Owen Lee Floor Service, Inc.

National Labor Relations Board - Board Decisions

Jul 17, 1980

250 N.L.R.B. 651 (N.L.R.B. 1980)

OWEN LEE FLOOR SERVICE, INC.
Owen Lee Floor Service, Inc., and Owen Lee, con-
tractor, an individual proprietorship' and Car-
penters and Linoleum Layers Local No. 484,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Case 8-CA-12358
July 17, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On March 5, 1980, Administrative Law Judge
Leonard M. Wagman issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. 2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein. 3
i Pursuant to an amendment to the complaint made at the hearing, the
name of Respondent is set forth to reflect its alter ego relationship
2 Respondent filed a motion to reopen the record and a supporting
brief, seeking to introduce a memorandum issued by The M O'Neil
Company, Respondent's sole customer, and dated March 28, 1979 The
document details work procedures to be used by Respondent and its em-
ployees, and O'Neil's employees, and assertedly rebuts evidence offered
by the General Counsel bearing on the alter ego issue The Genleral Coun-
sel filed a brief in opposition to the motion In order to prevail on a
motion to reopen the record, the movant must state briefly "the addition-
al evidence sought lo be adduced, why it was not presented preciously.
and that, if adduced and credited, it would require a different result
Only newly discovered evidence. evidence which has become available
only since the close of the hearing, or evidence which the Board believes
should have been taken at the hearing will be taken at any further hear-
ing" National Labor Relations Board Rules and Regulations, Series 8, as
amended, Sec 102.48(d)(). We deny the motion. First, Respondent has
not shown that the memo it seeks to introduce has become available only
since the close of the hearing Second, Respondent has not shown that
the evidence was newly discovered Newly discovered evidence is evi-
dence which was in existence at the time of the hearing, and of which
the movant was excusably ignorant. A motion seeking to introduce evi-
dence as newly discovered must also show facts from which it can be
determined that the movant acted with reasonable diligence to uncover
and introduce the evidence NL.R.B. v Joseph E Decker and Sons, 569
F.2d 357, 363-364 (5th Cir. 1978). Respondent has offered no facts indi-
cating that it was ignorant of the memo at the time of the hearing, excus-
ably or otherwise Finally, Respondent asserts that, although it had notice
on January 7, 1980, of the General Counsel's intention to amend the com-
plaint at the hearing on January 16, 1980, to allege an alter ego relation
ship between Respondent and Owen Lee, contractor. it had insufficient
opportunity to gather evidence bearing on the point. However, Respond-
ent has offered nothing beyond the bare contention in support of this as-
sertion Further, as was noted by Respondent, the Administrative Law
Judge, in allowing the amendment at the hearing, authorized Respondent
to seek additional time to rebut whatever evidence was brought in on the
issue. There is nothing in the record to show that Respondent ever
sought to avail itself of this opportunity
I The Administrative Law Judge inadvertently failed to provide for
the payment of interest on wages and other benefits which were specified
in the collective-hargaining agreement and which were denied to employ-
ees by Respondent's unlawful conduct We shall modify the recommend-
260 NLRB No. 70
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Owen Lee
Floor Service, Inc., and Owen Lee, contractor, an
individual proprietorship, Mogadore, Ohio, their
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
I. Substitute the following for paragraph 2(d):
"(d) Make whole their employees for any loss of
wages or other benefits, with interest as set forth in
Florida Steel Corporation, 231 NLRB 651 (1977),
which they may have suffered as a result of Re-
spondent's unlawful refusal to bargain with the
above-named Union."
2. Substitute the attached notice for that of the
Administrative Law Judge.
ed Order accordingly, and %hall suhstitute a neew notice for that of the
Administrative lIaw Judge
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIl.t NOT threaten employees with the
relocation of our business operation under a
different company or otherwise impliedly or
expressly threaten them with discharge or
other reprisals because they support Carpen-
ters and Linoleum Layers Local No. 484,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, or because we wish to
avoid bargaining with that Union, or any other
labor organization, as the recognized exclusive
collective-bargaining representative of the em-
ployees in the appropriate unit described
below.
