Charles T. Reynolds Box Co.

National Labor Relations Board - Board Decisions

Oct 25, 1962

139 N.L.R.B. 519 (N.L.R.B. 1962)

CHARLES T. REYNOLDS BOX COMPANY, ETC. 519
CONCLUSIONS OF LAW
1. Quality, Brazil , and Center Point are engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Kumpf is an employer within the meaning of Section 2(2) of the Act.
3. Quality and Brazil constitute a single employer.
4. Center Point is a successor employer to Quality-Brazil.
5. PMW; Local 403; PMW; and UMW are each a labor organization within the
meaning of Section 2(5) of the Act.
6. Respondents Quality, Brazil, Center Point, and Kumpf, individually and col-
lectively, have violated Section 8(a) (1), (2), (3), and (5) of the Act.
7. Respondent PMW has violated Section 8(b) (1) (A) of the Act.
8. The activities of Respondents set forth in section IV, above, occurring in con-
nection with the operations of Respondents described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
[Recommendations omitted from publication.]
Charles T. Reynolds , Sr. doing business as Charles T. Reynolds
Box Company, and Reynolds Pallet & Box Co. and Local 637,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO. Case No. 9-CA-2464. October 25, 1962
DECISION AND ORDER
On July 2, 1962, Trial Examiner Stanley Gilbert issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. The Trial Examiner also found that the Respondents had not
engaged in certain other unfair labor practices alleged in the com-
plaint. Thereafter, the Respondents filed exceptions to the Inter-
mediate Report together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as noted.'
1 The Trial Examiner 's recommendation that the backpay allegation of Respondent in-
clude the payment of 6 percent interest per annum is adopted However, for the reasons
given in his dissent in the Isis Plumbing & Heating Co. case, 138 NLRB 716, Member
Rodgers would not grant any interest in this case
139 NLRB No. 41.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner?
2Appendix B attached to the Inteimediate Report is hereby modified by adding the
following immediately below the signature :
NOTE,-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act after discharge from the Armed
Forces.
Appendix B is fuithei modified by deleting the words "60 days from the date hereof"
in the penultimate paragraph of said notice and inserting in its place, the words "60
consecutive days from the date of posting . . .11
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed January 8, 1962, by Local 637, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO (hereinafter referred to as the Union),
the complaint herein was issued on February 9, 1962, against Charles T. Reynolds,
Sr. (hereinafter referred to as Reynolds) doing business as Charles T. Reynolds
Box Company, and Reynolds Pallet & Box Co. (hereinafter referred to as the
Corporation), alleging that the Respondents had violated and are continuing to
violate Section 8(a)(1) and (3) of the National Labor Relations Act, as amended
(hereinafter referred to as the Act) i Copies of the complaint and notice of hearing
were duly served upon Respondents, in response to which they filed separate answers
denying the unfair labor practices alleged.2
A hearing was held on April 2, 3, 4, and 5, 1962, at Cincinnati, Ohio, before Trial
Examiner Stanley Gilbert. All parties were represented by counsel and were
given full opportunity to examine and cross-examine witnesses, to introduce evidence
bearing on the issues, to present oral argument at the close of the hearing, and to
file briefs. Counsel for General Counsel and for the Respondents filed briefs within
the time designated therefor.
Upon the entire record in this proceeding, and upon my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
For a number of years until sometime in November 1961, Reynolds (i e , Reynolds,
d/b/a Charles T. Reynolds Box Company, as a sole proprietor) was engaged in the
manufacturer and sale of industrial boxes, skids, pallets, and products related thereto
at his plant in Fairfield, Ohio (hereinafter referred to as the Fairfield plant).
During the 12-month period ending November 3, 1961, Reynolds sold and shipped
from the Fairfield plant to points outside the State of Ohio products valued in excess
of $50,000 and received at said plant directly from sources outside the State
products of a value in excess of $50,000. Therefore, it appears that Reynolds was
engaged in commerce during the aforementioned period within the meaning of
Section 2(6) and (7) of the Act.
