Dee Cee Floor Covering, Inc.

National Labor Relations Board - Board Decisions

Sep 27, 1977

232 N.L.R.B. 421 (N.L.R.B. 1977)

DEE CEE FLOOR COVERING, INC.
Dee Cee Floor Covering, Inc. and its alter ego and/or
successor, Dagin-Akrab Floor Covering, Inc. and
Resilient Floor & Decorative Covering Workers
Local Union No. 1179, affiliated with International
Brotherhood of Painters & Allied Trades, AFL-
CIO. Case 17-CA-6809
September 27, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On March 25, 1976, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting 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
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
We agree with the Administrative Law Judge's
finding that, for the reasons fully set forth by him,
Dagin-Akrab Floor Covering, Inc., is the alter ego of
Dee Cee Floor Covering, Inc., and that together the
two named corporations constitute the Respondent.
Furthermore, we agree with his finding that, as alter
egos, the Respondent violated Section 8(a)(3) of the
Act by conditioning employment at its Ft. Riley
project upon employees withdrawing from the
Union.' We do not agree, however, with his finding
that Dagin-Akrab's refusal to adhere to and apply its
April 1975 agreement with the Union at the Ft. Riley
project violated Section 8(a)(5) of the Act.
The facts, briefly stated, are as follows: Dee Cee
Floor Covering, Inc., which was owned and operated
by its president, Harry Reeves, was engaged in the
sale and installation of carpeting in the construction
industry. As a subcontractor, typical of many in the
construction industry, Dee Cee did not maintain a
regular complement of employees, but hired work-
men as the need arose. In April 1973, Dee Cee
entered into a collective-bargaining agreement with
I Resilient Floor & Decorative Covering Workers Local Union No. 1179.
affiliated with International Brotherhood of Painters and Allied Trades.
AFLIO.
2 Sec. 8(f) provides in part:
It shall not be an unfair labor practice . for an Employer
engaged primarily in the building and construction industry to make an
agreement covering employees engaged (or who, upon their employ-
ment, will be engaged) in the building and construction industry with a
232 NLRB No. 72
the Union setting forth the terms and conditions of
employment for Dee Cee's employees.
On April 2, 1975, Reeves informed the Union that
Dee Cee was going out of business and that a new
corporation, Dagin-Akrab Floor Covering, Inc., had
come into being and would enter into an agreement
with it. The agreement, which in fact was entered
into that same day, was identical to the one entered
into in 1973 between Dee Cee and the Union.
In August 1975, Dagin-Akrab was awarded a
contract to buy and install carpeting at the Ft. Riley
military installation, said project to last approximate-
ly I year. In recruiting workmen for this project, the
Respondent's vice president, Don Bernard, and
Reeves informed several union members that work at
the project would be on a nonunion basis only and, if
they wished such employment, they would have to
withdraw from the Union. The Respondent informed
them that it was willing to pay at the "union scale,"
but that it would not pay any of the fringe benefits
called for in the April 1975 agreement. As a result,
some employees accepted employment on the Em-
ployer's terms while others, refusing to abandon the
Union, did not. Subsequently, the Union protested
the Respondent's offers of employment, reflecting
unilateral changes in the contractual terms and
conditions of employment, and requested that the
Respondent bargain with it about such changes. The
Respondent replied that it was a nonunion contrac-
tor and that it was under no obligation to adhere to
the agreement or to bargain with the Union. As
previously stated, the Administrative Law Judge
found that the Respondent's unilateral changes in the
terms and conditions of employment, and its refusal
to bargain with the Union, violated Section 8(a)(5)
and (1) of the Act. For the reasons discussed below,
we find that the contracts between the Respondent
and the Union were prehire agreements entered into
pursuant to Section 8(f) of the Act and that,
therefore, the Respondent's refusal to adhere to these
contracts under the circumstances herein did not
violate Section 8(a)(5) and (I) of the Act.
