance of work at Olathe by these

For it is manifest that such voluntary acceptance was

obtained in circumstances involving the bypassing of their bar-

gaining representative. See Katz, supra; Royal Aluminum, Inc.,

supra,

Moreover, while there is testimony by Mrs. Sweet that the

Carpenters unit employment in mid-February 1972 (presumably

before the move) stood at 15 and continued to be 15 in July 1972

(after the move) this provides no assurance that the six who

went to Olathe would have remained in the unit. For there is

no showing that all were qualified to perform the more highly

skilled Carpenters unit mill work (e.g., manufacture of window

and door units) which is still being carried on at Roe Boulevard

nor was there any assurance that they would have even found

employment elsewhere in the plant (Williamson, the representa-

tive of Teamsters was told by Dale Long, as previously found,

that 7 employees from the Teamsters unit at Roe Boulevard were

to be laid off as the result of Standard Homes moving from that

location). Even if my finding that Standard Homes Company

and Respondent are a single employer is sustained—but my ac-

cretion and unlawful contract application i reversed—this

detriment is also established by the loss of hourly wages in the

amount of $.56% per hour (the difference between the journey-

(Continued on following page)

eee com’?

V. The Remedy

Having found that Respondent itself and by and

through Standard Homes Company has engaged in certain

unfair labor practices, I shall recommend that both com-

panies cease and desist therefrom and take certain affirma-

tive action designed to effectuate the policies of the Act.

Since I have concluded that Respondent itself and by

ployees now working at Olathe as a part of the Carpenters

unit of Respondent at Roe Boulevard and that Respondent

and Standard Homes bargain collectively upon request

with Carpenters as the exclusive representative of the in-

Footnote Continued—

stant homes prefabrication and assembly employees as a

part of that unit.

Having found that Respondent by and through Stan-

dard Homes Company violated Section 8(a)(1),(2) and

(3) of the Act by rendering unlawful support and assis-

tance to Teamsters Local 541 at the Olathe plant and en-

forcing that labor organization’s union security agreement,

I shall recommend that Respondent and Standard Homes

Company withdraw recognition from Teamsters Local 541

as the representative of the homes prefabrication and as-

sembly employees now working at Olathe, both until they

have complied with the bargaining order described supra,

and unless and until Teamsters Local 541 has been certified

by the Board as the exclusive bargaining representative of

the employees in the unit found appropriate, infra.

I shall also recommend that Respondent and Standard

Homes Company cease applying the provisions of Team-

sters Olathe contract to said employees.

Having found that Respondent unlawfully applied and

enforced the union security provisions of said contract to

the said employees, in violation of Section 8(a) (1),(2) and

(3) of the Act, I shall further recommend that Respondent

and Standard Homes Company be required to reimburse

the present and former homes prefabrication and assembly

employees for all initiation fees, dues or other moneys ex-

acted from them in favor of Teamsters Local 541, including

interest thereon at 6 percent per annum computed in the

manner set forth in Seafarers International Union of North

America, etc., 138 NLRB 1142 with 6 percent interest

thereon. J. Howard Jenks d/b/a Glendora Plumbing, 165

NLRB 101, 103; 172 NLRB 1700. And it will be recom-

mended that Respondent and Standard Homes Company be

ordered to cease giving effect to any Teamsters checkoff

authorizations of said employees and to cease offering to

pay Teamsters initiation fees for such employees.”

It will be recommended that Respondent and Standard

Homes Company make whole each of the aforementioned

present and former employees for any loss of pay or other

benefits which they may have suffered (as the result of

Respondent’s unilateral application to them of the terms

and conditions of employment of the Teamsters Olathe

contract with Standard Homes Company in late February

1972) with interest at 6 percent per annum and to continue

such payments™ until such time as Respondent negotiates

in good faith with Carpenters to agreement or impasse."

Further it will be recommended that Respondent and

Standard Homes Company preserve and make available

52. I recommend that the Teamsters initiation fees, dues or

‘any other moneys exacted under the Teamsters Olathe contract

be reimbursed to these employees and that their check-off au-

thorizations no longer be implemented in order to remedy fully

the Section BC) (S) violation which I have separ Bo!

remedying the 8(a)(1),(2) and (3)

were also found. For the union security provisions of the Team-

sters contract at Olathe are part and parcel of the terms and con-

ditions of employment unilaterally and unla Ras my upon

these employees by Respondent by and through

Company.

t have been struck as to the homes prefabrication and

sembly employees of Standard Homes Company, had such em-

ployees been bargained for as part of Carpenters Roe Boulevard

unit in the negotiations for a new agreement in the spring of 1972.

Relations

54. See Howard Johnson Company, 198 NLRB No. 98 (p. 4).

to the Board, upon request, all payroll records, social se-

curity payment records, timecards, personnel records and

reports, and all other records necessary and useful to deter-

mine the amount df moneys due under the terms of the

foregoing recommendations.

Finally, it will be recommended that the Respondent

and Standard Homes Company be required to post an ap-

propriate notice at their respective involved locations.

Conclusions of Law

1. Respondent and Standard Homes Company are a

single employer engaged in commerce within the meaning

of Section 2(6) and (7) of the Act.

2. Carpenters and Teamsters are both labor organiza-

tions within the meaning of the Act.

3. By the conduct set forth in section III, above, Re-

spondent by and through Standard Homes Company has

rendered unlawful assistance and support to Teamsters and

thereby has engaged in, and is engaging in, unfair labor

practices within the meaning of Section 8(a) (2) and (1)

of the Act.

4. By enforcing the provisions of the union security

agreement of the Teamsters contract to the homes prefabri-

cation and assembly employees at Olathe thereby en-

couraging membership in Teamsters and discouraging

membership in Carpenters or its locals, Respondent by and

through Standard Homes Company, on and after February

21, 1972, has engaged in, and is engaging in, unfair prac-

tices within the meaning of Section 8(a) (3) and (1) of the

Act.

<a eee a ee ~~ -

5. The following unit is appropriate for the purpose

of collective bargaining within the meaning of Section

9(b) of the Act.

All production and maintenance employees of Respon-

dent at its Roe Boulevard, Kansas City, Kansas plant and

all employees primarily engaged in the prefabrication and

assembly of homes at the Olathe, Kansas plant of Standard

Homes Company excluding delivery truckdrivers, hard-

wood finishers, all employees covered by Teamsters Local

541 contract at the said Roe Boulevard plant; also ex-

cluding all other employees of Standard Homes Company

at its said Olathe plant and excluding all office clerical

employees, guards and supervisors at both of said plants.

