Macomb Block and Supply, Inc.

National Labor Relations Board - Board Decisions

May 5, 1976

223 N.L.R.B. 1285 (N.L.R.B. 1976)

MACOMB BLOCK AND SUPPLY, INC. 1285
Macomb Block and Supply, Inc. and Local 247, Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Case 7-
CA-10847
May 5, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On December 1, 1975, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Charging Party filed excep-
tions and a supporting brief.
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 only to
the extent consistent herewith. Contrary to the Ad-
ministrative Law Judge, we find that Respondent
violated Section 8(a)(3) of the Act when it refused to
hire the former employees of the company it pur-
chased solely because of their prior representation by
Charging Party.
Prior to January 1974, William Moors, Inc. (herein
Moors), was engaged, inter alia, in the manufacture
of concrete blocks at, its plant in Fraser, Michigan.
Its employees had, for a number of years, been repre-
sented by Local 247, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America (herein Teamsters).' On January 7, 1974,
Moors sold its concrete block operation to Respon-
dent, contemporaneously advising Teamsters by let-
ter of the sale. Also, on January 7, 1974, Teamsters
Steward Nobles asked Respondent's president, De-
Clerk, if he intended to employ "the men from the
Teamsters Union" in his block shop. According to
Nobles, and as found by the Administrative Law
Judge, DeClerk's response was no. One week later,
on January 16, Teamsters Business Representative
Duncan phoned DeClerk with a demand to bargain.
According to the uncontroverted testimony of Dun-
can, DeClerk again refused, maintaining that he had
no intention of signing a contract with Teamsters but
rather planned to negotiate with another union. Fur-
1 Prior to 1973, Moors, as part of a multiemployer bargaining association,
had been bound by a series of collective-bargaining agreements with Team-
sters. At the expiration of the latest agreement. Moors withdrew from the
association in timely fashion and bargained with Teamsters on a single-
employer basis. While the parties arrived at an oral agreement on many
issues, no final written contract was ever agreed upon or executed.
thermore, as testified to by Duncan and found by the
Administrative Law Judge, DeClerk added that he
was unwilling to hire the former Moors employees
because he could not afford some of the fringe bene-
fits the Moors senior employees enjoyed under the
previous Teamsters contract.
In the ensuing weeks, DeClerk and his attorney
did discuss with Duncan the possibility of negotiat-
ing an agreement based on the latest Teamsters/bar-
gaining association agreement. During this period,
only one of the former Moors employees formally
applied for work with Respondent. Respondent be-
gan operations in late January with an entirely new
work force of employees who had made formal appli-
cation to DeClerk for work. Shortly after Re-
spondent's operations were under way, a business
representative of an independent union, Charles
Giaccialone, visited Respondent's plant on several
occasions at DeClerk's invitation in an effort to orga-
nize the employees. During this time, Giaccialone
spoke to DeClerk several times concerning negotia-
tion of a contract. According to Giaccialone's uncon-
troverted testimony, DeClerk at one point told him
that he "didn't want the Teamsters."
On February 10, 1974, DeClerk's attorney in-
formed Duncan of DeClerk's refusal to sign a con-
tract along the lines previously discussed. In re-
sponse, Teamsters, on February 11, 1974, established
a picket line at Respondent's premises to force Re-
spondent to hire the former employees of Moors un-
der terms and conditions previously agreed to orally
by Teamsters and Moors. The picket line, lasting un-
til June 1975, was manned by about 17 laid-off em-
ployees of Moors.
According to the recent Supreme Court holdings
in Howard Johnson Co. v. Detroit Joint Board 2 and
N. L. R. B. v. Burns International Security Services,
Inc.,' a successor employer is not. obligated to hire
any or all of the employees of his predecessor. It is
these two Supreme Court decisions that the Adminis-
trative Law Judge has relied upon in finding lawful
DeClerk's refusal to consider the former Moors em-
ployees for employment in his new undertaking.
However, a successor's freedom of action is not total-
ly without limit . Writing for the majority in Howard
Johnson, Mr. Justice Marshall, while carefully noting
that a successor employer was not obligated to hire
any of the predecessor's employees, specifically cau-
tioned that the successor "could not refuse to hire
[them] solely because they were union members or to
avoid having to recognize the union." 4
z Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, Hotel &
Restaurant Employees & Bartenders International Union, AFL-CIO, 417 U.S.
249 (1974).
3406 U.S. 272 (1972).
4 417 U.S. 249, 262, fn. 8.
223 NLRB No. 194
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is, however, precisely Respondent's posture in
this case. From the moment of takeover onward,
Respondent's staffing effort was characterized by de-
sire to remove from consideration for employment
all Moors employees formally represented by Team-
sters . Respondent's animus is amply borne out by
DeClerk's dealing with Teamsters Agents Nobles
and Duncan, especially DeClerk's clear refusal to
