Petition — Al Bryant, Inc. v. National Labor Relations Board
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& 3 - A A 6 Office-Supreme Court, U.S. |
FILED
No.
SEP 14 1983
ALEXANDER L STEVAS,
IN THE en
Supreme Court of the United States
October Term, 1983
AL BRYANT, INC., HARRISBURG DRYWALL AND
CONSTRUCTION CORPORATION, and
AL BRYANT ASSOCIATES, INC.,
vs.
Petitioners,
NATIONAL LABOR RELATIONS BOARD.
On WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT AT No. 82-3169.
PETITION FOR WRIT OF CERTIORARI
HARRY R. HARMON
HARMON AND ASSOCIATES
Attorneys for Petitioners
36 East King Street
Lancaster, Pennsylvania 17602
(717) 291-2236
Batavia Times Publishing Co.
Philadelphia. Pa. (215) 232-8181
=>
i.
Questions Presented
1. Whether an unfair labor practice charge alleging a
double breasted construction contractor’s refusal to
bargain by operating a non-union company is barred by
the six month statute of limitations established by 29
U.S.C. Section 160(b) where the charging union knew the
contractor had been awarded a contract in _ its
jurisdictional area in January, 1979, the employer began
work on the project in June, 1979, and the union filed its
charge in October, 1979?
2. Whether an unfair labor practice charge alleging a
double breasted construction contractor’s refusal to
bargain by operating a non-union company is barred by
the six month statute of limitations established by 29
U.S.C. Section 160(b) where the charging union knew of
the contractor’s allegedly wrongful conduct more than
six months prior to the filing of the charge, sent the
contractor a letter requesting bargaining on March 19,
1979, and filed its charge on August 10, 19797
3. Whether the duty to bargain of a non-union
company that is a component of a double breasted
construction operation is determined by the union’s
agreement with the union company component of the
double breasted operation so that the National Labor
Relations Board must defer to the contract arbitrator's
decision respecting the extent of that duty?
ii.
TABLE OF CONTENTS.
ere ye ye i
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Statutory Provisions Involved..............00005:
a Sha a cic dice e's baw awa ews eee es
EE Le eo a os a wie ee ae seers
The Relationships of the Parties................
POONER os ccc cnc wvscswdebedves
Ts so 6 bbs sve.ew ens vv ee ee deeerd
Jurisdiction of Federal Court in First Instance .....
oOo @B@Basooanrkh f& WO DS =
Reasons for Granting the Writ of Certiorari........
1. Timeliness of the Charges
Certiorari Should Be Granted To Resolve An
Important Question Of Federal Law That Has
Not Been Decided By This Court .............. 9
2. Refusal To Defer To The Arbitrator’s
Decision
Certiorari Should Be Granted To Resolve An
Important Question Of Federal Law That Has
Not Been Decided By This Court .............. 20
iii.
Page
Appendix A:
Opinion of the United States Court of Appeals for
the Third Circuit of June 30, 1983............ Al
Opinion of the National Labor Relations Board of
PON SE ROOD ohcc ce vivciee whet awekadas A27
Opinion of the Administrative Law Judge of July
eR ex Kes vias 6c be ONS saa eas eas wae A38
Order of the Third Circuit Court of Appeals..... All4
TABLE OF AUTHORITIES.
Cases:
Cone Mills Corp. v. NLRB, 413 F.2d 445 (4th Cir.
Ree te ee ee ee 20
Dayton Motel, Inc., 192 N.L.R.B. No. 112 (1971)
remanded 474 F.2d 328 (6th Cir. 1973), enforced
ee Ee fs A reer rere ed 14
Dee Cee Floor Covering, Inc. 232 N.L.R.B.
ROOD hh Wes so 0a) seiko oe Reel a ee 13,14
Hageman Underground Construction, 253 N.L.R.B.
SE CE axa st's Gabo Hoke aelks on <a:00hure eae 13,14
J. Ray McDermott and Co. v. NLRB, 571 F.2d 850
(5th Cir. 1978) cert. denied, 439 U.S. 893 (1978)... 19
Local 1104, Communications Workers v. NLRB,
520 F.2d 411 (2d Cir. 1975) .......... ..+.10,11,15,18
Local Lodge No. 1424, International Association
of Machinists v. NLRB, 363 U.S. 411 (1960) . 16,17,18,19
NLRB v. Basic Wire Products, Inc., 516 F.2d
SE SE obs bawe cd cugesaseoebsoutels 19,20
NLRB v. C and C Plywood Corp., 385 U.S. 421
chins i ste cee dus 64,0 ¥eeeenseeel 21,22,23,24
NLRB v. Erie Marine, Inc., 465 F.2d 104 (3d
i oa idee ek ecene toe eeenns 16,17,18
NLRB v. Field and Sons, Inc. 462 F.2d 748
EE 9 ke 6 Kins idee eee bin veseee ented 19
NLRB v. Hyde, 339 F.2d 568 (9th Cir. 1965)....... 15
iv.
Page
NLRB v. Iron Workers, Local 103 (Higdon
Contracting Co.), 434 U.S. 335 (1978) ........... 13
NLRB v. McCready and Sons, Inc., 482 F.2d 872
RMR o's UR or ho a edie a ay wipe we 19
NLRB v. Plumbers and Pipe Fitters Local Union
214, 298 F.2d 427 (7th Cir. 1962)............... 10
NLRB v. Serv-All Co., 491 F.2d 1273 (10th Cir.
ks Fae Berek Keck e dine kaseel «ails p es 6 Pee 19
NLRB v. Strong, 386 F.2d 929 (9th Cir. 1967) rev’d
on other grounds 393 U.S. 357 (1969)........... 19
Raytheon Co. 140 N.L.R.B. No. 84 (1963),
enforcement denied on other grounds, 326 F.2d
ee as Lace dv ondadvesaadmee’ vee 23
South Praire Construction Co. v. Local No. 627,
International Union of Operating Engineers, 425
Se IG daa sb oo abe OU s BRO eek oar 5
Spielberg Manufacturing Company, 112 N.L.R.B.
ES Vives Gas 4 os be es CeO R Ce Baa 20,23,24
Textile Workers Union v. Lincoln Mills of Alabama,
CUED 6 Sc orc aCe ad ce chokes smwamee 21
Statutes:
Labor Management Relations Act, 29 U.S.C. Section
La sha daa cdi shen ok ¢ika dant ene Wea 3,21,23
National Labor Relations Act, 29 U.S.C. Section 151
et seq.:
Section 8(a)(1), 29 U.S.C. Section 158(a)(1) . . . 2,4,8,10
Section 8(a)(5), 29 U.S.C. Section 158(a)(5) . 2,4,6,8,10,
11,13,15,18
Section 8(f), 29 U.S.C. Section 158(f)...... 2,11,12,13
Section 10(b), 29 U.S.C. Section 160(b). . . i,3,7,8,9,13,
15,17,18,19
Textbook:
Gorman, Basic Text on Labor Law, Unionization
and Collective Bargaining (1976)............... 12
IN THE
Supreme Court of the United States
October Term, 1983
AL BRYANT, INC., HARRISBURG DRYWALL AND
CONSTRUCTION CORPORATION, and
AL BRYANT ASSOCIATES, INC.,
Petitioners,
vs.
NATIONAL LABOR RELATIONS BOARD.
On WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT AT No. 82-3169.
PETITION FOR WRIT OF CERTIORARI
Opinions Below
The June 30, 1983 opinion of the Court of Appeals,
whose judgment is herein sought to be reviewed is
reported at 711 F.2d 543 (3d Cir. 1983) and is reprinted
in the Appendix to this Petition page Al. The prior
opinion of the National Labor Relations Board is
reported at 260 N.L.R.B. No. 10 (1982) and is reprinted
2
in the Appendix to this Petition at page A27. The
opinion of the Administrative Law Judge is reprinted in
the Appendix to this Petition at page A38.
Jurisdiction
The judgment of the Court of Appeals was entered on
June 30, 1983. The jurisdiction of this Court is invoked
pursuant to 28 U.S.C. Section 1254(1).
Statutory Provisions Involved
Section 8(a) of the National Labor Relations Act, 29
U.S.C. Section 158(a) provides in pertinent part:
It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 7;
(5) to refuse to bargain collectively with the
representatives if his employees, subject to the
provisions of section 9(a).
Section 8(f) of the National Labor Relations Act, 29
U.S.C. Section 158(f) provides impertinent part:
It shall not be an unfair labor practice under
subsections (a) and (b) of this section for an
employer engaged primarily in the building and
construction industry to make an agreement
covering employees engaged (or who, upon their
employment, will be engaged) in the building and
construction industry with a labor organization of
which building and construction employees are
members (not established, maintained, or assisted
by any action defined in section 8(a) of this Act as
an unfair labor practice) because
3
(1) the majority status of such labor organization
has not been established under the provisions of
section 9 of this Act prior to the making of such
agreement or, ...
(3) such agreement requires the employer to
notify such labor organization of opportunities for
employment with such employer, or gives such labor
organization an opportunity to refer qualified
applicants for such employment...
Section 10(b) of the National Labor Relations Act, 29
U.S.C. Section 160(b) provides in pertinent part:
Whenever it is charged that any person has engaged
in or is engaging in any such unfair labor practice,
the Board, or any agent or agency designated by the
Board for such purposes, shall have power to issue
and cause to be served upon such person a
complaint stating the charges in that respect, and
containing a notice of hearing before the Board or a
member thereof, or before a designated agent or
agency, at a place therein fixed, not less than five
days after the serving of said complaint: Provided,
that no complaint shall issue based upon any unfair
labor practice occurring more than six months prior
to the filing of the charge with the Board and the
service of a copy thereof upon the person against
whom such charge is made...
Section 30l(a) of the Labor Management Relations
Act, 29 U.S.C. Section 185(a) provides in pertinent part:
Suits for violation of contracts between an employer
and a labor organization representing employees in
an industry affecting commerce as defined in this
Act, or between any such labor organizations, may
be brought in any district court of the United States
having jurisdiction of the parties, without respect to
the amount in controversy or without regard to the
citizenship of the parties.
4
Statement of Case
This unfair labor practice case involves charges that
Petitioners, Al Sryant, Inc., Harrisburg Drywall and
Construction Corp., and Al Bryant Associates, Inc.,
violated Sections 8(a)(5) and (1) of the National Labor
Relations Act, 29 U.S.C. Sections 158(a)(5) and (1), by
refusing to bargain collectively with their employee's
representatives.
The Parties
Petitioner Al Bryant, Inc. (ABI) is an interior design
and finishing contractor engaged in hanging drywall,
installing ceilings, and laying floors. ABI was formed in
1967 by Albert Bryant. During the relevant period,
ninety percent of the stock of ABI was owned by Albert
Bryant who also served as president of ABI. Albert
Bryant's wife owned the remaining ten percent of ABI
and served as its treasurer. ABI maintained an office in
Harrisburg, Pennsylvania in a building owned by the
Bryants.
Petitioner Harrisburg Drywall and Construction Corp.
(Harrisburg Drywall) is a contractor engaged in the same
type of work as ABI. Harrisburg Drywall was
incorporated in 1971. At the time of its incorporation
Harrisburg Drywall was operated by Geno Premici.
Albert Bryant owned fifty-one percent of Harrisburg
Drywall’s stock. He acquired the remaining forty-nine
percent of Harrisburg Drywall’s stock in 1972. In 1975,
Albert Bryant selected Charles May as Harrisburg
Drywall’s president. Albert Bryant continued as
Harrisburg Drywall’s vice-president and secretary. Jean
Hoffman, ABI’s secretary acted as Harrisburg Drywall’s
treasurer.
5
Petitioner Al Bryant Associates, Inc. (Associates) is a
contractor performing the same type of work as ABI.
Associates was formed in 1979 by Albert Bryant, Larry
McClain, and Jean Hoffman. Larry McClain owned
thirty-five percent of Associates’ stock and served as its
president. Albert Bryant served as Associates’ treasurer
and vice-president in charge of sales and owned thirty
percent of its stock. Jean Hoffman owned thirty-five
percent of Associates stock and served as its secretary
and vice-president in charge of administration.
The charging parties are the United Brotherhood of
Carpenters and Joiner of America, Carpenters’ District
Council of Western Pennsylvania (Western) and
Keystone District Council (Keystone). These two unions
were parties to a collective bargaining agreement
negotiated with the Central Pennsylvania Subcontractors
Association (CPSA), a multi-employer bargaining unit of
which ABI was a member. Western and Keystone
operate in different geographic areas.
The Relationship of the Parties
ABI operated as a union contractor. As a member of
the CPSA, ABI was bound by the terms of that
association’s agreement with the charging unions.
Harrisburg Drywall operated as an open shop contractor.
Together, ABI and Harrisburg Drywall constituted a
double breasted construction operation. Double breasting
allows a contractor to bid on both union and non-union
projects. Both the National Labor Relations Board
(Board) and this Court have permitted construction
contractors to operate on a donble breasted basis. See
South Praire Construction Co. v. Local No. 627,
International Union of Operating Engineers, 425 U.S.
800 (1976) (per curiam).
6
Associates was formed after the unfair labor practice
charges in question were filed. Associates, like
Harrisburg Drywall, operated as a non-union contractor.
Associates occupied the same building as Harrisburg
Drywall and performed work in areas under the
jurisdiction of Western and Keystone.
The Operative Events
This case had its genesis in January, 1979. In that
month, Western learned that Harrisburg Drywall had
been awarded a subcontract on a project in Venango
County, Pennsylvania, a_ site within Western’s
jurisdictional area. Western's representative contract
Albert Bryant and requested that Union members be
employed on the project. Albert Bryant refused this
request stating that the job was being performed by
Harrisburg Drywall. Work on the project commenced in
June, 1979. On October 3, 1979, Western charged that
ABI, doing business as Harrisburg Drywall, failed and
refused to bargain with it in violation of Section 8(a)(5) of
the Act. 29 U.S.C. Section 158(a)(5).
Petitioners’ difficulties with Keystone began in March,
1979. Sometime prior to this date, Keystone learned that
some of its members had been employed by Harrisburg
Drywall and that Harrisburg Drywall had performed
work covered by the CPSA—Keystone Agreement
without adhering to the terms of that agreement.
On March 19, 1979, Keystone sent a letter to ABI
asserting that Harrisburg Drywall was a ‘‘subsidiary” or
‘joint venture’ with ABI and therefore was obligated to
observe the terms of the CPSA agreement. This letter
resulted in an arbitration proceeding. Keystone
presented both its claim that Harrisburg Drywall was
obligated to observe the terms of the CPSA agreement
7
as a matter of contract law and as a matter of federal
labor law to the arbitrator. The arbitrator denied this
grievance on October 29, 1979.
On August 10, 1979, during the pendency of the
arbitration proceeding, Keystone filed its initial unfair
labor practice charge with the Board. This charge was
based upon the same conduct as the grievance
proceeding; that ABI and Harrisburg Drywall violated
the Keystone collective bargaining agreement by hiring
non-union employees, operating a non-union subsidiary,
and failing to recognize the union as the bargaining
representative of Harrisburg Drywall’s employees.
Keystone filed an amended unfair labor practice charge
with the Board on October 6, 1980. This charge alleged
that ABI, Harrisburg Drywall, and Associates had
refused to bargain with Keystone since August, 1980.
The Board issued complaints based upon _ these
charges. A hearing concerning these charges was held on
December 10, 1980.
The Rulings Below
The Board's opinion, 260 N.L.R.B. No. 10 (1982) (Pet.
App. A27), substantially affirmed the decision of the
Administrative Law Judge (Pet. App. A38). The Board
found that ABI, Harrisburg Drywall, and Associates
constituted a single employer, that Harrisburg Drywall
was the alter ego of ABI and that Associates was the
alter ego of Harrisburg Drywall. The Board also ruled
that Western and Keystone had filed their unfair labor
practice charges within the six months limitations period
prescribed by Section 10(b) of the Act. 29 U.S.C. Section
160(b).
8
The Board, therefore, ruled that Petitioners violated
Sections 8(a)1) and (5) of the Act. 29 U.S.C. Sections
158(a)(1) and (5). In rendering its decision, the Board
refused to defer to the arbitrator's prior decision.
Petitioners were ordered to recognize the charging
Unions as the bargaining representatives of their
employees and to compensate their employees for losses
they suffered because of Petitioners’ violation.
The Board petitioned the United States Court of
Appeals for the Third Circuit for enforcement of its
order. The Court of Appeals, while disagreeing with a
portion of the Board’s opinion, granted the Board's
application for enforcement. 711 F.2d 543. (1983) (Pet.
App. Al). In rendering its decision the Court of Appeals
acknowledged that ‘‘...there does not appear to be any
clear precedent on when the Section 10(b) period begins
to run with respect to Section 8(a)(5) charges growing out
of double breasted operations.” (Pet. App. A9).
Jurisdiction of Federal Court
in First Instance
The Federal Court of first instance in this case was the
United States Court of Appeals for the Third Circuit.
