W. Q. T., Inc., 816 (1981)

DFCISIONS OF NATIONAL LABOR RELATIONS BOARD

W. Q. T., Inc. and General Warehousemen Local 598, International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of America. Case 31-CA-9141

January 26, 1981 DECISION AND ORDER

BY CHAIRMAN FANNING AND MEMBERS

JENKINS AND TRUESDALE

On September 19, 1980, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The Respondent also filed a motion requesting the Board to dismiss the General Counsel's exceptions, and the General Counsel filed an opposition to the motion. The Respondent's motion is denied.

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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge2 and to adopt his recommended Order.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety.

i Due to error, the Respondent's coiunsel wsas not originally served with a copy of the General Counsel's exceptions, although the Respondent as a company was sent a copy hy ordinary mail. Upon counsel's inquiry, he was promptly sent a copy of the exceptions and was granted ill extension of time to respond. We see no prejudice to the Respondent by reason of the error.

2We agree with the Administrative l.a Judge's findings that the Respondent was not a successor to Western Quarry ile, and that the Rcspondent's own volume orf business did not satisfy the Board's standards for asserting jurisdiction. As the coimplaint ill he dismissed fir lack of jurisdiction, we finld it unnecessary to consider the merits of the 9la)(3) and (5) allegations of the ciomplaint DECISION

STATEMINT OF THEI CASE

GEORGE CHRISTENSEN, Administrative Law Judge:

On February 21 and 22, 1980, 1 conducted a hearing in Los Angeles, California, to try issues raised by an amended complaint issued on August 30, 1979,1 and amended on December 12 and January 14, 1980, based Read 1979 after all further date references ormittinig the year 254 NLRB No. 98 on a charge filed by General Warehousemen Local 598,

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America, 2 on June 28.

The complaint alleged that W. Q. T.,3 an alleged successor of Western Quarry Tile, Inc.,4 violated Section 8(a)(l), (3), and (5) of the National Labor Relations Act, as amended (hereinafter called the Act), by refusing to yield to the Union's demand that it grant seniority for purposes of layoff, recall, vacation, etc., to any of Western prior to going on strike against that employer.

WQT denied it was a successor employer to Western, denied it met the Board's jurisdictional standards for nonretail enterprises, conceded it refused to yield to the union demand stated above, and denied it violated the Act.

The issues are:

1. Whether WQT was a successor to Western within the meaning of the Act.

2. Whether WQT met the Board's jurisdictional standards.

3. Whether WQT violated the Act.

   The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, to examine and cross-examine witnesses, and to argue and file briefs. Briefs were filed by the General Counsel and WQT. 5

   Based upon my review of the entire record, observation of the witnesses, perusal of the briefs, and research,

   I enter the following:

   FINDINGS OF FACT

   1. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find that at all pertinent times the Union was a labor organization within the meaning of the Act.

   The facts concerning the issue of whether the Board has or should exercise jurisdiction over WQT are intertwined with the successorship issue; the jurisdictional issue shall be determined after, and on the basis of, factual findings entered below.

1. THE FACTS Between 1965 and April 2, 1979, Western operated a plant located at 2428 Dallas Street, Los Angeles, California, which produced glazed and unglazed clay tiles.

   Marcel Hoessly owned and managed the business. He employed supervisory, sales, production, and maintenance personnel in his operations. The jobs performed by the production and maintenance employees were interchangeable; they did not have specific job titles nor regular, assigned duties; no seniority system was followed or employed; and the employees in question mixed batches lereinafter called the Union :' Hereinafter called WQ I lereinaftcr called Western ' WQl' movcd for permission to file a reply brief to cite a pertinent case lecisioll shich issued after cross-hriefs were filed aid to correct alleged isstatements aCnderrors in the General Counsel's brief The mnotlon is granlted 816

   W. Q. T.. INC.

   of clay, filled molds, sprayed tiles, loaded and unloaded kilns, packed tiles for shipment, etc.

   On May 15, 1978, the Board issued a certification finding that a majority of Western's production and maintenance employees cast votes, in a secret- ballot election previously conducted by the Board, for representation by the Union for the purpose of bargaining collectively with Western concerning their rates of pay, wages, hours and working conditions. 6

   Between July and October 24, 1978, representatives of Western and the Union met a number of times to negotiate an agreement. Western was represented in the negotiations by Hoessly and District Manager of the California Association of Employers James Richardson,7 of which Western was a member. The Union was represented by Maurice Feldman, organizer. 8

   On the latter date, Western had 13 production and maintenance employees in its work force.

   On October 25 the Union called and the 13 production and maintenance employees participated in a strike against Western in support of the Union's contract demands. The strike (and picketing of Western's premises) continued through April 2.

   In the year preceding October 25, 1978, Western sold tiles valued at $416,539; $107,536 of those sales were made to customers located outside of the State of California. Western attempted to continue its operations between October 25, 1978, and April 2 with a reduced work force; during the period in question, its gross sales were $158,796, of which $6,034 were made to customers located outside of California.

   At the end of the year, Hoessly decided to sell the business and negotiated its sale to Walter Oleson. Hoessly and Oleson agreed to close the sale on April 2. Prior to consummation of the sale, Oleson visited the plant frequently, observed the production process, acquainted himself with the market Western served, and was fully advised concerning the Union's certification, Western's negotiations with the Union concerning contract terms, the strike, and the picketing (Oleson also observed the union pickets on his various visits to the plant).

   Oleson purchased the business with the intention of installing a number of laborsaving machines and producing more standard, uniform tiles than the tiles Hoessly produced. He believed that by automating the tilemaking process he could meet or exceed Hoessly's production with about half the production and maintenance force Hoessly employed. With this in mind, he purchased and, with Hoessly's consent, stored a ram press machine at the plant in January. He subsequently purchased an extruder, a clay mixer, and electrical components needed for the operation of the machines. Prior to consummating the purchase, Oleson formulated plans for the number of production and maintenance employees he would hire and the rates of pay, wages, hours, and working conditions he would offer them; he planned to hire seven production and maintenance employees (one lead6 Case 31-RC-4095.

   7 Richardson acted as Western's spokesman 8 I find at all pertinent times Hoessly and Richardson ere agcnrt of Western ad Feldman was an agent of the Ition ithin the mcanilllngof Sec 2 of the Act man over the casting and glazing crews, one caster and one caster helper, one glazer and one glazer helper, and one batcher and one ram press operator); to pay the glazer, caster, and press operator between $4.75 and $6 per hour, to pay the batcher between $4.25-$4.85 per hour; to pay the helpers between $3-$3.40 per hour; and to pay the leadman 25 cents more per hour than the toprated caster or glazer. He also planned to offer I week of vacation after I year of service and 2 weeks after 2 years; seven paid holidays a year; 5 days of sick leave after I year of service; hospital and surgical insurance coverage after 60 or 90 days of employment (he was undecided which waiting period to set until he checked out some plans); and credits toward vacation, etc., dating from each employee's hiring date. He also decided to hire individuals as and when they applied, to require each applicant to submit a job application, and to offer each applicant who he was satisfied could meet his job needs of employment at the rates of pay, etc., he had formulated. Oleson neither sought nor secured any information from Hoessly concerning the rates of pay, hours, and working conditions of Western's production and maintenance employees and independently determined the rates of pay, hours, and working conditions he intended to offer.

   In March Oleson caused WQT to be formed. On April 2 Oleson signed a sales contract with Hoessly wherein Oleson as an individual purchased Western's goodwill, inventory, assets (including Western's office and shop equipment, tools, machinery, leasehold improvements, etc.), and the...