WE WILL NOT unilaterally change the
wages, hours, or conditions of employment of
employees, deal directly with employees, or
otherwise bypass our obligation to bargain
with Local No. 484 as the exclusive collective-
bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time employ-
ees at our Mogadore, Ohio, plant involved
in the installation of all resilient type floors,
including all linoleum and laminated plastics,
any materials used on windows to reflect
651
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
heat, such as solarex, etc., sink tops, compo-
sition tile, plastic tiles, ceramic tile, cork, as-
phalt, rubber tile, astro turf, etc., and all
metal beading and preliminary work in con-
nection with same, and all substitutes for the
above-mentioned materials, all manner of
carpet and rug work, male or female carpet
sewers, measurement, cutters and all work
on draperies, including installation and mate-
rials for installation, excluding all bona-fide
clerical positions, office clerical employees,
professional employees, guards and supervi-
sors as defined in the Act.
WE WILL NOT discourage employees from
supporting Local No. 484 by discharging em-
ployees or otherwise discriminating against
employees in regard to their hire or tenure of
employment or any other terms or conditions
of employment because they refuse to accept
our unilaterally imposed wages, hours, or con-
ditions of employment rather than the wages,
hours, and conditions of employment required
by our contract with Local No. 484.
WE WILL NOT refuse to recognize and bar-
gain in good faith with Local No. 484 as the
exclusive collective-bargaining representative
of the employees in the appropriate bargaining
unit described above.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL revoke all unilateral changes made
in employees' wages hours, or conditions of
employment on and after October 5, 1978.
WE WILL give retroactive effect from Octo-
ber 5, 1978, to all the terms and conditions of
the collective-bargaining agreement with
Local No. 484, which we signed on September
25, 1978.
WE WILL make our employees whole for
any loss of wages or any other benefits they
may have suffered as a result of our unlawful
refusal to bargain with Local No. 484, with in-
terest.
WE WILL recognize and bargain in good
faith with Local No. 484 as the exclusive col-
lective-bargaining representative of the em-
ployees in the bargaining unit described above.
WE WILL offer employees Donald Dugan,
Robert Ross, Richard B. Casto, Anthony P.
Guagliardo, Donald Beachem, Clem T. Simon,
and Ernest Pletcher immediate and full rein-
statement to their former positions, dismissing,
if necessary, any employees who may have
been hired or assigned to perform the work
which they performed prior to their discharge
or, if those jobs no longer exists, to substantial-
ly equivalent positions, without prejudice to
their seniority or any other rights and privi-
leges, and make them whole for any loss of
pay they may have suffered as a result of our
discrimination against them, together with in-
terest on those amounts.
OWEN LEE FLOOR SERVICE, INC.,
AND OWEN LEE, CONTRACTOR, AN
INDIVIDUAL PROPRIETORSHIP
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge:
Upon a charge filed by Carpenters and Linoleum Layers
Local No. 484, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (referred to herein as the
Union), the Acting Regional Director for Region 8
issued a complaint and notice of hearing on July 25,
1979, against Owen Lee Floor Service, Inc. (referred to
herein as Floor Service). Thereafter, at the hearing held
before me on January 16, 1980, the complaint was
amended to allege that Floor Service and Owen Lee,
contractor, an individual proprietorship (referred to
herein as Lee), were alter egos and that Floor Service
and Lee violated Section 8(a)(1), (3) and (5) of the Na-
tional Labor Relations Act, as amended. Lee and Floor
Service denied commission of any of the alleged viola-
tions.
Upon the entire record, my observation of the wit-
nesses who testified before me, and after due considera-
tion of the General Counsel's and Respondent's briefs,' I
make the following:
FINDINGS OF FACT
I. JURISDICrTION AND THE LABOR ORGANIZATION
INVOLVED
Floor Service has been at all times material to this case
an Ohio corporation engaged in carpet installation with
its principal office and place of business at Mogadore,
Ohio. Annually, Floor Service performs services valued
in excess of $50,000 for other firms located in Ohio, in-
cluding the May Department Stores Company d/b/a
The M. O'Neil Company, a firm which satisfies the
Board's jurisdictional standards on other than an indirect
inflow or indirect outflow basis. Floor Service admitted,
and I find from the foregoing, that Floor Service is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
On February 20. 1980, I received the General Counsel's timely filed
brief, together with a memorandum in opposition to "Respondent's
Motion to Admit Evidence After Close of Hearing." However, as I have
not received such a motion, I have not ruled upon the question raised by
the General Counsel's memorandum
652
OWEN LEE FLOOR SERVICE, INC.