The jurisdiction of this Court was invoked pursuant to
29 U.S.C. Section 160(e).
9
REASONS FOR GRANTING THE WRIT
OF CERTIORARI
1. Timeliness of the Charges
Certiorari Should Be Granted To Resolve An Important
Question Of Federal Law That Has Not Been Decided By This
Court.
Should 10(b) of the National Labor Relations Act,
(Act), 29 U.S.C. Section 160(b), provides “‘[t]hat no
complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the
filing of the charge with the Board...’’ Petitioners
argued before the Board and in the Court of Appeals
below that, with respect to Western, the six month
limitations period began to run in January, 1979 when
Western learned that Harrisburg Drywail had been
awarded the Venango County, Pennsylvania subcontract.
This date was more than six months prior to Western's
October 3, 1979 filing of its charge with the Board.
Petitioners respectfully submit that this delay renders
Western’s charge untimely under Section 10(b) of the
Act.
The Administrative Law Judge, whose findings were
substantially adopted by the Board, concluded that the
Section 10(b) limitations period did not begin to run until
Harrisburg Drywall actually commenced work at the
Venango County project in June, 1979 (Pet. App. A56).
The Court of Appeals agreed with this conclusion stating
that, ‘Since Western had no basis for filing a charge
until work on the Venango County job began, its charge
was timely.”’ (Pet. App. A8). The clear negative
implication of this statement is that, if petitioner’s
January, 1979 conduct constituted an unfair labor
practice, Western’s charge was untimely.
10
The Court of Appeals cited two cases in support of its
conclusion. NLRB v. Plumbers and Pipe Fitters Local
Union 214, 298 F.2d 427 (7th Cir. 1962); Local 1104,
Communications Workers v. NLRB, 520 F.2d 411 (2d
Cir. 1975), cert. denied, 423 U.S. 1051 (1976). Neither
case offers a compelling analogy. Both cases involved
union discrimination in violation of Sections 8(b)(1)(A)
and &(b)(2) of the Act. 29 U.S.C. Sections 158(b)(1)(A) and
(2). The case sub judice concerns employer refusals to
bargain in violation of Sections 8(a)(1) and (5) of the Act.
29 U.S.C. Section 158(a)(1) and (5). Neither case cited by
the Court of Appeals involved a double breasted
construction employer. Respondents in the instant case
constitute a double breasted construction operation.
The Seventh Circuit Court of Appeals in NLRB v.
Plumbers and Pipe Fitters Local Union 214, 298 ¥.2d 427
(7th Cir. 1962) noted that Section 8(b)(2) of the Act
creates two separate unfair labor practice charges; one
for actually causing an employee's discriminatory
discharge, the other for attempting to cause the
employee's discriminatory discharge. On May 15, 1959,
Local Union 214 sent a letter demanding the employee's
discharge because of his failure to join the union. The
employee was actually discharged on May 25, 1959. The
employee filed his unfair labor practice charge alleging
his discriminatory discharge on November 23, 1959. The
Seventh Circuit ruled that this charge was timely since
the employee's discharge was not ‘‘caused”’ until he was
actually dismissed. The issue of the timeliness of the
arguably barred charge, attempting to cause
discrimination, was not even presented to the Court.
Therefore, Petitioners respectfully submit, the Court of
Appeals was incorrect in relying upon NLRB vy,
Plumbers and Pipe Fitters Local Union 214.
11
The Court of Appeals reliance upon Local 1104,
Communications Workers v. NLRB, 520 F.2d 411 (2d
Cir. 1975), cert. denied, 423 U.S. 1051 (1976) is
particularly puzzling. That case, in pertinent part,
presented the Second Circuit Court of Appeals with
unfair labor practice charges arising with unfair labor
practice charges arising from a union’s denial of
membership to individuals who had refused to honor
picket lines during a strike. The Second Circuit held, as
the Third Circuit Court of Appeals stated that ‘‘... when
an unfair labor practice stemmed from denial of union
membership to strikebreakers, the six-month period was
counted from the date membership was denied, because
this was the first date the employees could have filed
their charges."” Communications Workers v. NLRB, 520
F.2d 411 (2d Cir. 1975) (Pet. App. A8). That the
limitations period is counted from the date the violation
occurs was not at issue in the enforcement proceeding
below. The issue presented in the enforcement proceeding
concerned when Harrisburg Drywall’s refusal to bargain
violation occurred. Local 1134, Communications Workers,
simply does not address this issue.
The Court of Appeals reliance on these cases is
explained by its statement in relation to the timeliness of
the Keystone charges that “there does not appear to be
any clear precedent on when the Section 10(b) period
begins to run with respect to Section 8(a)(5) charges
growing out of double breasted operations.” (Pet. App.
AQ).
The Court of Appeals’ decision overlooked several more
closely analogous cases. These cases considered unfair
labor practices involving contracts under Section 8(f) of
the Act. 29 U.S.C. Section 158(f). Section 8(f) provides
that:
12
fijt shall not be an unfair labor practice under
subsections (a) and (b) of this section [29 U.S.C.
Section 158] for an employer engaged primarily in
the building and construction industry to make an
agreement covering employees engaged (or who,
upon their employment, will be engaged) in the
building and construction industry with a labor
organization of which building and construction
employees are members ... because (1) the majority
status of such labor organization has not been
established under the provisions of section 9 of this
Act prior to the making of such agreement, or . . . (3)
such agreement requires the employer to notify such
labor organization of opportunities for employment
with such employer, or gives such labor organization
an opportunity to refer qualified applicants for such
employment...
Contracts executed pursuant to Section 8(f) are termed
“pre-hire agreements.” Section 8(f) was adopted in 1959.
This Section was necessary because of the short duration
of many building and construction industry jobs.
Gorman, Basic Text on Labor Law, Unionization, and
Collective Bargaining (1976). Section 8(f) allows a union
and an employer to negotiate and execute a collective
bargaining agreement and apply the terms of that
agreement to persons subsequently employed at a new
project.
The similarity between the case sub judice and a typical
Section 8(f) contract situation is overwhelming. In a
typical Section 8(f) situation the union and employer
agrees that newly hired employees will be covered by the
terms of the union agreement with the employer.
Subsequently, the employer is awarded a contract to
perform work on a new proiect. The employer then hires
employees for that project. These employees are covered
by the terms of the union agreement.
13
In the case sub judice, Western entered into a contract
with ABI. This contract also bound Harrisburg Drywall
if the Board and the Court of Appeals’ single employer
and alter ego determinations were correct. Harrisburg
Drywall was then awarded the Venango County project.
Western sought to apply the terms of its contract to
Harrisburg Drywall's employees at the newly awardod
Venango County project.
The cases interpreting Section 8(f) clearly demonstrate
the analysis that should have been applied in
determining when the Section 10(b) limitations period
began to run with respect to Western. The basic premise
of these cases is that an employer has a duty to bargain
with the representative of a majority of its employees. 29
U.S.C. Section 158(a)(5), see NLRB v. Iron Workers,
Local 103 (Higdon Contracting Co.), 434 U.S. 335 (1978).
Section 8(f) neither enlarges nor diminishes this duty.
Higdon Contracting Co., 434 U.S. 335 at 346. Where a
union alleges that the employees at a new job site are
covered by the terms of the union’s contract with the
employer, the relevant inquiry is whether the union
represents a majority of employees employed at that
project. Hageman Underground Construction, 253
N.L.R.B. No. 7 (1980), Dee Cee Floor Covering, Inc., 232
N.L.R.B. No. 72 (1977), see also Higdon Contracting Co.,
434 U.S. 335 (1978).
The Hageman and Dee Cee Floor Covering cases are
particularly instructive. Both cases involved construction
industry employers. The employer in Hageman was a
double breasted construction firm. To complete the
analogy, the two companies in Hageman were found to
constitute a single employer and one another’s alter egos.
In both cases, the Board was asked to determine
whether the employees at a new project were covered by
14
the terms of an existing collective bargaining agreement.
The Board's decisions in these cases placed great
emphasis upon the character of the employer's
workforce. Where the employer employs its workers on a
project to project basis it is not obligated to adhere to
the terms of a pre-hire agreement until the union
demonstrates that a majority of the employees at each
new job site support the union. Dee Cee Floor Covering,
Inc., 232 N.L.R.B. No. 72 (1977). On the other hand,
where there is a majority status in a permanent and
stable workforce, and a contract in effect between
the parties covering that workforce, the union not
only becomes the employees’ statutory bargaining
representative for all present and future sites but, as
in a typical industrial setting, also enjoys an
irrebuttable presumption of majority status for the
duration of the agreement.
Hageman Underground Construction, 253 N.L.R.B. No.
7 (1980). This presumption of continued majority status
accords with well established precedent. Dayton Motel,
Inc., 192 N.L.R.B. No. 112 (1971), remanded, 474 F.2d
328 (6th Cir. 1973), enforced, 525 F.2d 476 (6th Cir.
1976).
The Board's decision in the case sub judice included no
explicit finding concerning the stability of Petitioner's
workforce. The Court of Appeals’ discussion of ABI and
Harrisburg Drywall as a single employer indicates that a
stable workforce existed (Pet. App. Al9). If ABI and
Harrisburg Drywall employed a_ stable workforce,
Harrisburg Drywall, the Union was entitled to a
presumption of continued majority status in the
bargaining unit. Hageman Underground Construction,
253 N.L.R.B. No. 7 (1980). Harrisburg Drywall refused to
bargain with Western concerning employment of union
members at the Venango County project. This refusal
15
occurred in January, 1979 (Pet. App. A6). This refusal to
honor the terms of the Western-CPSA contract was an
actionable unfair labor practice. NLRB v. Hyde, 339 F.2d
568, 571-573 (9th Cir. 1965). As the Court of Appeals
recognized, the Section 10(b) limitations period is
counted from the first date the charge could have been
filed. Communications Workers v. NLRB, 520 F.2d 411
(2d Cir. 1975) (Pet. App. A7, A8). Western had a basis for
filing its unfair labor practice charge in January, 1979.
Western failed to file its charge until October 3, 1979.
This delay renders Western's unfair labor practice charge
untimely under Section 10(b) of the Act.
The timeliness of the Keystone unfair labor practice
charge entails a different analysis. Keystone’s knowledge
of Harrisburg Drywall's operation in its jurisdictional
area more than six months prior to its August 10, 1979
charge is undisputed (Pet. App. A8). The Administrative
Law Judge, whose findings were substantially adopted
by the Board, ruled that, despite this knowledge,
Keystone’s charge was timely (Pet. App. A61). The
Administrative Law Judge based his decision upon a
continuing violation theory. Specifically, the
Administrative Law Judge ruled that Harrisburg
Drywall's refusal to apply the terms of the Keystone
collective bargaining agreement to its employees within
the limitations period constituted an independent
violation of Section 8(a)(5) of the Act. This latter refusal
rendered Keystone’s August 10, 1979 charge timely.
The Court of Appeals, as previously stated, recognized
that there is no clear authority concerning when the
Section 10(b) limitations period begins to run with
respect to Section 8(a)(5) violations arising out of double
breasted operations (Pet. App. AQ). In rendering its
decision, the Court of Appeals disregarded the parties’
16
citations to analogous authority and expressly disavowed
any reliance upon the Board’s continuing violation
theory. Instead, the Court of Appeals based its decision
upon its interpretation of this Court’s decision in Local
Lodge No. 1424, International Association of Machinists
v. NLRB, 363 U.S. 411 (1960), and its own decision in
NLRB v. Erie Marine, Inc., 465 F.2d 104 (3d Cir. 1972).
Petitioners respectfully submit that the Court of Appeals
improperly interpreted this Court’s decision in Local
Lodge particularly in eight of the cases cited by
petitioner in the Court of Appeals below.
Local Lodge presented the Court with an unfair labor
practice case involving a union security agreement
executed prior to the union’s achieving majority support
from the members of the bargaining unit. Such
agreement constitute unfair labor practices. This
agreement was executed more than six months prior to
the filing of unfair labor practice charges with the Board.
The Board argued that the continued enforcement of the
clause within the limitations period, rather than the
original execution of the agreement, was the basis of the
charge and that therefore, the charge was timely. The
Court rejected this argument and ruled that the charge
was time barred.
The Court stated two reasons for its decision. One was
that the enforcement of the union security clause was
illegal only when viewed in light of its illegal execution.
Enforcement of the union security clause, standing alone,
was legal. To allow such use of remote conduct to
establish the illegality of timely conduct would serve to,
in effect, revive a legally defunct unfair labor practice.
Local Lodge No. 1424, 363 U.S. 411, 417 (1960).
17
The second reason for the Court’s decision was that
the Section 10(b) limitations period would never begin if
the Board's argument was adopted. Local Lodge No.
1424, 363 U.S. 411, 416 (1960). The conduct outside the
limitations period, i.e. the execution of the union
security agreement, was illegal. The Section 10(b)
limitations period was intended to run from the date of
the illegal conduct. If the period was allowed to run from
the date of the continued enforcement of the clause, as
the Board had argued, it would never run because the
clause was always being enforced. Acceptance of the
Board’s argument would have negated a portion of the
National Labor Relations Act by preventing the
limitations period from running. The Court was able to
give effect to all parts of the Act by adopting a
construction that allowed the limitations period to begin.
That acts should be interpreted to give effect to all their
parts is a fundamental principle of statutory
construction. The principle is reflected in the Court’s
Local Lodge decision.
NLRB v. Erie Marine, Inc., 465 F.2d 104 (3d Cir.
1972), presented the Third Circuit unfair labor practice
charges arising from the establishment of a joint
employer-employee committee. The Court of Appeals
ruled that the Board’s 1972 complaint was timely despite
the fact that the committee was formed three years prior
to the charge. The Court of Appeals’ opinion purported
to follow this Court’s Local Lodge decision by ruling that
conduct within the limitations period, i.e. maintenance of
the employer-employee committee, constituted an unfair
labor practice without reference to conduct outside the
period. The three year hiatus between the establishment
of the committee and the actual filing the committee and
the actual filing of the unfair labor practice charge
demonstrates that Section 10(b) was effectively removed
from the Act.
18
That the Court of Appeals’ decision had thie effect,
despite its attempt to adhere to the teachings of Local
Lodge, illustrates the fact that each unfair labor practice
has unique aspects. A construction of Section 10(b) which
permits the limitations period to run with respect to one
charge can have the opposite effect when applied to
another charge.
The effect of a lengthy delay between the unfair labor
practice and the charge is not particularly severe where
the remedy consists, as it did in Erie Marine, Inc., of a
cease and desist order. A lengthy delay, or any delay,
can be disasterous when the remedy involves a back pay
order similar to the order entered in the case sub judice.
The effects of such a delay are exacerbated in the
construction industry where companies are forced by
competitive bidding to perform work at dangerously low
prices. Huge back pay awards destroy the delicate
calculations upon which most bids are based. These
unique aspects make Supreme Court resolution of the
Section 10(b) issue in relation to Section 8(a)(5) charges
growing out of double breasted operations imperative.
Petitioners respectfully submit that the Court of
Appeals’ decision below has the effect of removing
Section 10(b) from the Act. Keystone knew of
Respondents non-union operation within its jurisdiction
more than six months prior to the filing of its charge.
This operation constituted an unfair labor practice. The
Section 10(b) period should be computed from the date
the unfair labor practice occurs. Communications
Workers v. NLRB, 520 F.2d 411 (2d Cir. 1975). The
Court of Appeals held instead that the Section 10(b)
period ran from Respondents subsequent refusal to
bargain. This decision prevents the Section 10(b)
limitations period from beginning and is therefore,
19
contrary to this Court's decision in Local Lodge No.
1424, Internationa: Association of Machinists v. NLRB,
363 U.S. 411 (1960). The Court of Appeals’ decision is
even more suspect in light of the fact that the Section
10(b) period would clearly have expired had Keystone not
made a subsequent request for bargaining. The Court of
Appeals’ decision therefore, allows a union to negate the
effect of Section 10(b) by simply making a subsequent
bargaining request. Petitioners respectfully submit that
this decision is incorrect.
Petitioners submit that cases from several Circuit
Courts of Appeal support their interpretation of Local
Lodge. See NLRB v. Serv-All Co., 491 F.2d 1273 (10th
Cir. 1974); NLRB v. McCready and Sons, Inc., 482 F.2d
872 (6th Cir. 1973); NLRB v. Field and Sons, Inc., 462
F.2d 748 (1st Cir. 1972). In Serv-All, 491 F.2d 1273 (10th
Cir. 1974), the tenth circuit allowed the Section 10(b)
limitations period to run by holding that a refusal to sign
a collective bargaining agreement within the six month
period was not an independent violation of the Act where
the initial refusal to sign occurred outside the limitations
period. The Sixth Circuit in McCready and Sons, 482
F.2d 872 (6th Cir. 1973) examined an identical charge
and reached the same conclusion as the Tenth Circuit.
The First Circuit in NLRB v. Field and Sons, Inc., 462
F.2d 748 (lst Cir. 1972) expressly based its conclusion
that subsequent refusals to sign a collective bargaining
agreement did not revive a time barred refusal on the
need for the Section 10(b) limitations period to run.
Admittedly, certain cases cited in the Court of Appeals’
opinion lead to a different conclusion. See NLRB v.
