Cleveland Veneer Co.

National Labor Relations Board - Board Decisions

Mar 21, 1951

93 N.L.R.B. 875 (N.L.R.B. 1951)

INDIANAPOLIS WIRE-BOUND BOX COMPANY 875
adopt the report of the Regional Director and shall dismiss the
petition.
IT IS HEREBY ORDERED that the petition for decertification of rep-
resentatives filed by Ralph G. Sanders, Petitioner herein, be, and it
hereby is, dismissed.
Dated, Washington, D. C., March 20, 1951.
By direction of the Board :
Louis R. BECS.ER,
Associate Executive Secretary.
INDIANAPOLIS WIRE -BOUND Box COMPANY , D/B/A CLEVELAND VENEER
COMPANY and INTERNATIONAL WOODWORKERS OF AMERICA, CIO.
Case No. 39-CA-32. March, 21, 1951
Supplemental Decision and Amended Order
On September 29, 1950, Trial Examiner Lloyd Buchanan issued
his Supplemental Intermediate Report and Recommended Order in
the above-entitled proceeding, a copy of which is attached hereto, find-
ing that since October 24, 1949, Texsun Supply Corporation has been
the successor of the Respondent, Indianapolis Wire-Bound Box Com-
pany, d/b/a Cleveland Veneer Company, and responsible for remedy-
ing the unfair labor practices of the Respondent. He therefore rec-
ommended that the Respondent and Texsun Supply Corporation, as
successor to the Respondent, jointly and severally cease and desist
from the unfair labor practices engaged in by the Respondent, and
take, with some modification, the affirmative action which the Board
found in its original Order in this case 1 would effectuate the policies
of the Act. Thereafter, the Respondent and Texsun Supply Corpo-
ration filed exceptions to the Supplemental Intermediate Report and
Recommended Order, and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the reopened hearing, and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the Supplemental Intermediate Report and Recommended Order, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions and recommendations of the Trial
examiner, with the following additions and modifications.
1. The Trial Examiner found, and we agree, that Texsun Supply
Corporation is the successor of the Respondent, and, as such, responsi-
ble for remedying the unfair labor practices of the Respondent.
On October 24, 1949, Texsun Supply Corporation acquired the
2 88 NLRB 617.
23 NLRB No. 147.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant buildings, machinery, and equipment of the Respondent.2 Since
that date Texsun Supply Corporation has continued to operate the
plant in substantially the same manner as it was operated by the
Respondent-there has been no substantial change in the product
manufactured, the manufacturing operations, the machinery, the em-
ployees, or the supervisory personnel.3 Moreover, Texsun Supply
Corporation acquired the Respondent's plant with knowledge of the
existence of the unfair labor practice proceeding pending against the
Respondent,4 but nevertheless has continued to operate the plant with-
out any shown change in labor policy. We find, therefore, that Texsun
Supply Corporation is a successor to the Respondent within the mean-
ing of our Order of April 21, 1950, and accordingly that it is responsi-
ble, jointly and severally with the Respondent, for taking, except as
noted below, the remedial action described therein.5
2. For the reasons set forth in the Intermediate Report, the Trial
Examiner recommended that the Board's Order of April 21, 1950, be
modified by (a) not directing the reinstatement of the female em-
ployees who were discriminatorily discharged, and limiting their back
pay to the period prior to Texsun Supply Corporation's acquisition of
the Respondent's plant, and (b) omitting the direction that employees
be permitted to borrow small sums of money in the manner prescribed.
Because no exceptions have been filed to these recommendations, we
adopt them without passing upon them.
- Amended Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
R The Respondent transferred physical possession of the property to Texsun Supply Cor-
poration on this date, and although the parties' written agreement of transfer was not
executed until November 4, 1949, it was made retroactively effective as of this date Title
to the property was to be perfected and pass in 90 days, and actually passed about Jan-
uary 31, 1950.