Section 8(f) of the Act2 permits qualified employ-
ers and labor organizations in the building and
construction industry to enter into collective-bar-
labor organization of which building and construction employees are
members (not established, maintained, or assisted by an) action
defined in section 8(a) of this Act as an unfair labor practice) because
(1) the majority status of such labor organization has not been
established under the provisions of section 9 of this Act prior to the
making of such agreement.... Provided ... That any agreement
which would be invalid, but for clause (I) of this subsection, shall not
be a bar to a petition filed pursuant to section 9(c) or 9(e).
421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining agreements covering employees not yet hired
without thereby violating the Act.3 This section,
however, merely immunizes the parties to such
agreements from liability under Section 8(a) and (b)
of the Act. Such prehire agreements do not, however,
give rise to a presumption of majority status on
behalf of the union.4 Thus, where a union fails to
prove that it has obtained majority status among the
employer's employees, an employer may withdraw
recognition from that union and/or make unilateral
changes in the contractual working conditions
without thereby violating Section 8(a)(5) of the Act. 5
While the April 1975 agreement was validly
entered into pursuant to Section 8(f) of the Act, that
agreement was not binding on the Respondent for
purposes of Section 8(a)(5) until such time as the
Union demonstrated that it enjoyed the support of a
majority of the Respondent's employees employed at
the Ft. Riley project. However, in light of the fact
that the Respondent had no employees working for it
either at the time that it executed the contract or
when it unilaterally set the conditions of employment
at the Ft. Riley project and refused to bargain with
the Union, it is obvious that the Union could not
have had a majority status.
Furthermore, the mere fact that the Union might
indeed have represented a majority of the employees
at Respondent Dee Cee's previous jobsites is of no
consequence inasmuch as the Union must demon-
strate its majority at each new jobsite in order to
invoke the provisions of Section 8(a)(5) of the Act. 6
As the facts here show that the Respondent had no
employees at the Ft. Riley job when it decided to
abrogate its prehire agreement with the Union, no
violation of Section 8(a)(5) of the Act can be found.
Moreover, although Dagin-Akrab as the alter ego of
Dee Cee would normally have been bound to Dee
Cee's 1973 agreement, no violation can be found in
its failure to apply that agreement at the Ft. Riley
job, since it had no employees working at that job
when the unilateral changes were made. Therefore, a
refusal-to-bargain violation also cannot be predicat-
ed on the breach of the 1973 agreement.
As previously stated, we agree with the Administra-
tive Law Judge that the Respondent violated Section
8(a)(3) of the Act by conditioning employment at its
Ft. Riley project upon employees withdrawing from
I Carpet, Linoleum and Soft Tile Local Union No. 1247 of the Brotherhood
of Painters, Decorators and Paper Hangers of America, AFL-CIO [Indio
Paint and Rug CenterJ, 156 NLRB 951 (1966).
R. J. Smith Construction Co., 191 NLRB 693, 695 (1971), enforcement
denied 480 F.2d 1186 (C.A.D.C., 1973). See also Ruttman Construction
Company, and Ruttmann Corporation, Joint Employers 191 NLRB 701 (1971),
decided the same day.
5 Ibid.
n David F. Irvin, et al., d/b/a The Irvin-McKelvy Company, 194 NLRB 52
(1971), enforcement denied in part 475 F.2d 1265 (C.A. 3, 1973).
7 The record discloses that union members Fred Wakefield and Garry
the Union. Therefore, we shall order the Respondent
to make whole those employees who were offered,
but who refused, employment because they would
not abandon the Union. Since we have already found
that the Respondent was under no obligation to
adhere to its agreement, it would be inimical to such
a finding to award backpay according to the terms of
that agreement. Therefore, backpay shall be awarded
at the rate that the Respondent offered to pay those
employees who would work on a nonunion basis.