Strong, 386 F.2d 929 (9th Cir. 1967) rev'd. on other
grounds, 393 U.S. 357 (1969) [footnote omitted] J. Ray
McDermott and Co. v. NLRB, 571 F.2d 850 (5th Cir.
1978), cert. denied, 439 U.S. 893 (1978), NLRB v. Basic
20
Wire Products, Inc. 516 F.2d 261 (6th Cir. 1975); Cone
Mills Corp. v. NLRB, 413 F.2d 445 (4th Cir. 1969). This
conflict between the Circuit Courts of Appeal supplies an
additional reason for this Court to yrant certiorari in this
case and thereby settle an important, unresolved
question of federal law.
2. Refusal To Defer To The Arbitrator's Decision
Certiorari Should Be Granted To Resolve An Important
Question Of Federal Law That Has Not Been Decided By This
Court.
Harrisburg Drywall and Associates’ liability, assuming
that the unfair labor practice charges were timely, is
contingent upon the Board's findings that Associates
was the alter ego of Harrisburg Drywall and that
Harrisburg Drywall and ABI constituted a_ single
employer. The Board in making this determination
refused to defer to the arbitrator's 1979 decision that
Harrisburg Drywall was not a ‘‘subsidiary’’ or ‘‘joint
venture’ with ABI (Pet. App. A96). The Court of
Appeals upheld this refusal. Petitioner respectfully
submits that these decisions were incorrect. Petitioner
further submits that, because of the unique nature of a
double breasted construction operation, the extent to
which the Board is required to defer to a contract
arbitrator's decision concerning a refusal to bargain is an
important question of federal law which should be
decided by this Court.
Both the Board and the Court of Appeals based their
deferral decisions upon Spielberg Manufacturing
Company, 112 N.L.R.B. No. 139 (1955), and its progeny
(Pet. App. ). Petitioners respectfully submit that
these cases are not dispositive in this instance.
Petitioners further submit that, if Spielberg is
21
controlling, the Board and the Court of Appeals
incorrectly applied its teachings.
This Court has recognized that Congress did not confer
unfair labor practice jurisdiction upon the Board to
resolve breach of contract claims. NLRB v. C and C
Plywood Corp., 385 U.S. 421 (1967). Resolution of breach
of contract claims is instead the province of the federal
district courts. Textile Workers Unions v. Lincoln Mills
of Alabama, 353 U.S. 448 (1957). Congress expressed this
policy in Section 301 of the Labor Management Relations
Act which provides:
(a) [sjuits for violation of contracts between an
employer and a labor organization representing
employees in an industry affecting commerce as
defined in this Act, or between any such labor
organizations, may be brought in any district court
of the United States having jurisdiction of the
parties, without respect to the amount in
controversy or without regard to the citizenship of
the parties. 29 U.S.C. Section 185.
Keystone claimed that Harrisburg Drywall was
obligated, by virtue of its relationship to ABI, to honor
the terms of the Keystone—CPSA collective bargaining
agreement. The full extent of this obligation was defined
by the contract. The contract was intended to bind
subsidiaries of its parties. A grievance procedure was
established to resolve ambiguities in the language of the
contract. By adopting this contract, the parties agreed
that subsidiaries would be bound and, by negative
implication, that non-subsidiaries would not be bound.
Keystone's claim therefore, is purely and simply a breach
of contract claim. Keystone’s assertion of an unfair
labor practice charge is simply an attempt to alter the
terms of the agreement by expanding the definition of
‘‘subsidiary.”’
22
The arbitrator, by whose decision Keystone agreed to
be bound, ruled that Harrisburg Drywall was not a
subsidiary. The importance of this arbitration proceeding
cannot be overemphasized. In NLRB v. C and C Plywood
Corp., 385 U.S. 421 (1967), this Court allowed the Board
to interpret the terms of a collective bargaining
agreement to determine whether the employer's
unilateral wage changes constituted a failure to bargain.
The contract involved in that case contained a provision
which arguably allowed the employer to alter the wage
rate paid its employees. Resolution of the dispute,
therefore, required interpretation of the contract. This
Court permitted the Board to interpret the contract only
after noting that the contract did not contain an
arbitration clause. C and C Plywood Corp., 385 U.S. 421
(1967).
The facts of the case sub judice are far different.
Keystone claimed that Harrisburg Drywall was obligated
to honor the terms of the Keystone—CPSA collective
bargaining agreement. Harrisburg Drywall's bargaining
obligations were fully defined by this agreement. The
contract arbitrator conclusively determined that
Harrisburg Drywall was not a ‘subsidiary’ of ABI and
therefore was not bound by the contract. The
determination should be regarded as a complete defense
to Keystone’s subsequent unfair labor practice charge.
Harrisburg Drywall was permitted by the terms of the
Keystone—CPSA agreement to function on a non-union
basis. The Board, in the guise of an unfair labor practice
proceeding, actually reinterpreted and decided a breach
of contract dispute. There was no need for the Board to
engage in this reinterpretation. The arbitrator had
supplied the necessary interpretation. The Board,
therefore, lacked jurisdiction to make its determination
23
and deferral was mandate by Section 301 of the Labor
Management Relations Act. See NLRB v. C and C
Plywood Corp., 385 U.S. 421 (1967).
No Court has ruled that the extent of a non-union
company’s duty to bargain, where that company is a
component of a double breasted operation, is defined by
the union company’s contract with the union so that an
arbitrator's decision interpreting the reach of the
contract necessarily determines the extent of the non-
union company’s duty to bargain. This Court should
grant a writ of certiorari to resolve this important
question of federal law.
Should this Court agree with the Court of Appeals that
the Board’s jurisdiction allowed it to determine this
dispute, the Board's deferral decision should be judged
by the standards established by the Spielberg
Manufacturing Company, 112 N.L.R.B. No. 139 (1955)
line of cases. These cases teach that the Board will defer
if the arbitral proceeding was fair and regular, all parties
agree to be bound, and the decision was not repugnant to
the purposes of the Act. Spielberg Manufacturing
Company, 112 N.L.R.B. No. 139 (1955). Additionally, the
arbitrator must have considercd and decided the
statutory issue. See Raytheon Co., 140 N.L.R.B. No. 84
(1963) enforcement denied on other grounds, 326 F.2d
471 (ist Cir. 1964). The Court of Appeals based its
decision on the arbitrator’s failure to decide the
statutory issue (Pet. App. Al4). Petitioner respectfully
submits that the Court of Appeals misapplied the
Spielberg criteria.
Keystone submitted both the contract and unfair labor
practice issues to the arbitrator (Pet. App. Al4). The
arbitrator determination that Harrisburg Drywall was
not a subsidiary of ABI’s operation, necessarily resolved
24
the statutory issue. As stated above, Keystone agreed
that only signatories and their subsidiaries as defined in
the contract would be bound by the Keystone—CPSA
agreement. If Harrisburg Drywali was not a subsidiary,
Keystone, according to the terms of its contract,
relinquished any claim that Harrisburg Drywall was
obligated to honor the terms of this agreement. This
should provide Harrisburg Drywall with as complete a
defense as was provided by the union contract in C and C
Plywood Corp., 385 U.S. 421 (1967). Harrisburg
Drywall’s duty to bargain with Keystone would therefore,
coterminous with its duty under the contract. If this is
an accurate appraisal of Harrisburg Drywall’s duty to
bargain, the arbitrator necessarily decided the statutory
issue in ruling that Harrisburg Drywall was not a
subsidiary. The Court of Appeals therefore, misapplied
the Spielberg deferral standards in ruling that the
arbitrator did not decide the statutory issue. This Court
should grant a writ of certiorari to review the Court of
Appeals’ application of the Spielberg standards.
Conclusion
Based upon the arguments presented and the
authorities cited, Petitioners respectfully pray that a writ
of certiorari be granted.
Respectfully submitted,
HARRY R. HARMON
Attorney for Petitioners
September 13, 1983
Al
APPENDIX A
Opinion of the United States Court of Appeals
for the Third Circuit of June 30, 1983
UNITED STATES COURT OF APPEALS
For THE THIRD CIRCUIT
No. 82-3169
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
Vv.
AL BRYANT, INC., HARRISBURG DRYWALL AND
CONSTRUCTION CORPORATION, and
AL BRYANT ASSOCIATES, INC.,
Respondents.
APPLICATION FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
Board Nos. 6-CA-12800, 6-CA-13716, 6-CA-13914
Argued January 13, 1983
Before: WEIS, SLOVITER and BECKER, Circuit Judges
(Opinion filed June 30, 1983)
A2
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
Catherine Garcia (Argued)
Elliott Moore,
Deputy Associate General Counsel
William A. Lubbers,
General Counsel
John E. Higgins, Jr.,
Deputy General Counsel
Robert E. Allen,
Associate General Counsel
National Labor Relations Board
1717 Pennsylvania Ave., N.W.
Washington, D.C. 20570
Attorneys for Petitioner
Thomas A. Beckley (Argued)
Jeffrey W. Davis
Beckley & Madden
240 North Third Street
P.O. Box 877
Harrisburg, PA 17108
Attorneys for Respondents
A3
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
INTRODUCTION
The National Labor Relations Board (Board) petitions
for enforcement of its order directing respondents Al
Bryant, Inc. (ABI), Harrisburg Drywall and
Construction Corp. (Harrisburg Drywall), and Al Bryant
Associates, Inc. (Associates) to cease and desist from
refusing to bargain collectively with the two charging
unions, to recognize the two unions, to apply the relevant
bargaining agreement terms to employees of Harrisburg
Drywall and Associates, to make those employees whole
for loss of earnings or compensation, to reimburse
employee trust funds, and to post a specified notice.
ABI was formed by Albert Bryant in 1967 and
operated as an interior design and finishing contractor,
engaged in hanging drywall, installing ceilings and
laying floors. During the relevant period, Bryant owned
90% of ABI and served as president; his wife owned the
remaining 10% and served as treasurer. Jean Hoffman,
the office manager, was the secretary. The office was
located in Harrisburg, Pennsylvania in a building owned
by the Bryants.
ABI was a member of the Central Pennsylvania
Subcontractors Association (CPSA), which conducted
labor negotiations for its employer members and which
negotiated agreements with both charging unions, the
United Brotherhood of Carpenters & Joiners of America,
Carpenters’ District Council of Western Pennsylvania
(Western) and Keystone District Council (Keystone). The
A4
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
two unions operate in different geographic areas. The
ALJ found that ABI was bound by these agreements;
this fact is apparently not disputed on appeal.
In 1971, a drywall finishing business known as
Harrisburg Drywall and Construction Corp. operated by
Geno Premici was incorporated and Bryant acquired 51%
ownership and became vice-president and secretary. Jean
Hoffman, ABI's secretary, became Harrisburg Drywall’'s
treasurer. The following year, Bryant became sole owner.
In 1975, Bryant selected Charles May, ABI’s field
supervisor, to be Harrisburg Drywall’s president.
Harrisburg Drywall did not adhere to any labor
agreements in performing its work. Bryant used the two
companies to maintain a ‘‘double breasted’’ operation,
one whereby different legal entities in the construction
industry with common proprietary and managerial
aspects operate separately, one on a union and the other
on a nonunion basis.
The third corporation, Al Bryant Assc ciates, Inc., was
formed in 1979 by Bryant, Larry McClain, ABI’s
coordinator, and Jean Hoffman, its office manager, after
unfair labor practice charges had been filed against ABI
and Harrisburg Drywall in connection with the non-union
operation of Harrisburg Drywall. McClain became its
president, Bryant its treasurer and vice-president in
charge of sales, and Hoffman its secretary and vice-
president in charge of administration. McClain and
Hoffman each contributed $20,000 in cash to Associates
and received 35% stock ownership. Bryant contributed
all Harrisburg Drywall’s stock, valued at $40,000, for
30% ownership. Associates began operating January 1,
1980, as a subcontractor in the same business as ABI
and Harrisburg Drywall.
A5
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
This case centers on the interrelationship between
these three entities, and the legal obligations which arise
as a result. The unions charged that since respondents
constituted a single employer. they violated sections
8(a)(5) and (1) of the National Labor Relations Act by
refusing to recognize the charging unions and by
refusing to apply to certain Harrisburg Drywail and
Associates employees the collective bargaining
agreement terms applicable to ABI. The Board's order
was predicated on its findings, in substantial affirmance
of the rulings, findings and conclusions of the ALJ, that
all three respondents were a single employer, that
Harrisburg Drywall was the alter ego of ABI, that
Associates was the alter ego and ‘‘disguised
continuance” of ABI and Harrisburg Drywall, and that
the carpenter employees of all three companies
constituted an appropriate unit for collective bargaining
purposes.
The enforcement petition raises the following issues: (1)
Were the initial charges filed by Keystone and the
charges filed by Western time-barred by section 10(b) of
the NLRA? (2) Should the Board have deferred to an
arbitration decision made on Keystone’s charges
regarding the nonunion operation of Harrisburg Drywall?
(3) Does substantial evidence support the Board's
findings of single employer, unit determination, and alter
ego? (4) Were respondents deprived of a fair hearing due
to the ALJ's conduct?
A6
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
Il.
TIMELINESS OF THE CHARGES
Keystone filed its initial charge with the Board on
August 10, 1979 in which it complained about
Harrisburg Drywall’s failure to honor the Keystone
collective bargaining agreement. It charged ABI and
Harrisburg Drywall with committing unfair labor
practices by ‘hiring non-Union employees in
contravention of its obligation under the collective
bargaining agreement” and by “having a non-Union
subsidiary and refusing to recognize the Union as a
representative of the employees employed by Harrisburg
Drywall."’ Keystone filed a second unfair labor practice
charge on October 6, 1980, after Associates was formed.
As amended, the charge alleged the three companies had
“‘[slince on or about August 1980, ... refused to bargain
collectively and in good faith with Keystone.’’ Western
filed its charge on October 3, 1979, claiming ABI ‘“‘d/b/a
Harrisburg Drywall’’ had ‘“‘[slince on or about June 1,
1979, and at all times thereafter, ... failed and refused
to bargain collectively and in good faith with [Western].”’
Respondents argue that Western’s charge and
Keystone’s initial charge were untimely under *oction
10(b) of the NLRA, 29 U.S.C. §160(b), which provides
“{tJhat no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to
the filing of the charge with the Board.’’ Western knew
by about January 1979, more than six months before it
filed charges, that Harrisburg Drywall had been awarded
a subcontract on a job in Venango County,
Pennsy!vania, a_ site within Western’s geographic
A7
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
jurisdiction. A representative of that union telephoned
Bryant requesting employment of union personnel and
Bryant refused, stating he was doing the job under
Harrisburg Drywall. Respondents contend that Bryant
thus “repudiated"’ the contractual duties with respect to
employees of Harrisburg Drywall, and that the section
10(b) period began to run when the repudiation was made
known to the union.
The ALJ concluded that the section 10(b) six-month
period did not begin until such time as Harrisburg
Drywall commenced operations under employment terms
distinct from those in the union contract.' The ALJ
found that the record did not permit finding that
Harrisburg Drywall actually commenced work at the
Venango County job by April 3, 1979, the section 10(b)
cut-off date for Western. That work apparently
commenced about June 1979.
The ALJ's conclusion that the charge was timely filed
is consistent with well-established legal principles. A
statement of intent or threat to commit an unfair
practice does not start the statutory six months running.
The running of the limitations period can begin only
when the unfair labor practice occurs. Thus in NLRB v.
Plumbers & Pipe Fitters Local Union 214, 298 F.2d 427,
428 (7th Cir. 1962), the court held that the actual date of
the discharge of the nonunion employee, not the date the
union demanded that he be discharged, started the
‘The ALJ also construed a statement by Bryant to a union
representative in May 1979 as conveying the possibility that there
would be further consideration given to the union's demand. In light
of our acceptance of the ALJ's principal grounds for finding the
Western charge timely, we need not reach this additional reason.
A8&
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
statutory period. Similarly, when an unfair labor practice
stemmed from denial of union membership to strike-
breakers, the six-month period was counted from the
date membership was denied, because that was the first
date the employees could have filed their charge. Local
1104, Communications Workers v. NLRB, 520 F.2d 411,
415-16 (2d Cir. 1975), cert. denied, 423 U.S. 1051 (1976).
Since Western had no basis for filing a charge until work
on the Venango County job began, its charge was timely.
Unlike the situation with Western, the ALJ found that
‘Keystone was mindful that its members had been
employed by Harrisburg Drywall, that Harrisburg
Drywall had performed work covered by the CPSA
contract, that Harrisburg Drywall had not adhered to
the terms of that contract, and that Al Bryant owned
Harrisburg Drywall.’’ The Board concedes_ that
Keystone officials were aware of Harrisburg Drywall’s
operation as a nonunion shop within its geographic area
more than six-months before its August 10, 1979 charge
was filed. The ALJ found, however, that respondents’
obiigation under the collective bargaining agreement was
a continuing one. The fact that the initial repudiation of
the agreement occurred more than six months before
charges were filed did not absolve respondents from the
unfair labor practices which inured from their continuing
failure, on demand, to abide by the collective bargaining
agreement. The ALJ found such a demand in a letter
dated March 19, 1979 from Keystone informing Bryant
that Harrisburg Drywall was covered by the applicable
agreement and that it was obligated to adhere to its
terms. Therefore, the ALJ found Bryant's failure to
satisfy this demand constituted an independent violation
of section 8(a)(5), thus rendering Keystone’s August 10,
1979 charge timely.