The Corporation (Reynolds Pallet & Box Co.) was incorporated under the
laws of Ohio on August 26, 1961, for the purpose of the manufacture and sale of
industrial boxes, and, during the month of October 1961, commenced the manufacture
and sale of industrial boxes, skids, pallets, and related products at its plant in Maud,
Ohio (hereinbelow referred to as the Maud plant). In view of the finding hereinbelow
that the Corporation is the alter ego of Reynolds, it appears that, for the purposes
of this proceeding, it is appropriate to find that the Corporation is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act. In essence, I find,
1 The complaint was amended in many respects during the course of the hearing, b it
it does not appear necessary to set forth said amendments herein
2 The answers were amended in many respects during the course of the hearing, b't
it does not appear necessary to set forth the amendments herein.
CHARLES T. REYNOLDS BOX COMPANY, ETC. 521
below, that Reynolds' business was continued as a corporation instead of a sole
proprietorship with substantially the same ownership and management.
H. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondents, the Union is a labor organization within the meaning
of Section 2(5) of the Act.
IH. THE UNFAIR LABOR PRACTICES
A. Factual setting
In January 1961, Reynolds entered into a contract for the sale of his property
upon which the Fairfield plant was located. The contract was consummated in
March 1961 and provided that he was to vacate the property by September 1961.
In January 1961, Reynolds commenced negotiating for the purchase of the proper-
ty upon part of which the Maud plant was ultimately constructed. This property, the
purchase of which was consummated about June 1, 1961, is approximately 12 miles
from the location of the Fairfield plant. Construction of the Maud plant was
started in the latter part of July 1961 and completed in September 1961.
In the first half of July a "paper" was circulated among Reynolds' employees to
which they affixed their signatures to indicate that they favored having a union
represent them. Over 80 percent of them signed the paper.
On August 4, 1961, the Union filed with the Board a petition for certification
as the bargaining representative for all of Reynolds' production and maintenance
employees at the Fairfield plant including truckdrivers.
On August 26, 1961, the Corporation was formed.
On August 29, 1961, a hearing was held on the petition at which an agreement
was executed for a consent election to be held on October 13, 1961.
On October 3, 1961, all of the outstanding capital stock of the Corporation was
offered for sale and purchased, a meeting of its stockholders was held at which
directors were elected, and a meeting of the directors was held at which, among
other things, officers were elected and authorization was granted to negotiate with
Reynolds and his wife for a lease of the Maud plant upon certain general terms,
to be effective as of October 1, 1961. At the directors' meeting Reynolds and his
wife agreed to the general terms. Said lease was executed by them and the Corpora-
tion apparently at a subsequent date. Reynolds also sold to the Corporation sub-
stantially all of the manufacturing equipment used at the Fairfield plant.
On or about October 4, 1961, the Corporation commenced operations at the
Maud plant. Until about November 10, 1961, Reynolds, pursuant to an oral contract
with the Corporation, performed a portion of the manufacturing work of the Cor-
poration at the Fairfield plant. (After that he dismantled the Fairfield plant.)
Commencing on or about October 1, 1961, Reynolds referred his customers to the
Corporation.
On October 13, 1961, an election was conducted by the Board among the em-
ployees at the Fairfield plant. Of 31 votes cast, 27 were for the Union and 4 against
it On October 23, 1961, the Board certified the Union as the representative of the
employees in the unit described in the Union's petition.
On the day of the election, October 13, 1961, Reynolds notified over one-third
of the employees at the Fairfield plant that they were "laid off" for lack of work
He continued to "lay off" further employees until by December 10, 1961, the em-
ployment of virtually all of the Fairfield plant employees had been terminated and
the dismantling of the plant had been completed. (Hereinbelow, I find that the
"layoffs" constituted discharges.)
B. The issues
There is a considerable amount of testimony as to coercive statements made to or
in the presence of Fairfield plant employees by Reynolds and his supervisors at that
plant which constitute conduct violative of Section 8(a)(1). Reynolds does not
seriously contend that the statements were noncoercive, his only argument apparently
being, in substance, that in view of the results of the election they were not effective.
