NLRB v. Johnson
| Decision Date | 17 October 1966 |
| Docket Number | No. 20760.,20760. |
| Citation | 368 F.2d 549 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Wayne JOHNSON, an Individual, d/b/a Carmichael Floor Covering Co., and John Duncan, an Individual, d/b/a Dun can Floor Co., Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Marcus W. Sisk, Attys., N.L.R.B., Washington, D. C., for petitioner.
Clifford R. Lewis, Sacramento, Cal., for respondents.
Before HAMLEY, MERRILL and BROWNING, Circuit Judges.
The National Labor Relations Board petitions for enforcement of its cease and desist order issued against Wayne Johnson, d/b/a Carmichael Floor Covering Co., and John Duncan, d/b/a Duncan Floor Co. The Board's decision and order, issued on November 9, 1965, are reported at 155 N.L.R.B. No. 65.
The Board order is based on its finding that, in violation of section 8(a) (5) and (1) of the National Labor Relations Act (Act), 49 Stat. 452, as amended 29 U.S.C. § 158(a) (5) and (1), respondents refused to bargain with Carpet, Linoleum and Soft Tile Local Union No. 1237, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO (Union). Such refusal, the Board found, was manifested by respondents' refusal to acknowledge that they were bound by a collective bargaining agreement executed on their behalf, and by contracting out floor covering installations without first bargaining with the Union.
Respondents concede that had they remained employers of floor covering installers they would have been in violation of the agreement. They contend, however, that they had discontinued the practice of employing such installers and therefore had no duty to recognize the collective bargaining agreement, or to bargain with the Union concerning such discontinuance.
Prior to April 8, 1964, both respondents were engaged in the sale of floor covering at wholesale and retail in the Sacramento, California area, utilizing their own employees to install carpeting which they sold. Both respondents were members of the Sacramento Valley Floor Covering Association (Association), and had authorized the Association to negotiate a multi-employer collective bargaining agreement, binding upon them, with the Union. Such an agreement was executed by the Association and the Union on April 8, 1964.
Immediately before or immediately after this agreement had been executed, respondents notified the Association that they had discontinued their operation as employers of floor covering installers. Respondents advised the Association that thenceforth they would employ independent contractors to install floor covering which they sold, and that they would therefore not be parties to the agreement. The reasons given for this change in practice were that the previous method was too burdensome, and was not economical. The decision of Duncan was also due, in part, to ill health.
On April 9, 1964, the Association conveyed this advice to the Union. On or about April 10, 1964, respondents each terminated the employment of individuals who had been engaged in installation work. Johnson disposed of all of his installation equipment. From that time on whenever respondents were called upon to arrange for the installation of floor covering which they sold, they engaged independent contractors to perform that work. At no time did respondents undertake to negotiate with the Union concerning the change from personally employed installers, to the contracting out of that work.1
The Board argues, in effect, that an employer who has committed himself to engage in multi-employer bargaining may not, after such bargaining is under way, withdraw therefrom by switching...
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