6. At all times material herein Carpenters has been

the majority and exclusive representative of the aforesaid

bargaining unit.

7. By refusing to bargain collectively with Carpenters

as the exclusive representative of the homes prefabrication

and assembly employees at the Standard Homes Company

Olathe plant as a part of the aforesaid bargaining unit and

by unilaterally changing the terms and conditions of em-

ployment of said employees on and after February 20, 1972,

Respondent itself and Respondent by and through Standard

Homes Company have violated Section 8(a)(5) and (1)

of the Act.

8. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the meaning of

Section 2(6) and (7) of the Act.

RECOMMENDED ORDER

Upon the basis of the foregoing findings of fact and

conclusions of law, and upon the entire record in this case,

it is recommended that R. L. Sweet Company, Kansas City,

Kansas and Standard Homes Company, Olathe, Kansas,”

their officers, agents, successors and assigns, shall:*

1. Cease and desist from:

(a) Assisting Teamsters Local 541, or any other labor

organization and from otherwise interfering with the rep-

resentative of their employees through a labor organization

of their own choosing.

(b) Recognizing Teamsters Local 541, or any succes-

sor thereto, as the representative of any of the employees

in the appropriate collective bargaining unit described be-

low, for dealing with them with respect to rates of pay,

wages, hours of employment or any other terms and condi-

tions of employment, both until they have complied with

the provisions of this order requiring them to bargain with

Carpenters’ District Council of Kansas City and Vicinity,

AFL-CIO, and unless and until Teamsters Local 541 has

been certified by the Board as the exclusive representative

of the employees in said appropriate unit.

lective bargaining agreement of February 11, 1972, be-

tween Teamsters Local 541 and Standard Homes Company

55. Although no charge was filed against Standard Homes

Company, it was named in the complaint and its interests were

fully and ably represented by its counsel at the hearing. For

these reasons and since I have found that Respondent and Stan-

dard Homes Company are a single employer within the meaning

of the Act, my recommended order shall run against both Re-

spondent and Standard Homes Company. J. Howard Jenks d/b/a

Glendora Plumbing, supra.

56. In the event no exceptions are filed as provided by Sec-

tion 102.46 of the Rules and Regulations of the National Labor

Relations Board, the findings, conclusions, and recommended Or-

der herein shall, as provided in Section 102.48 of the Rules and

Regulations, be adopted by the Board and become its findi

conclusions and Order, and all objections thereto shall be deem

waived for all purposes.

by applying or enforcing said agreement with respect to

any employees in the said appropriate unit, or by entering

into or enforcing any extension, renewal or modification or

supplement thereof, or any superseding collective bargain-

ing agreement with said labor organization, by applying

and enforcing any of said extensions, renewals, modifica-

tions, supplements or superseding collective bargaining

agreements to any employees in said appropriate unit.

(d) Giving effect to any checkoff authorizations in

favor of Teamsters by Standard Homes Company prefabri-

cation and assembly employees or offering to pay Team-

sters initiation fees for such employees.

(e) Refusing to bargain collectively with Carpenters’

District Council of Kansas City and Vicinity, AFL-CIO, as

the exclusive representative of all the employees in the fol-

lowing appropriate unit:

All production and maintenance employees of R. L.

Sweet Lumber Company at its Roe Boulevard, Kansas City,

Kansas, plant and all employees primarily engaged in the

prefabrication and assembly of homes at the Olathe, Kansas

plant of Standard Homes Company, excluding delivery

truckdrivers, hardwood finishers, all employees covered by

Teamsters Local 541’s collective bargaining agreement at

Roe Boulevard plant, all other employees of Standard

Homes Company at its said Olathe plant and excluding all

office clerical employees, guard: and supervisors at both

of said plants.

(f) Unilaterally changing the wages, hours and terms

and conditions of employment of any employees in the

aforesaid appropriate colle-tive bargaining unit.

(g) Encouraging membership in Teamsters Local 541

or any other labor organization, or discouraging member-

ship in Carpenters’ District Council of Kansas City and

Vicinity, AFL-CIO, or any of its locals or any other labor

organization, by applying or enforcing a collective bargain-

ing agreement containing union security provisions to em-

ployees outside of the bargaining unit covered by said col-

lective bargaining agreement or by discriminating in any

like or related manner in regard to employees’ hire or

tenure of employment or any other term and condition of

employment.

(h) In any like or related manner interfering with,

restraining or coercing employees in the exercise of rights

guaranteed in Section 7 of the Act, except to the extent

such rights may be affected by an agreement requiring

membership in a labor organization, as authorized in Sec-

tion 8(a) (3) of the Act, as amended.

2. Take the following affirmative action designed to

effectuate the policies of the Act:

(a) Withdraw and withhold all recognition from

Teamsters Local 541 as the collective bargaining repre-

sentative of the homes prefabrication and assembly em-

ployees of Standard Homes Company both until there has

been compliance with the provisions of this Order re-

quiring bargaining with Carpenters’ District Council of

Kansas City and Vicinity, AFL-CIO, and thereafter and

unless and until Teamsters is certified by the Board as the

exclusive representative of the appropriate unit described,

supra.

(b) Reimburse each of the present and former homes

prefabrication and assembly employees of Standard Homes

Company for all initiation fees, dues and other moneys if

any, exacted pursuant to the terms of the union security

agreement between Standard Homes Company and Team-

sters Local 541 on and after February 21, 1972, as set forth

in “The Remedy” section of the Administrative Law Judge’s

ters’ District Council of Kansas City and Vicinity, AFL-

CIO, as the exclusive bargaining representative of the

Standard Homes prefabrication and assembly employees

as a part of the appropriate unit described above, con-

cerning the wages, hours and other terms and conditions

of employment of said prefabrication and assembly em-

ployees.

(d) Make whole any present or former homes prefab-

rication and assembly employees of Standard Homes Com-

pany for any loss of pay or other benefits they may have

suffered as the result of the unilateral action of Respon-

dent by and through Standard Homes Company in apply-

ing the terms of Teamsters Local 541’s Olathe, Kansas,

collective bargaining agreement to said employees, with

interest at 6 percent per annum, and continue such pay-

ments until such time as Respondent and Standard Homes

negotiate in good faith with Carpenters’ District Council

of Kansas City and Vicinity, AFL-CIO, to agreement or

impasse with respect to said employees.

(e) Preserve and make available to the Board or

its agents all payroll and other records, as set forth in

“The Remedy” section of the Administrative Law Judge’s

Decision.

(f) Post at the Roe Boulevard plant of Respondent

and the Olathe plant of Standard Homes Company copies

of the the notice attached hereto and marked, “Appendix.”