However, effectiveness is not the test. The Corporation's position is that it is
not a successor or alter ego of Reynolds and, therefore, not responsible for unfair
labor practices which might be attributable to him.
As to the layoffs, Reynolds contends that they were occasioned by the closing
down of his plant and resultant lack of available work. The Corporation's position
appears to be that in the absence of a successor or alter ego relationship, it cannot
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be found responsible for the termination of Reynolds' employees or to have been
obligated to hire them. The General Counsel contends, in substance, that the
Corporation is the "successor and/or alter ego" of Reynolds and that the failure
to transfer the Fairfield plant employees to the Maud plant constituted discrimination
in violation of Section 8(a)(3).3 Thus, the chief issues raised are whether it is
appropriate to find that a successor or alter ego relationship existed between Reynolds
and the Corporation and, if so, whether the failure to transfer the employees was
for discriminatory reasons.
C. The coercive statements
Eleven witnesses of the General Counsel who had been employed at the Fairfield
plant testified credibly, and without contradiction, to statements made by Reynolds
and two of his supervisors 4 to or in the presence of employees which appear to have
been coercive and violative of Section 8(a)(1) of the Act. These statements fall
into three categories of threats against employers, predicated on the advent of the
Union. of loss of jobs, of closing of the shop, and of refusal to recognize or enter
into a contract with the Union. There was also a threat (by one of the supervisors
who at the time had transferred to the Maud plant) of violence if the Fairfield plant
employees attempt to engage in picketing the Maud plant.
1. Statements made by Reynolds
Roland Robinson testified that Reynolds stated to him, in the first part of
August 1961, that he heard "some of the boys is trying to organize a Union,"
that "it won't do them no good . . . IT close it down," and that "he didn't start
with a Union . and wasn't going to wind up with nary'un."
George Branstetter testified to a statement which Reynolds made to his brother
Dennis Reynolds in the latter part of September that "if the boys formed a Union
. he would close the shop down." The two Reynolds were in an office and the
witness was outside of a window of the office. Based on the circumstances to which
the witness testified, I am of the opinion that Reynolds was aware of his presence.
The fact that he was visible to Reynolds and the statement made by Dennis Reynolds
to the witness when Dennis Reynolds came out of the office shortly thereafter ("We
can't fool with these old Unions, can we?") indicate that his presence was known
and that there was an awareness that he could and did overhear the statement.
2. Statements by Dempsey French
Up to about November 1, 1961, Dempsey French worked as a supervisor for
Reynolds at the Fairfield plant and thereafter became a supervisor for the Corporation
at the Maud plant.
Stanley Robinson testified that, in mid-September 1961, French stated to him in
the presence of several other employees that "we better get the boys together and
try to get them to vote against the Union, if we don't we are going to be voting
ourselves out of a job."
Bobby Robinson testified that, in mid-September 1961, French stated in the
presence of the witness and several other employees that "you are wasting your time
voting the Union in, that Charlie [Reynolds] wouldn't sign a contract."
Arnold Chestnut testified that, in the latter part of September 1961, French
stated in his presence and that of several other employees "if we put the Union in, we
would all get laid off."
James Combs testified that, early in October 1961, French stated, in his presence
and that of several other employees that "There won't be any sense in voting it
[the Union] in. He [Reynolds] would just close down." 5
3 General Counsel also contends that, even should there be no finding of a successor
and/or alter ego relationship, nevertheless the Corporation is liable to remedy the unfair
labor practices of Reynolds In view of the findings hereinbelow it does not appear neces-
sary to consider this contention.
6 Their supervisory status is admitted by Respondents.
s Donald R. Howard, Mitchell Goss, and Cecil Combs also testified to statements of
French which were so closely similar in time and content that I am inclined to believe
that either they all relate to the same incident or are merely incidents so repetitive in
character and time that they would not add sufficient weight to merit setting forth the
details thereof.