Floor Service admitted, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALL EGED UNFAIR LABOR PRACTICES
A. The Issues Presented
The questions presented in the instant case are: (I)
whether Floor Service and Lee violated Section 8(a)(1)
of the Act by threatening to set up another company
elsewhere to avoid bargaining with the Union; (2)
whether Floor Service and Lee violated Section 8(a)(5)
and (I) of the Act by (a) bypassing the Union and bar-
gaining directly with unit employees in respect to wages,
hours, and working conditions and (b) unilaterally
changing conditions of employment; and (3) whether
Floor Service and Lee violated Section 8(a)(3) and (1) of
the Act by conditioning continued employment of the
unit employees upon their acceptance of Floor Service's
unilaterally imposed conditions and then discharging bar-
gaining unit employees Donald Dugan, Robert Ross,
Richard H. Casto, Anthony P. Guagliardo, Donald Bea-
chem, Clem T. Simon, and Ernest Pletcher because they
refused to abide by these conditions.
B. The Relationship Between Floor Service and Owen
Lee, Contractor, an Individual Proprietorship
The General Counsel alleges that Floor Service estab-
lished Owen Lee, contractor, an individual proprietor-
ship, as a disguised continuation of Floor Service, and
that the individual proprietorship and Floor Service are
alter egos. 2 Respondent denies this allegation. I find merit
in the General Counsel's position.
At all times material to this case, Owen Lee was presi-
dent of Floor Service, chairman of its board of directors,
and owner of 50 percent of its stock. His wife, Joann
Lee, was vice president of Floor Service and owned the
remaininq half of its stock. During Floor Service's oper-
ation of the carpet installation business involved in this
case, Owen and Joann Lee were its only supervisors.
Owen Lee transferred Floor Service's carpet installa-
tion business to himself, as a sole proprietorship, on or
about October 15, 1978. He continued to operate that
business as its sole proprietor and chief operating individ-
ual until September 14, 1979, when he went out of busi-
ness. Vice President Joann Lee performed Floor Serv-
ice's office work on a full-time basis at its Mogadore,
Ohio, location on Gilchrist Road, including answering
the telephone, paying creditors, and preparing payrolls.
Upon establishment of the sole proprietorship, Joann pre-
pared payrolls and made disbursements at the proprietor-
ship's office in Bowerstown, Ohio. Before this change,
Joann Lee had daily contact with Floor Service's em-
ployees. Her stationing in Bowerstown precluded such
contacts.
Part-time office employee Dolly Sharp answered the
telephone at the Gilchrist Road location as an employee
of Floor Service. After the sole proprietorship took over
2 No issues oif credibility arose regarding this portion of the cawe My
findings of fact as to the alter ego allegalion are based upon Owen I ee's
testimony
Floor Service's Gilchrist Road facilities, Sharp continued
to answer the same phone, but as a self-employed "phone
answering service."
Lee operated his carpet installation business from the
same office and place of business in the Gilchrist Street
warehouse in which Floor Service had formerly main-
tained its principal office and place of business. This
warehouse belonged to The M. O'Neil Company, a local
department store operated by May Department Stores
Company. Neither Floor Service nor Lee, as sole propri-
etor, paid any rent to The M. O'Neil Company.
The M. O'Neil Company was Floor Service's sole cus-
tomer. When Lee took over Floor Service's operations,
The M. O'Neil Company became and remained his sole
customer. Prior to the transfer of ownership, Floor Serv-
ice was The M. O'Neil Company's exclusive carpet in-
staller in Greater Akron and vicinity. Upon the transfer,
Lee assumed that role. Neither Floor Service nor Lee
ever refused to perform an installation tendered by The
M. O'Neil Company. Lee performed services for The M.
O'Neil Company at an annual rate exceeding $50,000.