'So far as appears, only Plant Manager Tousek and Plant Superintendent Pierce have
been replaced, and even these replacements were not made until 2 months and 6 months,
respectively, after the transfer of the plant
4 Such knowledge is clearly shown by the November 23, 1949, letter from Texsun Supply
Corporation's attorneys to the Respondent, which states that this proceeding was discussed
"during negotiations concerning purchase of the plant " [Emphasis supplied
5The Alexander Milburn Company, 78 NLRB 747 See also The L. B Hasteiy Co,-88
NLRB 1000
we agree with the Trial Examiner's finding that the Respondent, in transferring its plant
to Texsun Supply Corporation, was motivated at least in part by a desire to evade liability
under the charges filed herein. This is an added, but not a necessary, reason for continuing
the Respondent's liability, which has already been established. We also agree with his
finding that by virtue of the indemnity agreements given by the Respondent to Texsun
Supply Coiporation, and to the extent of their terms, an order against Texsun Supply
Corporation will serve pro tanto to effectuate the original Order against the Respondent.
This, however, indicates only that, as between the two parties, there may be an equitable
apportionment of liability. Neither factor has any bearing on our finding, which is solely
in issue here, that Texsun Supply Corporation is the Respondent's successor, and, as such,
is jointly and severally liable with the Respondent for remedying the latter's unfair labor
practices.
INDIANAPOLIS WIRE-BOUND BOX COMPANY 877
Relations Board hereby orders that the Respondent, Indianapolis
Wire-Bound Box Company, d/b/a Cleveland Veneer Company, Indi-
anapolis, Indiana, and its successor, Texsun Supply Corporation,
Weslaco, Texas, jointly and severally, and their officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Engaging in surveillance of their employees' activities in In-
ternational Woodworkers of America, CIO, or in any other labor
'organization ;
(b) Making promises of benefits to their employees in return for
their disavowal of the above-named or any other labor organization,
or making threats of reprisals to employees for their adherence to
the above-named or any other labor organization;
(c) Discouraging membership in the above-named or any other
labor organization of their employees, by discharging, constructive-
ly discharging, or refusing to reinstate any of their employees, or by
discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of their employment;
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Woodworkers of
America, CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Leo Hollis, Prince Connor, Ernest Dixon, Charles
Driver, Bonnie Howard, Lee A. Thomas, Jr., and Duke Haile, immedi-
ate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
lirivileges ;
(b) Make whole Leo Hollis, Cora Stots, Ester Buckley, Leevia
Jones, Rosa Timmons, Jessie Crawford, Prince Connor, ErnestDixon,
Charles Driver, Bonnie Howard, Lee A. Thomas, Jr., and Duke Haile,
for any loss of pay they may have suffered by reason of the inter-
ference, restraint, coercion, and discrimination against them, in the
manner set forth in the section of the Supplemental Intermediate Re-
port and Recommended Order entitled "The remedy";
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security pay
ment records, time cards, personnel records and reports, and all other
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
records necessary to analyze the amounts of back pay due and the
rights of reinstatement under the terms of this Order;
(d) Provide the drier employees with some safe method of warm-
ing themselves during working hours equivalent to that which they en-
joyed prior to the removal of the heaters on January 27, 1949;
(e) Offer to Prince Connor immediate occupancy of his former or,
equivalent living quarters in a company-owned house on the same
terms accorded other employees, together with a financial adjustment,
for any losses he may have suffered by reason of the eviction ;
(f) Post at the plant of the Texsun Supply Corporation, at Cleve-
land, Texas, copies of the notice attached hereto and marked Ap-
pendix A.' Copies of said notice, to be furnished by the Regional
Director for the Sixteenth Region, shall, after being duly signed by
representatives of Indianapolis Wire-Bound Box Company, d/b/a
Cleveland Veneer Company, and Texsun Supply Corporation, re-
spectively, be posted by them immediately upon receipt thereof, and
be maintained by them for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are,
customarily posted. Reasonable steps shall be taken by the said
companies to insure that said notices are not altered, defaced, or
covered by any other material;
-(g) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order what steps
the Respondent, Indianapolis Wire-Bound Box Company, d/b/a
Cleveland Veneer Company, and its successor, Texsun Supply Corpo-
ration, have taken to comply herewith.
