MP Building Corp.

National Labor Relations Board - Board Decisions

Jun 22, 1967

165 N.L.R.B. 829 (N.L.R.B. 1967)

MP BLDG. CORP.
MP Building Corporation, M & P
Manufacturing Corporation , Woodville
Construction Corporation , Specialty Con-
tractors , Inc., Dan Kent d/b/a Kent
Construction Company and United
Brotherhood of Carpenters and Joiners of
America , AFL-CIO. Case 23-CA-2418
June 22, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On March 28, 1967, Trial Examiner Harry H.
Kuskin issued his Decision in the above-entitled
case, finding that Respondents had engaged in
certain unfair labor practices and recommending
that they cease and desist therefrom and take
certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial
Examiner also found that Respondents had not
engaged in certain other alleged unfair labor
practices. Thereafter, the first four of above-named
Respondents filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection' with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
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 Trial Examiner and
hereby orders that the Respondents, MP Building
Corporation, M & P Manufacturing Corporation,
Woodville Construction Corporation, Specialty
Contractors, Inc., and Dan Kent d/b/a Kent
Construction Company, their officers, agents,
successors, and assigns, shall jointly and severally
take the action set forth in the Trial Examiner's
Recommended Order.
IT IS FURTHER ORDERED that the complaint be,
and hereby is, dismissed insofar as it alleges
violations other than those found by the Trial
Examiner.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
829
HARRY H. Ku5KIN, Trial Examiner: This proceeding
was heard at Woodville, Texas, on November 3 and 4,
1966, pursuant to a charge, amended charge, and second
amended charge, filed on June 16, August 23, and
August 31, 1966, respectively, and a complaint, which was
thereafter amended at the hearing, issued on
September 14, 1966. It presents the questions of whether
Woodville Construction Company, herein called
Woodville, alone or as a single-integrated enterprise with
three other corporations and an individual doing business
under a trade name, violated Section 8(a)(1), (3), and (5) of
the Act. These other entities are MP Building Corporation,
herein called MP Building; M & P Manufacturing
Corporation, herein called M & P Manufacturing;
Specialty Contractors, Inc., herein called Specialty; and
Dan Kent d/b/a Kent Construction Company, herein called
Kent; all of them, together with Woodville, are collectively
referred to herein as Respondents. As appears in greater
detail hereinafter, all these entities are engaged in, or
derive income from, the portable buildings business; thus
Woodville and Kent are neighbors engaged in the
construction of portable buildings in the city of Woodville,
on a tract of land owned by M & P Manufacturing and to
which they pay as rent a percentage of their annual profits;
MP Building is engaged in purchasing and/or causing to be
constructed portable buildings, which it sells itself, and
through its wholly owned and controlled subsidiaries, both
at retail and wholesale. So far as appears, at all times
material herein, Woodville and Kent were constructing
portable buildings for MP Building only, using supplies
and building materials furnished by it. As to Specialty, its
business is that of brokering contracts for MP Building
and other similar companies; in that capacity it causes
Woodville and Kent to perform the necessary work of
putting the portable buildings together. Neither Specialty
nor M & P Manufacturing employs any employees. Each
functions only through its corporate officers. MP Building
states only that it has "no employee subject to the Union
and the National Labor Relations Board."
As to the details of the claimed violations, the amended
complaint, alleges that, in violation of Section 8(a)(1),
Respondents took pictures of individual employees while
they were performing their regular work assignments at
the Woodville plant; it alleges further that, in violation of
Section 8(a)(3), Respondents have discriminated against
one of these employees, viz, Joe Henry Copes, by
discharging him from his job at the Woodville plant and by
failing and refusing to reinstate him; and, finally, it alleges
that in violation of Section 8(a)(5) of the Act, Respondents
have refused and continue to refuse to bargain collectively
with the Union, the certified bargaining agent of the
production and maintenance employees at the Woodville
plant, by unilaterally changing existing wage rates, hours
of employment, method of constructing portable buildings,
and other terms and conditions of employment at the
Woodville plant, resorting to the following steps in
connection therewith: Dan Kent, acting in concert with
and/or as the agent for the other named Respondents,
"established and created" Kent Construction Company;
Kent, in turn, d/b/a Kent Construction Company, began
acting and has continued to act as agent, successor, or
alter ego of Woodville, in that Respondents began and
165 NLRB No. 123
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have continued to assign and/or transfer work previously
performed by Woodville to Kent.
Separate answers were filed by each Respondent
denying the commission of any unfair labor practices.
More particularly, Woodville, while admitting that it is
engaged in commerce and that the Union is a labor
organization within the meaning of the Act, takes the
position, in substance, that it is not part of a single
enterprise, or a coemployer, with any other persons, firms,
or corporations herein; that S. W. Burgess is its president
and general manager and that, contrary to the complaint,
Guy H. Morgan, Sr.,' is, not its president, officer or
director; that, with reference to Kent, to the best of its
knowledge and belief, Kent is an unrelated business
engaged, like itself, in the construction of portable
buildings from materials furnished by others at a site in
Woodville, Texas; that it has taken pictures of its
operation and its employees while they were performing
work regularly assigned but such picture taking occurred
because it "is duly and properly proud of its operation, is
interested in what its employees are doing and feels that
the taking of pictures is well within the province of its
rights" and therefore not violative of Section 8(a)(1); that it
did not discharge Copes in violation of Section 8(a)(3) but
that he refused to do any of the operations assigned and
voluntarily quit; and, further, it has never had the
opportunity to fail or refuse to reinstate Copes because his
reinstatement has not been requested; and that it has
never made any unilateral changes in the manner alleged,
in violation of Section 8(a)(5) of the Act, having
deliberately maintained the status quo that existed at th'
time of the commencement of negotiations with the
representative of the Union in 1965.
As to MP Building, while admitting that it is engaged in
purchasing, and/or causing to be constructed, portable
buildings which it sells itself and through its wholly owned
and controlled subsidiaries,2 both at retail and wholesale
within and outside of Texas, and is, therefore, engaged in
commerce within the Act's meaning, and while further
admitting that the Union is a labor organization within the
meaning of the Act, it takes the position, in substance, that
it is not part of a single-integrated enterprise with any
other persons, firms, or corporations. It denies further that
it has a plant either in Beaumont or Woodville, Texas, as it
is not engaged in the construction and erection of portable
buildings, but is only a sales company, which contracts
with Specialty, and Specialty , in turn , "decides upon
whom and where the buildings will be constructed." It also
asserts that T. R. Moore is its president and general
manager and that, contrary to the complaint, Guy H.
Morgan, Sr., is not its president and Moore is not its vice
president; in addition, it avers that it has "no employee
subject to the jurisdiction of the Union and the National
Labor Relations Board and has nothing to do with any of
the employment relations" of either Woodville or Kent.
As to M & P Manufacturing, while admitting that, "at
one time," it was involved in the construction, sale, or
distribution of portable buildings, it takes the position that
i Sometimes referred to herein as Morgan
2 Two of these subsidiaries are MP Building Corporation of
Louisiana and MP Building Corporation of Texas
1 In its brief, this Respondent asserts, in this connection, that
"neither Mr Morgan nor the corporation has been active for
several years except to lease" adjoining sections of land to
Woodville and Kent
Kent testified that he gets his purchase orders from Specialty,
it has been inactive for a number of years in any of these
matters and is not an employer of the employees involved
herein; it also admits that Guy H. Morgan, Sr., is its
president and that his wife, Amy Z. Morgan, is its vice
president.3
As to Specialty, while admitting that it "is engaged in
the business of brokering contracts for MP Building and
other similar companies and that [it] does cause
Woodville and Kent and other such companies to perform
the necessary work, to put portable buildings together,"4 it
takes the position that it is not otherwise involved; that it
has no employees engaged in the construction business
and is not permitted to have any under the terms of its
charter, has not participated in any of the conduct alleged
in the complaint, and has no interest in the employment
problems of any other corporation. It takes no position
with respect to the allegations that it is engaged in
commerce within the Act's meaning and that the Union is
a labor organization within the meaning of the Act.
As to Kent, he denies that he is, or ever has been, an
agent of, or act,, or has acted in concert with, or is, or has
been, in any way connected with, Woodville or any
Respondent herein; in addition, he asserts that he is an
independent contractor.
Upon the entire record,5 including my observation of the
witnesses, and after due consideration of the briefs of the
General Counsel and of all Respondents, except Kent, who
did not file a brief, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENTS
The complaint, as amended, alleges, and Respondents
separately deny, that, at all times material, they have been
a single-integrated enterprise engaged in the business of
purchasing, constructing and/or causing to be
constructed, and the sale of portable buildings, with
principal offices located in Beaumont, Texas, and with an
operation in Woodville, Texas, which is the only operation
of Respondents involved in these proceedings. The
complaint, as amended, alleges further, and it is not
denied, that, during the past year, of the products that
were manufactured, sold, and distributed at the Beaumont
and Woodville plants, over $50,000 worth was shipped
directly outside Texas.6 While MP Building and Woodville
stipulated that they are each engaged in commerce within
the Act's meaning, no such stipulation was entered into by
any of the other Respondents. Hence, because no
commerce data was adduced at the hearing which might
form a basis for asserting jurisdiction separately over
either Specialty, or M & P Manufacturing, or Kent, these
entities may be found to be subject to the Board's
jurisdiction only if, as alleged, they constitute, together
with Woodville and MP Building, a single-integrated
enterprise.