Ag
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
As the respondents recognize, there does not appear to
be any clear precedent on when the section 10(b) period
begins to run with respect to section 8(a)(5) charges
growing out of double breasted operations. Respondents
contend that the most nearly analogous cases are those
where the courts held that the refusal of an employer to
execute an individual contract with the union following
negotiations of a multiemployer pact marked the
beginning of the six-month period. See NLRB v. Serv-All
Co., 491 F.2d 1273 (10th Cir. 1974); NLRB v. McCready
& Sons, Inc., 482 ¥.2d 872 (6th Cir. 1973); NLRB v. Field
@& Sons, Inc., 462 F.2d 748 (lst Cir. 1972). But see
NLRB v. Strong, 386 F.2d 929, 931 (9th Cir. 1967), rev'd
on other grounds, 393 U.S. 357 (1969).* These cases have
held a second or subsequent request by the union that
the employer sign the agreement cannot support an
unfair labor practice charge if the initial request and
refusal to sign occurred outside the six-month statutory
period. Similarly in NLRB v. Pennwoven, 194 F.2d 521
(3d Cir. 1952), we held that a discriminatory failure to
recall employees because of their union activities
initiated the six-month period. We stated that the fact
that the employees wrote within the period demanding
reinstatement did not trigger a new violation.
The Board, on the other hand, relies on cases holding
each refusal to bargain by an employer under a general
duty to bargain constitutes a separate violation. In J.
*The Board's position which was accepted by the Ninth Circuit in
Strong, is that a subsequent refusal to sign a labor contract within
the section 10(b) period constitutes a continued refusal to bargain
violation even if the initial refusal is outside the period. See
Torrington Construction Co., 235 N.L.R.B. 1540, 1540 n.2, 1545
(1978).
Al0
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
Ray McDermott & Co. v. NLRB, 571 F.2d 850, 858 (5th
Cir.), cert. denied, 439 U.S. 893 (1978), for example, the
court held that the passage of more than six months
from one refusal to bargain does not bar action by the
Board on a timely complaint based on subsequent
refusal. The court reasoned that there was no danger of
‘stale’ claims since a refusal to bargain violation is
based on contemporaneous motives. The same principle
was accepted in NLRB v. Basic Wire Products, Inc., 516
F.2d 261, 267-68 (6th Cir. 1975) and Cone Mills Corp. v.
NLRB, 413 F.2d 445, 448-49 (4th Cir. 1969) (applied to
employer's refusal to provide union with information
concerning pension plan). In NLRB v. Louisiana
Bunkers, Inc., 409 F.2d 1295, 1299-1300 (5th Cir. 1969), a
case involving a single employer, the court found the
charge was timely even though the initial refusal to
bargain occurred outside the six-month period, because
the employer refused subsequent union requests to
bargain.
A decision on how to apply section 10(b) to the facts
before us must be made in light of the statute's
underlying policy. The Supreme Court has described the
policy of the statutory time limit ‘to bar litigation over
past events ‘after records have been destroyed, witnesses
have gone elsewhere, and recollections of the events in
question have become dim and confused’ and ‘“‘of
course to stabilize existing bargaining relationships.”
Local Lodge No. 1424, International Association of
Machinists v. NLRB, 362 U.S. 411, 419 (1960) (Bryan
Manufacturing Co.) (quoting H.R. Rep. No. 245, 80th
Cong., lst Sess. 40 (1947)). In Bryan the Court
interpreted this section as precluding the filing of an
unfair labor charge which was grounded on events
All
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
predating the limitations period. That is not the situation
before us. Here, there will be no need to rely on facts
which predate the limitations period. Although there
may be some evidentiary value to earlier events, this is
not a situation ‘“‘where conduct occurring within the
limitations period can be charged to be an unfair labor
practice only through reliance on an earlier unfair labor
practice.’’ Bryan, 362 U.S. at 416-17. The relevant facts
will be the interrelationships of the companies at the
time of a specific demand to bargain, and these operative
facts in no way depend upon any earlier demand to
bargain.
We find support for the Board's position in the manner
in which we applied section 10(b) in our earlier opinion in
NLRB v. Erie Marine, Inc., 465 F.2d 104 (3d Cir. 1972).
In that case, a section 8(a)(2) charge was based on a joint
employee-employer committee formed in 1969. Although
the complaint was not filed until July 22, 1972, we
enforced the Board's order over respondent's reliance on
section 10(b) because we concluded “that the principal
support for the Board's findings comes from the
existence of the Committee and its domination by
management within the limitations period.” Id. at 108
(emphasis added).
Therefore, we believe the section 10(b) limitations
period should be applied as it was in the Erie Marine
case rather than in those cases cited by the respondents
where the employer refused to sign a negotiated
contract.’ In the refusal to sign cases, the operative fact
*In adopting this approach, we need not rely on any continuing
violation theory. See J. Ray McDermott & Co. v. NLRB, 571 F.2d at
858.
Al2
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
was a concrete act fixed in time in relationship to the
facts surrounding the contract negotiations. As the court
noted in McCready, ‘‘With the passage of time, those
facts become harder to prove as memories fade and
witnesses become unavailable." 482 F.2d at 875. No such
concern is presenied by the facts here, since the
interrelationship between the entities can be established
by reference to their status within the six-month period
at the time of the relevant demand.‘ Here, Keystone
asserted its position about Harrisburg Drywall’s
collective bargaining obligations in the March 19, 1979
letter. Therefore, its charge filed on August 10, 1979 was
timely.
Ill.
DEFERRAL TO ARBITRATION DECISION
The March 19, 1979 letter to ABI by Keystone’s
counsel asserting Harrisburg Drywall was a ‘“‘subsidiary”’
of or “joint venture’ with ABI and that Harrisburg
Drywall was obligated to apply the collective bargaining
agreement negotiated. between CPSA and Keystone
resulted in an arbitration proceeding. Keystone
presented to the arbitrator both its claim that
Harrisburg Drywall, as a subsidiary of ABI, was bound
to the CPSA agreement as a matter of contract and its
claim that as a matter of federal labor law, the contract
was binding on Harrisburg Drywall. The arbitrator found
that Harrisburg Drywall was not a “‘subsidiary’’ of ABI
within the meaning of the collective bargaining
* As the Board recognized, the remedy is to be limited to six months
before filing of the charge and, as it ordered in the case of Keystone,
can in no event precede the date of the demand within that period.
Al3
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
agreement and therefore ABI was not in violation of its
contractual obligations to Keystone through Harrisburg
Drywall’s operation on an open shop basis. Respondents
contend that the Board should have deferred to the
arbitration decision denying Keystone’s grievance.
Although not required to do so, see, e.g., Herman
Brothers, Inc. v. NLRB, 658 F.2d 201, 205-06 (3d Cir.
1981); NLRB v. Horn & Hardart Co., 439 F.2d 674, 678-
79 (2d Cir. 1971), the Board has voluntarily decided not
to exercise its plenary jurisdiction over all unfair labor
practice charges and to defer to outstanding arbitration
awards provided certain conditions were met: the arbitral
proceeding was fair and regular, all parties agreed to be
bound, and the decision was not repugnant to the
purposes and policies of the NLRA. Spielberg
Manufacturing Co., 112 N.L.R.B. 1080, 1082 (1955). A
subsequently enunciated fourth condition, that the
arbitrator must have considered and decided the
statutory unfair labor practice issue, is the one at issue
here. See Raytheon Co., 140 N.L.R.B. 883, 884 (1963),
enforcement denied on other grounds, 326 F.2d 471 (lst
Cir. 1964).
In this case, the arbitrator specifically stated that the
basic question before him was whether Harrisburg
Drywall was a subsidiary under the contract. He further
stated his role was “‘limited to interpreting [the contract
terms], and it [did] not extend to enforcing the provisions
of the Labor Management Relations Act.”
The Board decided that deferral was unwarranted. It
explained:
Al4
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
The arbitrator... found that the NLRB and court
cases cited to him by the Union were not
enlightening as to the definition of a ‘‘subsidiary”
and thus he relied on dictionary definitions. Based
on the tenor of the arbitrator's entire decision, it is
clear he did not consider the statutory issue. It is
also clear that the arbitrator did not have the same
evidence before him as in the instant case. For
example, he had neither the employment rosters of
Harrisburg Drywall nor any information that
Bryant signed bids for Harrisburg Drywall.
We have recently reiterated that we review the Board's
decision not to defer to an arbitration award on an abuse
of discretion standard. See United Parcel Service, Inc. v.
NLRB, No. 82-3318, slip op. at 18 (3d Cir. April 18,
1983); Herman Brothers, Inc. v. NLRB, 658 F.2d at 207:
NLRB v. General Warehouse Corp., 643 F.2d 965, 970
(3d Cir. 1981). Respondents argue that the reasons
advanced by the Board are insubstantial, and therefore it
abused its discretion. Respondents rely on cases in which
the Board deferred to an arbitrator's decision although
the arbitrator did not explicitly resolve the statutory
issue. See Atlantic Steel Co., 245 N.L.R.B. 814 (1979);
Kansas City Star Co., 236 N.L.R.B. 866 (1978). In those
cases, the Board found the arbitrator considered all the
evidence relevant to the statutory issue, and hence
implicitly resolved it. In neither of those cases did the
arbitrator explicitly decline to resolve the statutory
issue, as he did here. Nor, in those cases, did respondents
fail to provide significant relevant evidence at the time of
arbitration in contrast to the situation here where, as the
Board claims, “the companies refused to produce any
Al5
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
subpoenaed documentary evidence’ concerning
Harrisburg Drywall during the arbitration proceeding.”’
Brief for NLRB at 38 (citation omitted).
The requirement that the statutory issues have been
presented to and decided by the arbitrator is of
particular significance to insure that the Board does not
abdicate its responsibility to protect statutory rights.
See NLRB v. General Warehouse Corp., 643 F.2d at 969.
The Board recently reaffirmed it would not defer ‘‘unless
the unfair labor practice issue before the Board was both
presented to and considered by the arbitrator.”
Suburban Motor Freight, Inc., 247 N.L.R.B. 146, 146-47
(1980). Given the arbitrator's explicit statement that he
was not resolving the statutory issue, and the fact that
he did not have all the relevant evidence before him, we
cannot hold that the Board abused its discretion in
refusing to defer to the arbitral award. See Monsanto
Chemical Co., 130 N.L.R.B. 1097, 1099 (1961) (refused to
defer where arbitrator explicitly declined to pass on
statutory issue although submitted to him).
IV.
THE FINDINGS OF SINGLE EMPLOYER,
UNIT DETERMINATION, AND ALTER EGO
We turn then to the respondents’ challenge on the
principal issue decided by the Board, which agreed with
the ALJ's finding that ABI and Harrisburg Drywall
were a single employer, that Harrisburg Drywall was
ABI’s alter ego, and that Associates was the alter ego
and disguised continuance of its predecessors ABI and
Harrisburg Drywall. Because of unique problems in the
construction industry, the Board will accept a double
Al6
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
breasted operation under certain circumstances.
However, an employer will be guilty of a failure to
bargain violation for a double breasted operation if the
Board finds that both entities are a single employer
within the meaning of the NLRA and the combined
employees form an appropriate bargaining unit. See
South Prairie Construction Co. v. Local No. 627,
International Union of Operating Engineers, 425 U.S.
800 (1976) (per curiam). The bargaining unit issue need
not arise when there has been an alter ego finding, at
least in the situation where a successor company is the
‘disguised continuance” of its predecessor. In NLRB v.
Scott Printing Corp., 612 F.2d 783 (3d Cir. 1979), we
upheld the Board's finding that a section 8(a)(5) violation
could occur where a new employer was found to be the
disguised continuance of the old employer without
inquiring into the appropriateness of the bargaining unit.
See also Carpenters Local Union No. 1846 v. Pratt-
Farnsworth, Inc., 690 F.2d 489, 508-09 (5th Cir. 1982)
(Board will generally not consider the unit except to the
extent it is repugnant to NLRA policy); Comment,
Double-Breasted Operations in the Construction
Industry: A Search for Concrete Guidelines, 6 U. Dayton
L. Rev. 45, 47 (198]) (hereafter Dayton Comment).
A. ABland Harrisburg Drywall as a Single Employer
Four criteria have been used by the Board in
determining whether separate entities constitute a single
employer: interrelation of operations, common
management, centralized control of labor relations, and
common ownership. Radio & Television Broadcast
Technicians Local Union 1264 v. Broadcast Service of
Al7
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
Mobile, Inc., 380 U.S. 255, 256 (1965) (per curiam); see
also NLRB ov. Browning-Ferris Industries of
Pennsylvania, Inc., 691 F.2d 1117, 1121-22 & 1121 n.1
(3d Cir. 1982); Sakrete of Northern California, Inc. v.
NLRB, 332 F.2d 902, 905 n.4 (9th Cir. 1964), cert.
denied, 379 U.S. 961 (1965); Parklane Hosiery Co., 203
N.L.R.B. 597, 612 (1973). The Board finds no one factor
controlling, although it has stressed the first three
factors, particularly centralized control of labor relations,
which tend to show “operational integration.’’ Jd.; see
also NLRB v. Jordan Bus Co., 380 F.2d 219, 222 (10th
Cir. 1967); Parklane Hosiery Co., 203 N.L.R.B. at 612.
Ultimately, single employer status depends on all the
circumstances of the case and is characterized by
absence of an ‘‘arm’s length relationship found among
unintegrated companies.’ Local No. 627 International
Union of Operating Engineers v. NLRB, 518 F.2d 1040,
1045-46 (D.C. Cir. 1975), aff'd on this issue per curiam
sub nom. South Prairie Construction Co. v. Local No.
627, International Union of Operating Engineers, 425
U.S. 800 (1976); see NLRB v. Don Burgess Construction
Corp., 596 F.2d 378, 384 (9th Cir.), cert. denied, 444 U.S.
940 (1979).
The single employer question is primarily factual, and
the Board’s conclusion must be upheld if supported by
substantial evidence. NLRB v. Lantz, 607 F.2d 290, 295
(9th Cir. 1979); see Suburban Transit Corp. v. NLRB, 499
F.2d 78, 80 n.1 (3d Cir.), cert. denied, 419 U.S. 1089
(1974).
In a detailed discussion of the facts, the ALJ
reviewed the ample evidence of the integration of the
two entities. Harrisburg Drywall shared ABI’s office
Als
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
building, equipment and personnel. ‘‘[T]he only assets of
a corporeal nature retained by Harrisburg Drywall were
a single, 1974 vintage van, and some office equipment
inherited from Premici’s firm.... Harrisburg Drywall
had no warehouse, engineering, sales or clerical force, but
individuals employed by ABI served the former's needs
in these areas. All utility costs, including gasoline,
electricity, telephones, incurred by Harrisburg Drywall
and ABI were paid by ABI.’’ There were no written
agreements evidencing the “housing” arrangement or
ABI’'s provision of equipment, administrative support
and expenditures for overhead costs. Payment for rent
and other overhead expenses, including headquarters’
staff salaries, was made annually according to the gross
volume of Harrisburg Drywall’s business relative to
ABI’'s, which the ALJ found was hardly indicative of
“arm's length’ dealing. The ALJ characterized
Harrisburg Drywall’’ as a operational shell with no
independent administrative capacity and little in the way
of capital assets.’ He further stated, ‘this was
complemented by integration of ABI resources upon the
operations of Harrisburg Drywall at every level, from
management to craftsmen who performed on the job
site.'" Bryant pertormed many managerial functions for
Harrisburg Drywall. Jean Hoffman signed checks and
purchased supplies for Harrisburg Drywall. Larry
McClain, ABI’s coordinator, also served as Harrisburg
Drywall’s coordinator. Harrisburg Drywall’s president,
Charles May, was usually absent from the office,
spending most of his time in the field supervising
employees and performing carpentry tasks.
Alg
Appendix A—Opinion of the United States Court of
Appecls for the Third Circuit of June 30, 1983.
There is substantial evidence to support the ALJ's
critical finding, affirmed by the Board, that the two
companies shared centralized labor relations control. He
found, for example, that
the integration of the two entities is further
evidenced by the frequent and seemingly at random
interchange of craftsmen as between Harrisburg
Drywall and ABI. In several instances, carpenters
would work for both firms during the same work
week. This occurred in excess of 50 times in 1979, on
30 occasions in 1978, and in excess of 80 in 1977. On
at least two occasions, the same employee worked
for both firms in a single day. Carpenter Gulliver
testified that the only way he could tell which firm
he was working for was the designation on the
payroll check. The lack of separate indentity of the
respective work forces of Harrisburg Drywall and
ABI is indicated by the fact that in 1977, 10 of the
14 employees on the payroll of Harrisburg Drywall
had also worked for ABI, in 1978, 8 Harrisburg
Drywall employees had worked for ABI, while in
1979, 6 Harrisburg Drywall employees had also
appeared on the payroll of ABI.