CHARLES T. REYNOLDS BOX COMPANY, ETC . 523
Donald R. Howard testified that, in the latter part of October 1961 (about a week
after the election on October 13), French stated to him that "it wasn't going to do
no good to go along with it [the Union]," that "Charlie won't sign a contract."
Roland Robinson testified that in the middle of November, after French had started
working as a supervisor at the Maud plant, he had a conversation with French in
which he said to French that "the boys will be forming a picket line over there
[at the Maud plant] pretty soon" to which Dempsey replied, "Let the sons of bitches
form one. I will shoot them in a belly with a shot gun. I have heard all about the
Union I want to hear." 6
3. Statements by George Watkins
George Watkins was a supervisor at the Fairfield plant up to the middle of
October 1961 and subsequent thereto became a supervisor at the Maud plant.
Stanley Robinson testified that, in the latter part of September, Watkins stated
to him and two or three other employees that "if we voted he Union in, we would
be voting ourselves out of a job."
Roland Robinson testified that, in the latter part of September Watkins stated to
him and four other employees that "it won't do no good ['to get a union in'], that
Charlie won't work under no union. . . He'll close down."
George Branstetter and Cecil Combs testified to a statement made to them by
Watkins at the end of September 1961, that it would do no good to vote the Union
in, since Reynolds would close down and the employees would be out of a job.
Bobby Robinson testified that about October 1, 1961, Watkins stated to a group
of employees while they were eating their dinner, "you boys are all going to get fired
if you don't quit talking about the Union." Watkins also stated to them, "[You are]
going to fool around and lose your job."
Curtis B. Goss testified as follows to an incident which occurred during the first
part of October:
I walked over to the stove and George Watkins walked up there and I asked
him what did he think about the Union posters and he said if we voted the
Union in that we would be putting ourselves out of a job and Charlie would
close the doors then; that the Union wouldn't do us any good.
Although there are additional statements alleged in the complaint as violative
of Section 8(a)(1), I do not believe that any of such statements (i.e., other than
those above described) were violative of Section 8(a)(1), either because it has not
been proved that the statements were made, or because I am of the opinion that
in view of the context in which they were made they could not reasonably be con-
sidered to have had a coercive effect within the meaning of the Act.
D. The relationship between Reynolds and the Corporation
Reynolds testified that in accordance with his request to his attorneys made in
the spring of 1961, the Corporation was formed on August 26, 1961. On October 3,
1961, the stock therein was offered for sale. Of the 240 shares issued Reynolds
acquired 166; his wife 48; their son-in-law, T. K. McIntosh, 14; and the remaining
12 shares were divided equally among 6 others including R. M. Banning. Reynolds
further testified that, although he is the principal stockholder and a director, he
has not taken any part in the management of the Corporation.
On the same day the stock was sold, October 3, 1961, the directors were elected
and a meeting of the directors was held at which the following were elected officers:
R. M. Banning, president
G. T. Burkhardt, vice president in charge of traffic
G. B. Parsley, secretary and vice president in charge of sales
T. K. McIntosh, treasurer and vice president in charge of production and
purchasing
Of the above-mentioned officers elected, all but Banning were, at the time, supervisors
at the Fairfield plant. None of the other employees at the Fairfield plant was hired
by the Corporation except for jobs of supervisory status (George Watkins and
Dempsey French, who were also supervisors at the Fairfield plant; and Paul Gibson
whose alleged status as a supervisor at the Fairfield plant was neither admitted nor
demonstrated, but whose supervisory status at the Maud plant was admitted).
6In view of my finding hereinbelow with respect to the relationship between Reynolds
and the Corporation, I am of the opinion that a coercive statement by a supervisor at
either plant to an employee at the Fairchild plant would be related to the issues in this
proceeding,
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is the position of the Respondent Corporation that it should be treated as an
entity separate and distinct from Reynolds without any responsibility for the conduct
of Reynolds or his supervisors with respect to the Fairfield plant employees.