Copies of this notice, on forms provided by the Regional

57. In the event the Board’s Order is enforced by a Judg-

ment oe Oe ees ab conan

“POSTED BY ORDER O

SUANT aan tale A JUDGMENT OF UNITED STATES COURT

OF APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD.”

Director for Region 17, after being duly signed by the ap-

propriate representative of Respondent and by the ap-

propriate ™presentative of Standard Homes Company, shall

be posted by each at its respective aforesaid plant imme-

diately upon receipt thereof, and be maintained by it for

60 consecutive days thereafter in conspicuous places in-

cluding all places where notices to employees are cus-

tomarily posted. Reasonable steps shall be taken by each

at its plant to insure that said notices are not altered, de-

faced or covered by any other material.

(g) Notify the Regional Director for Region 17 with-

in 20 days of the receipt of this Order, what steps Respon-

dent and Standard Homes Company have taken to comply

herewith.

IT IS HEREBY FURTHER ORDERED that the com-

plaint be, and it hereby is, dismissed insofar as it alleges

unfair labor practices not found herein.

Dated at Washington, D.C.

/s/ John F. Corbley

Administrative Law Judge

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD

AN AGENCY OF THE UNITED STATES GOVERNMENT

After a trial at which all sides had the chance to give

evidence it has been decided that we, R.L. SWEET LUM-

BER COMPANY and STANDARD HOMES COMPANY,

have violated the National Labor Relations Act and we

have been ordered to post this notice.

The National Labor Relations Act gives you as em-

ployees, certain rights, including the right to self-organiza-

tion, to form, join or help unions and to bargain collectively

through a representative of your own choosing.

Accordingly we give you these assurances:

WE WILL NOT recognize Teamsters Local 541 (here-

in called Teamsters) as the collective bargaining rep-

resentative of the homes prefabrication and assembly

employees of Standard Homes Company for the pur-

pose of dealing with us concerning grievances, labor

disputes, wages, rates of pay, hours of employment or

other terms and conditions of employment of these

employees or give Teamsters any other assistance or

support with respect to the representation of these em-

ployees.

WE WILL NOT apply, enforce or give effect to the

Teamsters’ collective bargaining agreement with

Standard Homes Company, or any modification, ex-

tension or renewal of such agreement, insofar as the

homes prefabrication and assembly employees of

Standard Homes Company are concerned.

WE WILL NOT encourage membership in Teamsters,

or any other labor organization, or discourage member-

ship in Carpenters’ District Council of Kansas City and

Vicinity, AFL-CIO, or its locals, or any other labor or-

ganization by applying, maintaining or enforcing the

union security provisions of the collective bargaining

agreement between Teamsters and Standard Homes

Company upon the homes prefabrication and assembly

employees of Standard Homes Company or by discrim-

inating in any like or related manner proscribed by

the National Labor Relations Act in regard to the hire

or tenure of employment or any other term or condi-

tion of employment of these employees.

WE WILL NO LONGER give effect to Teamsters

checkoff authorizations by Standard Homes Company

prefabrication and assembly employees nor will we

offer to pay Teamsters initiation fees for any such em-

ployees.

WE WILL NOT refuse to bargain collectively with

Carpenters’ District Council of Kansas City and Vicin-

ity, AFL-CIO, as the exclusive representative of the

homes prefabrication and assembly employees of

Standard Homes Company as a part of the following

appropriate collective bargaining unit:

All production and maintenance employees of R.L.

Sweet Lumber Company at its Roe Boulevard, Kansas

City, Kansas, plant and all employees primarily en-

gaged in the prefabrication and assembly of homes at

the Olathe, Kansas, plant of Standard Homes Com-

pany, excluding delivery truckdrivers, hardwood fin-

ishers, all employees covered by the Teamsters collec-

tive bargaining agreement at said Roe Boulevard plant,

all other employees of Standard Homes Company at its

said Olathe plant and excluding all office clerical em-

ployees, guards and supervisors at both of said plants.

WE WILL NOT in any lke or related manner inter-

fere with our employees in the exercise of any rights

guaranteed in the National Labor Relations Act.

WE WILL withdraw and withhold recognition from

Tearnsters as the collective bargaining representative

of any of the homes prefabrication and assembly em-

ployees of Standard Homes Company, both until we

have complied with the provisions of the Board’s

Order requiring us to bargain with Carpenters’ Dis-

trict Council of Kansas City and Vicinity, AFL-CIO,

and thereafter and unless and until Teamsters is cer-

Dated By

tified by the National Labor Relations Board as the

exclusive bargaining representative of the above de-

scribed appropriate collective bargaining unit.

WE WILL reimburse each of the present and former

homes prefabrication and assembly ‘employees of

Standard Homes Company for all initiation fees, dues

and other moneys, if any, exacted from them pursuant

to the union security provisions of the Teamsters col-

lective bargaining agreement with Standard Homes

Company, with interest.

WE WILL make whole any present or former homes

prefabrication and assembly employees of Standard

Homes Company for any loss of pay or other benefits

they may have sufferec as the result of the application

to them of the wages, hours, and other terms and con-

ditions of employment of the Teamsters contract with

Standard Homes Company, with interest.

WE WILL bargain with Carpenters’ District Council

of Kansas City and Vicinity, AFL-CIO, as the exclu-

sive bargaining representative of the homes prefabri-

cation and assembly employees of Standard Homes

Company as a part of the above described appropriate

collective bargaining unit.

R. L. Sweet Lumber Company

(Employer)

(Representative) (Title)

Standard Homes Company

(Employer) :

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE

DEFACED BY ANYONE

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concern-

ing this notice or compliance with its provisions may be

directed to the Board’s Office, 616-Two Gateway Center,

Fourth at State, Kansas City, Kansas 64101, Tel. No. (816)

374-4434.

APPENDIX B

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

R. L. SWEET LUMBER COMPANY

and

CARPENTERS’ DISTRICT COUNCIL OF KANSAS CITY

AND VICINITY, AFL-CIO

and

TEAMSTERS LOCAL 541

Party to the Contract

207 NLRB No. 89

Case 17-CA-5292

DECISION AND ORDER

(Decision Issued November 23, 1975)

On May 18, 1973, Administrative Law Judge John F.

Corbley issued the attached Decision in this proceeding.

Thereafter, the Respondent filed exceptions and a support-

ing brief, and the general Counsel filed cross-exceptions

ee ee ee

answering brief.’

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the National

Labor Relations Board has delegated its authority in this

proceeding to a three-member panel.