(footnotes omitted).
Respondents do not appear to seriously question the
factual underpinnings which led the ALJ and the Board
to conclude that ABI and Harrisburg Drywall were a
single employer. Instead they argue that there is no
evidence in the record to indicate that any work which
was traditionally ‘union’ work was transferred to the
non-union side of the double breasted operation, and
A20
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
they suggest that we should impose such a requirement
before 8(a)(5) and (1) liability is imposed in double
breasted cases. The Board authority upon which
respondents rely, United Constructors & Goodwin
Construction Co., 233 N.L.R.B. 904 (1977), does not
support the proposition. In the United Constructors case
there were several factors which led the Board not to
find a single employer in the double breasted context,
including lack of participation of the first firm’s owners
in the day-to-day operation of second firm, lack of
simultaneous supervision by the sane personnel and use
of written leases utilizing standard rates. As _ the
foregoing discussion indicates, the ABI-Harrisburg
Drywall situation presents far different facts.
We see no reason to adopt respondents’ suggestion
that ‘‘subterfuge’’ is necessary before finding that two
employers are bound to each other's contracts. A
contractor engaged in a double breasted operation has
the best of both worlds, since it can bid through its
union company when jobs require union contractors but
can underbid a unionized company through its second
operation on jobs that do not require union contractors.
See Dayton Comment at 45-46. There is evidence in this
case that that is precisely how Bryant used the ABI and
Harrisburg Drywall companies. During the course of a
meeting with union representatives Bryant stated he
owned both a ‘“‘union”’ and ‘‘open shop” company and that
he would use the open shop company as ‘‘an alternative’
if the unions ‘‘were going to force him to do so.’’ Where the
same employees can be and are, as in this case, switched
back and forth between a union and non-union payroll,
the benefits which the employees reap from the union's
A21
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
collective bargaining can be diluted or dissipated.
Furthermore, such an arrangement can generate
confusion and disputes since the employee may be paid
different wages, as occurred here, depending on which
entity kept him on the payroll a particular day. The
Board should be free to apply its expertise in the field of
labor relations to hold that when the factual
prerequisites of finding a single employer and
appropriate unit are present, sections 8(a)(5) and (1) apply
even without proof that union work was transferred to
the nonunion side. No such requirement was suggested
when the Supreme Court was presented with the single
employer issue, see South Prairie Construction Co. v.
Local No. 627, supra, and we decline to impose one.
B. The Board's Unit Determination
The Board recognizes sections 8(a)(5) and (1) of the Act
apply to entities functioning as a single employer only if
there is a finding that their aggregate employees
constitute an appropriate bargaining unit. See South
Prairie Construction Co. v. Local No. 627, 425 U.S. at
803-05; see also NLRB v. Lantz, 607 F.2d at 297. In this
case the ALJ found that a unit consisting of the
“carpenters employed by ABI and Harrisburg Drywall”
was appropriate after considering ‘‘the functional
integration of the operations, the similarity of the work
performed and common skills of the employees, the
extent of centralized management and supervision, the
high incidence of temporary interchange, as well as
centralized control of labor relations including the hiring
and assignment of employees between jobs and firms.”’
In affirming the ALJ’s conclusion the Board also
referred to the identical nature of the services provided.
A22
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
The Board's determination of the scope of a bargaining
unit will not be overturned by the court absent a finding
“that the Board has acted in a manner that is
‘unreasonable and arbitrary.’’’ NLRB v. Saint Francis
College, 562 F.2d 246, 249 (3d Cir. 1977).
Respondents argue that this unit determination was
inappropriate because the Board allegedly failed to follow
its decision in A-1 Fire Protection, Inc., 250 N.L.R.B. 217
(1980), remanded sub nom. Road Sprinkler Fitters Local
Union No. 669 v. NLRB, 676 F.2d 826 (D.C. Cir. 1982).
In the A-] case, however, the Board had viewed the
union's action in voluntarily acquiescing to the exclusion
of one group of a single employer's employees from a
collective bargaining agreement as a _ voluntary
agreement on unit scope. Respondents here argue that
because an agreement was negotiated with Keystone
subsequent to Bryant's absorption of Harrisburg
Drywall, the A-/ case is applicable. The Board, however,
distinguishes the A-/ situation on the ground that
Bryant, rather than frankly advising the union of his
operation of Harrisburg Drywall at the time of the
contract negotiations, instead concealed his operation
and asserted that he had “nothing to do” with
Harrisburg Drywall’s operation and that he did not “run
it.”’ In light of this fact, the Board was not bound to find
that the union ‘voluntarily acquiesced” in a _ unit
determination which excluded the employees of the
nonunion company.
Given our narrow scope of review over a_ unit
determination and the substantial evidence on the record
to support the Board’s finding of an appropriate unit, we
find no basis to overturn its conclusion that ABI and
A23
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 19893.
Harrisburg Drywall violated sections 8(a)(5) aud (1) by
failing to recognize the charging unions and failing to
apply the negotiated agreements to the combined
employees.’
C. Associates as an Alter Ego
Respondents argue that the Board's finding that
Associates was the alter ego of ABI and Harrisburg
Drywall is not supported by substantial evidence. ‘‘[T'Jhe
focus of the alter ego doctrine, unlike that of the single
employer doctrine, is on the existence of a disguised
continuance or an attempt to avoid the obligations of a
collective bargaining agreement through a sham
transaction or a technical change in operations.”’
Carpenters Local !/nion No. 1846 v. Pratt-Farnsworth,
Inc. 690 F.2d at 508; see also Comment, Dual
Companies—When Does a Union Have the Right to
Expanded Representation?, 12 U.S.F. L. Rev. 89, 93
(1977).
Like the single employer finding, the finding that one
company is the alter ego of another is a question of fact.
See Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106
(1942). The factors to which the Board looks are the
substantial identity of management, business purpose,
operation, equipment, customers, supervision and
ownership between the old and new corporations. See
Carpenters Local Union No. 1846, 690 F.2d at 507. There
is substantial evidence to support the finding that
* Since we find there was substantial evidence to support the Board's
conclusions that ABI and Harrisburg Drywall were a single employer
and that the bargaining unit was appropriate, we need not reach its
finding that Harrisburg Drywall was ABI's alter ego.
A24
Appendix A— Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
Associates is the alter ego in disguised continuance of
ABI and Harrisburg Drywall. Associates was created to
perform the same kind of work as ABI and Harrisburg
Drywall. It occupied the same building, and shared some
areas of its office and warehouse. It assumed the utility
bills previously paid by ABI, rented ABI’s office
furniture, equipment and scaffolding, and employed
substantially unchanged ABI staff. Five of the six
nonmanagerial headquarters employees who had worked
for ABI were transferred to Associate's payroll in the
first week of its operation and the sixth was transferred
shortly thereafter. Associates took its initial field staff
from the other companies. ABI’s three managers were
transferred to Associates’ payroll and continued to
perform similar managerial functions in that capacity.
Furthermore, it is significant, if not crucial, that
Associates was created after the filing of unfair labor
practice charges against ABI and Harrisburg Drywall,
and substantial evidence supports the ALJ's finding that
it was a ‘disguised continuance...through which
contractual obligations to Keystone and Western and
putative statutory remedies were to be avoided.’’ As the
ALJ found, Associates
was formed with knowledge of the labor difficulties
and unfair labor practice charges confronting ABI
and Harrisburg Drywall, and continued with an
identical business purpose and _ objective.
Administrative, managerial, sales, engineering,
warehousing and clerical employees were simply
removed from the payroll of one firm one day and
appeared on the payroll of the other the next. For
the first 5 months of its existence, [Associates] drew
A25
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
exclusively from the Harrisburg Drywall blue collar
work force. Like Harrisburg Drywall, it utilized the
equipment of ABI and shared administrative and
clerical support with that firm.
Respondents dispute the characterization of Associates
as the alter ego of the other two companies principally
by objecting to the ALJ's finding that Bryant
“continued to function as the principal source of
[Associates’’] policy and executive authority."’ This
finding was based in part on the ALJ's credibility
determination. In addition, there was evidence that
Bryant spent up to five days a week in the joint
ABI/Associates offices, that ABI's activities were
practically at a standstill, that Bryant was frequently
“consulted’"’ about Associates’ business, that Bryant's
salary under a ‘‘consulting agreement’’ with Associates
was twice that of its president, and that he exercised
some supervision over sales personnel. This evidence
supports the finding that Bryant retained sufficient
control over the affairs of Associates to meet the alter
ego criteria applied by this court in NLRB v. Scott
Printing Corp., supra. As we indicated earlier, it is
unnecessary to embark on a unit determination analysis
once there is adequate evidence to support the finding
that Associates was the alter ego of the other two
companies.
Since we find that there was substantial evidence to
support the Board's findings that ABI and Harrisburg
Drywall were a single employer, that their carpenter
employees constituted an appropriate bargaining unit,
and that Associates was the alter ego of the other two
companies, it follows that the Board’s finding that
respondents violated sections 8(a)(5) and (1) of the Act
was proper.
A26
Appendix A—Opinion of the United States Court of
Appeals for the Third Circuit of June 30, 1983.
f
THE ALJ'S CONDUCT
The respondents’ claim that the ALJ's conduct
deprived them of a fair hearing. They complain that he
evidenced hostility to Bryant and his attorney, that he
seemingly had prejudged issues before all the evidence
was in, and that he took on the qualities of an advocate
in his examination of witnesses.
The Board considered this claim and concluded that,
“Iwhile we believe some of the statements made by the
Administrative Law Judge at the hearing may have been
ill-chosen; upon our full review of the record and the
Decision of the Administrative Law Judge, we perceive
no evidence that he prejudged the case, made prejudicial
rulings, or demonstrated bias, hostility, and prejudice
toward Respondents’ counsel.’’ The Board found no
evidence of partiality in the ALJ's examination of
respondents’ witnesses or in his analysis and discussion
of the evidence. The conduct of the ALJ did not in all
instances project the image of a patient, impartial
adjudicator. Nevertheless, the record does not establish
that the respondents failed to receive a fair hearing.
VI.
CONCLUSION
For the foregoing reasons, we will grant the Board's
application for enforcement of its order.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
A27
Opinion of the National Labor Relations Board
of February 11, 1982.
FJZ
260 NLRB No. 10 D—8480
Harrisburg, PA
UNITED STATES OF AMERICA
Before The National Labor Relations Board
AL BRYANT, INC., HARRISBURG DRYWALL AND
CONSTRUCTION CORPORATION, AND AL
BRYANT ASSOCIATES, INC.
(Case 6—CA—12800)
i and
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, CARPENTERS’
DISTRICT COUNCIL OF WESTERN
PENNSYLVANIA, AFL-CIO
and
KEYSTONE DISTRICT COUNCIL OF THE UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL—CIO
(Cases 6—CA—13716 and
6—CA—13914)
A28
Appendix A—Opinion of the National Labor
Relations Board of February 11, 1982.
DECISION AND ORDER
ENTERED FEBRUARY 11, 1982
On July 27, 1981, Administrative Law Judge Joel A.
Harmatz issued the attached Decision in this proceeding.
Thereafter, Respondents filed exceptions and a
supporting brief and Keystone District Council of the
United Brotherhood of Carpenters and Joiners of
America, AFL—CIO, filed exceptions and a brief in
opposition to exceptions filed by Respondents.
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.
The Board has considered the record and the attached
Decision in light of the exceptions and briefs and has
decided to affirm the rulings, findings,' and conclusions?
of the Administrative Law Judge and to adopt his
recommended Order,’ as modified herein.
' Respondents except to the Administrative Law Judge's Decision as
being tainted with bias, hostility, and prejudice. We find these
allegations to be without merit. While we believe some of the
statements made by the Administrative Law Judge at the hearing
may have been ill-chosen, upon our full review of the record and the
Decision of the Administrative Law Judge, we perceive no evidence
that he prejudged the case, made prejudicial rulings, or demonstrated
bias, hostility, and prejudice towards Respondents’ counsel. We
further find no evidence of partiality in the Administrative Law
Judge's examination of Respondents’ witnesses or his analysis and
discussion of the evidence. Given this ruling, we deny Kesnondents’
request for the Board to listen to the tapes of this proceeding.
At fn. 2 of his Decision, the Administrative Law Judge admonished
Respondents’ counsel for moving the Administrative Law Judge to
recuse himself in their post-hearing brief rather than before the
“appropriate reviewing authority." The Administrative Law Judge
(Footnote continued on following page)
A29
Appendix A—Opinion of the National Labor
Relations Board of February 11, 1982.
(Footnote continued from preceding page)
erred. Sec. 102.37 of the Board's Rules and Regulations requires the
party requesting an administrative law judge to disqualify himself to
do so before the administrative law judge files his decision. Further,
Sec. 102.41 of the Board's Rules and Regulations provides that an
objection to the conduct of the hearing may be included in the record.
Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy
not to overrule an administrative law judge's resolutions with respect
to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing his findings.
* We agree with the Administrative Law Judge's finding that ABI
and Harrisburg Drywall are single employers under the Act. We
further agree that the employees of ABI and Harrisburg Drywall
constitute an appropriate unit. However, we do so solely because
these employees share a sufficient community of interest based on the
following findings: The firms provide subcontracting services of an
identical nature in a segment of the construction industry; the
employees perform similar work and possess common skills; the
management, supervision, and contro! of labor relations of the
employees is centralized; and there is a high incidence of temporary
interchange of employees between the two firms.
We agree with the Administrative Law Judge that deferral to the
arbitrator's award which was introduced into evidence is
inappropriate in the instant case. In so doing, we find that the
arbitrator expressly declined to resolve the statutory issue before us.
Thus, in his decision the arbitrator expressly stated that the “basic
question before the Arbitrator is whether Harrisburg Drywall is a
‘subsidiary’ or ‘subsidiary building construction company’ of Al
Bryant Inc....'' within the intendment of the contract. He
specifically stated that his role was limited to interpreting the terms
of the agreement and did ‘‘not extend to enforcing the provisions of
the Labor Management Relations Act.’ The arbitrator then found
that the NLRB and court cases cited to him by the Union were not
enlightening as to the definition of a ‘‘subsidiary’’ and thus he relied
on dictionary definitions. Based on the tenor of the arbitrator's entire
decision, it is clear he did not consider the statutory issue. It is also
(Footnote continued on following page)
A30
Appendix A—Opinion of the National Labor
Relations Board of February 11, 1982.
( Footnote continued from preceding page)
clear that the arbitrator did not have the same evidence before him as
in the instant case. For example, he had neither the employment
rosters of Harrisburg Drywall nor any information that Bryant
signed bids for Harrisburg Drywall.
Having found for the above reasons that deferral is unwarranted, we
find it unnecessary to pass or rely on the Administrative Law
Judge's discussion and conclusion that the arbitrator's decision was
repugnant to the policies of the Act.
*In “The Remedy” section of his Decision, the Administrative Law
Judge recommended that Respondents be ordered to apply their
collective-bargaining agreement with United Brotherhood of
Carpenters and Joiners of America, Carpenters’ District Council of
Western Pennsylvania, AFL—CIO (Western) “retroactively without
time limit ....'’ However, our normal remedy for violations of this
nature is limited to the 10(b) period. We see no reason to extend the
remedy beyond that period in this case. Accordingly, we shall order
Respondents to apply their collective-bargaining agreement with
Western retroactive to April 3, 1979, the beginning of the 10(b)
period.
The Administrative Law Judge also recommended that Respondents
be ordered to reimburse the trust funds provided for in the collective-
bargaining agreements and to remit contributions it failed to make on
behalf of unit employees of Harrisburg Drywall and Al Bryant
Associates ‘‘with interest.” Because the provisions of employee
benefit fund agreements are variable and complex, the Board does not
provide at the adjudicatory stage of a proceeding for the addition of
' interest at a fixed rate on unlawfully withheld fund payments. We
leave to the compliance stage the question whether Respondents
must pay any additional amounts into the benefit funds in order to
satisfy our ‘‘make-whole” remedy. These additional amounts may be
determined, depending upon the circumstances of each case, by
reference to provisions in the documents governing the funds at issue
and, where there are no governing provisions, to evidence of any loss
directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of funds
withheld, additional administrative costs, etc., but not collateral
losses. Merryweather Optical Company, 240 NLRB 1213 (1979).
A3l
Appendix A—Opinion of the National Labor
Relations Board of February 11, 1982.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of the
Administrative Law Judge, as modified below, and
hereby orders that the Respondents, Al Bryant, Inc.,
Harrisburg Drywall and Construction Corporation, and
Al Bryant Associates, Inc., Harrisburg, Pennsylvania,
their officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraphs 2(a), (c),
and (d):
“(a) Recognize United Brotherhood of Carpenters and
Joiners of America, Carpenters’ District Council of
Western Pennsylvania, AFL—CIO, as the exclusive
representative of the employees of Harrisburg Drywail
and Construction Corporation in the aforesaid unit with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment and apply the
terms of the appropriate collective-bargaining agreement
negotiated by CPSA and said labor organization
retroactive to April 3, 1979.”