The Respondent shall make whole those employees 7
who refused its illegal offer of employment from such
time the employer's offer was made until such time as
the Respondent made or will make a good-faith offer
of employment. The backpay and interest thereon
shall be computed in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Dee Cee Floor Covering, Inc., and its alter ego,
Dagin-Akrab, Kansas City, Missouri, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Conditioning employment at their current or
future projects upon abandonment of the Union by
its prospective employees.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Make whole all persons who refused to accept
offers of employment at the Ft. Riley project on the
unlawful condition that they abandon the Union by
paying them a sum of money equal to what they
would have earned from the time the illegal offer of
employment was made until such time as the
Respondent has made or will make a good-faith offer
of employment, less interim earnings.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
Allen declined Respondent's offers of employment because of the unlawful
conditions. We leave to the compliance stage of this proceeding the question
of whether other employees also declined Respondent's unlawfully condi-
tioned offers of employment and are therefore entitled to reimbursement
thereunder.
8 See generally Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In
accordance with our decision in Florida Steel Corporation, supra, we shall
apply the current 7-percent rate for periods prior to August 25, 1977, in
which the "adjusted prime interest rate" as used by the Internal Revenue
Service in calculating interest on tax payments was at least 7 percent.
422
DEE CEE FLOOR COVERING, INC.
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its place of business in Ft. Riley,
Kansas, its current construction project, copies of the
attached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Director
for Region 17, after being duly signed by its
representatives, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by it to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations of Section
8(a)(5) of the Act.
CHAIRMAN FANNING, concurring in part and dissent-
ing in part:
I agree with my colleagues' findings of violations. I
do not agree with their dismissal of the 8(a)(5)
allegation. I previously have dissented from the
interpretation of Section 8(f) to which the majority
adheres. See the dissenting opinions in the cases cited
in footnote 4, supra.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT condition employment at any of
our present or future projects upon abandonment
of the Union by any prospective employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL make whole all persons for loss of
earnings sustained as a result of their refusal to
work on a nonunion basis.
DEE CEE FLOOR
COVERING, INC. AND
DAGIN-AKRAB FLOOR
COVERING, INC.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge: A hearing
in this proceeding was held on February 5, 1976, at Kansas
City, Kansas, on complaint of the General Counsel against
two separately named corporations, Dee Cee Floor
Covering, Inc., herein called Dee Cee, and Dagin-Akrab
Floor Covering, Inc., herein called Dagin-Akrab, the two
together here called the Respondent. The complaint issued
on December 10, 1975, and rests upon a charge filed on
October 23, 1975, by Resilient Floor and Decorative
Covering Workers Local Union No. 1179, affiliated with
International Brotherhood of Painters and Allied Trades,
AFL-CIO, herein called the Union. The essential issue of
the case is whether the Respondent refused to bargain with
the Union within the intendment of the statute and thereby
violated Section 8(aX5), and whether, as an inseparable
element of that unfair labor practice, it also violated
Section 8(a)(3) of the National Labor Relations Act, as
amended. Briefs were filed by all three parties.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGs OF FACT
I. THE BUSINESS OF THE RESPONDENT
Dee Cee Floor Covering, Inc., is a corporation engaged
in the business of selling and installing carpeting in the
construction industry, with its principal place of business at
1125 Grand, Kansas City. Missouri. In the conduct of its
business in the past fiscal year this corporation purchased
materials valued in excess of $50,000 directly from sources
located outside the State of Missouri. During the same
period it sold goods valued in excess of $50,000 directly to
customers located outside that State.
Dagin-Akrab Floor Covering, Inc., is also a corporation
engaged in the business of selling and installing carpeting
in the construction industry, with its principal place of
business in the same location where Dee Cee Floor
Covering, Inc., has its office. Dagin-Akrab was incorporat-
ed in March 1975, and in or about August of that year
entered upon a contract valued about $490,000 to supply
and install carpeting in a military site at Fort Riley,
Kansas. That contract is directly related to the National
Defense of the United States.
I find that both Dee Cee and Dagin-Akrab are engaged
in commerce within the meaning of the Act and that it will
effectuate the policies of the Act to exercise jurisdiction
herein.
