Extract
Rushton & Mercier Woodworking Co., Inc.,, 123 (1973)
RUSHTON & MERCIER WOODWORKING CO.
Rushton & Mercier Woodworking Co., Inc ., and Rand & Co., Inc. and Local 51, United Brotherhood of Carpenters and Joiners of America , AFL-CIO and International Union of District 50, Allied and Technical Workers of the United States and Canada, and its Local Union 13974, Parties to the Contract. Case 1-CA-7889April 25, 1973 DECISION AND ORDERBY MEMBERS FANNING, KENNEDY, AND PENELLO On August 25, 1972, Administrative Law Judge ' Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief, and the General Counsel filed an answering brief.Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.The Board has considered the record and the attached Decision in light of the exceptions and briefs2 and has decided to affirm the rulings findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein.The Administrative Law Judge finds that Respondents violated Section 8(a)(1), (2), (3), and (5) of the Act. Respondents except to these findings. For the reasons stated herein, we agree that Respondents did violate Section 8(a)(1), (2), (3), and (5) by certain of their conduct in September 1971. However, as more fully discussed hereinafter, we do not adopt the Administrative Law Judge's finding that Respondent Rand acted unlawfully in shutting down its operation in April 1971 and in subcontracting work without consulting the Charging Party during the period from May through August 1971.The facts are set forth in the Administrative Law Judge's Decision. In brief summary they are as follows:As of April 1971, Rand was actively engaged in the manufacture of store fixtures. Its carpenters 3 were represented by Local 51, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. On April 30, 1971, Rand shut down for lack of work and laid off all the unit employees 4 and almost all nonunit ' The title of 'Trial Examiner' was changed to 'Administrative Law Judge' effective August 19, 1972.2 Respondents' motion for oral argument is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties.a The greater part of its work force.4 One unit employee was transferred to another of the Rand companies, 123 employees. Approximately 4 months later, store fixture production operations were resumed at the Rand Boston facility, this time by a wholly owned subsidiary of Rand formed for that purpose, Rushton & Mercier of Massachusetts. This company was capitalized with assets previously used by Rand & Co. In its production operations which had been shut down in April. The name chosen for the new corporation was purchased from a Rand subcontractor, Rushton & Mercier of New Hampshire. Rand & Co. employees were not recalled from layoff to staff the resumed operation. Instead, Rushton & Mercier of Massachusetts initially obtained its employee complement by hiring the employees of the subcontractor whose name it was using. Rushton & Mercier of Massachusetts also recognized the collective-bargaining representative of the subcontractor's employees as the collective-bargaining representative of its employees and assumed, as a 'successor,' the subcontractor's obligations under its collective-bargaining agreement.When a Local 51 business representative, upon discovering that production had resumed at the Rand & Co. plant, telephoned Rand's attorney, Wasserman, he was told that Rand & Co. had not resumed operations. Thus, although Rand apparently may still have been recognizing Local 51 as the exclusive bargaining representative for the laid-off Rand & Co. carpenters, as of September 1971 that was a largely academic right with the facility where Rand production was formerly carried on now being used by a wholly owned subsidiary of Rand whose employees were now represented by District 50.The General Counsel contends that Rushton & Mercier of Massachusetts is nothing more than a disguised continuance of Rand which exists for the purpose of permitting Rand to substitute a less expensive union for the collective-bargaining representative of the Rand employees, Local 51 s Moreover, General Counsel contends that the entire congeries of facts herein, resulting not in a change of ownership of business, but, rather, in a change in union, amply demonstrate the underlying motivation of Respondent to get rid of Local 51.6Respondents contend that their actions were dictated by a chain of events related to the economic situation and other economic factors which were in no way contrived by Respondents.The General Counsel contends that Rushton & Mercier and Rand are a single integrated enterprise and that Rushton & Mercier is a continuation and alter ego of Rand. We agree. The...See the full content of this document
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