CHAIRMAN HERZOG and MEMBER STYLES took no part in the con-
sideration of the above Supplemental Decision and Amended Order_
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Supplemental Decision and Amended Order of the
National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, as amended, we hereby notify our
employees that :
WE WILL NOT engage in surveillance of our employees' activities
in INTERNATIONAL WOODWORKERS of AMERICA, CIO, or in any other
labor organization.
WE WILL NOT make promises of benefits to our employees in re-
turn for their disavowal of the above-named, or any other, labor
organization, or make threats of reprisal to otir employees for
6 In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice , before the words, "A Supplemental Decision and
Amended Order" the words , "A Decree of the United States Court of Appeals Enforcing."
INDIANAPOLIS WIRE-BOUND BOX COMPANY 879k
their adherence to the above-named, or any other, labor organiza-
tion.
WE WILL NOT discourage membership in the above-named, or any
other, labor organization of our employees, by discharging, con-
structively discharging, or refusing to reinstate any of our em-
ployees, or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of
their employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist INTERNATIONAL
WOODWORKERS OF AMERICA, CIO, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as,
authorized in Section 8 (a) (3) of the Act.
WE WILL provide our drier employees with some safe method of
warming themselves during working hours equivalent to that
which they enjoyed prior to the removal of the heaters on Janu-
ary 27, 1949.
WE WILL offer to Prince Connor immediate occupancy of his,
former or equivalent living quarters in a company-owned house on
the same terms accorded other employees, together with a financial
adjustment for any loses he may have suffered by reason of the
eviction.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or substantially equivalent po-
sitions, without prejudice to their seniority or other rights and,
privileges.
Leo Hollis Charles Driver
Duke Haile Bonnie Howard
Prince Connor Lee A. Thomas, Jr.
Ernest Dixon
WE WILL make whole the.employees named below for any loss
of pay suffered as a result of the interference, restraint, coercion,,
and discrimination against them.
Leo Hollis Duke Haile
Cora Stots Prince Connor
Ester Buckley Ernest Dixon
Leevia Jones Charles Driver
Rosa Timmons Bonnie Howard
Jessie Crawford Lee A. Thomas, Jr.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of our employees are free to become, remain , or to refrain
from becoming or remaining , members of INTERNATIONAL WOOD-
WORKERS OF AMERICA , CIO, or any other labor organization , except to
the extent that this right may be affected by an agreement in con-
formity with Section 8 (a) (3) of the Act.
INDIANAPOLIS WIRE-BOUND Box COMPANY
D/B/A CLEVELAND VENEER COMPANY
Employer.
By -------------------------------------------------
(Representative ) ( Title)
Dated --------------------
TEXSUN SUPPLY CORPORATION,
Successor to Employer.
By ---------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Supplemental Intermediate Report and Recommended Order
Mr. James P. Wolf, for the General Counsel.
Davis, Baltzell, Hartsock and Dongus, by Mr. Paul Y. Davis, of Indianapolis,
Ind., for the Respondent.
Cox, Patterson and Freeland, by Mr. John R. Freeland, of McAllen, Tex., for
Texsun Supply Corporation.
Mr. C. A. McPeak, of Houston, Tex., and Mr. Paul C. White, of Marshall, Tex.,
for the Charging Party.
STATEMENT OF THE CASE
Upon a first amended charge duly filed on June 9, 1949, by International
Woodworkers of America, CIO, herein called the Union, the General Counsel
of the National Labor Relations Board,:' by the Regional Director for the Six-
teenth Region (Fort Worth, Texas), issued a complaint dated July 8, 1949,
against Indianapolis Wire-Bound Box Company, d/b/a Cleveland Veneer Com-
pany, herein called Indianapolis, alleging that Indianapolis had engaged in, and
was engaging in, unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the
complaint, amended charge, and notice of hearing were duly served upon Indian-
apolis and the Union.
Thereafter, Indianapolis filed an answer, in which it admitted the allegations
of the complaint concerning the jurisdiction of the Board but denied that it
had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Conroe, Texas, from July 26 to
August 3, 1949, inclusive, before Thomas S. Wilson, the Trial Examiner duly
designated by the Chief Trial Examiner. Thereafter, on October 12, 1949, said
'The General Counsel and his representative at the hearing are herein referred to as
the General Counsel, and the National Labor Relations Board as the Board.