Floor Service operated its carpet installation business
with 12 employees who were hourly paid under the
terms of a collective-bargaining agreement. When Owen
Lee became a sole proprietorship, he continued to
employ three of those employees, Pete Welch, Dick
Sharp, and Jim Welch, on a piece rate basis.
Both Floor Service and Lee used material and equip-
ment provided free of charge by The M. O'Neil Compa-
ny for measuringq, cutting, and installing carpet. The M.
O'Neil Company also provided trucks to Floor Service
free of charge. Lee enjoyed this same arrangement until
the end of November 1978, when he bought the trucks
and sold them to his employees.
The M. O'Neil Company provided free gasoline for
the operation of its trucks by Floor Service. At some
point after Lee took over Floor Service's business, his
employees began buying their own fuel.
Floor Service purchased tack strip and heat tape from
several suppliers, including Sobal Sales of Cleveland,
Ohio. After Lee commenced operations, he continued to
use some of the same suppliers including Sobal Sales.
The M. O'Neil Company gave Floor Service orders
for carpet installation at various locations in the greater
Akron area. After Lee took over Floor Service's oper-
ations, there was no change in The M. O'Neil Compa-
ny's procedure in transmitting such orders.
Both Floor Service and Lee charged The M. O'Neil
Company for carpet installation on a yard basis at the
same rate. However, Lee reduced by 50 percent the
charge for moving refrigerators, furniture, and other
items in connection with carpet installation. Lee also
continued to impose additional charges for tape installa-
tion, removal of rubber backing from carpet, and other
extra work which had been imposed by Floor Service.
These rates as charged by Lee remained the same or
were "reasonably close" to those charged by Floor Serv-
ice.
In determining whether Floor Service and Lee have
for purposes of this case alter ego status. I have looked to
Crawford Door Sales Company. Inc.. and Cordes Door
053
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, Inc., 226 NLRB 1144 (1976), where the Board,
in discussing the issue of alter ego status, declared:
Clearly each case must turn on its own facts, but
generally we have found alter ego status where the
two enterprises have "substantially identical" man-
agement, business purpose, operation, equipment,
customers, and supervision, as well as ownership.
Here, those criteria have been satisfied. Owen Lee and
his wife owned all the corporate stock of Floor Service;
Owen Lee owned the proprietorship. Both Floor Service
and Owen Lee engaged in the same business, carpet in-
stallation. Both had the same customer, The M. O'Neil
Company. Floor Service and Owen Lee used the same
equipment for measuring and cutting carpeting. Neither
owned the trucks or handtools used in accomplishing the
installation of carpeting. Aside from the relocation of
Joann Lee's office, both enterprises occupied the same
operational base from which they both served the same
market area. Owen Lee, by deed and testimony, showed
that he devised, controlled, and managed the labor poli-
cies of both enterprises. He and Joann Lee were the sole
supervisors of the corporation. However, it was Owen
Lee who presided over and conducted the business oper-
ations of both the corporation and the sole proprietor-
ship.
There can be little doubt from the foregoing that
Owen Lee, contractor, a sole proprietorship, was a dis-
guised continuation of and the alter ego of Floor Service.
However, the transfer of Floor Service's business to Lee
itself removes any doubt as to Owen Lee's complete con-
trol of both the corporation and the proprietorship. As
found below, in early October 1978, Floor Service's vice
president, Joann Lee, warned an employee that Floor
Service intended to avoid dealing with the Union repre-
senting its carpet installers by relocating its business op-
erations and forming "another company." The predicted
relocation did not occur. However, Owen Lee carried
out the rest of his wife's prediction. He transferred Floor
Service's business operations to himself as sole propri-
etor. Owen Lee's ability to thus devise and execute this
maneuver, freely and on his own initiative, demonstrates
his complete control of both firms. This attempt to dis-
guise Floor Service's business provides further ground
for my finding that Floor Service and Lee are alter egos
and together are a single employer within the meaning of
the Act.