1. As the record, exceptions, and briefs adequately present

the issues and positions of the es, the Respondent’s request

for oral argument is hereby d

The Board has considered the record? and the attached

Decision in light of the exceptions and briefs and has de-

cided to affirm the rulings, findings and conclusions of the

Administrative Law Judge and to adopt his recommended

Order.

ORDER

Pursuant to Section 10(c) of the National Labor Re-

lations Act, as amended, the National Labor Relations

Board adopts as its Order the recommended Order of the

Administrative Law Judge and hereby orders that Re-

spondent, R. L. Sweet Lumber Company, Kansas City,

Kansas, and Standard Homes Company, Olathe, Kansas,

their officers, agents, successors, and assigns, shall take

the action set forth in said recommended Order.

Dated, Washington, D.C., Nov. 23, 1975.

Edward B. Miller, Chairman

John H. Fanning, Member

Howard Jenkins, Jr., Member

(Seal) National Labor Relations Board

2. The Respondent’s posthearing motion to complete the

record is hereby denied as lacking in merit.

APPENDIX C

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD

Petitioner,

R. L. SWEET LUMBER COMPANY,

Respondent,

and

STANDARD HOMES COMPANY,

Intervenor.

OPINION

(Opinion Issued May 13, 1975)

NO. 74-1065

ON APPLICATION FOR ENFORCEMENT OF AN ORDER

OF THE NATIONAL LABOR RELATIONS BOARD

(NLRB Case No. 17-CA-5292)

Before HOLLOWAY and McWILLIAMS, Circuit Judges,

and CHRISTENSEN, District Judge’.

HOLLOWAY, Circuit Judge

The petitioner, National Labor Relations Board, seeks

enforcement of its decision and order that Sweet Lumber

Company, the respondent, and Standard Homes Company,

*Of the District of Utah, sitting by designation.

the intervenor, cease recognition of Teamsters Local 541 as

bargaining agent of certain employees primarily engaged

in the prefabrication and assembly of homes at the Standard

Homes plant in Olathe, Kansas, and bargain collectively

with Carpenters’ District Council of Kansas City and

Vicinity, AFL-CIO, as the representative of the same

employees.

The Board adopted the findings, decision and proposed

order of the Administrative Law Judge, 207 NLRB No. 89.

It thereby determined that Sweet Lumber—acting by and

through its alter ego, Standard Homes—had violated § 8

(a)(1), (2), (3) and (5) of the National Labor Relations

Act, 29 USCA § 158(a)(1), (2), (3) and (5), in that

(R. 879-80):

1. Sweet Lumber, by and through Standard

Homes, rendered unlawful assistance and support to

the Teamsters in violation of § 8(a) (1) and (2).

2. Sweet Lumber, by and through Standard

Homes, enforced the provisions of the union security

agreement of the Teamster contract against certain

employees at Standard Homes’ Olathe plant, thereby

encouraging membership in the Teamsters and dis-

couraging membership in the Carpenters, in violation

of § 8(a) (1) and (3).

3. Sweet Lumber, by and through Standard

Homes, refused to bargain collectively with the Car-

penters as the exclusive representative of certain em-

ployees at Standard Homes’ Olathe plant and unilater-

ally changed the terms and conditions of employment

of said employees, in violation of § 8(a)(1) and (5).

Respondent and intervenor challenge enforcement of

the Board’s decision and order, arguing principally that:

(1) the charge of unfair labor practices was time-barred

by § 10(b) of the Act, 29 USCA § 160(b); and (2) the

evidence is insufficient to support the Board’s findings of

unfair labor practices. We must disagree with the respon-

dent and intervenor, and grant enforcement.

Before treating the issues we will outline the factual

background. As we do so, it is convenient to focus on

dates in view of the time bar issue raised under § 10(b).

Since the unfair labor practices charge was filed on August

18, 1972, the crucial date is February 19, 1972. Charges of

unfair labor practices occurring before that date are

barred, while those occurring on or after that date are

timely.

The factual background

Sweet Lumber is engaged in the wholesale and retail

sale of lumber and related products. Its principal office

and lumberyard is, and has been since 1952, located at 4400

Roe Boulevard, Kansas City, Kansas. Mrs. R. L. Sweet

has been president of Sweet Lumber since the death of

Mr. Sweet in 1958. Along with the sale of lumber and

other building products, Sweet Lumber has manufactured

and sold millwork such as doors, windows and room di-

viders, and also single-package prefabricated homes.

Through October, 1971, the prefab home manufacturing

activity was carried on by the Standard Homes Division

of Sweet Lumber and through February, 1972, this oc-

curred at the Roe Boulevard location.

At all times pertinent to this case the employees at the

Roe Boulevard yard have been represented by two unions.

Warehouse and yard employees, including lumber handlers,

truckdrivers, loaders, forklift operators and stockmen, have

been represented by Teamsters Local 541. Other em-

ployees engaged in the manufacturing process, including

millmen and prefab home assemblers, have been repre-

sented by Carpenters Local 1635.

In 1971 the directors of Sweet Lumber determined that

the Roe Boulevard location was no longer adequate to carry

on all of the company’s activities, particularly the manu-

facture of prefab homes. At a directors meeting in June,

1971, it was decided to move the prefab homes operation

to another location. In late 1971 land was purchased and

construction of a new plant began at Olathe, Kansas, some

19 miles from the Roe Boulevard location.’

The directors also decided to incorporate separately the

prefab home operation. They changed the name of Con-

struction Loan Company, an existing corporation of which

Mrs. Sweet was also president, to Standard Homes Com-

pany. Mrs. Sweet remained president of the newly named

company. Mrs. Sweet testified that the incorporation of

Standard Homes was not related to the decision to move

to Olathe (R. 382). Respondent and intervenor also stress

the fact that Standard Homes is a Delaware Corporation

while Sweet Lumber is a Missouri Corporation in challeng-

ing the finding that Standard Homes and Sweet Lumber

were a single employer (R. 863), and the finding that the

Olathe prefab operation was an accretion to the Roe Boule-

vard prefab unit, represented by the Carpenters union

(R. 865).

After the separate incorporation of Standard Homes,

on October 31, 1971, the production of prefab homes con-

tinued by the same manufacturing processes at the Roe

1. At Olathe the land and the building are owned by R. L.

Sweet Investment Company and all of the stock in that

is held in trust for Mrs. Sweet and her two sons-in-law (R. 352).

Standard Homes paid a rental to Sweet Investment Company for

use of the land and building (R. 405).

