N.L.R.B. v. R.L. Sweet Lumber Co., 74-1065
| Decision Date | 13 May 1975 |
| Docket Number | No. 74-1065,74-1065 |
| Parties | 89 L.R.R.M. (BNA) 2326, 77 Lab.Cas. P 10,877 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. R. L. SWEET LUMBER COMPANY, Respondent, and Standard Homes Company, Intervenor. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Paul J. Spielberg, Atty., National Labor Relations Board (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, National Labor Relations Board, on the brief), for petitioner.
Charles E. Hoffhaus, Kansas City, Mo. (Hillix, Brewer & Myers, Kansas City, Mo., on the brief), for respondent.
George A. Lowe, Olathe, Kan., on the brief, for intervenor.
Before HOLLOWAY and McWILLIAMS, Circuit Judges, and CHRISTENSEN, District Judge. *
The petitioner, National Labor Relations Board, seeks enforcement of its decision and order that Sweet Lumber Company, the respondent, and Standard Homes Company, the intervenor, cease recognition of Teamsters Local 541 as bargaining agent of certain employees primarily engaged in the prefabrication and assembly of homes at the Standard Homes plant in Olathe, Kansas, and bargain collectively with Carpenters' District Council of Kansas City and Vicinity, AFL-CIO, as the representative of the same employees.
The Board adopted the findings, decision and proposed order of the Administrative Law Judge. 207 NLRB No. 89. It thereby determined that Sweet Lumber acting by and through its alter ego, Standard Homes had violated § 8(a) (1), (2), (3) and (5) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1), (2), (3) and (5), in that (R. 879-80):
1. Sweet Lumber, by and through Standard Homes, rendered unlawful assistance and support to the Teamsters in violation of § 8(a)(1) and (2).
2. Sweet Lumber, by and through Standard Homes, enforced the provisions of the union security agreement of the Teamster contract against certain employees at Standard Homes' Olathe plant, thereby encouraging membership in the Teamsters and discouraging membership in the Carpenters, in violation of § 8(a) (1) and (3).
3. Sweet Lumber, by and through Standard Homes, refused to bargain collectively with the Carpenters as the exclusive representative of certain employees at Standard Homes' Olathe plant and unilaterally changed the terms and conditions of employment of said employees, in violation of § 8(a)(1) and (5).
Respondent and intervenor challenge enforcement of the Board's decision and order, arguing principally that: (1) the charge of unfair labor practices was time-barred by § 10(b) of the Act, 29 U.S.C.A. § 160(b); and (2) the evidence is insufficient to support the Board's findings of unfair labor practices. We must disagree with the respondent and intervenor, and grant enforcement.
Before treating the issues we will outline the factual background. As we do so, it is convenient to focus on dates in view of the time bar issue raised under § 10(b). Since the unfair labor practices charge was filed on August 18, 1972, the crucial date is February 19, 1972. Charges of unfair labor practices occurring before that date are barred, while those occurring on or after that date are timely.
The factual background
Sweet Lumber is engaged in the wholesale and retail sale of lumber and related products. Its principal office and lumberyard is, and has been since 1952, located at 4400 Roe Boulevard, Kansas City, Kansas. Mrs. R. L. Sweet has been president of Sweet Lumber since the death of Mr. Sweet in 1958. Along with the sale of lumber and other building products, Sweet Lumber has manufactured and sold millwork such as doors, windows and room dividers, and also single-package prefabricated homes. Through October, 1971, the prefab home manufacturing activity was carried on by the Standard Homes Division of Sweet Lumber and through February, 1972, this occurred at the Roe Boulevard location.
At all times pertinent to this case the employees at the Roe Boulevard yard have been represented by two unions. Warehouse and yard employees, including lumber handlers, truckdrivers, loaders, forklift operators and stockmen, have been represented by Teamsters Local 541. Other employees engaged in the manufacturing process, including millmen and prefab home assemblers, have been represented by Carpenters Local 1635.