C. The Facts of the Alleged Violations
Except as noted, Floor Service, Inc., by its amended
answer and by stipulations, admitted the following which
I find to be the facts:
On August 4, 1976, following a National Labor Rela-
tions Board election, the Regional Director for Region 8
certified the Union as the exclusive collective-bargaining
representative of the following appropriate unit of Floor
Service's employees.
All full-time and regular part-time employees at
[Floor Service's] Mogadore, Ohio, plant, involved
in the installation of all resilient type floors, includ-
ing all linoleum and laminated plastics, any materi-
als used on windows to reflect heat, such as solarex,
etc., sink tops, composition tile, plastic tiles, ceramic
tile, cork, asphalt, rubber tile, astro turf, etc., and all
metal beading and preliminary work in connection
with same, and all substitutes for the above-men-
tioned materials, all manner of carpet and rug work,
male or female carpet sewers, measurement, cutters
and all work on draperies, including installation and
materials for installation, excluding all bona fide
clerical positions, office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act.
On or about October 3, 1978, Floor Service, through
its officer, agent, and supervisor, President Owen Lee, at
its Mogadore, Ohio, facility, bypassed the Union and
dealt directly with the employees in the bargaining unit
described above in respect to wages, hours, and working
conditions. On or about October 3, Floor Service, by
President Owen Lee, at its Mogadore, Ohio, facility,
without prior notification to, or bargaining with, the
Union, unilaterally changed employees' working condi-
lions when it announced that effective October 5, 1978,
all work would be performed by its employees on a
piecework basis and each crew would be responsible for
providing its own truck. Floor Service temporarily sus-
pended these changes from on or about October 11.
1978, to on or about October 16, 1978, and thereafter
unilaterally reinstituted them from on or about October
16, 1978, to date.3
On or about October 3, 1978, Floor Service, by its of-
ficer, agent, and supervisor, President Owen Lee, at
Floor Service's Mogadore, Ohio, facility, told its em-
ployees that they could either work under the conditions
unilaterally imposed by Floor Service, referred to above,
or they would no longer work for Floor Service. There-
after, Floor Service terminated employees Donald
Dugan, Robert Ross, Richard H. Casto, Anthony P.
Guagliardo, Donald Beachem, and Clem T. Simon be-
cause they refused to abide by these conditions. On or
about October 9, 1978, Owen Lee, at his Gilchrist ware-
house, informed employee Ernest Pletcher that if he did
not work for Owen Lee under a piece rate arrangement
rather than under the hourly rate under the applicable
collective-bargaining agreement he would be terminated,
and, thereafter Owen Lee terminated Pletcher because
he refused to abide by these conditions. On or about Oc-
tober 11, 1978, Floor Service temporarily reinstated em-
ployees Dugan, Ross, Casto, Guagliardo, Beachem, and
Pletcher for a period until October 16, 1978.
On or about October 16, 1978, Owen Lee, informed
his employees that they could either work as subcontrac-
tors at a piece rate basis or they would no longer work
for Owen Lee and, thereafter, terminated employees
' It is undisputed that at a mecling hetl ecri Floor Service's alttrncy.
lawrence Smith. Fsq . and a union official on October I0. 1978, it was
agreed that Floor Service would comply with the current collective-har-
gainlng agrecmenll Thcreafter. on October 14. 1978. Smith again met
with the same union flnicial. who again inisted upon colmpliance 'with
Ihe contract The only issue discussed at this liatter juncturCe aihe h wn-
ership of hie trucks used hy Floor Service
654
OWFN I F.E FLOOR SERVICE. INC
Dugan, Ross, Casio, Guagliardo, Beachem, Simon, and
Pletcher because they refused to abide by these condi-
tions, and since that date has failed and refused, and con-
tinues to fail and refuse, to reinstate them to their former
or substantially equivalent positions of employment.
It is also undisputed, and I find, that on September 25,
1978, the Union and Floor Service entered into a 2-year
collective-bargaining agreement, effective July 1, 1978,
with the Union covering the certified bargaining unit.
