N.L.R.B. v. General Wood Preserving Co.
| Decision Date | 02 July 1990 |
| Docket Number | No. 88-1331,88-1331 |
| Parties | 134 L.R.R.M. (BNA) 2491, 115 Lab.Cas. P 10,140 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GENERAL WOOD PRESERVING COMPANY; Burke-Parsons Bowlby, Respondents. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Robert Francis Mace, N.L.R.B., Washington, D.C., for petitioner.
Charles A. Edwards, Graham & James, Raleigh, N.C., for respondents.
Rosemary M. Collyer, Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Collis Suzanne Stocking, Supervisory Atty., N.L.R.B., Washington, D.C., on the brief, for petitioner.
Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit Judge, and STAKER, United States District Judge for the Southern District of West Virginia, sitting by designation.
This case was instituted here pursuant to section 10(e) of the National Labor Relations Act (Act), 29 U.S.C.A. Sec. 160(e) (West 1973), 1 by the National Labor Relations Board (Board) seeking enforcement of a Gissel bargaining order 2 entered by the Board against Burke-Parsons Bowlby (Bowlby) and General Wood Preserving Company (General Wood), respondents herein. Enforcement of the Board's order against each of them is granted. 3
Hearing was held by an Administrative Law Judge (ALJ) upon unfair labor practices charges filed pursuant to the Act against Bowlby and General Wood, respectively, in consolidated cases 11-CA-11282, 11-CA-11376 and 11-CA-11487. Both Bowlby and General Wood filed answers denying the charges against them in those cases. General Wood did, but Bowlby did not, appear at the hearing held before the ALJ therein, nor did anyone participate at that hearing on behalf of Bowlby. The ALJ rendered his decision therein on June 20, 1986, which included an order recommended by him for adoption and entry by the Board. The Board affirmed the ALJ's findings and conclusions contained in that decision and adopted the recommended order. 4
The Board's order required Bowlby and General Wood, as Bowlby's successor at a wood-treatment plant at Leland, North Carolina (plant), which Bowlby had owned and operated for some time prior to Bowlby's sale thereof to General Wood on June 29, 1984, 5 to recognize and bargain collectively with the International Woodworkers of America, AFL-CIO (the Union), as the collective bargaining representative of a unit consisting of all production and maintenance employees at the plant, a majority of whom, the ALJ found, had signed petitions selecting the Union as such representative; to offer to hire seven employees hereinafter named who had been employed by Bowlby at the time of that sale, whom the ALJ found General Wood had refused to hire, in violation of section 8(a)(1) and (3) of the Act, because of their union activities; and to make those employees whole by paying them back pay with interest and restoring to them the seniority and other employment rights and benefits to which they would have been entitled but for General Wood's discriminatorily having refused to hire them for that reason.
The ALJ's findings and conclusions, as affirmed by the Board, are respectively sometimes herein said to be those of the ALJ and at others those of the Board.
On September 7, 1988, the Board filed its initial application here seeking enforcement of its order against respondent General Wood only, and on October 7, 1989, filed an amendment to that application wherein both Bowlby and General Wood were joined as respondents and enforcement of the Board's order was sought against both of them. General Wood timely responded thereto.
Through oversight the Clerk of this Court did not serve upon Bowlby notice of the filing of the amended application nor disclose to the Court that it had been filed.
In the mistaken belief that General Wood was the only party respondent herein, following the hearing of arguments in March 1989 the Court prepared its decision, dated February 16, 1990, enforcing the Board's order as to General Wood only, whereupon the Board informed the Court that Bowlby had also been joined as a respondent and moved that the decision be corrected such that the Board's order also be enforced against Bowlby. General Wood did not object to that motion.
Bowlby then appeared generally herein by filing its motion for permission to plead or to answer the Board's motion, in substance asserting as ground therefor that Bowlby and its counsel, Mr. Holroyd, assumed that Bowlby's interests in this action were being protected by Mr. Edwards, General Wood's counsel, for which reason Bowlby did not theretofore appear herein. In response to Bowlby's motion, General Wood asserted that Bowlby incorrectly so assumed, and attached to that response was a copy of a letter from Mr. Holroyd to Mr. Edwards, dated October 12, 1988, stating "You [Mr. Edwards] are correct in your assumption that ... [Bowlby] does not want to participate any further in this case."
On March 20, 1990, this Court entered an order directing the clerk thereof to serve upon Bowlby the amended application filed against Bowlby herein by the Board and granted Bowlby leave within thirty days to file an answer to that amended application and to file an answer to the Board's motion to correct this Court's February 16, 1990, decision. Bowlby did not file an answer to either that amended application or to the Board's motion to correct that decision.
On April 12, 1990, this Court entered an order staying the Court's mandate then in effect herein until further order of the Court.
