Davis v. HUTTIG SASH AND DOOR COMPANY

• Decision Date: 20 June 1968
• Docket Number: Civ. No. 68-92.
• Citation: 288 F. Supp. 82
• Parties: Elmer DAVIS, Regional Director of the Sixteenth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HUTTIG SASH AND DOOR COMPANY, H S D Corporation, and Lumbermen's Supply Company, Respondents.
• Court: U.S. District Court — Western District of Oklahoma

288 F. Supp. 82

Elmer DAVIS, Regional Director of the Sixteenth Region of the National Labor Relations Board, for and on Behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HUTTIG SASH AND DOOR COMPANY, H S D Corporation, and Lumbermen's Supply Company, Respondents.

Civ. No. 68-92.

United States District Court W. D. Oklahoma.

June 20, 1968.

Evert P. Rhea, Fort Worth, Tex., for petitioner.

Asa Ambrister, Nashville, Tenn., George v. Gardner, Washington, D. C., John Amick, Oklahoma City, Okl., for respondents.

MEMORANDUM OPINION

DAUGHERTY, District Judge.

The Petitioner seeks a temporary injunction against the Respondents pursuant to Section 10(j) of the National Labor Relations Act, as amended, (Act), 61 Stat. 149; 29 U.S.C. § 160(j), pending final disposition of the matters involved herein which are before the National Labor Relations Board (Board) on several complaints. The Petitioner claims that the Defendants are engaging in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act, 29 U.S.C. § 158(a) (1) and (5). These sections prohibit an employer from interfering with, restraining, or coercing its employees in the exercise of their rights under the Act, and from failing or refusing to bargain in good faith with the collective bargaining representative of its employees.

On or about September 28, 1967, the majority of the employees of Lumbermens Supply Company (Lumbermens) designated the Chauffeurs and Helpers Local Union 886 (Union), affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Teamsters), as their representative for the purposes of collective bargaining with Lumbermens. On October 6, 1967, the Petitioner certified the Union as the exclusive collective bargaining representative of said employees. On or about November 1, 1967, the Defendant, H S D Corporation, (H S D) purchased Lumbermens. By an amendment to Articles of Incorporation the name was then changed to Lumbermen's Supply Company (Lumbermen's), an apostrophe being added to the said name. The Defendant, Huttig Sash and Door Company (Huttig) appears to own Lumbermen's and H S D.

At the evidentiary hearing on the Petition for Temporary Injunction, the Defendants admitted refusal to recognize and meet with the Union. In resisting the Petition herein, the Respondents urged, (1) that the Defendant Lumbermen's is not a successor employer of the original Lumbermens, as to whom the Union had been so certified, and that no duty therefore existed as to it to recognize and meet with the Union, (2) that the truck drivers of Lumbermens could not appropriately be included in a bargaining unit with the warehouse and production employees of Lumbermens, and, (3) that the Petitioner has not made the requisite showing of a need for the injunctive relief sought herein.

From the evidence presented, the Court is satisfied that the Respondent Lumbermen's is the successor of the original Lumbermens within the meaning of the Act and as such it had the duty to recognize and meet with the Union pursuant to the said certification of October 6, 1967. The purchase of the original Lumbermens by the Respondent, H S D, included approximately 90% of the inventory, all fixtures, furniture, stationery, check writer, the name (which it changed slightly), most of the machinery except some tools and all customers and records of the original Lumbermens. The same trucks are used and leased from the same rental agency, the same building is leased and occupied, the same equipment is used except a frame mounted door machine has been placed in production, all outstanding accounts receivable of Lumbermens, though not transferred, are being collected in part by the successor, the same customers are served except a few towns have been assigned to a Tulsa Company owned by Huttig, and all supervisors perform the same duties and the other employees except one have been employed by the successor in the same work and without any loss in remuneration. The following authorities indicate that under this evidence there is successorship in this case; that the aforementioned certification followed the industry of the original Lumbermens to the Respondent, Lumbermen's, and that the said certification therefore applies to the Respondent, Lumbermen's. N. L. R. B. v. McFarland, 306 F.2d 219 (Tenth Cir. 1962); Overnite Transportation Company v. N. L. R. B., 372 F.2d 765 (Fourth Cir. 1967), cert. denied 389 U.S. 838, 88 S.Ct. 59, 19 L.Ed.2d 101; N. L. R. B. v. Downtown Bakery Corp., 330 F.2d 921 (Sixth Cir. 1964); N. L. R. B. v. Auto Ventshade, Inc., 276 F.2d 303 (Fifth Cir. 1960); N. L. R. B. v. Parran, 237 F.2d 373 (Fourth Cir. 1956); N. L. R. B. v. Lunder Shoe Corp., 211 F.2d 284 (First Cir. 1954); N. L. R. B. v. Armato, 199 F.2d 800 (Seventh Cir. 1952); N. L. R. B. v. Blair Quarries, Inc., 152 F.2d 25 (Fourth Cir. 1945). The cases cited by Respondents, N. L. R. B. v. John Stepp's Friendly Ford, Inc., 338 F.2d 833, 835-836 (Ninth Cir. 1964); and N. L. R. B. v. Alamo White Truck Service, 273 F.2d 238 (Fifth Cir. 1959), are clearly distinguishable.

As to the appropriateness of the bargaining unit, there is no evidence before the Court from which the Court may consider the inclusion or exclusion of the drivers. The Petitioner considered the bargaining unit as appropriate as demonstrated by the said certification of October 6, 1967. It seems that regarding this point, a determination should be made on a case by case basis, E. H. Koester Bakery Co., Inc., 136 NLRB 1006, and that drivers may clearly be included in a bargaining unit when appropriate. Since the Respondent did not produce evidence in support of this contention, the Court will indulge in the presumed regularity and legality of the action of the Petitioner in the said certification of October 6, 1967, and case law in which drivers in an operation like Lumbermen's, have been included, Marks Oxygen Company of Alabama, 147 NLRB 228, and conclude that this objection to the temporary injunction is not supported by any evidence and should not be considered in this proceeding.

Section 10(j) of the Act, 29 U.S.C. 160(j), provides:

"(j) The Board shall have power, upon issuance of a complaint as provided in subsection (b) of this section charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper."

The required complaint has been issued. The Defendants admit the refusal to recognize and meet with the Union. This is an unfair labor practice in violation of Section 8(a) (5) of the Act¹ since by virtue of the said certification of October 6, 1967, and the successorship which followed in the sale twenty-five days thereafter and previously discussed herein, the Defendants should have recognized and met with the Union. In addition, the evidence shows that a unilateral wage increase was granted by Respondents without notice or bargaining with the Union in December, 1967. This is an unfair labor practice in violation of Sections 8(a) (1) and (5) of the Act.² Crown Tar and Chemical Workers, Inc. v. N. L. R. B., 10...