Boulevard plant. An arrangement was arrived at whereby

Sweet Lumber sold its prefab homes to Standard Homes

for a price that included the value of the materials and a

fixed labor cost for each unit. Fixed assets and various

items of property of Standard Homes Division were sold

at the book value by Sweet Lumber to Standard Homes

Company on November 1, 1971. Although a separate of-

fice was temporarily set up for Standard Homes Company

office employees at Roe Boulevard and some office em-

ployees were paid on Standard Homes Company checks at

least in January and February of 1972, the prefab produc-

tion employees continued to be employed and paid by

Sweet Lumber. -

In August, 1971, a “Staff Bulletin” was placed in the

timecard slots of the employees at Roe Boulevard relating

the news of the planned move to Olathe. The bulletin

stated that the new plant would be occupied by “Standard

Homes Company, a division of Sweet Lumber” and that

January, 1972, was the target date for completion (Ex. 4,

R. 795).

Preparations for occupying the Olathe plant began in

January, 1972. Early that month, Frank Woodbury and

Charles Roberts went out to the Olathe site to coordinate

completion of the plant with the general contractor. Lum-

ber also began arriving that month, and four employees

were hired to unload the initial lumber deliveries and to

build racks and other facilities. One of these men, Kline,

had been a member of the Teamsters unit at Roe Boule-

vard and became a foreman at Olathe. The other three—

Streeter, Nicely and Brown—were new employees.

On January 24, 1972, Aubrey Williamson, a business

agent of Teamsters Local 541, visited Olathe and obtained

signed authorization cards from Kline, Streeter, Nicely

and Brown (R. 257-258, 275, 855). On February 4,

Williamson met with Eugene Smith, then the vice-president

of Standard Homes, and Charles Hoffhaus, attorney for

Sweet Lumber, and presented the signed authorization

cards. After verifying the signatures, Smith and Hoffhaus

agreed to bargain, and on February 11, Standard Homes

and Teamsters Local 541 executed a contract running from

February 7, 1972, to February 2, 1975, with a provision for

automatic renewal (R. 260, 669, 855). The contract wage

scale provided for a minimum hourly wage of $3.50 per

hour. By its terms, the contract covered “all production

and maintenance employees at the Employer’s Olathe,

Kansas plant including truck drivers” and contained a

union security clause requiring all employees to join

Teamsters Local 541 within 31 days after beginning em-

ployment.

At the time that the contract was signed, only four

men (Kline, Streeter, Nicely and Brown) were performing

work that could be covered by its terms. As mentioned,

their work consisted of unloading lumber and building racks

and other facilities. No production was being done at

Olathe at this time,? and Smith testified that at the time

he signed the contract, he knew that he would have 12 to

13 more non-office employees working at Olathe shortly.

In mid-February, Smith began interviewing Sweet

Lumber employees at the Roe Boulevard plant to deter-

mine whether they would accept employment at Olathe.

Among these were four men who were working in the

prefab homes operation at Roe Boulevard and were mem-

bers of Carpenters Local 1635. These four—Coffelt, Schaf-

fer, Fisher and Papineau—all eventually accepted employ-

2. Vice-President Smith was still officing at Roe Boulevard

and the office employees of Standard Homes were also still at

Roe Boulevard.

ment at Olathe. Except for Coffelt, who was on vacation

and whom Smith went to see at home, they were inter-

3. While all four were initially offered a wage rate of $3.75

per hour under the Teamsters con Felgen gt yt Boom

paid at a “leadman” rate of $4.50 or . At that time,

four had been making $5.06 % per hour at Roe Boulevard under

the Carpenters’ contract. Fisher, in fact, was paid his Roe Boule-

that production began

February 29, 1972. See note 8, infra. + Cup

5. Coffelt testified that who at this time

as a foreman at oe referred to a Tuiaaain eaeen onl

Schaffer similarly that either Kline or another foreman

On February 20, 1972, before the prefab workers began

production at Olathe, a Carpenters’ representative—Hard-

ing— questioned Mr. Hatcher, vice-president of Sweet Lum-

ber that handled union matters, about the transfer of em-

ployees to Olathe (R. 31-32). Hatcher informed Harding at

that time that the “facility out there was a wholly owned

Delaware corporation and was not part of Sweet Company,

there was nothing to discuss.” (R. 31). Harding indicated

at that time to Hatcher that they would “process the thing

through the provisions of our contract that refer to griev-

ance procedure.” (R. 31). This was found to be a refusal by

Sweet Lumber to bargain with the Carpenters union (R.

871), and it was found also that the refusal to bargain

continued by two other acts in March and April, 1972

(R. 872).

As stated, on August 18, 1972, the charge of unfair

labor practices—essentially refusing to bargain with the

Carpenters union concerning the Olathe operation and il-

legal support of the Teamsters union—was filed which

culminated in the challenged order. We turn now to re-

spondent’s grounds for opposing enforcement of the order.

Whether the charge of unfair labor practices was

time barred by § 10(b)

Respondent argues that the unfair labor practices al-

leged by the charge are time barred by § 10(b) of the

Act, 29 USCA § 160(b). It maintains that all acts involved

herein depend on the legitimacy of the Teamsters contract

executed on February 11, 1972, which is the significant

event for limitations purposes. It says that since the

charge in this case was not filed until August 18, 1972, acts

occurring prior to February 19, 1972, would be barred under

the six-month limitation provision of § 10(b), and that all

charges of violations are thus untimely.

The amended complaint (see R. 827) had challenged

the validity of the February 11 contract, but the Board

found that § 10(b) foreclosed consideration of whether the

recognition was lawful (R. 866-67) and on this basis

refused to set aside the bargaining agreement. This rul-

ing is not challenged. The Board went on to determine,

however, that the bar did not apply to the allegation that

the Teamsters contract was unlawfully applied after Febru-

ary 18 against Carpenters members from Roe Boulevard

who had begun working at Olathe.

Respondent argues that, as a matter of law, the § 10(b)

bar must be given effect against all the alleged unfair prac-

tices, relying principally on Local Lodge No. 1424, National

Ass’n of Machinists, AFL-CIO v. NLRB, 362 US. 411 (the

Bryan case) and NLRB v. Serv-All Co.; 491 F.2d 1273 (10th

Cir.). We cannot, however, agree that either Bryan or

Serv-All dictate a denial of enforcement.

In Bryan, the employer had entered into a collective

bargaining agreement with a union that did not represent

a majority of the employees at the time that the original

agreement was executed. Charges were filed with the

Board 10 and 12 months after the execution of the agree-

ment. Conceding to the Court that the charges as to the

contract’s execution were barred by § 10(b), the Board

nevertheless argued that continued enforcement by the

employer and the union was a separate and continuing un-

fair labor practice not protected by § 10(b).