1l. THE LABOR ORGANIZATION INVOLVED
I find that Resilient Floor and Decorative Covering
Workers Local Union No. 1179, affiliated with Interna-
tional Brotherhood of Painters and Allied Trades, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. THE UNFAIR LABOR PRACTICES
The Case in Brief
From 1972 through 1974 and into 1975, Dee Cee Floor
Covering, Inc., sold and installed carpeting in the construc-
tion industry; its employees were covered under a collec-
tive-bargaining agreement with the Union, and, as a
unionized employer, the person in charge of the business
on a day-to-day basis was Harry Reeves. In 1975 another
corporation was formed - Dagin-Akrab Floor Covering,
Inc., which continued the same business. This corporation
also signed a collective-bargaining agreement with the
Union, and Harry Reeves continued in charge of the
business operation. In mid-year 1975 Dagin-Akrab entered
into a contract to sell and install carpeting at a Fort Riley
military site; work on that job was expected to require a
number of carpetlayer craftsmen and to last as long as a
full year. In the recruitment of craftsmen the employer -
under the name Dagin-Akrab - made prospective work-
men understand they must work "nonunion," their com-
pensation in no sense to be governed by any union
contract. In fact, some employees were hired, and started
work, without benefit of recognition of their union and
without enjoyment of a number of financial benefits
provided for in the union contract. Some persons who were
asked to work on this basis - as nonunion employees -
refused and were denied employment.
The complaint alleges that the two corporations are
really one and the same, or alter egos, with Reeves always
the essential controlling element. It then alleges that by
disregarding and violating its contract with the Union -
the one signed in 1973 by Dee Cee extended to March 1,
1976, and one signed by Dagin-Akrab in April 1975
extended to the same date - by conditioning employment
at Fort Riley in 1975 upon abandonment of the Union by
its employees, and by in fact employing some at compensa-
tion rates below the contract provisions, the Respondent -
whatever its proper name at the moment - violated
Section 8(a)(5) and (3) of the Act, illegal refusal to bargain
and illegal discrimination against employees because of
their union affiliation.
In defense, the Respondent contends that Dee Cee and
Dagin-Akrab are not one and the same, that the two are
completely unrelated employers having nothing to do with
one another, and that while Dee Cee did once have a
contract with the Union, Dagin-Akrab was never a
"union" contractor, was never obligated to bargain at all,
and could therefore rightfully set its conditions of employ-
ment unilaterally. The Respondent asserts that Dee Cee
ceased doing business completely by the end of the year
1974 and that therefore now there can be no unfair labor
practices charged to it because it never ignored the Union
while in business, and there can be no unfair labor
practices charged to Dagin-Akrab because it is a stranger
to any union activity by whoever may have once worked
for Dee Cee.
I Helrose BinderV, Inc. and Graphic Arts Finishing, Inc., 204 NLRB 499
(1973).
Clarification
For reasons set out below, I find that the two corpora-
tions were in fact one and the same, and that by flouting its
contract with the Union and unilaterally changing condi-
tions of employment to put an end to union representation
by any of its employees, the "Respondent," as named in
the complaint, committed the unfair labor practices
alleged.' The interest of clarity requires, however, that an
alternative allegation appearing in the complaint, and
reasserted by the General Counsel at the hearing, be
understood and put into proper prospective in this
Decision. The complaint alleges that Dagin-Akrab is "an
alter ego of, and/or a successor to" Dee Cee. There is an
absolute distinction between alter ego concepts as dealt
with in Board law, and so-called successorship cases. The
one bears no relationship whatever to the other. And where
the complaint alleges here, as it does, that Dee Cee and
Dagin-Akrab were alter egos one to the other, while
simultaneously also being predecessor-successor, it is
incoherent on its face.
Businesses, commercial operations, and employing enter-
prises are run and controlled by people, management
groups, and human beings; what designating names they
choose to use from time to time in no way alters this reality.