Reynolds had thought of incorporating his manufacturing business for a consid-
erable time and it was to accomplish this that he made the request of his attorneys
to form the Corporation. Thus, it was created for the purpose of continuing his
business, albeit in a different legal form (as a corporation instead of a sole pro-
prietorship) and with a small decrease in the extent of his ownership. He retained
(by his and his wife's stockholdings) 90 percent of the ownership of the business.
He built the Maud plant as a place to transfer his manufacturing operations, because
he had to vacate the Fairfield plant according to the terms of the sale of the property
upon which it was located. There is considerable testimony in the record which
demonstrates that he and his supervisors had indicated to the employees that the
operations were to be transferred to the Maud plant and that they had reasonable
cause to believe that they, too, would move to it.
Further demonstrating the continuity of Reynolds' operations by the Corporation,
Reynolds referred his customers to the Corporation as soon as the Corporation
began its operations and performed some of the work for the Corporation at his
Fairfield plant. Although Reynolds did not assume an active role in the manage-
ment of the Corporation, except for Banning, all the others in top management,
i.e , the three vice presidents, as well as several supervisors, were from the Fairfield
plant There is testimony in the record to the effect that Reynolds had nothing to
do with the selection of its employees by the Corporation and that the reason that
the only Fairfield plant personnel hired were the three vice presidents and three
supervisors was because they were the only Fairfield plant personnel to make appli-
cation to the Corporation for employment. From my observation of the witnesses
and the inherent improbability of aspects of this testimony,8 I cannot credit it.
It is true that one of the factors the Board often considers in determining successor
or alter ego relationships is the identity of the rank-and-file employees of the two
entities involved. However, in this case the unfair labor practice alleged (which
allegation I find to have been sustained) caused that lack of identity Therefore,
the lack of the factor of identity of employees does not affect my finding of an
alter ego relationship between Reynolds and the Corporation. Neither do I find that
the removal of the operations to the Maud plant is of significance in view of its
proximity (approximately 12 miles) to the Fairfield plant. It is my belief that the
record supports the inference that the change to a corporate structure and the
transfer of operations to the Maud plant were seized upon as a means of evading
the requirement of recognizing and bargaining with the Union. The threats set
forth in section C, above, cast sufficient light upon the relationship of the Respondents
to reveal their underlying motives and the devices upon which Respondents relied to
mask them. Whether the term successor or alter ego is applied to the relationship,
it is clear that the Corporation was not a bona fide successor insofar as the unfair
labor practices herein are involved. The takeover of the business by the Corpora-
tion from Reynolds was not a transaction between strangers dealing at arm's length,
but rather a continuation of the business in a different legal form with substantially
the same ownership and management
E. The "layoff" of the Fairfield plant employees
During the course of the hearing, counsel for Respondents indicated that he con-
sidered the termination of the employment of the Fairfield plant employees as "lay-
offs" rather than discharges. It is evident, however, that, although the notices the
employees received may have contained the word "layoff," Reynolds did not con-
template any possibility of recalling them to work at some future time. To all
intents and purposes they were discharged.
As early as July 1961, Reynolds must have been aware of the organizational ac-
tivities of his employees, for French saw the signatures of 27 employees on a "paper"
indicating their desire to be represented by a union. By letter to him dated August 4,
7 For examples, the testimony of Stanley Robinson of a statement by Dennis Reynolds;
the testimony of James Combs of statements by Charles and Dennis Reynolds ; the testi-
monv of Roland Robinson of statements by Charles Reynolds and George Watkins; the
testimony of George Bianstetter and Cecil Combs of statements by Charles Reynolds.
6 For example, Banning testified that, although the three vice presidents were elected
by the board of directors at its fist meeting, their employment was contingent upon filing
an application therefor. Besides the iniprobalility of such a condition being imposed with
respect to elected officers of a corporation, it is noted that the condition was not mentioned
in the minutes of the meeting
CHARLES T. REYNOLDS BOX COMPANY, ETC. 525
1961, Reynolds was advised of the filing by the Union of its petition for certification.