INDIANAPOLIS WIRE-BOUND BOX COMPANY 881
Trial Examiner issued his Intermediate Report, copies of which were duly served
upon the parties then in the proceeding, in which he found that Indianapolis
had engaged in, and was engaging in, certain unfair labor practices, and recom-
mended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Exceptions to the Intermediate
Report were thereafter filed by Indianapolis.
On April 21, 1950, the Board issued its Decision and Order,2 in which it found
that Indianapolis had engaged in, and was engaging in, unfair labor prac-
tices, and recommended that it cease and desist from engaging in surveillance
of its employees' organizational activities ; promising benefits or threatening
reprisals in connection with such activities ; discouraging union membership by
discharging, refusing to reinstate, or in any other manner discriminating' in
regard to hire or tenure of employment or any term or condition of employ-
ment ; and in any other manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act ; and
that it offer reinstatement to and make whole for loss of pay 12 employees
named therein ; provide the drier employees with a safe method of warming
themselves; and permit employees to borrow small sums of money in accord-
ance with its prior practice.
Thereafter, the Board issued an order to show cause on May 8, 1950, on
General Counsel's motion of April 26, 1950, notice of which was served on all
other parties herein, to amend the Order of April 21, 1950, so as to include
Texsun Supply Corporation, herein called Texsun, as successor to Indianapolis ;
and Texsun appearing in opposition, the Board, on May 26, 1950, issued an
order reopening the record for the following purposes, as stated therein:
1. The relationship between Indianapolis Wire-Bound Box Company,
d/b/a Cleveland Veneer Company, and Texsun Supply Corporation ;
2. The relationship between, the business conducted by Indianapolis
Wire-Bound Box Company, d/b/a Cleveland Veneer Company, and the busi-
ness conducted by Texsun Supply Corporation;
3. The full circumstances of the sale or other transfer of the business
and/or physical assets from Indianapolis Wire-Bound Box Company, d/b/a
Cleveland Veneer Company, to Texsun Supply Corporation, including any
knowledge or notice of Texsun Supply Corporation concerning the unfair
labor practices, or the proceedings herein ;
4. The nature of the business conducted by Texsun Supply Corporation
as compared with the nature of the business formerly conducted by In-
dianapolis Wire-Bound Box Company, d/b/a Cleveland Veneer Company.
5. The responsibilities of the respective Companies for remedying the
unfair labor practices found in the Board's Decision and Order of April
21, 1950.
Pursuant to notice, a further hearing was held at Houston, Texas, from
August 22 to August 24, 1950, inclusive, before the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The Union appeared by its
representatives, and all other parties by counsel. All participated in the hear-
ing, and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues framed by the
Order Reopening the Record. All parties were heard in oral argument ; pursuant
to leave granted to all parties, a brief was filed on behalf of Indianapolis.
= 89 NLRB 617.
8 The notice required to be posted indicates that Indianapolis was required to offer
Prince Connor a company -owned house as therein described.
943732-51-57
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
SUPPLEMENTAL FINDINGS OF FACT
I TEXSUN'S BUSINESS
Texsun is a marketing cooperative corporation organized in 1938 under the
laws of the State of Texas. It maintains its principal office and place of busi-
ness at Weslaco, Texas, and operates plants at Weslaco and Cleveland, Texas.
Its sole stockholders and members are nine member cooperatives situated in the
Rio Grande Valley and engaged in the growing, processing, packing, and sale of
citrus products. One of the principal products furnished by Texsun to its
members is citrus fruit containers.
Texsun's annual purchases total between $500,000 and $1,000,000, of which
approximately 25 percent is shipped to it from points outside the State of Texas.
It furnishes containers and other materials to its members at cost; it appears
that the latter market their products throughout the midwest principally,
although the amount involved and other details of such distribution have not
been shown.
It is found that Texsun is engaged in commerce within the meaning of the Act.