When the Board speaks of alter egos it is dealing with
changes of facade, superficial appearance of management,
or control group substitutions which in truth do not alter
the identity of the human element in the ownership and
running of the business. Here Harry Reeves was the central
controlling force in Dee Cee, and the General Counsel
says, in his first part, that Reeves held the same position
with respect to Dagin-Akrab. In contrast, successorship
looks to the business itself, the employing enterprise, as
something apart from its owner, or the management force
which runs and controls it at any given moment. The
business itself - with its real estate, its machinery and
equipment, its complement of employees, its fixed custom-
ers or valuable goodwill - stands apart from whoever
owns it now or then. When the business passes into other
hands, or into control of new and different interests from
that which first owned and controlled it, whoever receives
the business is called the successor - a competitor who
buys it up, a trustee in bankruptcy, a creditor committee,
an heir, anybody - but always a stranger to the first
identified employer. Dee Cee and Dagin-Akrab therefore
cannot be both alter egos and predecessor-successor.
It is important to stress this distinction lest there be
misconception of the basis of decision in this case. The
unfair labor practice finding in no sense rests upon any
successorship concept. In my considered judgment a
factual finding that Dagin-Akrab was a successor - and
therefore of necessity not the alter ego - to Dee Cee,
would not be justified by the evidence. Dee Cee was a
subcontractor typical of many in the construction industry.
It had an office in what must have been rented space
upstairs in an inner-city office building. It owned no real
estate, no building, no shop, no machinery or production
equipment, and it had no employees working for it on a
424
DEE CEE FLOOR COVERING, INC.
regular basis. No less significant, it had no regular
customers, or continuing predictable flow of business. It
submitted a bid here and there to a general contractor;
when it succeeded in winning a contract it bought
carpeting to be brought to the jobsite, hired available
workmen pursuant to its contract with the Union - not
necessarily the same persons who had worked on its
previous job - and then released them when the project
was completed for other employment wherever they could
find it. If the successor is an employer who buys, or
otherwise takes over the business of the predecessor, what
business did Dagin-Akrab take from Dee Cee? It took no
assets, it took no customers, and it certainly took no
employees. Among the essential tests of successorship is
whether the successor hires a majority, or at least a great
number of the predecessor's employees. Which employees
did Dagin-Akrab hire? Nor did the alleged "successor" in
this instance take over the predecessor's name. I suppose
there could be a case in the subcontracting aspect of the
construction industry - involving the use of a fluid group
of craftsmen - where the established name of the seller is
of such value in a business getting sense as to approach the
transfer of an employer enterprise concept. Such was not
the case with respect to Dee Cee. It may well be that in this
industry there can be no such thing as successorship. In
any event, that question is not reached here, and this
Decision is not to be taken as a ruling on the matter in any
sense.2
Alter Ego
Harry Reeves was the principal witness called by the
Respondent. He said he has been in the carpet selling and
installing business since 1971, first starting with the name
"Direct Carpeting Contractors." He continued that he also
did business under the name "Dee Cee Floor Covering,
Inc.," organized in June 1973. Reeves' opening testimony is
that he signed a union contract in 1972 or 1973 under the
name "Dee Cee Floor Covering," of which he was the
president. Later received in evidence, that contract shows
his signature and the name "Dee Cee Carpet" as the
employer; it is dated April 1, 1973. Reeves was president
and his wife secretary of that company, whatever its name,
and between the two they owned 325 of the outstanding
500 shares of stock. Reeves alone held a majority of the
shares. There is no indication Mrs. Reeves had anything to
do in fact with the business operations reflected in this
story. Reeves also signed another contract with the Union
on November 29, 1972, this time under the name "D. C.
Installation" to identify the employer. The Respondent
conceded in its answer and at the hearing that during late
1973 and throughout 1974, in the name of Dee Cee
Flooring, Inc., Reeves - or that corporate entity - was in
collective-bargaining relationship with the Union, calling
2 While in his posthearing brief the General Counsel says he will no
longer "pursue" the successorship theory, he nevertheless cites a number of
prior Board successorship decisions in support of the complaint.
I There is no rational explanation anywhere in the record for the
interchangeable use by Reeves of the two names Dee Cee Floor Covering.
Inc. and Dee Cee Carpet. While doing business as Dee Cee Floor Covering,
Inc., he signed Dee Cee Carpet to identify himself. In his brief his counsel
makes much of the different names Reeves used. Asked about these two
for employees through the Union, and carrying on the
carpet selling and installing business on that basis.
