N.L.R.B. v. C.K. Smith & Co., Inc.

• Decision Date: 28 December 1977
• Docket Number: No. 77-1152,77-1152
• Citation: 569 F.2d 162
• Parties: 97 L.R.R.M. (BNA) 2460, 83 Lab.Cas. P 10,298 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. C. K. SMITH & CO., INC., and Buckley Heating Co., Inc., (Gasoline Division), Respondents.
• Court: U.S. Court of Appeals — First Circuit

Page 162

569 F.2d 162

97 L.R.R.M. (BNA) 2460, 83 Lab.Cas. P 10,298

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. C. K. SMITH & CO., INC., and Buckley Heating Co., Inc., (Gasoline Division), Respondents.

No. 77-1152.

United States Court of Appeals, First Circuit.

Argued Sept. 13, 1977.

Decided Dec. 28, 1977.

Michael S. Winer, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Judith P. Wilkenfield, Atty., Washington, D. C., were on brief, for petitioner.

Paul J. Kingston, Boston, Mass., with whom Robert W. Garrett, Paul V. Mulkern, Jr., and Thompson & Kingston, Boston Mass., were on brief, for respondents.

Before COFFIN, Chief Judge, TUTTLE, Circuit Judge, ^* CAMPBELL, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

The National Labor Relations Board petitions for enforcement of an order that requires, inter alia, that respondents C. K. Smith & Co. and Buckley Heating Co. cease and desist from committing certain unfair labor practices and reinstate employees who were replaced during a strike at the companies' common premises.

The Board's order is premised on a finding that the respondents, though separately incorporated, constitute a single "employer" within the meaning of the Act, with each corporation thus responsible for the other's unfair labor practices and with the employees of each commonly protected. We turn first to the companies' challenge to the Board's resolution of this threshold question.

The Administrative Law Judge (hereinafter ALJ), whose findings the Board adopted, found that both corporations are commonly owned and share the same premises in Worcester, Massachusetts, where they have their offices and conduct their business. Both corporations are engaged in the "sale and distribution of . . . oil and related products" with Smith engaged in the retail end of the business and Buckley engaged in wholesale sales. The daily operations and labor relations of both companies are managed by the same people who hold the same offices in both firms. The ALJ also found that "in the handling of labor relations matters for one Respondent, concern is given for the effect of such labor relations on the other Respondent."

The Supreme Court has said that, for purposes of determining "single employer" status "(t)he controlling criteria, set out and elaborated in Board decisions, are interrelation of operations, common management, centralized control of labor relations and common ownership."

Radio Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965). See, e. g., Western Union Corp., 224 N.L.R.B. 274, 276 (1976); Sakrete of Northern California, Inc., 137 N.L.R.B. 1220, 1222 (1962), enforced, 332 F.2d 902 (9th Cir. 1964). See also South Prairie Construction Co. v. Operating Engineers Local 67, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1975). The Board's conclusion that two corporations constitute a "single employer" is "essentially a factual one" and not to be disturbed provided substantial evidence in the record supports the Board's findings. NLRB v. R. L. Sweet Lumber Co., 515 F.2d 785, 793 (10th Cir.), cert. denied, 423 U.S. 986, 96 S.Ct. 393, 46 L.Ed.2d 302 (1975). Accord, Newspaper Production Co. v. NLRB, 503 F.2d 821, 827 (5th Cir. 1974).

Respondents do not contest the findings of common ownership, common management and common control of labor relations. Rather they cite various factors which, they say, show that the two firms' operations are not integrated, such as the existence of separate bargaining units and a lack of evidence showing combined accounting records and bank accounts. But there was sufficient other evidence for the Board to find a unified operation. The sharing of common premises is a factor probative of integrated operations. Marine Welding & Repair Works, Inc. v. NLRB, 439 F.2d 395, 397 (8th Cir. 1971); NLRB v. Jordan Bus Co., 380 F.2d 219, 222 (10th Cir. 1967). The sale of essentially similar products via similar distribution methods is also probative of integration. See Sakrete of Northern California, Inc., supra,332 F.2d at 906. And, while the Board's General Counsel had the burden of proving integrated operations, the ALJ could take into account that respondents had primary access to whatever evidence might exist to refute the claim. Not only did they fail to produce evidence capable of rebutting the inferences to be drawn from the evidence introduced by the General Counsel, but, the ALJ noted, their attorney had even retreated without explanation from an earlier agreement to stipulate to facts that might be material to the single employer issue. We find ample basis for the conclusion that "the facts reveal in effect one enterprise with divisions of the same engaged in 'wholesale' and 'retail' distribution of oil and related products."