Disagreeing, the Court noted that the union security

clause and its enforcement, standing alone, were wholly

innocent and could not be charged as an unfair labor prac-

tice except through reliance on the illegality of the execu-

tion of the original agreement. Under such circumstances,

and since the execution of the agreement was over six

months prior to the filing of the charges, the Court held

that § 10(b) barred reference to the illegal nature of the

agreement’s execution and thus its illegality could not cast

a shadow across the agreement’s subsequent enforcement.

We should note, however, the limitations stated by the

Court to its holding in Bryan, 362 U.S. at 422, 423:

[W]e need not go beyond saying that a finding of

violation which is inescapably grounded on events

predating the limitations period is directly at odds

with the purposes of the § 10(b) proviso.

In any real sense, then, the complaints in this case

are ‘based upon’ the unlawful execution of the agree-

ment, for its enforcement, though continuing, is a con-

tinuing violation solely by reason of circumstances

existing only at the date of execution.

The Court pointed out that earlier events back of the

§ 10(b) period may be utilized to shed light on the true

character of matters occurring within the limitations pe-

riod, but concluded that the situation in Bryan was one

“where conduct occurring within the limitations period can

be charged to be an unfair labor practice only through re-

liance on an earlier unfair labor practice.” Id. at 416-17.

Respondent contends that here, as in Bryan, the date

of the contract’s execution is controlling for § 10(b) pur-

poses. The Teamsters contract, respondent points out, on

its face covers “‘all production and maintenance employees”

at Olathe (f 2, R. 669). Necessarily then, says the respon-

dent, if the Carpenters rights were violated, this occurred

at the time that the contract was signed. And if the con-

tract’s validity is beyond scrutiny, charges as to its subse-

quent application to the Carpenters are also barred.

We do not feel that Bryan established a black and .

white rule in all cases where a contract’s execution is re-

lated to the unfair labor practice charges that would bar

such charges where the contract’s execution was beyond

the six-month period.* Indeed, the Court referred to the

Board’s attitute lending support to its views, comparing

cases held timely by the Board “where evidence as to

events during the barred period was used to illuminate

current conduct claimed in itself to be an unfair labor prac-

tice . . .” with others held untimely “. . . where the grava-

men of the unfair labor practice complained of lay in a

fact or event occurring during the barred period.” Bryan,

supra at 419-20. And the Court cited Board cases holding

charges untimely where “. . . the evidence in fact mar-

shalled from within the six-inonth period is not substantial,

and the merit of the allegations in the complaint is shown

largely by reliance on the earlier events.” Id. at 421. The

Court stated, id. at 422:

However, we express no view on the problem raised

by such cases, for here we need not go beyond saying

that a finding of violation which is inescapably

grounded on events predating the limitations period is

directly at odds with the purposes of the § 10(b)

proviso.

We feel that we do not have a case where the contract

execution date in itself is controlling, and instead must con-

sider the circumstances surrounding several actions and

6. The Court made clear that Bryan was a case “w -

duct within ine Timitations period canbe Charged

oe et labor practi ie care ae Ti ne ay ee

Sper seater Laine t with Be cg, ee

majority at the time being agreement wi “indice *

events to determine when the gravamen of the unlawful

practices charged occurred. In determining this, we be-

lieve it is important to view the facts in light of the Board’s

findings, which we sustain." We musi focus on whether,

in substance, the unfair labor practices of refusal to bargain

with the Carpenters union and illegal support of the Team-

sters, and the like occurred before or after the critical date

—February 19, 1972.

As stated, the Sweet Lumber contract with the Team-

sters was executed on February 11. However, despite the

separate incorporation of Standard Homes and the subse-

quent move of prefabrication operations to Olathe, it was

found that Standard Homes and respondent remained a

single employer, Standard Homes being the alter ego of

Sweet Lumber. Hence all prefabrication employees

whether working at Roe Boulevard or Olathe, continued to

be represented by the Carpenters. The Board also found

that at the time of the execution of the Teamsters contract,

the only employees working at Olathe were four engaged

primarily in unloading lumber, etc. (R. 868), which was

not prefab work. In fact, the Board found that no prefab

production began at Olathe until on or after February 21

(R. 870). See note 8, infra.

The situation up to February 21, therefore, was that

prefabrication production workers were still working at

Roe Boulevard under the Carpenters contract and had not

yet begun work at Olathe, while four non-prefab produc-

tion workers—one of whom was a former Teamsters 541

member—had gained recognition of the Teamsters as their

bargaining agent.

7. The respondent and intervenor vigorously challenge the

Board’s findings. However for reasons stated later, we conclude

that there is substantial evidence to support the findings and sus-

It was found that the Teamsters contract was enforced

at Olathe in violation of § 8(a)(1)(2) and (3) (the inter-

ference; domination and support; and encouragement of

membership unfair labor practices), and that the Team-

sters union was unlawfully assisted, at times occurring

within the § 10(b) period (R. 868). In fact, not until on

or about February 21 were any of the Carpenters prefab

workers working at Olathe (R. 868, 870; e.g. R. 108).* It

was also found that the Teamsters contract, with its lower

wage rates and different benefits, was applied to the pre-

fab and assembly workers upon their employment at Olathe

(R. 868; see R. 221-38). Such acts in applying the Team-

sters contract thus come within the § 10(b) period.

We do note, in connection with the finding as to en-

forcement by intervenor of the Teamsters contract’s union

security clause, the finding that Standard Homes’ vice-

president Smith advised Coffelt on about February 17, and

Fisher and Papineau a few days later, that the employees

at Olathe would be represented by one union—the Team-

sters (R. 868). However, it was found that after the em-

ployees had begun work at Olathe, further efforts were

made by respondent to have the employees join the Team-

sters (R. 869). These acts included a remark by a Stan-

dard Homes foreman that Papineau could be transferred

to Missouri (where there was no right to work law’ when

Papineau raised a right to work law objection after the

foreman spoke to him about joining the Teamsters union

(R. 869; See note 5, supra). And there was also discussion

within the § 10(b) period of possible payment by Stan-

dard Homes of the Teamsters’ initiation fee for Fisher,

which offer was declined (R. 869; see note 5, supra).

And, as stated earlier, it was found that on February

20, 1972, respondent refused to bargain with the Carpen-

ters concerning the Olathe operation, and that the refusal

was repeated by two later acts in March and April, 1972

{R. 871-72).