It is well established that the Board will treat separate
corporations or entities as one employer for jurisdictional
that MP Building orders from Specialty, which subsequently
orders from him
' As corrected by my Order Correcting Transcript dated
February 20, 1967
With respect to Kent , the complaint , as amended , alleges that
lie is engaged only at a site in Woodville, Texas, in the
construction of portable buildings which he sells, himself, or
through the other Respondents at retail and /or wholesale
MP BLDG. CORP.
purposes where the firms, despite their nominal
separation, are highly integrated with respect to ownership
and operation.7
As to the degree of common ownership and common
management , the record discloses the following: M & P
Manufacturing has been in existence since at least
May 31, 1958, and so far as appears, Guy H. Morgan, Sr.,
and Amy Z. Morgan, his wife, have always held 99 percent
of its stock. Thus, in 1958, Guy H. Morgan, Sr., owned
5,000 shares of stock, Amy Z. Morgan owned 4,900 shares,
and Hugh G. Freeland owned 100 shares. Their holdings
were thereafter increased in 1964 by 65,000 shares, 63,700
shares, and 1,300 shares, respectively. In addition, Guy H.
Morgan, Sr., and Amy Z. Morgan have been, and are
currently, president and vice president, respectively, and
Hugh G. Freeland is secretary-treasurer. With respect to
MP Building, which has been in existence since at least
December 12, 1962, Guy H. Morgan, Sr., originally held
40,000 shares of stock and T. R. Moore, John W. Andrus,
and Hugh G. Freeland, each held 10,000 shares, giving
Guy H. Morgan , Sr., 57 percent of its stock. One year
thereafter, the latter transferred 10,000 shares of his stock
to Freeland, thereby reducing the extent of his stock
ownership to about 42 percent. As to the officers and
directors of MP Building, the General Counsel and
Respondent MP Building stipulated that, as of
December 31, 1965,,Guy H. Morgan, Sr., was president, T.
R. Moore and John Andrus were vice presidents, and
Hugh Freeland was secretary- treasurer . It is, however, the
position of Respondent MP Building that Guy H. Morgan,
Sr., is no longer the president of MP Building. In this
connection, Guy H. Morgan, Sr., testified that, at the
general meeting of the board of directors of MP Building in
January 1966, T. R. Moore was elected president in his
place. Yet, the certificate of the Comptroller of the State of
Texas, in evidence as General Counsel's Exhibit 4,
discloses that, under date of April 25, 1966, Moore affixed
his signature to the Corporation Tax Report of May 1,
1966, as vice president of MP Building, and declared the
slate of officers to be as stipulated above. With respect to
Woodville, its existence antedates February 24, 1961. At
that time, Guy H. Morgan, Sr., transferred 500 shares of
his Woodville stock to Hicks Bernard Morgan, one of his
sons, and another 500 shares to JuAunne Amy Morgan
Burgess, a daughter.8 With respect to the officers and
directors of Woodville, the General Counsel and
Respondent Woodville stipulated that, as of August 31,
1965, Guy H. Morgan, Sr., was president, Amy Z. Morgan
was vice president,9 and Hugh Freeland was secretary-
treasurer . It is, however, the position of Respondent
Woodville that Guy H. Morgan, Sr., is no longer the
president of Woodville. In this respect, Guy H. Morgan,
Sr., testified that, as of September 1, 1966, his son-in-law,
S. W. Burgess,10 became president of Woodville instead of
him. Yet, Burgess was not sure of the exact date when he
was elected president and, , when pressed during
questioning by the General Counsel as to whether he was
not elected at a meeting on November 1, 1965, he
answered, "that sounds about right." Further, with
7 Sakrete of Northern California, Inc v N L R B , 332 F 2d 902
(C A 9), enfg 140 NLRB 765; cert denied 379 U S. 961 See also
Wenatchee Thrifty Drugs, Inc, 151 NLRB 752, and Darlington
Manufacturing Company, 139 NLRB 241
" There is no indication in the record as to whether Guy H
Morgan, Sr., still holds any stock in Woodville.
" Amy Z Morgan is the mother of Hicks Bernard Morgan and
JuAunne Amy Morgan Burgess
831
respect to Specialty, which was incorporated on May 18,
1965, Guy H. Morgan, Sr., and Amy Z. Morgan, each own
500 shares of stock, giving them 100-percent ownership of
the corporation. The record also shows that Guy H.
Morgan, Sr., is its president.
It is thus clear that Guy H. Morgan, Sr., and his wife,
Amy Z. Morgan, own all the stock of Specialty and
virtually all the stock of M & P Manufacturing, that their
son and daughter own virtually all of the stock of
Woodville, and that Guy H. Morgan, Sr., once owned 57
percent and still owns 42 percent of the stock of MP
Building. Such stock ownership among members of the
Guy H. Morgan family satisfies the requirements for a
finding of common ownership in the four corporations."
I am also satisfied that this common ownership
constituted more than a mere holding of stock. In this
connection, it is evident that Guy H. Morgan, Sr., has
always held the dominant position in these corporations.
And this has been so, notwithstanding his testimony,
which I do not credit, that since sometime in 1957 he had
"retired from all active interests of everything that [he]
had interests in." For, even granting that Morgan had to,
because of his health, depend more on others thereafter, it
is also apparent from the record that Morgan never
relinquished ultimate control to those individuals. Thus, it
is also admitted that Morgan was at all material times
president and director of M & P Manufacturing and of
Specialty,12 and further that his wife was at all material
times vice president and director of M & P Manufacturing
and of Woodville. Additionally, as I have found above, it is
not disputed that Morgan was, during some of the time
material herein, president and director of MP Building and
of Woodville.
The extent of Morgan's control of the affairs of these
four corporations is further demonstrated by the following:
Morgan testified that "there has been many times when
maybe [he] would call long distance and ask [Burgess, his
son-in-law,] to attend to something for [him concerning M
& P Manufacturing]. He has graciously done so." More
particularly, Morgan testified that he authorized Burgess
to grant an easement dated August 8, 1966, in behalf of M
& P Manufacturing, to Gulf States Utilities Company and
Southwestern Bell Telephone Company, and Burgess, in
turn, acknowledged the grant as the act and deed of M & P
Manufacturing. Morgan indicated further that Burgess
had no written grant of authority or power of attorney, that
such authority was given to him orally. And with respect to
Specialty, where Morgan admittedly retained an active
interest, Morgan testified that "[he] would if [he]
desired, if [he] needed it," have Burgess attend to details
of the business of that corporation. As to the details of
Woodville's operations, those were apparently entrusted
to Burgess , his son-in-law , as general manager , during
Morgan's incumbency as president. In that capacity, he
had final authority with respect, to hire, layoff, discharge,
wages, hours, and other relevant matters. While Burgess
has more recently, replaced Morgan as president of
Woodville, the change appears to be one of form rather
than substance, as demonstrated by the fact that Burgess
He is the husband of JuAunne Amy Morgan Burgess.
The "Interlocking directorates and family ties make the
[four] equal one for our purposes." N.L R B v Stowe Spinning
Company, 336 US 226, 227
'i Morgan testified that the only persons working for Specialty
are its officers and directors, namely, Amy Z. Morgan, the vice
president, Hugh G Freeland, the secretary-treasurer, and
himself, and that he had an active interest in Specialty.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is not a stockholder of the corporation, and the further fact
that Burgess was not sure of the exact date when he was
elected to that office. And with respect to MP Building,
since it would appear that the asserted change in the office
of president from Morgan to T. R. Moore, its then vice
president and general manager, may have occurred during
1966, I find further in the light of all the foregoing that the
measure of control that Morgan admittedly exercised over
his interests in MP Building before he "retired" continued
thereafter and for a very substantial part of the time
material herein; i.e., since the certification of the Union.
In addition to the aforesaid common ownership and
control of these four corporations, there exists also a
marked interrelation of operations. Thus, as I have already
found, Woodville builds the portable buildings on part of a
tract of land with improvements thereon owned by M & P
Manufacturing, out of materials furnished by MP
Building; Woodville does so upon the basis of orders from
MP Building,13 which orders have over the years been
placed with it directly by MP Building and may now be
placed with it indirectly through Specialty, which was
organized in 1965 and acts as broker of the contracts of
MP Building. It also appears that MP Building and
Woodville have offices in the building situated on the
Woodville tract and owned by M & P Manufacturing.
Significantly, Morgan could not specify where, in the
building, their offices were, saying only that there are
"multiple offices and many of them are used in the same
building. The exact specified area that they use I don't
know." The record shows, too, that "quite a few" of
Woodville's employees wear uniforms while at work, with
the legend "MP Building" thereon, that not even one
uniform of a Woodville employee has the legend
"Woodville" on it, and that Woodville deducts from the
weekly pay of the employees the cost of laundering their
uniform. Additionally, while the portable buildings are
being erected by both Kent and Woodville for MP
Building, the prime contractor, final inspection of these
buildings is done either by one Tiemens't4 or by Burgess,
the president and general manager of Woodville. Further,
a Woodville forklift operator, using a forklift belonging to
MP Building, moves completed and inspected portable
buildings, at times, from the Kent side of the Woodville
tract to the Woodville side so that they may there be
picked up by MP Building and taken away. And while
Burgess testified that he is reimbursed by MP Building for
such work done by his forklift drivers, Burgess admitted,
in the case of Newton, a forklift driver, that he does not
keep a separate record of such work by Newton, and
evasively added that, although he renders bills "on
13 As noted above, MP Building is engaged in the purchasing of
and/or causing to be constructed, portable buildings which it sells
itself and through its wholly owned and controlled subsidiaries at
retail and wholesale
14 Tiemens did not testify Burgess testified that he did not
know whether Tiemens was an employee of MP Building or of M
& P Manufacturing
15 N L R B v Schnell Tool & Die Corporation , 359 F 2d 39
(C A 6), enfg in relevant part 144 NLRB 385 ; cf N L R B. v
Condenser Corporation , 128 F 2d 67 , 71 (C A 3), where the court,
in a somewhat analogous situation involving two corporations,
said
Under these circumstances we believe the relationship of
these two corporations is such that an order pursuant to the
provisions of the statute is proper against both . It [the
order] simply rests on the premise that where in fact the
production and distribution of merchandise is one enterprise,
that enterprise , as a whole , is responsible for compliance
occasion," he does not remember when he last rendered
such a bill.
