N.L.R.B. v. Tricor Products, Inc.
| Decision Date | 14 November 1980 |
| Docket Number | No. 79-1231,79-1231 |
| Citation | 636 F.2d 266 |
| Parties | 105 L.R.R.M. (BNA) 3271, 90 Lab.Cas. P 12,373 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TRICOR PRODUCTS, INC., and/or C & J Pattern Co., Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David A. Fleischer, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.
Harold B. Wagner, Denver, Colo., for respondent.
Before McWILLIAMS and BARRETT, Circuit Judges, and BOHANON, District Judge. *
The National Labor Relations Board seeks enforcement of its order issued against Tricor Products, Inc., and C & J Pattern Company. The Board's Decision and Order is reported at 239 N.L.R.B. 65 (1978) and attached thereto is the decision of the Administrative Law Judge. Background facts are fully set forth in the Administrative Law Judge's decision and will only be repeated here insofar as is necessary to an understanding of our opinion. The main issue is whether the record supports the finding of the Administrative Law Judge that Tricor Products, Inc., is the alter ego of C & J Pattern Company.
The Pattern Makers League of North America, AFL-CIO filed charges against Tricor Products, Inc., and C & J Pattern Company. 1 The gist of the charges was that the Union was the duly recognized bargaining representative of the pattern makers employed by Tricor and C & J, and that the collective bargaining contract between the parties had been repudiated by the companies. It was further charged that commencing on or around April 1, 1977, the companies had discouraged its employees from continuing their membership in the Union by coercion, duress, threats, promises of benefits, and the like.
Thereafter, the General Counsel of the Board, acting through a Regional Director, issued a Complaint and Notice of Hearing to Tricor and C & J. The allegations of the complaint paralleled the charges earlier made by the Union. Specifically, it was alleged that C & J and the Union executed a collective bargaining contract covering pattern makers and apprentices on or about September 29, 1976, for the period from June 1, 1976, to May 31, 1978. It was further alleged that on or about April 20, 1977, Tricor purchased the physical assets, good will, and accounts receivable of C & J, and also assumed its liabilities, and that in so doing, Tricor became the alter ego of C & J. However, according to the complaint, Tricor determined to be non-union and refused to recognize that it had any obligation under the agreement between C & J and the Union and that it otherwise committed various acts constituting unfair labor practices.
By answer, Tricor admitted that C & J and the Union executed a collective bargaining agreement but alleged that the agreement terminated when C & J ceased doing business on April 15, 1977, and that the agreement was not assumed by Tricor. Tricor denied that it was the alter ego of C & J and denied that it had committed any unfair labor practices.
There was a full evidentiary hearing before an Administrative Law Judge, with some six persons testifying at length, including John Hussle, who was the president of Tricor and who had been sole proprietor of C & J in April, 1977. 2 As indicated, the Administrative Law Judge found, inter alia, that Tricor, under the circumstances, was the alter ego of C & J, and recommended that Tricor be ordered to "Honor, and comply with all the terms and conditions of the bargaining agreement between C & J and the Union ...." 239 N.L.R.B. at 71. On review, the Board affirmed the rulings, findings and conclusions of the Judge, and adopted his recommended order, with two minor modifications not pertinent here.
Tricor initially argues that there never was a valid and binding collective bargaining agreement between C & J and the Union. If we read the pleadings before the Board correctly, Tricor, however, admitted in its answer to the NLRB complaint that there was a collective bargaining agreement between C & J and the Union. C & J, which was represented by the same counsel as Tricor, also admitted in its answer that there was a collective bargaining agreement between it and the Union covering pattern makers. In this regard, the Administrative Law Judge found that until April 20, 1977, both C & J and the Union "recognized, worked under and honored the contract ..." and concluded that under all these circumstances it was "too late" in the day to contend that there never was an agreement between C & J and the Union. We agree.
The real issue before us is whether the Board's finding that Tricor is the alter ego of C & J is supported by the record. We believe it is. We do not propose to here detail all of the findings of the Administrative Law Judge, later affirmed by the Board, which bear on the alter ego question. It is sufficient for our purposes to quote from the Judge's decision as follows:
The facts that C & J and Tricor are separate legal entities and that the establishment of Tricor was economically motivated are irrelevant. For the purposes of this case, Tricor is the alter ego of C & J. As noted supra, Hussle is the principal force behind both C & J and Tricor. Hussle presently owns, with his wife, most of the stock of Tricor, and Hussle is the administrator of Tricor's affairs. Patternmaking is only a portion of Tricor's business, but that portion was the entire business of C & J; the latter firm was absorbed in toto by Tricor. C & J's closure, under such circumstances, does not relieve Tricor of responsibility for C & J's contract with the Union. Tricor assumed C & J's debts, liabilities, current business, customers, employees, machinery, and equipment, moved the entire operation to Tricor's new facility 11 miles away, and immediately picked up C & J's work where C & J had left off, with Hussle as the principal director and administrator at both locations. Clearly, C & J and Tricor are one and the same. 239 NLRB at 69.
Whether a second employer is the alter ego of an earlier employer, or merely a successor employer, requires a consideration of numerous factors and often presents a close question. The legal effect of such a finding, however, is well-settled. A mere successor employer generally is not bound by the terms and provisions of any agreement between a union and the predecessor employer, although the successor may under certain circumstances be required to bargain. 3 A second employer who is found to be the alter ego of the first employer, however, is bound by an agreement between the union and the first employer. 4
As indicated, a determination as to whether a second employer is a mere successor to a first employer, or is its alter ego, involves a consideration of numerous factors. There is no hard-and-fast rule. If an employer makes changes in its business operation to deliberately get rid of the union, the employer is more likely to be an alter ego. If, however, the employer has legitimate economic reasons for the changes, and is not motivated by anti-union sentiment, the second employer is more likely to be deemed a mere successor to the first. In connection with this particular aspect, we think evidence of anti-union sentiment by an employer, occurring either before or after the change in the structure of the business, is germane. 5
Another factor to be considered is the continuity of the work force. If the second employer continues with substantially the same employees, the second employer is more likely to be deemed an alter ego of the first. If, however, the second employer has a substantially different work force than did the first employer, the second employer is more likely to be deemed a mere successor. 6
Another important consideration is the relationship, if any, between the management of the old company and that of the new company. 7 As the Supreme Court has put it: Was there a true change in ownership and management, or "merely a disguised continuance of...
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