This contract, inter alia, established hourly wage rates
and fringe benefits for the bargaining unit employees and
defined "a day's work."
In early October 1978, employee James Welch and
Floor Service's vice president, Joann Lee, an admitted
supervisor within the meaning of Section 2(11) of the
Act, discussed the "trouble" Floor Service was having
with the Union. In her remarks on this topic Vice Presi-
dent Lee included a warning that management would
"probably have to start another company in a different
county" to avoid further dealing with the Union. 4
D. Analysis and Conclusions
It is well settled that, where an employer has an obli-
gation under the Act to bargain collectively with a union
regarding the wages, hours, and conditions of employ-
ment of its employees, the employer violates that obliga-
tion and Section 8(a)(5) and (1) of the Act by dealing di-
rectly with its employees regarding wages, hours, and
conditions of employment, and by unilaterally changing
its employees wages, hours, and conditions of employ-
ment. Johnson Electric Company, Inc. and William A.
Johnson and Albert M. Thompson d/b/a Johnson Electric
Company, 196 NLRB 637, 643 (1972). Here, on or about
October 3, 1978, Floor Service, despite its obligation to
bargain with the Union as exclusive bargaining repre-
sentative of its employees, bypassed the Union, dealt di-
rectly with the bargaining unit employees, and unilateral-
ly declared that effective October 5, 1978, the unit em-
ployees would no longer receive the contractually estab-
lished hourly wages but would work on a piecework
basis, and that employees would provide their own
trucks to accomplish their work. Floor Service again,
without notice to or consent of the Union, unilaterally
reimposed these conditions on or about October 16,
1978, after it had suspended them on or about October
11, 1978 .
s By this conduct, as alleged in the complaint,
Floor Service and Owen Lee have failed and refused to
bargain collectively with the exclusive representative of
their employees and thereby engaged in and are engag-
ing in unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
I also find that, by requiring unit employees Donald
Dugan, Robert Ross, Richard B. Casto, Anthony P.
4 My findings regarding this incident are based upon Welch's uncon-
tradicted testimony
I Contrary to Respondent's contention (Resp. br. pp. 2-3). the discus-
sion of October 14, 1978, between Attorney Smith and the Union did not
provide Floor Service or Owen Lee with license to repudiate the existing
collective-bargaining agreement Laramee' Transii. Inc., 224 NLRB 56.
65 (1976): Oak Cliff-Golman Baking Company. 207 NLRB 1063. 1064
(1973).
Guagliardo, Donald Beachem, Clem T. Simon, and
Ernest Pletcher to accept the unilaterally imposed condi-
tions of employment recited above and by terminating
them because they refused to abide by those terms, Floor
Service and Owen Lee violated Section 8(a)(3) and (1) of
the Act. Crawford Door Sales Company. Inc., 226 NLRB
at 1150; Johnson Electric Company. Inc., 196 NLRB at
644.
Finally, I find that Vice President Lee's warning car-
ried the threat that Floor Service would terminate its
current unit of employees unless it could otherwise avoid
further bargaining with their collective-bargaining repre-
sentative. By this implied threat, I find that Floor Serv-
ice and Owen Lee violated Section 8(a)(1) of the Act.
Dunn Brothers. Incorporated t/a Fisher Stove Works, 235
NLRB 1032, 1034-35 (1978).
CONCLUSIONS OF LAW
I. Respondent, Owen Lee Floor Service, Inc., and
Owen Lee, contractor, a sole proprietorship, are a single
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union, Carpenters and Linoleum Layers Local
No. 484, United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time employees at
Owen Lee Floor Service, Inc.'s and Owen Lee's
Mogadore, Ohio, plant, involved in the installation
of all resilient type floors, including all linoleum and
laminated plastics, any materials used on windows
to reflect heat, such as solarex, etc., sink tops, com-
position tile, plastic tiles, ceramic tile, cork, asphalt,
rubber tile, astro turf, etc., and all metal beading
and preliminary work in connection with same, and
all substitutes for the above-mentioned materials, all
manner of carpet and rug work, male or female
carpet sewers, measurement, cutters and all work
on draperies, including installation and materials for
installation, excluding all bona fide clerical posi-
tions, office clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act.