Starting about that very time Reynolds and his supervisors clearly indicated, by
their statements which I found hereinabove to be violative of Section 8(a) (1) of
the Act, his animosity toward the Union and his intention to escape from recognizing
or bargaining with it 9
On October 13, 1961, the day of the Board-conducted election, Reynolds started
discharging the Fairfield plant employees. A list of the employees and the dates of
their discharge are set forth in Appendix A attached hereto.
While it appears that none of the rank-and-file employees of the Fairfield plant
filed application for employment with the Corporation,10 it is evident that they
did not believe that doing so would serve any useful purpose. They assumed that
they were not wanted at the Maud plant. They had reasonable grounds for such
belief and assumption in view of the statements made by Reynolds and his super-
visors (which are set forth in section C, above). On the other hand it would appear
to be appropriate to assume that those in the management of the Corporation who
had worked at the Fairfield plant were aware of the desire of the Fairfield plant em-
ployees to move to the Maud plant. In any event I consider the fact of no avail
to Respondents that the Fairfield plant employees made no application for employ-
ment to the Corporation, in view of the finding of the alter ego relationship.
I have found that there is ample ground to infer that the Corporation was the
alter ego of Reynolds, and that the circumstances of the incorporation of the
business and the move to a new plant were seized upon as a means of evading the
requirement of recognizing and bargaining with the Union. This was accomplished
by the discharge of all the employees in the unit for which the Union had been
certified, instead of transferring them to the new plant. Under all of the circum-
stances which I have found to exist, I consider to be a mere pretext the contention
that the Fairfield plant employees were not hired by the Corporation because
Banning was unaware that they were seeking employment (not having filed applica-
tions) and that he had the sole authority to hire employees for the Corporation (be-
ing the only one of those in the top management of the Corporation who, it might be
argued, was not tainted by any of the motives of which the others would be suspect).
I am of the opinion that the termination of the employment of the persons listed
in Appendix A constituted violations of Section 8(a)(3) of the Act on the part
of Reynolds and of the Corporation as his alter ego.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondents described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes, burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondents engaged in certain unfair labor practices, I
shall recommend that they cease and desist therefrom and that they take certain
affirmative action designed to effectuate the policies of the Act. In view of the nature
of the unfair labor practices committed and the conduct of the Respondents with
respect to the attempts of employees to organize, it would appear that the issuance of
a broad order is warranted.
Having found that Reynolds discriminatorily discharged the employees named in
Appendix A and that the Corporation is his alter ego, it will be recommended that
the Corporation offer to them immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their former rights and
privileges.li
o By letter to the Union dated November 14, 1961, written on Reynolds' behalf, he offered
to bargain with the Union This, however, was an empty gesture, since by that time the
F2iichild plant had ceased operating Reynolds testified that he terminated operations
on November 10, 1961 I find no difficulty in assuming that Reynolds did not contemplate
bargaining with respect to the employees at the Maud plant.
10 With the possible exception of Paul Gibson, who was a "lead man" at the Fairfield
plant. From what there is in the record it would appear that his job at the Fairfield
plant was not on a supervisory level however, as above noted, he was employed as a
supervisor at the Maud plant and it is further noted that Gibson apparently did not file
an application until after Reynolds had notified hum that the Corporation wanted to see
him.
ll In view of the fact that Reynolds is no longer engaged in the manufacturing business
as an individual, the order of reinstatement will not be made applicable to him
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel suggests in his brief with respect to reinstatement that the Corpora-
tion be required to dismiss "if necessary, all employees since then hired." I assume
that by the phrase "since then hired" General Counsel is referring to those who were
hired after the respective dates of discharge of the employees to be reinstated. In
view of the facts that the plan to discharge the Fairfield plant employees was put
in action on October 13, 1961, that there were 34 employees hired by the Corporation
since said date, and that there is a maximum number of only 30 employees to be
reinstated, it does not appear necessary to consider the suggestion.