“(c) Jointly and severally make the employees within
said unit of Harrisburg Drywall and Construction
Corporation and Al Bryant Associates, Inc., who are
represented by Keystone District Council of the United
Brotherhood of Carpenters and Joiners of America,
AFL—CIO, whole for any loss of earnings or other
compensation they may have been denied since March
19, 1979, by the refusal to apply the terms of the
A32
Appendix A—Opinion of the National Labor
Relations Board of February 11, 1982.
collective-bargaining agreement to them, and reimburse
the appropriate trust funds provided therein for those
contributions which it has failed to make on behalf of
said employees, in the manner set forth in the section of
this Decision entitled ‘The Remedy,’ as modified.
‘“(d) Jointly and severally make the employees within
said unit of Harrisburg Drywall and Construction
Corporation, who are represented by United Brotherhood
of Carpenters and Joiners of America, Carpenters’
District Council of Western Pennsylvania, AFL—CIO,
whole for any loss of earnings or other compensation
they may have been denied since April 3, 1979, by the
refusal to apply the terms of the collective-bargaining
agreement to them, and reimburse the appropriate trust .
funds provided therein for those contributions which it
has failed to make on behalf of said ernployees in the
manner set forth in the section of this Decision entitled
‘The Remedy,’ as modified.”
2. Substitute the attached notice for that of the
Administrative Law Judge.
Dated, Washington, D.C. February 11, 1982
John H. Fanning, Member
Howard Jenkins, Jr., Member
Don A. Zimmerman, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
A33
Appendix A—Opinion of the National Labor
Relations Board of February 11, 1982.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has
ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To engage in activities together for the purpose of
collective bargaining or other mutual aid or
protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT refuse to bargain with United
Brotherhood of Carpenters and Joiners of America,
Carpenters’ District Council of Western Pennsylvania,
AFL—CIO, as the exclusive representative of our
employees in the appropriate unit described below by
refusing to recognize and to appiy the terms of the
applicable collective-bargaining agreement with said
labor organization to employees of Harrisburg Drywall
and Construction Corporation. The appropriate unit is:
A34
Appendix A—Opinion of the National Labor
Relations Board of February 11, 1982.
All journeyman carpenters, layout men, and
apprentices employed within the geographic
jurisdiction of United Brotherhood of Carpenters
and Joiners of America, Carpenters’ District Council
of Western Pennsylvania, AFL—CIO, by employer
members designating CPSA as their collective-
bargaining representative (including Al Bryant, Inc.,
Harrisburg Drywall and Construction Corporation,
and Al Bryant Associates, Inc.), but excluding all
other craftsmen, guards and supervisors as defined
in the Act.
WE WILL NOT refuse to bargain collectively with
Keystone District Council of the United Brotherhood
of Carpenters and Joiners of America, AFL—CIO, as
the exclusive representative of our employees in the
appropriate unit described below by refusing to
recognize and to apply the collective-bargaining
agreement with said labor organization to employees
of Harrisburg Drywall and Construction Corporation
and Al Bryant Associates, Inc. The appropriate
collective-bargaining unit is:
All journeyman carpenters, layout men, and
apprentices employed within the geographic
jurisdiction of Keystone District Council of United
Brotherhood of Carpenters and Joiners of America,
AFL—CIO, by employer-members designating the
Central Pennsylvania Subcontractors Association as
their bargaining representative (including Al
Bryant, Inc., Harrisburg Drywall and Construction
Corporation, Al Bryant Associates, Inc.), but
excluding all other craftsmen, guards and
supervisors as defined in the Act.
A35
Appendix A—Opinion of the National Labor
Relations Board of February 11, 1982.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section 7 of
the Act.
WE WILL recognize United Brotherhood of
Carpenters and Joiners of America, Carpenters’
District Council of Western Pennsylvania, 4 FL—CIO,
as the exclusive representative of the employees of
Harrisburg Drywall and Construction Corporation in
the appropriate collective-bargaining unit described
above with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment, and WE WILL apply the collective-
bargaining agreement with said labor organization to
those employees of Harrisburg Drywall and
Construction Company, retroactively to April 3, 1979.
WE WILL recognize Keystone District Council of
United Brotherhood of Carpenters and Joiners of
America, AFL—CIO, as the exclusive representative of
the employees of Harrisburg Drywall and Construction
Corporation and Al Bryant Associates, Inc., in the
appropriate unit described above, with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment, and WE WILL apply
the collective-bargaining agreement with said labor
organization to such employees of Harrisburg Drywall
and Construction Corporation and Al Bryant
Associates, Inc., retroactively to March 19, 1979.
WE WILL jointly and severally make our employees
within said unit of Harrisburg Drywall and
Construction Corporation and Al Bryant Associates,
A36
Appendix A—Opinion of the National Labor
Relations Board of February 11, 1982.
Inc., who are represented by Keystone District Council
of the United Brotherhood of Carpenters and Joiners
of America, AFL—CIO, whole for any loss of earnings
or other compensation they may have been denied
since March 19, 1979, by the refusal to apply the
terms of the collective-bargaining agreement to them,
and reimburse the appropriate trust funds provided
therein for those contributions which we have failed to
make on behalf of said employees.
WE WILL jointly and severally make our employees
within said unit of Harrisburg Drywall and
Construction Corporation, who are represented by
United Brotherhood of Carpenters and Joiners of
America, Carpenters’ District Council of Western
Pennsylvania, AFL—CIO, whole for any loss of
earnings or other compensation they may have been
denied since April 3, 1979, by the refusal to apply the
terms of the collective-bargaining agreement to them,
and reimburse the appropriate trust funds provided
therein for those contributions which we have failed to
make on behalf of said employees.
AL BRYANT, INC., HARRISBURG DRY-
WALL AND CONSTRUCTION COR-
PORATION AND AL BRYANT,
ASSOCIATES, INC.
(Employer)
a
(Representative) (Title)
A37
Appendix A—Opinion of the National Labor
Relations Board of February 11, 1982.
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
concerning this notice or compliance with its provisions
may be directed to the Board's Office, )orter Building,
10th Floor, 601 Grant Street, Pittsburgh, PA 15219,
Telephone 412-644-2969.
A38
Opinion of the Administrative Law Judge
of July 27, 1981
JD-359-81
Harrisburg, PA
UNITED STATES OF AMERICA
Before the National Labor Relations Board
Division of Judges
AL BRYANT, INC., HARRISBURG DRYWALL
AND CONSTRUCTION CORPORATION, and
AL BRYANT ASSOCIATES, INC.,
and
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, CARPENTERS’
DISTRICT COUNCIL OF WESTERN
PENNSYLVANIA, AFL-CIO,
KEYSTONE DISTRICT COUNCIL OF THE UNITED
BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO.
Case Nos. 6-CA-12800
6-CA-13716
6-CA-13914
A39
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
Matthew M. Franckiewicz, Esq., of
Pittsburgh, PA, for the
General Counsel.
Thomas A. Beckley, Esq. and
Joseph Rose, Esq. (Beckley &
Madden), of Harrisburg, PA,
for the Respondent.
Ronald L. Gilardi, Esq. (Gilardi &
Cooper), of Pittsburgh, PA, on
behalf of United Brotherhood of
Carpenters and Joiners of America,
Carpenters’ District Council of
Western Pennsylvania, AFL-CIO.
Ira H. Weinstock, Esq., of Harrisburg,
PA, on behalf 5f Keystone District
Council of the United Brotherhood
of Carpenters and Joiners of America,
AFL-CIO.
(Entered July 27, 1981)
A40
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
DECISION
Statement of the Case
JOEL A. HARMATZ, Administrative Law Judge:
This proceeding was heard by the undersigned in
Harrisburg, Pennsylvania, on December 10, 11, 12, 1980,
and January 28 and 29, 1981, upon an initial unfair labor
practice charge filed on August 10, 1979 in Case No. 6-
CA-19417, and further charges, resulting in separate
complaints, alleging that Respondents violated 8(a)(1)
and ‘5) of the Act by refusing to recognize the Charging
Parties and to apply the terms of the latter's subsisting
collective bargaining agreements to employees of
Harrisburg Drywall and Al Bryant Associates.' In its
answers, Respondents denied that any unfair labor
practices were committed, and set forth certain
affirmative defenses. Following close of the hearing,
' The original complaint in Case No. 6-CA-12800 issued on May 30,
1980, was amended on September 26, 1980, and was again amended
on November 24, 1980. The original complaint in Case No. 6-CA-
13716, was issued under Case No. 4-CA-10437, on April 30, 1980, and
after transfer to Region 6 of the National Labor Relations Board, was
amended on September 26, 1980, and joined with Case No. 6-CA-
13914 in a second amended complaint, which issued on November 21,
1980. The above proceedings were consolidated by an initial Order
dated August 20, 1980 and a further Order consolidating cases issued
on November 21, 1980.
A4l
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
briefs were filed on behalf of the Respondents,’ the
General Counsel, and the Charging Parties.
Upon the entire record in this proceeding,’ including
direct personal observation of the witnesses while
testifying and their demeanor, and after consideration of
the post-hearing briefs, it is hereby found as follows:
* Respondents, on December 10, 1980, at the close of the first day of
the hearing, charged the undersigned with assuming the role of an
advocate and conducting himself in a manner manifesting a lack of
impartiality. At . at time, and again in response to a ‘Motion to
Recuse” which was made at the outset of the continued hearing on
December 11, 1980, the undersigned responded on the record to the
accusations and charges made by co-counsel for the Respondents. The
aforesaid motion was denied. Respondents’ post-hearing brief to the
undersigned includes some 15 pages iterating its position that the
undersigned denied Respondents a fair and impartial hearing.
Curiousity is aroused that such a tact would be adopted, and such
matters addressed to the undersigned directly at a time when he is
considering the merits, rather than the more appropriate and relevant
course of deferring such matters to the appropriate reviewing
authority.
* Separate motions to correct the official stenographic transcript filed,
respectively, on behalf of the General Counsel and Respondents are
granted but only as set forth below:
Page Line Delete Substitute
59 8 point form
70 15 Blue League's Prevailing Wage
87 5,8 Sebostas Sebacious
98 20 carpenter clerical
161 25 did didn't
197 5 plaintiff Respondent
208 4 partial impartial
216 12 sworn suborning
224 4 conception inception
256 14 interim written
327 19 cauctuous
408 21,24 Gym Gem
440 9 person personally
498 22 represented as
A42
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
Findings of Fact
I. Jurisdiction
Al Bryant, Inc., Harrisburg Drywall and Construction
Corporation, and Al Bryant Associates, Inc., are
Pennsylvania corporations, engaged in the construction
of ceilings, floors and drywall, with their principal office
and place of business located at 2311 Hummingbird
Lane, Harrisburg, Pennsylvania. It is alleged by the
General Counsel that the foregoing, at all times material,
have been affiliated business enterprises with common
officers, ownership, directors, management, and
supervision; have formulated and administered a
common labor policy affecting employees of said
operations; have shared common premises and facilities,
have provided services for each other; and have
interchanged personnel with each other;‘ and that, as
such, they “... constitute a single integrated business
enterprise and a single employer within the meaning of
the Act.”
At the hearing it was stipulated that in the course and
conduct of said operations, services valued in excess of
$50,000 were performed by Harrisburg Drywall in 1979,
a representative period, for the Commonwealth of
Pennsylvania. It further was stipulated that the
Commonwealth of Pennsylvania annually purchases
goods and services exceeding $50,000 from sources
beyond said Commonwealth.
The jurisdictional issue, as it affects Respondents,
being predicated solely upon facts pertaining to
* See General Counsel Exhibit 1 (tt).
%
A43
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
Harrisburg Drywall, depends vitally on the alleged single
employer status of all three firms. That issue is also
critical to the refusal to bargain allegations pertaining to
Harrisburg Drywall and Al Bryant Associates. The
latter, having been treated in subsequent sections of this
Decision, and it having been concluded that consistent
with the allegations in the relevant complaints, that
these three firms constitute a single integrated enterprise
and a single employer for purposes of the Act, I find
that Respondents are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. The Labor Organizations Involved
The complaints allege, the parties at the hearing
stipulated, and I find that United Brotherhood of
Carpenters and Joiners of America, Carpenters’ District
Council of Western Pennsylvania, AFL-CIO, herein
called Western, and Keystone District Council of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, herein called Keystone, are labor
organizations within the meaning of Section 2(5) of the
Act.
III. The Alleged Unfair Labor Practices
A. Preliminary Statement
This consolidated proceeding once again raises
questions concerning the propriety under the Act of so-
called ‘double breasted” operations in the construction
industry, whereby distinct legal entities with common
proprietary and managerial attributes function
separately, with one utilized exclusively on a union basis
A44
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
and the other, or others, nonunion. The central figure in
this inquiry is Albert Bryant, who apparently, for a
number of years, has been a factor in the drywall, ceiling
and flooring industry in Pennsylvania. The General
Counsel claims that Al Bryant, Incorporated, herein
referred to as ABI, a firm owned wholly by Bryant and
his wife, was party to collective bargaining agreements
covering ‘‘carpenters’’ negotiated between the Central
Pennsylvania Subcontractors Association, herein called
CPSA, and Keystone and Western, respectively. ABI
was at all times material a contractor engaged in
construction of ceilings, floors and drywall and
functioned as a ‘‘union contractor’ paying union scale
and fringes and honoring the terms of applicable
collective bargaining agreements with Keystone and
Western. On behalf of the General Counsel, it is further
asserted, that Bryant utilized separate corporations:
namely, Harrisburg Drywall Construction Corporation,
herein call Harrisburg Drywall, and commencing on
January 1, 1980, Al Bryant Associates, Inc., herein
called ABA, to bid on and perform identical construction
work, on a non-union or open shop basis. It is claimed
that ABA and Harrisburg Drywall, together with ABI,
constitute a single integrated enterprise with ABI, that
all three were therefore, through ABI’s membership in
CPSA and the latter's authority to negotiate on behalf of
ABI, bound to CPSA’s contracts with Keystone and
Western.
Respondents, by way of defense raise a myriad of
procedural and substantive issues. It is asserted that
inasmuch as Keystone and Western both acquired
knowledge that Harrisburg Drywail and ABA were
A45
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
functioning on a non-union basis more than six months
prior to the filing of any unfair labor practice charge, the
complaints issued on their behalf were time-barred by
virtue of Section 10(b) of the Act. Furthermore, in
connection with the claims registered on behalf of
Keystone, Respondents point to the fact that the issue of
whether Harrisburg Drywall was bound to any
agreement with that labor organization was submitted to
arbitration in 1979, with a hearing held before Arbitrator
James M. Harkless, on July 6 and 7, 1979, wherein the
Union's grievance in quest of such determination was
denied. On behalf of Respondents, it is asserted that said
award is entitled to binding force pursuant to the
Spielberg doctrine.’
With respect to the merits, Respondents deny that
ABI was ever bound as a signatory or party to any
agreement reached between CPSA and Keystone and
Western. It is further asserted, again in the alternative,
that ABI, Harrisburg Drywall, and ABA, were
independent firms, having independent existence, and
lacking in any interrelationship which would confer
single employer or alter ego status so as to permit
enforcement of the National Labor Relations Act in a
manner which would deem them responsible for any
agreements reached by ABI.
B. Background
ABI was formed in 1967 by Albert Bryant. Since its
inception, Albert Bryant has owned 90 percent of its
stock, and his wife Marjorie, the remaining 10 percent.
* Spielberg Manufacturing Company, 112 NLRB 1080.
A46
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
At times material, that firm maintained its principal
offices at 2311 Hummingbird Lane, Harrisburg,
Pennsylvania, and functioned as a union contractor
engaged in the hanging of drywall, the insulation of
ceilings, and the laying of floors.
Insofar as the instant record discloses, the relationship
between ABI and the Carpenters’ Union dated back to
1972, when an agreement was signed, at the request of
Al Bryant, with the International Brotherhood of
Carpenters. That document provided as follows:
Agreement
AGREEMENT between AL BRYANT INC herein
referred to as the Company, and the United
Brotherhood of Carpenters and Joiners of America.
The Company agrees to recognize the
jurisdictional claims of the United Brotherhood of
Carpenters and Joiners of America, to work the
hours, pay the wages and fringe benefits and
observe the lawful working conditions (including
lawful union shop agreements) established or agreed
upon by the United Brotherhood of Carpenters and
Joiners of America and the recognized agency of the
locality in which any work of the Company is being
done, with respect to journeymen carpenters
employed by the Company.
No change is to be made in the hours, wages and
other conditions established or agreed upon in any
locality. .
A47
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
The Company will not subcontract any work
within the jurisdiction of the United Brotherhood of
Carpenters and Joiners of America which is to be
performed at the job site except to a contractor who
holds an agreement with the United Brotherhood of
Carpenters and Joiners of America or one of its
subordinate bodies, or who agrees in writing, prior
to or at the time of the execution of his subcontract,
to be bound by the terms of this Agreement.