4. At all times since August 4, 1976, and continuing to
date, the Union has been the exclusive representative of
all the employees in the above-described appropriate unit
for the purpose of collective bargaining within the mean-
ing of Section 9(a) of the Act.
5. By dealing directly with the employees and bypass-
ing the Union on or about October 3, 1978, by announc-
ing on or about October 3, 1978, without prior notifica-
tion to, or bargaining with, the Union, unilateral changes
in the unit employees' working conditions, and by rein-
stituting such unilateral changes on or about October 16,
1978, Owen Lee Floor Service, Inc., and Owen Lee, re-
fused to bargain collectively with the Union as the exclu-
sive collective-bargaining representative of the employ-
655
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees in the aforesaid unit and thereby violated Section
8(a)(5) and (1) of the Act.
6. By telling the unit employees on or about October
3, 1978, that they could either work under the unilateral-
ly imposed conditions or they would no longer work for
Owen Lee Floor Service, Inc., or Owen Lee, and by
thereafter terminating employees Donald Dugan, Robert
Ross, Richard H. Casto, Anthony P. Guagliardo, Donald
Beachem, and Clem Simon, Owen Lee Floor Service,
Inc., and Owen Lee violated Section 8(a)(3) and (1) of
the Act.
7. By informing employee Ernest Pletcher that if he
refused to work for Owen Lee Floor Service, Inc., and
Owen Lee under the terms unilateral imposed by Owen
Lee Floor Service, Inc., and Owen Lee, he would be
terminated, and by thereafter terminating employee
Pletcher because he refused to abide by these conditions,
Owen Lee Floor Service, Inc., and Owen Lee violated
Section 8(a)(3) and (1) of the Act.
8. On or about October 11, 1978, Owen Lee Floor
Service, Inc., and Owen Lee temporarily reinstated em-
ployees Ross, Casto, Guagliardo, Beachem, Simon,
Dugan, and Pletcher for a period until October 16, 1978.
9. By informing their employees on or about October
16, 1978, that they could either work under the unilater-
ally imposed conditions referred to above or they would
no longer work for Owen Lee Floor Service, Inc., and
Owen Lee, by thereafter terminating employees Dugan,
Ross, Casto, Guagliardo, Beachem, Simon, and Pletcher
because they refused to abide by these conditions, and by
since that date having failed and refused and continuing
to fail and refuse to reinstate them to their former or
substantial equivalent positions of employment, Owen
Lee Floor Service, Inc., and Owen Lee have violated
Section 8(a)(3) and (1) of the Act.
10. By threatening to move their business to another
locality and to operate it under a different company
rather than bargain with the Union, Owen Lee Floor
Service, Inc., and Owen Lee violated Section 8(a)(1) of
the Act.
I 11. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
I will require Respondent, Owen Lee Floor Service,
Inc., and Owen Lee to cease and desist from further vio-
lations, to revoke their unilateral changes, and to give
retroactive effect to all the terms and conditions of the
1978-80 collective-bargaining agreement entered into by
Owen Lee Floor Service, Inc., with the Union from the
effective date of Owen Lee Floor Service, Inc.'s, and
Owen Lee's unilateral changes on October 5, 1978, and
to make whole their employees for any loss of wages or
any benefits they may have suffered as a result of the un-
lawful refusal to bargain of Owen Lee Floor Service,
Inc., and Owen Lee. I will also order Owen Lee Floor
Service, Inc., and Owen Lee to bargain with the Union
herein at the Union's request. Further, I will order Owen
Lee Floor Service, Inc., and Owen Lee to offer rein-
statement to employees Donald Dugan, Robert Ross,
Richard B. Casto, Anthony Guagliardo, Donald Bea-
chem, Clem T. Simon, and Ernest Pletcher, and to make
them whole for any wages and other benefits lost, to-
gether with backpay, if any, to be computed as provided
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).6 As Re-
spondent went out of business on September 14, 1979, in-
stead of posting the usual notice, I shall require Owen
Lee to mail a copy of the notice to each employee who
was on the payroll of Owen Lee Floor Service, Inc., or
of Owen Lee, contractor, an individual proprietorship,
on or after October 3, 1978, at the last known postal ad-
dress as shown on Owen Lee Floor Service, Inc's, and
Owen Lee's records.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER7
The Respondent, Owen Lee Floor Service, Inc., and
Owen Lee, contractor, an individual proprietorship, Mo-
gadore, Ohio, their officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Threatening to remove their business operation to
another locale and operate it under a different company,
and thus impliedly threatening to terminate their employ-
ees, in order to avoid bargaining with Carpenters and Li-
noleum Layers Local No. 484, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, as the ex-
clusive collective-bargaining representative of their em-
ployees.