Finally, since the foregoing setup reveals a situation of
four interrelated corporations engaged in a common
endeavor of building and selling portable buildings, since
the production operations in this group are lodged only in
Woodville, and since, so far as appears, most, if not all, of
the employees among these various entities are employed
by Woodville, I find that the labor policy of Woodville is to
all intents and purposes the labor policy of the other three
corporations. Stated otherwise, I find, on this record, that
to the extent feasible in these special circumstances, there
exists centralized control of labor relations.
It follows from all the foregoing that MP Building, M &
P Manufacturing, Specialty, and Woodville are, despite
their nominal separation, highly integrated with respect to
ownership and operation, as demonstrated by the common
ownership and control, interrelationship of operations, and
such centralized control of labor relations as the
circumstances permit. It follows further that these four
corporations constitute a single employer for jurisdictional
and remedial purposes, thereby rendering each of them
subject to the Board's jurisdiction and order on the basis
of the facts detailed above. (See, infra, section III, C, 3.)i5
There remains, however, the question of whether Kent
is, notwithstanding the absence of any demonstrable
common ownership with the four corporations, also a part
of the above integrated enterprise. In this connection, the
record shows that, about March 1966, Kent, who was in the
business of erecting portable buildings on the old airport
side outside of Woodville, became a next door neighbor of
Woodville. Thereafter, like Woodville, Kent was engaged
in the building of portable buildings on a part of a tract of
land owned by M & P Manufacturing, cut of materials
furnished by MP Building, getting orders through
Specialty which acts as broker of the contracts of MP
Building, the prime contractor, and paying to M & P
Manufacturing as rental under an oral lease a percentage
of gross business. The aforesaid materials did not, and do
not now, come directly to Kent. Instead, materials
intended for Kent, and also Woodville, are brought to the
Woodville side of the tract where some preparatory work
is done on them in the shop by Woodville employees '16 and
they are then stored in the adjoining storeroom or
warehouse. Kent personnel then generally go over to the
Woodville side to get whatever material is needed,
sometimes utilizing the saws, rip boards, and other tools in
the shop for necessary cutting and assembling. 17 Also, at
times, according to the credible testimony of Rains, who
with the Labor Relations Act regardless of the corporate
arrangements of the parties among themselves What is
important for our purposes is the degree of control over the
labor relations in issue exercised by the company charged as
a respondent Regardless of what Cornell says
concerning its connection with Condenser's employees it
appears that "together, respondents act as employers of
those employees and together actively deal with labor
relations of those employees "
s Employee Herring of Woodville, a leader in the shop,
testified that Woodville employees build the materials there "to
make the buildings, the studs, floor joists, ceiling)oists, and some
of the trim "
" Employee Newton of Woodville testified credibly that, "the
people from the Kent side came over and got the materials that
they needed and they put it on the floor and built it up and then
they would take it back over on the other side "
MP BLDG. CORP.
did work for Kent , Burgess brought materials to him on the
Kent side. In describing this traffic to obtain materials,
Burgess testified that the people from Kent "come get
them, pack them off on their shoulders , come get them in
trucks, cars, use carts ." Noteworthy, too, in this
connection, is the fact that Kent personnel are not
required to sign for the material taken and Burgess keeps
no record thereof.
Woodville's contacts with Kent appear to go beyond the
mere traffic in materials , Kent , himself, visits the
Woodville site often and uses one of the offices in the same
building where Woodville has offices . In addition , there is
credible testimony by Rains that (1) Burgess has criticized
his workmanship on the Kent side, (2) he has seen Burgess
on the Kent side from one to three times a week , (3) he has
lined three portable buildings after they were moved from
the Woodville side to the Kent side, whereupon they were
returned to the Woodville side , and, finally, (4) he did this
particular work on instructions from H . C. Hill, a
supervisor of Woodville . Similarly, employee Newton of
Woodville testified that he, together with Charlie
McColough , a coemployee , installed ceiling joists in a
building which was moved from the Kent side to the
Woodville side and was subsequently returned to the Kent
side. As already noted, the record also shows that, when
the portable buildings are completed by Kent , they may be
inspected by Burgess . In addition , completed buildings
are either removed directly by trucks of MP Building or
are, as already found, taken first to the Woodville side by a
Woodville forklift driver and there picked up by trucks of
MP Building . According to Burgess , the latter is done in
accordance with instructions to him from MP Building.
Of further significance is the fact that Woodville has,
from time to time, relinquished some of its space to Kent
in order to further the latter ' s production . The record
shows that in March 1966 , just before Kent came upon the
tract of land , a barbed wire fence consisting of two strands
of wire was stretched across about the middle of the tract
to separate the area to be occupied by Kent from that of
Woodville. Thereafter, however, Woodville moved the
fence twice by angling it each time in such a way as to give
Kent more room for his expanding operation . Burgess
testified that Kent , at no time, told him that he, Kent,
needed the land but that he "suppose [d] that [Kent]
needed more land to work on ," that he did not know who
told him to move the fence , that he "just moved" it
because Woodville did not need the land . Since Burgess
manifested by this testimony , and by the actual moves of
the fence , that Woodville was favorably disposed toward
the progress in production made by Kent , since these
moves also admittedly coincided with the decline in
Woodville 's need for the land, and , as found hereinafter,
Kent 's progress in the construction of portable buildings
was taking place while Woodville's similar activity was
declining , I am persuaded , and find, that Burgess acted, as
he did , in moving the barbed wire fence as part of a
broader plan to shift the production of portable buildings
from Woodville to Kent."'
That there was such a broader plan is, I find,
underscored by the following . Thus, ( 1) while insisting that
'" It is also noteworthy that the barbed wire fence has had an
up-and - down existence throughout When upright , the height of
the fence has varied from about 2 feet to about 4 feet And it
would appear that during the "down" periods and when the fence
was low, some of the above -mentioned traffic moved across it
" Since M & P Manufacturing owns the land , Specialty merely
acts , I find, as a conduit through which payment is made to M & P
Manufacturing
833
his business dealings were only with Specialty, among
these four corporations , Kent seemed to be unconcerned
over the fact that MP Building , with whom he assertedly
had no business dealings, took the completed buildings
away from his side of the tract. Thus, when asked by the
General Counsel , "And you mean , you just let them come
on there and take away completed buildings?" Kent
replied, "Well, as long as they have inspected them"; (2)
while claiming that he paid to Specialty a percentage of his
annual gross business for his leasehold ,1 'he had no record
of what that percentage was and he admitted not keeping a
record of his gross business , saying only that he
"suppose[d] that Specialty [did]," (3) significantly, such
records, as Kent keeps, are kept by JuAunne Amy Morgan
Burgess, the halfowner and vice president of Woodville,
also the wife of General Manager Burgess of Woodville
and the daughter of Guy H. Morgan, Sr., and while Kent
asserted that she was his employee , he merely thought her
salary was $25 a month , could not remember how long he
has been paying her this salary or when he last paid her,
and he admitted he did not deduct for her social security
nor withhold any income tax; and (4) while Kent insisted
that he operated his own business independently of the
others, Rains testified credibly that , when he was engaged
by Kent to line portable buildings, the terms agreed upon
were those required by Burgess : indeed , according to the
uncontroverted testimony of Rains, during his initial
discussion with Kent , the latter said that , "he wasn't the
one to please, that [Rains ] would have to please Mr.
Burgess."
