Dickey v. National Labor Relations Board, 12236.
| Decision Date | 16 December 1954 |
| Docket Number | No. 12236.,12236. |
| Citation | 217 F.2d 652 |
| Parties | J. W. DICKEY and R. L. Round, Formerly Doing Business as Ohio Hoist and Manufacturing Company, and Ohio Hoist & Manufacturing Co., Inc., a Corporation, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, International Brotherhood of Blacksmiths, Drop Forgers and Helpers, A. F. L., and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, A. F. L., Respondents. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John M. Jarboe, Akron, Ohio, William B. Moore, Lisbon, Ohio, for petitioners.
Samuel M. Singer, Washington, D. C., George J. Bott, David P. Findling, A. Norman Somers, Nancy M. Sherman, Washington, D. C., on brief, for respondent.
Before ALLEN, MARTIN and MILLER, Circuit Judges.
This is a petition to review an order of the National Labor Relations Board entered in proceedings instituted by the International Brotherhood of Blacksmiths, Drop Forgers and Helpers (AFL), hereinafter called the "Blacksmiths," who were the certified bargaining agent of the employees involved. Unfair labor practices under Sections 9 and 10 of the Labor Management Relations Act, 1947, 29 U.S.C., Supplement V, Section 151 et seq., 29 U.S.C.A. § 151 et seq., were charged. The Board in its answer prays for enforcement of the order.
A preliminary question is presented arising from the fact that petitioners, Dickey and Round, were members of a partnership which was dissolved around April 30, 1953, a corporation being formed which took over the operation of the partnership and of which Dickey was the sole owner. The trial examiner found that the corporation was the alter ego of the partnership and was subject to the order of the Board, and this finding was approved by the Board.
Petitioners attack this finding, claiming in effect that under the ruling of the Fourth circuit in Mt. Hope Finishing Co. v. N. L. R. B., 211 F.2d 365, the finding was incorrect. In the Mt. Hope case the business of a Massachusetts corporation was removed from Massachusetts to North Carolina. With respect to the labor controversies involved, the court there found that the North Carolina corporation, formed after the removal of the business from Massachusetts, was not the alter ego of the Massachusetts corporation, largely because the owner of 60% of the stock in the Massachusetts corporation became the sole owner of the North Carolina corporation. In the instant case, Dickey, who was the active partner, became the sole owner of the Ohio Hoist & Manufacturing Co., Inc. For this reason petitioners claim that the Mt. Hope decision is controlling.
We think the cases are clearly distinguishable. Here not only did Dickey perform the same functions in the corporation that he had performed in the partnership, but the personnel remained the same, the corporation occupied the same plant as the partnership and continued to do the same kind of work. With one exception the employees who had worked for the partnership were employed by the corporation. We think these facts amply support the finding that the corporation was a continuance of the partnership. To the same effect are the holdings in this court of N. L. R. B. v. Colten, 105 F.2d 179, 183, and N. L. R. B. v. Fred P. Weissman Co., 170 F.2d 952, 954, which control decision here.
As to the unfair labor practices set forth by the Blacksmiths, ample evidence is presented supporting the decision of the trial examiner and the Board that such practices were indulged in against the Blacksmiths through a lockout, unilateral wage increases, and other coercive acts of petitioners. The important question in the case is presented by the fact that, by amendment made by the Regional Director of the Board, the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (AFL), hereinafter called the "Boilermakers," was substituted for the Blacksmiths in the certification of election. The order of the Board finds that petitioners, hereinafter called the employer, refused to bargain collectively not only with the Blacksmiths but also with the Boilermakers as exclusive bargaining representative of the production and maintenance employees at its Lisbon, Ohio, plant. As to refusal to bargain with both unions the order is supported by the evidence. However, as to the Boilermakers, the order commands the employer to bargain with a union which did not file the charge and on the conceded facts was never chosen by the employees as their exclusive bargaining representative. The court thinks that under these circumstances the employer was under no obligation to bargain with the Boilermakers and that enforcement of this part of the order must be denied.
The question arises out of the following facts, which are uncontradicted: The employer, a partnership doing business under the trade name of Ohio Hoist and Manufacturing Company, was approached by the Blacksmiths, which claimed to represent all 13 production and maintenance employees at the Lisbon plant. The employer and the Blacksmiths agreed to a consent election, which was won by the union and on February 2, 1953, the Blacksmiths were duly certified as exclusive bargaining representative. Thereafter, between February 2 and July 7, 1953, various negotiations were carried on between the representatives of the Blacksmiths and the employer as to a proposed collective bargaining contract. During this time the principal acts found to be unfair labor practices, including the shutdown of the plant, incorporation of the partnership, and the unilateral wage increases, took place. At the hearing before the examiner a paper dated June 3, 1953, was produced purporting to be signed by eleven employees and stating that the signers wished to have the Blacksmiths discontinue negotiating a union contract with the company. The Trial Examiner found that this repudiation was due to the obstructive tactics of the employer. We do not discuss this feature of the case because of the decisive preliminary question whether the Regional Director by amending the certification of election can compel the employees to be represented by a union not of their own choosing.
On July 7, 1953, the Blacksmiths merged with the International Brotherhood of Boilermakers and Iron Ship Builders, forming The International Brotherhood...
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