II. THE TRANSFER OF THE CLEVELAND PLANT
Texsun owned a mill at Roseland, Louisiana, at which between 1942 and 1949
it manufactured boxes for packaging of its members' products. Various at-
tempts to sell the mill fell through, but an excessive inventory, heightened by a
crop failure in the winter of 1948-1949, forced closing of the mill in 1949 and
made it imperative to dispose of the plant to avoid the continuing overhead,
which constituted a severe financial strain.
On November 4, 1949,' Texsun and Indianapolis 6 agreed a to exchange their
respective interests in the plants at Roseland, Louisiana, and Cleveland, Texas,
the former to receive a substantial cash sum in addition. Title was to pass in
90 days and, after a short extension, the transfers were effected formally on
or about January 31, 1950.
Meanwhile, on October 26, 2 days after'the transfer of physical possession,
the manager of the Cleveland plant, who continued in an advisory capacity
for a month or two although on the Indianapolis payroll, cancelled an appoint-
ment to meet with the Union on the following day, explaining that any negotia-
tions would have to be held with Texsun, which had "taken over operations."
4 The agreement was executed "as of the date of transfer of possession, namely, October
24, 1949": title was to be perfected and the necessary documents delivered 90 days "from
(the) date" of the agreement
6 For various reasons, Indianapolis did not want to purchase the Roseland plant
"directly " A new corporation, Roseland Industries, Inc, was therefore organized after
the "desirability" of the exchange was determined To the new corporation was trans-
ferred the Cleveland mill, and it, rather than Indianapolis, was the party named in the
transaction with Texsun. It was not organized to evade "the ultimate Boaid order"
herein, it never operated the Cleveland plant, and the record indicates that for present
purposes (without any suggestion of effect for tax or other purposes) it may be regarded
as Indianapolis' alter ego We are not here further concerned with the relationship
between Indianapolis and Roseland Industries, Inc., but with that between Indianapolis, or
its alter ego, and Texsun. (Roseland Industries, Inc , is not a party to this proceeding,
and no relief is sought against it . Findings can of course be made against the parties to
the proceeding in matters in which Roseland Industries, Inc , was involved even though
there are no findings against the latter.)
6 General Counsel disavowed any intention to claim that the "contract itself was not a
binding contract as of the time," referring to October 24.
INDIANAPOLIS WIRE-BOUND BOX COMPANY 883
_ On November 10, General Counsel, in a letter to Texsun, referred to compli-
ance with the recommendations of the Intermediate Report herein, and on
November 14, Texsun 's attorneys replied, declaring it to be their understanding
that the Board 's (sic ) recommendations were not binding on Texsun.
On December 22 and January 6, the Union requested Texsun to enter into nego-
tiations for a collective bargaining contract , and on January 13, Texsun replied,
stating that it was conducting an inquiry and would thereafter "be glad to
meet."' Neither party thereafter communicated with the other in the matter.
On January 31, indemnity agreements running from Indianapolis to Texsun
via Roseland Industries, Inc., were executed to cover liability for money pay-
ments herein.
III. FURTHER FACTS ; ISSUES AND FINDINGS
In a memorandum dated October 12, 1949, from Indianapolis' general manager
to its president , one of "several reasons" for disposing of the Cleveland plant
was the anticipated difficulty in operating the plant "with harmonious labor
relations" in the face of the "organizational efforts by the C. I. O. and charges,
of unfair labor practice." This memorandum was discussed at a special meet-
ing of the Indianapolis board of directors, when sale of the plant was authorized.
It thus appears that Indianapolis, in making the sale, was motivated at least
in part by a desire to terminate other than by compliance (it has not complied),
and therefore to evade, liability under the charges filed herein. Although such
motive is recognized, is no one obligated to comply with the Board's Order?
Negotiations looking to the exchange of the Cleveland and Roseland prop-
erties were begun while this proceeding was pending;' the attorneys for the
respective parties held their second conference on October 15, 3 days after
the Intermediate Report was issued. Yet the various witnesses testified that on
the one hand they had not informed Texsun representatives, and on the other
that they had not been informed of the charges or pending proceedings. Davis,
who represented Indianapolis and Roseland Industries , Inc., testified that he
had not informed Texsun's attorney , Freeland , that there was a union in the
plant, and in fact had no conversation with either Freeland or Killough , Texsun's
general manager , concerning personnel at the Cleveland plant. He further testi-
fied that Indianapolis officials had agreed to "say nothing about it until they
say something about it."