On the premise, therefore, that the two firms constituted one employer, we turn to the unfair labor practices alleged. During March and April 1974, Buckley had a collective bargaining relationship with Teamsters Local 170, representing about twelve wholesale drivers. Smith had a bargaining relationship with the same union representing a unit made up of its three retail drivers. And, in March 1974, the six employees in what is termed the "Smith mechanics unit" began organizing in league with Local 170. In findings that are not appealed, the Board found that in the spring of 1974 Smith's president violated § 8(a)(5) & (1) by bargaining individually with retail drivers unit employees during contract negotiations with the union. The Board also found that Smith's officials coercively interrogated and threatened mechanics unit employees during the union organizing campaign. It was also found that the employer had recognized the union as the mechanics' bargaining agent and then had unlawfully withdrawn recognition.

On April 29, 1974, the wholesale drivers, the retail drivers and the mechanics "ceased work concertedly and went out on strike." The strike lasted until July 8. The mechanics led the walkout, having voted to strike after learning of Smith's withdrawal of recognition. The retail drivers, the ALJ found,

"struck in support of the 'mechanics' who were engaged in an unfair labor practice strike and because of a belief that the Respondents would not negotiate as to the 'retail drivers' contract as long as there was trouble with the mechanics."

The ALJ went on to state,

"The only evidence, other than the facts previously set forth, relating to the motivation for the striking activities of the Buckley wholesale drivers on April 29, 1974, through July 8, 1974, consists of the Union's filing of an unfair labor practice charge contending that such employees were 'locked out,' Gentile's testimonial denial in effect that such employees were 'striking,' and Gentile's testimony to the effect that such employees in effect honored the picket line."

The ALJ and the Board, concluded,

"In sum, the evidence . . . reveals that the 'wholesale drivers' struck in sympathy with the 'mechanics' unit employees in an unfair labor practice strike."

The Local's representative, Gentile, repeatedly testified that the reason the wholesale drivers did not work on April 29 was their refusal to cross the mechanics' picket line. This testimony, together with the common locus and employment, the fact that the same local represented the two dozen men in the three bargaining units, and the concerted timing of the wholesale drivers' action, which began and ended at the same time as the mechanics' strike, entitled the Board to infer that the wholesale drivers "struck in sympathy" with the mechanics. Indeed, no other explanation can easily be imagined. We see no merit in the employer's claim that there was no causal nexus between the unfair labor practices committed against the mechanics and the wholesale drivers' strike. To be sure, the business agent of Local 170 testified, perhaps disingenuously, that the wholesale drivers were not "striking" at all but were simply observing the other bargaining unit's picket line. On these facts, the distinction is without a difference; however the wholesale drivers' walkout is characterized, the inference that it amounted to a sympathy strike, maintained in support of the mechanics' grievances, is reasonable.

Even so assuming, however, the respondents maintain that the Board erred in conferring unfair labor practice status on the wholesale drivers, and in ordering their reinstatement irrespective of whether the employer had replaced them out of economic necessity. They contend that a sympathy strike is unprotected by § 7. ¹ But the sympathy strike here was by employees of a common employer. Such a strike by employees against a common employer and in support of coworkers is "concerted activit(y) for . . . mutual aid or protection". See Newspaper Production Co., supra, 503 F.2d at 830; General Tire & Rubber Co. v. NLRB, 451 F.2d 257, 258 (1st Cir. 1971); NLRB v. Union Carbide Corp., 440 F.2d 54, 55-56 (4th Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 58, 30 L.Ed.2d 55 (1971); NLRB v. Difco Laboratories, Inc., 427 F.2d 170, 171-72 (6th Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 66, 27 L.Ed.2d 65 (1970); NLRB v. Southern Greyhound Lines, 426 F.2d 1299, 1301 (5th Cir. 1970). And it has been the Board's policy that where such a sympathy striker supports an unfair labor practice strike against a common employer, the sympathy striker enjoys the same reinstatement rights as the primary striker. Pilot Freight Carriers, Inc., 224 N.L.R.B. 341, 342 (1976); Hoffman Beverage Co., 163 N.L.R.B. 981, 982 (1967).

In determining whether striking employees are entitled to reinstatement, the Board's duty is to balance their interests in the free exercise of their § 7 right against the employer's legitimate business reasons for...