This plan to shift production to Kent from Woodville is
further emphasized by the following record evidence: In
August 1965 at the time the election was held which led to
the certification of the Union herein as the bargaining
agent of Woodville 's production and maintenance
employees , Woodville had approximately 54 employees,
approximately 32 of whom were eligible to vote in the
election . 20 Thereafter and apparently into part of 1966,
Woodville had a relatively stable work force. Production,
at times, reached 50 buildings a week or 200 buildings a
month . However, since about the time of the arrival of
Kent on the Woodville site there has been a marked
reduction in Woodville 's employee complement and in the
production of portable buildings by Woodville?' Thus,
Burgess testified that Woodville was at the time of the
hearing herein producing less than 50 houses a month, and
when pressed for a more exact figure, he testified,
evasively , that the figure "could be ten, could be one,
could be twenty." Indeed , although subpenaed to produce
records of production during the 1966 period, Woodville
produced no record of orders for portable buildings
between February 12 and August 12, 1966 . 22 Furthermore,
whereas, at election time , Woodville had in its employ
various crews , viz, one that worked in the shop, one that
put roofs on, one that worked on flooring , and one that
wrapped up the entire building operation, by the time of
the hearing herein , the complement had been reduced to
seven employees who worked mainly in the shop preparing
materials, such as cutting studs, joists , etc., which were, in
the main, being used by Kent in the erection of portable
2' Included in the total complement were temporary
employees
t' Burgess testified that there was no question that he received
more orders for buildings in February 1966 than he did in August
196622
Burgess testified that , "[ He] rounded up everything that
[he] could find "
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
buildings . In sum , Kent had , in very substantial effect,
replaced Woodville 's role in the integrated enterprise as
the constructor of portable buildings-a replacement
which apparently had the help, blessing , and cooperation
of Woodville . This aid manifested itself, as I have already
found , in (1) the voluntary relinquishment by Woodville to
Kent of land which it had under oral lease, without the
benefit of any commercial arrangement to do so; (2) the
cutting and preparing of building materials by Woodville's
employees for use by Kent in the construction of portable
buildings without a showing of compensation therefor; (3)
the sharing of Woodville 's equipment and office space
with Kent , also without a showing of compensation
therefor ; (4) the access of Kent employees to the Woodville
side, notwithstanding the ostensible barrier of barbed wire
fence between them ; (5) the full awareness by other
entities , including Woodville, of the economics of Kent's
business via JuAunne Amy Morgan Burgess who, as "an
employee" of Kent , keeps his business records; and (6)
Woodville's exercise of management prerogatives vis-a-vis
those working on the Kent side, including having the final
say in what the terms of a working arrangement should be
in the case of at least one individual working on the Kent
side and , as found hereinafter , in the case of Joe Henry
Copes, preventing him from going to work on the Kent side
after his discharge by Woodville. Indeed , the relationship
of Kent with Woodville is of such proportions that Kent
emerges, I find , as a disguised continuance of most, if not
all, of Woodville ' s operations relating to the actual
construction of portable buildings . And while Woodville
appears to attribute the decline in the number of its
employees to quittings , layoffs, and other reasons, it is
apparent and I infer and find further, from the
contemporaneous recruitment by Kent of all the people it
needed , that , had Woodville wished to do so, it could have
recruited the needed replacements . Under the
circumstances and on the basis of the entire record, 'I
conclude, and find , that Kent is, in respect to the erection
of portable buildings , the alter ego of Woodville and is, like
Woodville, integrated into the operations of the
aforementioned four corporations so as to be, like
Woodville, part of the single - integrated enterprise already
found above and subject to the Board 's jurisdiction.23
I find , upon all the foregoing , that all Respondents
constitute a single-integrated enterprise or employer
within the meaning of the Act ; that by reason thereof all
are engaged in commerce within the meaning of the Act;
and that all are separately and collectively responsible for
the unfair labor practices found.
II. THE LABOR ORGANIZATION INVOLVED
The complaint , as amended , alleges, and two of the
Respondents agree, and I find , that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background Sequence of Events
Organizational activity among the employees of
Respondent Woodville began in the middle of April 1965
when A. C. Shirley, a business agent of the Union , visited
the Woodville site. At that time, Shirley contacted Joe
t' See William E. McClain d/b/a Dairy Farmers Transfer, 158
NLRB 78.
1, Sometime thereafter the Union withdrew the charge
zs As heretofore found, Kent arrived on the Woodville site in
Henry Copes, an employee of Woodville, who is alleged to
be a discriminatee herein . Shirley enlisted Copes' aid in
getting the employees to sign union authorization cards.
Copes did succeed in getting about 12 or 15 cards signed.
On May 3, 1965, Shirley mailed to Woodville a request for
recognition as the collective -bargaining representative of
its production and maintenance employees . The letter was
forwarded by Woodville to Hugh G. Freeland , counsel
herein to Woodville and the other three corporations.
Freeland, in turn , replied that Woodville "declined or does
not at this time recognize the Union as a bargaining
agent ." On May 10, 1965, the Union filed a petition in Case
23-RC-2443 with the Board ' s Regional Office, for an
election at Woodville and at M & P Manufacturing. An
election was thereafter held on August 6, 1965, among the
production and maintenance employees of Woodville,
which the Union won by a vote of 21 to 11. The Union was
certified as the exclusive bargaining representative of the
aforesaid unit on August 16, 1965. Thereafter , through the
efforts of Shirley, the Union and Woodville met for
bargaining purposes at the Woodville Community Inn
about the last week in August or the first of September,
and again on October 29. During the interval , the parties
corresponded on bargainable matters. Although a third
meeting was agreed upon for November 5, 1965, it did not
take place because Hugh G. Freeland, Woodville's sole
representative in bargaining , did not appear at the
Woodville Community Inn where the meeting was to be
held. Freeland had dispatched a letter to the Union, dated
November 3, saying that he could not, because of
"calendar difficulties ," come to Woodville on
November 5, but the letter came to the Union 's attention
subsequent to the appointed time of the meeting . Freeland
urged in his letter that the union committee come to his
law office in Beaumont , Texas, for a meeting on
November 5 at 7:30 p . m., but the Union did not oblige. The
next meeting took place more than 6 months later, on
May 23, 1966 . According to Shirley , the Union considered
the intervening period to be inopportune for bargaining for
two reasons and therefore did not request further
negotiations until some time in April 1966 . The reasons
were: (1) the Union had, in November 1965, filed an unfair
labor practice charge against Respondent Woodville'24
alleging the discriminatory discharge of an employee, and
(2) the Union 's majority had been impaired during January,
February , and March 1966 , by employee turnover and by
the lack of interest in the Union among those employees at
Woodville who lived on the nearby Indian reservation.
However , when in April 1966 , 12 of the 15 employees then
on the Woodville payroll attended a union meeting, the
Union decided that it had regained its majority status and
was ready to request further bargaining. Shirley wrote to
Woodville requesting such a meeting and the parties, by
agreement , met on May 23. It was at this meeting that the
Union , in the course of negotiations , requested bargaining
for all employees engaged in the building of portable
buildings on the Woodville Construction Company site
including the employees of Kent . 25 Freeland , on behalf of
Woodville, disclaimed any connection between Woodville
and Kent . He did , however , agree to another meeting in a
week at which he would have the answer of his principals
concerning Kent . Such a meeting was held as planned. At
this meeting , Freeland reiterated Woodville's disclaimer
March 1966 and engaged in the construction of portable buildings
for the same prime contractor and under the same arrangements
as Woodville
MP BLDG. CORP.
of any connection between Kent and it, and asserted that
he had nothing to do with Kent and that he could not agree
to bargain for Kent. The Union responded that it was going
to take what steps it deemed advisable to force Woodville
to bargain for all the employees at the Woodville site.
Whereupon, the Union filed the instant unfair labor
practice charge with the Board. There have been no
further negotiations between the parties.
During a period of a month following the above-
mentioned union meeting of April 1966, the following also
occurred: Burgess took pictures of Copes and of other
employees while at work, and he thereafter discharged
Copes on April 18. Subsequently, on May 1 or 2, Copes
applied for a job to Rains, who was working for Kent on the
opposite side of the Woodville tract. Rains hired him as his
helper at that time. However, when Copes came upon the
Kent side to start work, Burgess prevented him from doing
so, telling him he could not work there and asking him to
leave. Copes left and never returned. Both the picture
taking and the discharge of Copes are alleged as unfair
labor practices herein.
B. The Bargaining Sessions and the Accompanying
Events26
The first negotiating session occurred either during the
last week in August or on the first of September 1965.
Present on behalf of the Union were Shirley and two
Woodville employees, viz, Joe Copes and Oliver Hart;
present on behalf of Woodville was Hugh Freeland,
counsel for Woodville and the other three corporations
herein. Freeland is also secretary-treasurer of all four
corporations. According to Shirley, he presented the
Union's contract proposal and there ensued a discussion of
"the intent of the articles in the proposal to quite some
length." Encompassed in such discussion were the clauses
relating to recognition, purpose and intent, seniority,
grievance procedures, arbitration, overtime, vacation, paid
holidays, and hospital and medical insurance. Freeland
indicated, at adjournment time, that he would like to talk
with his principals and, after that, he would notify the
Union when he was ready to meet again.
During the interval between the first and second
meeting, Freeland advised Shirley that Woodville was a
small company with no bookkeeping system and that it did
not have the dates of hire of its employees and hence could
not determine a date for seniority purposes. Freeland
suggested that Shirley obtain the information himself from
the employees and make a proposal based thereon; he also
suggested that Shirley furnish Woodville with a list of its
employee classifications, as Woodville did not have them.
About September 20, the Union obliged by mailing to
Woodville its version of Woodville's classifications and, in
addition, included its proposal as to wage rates. In reply,
Freeland, by letters of September 23 and 29, asked the
Union to submit its proposal in completed form, and again
mentioned Woodville's lack of records on seniority. The
Union's answer to both letters was that Freeland already
had the Union's proposal in its entirety and that seniority
would not be a problem as they could just find the oldest
employee and record him as being on the payroll at any
given date and each successive employee could be listed
thereafter. Shirley thereafter dispatched another letter
concerning seniority and requested that Freeland meet
sometime during the week of the letter. In response,
Lfi The testimony as to the bargaining sessions, and as to the
developments relating thereto between each bargaining session
was given by Shirley, the business agent of the Union, and is
835
Freeland wrote the Union saying that since the Union's
proposal was in its entirety, the Union should draft the
final form of contract and present it to him. Freeland
added that he could see no reason for another meeting
until that had happened, and he had, in turn, consulted
with his principals. Shirley followed this up by taking a
copy of the wage classifications that he had mailed to
Freeland before, stapling it to a copy of the Union's
contract proposal and presenting the conjoined documents
to Freeland in his Beaumont, Texas, office. Shirley and
Freeland agreed at that time to meet on October 29, 1965,
in Woodville for another negotiating session.