It will be further recommended that Reynolds and the Corporation, jointly and
severally, make said employees whole for any loss of pay suffered by reason of the
discrimination against them by payment to each of them of a sum of money equal
to the amount of wages he would have earned, but for his being discharged, between
the date of the termination of his employment and the date of a proper oflhr of
reinstatement to him together with interest thereon, as provided below; that the loss
of pay be computed in accordance with the formula and method prescribed by the
Board in F. W. Woolworth Company, 90 NLRB 289. General Counsel has urged
that interest at 6 percent be allowed on the backpay award. For the reasons set
forth in Trial Examiner James F. Foley's Intermediate Report No. IR-105-62,
issued March 23, 1962, in Viroqua Sales, Inc., Case No. 18-CA-1342, I find that the
requirement of the payment of interest as provided would be appropriate. The
interest payable, as stated above, shall be computed at the rate of 6 percent per
annum on the amount due in each instance for each calendar quarter (under the
Woolworth formula) beginning with the end of the first calendar quarter and con-
tinuing for each succeeding calendar quarter until payment of such amount is
properly made.
The General Counsel also has urged that it be recommended that the certification
of the Union as representative of the unit of employees described therein at the
Fairfield plant be amended by substituting the name of the Corporation for that of
Reynolds and the designation of the Maud plant for that of the Fairfield plant. If
such amendment is deemed necessary, the appropriate administrative procedure can
be pursued to accomplish the amendment. However, in view of the findings herein,
it would appear that the Corporation is bound by the certification in its present form
and is required to bargain with the Union upon its request.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent Corporation is engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization within the meaning of the Act.
3. The Corporation is the alter ego of Reynolds and, as such, may be required
to remedy the unfair labor practices attributable to Reynolds.
4. By threatening employees with loss of jobs, closing of the plant. and refusal
to recognize or sign a contract with the Union, in the event the Union is selected
by them as their bargaining representative, and by threatening violence if they at-
tempt to engage in picketing, Reynolds and his alter ego, the Corporation, violated
Section 8 (a)( I) of the Act.
5. By discharging the employees listed in Appendix A instead of transferring
them into the employ of the Corporation the Respondents violated Section 8 (a) (1)
and (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that Respondent Reynolds and Re-
spondent Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or in any labor organization by dis-
charging employees or in any other manner discriminating against any employee or
applicant for employment in regard to their hire or tenure of employment or any term
or condition thereof because of their union affiliation or activities.
(b) Threatening employees with economic reprisals should they seek to have
the Union or any other labor organization act as their collective-bargaining
representative.
(c) Threatening employees with a refusal to recognize, bargain with or enter into
a contract with the Union or a representative of their choice.
(d) In any manner interfering with, restraining, or coercing employees or appli-
cants for employment in the exercise of their right to self-organization, to form, join,
CHARLES T. REYNOLDS BOX COMPANY, ETC. 527
or assist any labor organization , to bargain collectively through representatives of
their own choosing , to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any or all such
activities.
2. The Respondent Corporation shall take the following affirmative action which
is necessary to effectuate the policies of the Act:
(a) Offer the employees listed in the attached Appendix A immediate employ-
ment, in the manner provided in the section hereof entitled "The Remedy."
(b) Post at its plant in Maud , Ohio, copies of the attached notice marked "Ap-
pendix B." 12 Copies of said notice , to be furnished by the Regional Director for the
Ninth Region, shall , after being duly signed by the Corporation 's representative and
Reynolds, be posted by it immediately upon receipt thereof , and be maintained by it
for at least 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees and applicants for employment are customarily posted.
Reasonable steps shall be taken by the Corporation to insure that said notices are not
altered, defaced , or covered by any other material.
(c) Notify said Regional Director, in writing, within 20 days from receipt of this
report, what steps Respondents have taken to comply herewith.13
3. The Respondents , jointly and severally, shall , in order to effectuate the policy
of the Act , make whole each of said employees listed in Appendix A for losses suf-
fered as a result of the Respondents ' discrimination against him , together with in-
terest thereon at 6 percent per annum , as provided in "The Remedy." They shall
also preserve and make available to the Board or its agents, upon request , all payroll
and other records relevant to a determination of the amount of backpay due under
the terms of this Recommended Order.