Tousek, Indianapolis' plant manager, testified that although Killough and his
accountant were at the plant at or about the time the meeting with the Union
was canceled on October 26, lie did not inform them of the scheduled meeting, or
otherwise consult with Texsun's representatives concerning union activities.
Nor did Tousek recall telling Texsun that a union had been certified as collective
bargaining agent at the plant; he had received no instructions from Indianapolis
whether to say anything to Texsun about the Union. Killough declared that
Indianapolis had never told him that it was involved in an unfair labor practice
proceeding ; and that he had not heard of the proceeding from any source prior
to October 26.
7 The latter letter might be viewed in the light of that of November 14, and the pendency
of these proceedings It is unnecessary at this time to declare as a general proposition,
or within the circumstances of this case that a request to negotiate followed by a promise
to investigate and an expressed willingness to meet "as soon as we have had time to
acquaint ourselves with the situation " will support a charge of refusal to bargain No
such allegation was made or litigated ; Texsun's obligation is claimed only by virtue of"
the successorship.
8 Reference appears in the minutes of the Texsun board of directors meeting of June,
3, 1949.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Despite testimony to the effect that Texsun requires a product different from
that which Indianapolis had turned out at the Cleveland plant, and further
testimony concerning differences in equipment employed and in the size and
quality of the veneer, it appears from the record that Texsun has been prepared
and equipped to turn out and has been turning out at the Cleveland plant veneer
of various dimensions; and that, whether because the 1949-1950 crop was short
or for whatever reason, and despite expressed expectations to conduct a different
type of business, Texsun has continued substantially similar operations. As
Tousek admitted after detailing differences, present and prospective, "the prin-
ciple is still the same" ; the veneer turned out is different only in dimensions, and
Texsun is operating a veneer mill with some of the elements of a box shop.
Killough contradicted Tousek's testimony that specifications are wholly different
from what they were when Indianapolis operated the plant ; Texsun has been
selling veneer to Indianapolis. In short, the business, the plant, the machinery,'
and the employees (though fewer) are similar, whatever may be intended for
the future.
The Board has declared itself in a like situation as follows :
In the case before us, there is no showing that the Black Company is, in
any sense, an alter ego or disguised continuance of the Respondent, or that
it participated with the Respondent in the commission of the Respondent's
unfair labor practices. It is plain, however, that, insofar as the employees
are concerned, the transfer of the Respondent's business to the Black Com-
pany made no real difference. They performed the same work after as
before the transfer, in the same place, under the same terms and conditions
of employment, and under the direction and control of the same super-
visors. The unfair labor practices which had been committed by the Re-
spondent remained without remedy.'o
It has been found that Texsun has continued the business previously con-
ducted by Indianapolis at the Cleveland plant. A prejudicial act, found to be
an unfair labor practice, is as much an interference with organizational activi-
ties of employees or discrimination against them when it is continued by another
as when it was initiated. If benefit to the employer as the result of unremedied
unfair labor practices be recognized, Texsun substituted itself as successor, and
has not unwillingly received such benefit." Since it has become subject to an
order herein, the fact that a substantial change in its operations is contemplated
does not modify its liability under such an order except to the extent that such
change, made in good faith, may if at all affect reinstatement possibilities.
Consideration should also be given to the indemnity agreements. By virtue of
such, and to the extent of their terms, an order against Texsun will serve pro
tanto to effectuate the terms of the original order against Indianapolis, which
will now comply indirectly as indemnitor ! Nor can there be reasonable objec-
tion to the practical results flowing from such a conclusion. Had Indianapolis
acquainted Texsun with the facts prior to the transfer, the latter would not be
a bona fide purchaser, and the order would be extended to cover the latter."