The second meeting occurred as planned. The same
individuals were present at this meeting. There was a brief
discussion of the Union's contract proposals. As to wages,
Freeland stated that the employees were told at the time of
hire what pay they were to receive and what their pay
would be in the future, and that "the company didn't feel
that they were giving any raises at that time," that the
Company would continue to give merit raises as in the
past, that there would be no paid vacations or paid
holidays but that vacations and holidays off would be
readily granted to employees who requested them, and
that information as to hospital and medical insurance was
not yet ready. Shirley made "more plain" to Freeland that
the Union was not proposing that Woodville pay for the
hospital and medical insurance. Freeland again undertook
to talk over the Union's proposal with the principals of
Woodville; he also agreed to meet with the Union on
November 5, 1965.
As already noted, no meeting was held on November 5,
as Freeland did not appear at the appointed place in
Woodville for the meeting and the Union did not thereafter
accept Freeland's invitation, appearing in his November 3
letter, to meet in his office in Beaumont in the evening of
November 5.
Freeland's November 3 letter did, however, contain
considerable detail as to Woodville's position concerning
the Union's proposed contract. Thus, Woodville would not
agree to a specific probationary period for new employees,
as the nature of its operation is to hire people without
experience and to train them; it would not agree to
establish a seniority system, since the present system of
advancing employees on merit has been satisfactory to it
and its employees; it would not agree to holiday pay but
would grant holidays off if so requested by employees; it
would not agree to recognize any difference in job
classifications because it wished to have freedom to move
men around; it would not agree to any across-the-board
wage increase but would continue giving merit raises as
before; it would not assume responsibility for collecting
union dues; and finally it would have no objection to a
group insurance policy but it was in no position to collect
the premiums or to share in the cost thereof. Freeland
added that while there were also areas of minor
importance to be considered before complete agreement is
reached, such matters "are not important unless the above
proposals are acceptable to you."
The fourth negotiating meeting did not take place until
May 23, 1966. The hiatus in bargaining was, as already
found, due to the fact that the Union considered the time
unpropitious. Present at the meeting on behalf of the
Union were Shirley, K. N. Churchman, a local
representative of the Union, and a new committee of five
uncontroverted Shirley impressed me as a reliable witness and I
credit him
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees of Woodville; present on behalf of Woodville
was Freeland. At first, Shirley went over the Union's
contract proposals, and then Freeland read his
November 3 letter which was Woodville's answer to those
proposals. Thereupon, Shirley informed Freeland that the
Union was "ready to cut 25 percent off our wage proposal,
but were not prepared to go any lower until [it] had
received an offer of some kind from the company." Shirley
also said that the Union was "proposing, at that time, to
bargain for all of the employees engaged in building,
manufacturing the portable buildings at the Woodville
Construction Company's site, including the employees of
Kent Construction Company." As to the latter, Freeland
replied that he knew nothing about Kent Construction
Company, had nothing to do with it, and as far as he knew,
Woodville had nothing to do with it. However, Freeland
agreed to meet with the Union 1 week later "for his answer
on it." During the meeting, there was also discussion
concerning hospital and medical insurance and Freeland
agreed to check out the Union's proposal.
The final meeting between the parties did take place 1
week later. Present were the same individuals as the prior
meeting. There were no negotiations, however. Freeland
notified the representatives of the Union that Woodville's
answer on the issues of wages and working conditions
remained the same as that previously stated by him orally
and in the November 3 letter. Freeland also gave the same
answer as the week before to the Union's request to
bargain concerning Kent's employees along with those of
Woodville, viz that he had nothing to do with Kent and
knew nothing about Kent, that Woodville did not have
anything to do with Kent and that he could not agree to
bargain for Kent. Shirley, thereupon, advised Freeland
that the Union would take whatever steps it deemed
necessary in the premises, and the meeting adjourned.
C. Additional Findings and Conclusions as to the
Refusal-to-Bargain Issue
1. The appropriate unit
The complaint alleges that the unit in which the Union
was certified on August 16, 1965, in Case 23-RC-2443, is
appropriate. However, in view of my findings hereinabove
that Kent is a disguised continuance of most, if not all, of
Woodville's operations relating to the construction of
portable buildings and, indeed, Woodville's alter ego, the
current appropriate unit is, I find, coextensive with the
operations of both Woodville and Kent. I, therefore,
conclude that all production and maintenance employees
employed by Woodville Construction Company and by
Dan Kent d/b/a Kent Construction Company at their
Woodville, Texas, operations, excluding all office clerical
employees, professional employees, watchmen, guards
and all supervisors as defined in the Act, constitute a unit
appropriate for purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
2. The majority status of the Union
I find , on the basis of the entire record , that all material
times during the ensuing certification year, the Union has
27 Kent testified that the only employees in his employ since he
effected the changeover have been JuAunne Morgan Burgess, his
part-time bookkeeper, and a forklift driver whom he hired about 2
weeks before the hearing
zN The record shows that some Woodville employees have
represented a majority of the employees in the aforesaid
appropriate unit.
3. The allegations of unilateral action
The substance of these allegations is that, although
Woodville was refusing, during its bargaining sessions
with the Union, to effect any changes in wages and
working conditions among its employees, it nevertheless
effected such changes unilaterally through the agency of
Kent.
I have already found that Kent came upon the Woodville
tract in March 1966. According to the testimony of Kent,
he had hourly labor for the first several weeks, but,
"because it was a labor problem and hard to find men to
work, steady work," he decided to operate his business
with subcontractors rather than with employees as
theretofore.27 Kent testified further that (1) since then he
has been subcontracting with individuals, some of them
former employees, to build portable buildings at so much
per building, the price varying according to the type of
building; (2) under the subcontracting arrangement, the
subcontractor hires and discharges his own help28 and
fixes his own work schedules; (3) he, Kent, neither makes
payments under social security nor withholds any taxes,
nor carries workmen's compensation insurance for the
subcontractors or their help; and (4) the subcontractors
are required to carry workmen's compensation insurance.
Yet, there is other testimony in the record which appears
to point to supervision and direction by Kent over these
"subcontractors" and hence to an employer-employee
relationship. Thus, when Kent, who appeared pro se and
was called as a witness by counsel for the General
Counsel, was asked whether he furnishes his
subcontractors with any kind of instructions as to what
building to build, he replied, "Yes sir, they work for me."
Further, when asked whether he directs those individuals
as to how they should build these buildings, he answered,
"that's my job." In addition, when Kent was afforded an
opportunity by me to adduce testimony in his own behalf,
he volunteered the following: "And it is hard to make [a
living] up here when I have contractors down there.
Because any time that a building is built wrong, and which
is done every once in a while, if I am not around-and no
telling what has been done since I have been up here for a
day and a half." Additional evidence of such supervision
over the manner in which the "subcontractors" performed
their work appears in the already mentioned testimony of
Rains that Burgess criticized the work he was doing and
made suggestions with respect thereto, and that Hill told
him on one occasion to perform work on Woodville's
portable buildings.
In view of the foregoing evidence of supervision and
direction by Kent (and also Burgess and Hill) over the
"subcontractors," as well as the record facts that the
"subcontractors" do not purchase their own materials but
are furnished them by Kent,29 that Kent furnishes them
with layouts and blueprints, and that the "subcontractors"
admittedly perform services only for Kent, I am
persuaded, on balance, that Kent not only controls the end
to be achieved by these "subcontractors" but also has
worked for subcontractors of Kent after completing their day's
work at Woodville It is clear that , had they worked for Woodville
after regular hours, they would have earned overtime pay
1" Kent , in turn , is supplied these materials by MP Building, as
found above
MP BLDG. CORP.
reserved the right to control and actually controls the
means to be used in achieving that end, and that Kent and
his "subcontractors" stand in an employer-employee
relationship. 30 In any event, even assuming, contrary to
the finding above, that an independent contractor status
existed here, Respondents' action in unilaterally altering
the status of employees constituted an unlawful refusal to
bargain . Respondents Kent and Woodville, during the
certification year, dealt directly on mandatory subjects of
collective bargaining with unit employees on the Kent
side, and also applicants for such employment, in
disregard of the collective-bargaining agent, and did,
thereby, effect substantial changes as to these individuals
in the existing wage rates, hours of employment, method of
constructing portable buildings, and other terms and
conditions of employment. It is also noteworthy that these
changes occurred after Respondent Woodville had taken
the position during bargaining negotiations with the Union
that it was, in the main , opposed to altering the existing
terms and conditions of employment among the employees
in the unit .31 The above unilateral action commencing in
March or April 1966, without notice and prior consultation
with the Union, plainly contravened the rights of the
employees in the appropriate unit to bargain collectively
through their chosen bargaining representative.32
Accordingly, I conclude, and find, that not only
Woodville and Kent, its alter ego, but all Respondents
herein, by reason of their being a single-integrated
enterprise are jointly responsible for the above unlawful
conduct, viz of refusing to bargain with the Union since
March or April 1966, and they did thereby violate Section
8(a)(5) and (1) of the Act.33
I find further that Respondents further violated Section
8(a)(5) and (1) of the Act by refusng at the negotiating
session on May,23, 1966, and thereafter, to bargain with
the Union, upon request, in the unit herein found to be
appropriate, consisting not only of all employees of
Woodville but also of Kent, engaged in the building of
portable buildings on the Woodville site.