11 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice . In the further event that the Board 's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Oider."
11 In the event that this Recommended Order be 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 the Respondents have taken to comply herewith "
APPENDIX A
Date Employment
Employee Terminated
Date Employment
Employee Terminated
Arthur Branstetter____October 13, 1961 Vernal French- -----November 3, 1961
Loy Branstetter------October 13, 1961 Mitchell Goss______November 3, 1961
Arnold Chestnut-----October 13, 1961 Charles Hoskins____November 3, 1961
Arthur Chestnut-----October 13, 1961 Charlie M.
Douglas Combs-----October 13, 1961 Robinson -------- November 3, 1961
James Cummins-----October 13, 1961 Herman Allen-----November 10, 1961
Marvin French------October 13, 1961 George
Gilbert Howard------October 13, 1961 Branstetter------November 10, 1961
Clayborne North____October 13, 1961 Gerald Eversole___November 10, 1961
Ray Reynolds-------October 13, 1961 Donald R.
Zenith R. Reynolds- -October 13, 1961 Howard -------- November 10, 1961
Stanley Robinson-----October 13, 1961 Lee Robinson_____November 10, 1961
Thomas Browning___November 3, 1961 Milton Robinson__November 10, 1961
Elwood Collins_____November 3, 1961 Cecil Combs _____.November 17, 1961
Alfred Combs______November 3, 1961 Curtis B. Goss____November 17, 1961
Conley Combs (also Bobby Robinson___November 17, 1961
referred to as James Roland Robinson___December 1, 1961
C. Combs) ------- November 3, 1961
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that:
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Local 637, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, or in any other labor organ-
ization of our employees , by discharging any of our employees or by discriminat-
ing in any other manner against employees in regard to their hire and tenure
of employment or any term or condition thereof.
WE WILL NOT threaten our employees to discontinue operations or with
discharge or layoff because of their membership in, or activities on behalf of,
the aforesaid Union, or any other labor organization.
WE WILL NOT threaten our employees that we will not recognize, bargain
with, or enter into a contract with the aforesaid Union, or any other labor
organization of their choice.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist the aforesaid Union or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment , as authorized
in Section 8(a)(3) of the Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
WE, the Reynolds Pallet & Box Co., WILL offer to the following:
Herman Allen Vernal French
Arthur Branstetter Curtis B. Goss
George Branstetter Mitchell Goss
Loy Branstetter Charles Hoskins
Thomas Browning Donald R. Howard
Arnold Chestnut Gilbert Howard
Arthur Chestnut Clayborne North
Elwood Collins Ray Reynolds
Alfred Combs Zenith R. Reynolds
Cecil Combs Bobby Robinson
Conley Combs Charlie M. Robinson
(also referred to as James C. Combs) Lee Robinson
Douglas Combs Milton Robinson
James Cummins Roland Robinson
Gerald Eversole Stanley Robinson
Marvin French
immediate and full reinstatement to the positions they had when in the employ
of Charles T. Reynolds, Sr., or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges.
WE, Charles T. Reynolds, Sr., and Reynolds Pallet & Box CO, WILL, jointly
and severally, make the aforementioned individuals whole for any loss of pay
they may have suffered by our discrimination against them.
All our employees are free to become, remain, or refrain from becoming or
remaining members of the aforesaid Union, or any other labor organization, except
to the extent that such right may be affected by an agreement requiring membership
in a labor organization as authorized in Section 8(a)(3) of the Act.
Dated-------------------
CH_ RLF.S T. REYNOLDS, Sr
REYNOLDS PALLET & Box Co.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material
Employees may communicate directly with the Board's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati, Ohio, Telephone Number, Dunbar
1-1420 , if they have any questions concerning this notice or compliance with its
provisions.