9 Killough reported at a meeting of Texsun's board of directors on February 17, 1950,
that they had "moved (from the Roseland plant) only a few pieces of equipment needed
in (the) Cleveland operation," and that they would "need storage space at Cleveland," so
that delivery of additional machinery to Cleveland does not overcome the testimony
concerning the operations maintained there by Texsun.
"The Alexander Milburn Company, 78 NLRB 747. See also The L. B. Hosiery Co,
88 NLRB 1000.
11 As noted , it received an indemnity agreement ; it took no steps to cancel or rescind the
transaction Further, it has considered a decertification petition.
12 See footnote 9, supra; see also Rule 65, Federal Rules of Procedure.
INDIANAPOLIS WIRE-BOUND BOX COMPANY 885
There is no sufficient reason for a different result where there is bona fides with
respect to the purchaser since the seller failed to disclose its culpability or the
pendency of proceedings, but executed an agreement to indemnify the purchaser :
extension of the order will serve to continue the seller's liability and prevent
evasion.
It is thus unnecessary to pass on the proposition urged by General Counsel
that Indianapolis' liability is based, not on contract, but on the fact of sale,
and that Texsun succeeds to such liability, which attaches to the employment
unit as a servitude.
To this point, the issues and respective contentions have been considered as
they were presented at the hearing, where the oral testimony indicated that
until it received the letter of November 10, Texsun had no knowledge of the
unfair labor charges or proceedings; and the undersigned has determined
Texsun's liability on that basis. But, although not referred to at the hearing
or by brief, included in the correspondence u which was received in evidence is
a copy of a letter dated November 23, 1949, from Texsun's attorneys to Indianap-
olis, which letter indicates earlier knowledge of the pending proceeding. Refer-
ring to the instant case, the letter reads in part as follows :
During negotiations concerning purchase of the plant, this case was dis-
cussed, and my understanding was that your organization was to assume
full responsibility for settlement of same, and for this reason we are
acquainting you with these recent developments.
In its reply to this letter, under date of December 7, 1949, Indianapolis did
not dispute or question this statement, but apparently recognized that Texsun,
prior to the purchase, had knowledge of the pendency of the proceeding and of
Indianapolis' possible liability. The question may thus be considered as one of
a purchase for value but with knowledge.
Counsel for Indianapolis argued that, with the sale of the plant, the employer-
employee relationship out of which the unfair labor practices developed ceased
to exist regardless of the purchaser's' knowledge and the seller's motivation.
He further declared it to be his opinion that the sale relieved Indianapolis of
liability beyond that for back pay to the date of the sale.
On the authority of and for the reasons stated in The Alexander Milburn
Company case, the liability heretofore found is a continuing one, as is the
proposed remedy, until full compliance will have been effected ; and the order
should be broadened to include Texsun as well as Indianapolis.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Texsun set forth in Sections II and III, above, occurring in
connection with its operations described in Section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It appears from the record that Texsun, in good faith 14 and for reasons of
its own which are not connected with any unfair labor practice or intent to
evade the Act, does not now and has not since before October 24, 1949, employed
18 General Counsel's Exhibit S-5-A.
14 The good faith here considered is not that connected with successorship , but that
which, exercised by the original violator , might have modified its liability to a similar
extent.
886 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
women in the categories in which the dischargees herein were formerly em-
ployed. Since the original employer might properly (as far as the Act is
involved) have adopted such a practice, and no question of transferability has
been raised, it will not be recommended that the female employees concerned
be reinstated It will be recommended that the back-pay liability with respect
to such employees be limited to the period prior to October 24, 1949; and that
the Board sua sponte modify its Order of April 21, 1950, to that effect since
the matter has now come to its attention although no formal application for
such amendment has been made.