D. The Discriminatory Discharge of Copes
1. The events leading up to the discharge
Copes was hired by Burgess , manager of Respondent
Woodville , on January 8, 1965. at $1 . 25 an hour, with time
and a half for overtime . Copes testified that he began as a
"trimmer on the liner side," whereas Burgess testified
that he did not hire Copes for a specific job but to work as
a laborer and that Copes thereafter did trimming . I find it
unnecessary to resolve this conflict because I am satisfied
that , for a considerable period in 1965 and during the first
part of 1966, Copes functioned as a trimmer on the liner
side. This job required him to trim out around the ceiling,
31 See National Gas Company, 99 NLRB 273, Wade & Paxton,
89 NLRB 829 The fact that subcontractors may hire and
discharge their own help does not, ipso facto, preclude such a
finding See N L R B v Lindsay Newspapers, Inc, 315 F 2d 709
(C A 5), International Union of United Brewery, etc (Gulf
Bottlers) v N L R B, 298 F 2d 297, 303, 304 (C A D C ), cert
denied 369 U S 843
31 The record shows, as noted above, that Woodville's position
in these respects was set forth in Freeland's letter of November 3,
1965, to the Union and that this position was reasserted at the
negotiating session on May 23, 1966
32 See Fibreboard Paper Products Corp. v N L R B, 379 U S
203 at 213-214, and N L R B v Beane Katz d/b/a Williamsburg
Steel Products Co , 369 U S 736, 743, see also N L R B v Brown-
Dunkin Company Inc, 287 F 2d 17 (C A 10), enfg 125 NLRB
837
windows, doors, and floor of a portable building and to
either paint or varnish the doors, as required. His
immediate foreman was a Mr. Menasco, who was
answerable to H. C. Hill, also a foreman. Hill was, in turn,
responsible to Burgess. In April 1966, Burgess or Hill, at
Burgess' direction, began moving Copes to jobs other than
trimming . In most instances , Copes was not allowed to
finish one job before he was assigned to another.
Before discussing the details of these job shifts, and
their attendant circumstances, a discussion of Copes'
union activity appears to be in order. Copes was active in
the Union from its very inception. Thus, Shirley contacted
him in April 1965 and asked him to help organize
Respondent Woodville's employees. Shirley gave Copes
about 35 or 40 union authorization cards and, by the time
of the first union meeting , Copes obtained cards from "12
or 15" employees. Copes also served as an observer for the
Union in the Board election on August 6, 1965, and as an
employee representative on the bargaining committee,
attending the two negotiating meetings in 1965 heretofore
described. In addition, Copes attended the union meeting
early in April 1966. At this meeting union buttons were
distributed by Shirley and Churchman, who were there as
representatives of the Union. Thereafter, Copes began
wearing his union button. Burgess admitted seeing the
buttons being worn by employees and did not deny that
Copes began wearing his union button about that time,
saying only that he did not know when Copes began
wearing his button. Burgess also admitted that he knew
that Copes was active in the Union.
According to Copes, his moving about from job to job, on
orders from Burgess, started "not long after" the meeting
at which union buttons were distributed. In respect to his
not being allowed to complete jobs to which he was
assigned during this period, Copes testified to the
following experience on or about April 10. Burgess
requested him to lay some tile along with employee Elton
Gardner. The operation consists of putting down the glue
first and then laying the tile. Copes did not know much
about putting down the glue and it was being done for him
by Carl Jones, an electrician. The job took " quite some
time." When Copes had completed three-fourths of the tile
work, he was called into Burgess' office34 and was there
questioned as to why it took so long. Copes explained to
Burgess that he had to wait on Carl Jones to put down the
glue as he, Copes, did not know much about that
operation. During this interview, a tape recorder was in
full view and the conversation was taped with Copes'
consent. Burgess asked Copes "what was going on with
[him], that at one time [he] had been a good
employee ...." Copes reply thereto was that he had no
comment. Burgess also added that "if [he] didn't want to
work, well, why didn't [he] go home, punch out and go
1379, and cases cited therein; International Brotherhood of
Operative Potters, AFL-CIO (Aztec Ceramics Co) v NLRB , 320
F 2d 757 (C A D C ), enfg in relevant part and remanding in part
138 NLRB 1178, Wonder State Manufacturing Company, 151
NLRB 904, Cloverleaf Division of Adams Dairy Co, 147 NLRB
1410; and Hans J Hmde, et at, d/b/a Port Everglades Towing
Company, Ltd, 134 NLRB 795
33 N L R B v. Stowe Spinning Company, 336 U S 226, 227;
N L.R B v Schnell Tool & Die Corporation, supra, N L R B v
Gibraltar Industries, Inc , 307 F 2d 428 (C A 4), enfg sub nom
International Trailer Company, Inc, 133 NLRB 1527; N L R B v
Somerset Classics, Inc , 193 F 2d 613,615
34 This was the first of several such requests that Copes come
to the office in connection with his work
299-352 0-70-54
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
home." Burgess, thereupon, took Copes off the tile-laying
job and assigned him the job of running window sills
through a lathe. Before lunch that day, Burgess reassigned
him again, this time to the "bringing in" of 2 by 6 floor
joists and the moving manually of such joists from one
stack for a distance of about 16 feet to another stack, a job
which was usually done with a forklift. Upon Copes' return
from lunch, Burgess told Copes to stop at the office. In the
office, Copes was directed by Burgess to get a chair and
put it near the layout table in the shed. After the chair was
so placed, Burgess, who had a camera in hand, told Copes
to sit down in the chair. Copes refused. Whereupon,
Burgess turned away and said, "I'm going to leave the
chair here and if you want to sit down, sit down." Copes
"sat down momentarily and got right back up again." At
this, Burgess renewed his request but Copes refused.
Thereupon, Burgess told Copes to go over to a stack of
metal and "stand up beside it." Copes obliged this time
and Burgess took his picture.35
During these office interviews, of which there were
"several ," in addition to the tile-laying interview , Burgess
would ask Copes "what was his problem and all of that."
The usual reason given by Burgess for taking Copes off
one job and assigning him to another was, according to
Copes, that he was "was not doing [the job] fast enough."
Copes' usual reply was that he had no comment. And there
was one occasion when Copes was told by Burgess that
"he wasn't doing a good enough job." Copes did not recall
whether he said anything to Burgess in reply.
The last time Copes was called to the office by Burgess
was on the day of his discharge on April 18. Copes testified
to the following : During this meeting , Burgess, in addition
to asking Copes again what the problem was, questioned
him about his work of the day before. Burgess asked
Copes about his not moving 2 by 6 joists, as directed.
When Copes indicated that he not did know what was
wrong with his work, Burgess queried, "you aren't happy
with the job?" Copes said nothing. However, Burgess
continued by saying that other employees were happy with
him, naming Kibble, Joe Sigger, and a couple of others.
When Copes pressed Burgess for more details about the
faultfinding with his prior day's work of moving joists,
Burgess said, "I put you moving two by sixes and you
wouldn't do that." Copes denied this and inquired, "who
told you that lie?" The response of Burgess was, "what do
you mean who told me that lie?" Copes testified credibly
that Burgess was talking louder than normal during this
meeting. He also noticed that Burgess repeated himself.
These considerations caused Copes to ask of Burgess, is
it possible that you have a tape recorder concealed some
place?"36 Whereupon, Burgess admitted that he did, and
offered to give Copes a tape of this conversation.
Apparently Burgess asked Copes more questions but
Copes would not respond. Thereafter, Burgess said to
Copes that he had put Copes on this job and that job, that
it seemed that Copes did not want to work on that basis,
and that he would have to let Copes go. Burgess added, in
conclusion, that he would get in touch with Copes when he
needed him. The termination took effect during the
morning, immediately after the meeting . It is clear
therefore that it occurred before the end of the workweek.
3' The picture is in evidence as G C Exh 20
3 The tape recorder was not in full view on top of a filing
cabinet as theretofore
31 Copes explained, "they were flooring, doing things like that,
wrapping up
The picture taking of Burgess was not confined to the
one incident discussed above. According to Copes, he had
never had his picture taken by Burgess before, and he saw
Burgess point the camera at him thereafter "several times,
four or five times;" he also saw Burgess "point the camera
several times at people working on the shed on the north
end of the lot where they put the buildings together."37
However, in none of these instances, according to Copes,,
was the employee involved "posed" for a picture or put in
a chair. There is additional testimony by Herring, an
employee of Woodville, which I credit, that subsequent to
Copes' termination "in the summer," while he was
screwing in a door lock, he saw Burgess walk by with a
camera and point it his way and take his picture. Similar
credible testimony of picture taking was given by Newton,
another Woodville employee. According to him, Burgess
took a picture of a coemployee, Charley McColough, and
him while they were working on a roof of a portable
building. Newton could not remember whether this
occurred before or during the time that "we was wearing
those buttons around in there." In respect to the above,
Burgess testified generally that he did take pictures of
employees other than Copes, adding, "I have taken
pictures ever since we have been up here, ever since the
plant has been in there I have taken pictures."
2. The aftermath of Copes' discharge
Subsequent to the aforesaid discharge of Copes on
April 18, 1966, Copes visited the home of Rains on May 1
or 2, in the afternoon, in search of work. Copes came in his
automobile and parked it in Rains' driveway. Rains was
doing work at that time for Kent as a "subcontractor."
According to Copes' credible testimony, Copes inquired
whether he, Rains, "needed somebody down where he was
working with Mr. Kent, and he said that he did." Copes
was told he could start that same day. Rains and he
thereupon proceeded separately to the Woodville site.
Before going onto the Kent side, Copes went home to get
his hammer. Upon arriving at the Kent side thereafter, he
went into the building where Rains and he were to work.
According to Copes, he found Burgess on the scene.
Rains' testimony indicates that Burgess was aware of
Copes' visit to Rains' home and the consequences thereof.