Reeves said at the hearing that Dee Cee Floor Covering
went completely out of business in December 1974, but two
employees testified they worked for that company in 1975.
Edwin Hogan said he worked on two projects for Dee Cee
during March, one at Joplin and one at Leavenworth.
Garry Allen, another union member, said he too worked
on these jobs for Dee Cee at that time. Aside from saying
that these employees were paid by the general contractor
on those projects, Reeves did not deny that Dee Cee Floor
Covering hired them on these jobs during the first half of
1975. 1 credit Hogan and Allen, for, as will appear, Reeves
was not a reliable witness.
In 1975 still another name came into being - Dagin-
Akrab Floor Company, Inc. When it was first organized, in
March, Josephine Reeves owned all the stock and was the
president; this Mrs. Reeves is Harry Reeves' aunt, and she
worked as the office secretary of one company or
corporation after another. In September the stock was
reapportioned, with Mrs. Reeves holding 588 shares and
one Everett Lee holding 612. The record is silent as to who
Mr. Lee may be, and there is nothing to indicate he ever
had anything to do with running whatever business was
carried on. On April 2, 1975, Reeves went to the Union's
office, taking one Allen Gibson with him. At that time
Gibson held no position at all with Dagin-Akrab Floor
Company, Inc., and owned no part of it. In the union
office, on April 2, Reeves told Richard Meyers, the Union's
business manager with whom he had done business in the
past, "that Dee Cee Carpet was going to be no more and
that they were going to open a company named Dagin-
Akrab," and that "they wanted to sign a new contract."
This is Meyers' testimony. A contract was signed that day,
another copy of the 1973-76 agreement Reeves had signed
in 1973 in the name of Dee Cee Carpet. This one was
signed by Gibson, and the employer identified simply as
Dagin-Akrab. The agreement was received in evidence
without question. Reeves also explained to Meyers that he
would do the selling and Gibson the installing. Gibson had
been a straight carpetlayer, sent by the Union, on previous
jobs controlled by Reeves.
As a witness Reeves asserted he ceased being a business
man, ceased being an employer or in any sense an agent of
an employer, with the demise of Dee Cee - whether it be
called Dee Cee Carpet or Dee Cee Floor Covering, Inc. 3
He said that in August 1975 he became an employee of
Dagin-Akrab, several times stressing that he was no more
than a salesman, a consultant. And to prove this conclu-
sionary assertion, he produced a written hiring agreement
dated August 5, 1975; it is signed by him, by his aunt -
Josephine Reeves - attesting as secretary, and by Gibson,
formally designated on the document as president of
Dagin-Akrab. Gibson had only 2 weeks earlier replaced
names, Reeves testified: "I am familiar with Dee Cee Floor Covering. Inc."
And then: "Q. Is that synonomous with Dee Cee Carpet Company? A. I
wouldn't know how to answer that." Clearly he paid no attention to the
details of his operational names. and that very fact further strengthens the
essential finding that throughout it was he personally who was doing
business, with the wording of his legal title of the moment having no real
significance.
425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reeves' aunt as president of the Company. With this it is
the burden of Reeves' testimony Dagin-Akrab never had
anything to do with Dee Cee Floor Covering, or with him
as an employer.
Reeves was hard put to explain away a number of
objective facts of record giving the lie to his contrary
contentions. His attempt to distort the picture of his
activities must be totally rejected, if only on the basis of his
answer to the following question put to him, as the last
witness, by Respondent's counsel:
Q. With regard to the conversations that were
allegedly held on or about April 2, 1975, with Mr.
Meyers, was there every any statement made that
Dagin-Akrab Floor Covering, Inc., was going to sign a
contract with the Union or intended to?
A. No.
But the contract signed then and there in the name of
Dagin-Akrab was received in evidence. At the start of the
hearing, as an adverse witness, Reeves had said, "I was not
with Mr. Gibson at the time he signed a document with the
Union for Dagin-Akrab Floor Covering...." He admit-
ted having brought Gibson to Meyers' office. "Did you
remain to hear what went on?. . . No, I was talking to his
partner at the time .... Did you stay there, I mean? ... I
was in the room, on the other side." Again: "Did he
[Gibson] sign anything that day. A. I wasn't sitting there
watching him sign it, I can't say if he did or didn't," Reeves
simply was not a credible witness.