By letter from the clerk of this Court to Mr. Holroyd, Bowlby's counsel, dated March 29, 1990, Bowlby was requested to file a brief herein, in response to which Mr. Holroyd informed the clerk by letter of April 5, 1990, that "[U]pon review of the record in this matter and consultation with ... [Bowlby] we do not desire to file a brief as provide [sic] in your March 29, 1990 letter."
Bowlby having declined to file herein an answer, or a brief as required by Rule 15.1, Federal Rules of Appellate Procedure, or otherwise to respond to either the Board's amended application or its motion to correct the February 16, 1990, decision, an order was entered by the Court on April 30, 1990, enforcing the Board's order against Bowlby as well as General Wood.
Thus, it is only the contentions of the Board and General Wood, respectively, which are dealt with in Part III hereof, that raise the issues to be decided by the Court.
Since the bargaining order sought to be enforced by the Board against General Wood is based upon the ALJ's conclusion that General Wood was Bowlby's successor, before addressing the issues between the Board and General Wood it is necessary to discuss the conclusions reached by the ALJ as to Bowlby in order fully to understand and evaluate some of the evidence upon which the ALJ based his findings and conclusions as to General Wood.
Except as indicated to the contrary, those reached as to Bowlby were based upon undisputed fact and evidence and documentary evidence, and in substance are as follows.
On February 12, 1984, Bowlby employed sixty-four production and maintenance workers at the plant. 6 Early in February 1984 some of them engaged in a walkout and communicated with the Industrial Union Department (IUD) of the AFL-CIO concerning union representation of them at the plant.
Michael Black of the IUD met with some of them and informed them that he would need to determine which affiliate union he would recommend most appropriately to represent them. At that meeting 26, and thereafter others, of the unit employees at Bowlby signed single-purpose petitions authorizing the AFL-CIO or its appropriate affiliate to represent them in collective bargaining with Bowlby. At a second meeting with Black, the employees in attendance thereat by voice vote selected the Union as the AFL-CIO affiliate to do so. The ALJ found 42 of the signatures on those petitions to be authentic, that those 42 signatures constituted those of a majority of the 64 production and maintenance employees comprising the appropriate unit at the plant in February, and that the lack of designation on those petitions, at the time they were signed, of the Union as the appropriate AFL-CIO affiliate to represent them was not a legal impediment to the attainment of that majority status. 7
On February 9, the Union formally notified Bowlby by mailgram that the Union represented a majority of Bowlby's production and maintenance employees at the plant and requested that Bowlby recognize the Union as their collective bargaining representative. Bowlby refused to do so, the Union petitioned the Board for a representative election at which those employees could vote as to whether the Union would do so, and in mid-March, the Board scheduled an election to be had on April 6 pursuant to a stipulation of election executed by Bowlby and the Union. That stipulation defined the appropriate unit to consist of the production and maintenance employees at Bowlby, excluding employees performing all other work at the plant.
The ALJ found and concluded that during February, March, and April, through its supervisors, production manager, and president, Bowlby committed the following acts, each of which constituted a violation of section 8(a)(1) of the Act: 8 Supervisor Gary Wood stated to employee Larry Brown that, if the employees selected the Union, they would lose their paid holidays and would have to start from scratch (an unlawful threat of loss of benefits); Plant Manager Carl Williams stated to employees Larry Brown, Michael Robinson and others that in that event they and he might as well look for another job (a threat of the plant's closure and the loss of their jobs); Supervisor Jimmie Smith stated to employees Warren Bryant and ...
To continue reading
Request your trial
-
Antonio v. Sec. Serv. Of Am. LLC
...no such notice could exist for a predecessor to be aware of future bad acts by a successor. See, e.g., NLRB v. General Wood Preserving Co., 905 F.2d 803 (4th Cir.1990) (finding a successor liable for the unfair labor practices of the predecessor). Thus, SSA, LLC is not a proper party to the......
-
Be-Lo Stores v. N.L.R.B.
...witnesses," which were "known to bear the [employees'] signatures." Action Auto, 298 NLRB at 879; see also N.L.R.B. v. General Wood Preserving Co., 905 F.2d 803, 811 (4th Cir.1990) (noting that authenticity was proven by comparing signatures "with what the undisputed evidence established to......
-
Holly Farms Corp. v. N.L.R.B.
...labor laws.... There is, and can be, no single definition of 'successor' which is applicable in every context." NLRB v. General Wood Preserving Co., 905 F.2d 803, 819 (4th Cir.) (quoting Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 262 n. 9, 94 S.Ct. 2236, 2243 n. 9, 41 L.Ed.2d 46 (......
-
Eastern Omni Constructors, Inc. v. N.L.R.B.
...is so "even though we might have reached a different result had we heard the evidence in the first instance." NLRB v. General Wood Preserving Co., 905 F.2d 803, 810 (4th Cir.1990). "Substantial evidence has been held to mean 'such relevant evidence as a reasonable mind might accept as adequ......