Thus, according to Rains, the following occurred: Burgess
came to Rains' home earlier that day and notified Rains
that he, Burgess, had the door ready which was holding up
Rains' work on the building and he wanted Rains to go
ahead and finish it up. Rains thereupon replied that he
would be down after a while. When Rains drove onto the
jobsite later that day, Burgess and Hill came up to his car
and asked whose car that was that was at the house 38
Rains told them "it was Joe's." Whereupon, they asked
whether Rains had hired Copes and Rains said he had.
Their reply was that he could not work on the job down
there. Rains thereupon walked over to the building on
which Copes and he were to work, and Burgess and Hill
returned to the Woodville side of the tract. As to what
transpired when Copes returned ready to go to work,
Rains testified further that, when Copes arrived with his
hammer, Burgess and Hill met Copes at the building and
told him that, "he couldn't work there on that job, just to
38 Copes testified that Burgess did not see him while he was at
Rains ' place, because he was in the kitchen looking at blueprints
MP BLDG. CORP.
get off the property there." This testimony corroborates
testimony of Copes, except that, as already indicated,
Copes places Burgess on the scene and makes no mention
of seeing Hill there. Copes testified further that, on this
occasion, he was about to start working for Rains when
Burgess, who drove his truck onto the Kent side, said to
him, "you can't work here." When Copes protested that
he was working for Rains, Burgess said, "no, you can't
work here get off of my property." Whereupon Copes said
that he was leaving and Burgess came behind him and
kept repeating "get off of my property. I don't want you
out here." Copes walked on, neither turning around nor
stopping. By that time, Burgess got into his truck and,
according to Copes, Burgess almost ran him down when
he passed by Copes.
Burgess' version of the events described above is as
follows: Kent asked him if he knew where Rains lived.
When he said he did, Kent said that he, Kent, had a
building on the Kent side that had to be finished inside and
that he could not get hold of Rains. He thus went to see
Rains at Kent's request. He asked Rains why he was not
"down there," and added that he, Burgess, had come over
to see Rains. To this, Rains replied that he was not down
there because of the door that had not been hung.
Thereupon, according to Burgess, he told Rains that if he,
Rains, would come down to finish the building, "[he,
Burgess] will see that the door gets hung for [Rains]."-19
That afternoon, Rains came down and went to work. Later,
he came to the building to be finished on the inside by
Rains just to see if Rains was there and how Rains was
doing. As he came up to the door and looked in, he saw
Rains look at Copes and say, "I can't hire you, Joe."
Whereupon Copes said, "o.k." and walked out the door,
past him. At this point, he turned around and walked back
to the truck. Copes then inquired about getting "a copy of
a tape recording" that he, Burgess, had made. When he
told Copes that he had not gotten around to it, Copes "got
quite nasty and threatened [him] with bodily harm," and
that is when he told Copes "just to leave, go on about his
business." Burgess admitted becoming angry, saying, "I
get angry when people threaten me, threaten to whip
me,"40 but he denied trying to run Copes down. He also
denied that he told Rains that he, Rains, could not hire
Copes. As to whether Hill was with him when he came to
the Kent side to talk to Rains, Burgess would only say that
Hill was with him frequently when he "made [his] rounds
about the yard."
3. Conclusions as to the discharge on April 18
The circumstances detailed above to the extent that
they are controverted raise issues of credibility as to
Copes, Rains, and Burgess. Copes and Rains impressed
me as reliable witnesses. Burgess, on the other hand, was
at times evasive and at other times contradictory 41 Thus,
while Burgess would have one believe that his sole reason
for paying a visit to Rains at his home was to do Kent a
favor, he has, by his own testimony, in effect, admitted
that this was a matter of vital concern to him. Otherwise, I
find no plausible explanation for his having gone over to
the Kent side thereafter to see if Rains was there and how
311 In answer to questioning by counsel , Burgess explained that
the doors were being hung in Woodville's shop at the time
411 Burgess admitted that Copes did not threaten to whip him at
the time he laid Copes off
41 I have already referred to Burgess' evasiveness in
connection with his testimony as to the number of buildings built
by Woodville after Kent came on the scene, and as to when he
839
he was doing. Furthermore, the very fact that, by his own
version, he left without speaking to Rains after
overhearing, from the door of the building, that Rains was
refusing to hire Copes, strongly suggests, and I find, that
he went there to see to it that Copes did not work for
Rains. The latter is, in substance, the testimony of Copes
and Rains, namely, that Copes had already been hired by
Rains at the time and it was because of Burgess'
interception of Copes and ordering him off the property
that Copes had to leave his job as a helper of Rains. Under
these circumstances and upon the entire record, I am
persuaded that Copes' and Rains' testimony, which is
mutually corroborative in part, truly reflects what
happened throughout that afternoon. I, therefore, do not
credit Burgess' testimony that Copes threatened to whip
him when he, Burgess, indicated that he did not have
ready a copy of the tape recording of a previous interview
involving Copes, which Copes was then requesting, and
that that was the reason why he asked Copes to get off the
property. Rather do I find that Burgess wanted Copes off
the property because he, Burgess, was opposed to Copes'
working as Rains' helper.
It is thus apparent that Copes was not only discharged
by Woodville on April 18, but was thereafter prevented
from going to work on May 1 or 2 as Rains' helper on the
Kent side. With respect to the April 18 discharge,
Respondent Woodville defends on the ground that, about 2
or 3 months prior thereto, Copes' work habits changed
from that of doing a "good job" to being an unsatisfactory
employee, that "he made the remark to several employees
that if he was asked to do a particular jobs [sic] that he
would refuse them," and that on April 18 Copes was on the
job but unwilling to work and was, thereupon, laid off. As
to the alternating between jobs, Respondent Woodville
further contends that employees have been moved
frequently from one job to another and that the frequency
of shifting from one job to another increases as the number
of employees is reduced, as was the case here.42
The evidence adduced by Respondents in support of the
foregoing defenses consisted of the testimony of Burgess,
Respondents' only witness. It was plainly in conflict with
the testimony of Copes, as to what had occurred during the
relevant period. In addition, it left uncontroverted certain
aspects of the testimony of Copes. Thus, e.g., Burgess
failed to deny (1) that he alternated Copes between several
jobs on the same day and that transfers would occur before
completion of an assignment ; (2) that he sought
unsuccessfully to pose Copes for a picture sitting down in
a chair in the shop and then posed him in front of a pile of
metal; (3) that he had Copes move joists manually, a
distance of 16 feet from one stack to another, when such
work was usually done by a forklift; and (4) that, as Copes
was assigned to tile laying on April 10 for the first time,
Copes did not know how to put down the glue, a necessary
part of the tile-laying process. In addition, Burgess'
testimony was characterized by vagueness and
uncertainty. Thus, Burgess testified that he did not know
exactly when the conversations began with Copes about
his work. Nor did he know "for sure" whether Hill '43 who
brought the asserted change in Copes' work habits to his
attention, ever talked to Copes.44 Nor did he know whether
rendered bills to MP Building for forklift services
42 Burgess admitted that he put Copes on jobs where he would
not be in contact with other employees
41 Burgess said he "worked [Copes] indirectly through Hill,"
as he did most of his employees
44 Hill did not testify.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he ever gave Copes any warnings of layoff if his work
pattern persisted. Nor could he pinpoint whether a
claimed refusal by Copes to move some cutout sticks
occurred in February, March, or April. A further example
of Burgess' uncertain testimony occurred in his
description of Copes' alleged change of work habits. Thus,
Burgess at first testified that "all of a sudden it seemed
like he didn't want to do any job at all"; yet, later on, he
qualified this testimony by saying, "the quality of his work
didn't change, it was the amount of work that changed."
When to all this is added the fact that I have heretofore
discredited Burgess' testimony about his connection with
Copes' abortive effort to work as Rains' helper on May 1 or
2, and, instead, credited Copes' version of what happened,
I find no warrant for crediting Burgess here rather than
Copes and reject Respondents' defenses to the discharge
of Copes. Accordingly, I find, in accordance with the
testimony of Copes and on the entire record that, soon
after Copes began to wear the union button in April,
Respondent Woodville began to harass him by moving him
from his usual job and alternating him from job to job,
sometimes not allowing him to finish one job before
assigning him to another , by posing him against his will for
the purpose of taking his picture seated in a chair in a
customary work area, by concealing a tape recording of an
interview of him by Burgess, by pressuring him to quit,
and by finally laying him off on the pretext that he was
unwilling to do a job of moving joists assigned to him the
day before. And I find further that Copes who was
admittedly doing "a good job" theretofore, did not, so far
as the credible evidence shows, cease doing a good job. In
sum, therefore, since Copes was a leader in the Union,
since Copes' union activity was admittedly known to
Respondent Woodville, since Copes' harassment was
timed to coincide with a resumption of union activity in
April 1966 and his wearing of a union button, since the
reason assigned for his layoff or discharge was
pretextuous, as found above, I infer, and find, that Copes
was terminated on April 18 by Woodville because of his
union activity.45 Moreover, I find further that, by his
subsequent conduct on May 1 or 2 in precluding Copes
from working as Rains' helper, after Copes had been hired
to do the work, Burgess underscored the pretextual nature
of the discharge on April 18. Thus, Burgess did not even
suggest to Rains that Copes' work habits made him an
undersirable worker. Instead, he stated categorically that
Copes could not work there. This failure to make known to
Rains the claimed bad work habits of Copes supports the
finding, heretofore made, that the latter was not the real
reason for the discharge.