In view of these findings, we cannot agree that NLRB

v. Serv-All Co., 491 F.2d 1273 (10th Cir.) dictates a de-

nial of enforcement. There the employer indicated by sev-

eral acts outside the § 10(b) period that it would not abide

by a new contract made by a multi-employer bargaining

group and the union. The Board held the charges timely

on the ground that the initial refusal to bargain recurred

within the six-month period. This Court held that the

record did not support a finding that the refusal to bargain

recurred within the period, and further rejected the views

of the Board as faulty in law in applying the recurring

violation theory. Here, we do not feel we have a recur-

ring violation question as in Serv-All, but rather a prob-

lem whether conduct which itself is the gravamen of the

unfair labor practices charged occurred within the § 10(b)

period. Bryan, supra, at 419-20.

While the case is not free from doubt, we are per-

suaded that in these circumstances the contract execution

date is not controlling. We conclude that the substantial

active conduct adversely affecting the Carpenters union

and those whom it was entitled to represent, and consti-

tuting the unfair labor practices found, fell within the six

month period. See Shumate v. NLRB, 452 F.2d 717, 719-20

(4th Cir.); Local Union No. 167, Progressive Mine Work-

ers of America v. NLRB, 422 F.2d 538, 542-43 (7th Cir.);

NLRB v. Plumbers & Pipe Fitters Local Union 214, 298

F.2d 427 (7th Cir.); cf. NLRB v. New Mexico District

Council of Carpenters, 45 F.2d 1116, 1119-20 (10th Cir.).

Accordingly we hold that the charges were not barred by

§ 10(b) as to the unfair labor practices found.

Whether there is substantial evidence supporting

the Board’s findings and order

As stated the Board adopted the Administrative Law

Judge’s findings of unfair labor practices, and respondent

and intervenor vigorously challenge the findings. In re-

viewing them we are enjoined by Universal Camera Corp.

v. NLRB, 340 U.S. 474, 487-88, to review the record as a

whole, taking into consideration not only evidence sup-

porting the findings, but contradictory and conflicting evi-

dence as well. However, we may not ignore the Board’s

expertise or displace its findings between two fairly con-

flicting views, even though we would have made a differ-

ent choice had the matter been before us de novo. Id. at

488. If such review of the record as a whole reveals sub-

stantial evidence supporting the findings, they must not

be disturbed. Id. at 485.

a. The finding that Sweet Lumber and Standard

Homes were a single employer

The Board found that Sweet Lumber and Standard

Homes were a single employer under § 2(2) of the Act,

29 USCA § 152(2). Such a view of separate legal entities

may be made when necessary to safeguard statutory rights.

See NLRB v. Gibraltar Industries, Inc., 307 F.2d 428, 431

(4th Cir.). The controlling criteria are the interrelation

of relations, common management, centralized control of

labor operations, and common ownership. See Radio &

Television Broadcast Technicians Local Union 1264, IBEW

v. Broadcast Service of Mobile, Inc., 380 U.S. 255; NLRB v.

Jordan Bus Co., 380 F.2d 219, 221 (10th Cir.). The de-

termination is essentially a factual one and will not be set

aside unless clearly erroneous. See NLRB v. M. P. Build-

ing Corp., 411 F.2d 567, 568 (5th Cir.); NLRB v. A. E.

Nettleton Co., 241 F.2d 130 (2d Cir.).

On consideration of the record as a whole and the

arguments by respondent and intervenor, we are satisfied

that the findings are supported by substantial evidence.

The challenges to the findings are essentially premised on

the stressing of conflicting evidence such as testimony by

Mrs. Sweet, president of both companies, that Mr. Smith

was in complete control of important mattere at Standard

Homes. There were, however, conflicting admissions as

to her degree of control. In any event there was substan-

tial proof of common management as to several officers,

including Mrs. Sweet who served both companies as presi-

dent.

In addition, as to its operations respondent vigorously

argues that Standard Homes was putting out a totally dif-

ferent product and using different purchasing and produc-

tion methods at Olathe. Again the contention is based on

portions of the proof admittedly favoring respondent, while

there was conflicting proof. For example, each of four

Carpenters who testified stated he did essentially the same

work with the same tools as he had done at Roe Boulevard.

We are satisfied that there was substantial proof as to

common management, common ownership, centralized con-

trol of labor policy, and interrelation of operations. We

feel the record amply supports the finding.

b. The finding that the Standard Homes pre-

fabrication employees are a part of or an accretion

to the Carpenters unit at Roe Boulevard

The Board’s finding of aecretion is similar to its func-

tion of determining the appropriateness of particular units

for bargaining purposes. See NLRB v. Sunset House,

415 F.2d 545, 547 (9th Cir.). The determination is one

involving the Board’s discretion and should not be set aside

unless a reviewing court is convinced that the Board has

acted in an arbitrary and capricious manner. NLRB v.

Baton Rouge Waterworks Co., 417 F.2d 1065, 1067 (5th

Cir.); International Union, UAW v. NLRB, 231 F.2d 237,

243 (7th Cir.).

The factors weighed by the Board include functional

integration of the business, centralized management, simi-

larity of working conditions, collective bargaining history,

local power to hire and fire, lack of employee interchange,

and geographical distance. NLRB v. Sunset House, supra

at 548. The findings related to the single employer de-

termination are obviously relevant again.

In addition, here the Board found that employees at

Olathe were doing the same work with the same equip-

ment as at Roe Boulevard; that the product was essentially

the same; that employee seniority had been transferred

from Roe to Olathe, at least as to vacation rights; that

management of the companies was essentially the same; .

and that there was in fact little evidence of interchange

between production employees and others at Olathe. In

contesting the findings respondent again argues conflict-

ing interpretations, saying that Olathe was obviously go-

ing to be a plant for production of mass-produced homes

and that when employees were added to implement such

production, they were accreted to the Olathe plant, and

not to the Roe plant where such production had perma-

nently ceased. We are not persuaded by the different

emphasis. We must agree that the Board’s findings are

supported by substantial proof.

Respondent argues further that recognition of the Car-

penters as the bargaining representative of the prefab pro-

duction employees would have constituted an unfair labor

practice, relying on NLRB v. Hudson Berlind Corp., 494

F.2d 1200 (2d Cir.). There, however, a new facility was

established consolidating two older separate facilities, each

represented by a different union. The Board found no

accretion and the finding was sustained. In view of the

finding of no accretion and the presence of conflicting

unions, the employer’s bargaining with one union was

viewed as a violation of its duty of neutrality. See Mid-

west Piping Co., 63 NLRB 1060. We view the case as in-

apposite since it was based on a contrary determination of

no accretion.