In consideration of the foregoing the United
Brotherhood of Carpenters and Joiners of America
agrees to furnish competent journeymen selected for
reference to jobs upon a non-discriminatory basis,
such furnishing to be made upon request of the
Company and with the Company retaining the right
to reject or accept the applicants for employment.
The United Brotherhood of Carpenters and
Joiners of America agrees that the District Council
or Local Unions having jurisdiction in the respective
areas of the performance of work will maintain
appropriate non-discriminatory facilities for the
registration and referral of persons possessing the
skills required for the performance of work by the
Company. The Company agrees to use said facilities
in filling job vacancies on all projects.
In the event that no such facilities are maintained
or that the facility maintained is unable to fill
requisitions for employees within a 48-hour period,
the Company may employ applicants directly at the
job site on a non-discriminatory basis. In such event
the Company will notify the union of the names and
classifications and the dates of such hirings.
A48
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
There shall be no strike or lockout pending any
dispute being investigated and all peaceable means
taken to bring about a settlement.
The Company will post in places where notices to
employees and applicants for employment are
customarily posted all of the provisions relating to
the above hiring arrangements.
COMPANY:
Al BRYANT, INC.
By [s]
Albert I. Bryant
President
U) TED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA
By [s]
General President
A49
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
Prior thereto, a sole proprietorship, Harrisburg
Drywall & Construction, was operated in the same field
by an individual, Geno Premici. The latter, through his
firm, had been engaged in drywall insulation and
finishing on a non-union basis. At some point, Premici
sought Bryant's assistance with his financial problems.
In consequence, in 1971, Harrisburg Drywall was
incorporated, with Bryant retaining control, as majority
stockholder, and Premici becoming president and
remaining the principal functionary of the business.
Premici’s association with the new corporation lasted
only about a year and in 1972, his stock was redeemed
by Harrisburg Drywall and Al Bryant retained
ownership of all outstanding shares. Commencing in
1972, ABI, which had leased space at 2311
Hummingbird Lane, from Al Bryant and his wife,
subleased space to Harrisburg Drywall.* Later, Al
Bryant, apparently designated Charles May to be
president of Harrisburg Drywall in November 1975.
Bryant becazne vice-president of that firm and its
secretary. Harrisburg Drywall at no time signed any
agreement or authorized any entity to negotiate with the
Carpenters Union or its affiliates on behalf of its
employees. Harrisburg Drywall engaged in the same
construction activity as ABI but operated on a
nonunion, open shop basis.
In addition to the international agreement,
considerable evidence was adduced reflecting upon ABI’s
obligations pursuant to agreements negotiated by CPSA
with Western and Keystone, respectively. Apparently, in
1974, another employer association, Keystone Building
Contractors Association, herein called KBCA, jointly
* As there was no written lease between ABI and Harrisburg Drywall
this apprently was pursuant to verbal understanding.
A50
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
with CPSA, negotiated a collective bargaining agreement
with Keystone for a term running from May 1, 1974
through April 30, 1977.’ Prior to expiration, that
agreement was supplemented on April 18, 1977, by
agreement between Keystone and CPSA and extended
for a term May 1, 1977 through April 30, 1982. ABI was
a member of CPSA, and Al Bryant was at the time of
the hearing, and for many years before, a director of that
Association. Indeed, when the 1977 supplement was
negotiated, Al Bryant was both the president of CPSA
and the sole spokesman and negotiator for CPSA and it
was Bryant who executed that document on behalf of
CPSA. Notwithstanding Al Bryant’s involvement in the
1977 negotiations it is contended that ABI was at no
time bound by the results of multi-employer negotiations
for ‘‘carpenters.’”’
’ See General Counsel Exhibit 4.
* See General Counsel Exhibit 5.
* The enabling rules of CPSA were not introduced. However, parole
testimony was offered to the effect that employer-members of CPSA
are not bound to collective bargaining agreements negotiated by said
Association absent prior, written authorization to that effect.
Apparently because of differences between the strict carpentry craft
and the work of ‘‘floor layers’, a separate agreement is negotiated by
CPSA for ‘floor layers.’ The dispute in this case centers upon
members of the carpentry craft rather than floor layers. ABI
concedes that CPSA was authorized to bargain on its behalf with
respect to the floor layers, and that it was bound to CPSA's contract
covering them. ABI denies that it had effected such an authorization
with respect to the ‘‘carpenters’’.
A5l
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
Like Keystone, Western had also negotiated a series of
contracts with CPSA. In the 1975 negotiations, Nancy
Linn Shaffer was the chief spokesman for CPSA. She
furnished Western with a list of employers for whom
CPSA was authorized to negotiate. That list included
ABI.'® Three years later, and 1 year after Bryant
negotiated the 1977 supplement with Keystone, Western
in 1978, commenced contract renewal negotiations with
CPSA. Orin Remsnyder was the chief spokesman for the
latter. At the outset of said negotiations, Western
requested and Remsnyder provided a list of contracting
employers. Once mcre, the list included ABI."
While the 1977 Keystone supplement and the 1978
agreement with Western were in effect, ABI adhered to
the terms thereof when operating within the geographic
jurisdiction of each of these respective labor
organizations. Harrisburg Drywall operated non-union
and failed to honor said agreements.
Beginning in 1977, Keystone began to receive
complaints from carpenters employed by Harrisburg
Drywall concerning their retention at less than union
scale. However, no legal recourse was sought until March
19, 1979 when Keystone filed a grievance against ABI
under the basic agreement, seeking to bind Harrisburg
Drywall to the terms of the subsisting agreement.
Arbitrator Harkless, issued his award on October 29,
1979, denying Keystone’s grievance.
'® See General Counsel Exhibit 25.
'! See General Counsel Exhibit 496.
A52
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
While the proceeding before the arbitrator was
pending, unfair labor practice charges were filed on
August 10, 1979, by Keystone in Case No. 4-CA-10417,"
charging ABI with 8(a)(1), 8(a)(3) and 8(a)(5) violations for
utilizing a non-union subsidiary and refusing to recognize
the Union as representative of the employees employed
by Harrisburg Drywall. On October 3, 1979, in Case No.
6-CA-12800, similar charges were filed by Western in
connection with Harrisburg Drywall’s performance of a
job in Venango County, Pennsylvania.
During the pendency of these charges, but prior to the
issuance of complaints thereon, a third corporation,
ABA, was formed. This time Al Bryant relinquished
ownership control. Thus, ABA was capitalized on the
basis of Bryant’s contribution of all of the outstanding
stock of Harrisburg Drywall, and the contribution of
$20,000 cash by Jean Hoffman, and Larry McClain.'* Al
Bryant’s interest in ABA was that of a 30 percent
shareholder. He held the offices of vice-president in
charge of sales and treasurer. Hoffman and McClain each
retain 35 percent of the remaining outstanding shares.
ABA beginning in 1980, like ABI and Harrisburg
Drywall operated as a contractor engaged in the
construction of ceilings, floors and drywall. As was true
of Harrisburg Drywall, ABA function exclusively on a
open shop non-union basis and did not adhere to the
CPSA bargaining agreements.
'* By action of the General Counsel on August 15, 1980, Case No.
4-CA-10417 was transferred to Region 6 of the National Labor
Relations Board and redesignated Case No. 6-CA-13716.
“ Hoffman and McClain at the time were key employees of ABI. In
addition, Hoffman was an officer and director of both ABI and
Harrisburg Drywall.
A53
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
Thereafter, on October 6, 1980, an unfair labor practice
charge implicating ABA was filed by Keystone in Case
No. 6-CA-13914. The charges, as amended, alleged, inter
alia, that ABI, ABA, and Harrisburg Drywall refused to
bargain with Keystone as representative selected and
designated by an employee majority.
C. Concluding Findings
1. The 10(b) Issue.
The threshold question is whether the 10(b) defense
was raised by Respondents in timely fashion.
Respondents failed to affirmatively raise the 10(b)
defense in its various answers. It nevertheless sought
. dismissal on that ground prior to the conclusion of the
General Counsel's case. Based thereon, at that time, the
General Counsel and Charging Parties were apprised by
the undersigned that they would be afforded latitude in
meeting that defense during the hearing. Accordingly,
any possible prejudice in consequence of belated
injection of the 10(b) issue was removed, and the
undersigned ruled that the defense was viable and a
proper subject for litigation.'*
'‘* Having ruled in Respondents’ favor in this regard, Respondents
later moved to amend its answers to this effect. The undersigned
ruled that such action was unnecessary, as a matter of substance, in
view of the ruling set forth in the above text and also improper in the
circumstances. Respondents also contended that under the Federal
Rules of Civil Procedure, pleadings may be amended to conform with re-
spect to issues tried ‘‘by express or implied consent of the parties .. ."’.
In this respect, Respondents rely on the fact that as evidence
supporting the 10(b) defense was elicited without objection by either
the General Counsel or Charging Parties, this constitutues ‘implied
consent."’ Although the issue need not be reached, I find no merit in
this view. I am not convinced that the facts in question were
introduced under conditions conveying knowledge, appreciation,
understanding, or suspicion, that they might be seized upon later to
support the 10(b) defense.
A54
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
The General Counsel and Charging Parties seek
reconsideration of this ruling. However, contrary to their
view, those asserting the 10(b) defense assume no
obligation that it be pleaded affirmatively. It is sufficient
that the matter be raised in timely fashion. See e.g.,
Vitronic Division of Penn Corporation, 239 NLRB 45. In
this instance, the matter was raised at a time and under
conditions which permitted litigation of the matter
without prejudice to the parties, and without undo
prolongation of the proceeding. The ruling made in this
regard at the hearing is reaffirmed.
Section 10(b) of the Act precludes the maintenance of a
complaint upon conduct occuring ‘‘more than six months
prior to the filing of the charge.’’ Harrisburg Drywall
plainly was engaged in operations well in advance of the
10(b) period. However, the onus was upon Respondents
to demonstrate that the Charging Parties were aware
that ABI was engaging in actionable conduct through
Harrisburg Drywall more than 6 months before the filing
of the charges herein. In this connection, undenied
evidence establishes that Harrisburg Drywall was
operating non-union and that Keystone was aware
Western suspected this fact more than 6 months before
filing the charges that formed the predicate for this
proceeding. Thus, with respect to Keystone the initial
charge herein was filed on August 10, 1979. Robert Getz,
the secretary-treasurer of Keystone, testified in the
arbitration proceeding on July 6, 1979, that in 1977, a
union member, Ortega, complained about wages he was
receiving from Harrisburg Drywall and that Bryant was
A55
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
operating an open shop.'* Getz acknowledged that this
was confirmed through his investigation in January 1979
of health and welfare records reflecting contributions of
union members that he knew to be working full-time
under Bryant’s aegis but were not receiving full-time
credits. He further testified that on questioning the
members as to the amount of hours they were working,
he learned that they had been working part-time for
Harrisburg Drywall.'*
With respect to Western, the initial unfair labor
practice charge was filed on October 3, 1979. Insofar as
this record discloses, Western acquired knowledge of
Harrisburg Drywall in connection with a subcontract
awarded by the State of Pennsylvania to that firm on the
Polk Center located in Venango County, Pennsylvania, a
site within the geographic jurisdiction of the latter.
Respondents point to the testimony of George Garfield,
a business representative of Western in this connection.
Garfield testified that he noticed from a “Dodge
Report’’’’ that Harrisburg Drywall had the job at Polk.
He telephoned the number appearing and the person
answering the phone identified himself as Al Bryant.
‘In addition to the foregoing, Richard W. Martz, a business agent
for Keystone testified before the arbitrator on July 6, 1979 that he
first learned that Bryant was operating two shops when Ortega
his complaint in 1977.
'* George Gulliver, the son-in-law of Getz, testified that he was hired
by ABI in August 1978 and further confirmed that on November 19,
1978, after receiving his first paycheck from Harrisburg Drywall, he
informed Getz that he had worked for Harrisburg Drywall, and that
from this discussion, it was evident that Getz already knew that
Harrisburg Drywall was non-union.
‘The “Dodge Report” is a publication, identifying contractors and
subcontractors on contracts let in the construction industry.
A56
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
Bryant was asked if he wouldmeed union personnel on
the job, and replied that he would not, because he was
doing the job under Harrisburg Drywall. Garfield
indicated that the job should be performed under
Western's contract with CPSA. According to Garfield,
Bryant did not “seem to agree.” According to Garfield,
it was not until June 1979, and subsequent to this
conversation that work on the Polk Center job actually
commenced. On cross-examination, Garfield placed the
telephone conversation with Bryant as preceding visits
to the job site which occurred approximately in January
1979.
Garfield's testimony must be considered together with
that of Robert Argentine, Western’s executive manager.
Argentine testified that Garfield reported that the Polk
job was being performed by Al Bryant doing business as
Harrisburg Drywall. Because Argentine was informed by
Garfield that “he hadn’t been able to do much with
him ...” toward the end of May, on or about May 23,
1979, he spoke with Bryant on the telephone. Argentine
advised that he expected him to honor the contract at
Polk Center and was informed that Bryant had let the
job to Harrisburg Drywall. Argentine expressed that this
was in violation of the contract, and threatened to “push
it to any extreme ... to see that our contract was
enforced.’’ When Argentine observed that the prevailing
rate had to be paid on the job anyway, and appealed that
it be performed consistent with the contract, Bryant
allegedly responded ‘‘I’ll get back to you.” Bryant never
again contacted Argentine, who prior to the filing of the
charges made several unsuccessful attempts to reach
Bryant.
A57
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
With respect to Western, the evidence does not
substantiate that the latter was apprised of actionable
unfair labor practice until within the 10(b) period. The
10(b) cut-off date with respect to this Charging Party
was April 3, 1979. The record does not permit a firm
finding that Harrisburg Drywall commenced work at the
Polk job as of that date. Obviously, no arguable unfair
labor practice would inure until such time as Harrisburg
Drywall commenced operations under employment terms
distinct from those in the CPSA contract with Western.
The declaration by Bryant of his intention to perform
that job on a non-union basis was not an actionable
unfair labor practice and hence did not activate the
6-month limitation.'"* Furthermore, the indication by
Bryant in the May telephone conversation with
Argentine that he would get back to him, at a very
minimum, conveyed to Western the possibility that there
would be further consideration of its demand with
respect to the Polk job. In sum, it is concluded that
Respondent has failed to meet its burden of proving that
Charging Party Western was put on notice of any unfair
labor practices committed by ABI through Harrisburg
Drywall on or before April 3, 1979.
Unlike the situation with Western, however, it is clear
that Harrisburg Drywall had performed on a non-union
basis within the geographic jurisdiction of Keystone and
that Keystone representatives were aware thereof, more
than 6 months prior to the filing of its unfair labor
practice charge. In the face of the foregoing, the General
Counsel contends that Section 10(b), nonetheless, does
* See e.g., City Roofing Co., 222 NLRB 786, ftn. 1 and California
School of Professional Psychology, 227 NLRB 1657, ftn. 1.
A58
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
not constitute a substantial defense, inasmuch as the
violation was a continuing one, and (2) the facts within
Keystone’s knowledge did not constitute clear an
unequivocal notice, inasmuch as Keystone was not aware
of all the elements establishing that Harrisburg Drywall
and ABI constituted a single employer, and indeed had
been mislead with respect to such matters by Al Bryant
himself.
With respect to (2) above, it is noted that Bryant
himself testified that after Ortega had complained to
Keystone he received a visit from Keystone
representatives Martz and Getz. What transpired on that
occasion was related by Bryant as follows:
All right, they came to my office and said that
they had a complaint from a Mr. Ortega that he was
paid less than scale by Harrisburg Drywall.
I explained to them that I had nothing to do with
Harrisburg Drywall, they said well, you own it, and
I said yes, I do own it but I don’t run it, I have
nothing to do with it.
ey ended up the discussion with me saying
Py, Bercverllny Caper fests about if he
was working for an open shop company, then he has
no valid claim that he was paid less than union
scale, because Harrisburg Drywall is not affiliated
and went back and as they told me they were going
to tell him that he was not entitled to any additional
funds and that there was no complaint against Al
Bryant, Incorporated but would I please do what I
could as the owner of Harrisburg Drywall to see
that it did not use union—members of the union on
their work.
A59
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
This representation by Bryant, if true, would tend
strongly to exonerate Harrisburg Drywall from any
bargaining obligation under the Act or any unfair labor
practices in continuing to operate non-union. “The Board
has pointed out that common ownership, by itself is not
sufficient ... [to establish single employer status].'’ See
United Constructors and Goodwin Construction Co., 233
NLRB ,904. Furthermore, as shall be seen, Bryant had
far more to do with the operations of Harrisburg Drywall
than his own testimony indicates that he conveyed to
union officials in connection with the Ortega matter.
Furthermore, the evidence does not disclose that more
accurate information regarding Bryant’s involvement
came into the hands of Keystone prior to the 10(b) cutoff
date. Relevant to the question presented is the Board’s
statement in Don Burgess Construction Corporation, 227
NLRB 765, 766, to the effect that: “it has long been
recognized that when a party has been injured by fraud
and remains in ignorance of it without any fault or want
of diligence or care on his part, the bar of the statute
does not begin to run until the fraud is discovered. .. .’’