It is clear from all the foregoing , and I find, that
Woodville has, by the discharge of Copes for union activity
on April 18, 1966, discriminated against him in violation of
Section 8(a)(3) and (1) of the Act. I also find further,
because the other Respondents herein constitute a single-
integrated enterprise with Woodville and are jointly
responsible for the unfair labor practices committed
herein,46 that they, too, have, by the foregoing conduct,
violated Section 8(a)(3) and (1) of the Act.
4. Conclusions as to the further discharge on May 1 or 2
In addition, I infer, and find, that Burgess' hostility to
Copes' further employment on May 1 or 2 was but a
45 See N.L R.B v Whiten Machine Works , 204 F 2d 883, 885
(C A 1); Greenfield Components Corporation , 135 NLRB 479,487
'° See fn 33, supra
41 Although this discharge was not alleged as a separate
continuation of the union animus that caused Burgess to
effect Copes' discharge on April 18. I, therefore, conclude
that Burgess, exercising the element of control which he
enjoyed over the operations of Kent because the latter was
Woodville's alter ego in respect to production of portable
buildings, caused the discharge of Copes on May 1 or 2.
Here, too, for the reasons just stated, all Respondents
herein thereby violated Section 8(a)(3) and (1) of the Act.47
D. The Alleged Violation of 8(a)(1) in the Picture Taking
As already found, Burgess admitted that he took
pictures of Copes and of other employees while at work.
Respondent Woodville's brief asserts, in this connection,
that it has "the full right to take pictures of any of its
individual employees while they are performing their
regular work assignments ," and, hence, this did not
constitute interference in violation of the Act. Although
this picture taking took the form of harassment , at times,
as in the case of Copes, and although it appears, at other
times, to be unexplainable, the evidence does not
preponderate in favor of a showing that it was connected
with the union activity which was in process. Thus, in
virtually all the instances of picture taking in the record,
there is an absence of showing that the employee or
employees whose pictures were taken were then engaged
in union or concerted activity. In these circumstances, I
am unable to find that this conduct did inhibit or was
calculated, or had the tendency, to inhibit employee union
or concerted activity. I shall therefore recommend that
this allegation of the complaint, as amended, be dismissed.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondents are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All production and maintenance employees employed
by Woodville Construction Company and by Dan Kent
d/b/a Kent Construction Company at their Woodville,
Texas, operations, excluding all office clerical employees,
professional employees, watchmen, guards , and all
supervisors as defined in the Act.
4. At all times since August 16, 1965, the Union has
been, and now is, the exclusive representative of all the
employees in the unit described in paragraph 3 above, for
the purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By unilaterally effecting substantial changes in
existing wage rates, hours of employment, method of
constructing portable buildings, and other terms and
conditions of employment in a segment of the appropriate
unit herein during the certification year, i.e., since March
or April 1966, Respondents have engaged in and are
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
violation of Section 8(a)(3) and (1) of the Act, the discharge was
fully litigated herein. See Granada Mills, Inc , 143 NLRB 957,
Monroe Feed Store, 112 NLRB 1336
MP BLDG. CORP.
6. By refusing on May 23, 1966 , and thereafter to
bargain with the Union , upon request , as the exclusive
representative of the employees in the aforesaid
bargaining unit , Respondents have further engaged in and
are engaging in unfair labor practices within the meaning
of Section 8(a)(5) and (1) of the Act.
7. By discriminating in regard to the hire and tenure of
Joe Henry Copes by terminating his employment on
April 18, 1966 , and by thereafter refusing to reinstate him,
because of his membership in, and activities on behalf of,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Respondents have engaged in and are engaging
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
8. By discriminating in respect to the hire and tenure of
Joe Henry Copes by terminating his employment on May 1
or 2, 1966 , and by thereafter refusing to reinstate him,
because of his membership in, and activities on behalf of,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Respondents have also engaged in and are
engaging in unfair labor practices within the meaning of
Section 8 (a)(3) and (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce with the meaning of Section
2(6) and (7) of the Act.
10. The preponderance of the evidence does not
establish that Respondents interfered with the rights of
their employees under Section 7 of the Act by taking their
pictures while at work or while on the jobsite during the
workday.
THE REMEDY
Having found that Respondents have engaged in and are
engaging in unfair labor practices within Section 8(a)(1),48
(3), and (5) of the Act, I shall recommend that they cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act, including the
posting of appropriate notices. And, with particular
reference to the violation of Section 8(a)(5) and (1) of the
Act, I shall recommend affirmatively that Respondents
bargain with the Union, upon request. Further, with
particular reference to the violations of Section 8(a)(3) and
(1), since I have found that Respondents have
discriminatorily discharged Joe Henry Copes, I shall
recommend that Respondents offer him immediate and
full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights,
privileges, or working conditions, and make him whole for
all earnings lost by reason of the discrimination against
him, by paying to him a sum of money equal to the amount
he would have earned from the date of the initial discharge
on April 18, 1966, to the date of a proper offer of
reinstatement , less his net earnings during said period.
Backpay, with interest at the rate of 6 percent per annum,
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co.,138 NLRB 716.
In view of the nature of the unfair labor practices
engaged in by Respondents, I shall also recommend that
they cease and desist from infringing in any manner upon
the rights guaranteed by Section 7 of the Act.
RECOMMENDED ORDER
841
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
recommend , in order to effectuate the policies of the Act,
that Respondents MP Building Corporation, M & P
Manufacturing Corporation , Woodville Construction
Corporation , Specialty Contractors , Inc., and Dan Kent
d/b/a Kent Construction Company, their officers , agents,
successors , and assigns , shall, jointly and severally:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages , hours of employment or other conditions of
employment with United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, as the exclusive
representative of their employees in the following
appropriate unit:
All production and maintenance employees employed
by Woodville Construction Company and by Dan Kent
d/b/a Kent Construction Company at their Woodville,
Texas, operations , excluding all office clerical employees,
professional employees , watchmen , guards and all
supervisors as defined in the Act.
(b) Discouraging membership in United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, or any
other labor organization of their employees, by
discriminately discharging , or refusing to reinstate, or in
any other manner discriminating against , any employee in
regard to his hire, tenure, or any other term or condition of
employment.
(c) In any manner interfering with , restraining, or
coercing their employees in the exercise of their right to
self-organization , to form labor organizations , to join or
assist the aforementioned Union or any other labor
organization , to bargin collectively through representatives
of their own choosing , or to engage in other concerted
activities for the purposes of collective bargaining or other
mutual aid or protection.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request , bargain collectively with the above-
named Union as the exclusive representative of all their
employees in the unit herein found appropriate, and
embody any understanding reached in a signed
agreement.
(b) Offer Joe Henry Copes immediate and
unconditional reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or
other rights , privileges , or working conditions , and make
him whole for any loss of earnings he may have suffered, in
the manner set forth in the section of this Decision entitled
"The Remedy."
(c) Notify Joe Henry Copes if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended , after discharge from the
Armed Forces.
(d) Preserve and, upon request , make available to the
National Labor Relations Board or its agents, for
examination and copying , all payroll records, social
security records, timecards , personnel records and
48 The 8(a)(1) found is a derivative violation
842 DECISIONS OF NATIONAL
reports, and all other records necessary or useful to
determine or compute the amount of backpay due, as
herein provided.
(e) Post at at their plant premises in Woodville , Texas,
copies of the attached notice marked "Appendix."49
Copies of said notice, to be furnished by the Regional
Director for Region 23, after being duly signed by
Respondents ' representatives , shall be posted by
Respondents immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.50
IT IS FURTHER ORDERED that those allegations of the
complaint , as amended, alleging independent violations of
Section 8(a)(1) of the Act not found herein, be, and they
hereby are , dismissed.
"' In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order " shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words " a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
50 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read : "Notify said
Regional Director , in writing , within 10 days from the date of this
Order , what steps Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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 refuse to bargain collectively with
United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, as the exclusive representative
of all the employees in the bargaining unit described
below.
WE WILL, upon request , bargain with United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, as the exclusive representative of all the
employees in the bargaining unit described below
with respect to rates of pay , wages, hours of em-
ployment , and other terms and conditions of
employment , and, if an understanding is reached,
embody such an understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees
employed by Woodville Construction Company
and by Dan Kent d/b/a Kent Construction
Company at their Woodville, Texas, operations,
excluding all office clerical employees,
professional employees , watchmen , guards and
all supervisors as defined in the Act.
WE WILL NOT discourage membership in United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization , by dis-
LABOR RELATIONS BOARD
criminating as to the hire, tenure, or any other term
or condition of employment of any of our employees.
WE WILL NOT in any manner interfere with,
restrain , or coerce our employees in the exercise of
their right to self-organization , to form , join , or assist a
labor organization , to baigain collectively through a
bargaining agent chosen by themselves , to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL offer Joe Henry Copes his former or
substantially equivalent job (without prejudice to
seniority or other employments rights and privileges)
and WE WILL pay him for any loss suffered because of
our discrimination against him.
All our employees are free to become or remain, or to
refrain from becoming or remaining , members of any labor
organization.
MP BUILDING CORPORATION
(Employer)
Dated By
(Representative ) (Title)
M& P MANUFACTURING
CORPORATION
(Employer)
Dated By
Dated By
Dated By
Dated By
(Representative) (Title)
WOODVILLE CONSTRUCTION
CORPORATION
(Employer)
(Representative) (Title)
SPECIALTY CONTRACTORS,
INC.
(Employer)
(Representative) (Title)
DAN KENT D/ B/A KENT
CONSTRUCTION COMPANY
(Employer)
(Dan Kent)
Note: We will notify the above- named employee if
presently serving in the Armed Forces of the United States
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board' s Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas 77002,
Telephone 228-0611.