We view the record as a whole as amply sustaining the

accretion finding here.

c. The Board’s findings of violations

of § 8(a) (5) and (1)

Respondent argues there is insufficient evidence to

support the findings of violation of § 8(a)(5) and (1), 29

USCA § 158(a) (5) and (1), refusal to bargain and inter-

ference with employees’ rights. More specifically respon-

dent says it notified the Carpenters concerning the move

to Olathe and that the union waived its right to bargain

by not promptly requesting negotiations concerning the

move; that the Carpenters contract with respondent was

limited to the Roe Boulevard plant; that the management

rights clause in the contract permitted respondent to dis-

continue the prefab operations without bargaining with the

Carpenters union; that the Olathe employees voluntarily

left the Carpenters unit at Roe Boulevard; and that there

was no substantial detriment to the Carpenters.

In support of respondent’s position the record does

show the distribution of the August, 1971, bulletin to the

Roe Boulevard employees about the new plant and the

Standard Homes move (R. 795)*, and testimony by em-

ployee. Shaffer that the move was common knowledge.

The Board found that the Carpenters union was not

formally notified of the move nor offered a reasonable op-

portunity to bargain about the move or its consequences.

And the findings stated that even if notice to employees

served as formal notice to the union, the Judge disagreed

that the Carpenters union was given an adequate notice

of the opportunity to bargain on the matter, there being

no indication in the notice that the move would result in

any change in the terms and conditions of employment of

Carpenters unit employees (R. 872).

We sustain the findings. The lack of formal notice to

the union is supported by testimony of the business rep-

resentative, Mr. Harding. Moreover the bulletin referred

to a change in location, but without mention of a change

in corporate status or conditions of employment (R. 795).

See NLRB v. Royal Plating & Polishing Co., 350 F.2d 191,

194-95 (3d Cir.). We are not persuaded by the notice argu-

ment, since the employer must provide the union with

notice of a vital change in working conditions. See NLRB

v. Rapid Bindery, Inc., 293 F.2d 170, 176 (2d Cir.).’°

9. The respondent points out that such distribution to all

employees included Mr. Boyce, the union steward. He testified

he did not see any Sweet Lumber literature distributed at Roe

Boulevard about the Olathe plant (R. 175-176). This point is

not resolved by the Board’s findings, the Board concluding that

ied notice was not given by the bulletin in any event (R.

10. Reliance on NLRB v. Spun-Jee Corp., 385 F.2d 379 (2d

Cir.) is misplaced. The information there conveyed was informal

but complete, while here the bulletin did not give information

sufficient to alert the union to bargain, and thus did not constitute

sufficient notice.

74 :

Since we sustain the finding of lack of adequate notice

to the Carpenters union concerning the relocation to

Olathe, we are not persuaded that there was waiver by

the union’s failure to demand bargaining concerning the

move before Harding’s discussion on February 20, 1972,

with Mr. Hatcher. As stated earlier, we sustain the find-

ing that Harding then sought to discuss the transfer and

that respondent refused to bargain (R, 871).

A further waiver argument is made on failure of the

Carpenters union to attempt bargaining concerning the

Olathe plant when the Roe Boulevard contract was re-

negotiated in April and May of 1972. There was no dis-

cussion by the Union concerning the Olathe employees in

those negotiations. However, the failure to make such a

demand in those negotiations was found not to have ab-

solved respondent of its duty to bargain, and we sustain

this determination. Any such waiver of the Union’s right

to bargain must be clear and unmistakable. See Murphy

Diesel Co. v. NLRB, 454 F.2d 303, 306-07 (7th Cir.). We

accept the determination that no waiver of the right to

bargain occurred. In addition we are not persuaded by

the waiver argument since it would seem futile that the

Carpenters union again attempt to bargain about the

Olathe plant when efforts to do so had been rebuffed

three times previously (R. 874).

Respondent argues that the management rights clause

in Article XIX of the 1970-1972 contract with the Carpen-

ters gave it the right to determine what products should

not be manufactured and the right to introduce new fa-

cilities (R. 632). It says that Olathe was such a new fa-

cility that the company had a right to establish and that

it did not have to bargain for the right again. Here, how-

ever, application of the Teamsters contract effected sub-

stantial changes in terms and conditions of employment.

As the Board’s decision points out, any waiver of the right

to bargain about mandatory subjects of collective bargain-

ing must be clear and unequivocal. See Weltronic Co.,

173 NLRB 235; enforced, 419 F.2d 1120 (6th Cir.). We

must agree the contract did not go so far. And despite

the right to introduce the new facility, there was still a

duty to bargain about the effects on employees repre-

sented by the Carpenters. See NLRB v. Thompson Trans-

port Co., 406 F.2d 698, 702-03 (10th Cir.).

Respondent argues that the employees voluntarily left

the Carpenters unit at Roe Boulevard and accepted em-

ployment at Olathe and that consequently they are not

proper subjects for bargaining. We must disagree. The

voluntary response by employees directly approached did

not extinguish the duty to bargain, or constitute a defense

to the charge of refusal to bargain with the bargaining

representative. See Medo Photo Supply Corp. v. NLRB,

321 U.S. 678.

d. The Board’s findings of violations of § 8(a) (2)

(3) and (1)

There remain respondent’s and intervenor’s arguments

against the findings of unlawful assistance to the Teamsters

union in violation of § 8(a)(2)(3) and (1), the “domi-

nation” and “illegal support” findings. Essentially re-

spondent argues that these charges were time barred, and

were clearly erroneous since separate corporations and an

utterly new and different type of industrial labor unit

was involved, having no affiliation with the cabinet makers

at Roe Boulevard. For reasons already stated, we must re-

ject the time bar argument and the factual arguments

about the operations at the two plants.

We have considered these objections and others ad-

vanced against the findings. We are persuaded there is

substantial evidence on the record as a whole to support

the findings and must sustain them.

We are satisfied that the findings of the Board are

supported by substantial evidence as to the unfair labor

practices found and we must reject the defense that the

charges were barred by § 10(b). Accordingly the order

will be enforced.

APPENDIX D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NATION AL LABOR RELATIONS BOARD,

Petitioner,

R. L. SWEET LUMBER COMPANY,

Respondent,

and

STANDARD HOMES COMPANY,

Intervenor.

NO. 74-1065

(NLRB Case No. 17-CA-5292)

JUDGMENT

(Judgment Entered June 5, 1975)

Before: Holloway and McWilliams, Circuit Judges, and

Christensen, District Judge*

*Of the District of Utah, sitting by designation.

THIS CAUSE came on to be heard upon the application

of the National Labor Relations Board for the enforcement

of a certain order issued by it against Respondent, R. L.

Sweet Lumber Company, and Standard Homes Company,

their officers, agents, successors, and assigns on November

23, 1973. The Court heard argument of respective counsel

on September 13, 1974, and has considered the briefs and

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.