In 1971 the directors of Sweet Lumber determined that the Roe Boulevard location was no longer adequate to carry on all of the company's activities, particularly the manufacture of prefab homes. At a directors meeting in June, 1971, it was decided to move the prefab homes operation to another location. In late 1971 land was purchased and construction of a new plant began at Olathe, Kansas, some 19 miles from the Roe Boulevard location. 1
The directors also decided to incorporate separately the prefab home operation. They changed the name of Construction Loan Company, an existing corporation of which Mrs. Sweet was also president, to Standard Homes Company. Mrs. Sweet remained president of the newly named company. Mrs. Sweet testified that the incorporation of Standard Homes was not related to the decision to move to Olathe (R. 382). Respondent and intervenor also stress the fact that Standard Homes is a Delaware Corporation while Sweet Lumber is a Missouri Corporation in challenging the finding that Standard Homes and Sweet Lumber were a single employer (R. 863), and the finding that the Olathe prefab operation was an accretion to the Roe Boulevard prefab unit, represented by the Carpenters union (R. 865).
After the separate incorporation of Standard Homes, on October 31, 1971, the production of prefab homes continued by the same manufacturing processes at the Roe Boulevard plant. An arrangement was arrived at whereby Sweet Lumber sold its prefab homes to Standard Homes for a price that included the value of the materials and a fixed labor cost for each unit. Fixed assets and various items of property of Standard Homes Division were sold at the book value by Sweet Lumber to Standard Homes Company on November 1, 1971. Although a separate office was temporarily set up for Standard Homes Company office employees at Roe Boulevard and some office employees were paid on Standard Homes Company checks at least in January and February of 1972, the prefab production employees continued to be employed and paid by Sweet Lumber.
In August, 1971, a "Staff Bulletin" was placed in the timecard slots of the employees at Roe Boulevard relating the news of the planned move to Olathe. The bulletin stated that the new plant would be occupied by "Standard Homes Company, a division of Sweet Lumber" and that January, 1972, was the target date for completion (Ex. 4, R. 795).
Preparations for occupying the Olathe plant began in January, 1972. Early that month, Frank Woodbury and Charles Roberts went out to the Olathe site to coordinate completion of the plant with the general contractor. Lumber also began arriving that month, and four employees were hired to unload the initial lumber deliveries and to build racks and other facilities. One of these men, Kline, had been a member of the Teamsters unit at Roe Boulevard and became a foreman at Olathe. The other three Streeter, Nicely and Brown were new employees.
On January 24, 1972, Aubrey Williamson, a business agent of Teamsters Local 541, visited Olathe and obtained signed authorization cards from Kline, Streeter, Nicely and Brown (R. 257-258, 275, 855). On February 4, Williamson met with Eugene Smith, then the vice-president of Standard Homes, and Charles Hoffhaus, attorney for Sweet Lumber, and presented the signed authorization cards. After verifying the signatures, Smith and Hoffhaus agreed to bargain, and on February 11, Standard Homes and Teamsters Local 541 executed a contract running from February 7, 1972, to February 2, 1975, with a provision for automatic renewal (R. 260, 669, 855). The contract wage scale provided for a minimum hourly wage of $3.50 per hour. By its terms, the contract covered "all production and maintenance employees at the Employer's Olathe, Kansas plant including truck drivers" and contained a union security clause requiring all employees to join Teamsters Local 541 within 31 days after beginning employment.
At the time that the contract was signed, only four men (Kline, Streeter, Nicely and Brown) were performing work that could be covered by its terms. As mentioned, their work consisted of unloading lumber and building racks and other facilities. No production was being done at Olathe at this time, 2 and Smith testified that at the time he signed the contract, he knew that he would have 12 to 13 more non-office employees working at Olathe shortly.
In mid-February, Smith began interviewing Sweet Lumber employees at the Roe Boulevard plant to determine whether they would accept employment at Olathe. Among these were four men who were working in the prefab homes operation at Roe Boulevard and were members of Carpenters Local 1635. These four Coffelt, Schaffer, Fisher and Papineau all eventually accepted employment at Olathe. Except for Coffelt, who was on vacation and whom Smith went to see at home, they were interviewed in Smith's office at the Roe Boulevard plant. Smith told all four men that there would be only one union at Olathe the Teamsters. 3
The men testified that they began work at Olathe sometime between February 23 and February 29, but that no production work on prefab homes took place before February 29 and that work done prior to that date was maintenance work to prepare for production. 4 Once production started, they testified that they did the same job as at Roe Boulevard with the same tools they had used there. None of these four joined the Teamsters immediately on arrival at Olathe, but did join Teamsters Local 541 eventually. 5
On February 20, 1972, before the prefab workers began production at...
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