On balance, however, I am not convinced that such an
extension is warranted here. Prior to the 10(b) cutoff
date, Keystone was mindful that its members had been
employed by Harrisburg Drywall, that Harrisburg
Drywall had performed work covered by the
CPSA contract, that Harrisburg Drywall had
not adhered to the terms of that contract,
and that Al Bryant owned Harrisburg Drywall. Those
facts were in no way influenced by any representation
made by Bryant and objectively viewed would strongly
have suggested possible illegality in Harrisburg
A60
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
Drywall’s operations.’ Anomally would result if Section
10(b) were interpreted as tolling the limitation on the
basis of an exculpatory statement by the perpetrator of
unfair labor practices. For example, in virtually all
discriminatory discharge cases, the employer represents
to the discriminatee that the discipline imposed was for a
legitimate reason. The fact that this is later shown to be
pretextual and false could not possibly serve to
neutralize Section 10(b) without eliminating completely
the 6-month limitation in most discharge cases. The
representation attributed to Bryant is no more egregious,
and I find that it did not rise to the level of fraud which
would warrant rejection of the 10(b) defense.
Nonetheless, the inquiry does not end here, for the
General Counsel contends in the alternative that the
abnegation of obligations by an employer or labor
organization under a collective bargaining agreement
constitutes a continuing violation for purposes of Section
10(b). Under this approach, though statutory relief will
not extend beyond the 10(b) cut-off date, the fact that
initial repudiation of the agreement occurred prior
thereto, does not absolve a Respondent from the unfair
labor practices which inure from its continuing failure
* No precedent is called to my attention requiring the offended party
to be aware of all factual elements substantiating an unfair labor
practice before the 10(b) period begins to run. All that is required is
that the “act’’ giving rise to unlawful conduct be known. To require
more would reduce 10(b) to the meaningless. does an
conduct are unknown to the moving party.
A61
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
within the 10(b) period, on demand, to execute or
formerly abide by such agreement. See e.g., Torrington
Construction Company, Inc., 235 NLRB 1540, ftn. 2. In
the instant case, by letter dated March 19, 1979,
Keystone, through its attorney, informed Bryant that
Harrisburg Drywall was covered by the applicable
agreement, and that it was obligated to adhere to the
terms thereof.” By virtue thereof, and Bryant’s failure to
satisfy the demand, I find that the alleged violation, to
the extent predicated upon events on and after March
19, 1979, were within the 10(b) period and are actionable
in this proceeding.
2. ABI’s Obligation Under CPSA Agreements
” The crucial predicate for the allegations in the instant
complaints is that ABI was contractually bound to
CPSA agreements with Western and Keystone.
Respondents deny this to have been the case and if that
view is valid no violations would inure even if ABI,
Harrisburg Drywall and ABA, constituted a single,
integrated employer within the meaning of the Act.
As indicated Keystone and Western both enjoy a
bargaining history on a multi-employer basis with
employers who negotiate through CPSA as their agent
for such purposes. With respect to Keystone, CPSA
executes separate agreements for ‘“‘carpenters’’ and other
members of the carpenters union who are engaged in the
apparently less skilled ‘floor layer’’ classification. As to
Keystone, Al Bryant conceded that he authorized CPSA
to bargain on behalf of ABI with respect to soft floor
* See General Counsel Exhibit 9.
A62
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
layers, but not the ‘‘carpenters’’ on whose behalf this
proceeding is being maintained. Bryant went on to
testify that although ABI is a “union contractor”,
functioning within the geographic jurisdiction of
Keystone and Western, ABI had never become bound to
either labor organization's contract with CPSA covering
‘carpenters’.
Undisputed, believable evidence establishes that CPSA
is an organization which includes as members
subcontractors in the construction industry as well as
others who are not engaged directly in construction work
but who have interests in that industry. The
responsibilities of CPSA include, but are not limited to
negotiating collective bargaining agreements with
various crafts represented by building trade unions.
Although undocumented, I find that CPSA’'s
negotiations with various labor organizations were
binding only upon those of its employer-members who
had afforded prior, written authorization of their
intention to be bound. Although ABI, at least since
1972, had been a member of CPSA, Bryant claims that
he at no time executed such an authorization with
respect to the carpentry craft as represented by either
Keystone or Western. For the reasons set forth below, I
discredit Bryant's testimony in this regard.
Bryant admitted that ABI was a proper party to and
bound by CPSA’s negotiations with respect to soft
layers. Though he acknowledged that ABI utilized
soft floor layers, and “‘carpenters’’, and indeed used the
same individuals to perform both types of work, paying
the rates under the appropriate CPSA contract as the
work of these individuals shifted between the
A63
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
jurisdictional coverage of the agreements, no explanation
was offered as to why ABI would have authorized CPSA
as to one but not the other.
More critical, however, is Bryant’s admitted role in the
affairs of CPSA as they related to Keystone. At that
time of the hearing, Bryant was a director of CPSA and
had occupied that position ‘‘a couple of years’’. He was
president of CPSA when CPSA on April 18, 1977,
executed a memorandum agreement with Keystone,
renewing the terms of an existing contract to April 30,
1982. Al Bryant was not only spokesman for CPSA at
the time, but alone negotiated the agreement binding
upon certain CPSA employer-members. Thus, Bryant, in
his testimony in this proceeding portrays himself as
having used his position within CPSA to negotiate an
agreement binding upon organized competitors, but not
his own firm. Prior to the execution of that document,
Bryant, by letter dated April 15, 1977, wrote Robert
Getz, secretary-treasurer of Keystone, pertaining to
those negotiations, requesting a minor change, which
was justified in Bryant’s own words, as follows:
Bob, as I explained, we as subcontractors can not
sign an agreement stipulating that we will perform
“all the work”’ in view of the fact that we have no
control over the distribution of all the work. We can,
however, agree to perform and/or subcontract that
work which we obtained, which is all the work we
actually control.
A64
Appendix 4 —Opinion of the Administrative Law
Judge of July 27, 1981.
If this meets with your approval, please call me and
we will arrange to sit down and execute the new
agreement.”
Following execution of the agreement Orin Remsnyder,
the executive director of CPSA, by letter date May 12,
1977, informed Keystone of the employer-members
bound both to the “carpenter” and ‘floor layer”
agreements.” Al Bryant, Inc. was listed in both
categories. Bryant acknowledged having received a copy
of this letter.
The Remsnyder letter is of course highly material to
Respondents’ denial of any contractual commitment with
respect to the ‘“carpenter’’ agreement. Suspicion was
hardly allayed by Bryant’s reaction when he was asked
to identify this document at the hearing. At that time
the following colloquy took place:
Q. (By Mr. Franckiewicz) I’m showing you what's
been marked General Counsel’s Exhibit 7, would you
tell us what that is please?
This is a letter which Orin Remsnyder of C.P.S.A..,
sent to Mr. Getz, with a copy to you, is that
correct?
MR. BECKLEY: Objection to the form of the
question, it presupposes a true statement.
THE WITNESS: I have no record.
* See General Counsel Exhibit 6. In all, the first person plural was
used 7 times by Bryant in this passage.
* See General Counsel Exhibit 7.
A65
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
Q. (By Mr. Franckiewicz) This is a copy you
received of a letter signed by Mr. Remsnyder is that
correct?
MR. BECKLEY: Objection to the form of the
question.
JUDGE HARMATZ: Why dont you'ask him to
identify it.
Q. (By Mr. Franckiewicz) What is this?
A. It appears to be a letter from Mr. Remsnyder to
Mr. Getz, listing those people that are in signed
agreement for the Carpenters and the Soft Floor
Layers.
Q. Okay, and you will notice the carbon copy to Al
Bryant at the bottom?
A. I notice it, but I have no record of having
received it.
Q. All right, at the arbitration proceeding, did you
testify about this letter?
A. I didn’t, no.
Q. Let me see if I can refresh your memory. As a
matter of—
JUDGE HARMATZ: Let him show you the
transcript
THE WITNESS: Yeah, okay.
Q. (By Mr. Franckiewicz) Now, on General
Counsel's exhibit 7, you will notice that I have
scratched out Union exhibit 3, this was Union
exhibit 3 at the arbitration?
A66
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
A. Right.
Q. And you were asked—
MR. BECKLEY: Would you tell vs please, what
your are referring to?
MR. FRANCKIEWICZ: Page 58.
Q. (By Mr. Franckiewicz) You were asked if you
got a copy of that letter marked Union exhibit 3,
that shows a cc at the bottom?
A. Yes.
Q. And you testified yes?
A. Right.
MR. BECKLEY: He's doing it again, sir, let the
witness read on with the testimony.
MR. FRANCKIEWICZ: I'm willing to go on
with the rest of the page, I will read it from the
record.
MR. BECKLEY: Yes, please do that this time.
MR. FRANCKIEWICZ: All right, and _ the
witness was then asked, ‘‘You did receive a copy of
that?”’
“A. I assume so.”
Continuing, ‘“‘Do you notice Al Bryant’s name
listed?” ““Yes, I do.”’
“Q. On both Soft Floor and for Carpenters?”’
“8. Yes.”
A67
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
“Q. Did you ever object to that?”’
a, oa
“Q. When?”
“A. To Mr. Remsnyder, when I received the
letter.”
Any further that you want me to go? I think I've
covered it all.
MR. BECKLEY: I think we could have it
xeroxed, and the rest of it put in.
MR. FRANCKIEWICZ: Well, it’s already in, I
offer General Counsel's exhibit 7.
JUDGE HARMATZ: You couldn't have been
mistaken that you had objected to the name of your
firm appearing on that letter?
THE WITNESS: No, that I couldn’t have been
mistaken.
JUDGE HARMATZ: Okay, and it was the fact
that your firm was listed in that letter, that made
you object?
THE WITNESS: That’s correct, sir.
JUDGE HARMATZ: So you must have received
a copy of that letter?
THE WITNESS: Well, that’s why, as_ the
conversation started, I started to say something
that I remembered a discussion about it, but then I
didn’t know whether I was going to be talking about
the wrong thing, very frankly.
A68
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
JUDGE HARMATZ: Now, with the refreshing
of your recollection,—
THE WITNESS: Yes, sir.
JUDGE HARMATZ: You are positive that you
received a copy?
THE WITNESS: I'm positive I received it.
JUDGE HARMATZ: What is marked as General
Counsel's 7?
THE WITNESS: Yes, sir.
JUDGE HARMATZ:. Okay, so be it.
As indicated in the above extract from the transcript,
Bryant claimed that when he received a copy of
Remsnyder’s letter, he immediately protested, not to
Keystone, but to Remsnyder. Bryant further testified
that Remsnyder was instructed to notify the Union that
CPSA lacked authority to bargain for ABI and that
Remsnyder assured Bryant that he would do so.
In assessing the credulity of this explanation it is of
interest that Bryant himself had been involved in the
process of responding to Keystone’s requests for the
very information that was contained in the Remsnyder
letter. Thus, by letter dated April 18, 1977, Bryant wrote
Keystone as follows:
Attached is a signed copy of the new Agreement
between CPSA and the Keystone District Council of
Carpenters. As you know, CPSA is signing on behalf
of those employers who have given us bargaining
A69
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
rights. Since I do not have a copy of the bargaining
rights in my office, I will send you a list of the
contractors and a photocopy of the bargaining
rights as soon as Orin Remsnyder returns from the
convention in California (next week).
cc: CPSA Office
Bryant obviously chose not to inform Keystone of the
status of ABI at that time.
Remsnyder, in an attempt to corroborate Bryant,
testified that at the time he prepared his subsequent
May 12, letter, he was very new on the job, and did not
understand the nature of Keystone’s “‘repeated’’ requests
for a listing, of CPSA members bound to the new
agreement. He claims not to have really known how to
respond to Keystone. Remsnyder claimed to have
obtained this information, not from Bryant, the president
of CPSA, who himself had testified that he alone
negotiated the contract,” but from Marlin Slough, a
director and member of CPSA.*
* As indicated, a copy of Bryant’s April 18 letter to Keystone
concerning such a listing was sent to ‘“CPSA office’. See General
Counsel Exh. 8.
* Remsnyder testified that the 1977 negotiations were conducted on
behalf of CPSA by Chief Negotiator Marlin Slough. His testimony in
this regard conflicts with Bryant’s own acknowledgement that he
alone negotiated the 1977 agreement with Keystone. Slough did not
testify. I did not believe Remsnyder, and regard it as somewhat
extraordinary that he would consult in preparing the list with anyone
other than Bryant himself, who as president of CPSA alone had
negotiated the agreement and who had written the Union that
submission of this very list would be deferred until Remsnyder’s
return.
A70
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
Remsnyder further testified, that having forwarded a
copy of the May 16 letter to Bryant, he received a
telephone call from the latter. Bryant assertedly
informed “that he had not given CPSA his bargaining
authorization at that time...’’*, whereupon, Remsnyder
claimed to have searched CPSA’s files and found no
bargaining authorization from Bryant. Beyond that,
Remsnyder initially testified that he ‘thought’ that
Bryant asked him to inform the Union of this fact, and
that he ‘“‘thought’’ that he did contract Getz as
directed.”
A further fact casting doubt upon the veracity of
Remsnyder in this respect emerges from Respondents
claim that CPSA had not been authorized by ABI to
bargain with respect to ‘‘carpenters’’ with any labor
organization, including Western. Unexplained, is the fact
that Remsnyder, who would have me believe that he
made a critical error in 1977 by including ABI in the list
of employers bound to the Keystone negotiations,
apparently repeated that mistake in 1978, when a similar
list was delivered by Remsnyder to Western in
connection with CPSA’s negotiation with that labor
organization. Again ABI was listed as among the
contractors having authorized CPSA to bind them with
respect to a contract convering carpenters.”’ Unlike what
** Remsnyder testified that, though he had been employed by CPSA
since July 1976, he had not known previously information that
bargaining authorizations were required before any employer-member
could be bound to the results of CPSA’s negotiations with various
labor organizations.
** Getz denied ever having received such information from any source.
I credit Getz over Remsnyder in this regard. Remsnyder did not
impress as having independent recollection of such matters, and in
any event he was regarded as an unreliable witness.
*" See General Counsel Exhibit 26.
A7l1
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
transpired a year earlier, Remsnyder affords no
explanation as to why ABI was included on the 1978
listing, or whether or not he cleared this matter with Al
Bryant before doing so.
With respect to Western, the denial by Bryant that
ABI had duly authorized CPSA to bind itself is totally
lacking in corroboration. According to _ the
uncontradicted testimony of Robert Argentine,
Western’s executive manager, CPSA first negotiated on
behalf of its employer-members with Western in 1972.
Subsequent negotiations in 1975 and 1978 produced
renewal agreements with the most recent expiring in
1981. Nancy Linn Shaffer was the chief spokesman for
CPSA in 1975, At the request of Western in 1975,
Shaffer provided a list of the contractors represented by
CPSA at the time. ABI was listed among the
‘‘...employers who have granted bargaining
authorizations to CPSA for the 20 county District
Council Carpenters of Western Pennsylvania
Agreement.’ During the 1978 negotiations Orin
Remsnyder was the chief spokesman on behalf of CPSA.
In the course of negotiations a list of the contracting
firms represented by CPSA was requested by Western
and provided by CPSA. ABI was included on the list.”
No claim was registered herein that ABI was included on
the 1975 and 1978 listings erroneously.” Nor is there
** See General Counsel Exhibit 25.
** See General Counsel Exhibit 26.
*In the circumstances, I find the entries on General Counsel's
Exhibits 25 and 26 to be binding upon the Respondents.
Uncontradicted evidence establishes that CPSA delivered the listings
in question to Argentine in the course of CPSA’s negotiations with
Western in 1975 and 1978. With respect to the 1978 negotiations,
(Footnote continued on following page)
A72
Appendix A—Opinion of the Administrative Law
Judge of July 27, 1981.
evidence that ABI had ever notified CPSA or Western
that it had not designated CPSA to bargain in its behalf
with that labor organization.”'
While I reject as unbelievable the testimony of Bryant
and Remsnyder to the effect that CPSA held no written
authorization to bind ABI to negotiated bargaining
agreements with Keystone and Western pertaining to
conditions of work of “carpenters’’, the assertion that
ABI was bound to such agreements is maintainable on
other grounds as well. Thus, under settled Board
authority, an employer may be deemed bound by results
of multi-employer negotiations, even though express
authorization of bargaining authority be withheld, and
the employer had not signed the contract, if the
employer's conduct manifested an intention to be
bound.” The instant cause presents a strong context for
(Footnote continued from preceding page)
Remsnyder's own testimony confirms that, as of that time, he would
have been aware of the significance of listing an employer that had
failed to authorize CPSA to bargain on its behalf. Furthermore,
Remsnyder was available to testify to any circumstances beclouding
the authenticity of General Counsel's Exhibit 26. A circumstantial
chain exists which is corroborative, through inference, of the accuracy
thereof. Furthermore, as CPSA negotiates agreements binding upon
employers executing proper written authorizations as a regular part
of its operations, one might rightfully assume that General Counsel's
Exhibit 26 found its origin in business records regularly maintained
by CP
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