(b) Unilaterally changing the existing wages, hours,
and working conditions of their employees, dealing di-
rectly with their employees, and refusing to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of their employees in the fol-
lowing unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time employees at
Owen Lee Floor Service, Inc.'s and Owen Lee's
Mogadore, Ohio, plant, involved in installation of
all resilient type floors, including all linoleum and
laminated plastics, any materials used on windows
to reflect heat, such as solarex, etc., sink tops, com-
position tile, plastic tiles, ceramic tile, cork, asphalt,
rubber tile, astro turf, etc., and all metal beading
and preliminary work in connection with same, and
all substitutes for the above-mentioned materials, all
manner of carpet and rug work, male or female
carpet sewers, measurement, cutters and all work
on draperies, including installation and materials for
installation, excluding all bona fide clerical posi-
tions, office clerical employees, professional em-
6 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
656
OWEN LEE FLOOR SERVICE, INC.
ployees, guards and supervisors as defined in the
Act.
(c) Discouraging activity on behalf of, or support for,
the Union by discharging employees, or otherwise dis-
criminating in any manner in respect to their tenure of
employment or any term or condition of employment,
because they refuse to accept wages, hours, or conditions
of employment other than those required by an existing
collective-bargaining agreement with the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Revoke all unilateral changes which were effective
on and after October 5, 1978, in regard to the wages,
hours, and conditions of employment of all of the em-
ployees in the appropriate unit described above.
(b) Give retroactive effect frcm October 5, 1978, to all
the terms and conditions of the September 25, 1978, col-
lective-bargaining agreement with the Union which is ef-
fective from July 1, 1978, until June 30, 1980.
(c) Recognize and, upon request, bargain collectively
with the Union as the exclusive representative of all em-
ployees in the appropriate unit described above with re-
spect to rates of pay, hours of employment, and other
terms and conditions of employment.
(d) Make whole their employees for any loss of wages
or any benefits they may have suffered as a result of
their unlawful refusal to bargain with the above-named
Union.
(e) Offer employees Donald Dugan, Robert Ross,
Richard B. Casto, Anthony P. Guagliardo, Donald Bea-
chem, Clem T. Simon, and Ernest Pletcher immediate
and full reinstatement to their respective former positions
of employment, dismissing, if necessary, anyone who
may have been hired or assigned to perform their func-
tions or, if their former respective positions no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges.
(f) Make whole employees Donald Dugan, Robert
Ross, Richard B. Casto, Anthony P. Guagliardo, Donald
Beachem, Clem T. Simon, and Ernest Pletcher for any
losses of pay each may have suffered as a result of the
discrimination each has suffered, in the manner set forth
above in the section entitled "The Remedy."
(g) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(h) Mail to employees who were in the employ of Re-
spondent Owen Lee Floor Service, Inc., and Owen Lee,
on or after October 3, 1978, at their last known mailing
address as shown on Respondent's records, copies of the
attached notice which is marked "Appendix." 8 Copies of
said notice on forms provided by the Regional Director
for Region 8, after being duly signed by Owen Lee as an
individual and also as president of Owen Lee Floor
Service, Inc., shall be mailed by Owen Lee immediately
upon receipt thereof.
(i) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what
steps Owen Lee Floor Service, Inc., and Owen Lee have
taken to comply herewith.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
657