This was Reeves, at the union office, for reasons
sufficient onto himself, desirous of making a paper record
creating a fictitious picture of substantive change in his
business activities where there really was none. His total
testimony was no more than a continuing effort to erase
himself from the position of employer, as it were. He
insisted he is now no more than a salesman, but his
contract with Dagin-Akrab provides: "The duties of said
consultant are to be those of a general supervisor, including
employer/employee relations [emphasis supplied], the pur-
chasing of materials, handling relations with the general
contractor, negotiating any contracts which are necessi-
tated by the project, and all other duties incident to the
performance of the said subcontract." All this is but
another way of saying he runs the business.4 The Fort
Riley job, which gave rise to this proceeding, was expected
to occupy the entire company for a year and there is no
indication any other job or project was even anticipated at
the time of the hearing. Asked to explain what he does for
Dagin-Akrab, Reeves said as a witness: "I oversee
management of the entire issue." Asked how many
contracts does the company presently have, he answered:
"I have no idea." His lawyer then said Fort Riley is the
only one.
Merely because a subcontractor in the construction
business may not have an identifiable business operation
with physical assets such that can be passed on to a
successor, it does not follow that the management, the
operator, the owner, the people who carry on such
commercial operations, do not constitute a continuing
entity such as to bring into existence employer-employee
relationships subject to the jurisdiction of the Act like any
other employer. The labor law is concerned with substance,
not with form. Constantly changing corporate titles, or any
other names, may serve a purpose under other laws, but
they are meaningless insofar as the employees are con-
cerned and insofar as the question of who determines
conditions of employment. This law is concerned with
people, not names. In this case it was Harry Reeves who
ran this business from first to last, who hired employees -
or decided how they would be hired and under what
conditions, and who made the decision - changing from
time to time - as to whether they were to be "union" or
"nonunion." To coin a phrase, he was the ego in all the
alters. When Gibson was needed, he was used to sign the
Dagin-Akrab contract in April, although he was a stranger
to the employer - whatever its name. By August a man
named Bernard - also just another former employee of
Reeves' - was added to the company - made a vice
president out of a clear sky. When Meyers called the office
that month to inquire what was going on at Fort Riley,
Bernard answered, and said: "Mr. Reeves and Mr. Gibson
were no longer with the firm." But Gibson had been made
president of the "firm" only a month earlier. "Oh, what a
tangled webb we weave ... ."
By agreement with the Union as the representative of his
employees, Reeves hired, as he admitted, through the
union hall throughout 1974. He bid successfully on another
job in 1975, and again he needed carpetlayers as he had
needed them in the past. This time he simply decided he
did not care to continue recognizing the Union, and the
still effective contract - and never mind the law which
says it is the employees and not the employer who decide
questions of representation. If a subcontractor in the
construction industry can look upon each new contract it
undertakes as a business enterprise unrelated to any of his
previous business projects, it means an end to all collective-
bargaining contracts, and all stable union representation,
in the entire industry.
Refusal to Bargain
When Meyers, of the Union, got word, from three or four
union members, that they had been approached to work at
Fort Riley but on a "nonunion" basis, he telephoned the
office of Dagin-Akrab. Bernard answered, and, as Meyers
testified, said he was the new owner, and that "Reeves and
Gibson were no longer with the firm." Bernard did not
appear as a witness, and it is clear on this record he was
lying to Meyers. Later Bernard went to Meyers' office, but
refused to sign the usual necessary health and welfare
contribution document on request.