It will be recommended that Indianapolis and Texsun offer to each of the
dischargees except the female employees hereinabove referred to immediate and
full reinstatement to his former or substantially equivalent position,15 without
prejudice to his seniority or other rights and privileges ; and that they make all
of the dischargees whole for any loss of pay they may have suffered by reason
of the interference, restraint, coercion, and discrimination by payment of a sum
of money which shall be computedls on the basis of each separate calendar
quarter or portion thereof during the period from the discriminatory action to
the date of a proper offer of reinstatement or, in the case of the female em-
ployees hereinabove referred to, to October 24, 1949. The quarterly periods,
hereinafter called quarters, shall begin with the first day of January, April,
July, and October. Loss of pay shall be determined by deducting from a sum
equal to that which each employee would normally have earned for each quarter
or portion thereof, his net earnings,17 if any, in other employment during that
period. Earnings in one particular quarter shall have no effect upon the back-
pay liability for any other quarter. It will also be recommended that the Board
order Indianapolis and Texsun to make available to the Board upon request
payroll and other records to facilitate the checking of the amount of back
pay due 18
It appearing further that Texsun's policy since 1948 has been not to lend or
make wage advances to its employees, it will be recommended that the order
herein be modified to omit any direction that Indianapolis (or Texsun) permit
employees to borrow small sums of money.
Although reasonable insurance requirements may prevent installation of
heaters (it appears that, unlike Indianapolis, Texsun insures its mill properties),
it may be assumed that reasonable and necessary warming facilities would
normally be provided. The Order of April 21, 1950, does not require installa-
tion of heaters, but only "some safe method of warming . . . during working
hours equivalent to that which (the drier employees) enjoyed prior to the re-
moval of 'the heaters." No reason appears for modifying such provision. It
will be recommended that it be made applicable to Texsun also.
Finally, despite its uncontradicted statement of intention to demolish the
existing housing facilities because they are unfit for occupancy and the space
15 In accordance with the Board 's consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position
wherever possible , and if such position is no longer in existence , then to a substantially
equivalent position ." See The Chase National Bank of the City of New Yolk, San Juan,
Puerto Rico Branch, 65 NLRB 827.
16 F W. Woolworth Company, 90 NLRB 289.
17 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere , which would not have been incurred but for these unlawful practices , and the
consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440 . Monies received for work performed upon Federal , State, county , municipal,
or other work-relief projects shall be considered earnings . Republic Steel Corporation v.
N. L. R. B.,311U S.7.
Is F. W. Woolworth Company, supra.
WEYERHAEUSER TIMBER COMPANY 887
will be needed, Texsun was renting 11 houses at the date of the hearing. The -
order herein, broadened to include Texsun, should therefore include and continue
the provision with respect to availability of living quarters.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1 Texsun Supply Corporation is, and, since October 24, 1949, has been, the
successor of Indianapolis Wire-Bound Box Company, d/b/a Cleveland Veneer
Company.
2. Texsun Supply Corporation is, and, since October 24, 1949, has -been, re-
sponsible for remedying. the unfair labor practices engaged in by Indianapolis
`Vile-Bound Box Company, d/b/a Cleveland Veneer Company.
[Recommended Order omitted from publication in this volume.]
WEYERHAEUSER TIMBER COMPANY and LUMBER AND SAWMILL WORKERS
LocAL UNION No. 2562 , AFL, PETITIONER . Case No . 36-RC-506.
March, 21,1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before H. J. Merrick, hearing of-
ficer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed 1
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Reynolds, and Styles].
Upon the entire record in this case, the Board finds: 2
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain
employees of the Employer.
3. A question affecting commerce exists concerning representation
of employees of the Employer within the meaning of Section 9 (c)
(1) and Section 2 (6) and (7) of the Act.
I At the hearing International Woodworkers of America , CIO, herein called the Inter-
venor , objected to the receipt in evidence of certain of the Employer's exhibits , and moved
to strike all testimony relative to these exhibits on the ground that the Intervenor was
denied access to the Employer ' s mill property to take any similar pictures in preparation
of its case The hearing officer received the exhibits in evidence and referred the motion
to strike the testimony relative to the exhibits to the Board . As the Intervenor was
afforded full opportunity to litigate all issues at the hearing , and has not demonstrated
,that it was prejudiced in any manner by the Employer ' s actions , we hereby deny the
Intervenor 's motion to strike.
2 The Employer ' s request for oral argument before the Board is denied, because, in our
opinion, the record and briefs adequately present the issues and the positions of the parties.
93 NLRB No. 140.