Meanwhile, Bernard called several union members in his
search for carpetlayers needed at Fort Riley. On the phone
he offered work to Allen, saying he would pay the union
hourly rates, but not any of the various fringe benefits
called for in the union contract. He told Allen the men
"would have to drop out of the Union ... would have to
4 J. HowardJenks, d/b/a Glendora Plumbing, 165 NLRB 101 (1%967).
426
DEE CEE FLOOR COVERING, INC.
take a leave of absence from the union for a year in order
to work up there." Allen refused the offer. Bernard also
spoke to Donald Claycomb, of the Union, and asked "if I
would sign a statement saying that I didn't belong to the
union when I was employed by him." Gibson, too, spoke to
Claycomb, and this man did accept the offer on that basis
and went to work for straight pay, losing all the contract
benefits. Bernard also called a union member named Fred
Wakefield, to say he was looking for men, "he was not
hiring union men, but that he was paying union scale."
When Wakefield answered he was not interested, Bernard
asked did Wakefield know any others that might be.
The refusal to bargain with the Union, as the statute
commands, is clear. I find that by refusing to continue to
recognize the Union as the exclusive representative of its
employees at the Fort Riley project, by disregarding the
effective contract then in force between the Respondent
and the Union, and by offering to hire and in fact
employing carpetlayers on conditions of employment set
unilaterally by the Respondent, the Respondent - precise-
ly as named in the complaint - violated Section 8(a)(5),
(3), and (1) of the Act.
One further argument in defense is advanced for the first
time in the Respondent's brief, and it is that because the
1975 union contract signed in the name Dagin-Akrab
speaks of the Kansas City area it could not apply to the
Fort Riley job, located outside the jurisdiction of this
Union. I find no merit in the argument because it is clear
the parties intended the agreement to be for that job. It is
the only one Reeves was preparing for, it is the only one the
Company has been engaged in, and it constitutes the only
business of that company involved in the case. Moreover, if
the contract did not apply to Fort Riley, there was no
reason for Bernard, or any agent of the Company, to
condition employment on resignation from the Union, or
to say at all it would be a nonunion project.
THE REMEDY
It having been found that the Respondent unlawfully
refused to bargain with the Union by ignoring its effective
collective-bargaining agreement, by unilaterally establish-
ing conditions of employment, and by denying to its
employees covered by the union contract economic
benefits in return for work as provided therein, it must be
ordered to cease and desist from such conduct and to take
remedial action. The Respondent must recognize and
bargain with the Union on request, as the statute
commands. It must be ordered to abide by the terms of
that agreement in every respect. And it must make whole
all employees who have worked for it since the summer of
1975 and who have been denied any of the economic
benefits, including all fringe benefits, and particularly who
have worked at its Fort Riley project. The employees must
be reimbursed for any moneys thus due them, and
payments must be made retroactively on their behalf to the
Union's health, welfare, and pension funds.
CONCLUSIONS OF LAW
I. By refusing to bargain with the Union in August
1975, and thereafter, concerning wages, hours, and other
conditions of employment in the unit found appropriate
herein, the Respondent has violated and is violating
Section 8(aX5) and (1) of the Act. The unit appropriate for
the purposes of collective bargaining now is:
All workmen employed by the Respondent who handle
the tools of the trade in doing all work on projects
located in the Kansas City, Missouri, area, and
Wyandotte, Johnson, Leavenworth, Bourbon, Linn and
Miami counties in Kansas, and such other areas as may
be assigned by the Union, which work may consist of
measuring, cutting, and laying of old and new carpet,
linoleum and all types of resilient floor and wall
covering material, whether in sheets, rolls, or inter-
locked; plastic, laminated plastic and metal wall tile,
fitting devices for attachment of carpet, linoleum,
rubber, and all other resilient floor and wall coverings,
and fitting of metal caps at corners used in the
installation of linoleum and plastic counters, tables,
and steps; artificial turf and derivatives thereof,
including monolithic covering; and preparatory work
for all the above mentioned, including under laymen,
but excluding all supervisors.
2. By unilaterally changing conditions of employment
at its Fort Riley project, the Respondent violated Section
8(a)(5) of the Act.
3. By conditioning employment at its Fort Riley project
upon withdrawal from the Union, and by denying to
employees at its Fort Riley project the economic benefits
provided for in the effective collective-bargaining agree-
ment, the Respondent has violated and is continuing to
violate Section 8(aX3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
427