consider the former Moors employees for hire under
the misapprehension that , by so doing, Respondent
would be locked into the onerous fringe benefit pack-
age of the old Teamsters-Moors contract. Also indic-
ative of Respondent's unlawful motivation are De-
Clerk's anti-Teamsters remarks to Giaccialone and
his corresponding partiality to Giaccialone's own in-
dependent union.'
The Administrative Law Judge attempts to justify
Respondent 's specific refusal to hire the Moors em-
ployees on the ground that these employees never
made an unconditional application for employment,
but rather attached economically burdensome "pre-
conditions" to their employment , i.e., the application
of the terms and conditions of the previously expired
contract between Moors and Teamsters, which Re-
spondent was well within its rights in refusing. How-
ever, this line of reasoning is deficient in two re-
spects. First, Respondent's discriminatory treatment
of the Moors employees antedated any so-called im-
position of "preconditions ." The primary evidence as
to preconditions is found in the admitted purpose of
the picket line, essentially to force the hire of Moors
employees under union scale working conditions.
However, the picket line was established weeks after
Respondent , in response to the initial overtures of
Union Agents Nobles and Duncan, refused to hire
the Moors employees because of their prior Team-
sters representation . Secondly , the failure of the
Moors employees to make formal application for
work is in any event irrelevant. The Board has always
held that where an employer makes known to pro-
spective employees his refusal to hire them because
of their prior union affiliation their failure to under-
take the useless act of making formal application for
work is no defense to an 8(a )(3) allegation .6
5 Respondent's dealings with Giaccialone became the subject of a com-
plaint alleging 8(ax2) assistance , which was later informally settled without
any admission as to violation of the Act by Respondent. Therefore. as the
Administrative Law Judge correctly notes, the issue of Respondent's assis-
tance to the independent union is not properly before us. However. De-
Clerk's overt encouragement of Giaccialone's organizational efforts at his
plant and his remarks to Giaccialone that he did not want to deal with
Teamsters is record evidence and thus properly before us in a context of
whether Respondent harbored unlawful animus towards Teamsters viola-
tive of Sec. 8(ax3).
6 See. e .g.. Tri State Maintenance Corporation. 167 NLRB 933 (1967):
Wayne R. Sherwood d/b/a Grounds Service. 180 NLRB 1040 (1970).
For these reasons, we conclude that Respondent
violated Section 8(a)(3) when it refused to offer em-
ployment to the former employees of Moors for
whom Teamsters sought work at Respondent's plant.
CONCLUSIONS OF LAW
1. Macomb Block and Supply, Inc., the Respon-
dent herein, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 247, International Brotherhood of Team-
sters , Chauffeurs, Warehousemen and Helpers of
America, the Charging Party herein, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. By refusing to offer employment to the former
employees of William Moors, Inc., for whom Charg-
ing Party sought work at Respondent's plant because
of their prior representation by Charging Party, Re-
spondent has discriminated against employees to dis-
courage membership in a labor organization, and has
thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act.
4. The aforementioned unfair labor practices are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
As we have found that since on or about January
7, 1974, the Respondent discriminatorily refused to
offer employment to the former employees of Wil-
liam Moors, Inc., for whom Charging Party sought
work, we shall order that their employment status be
restored to what it would have been but for
Respondent's discrimination against them, and that
Respondent offer them immediate and full employ-
ment without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of pay that they may have suffered by reason of
the discrimination against them, by paying each a
sum of money equal to that which he normally would
have earned as wages from the date of the discrimi-
nation to the date of employment, less net earnings
during such period, in accordance with the Board's
formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), together with interest thereon at
the rate of 6 percent per annum as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
MACOMB BLOCK AND SUPPLY , INC. 1287
lations Board hereby orders that the Respondent,
Macomb Block and Supply, Inc., Fraser, Michigan,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 247, Inter-
national Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America, or any
other labor organization, by refusing to consider for
employment or by refusing to employ employees be-
cause of their union activities or representation, or in
any other manner discriminating against employees
in regard to hire or tenure of employment or any
terms or conditions of employment.
(b) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer to the former employees of William
Moors, Inc., for whom Charging Party sought work
at Respondent's Fraser, Michigan, plant immediate
and full employment without prejudice to their se-
niority or other rights and privileges, and make them
whole for any loss of pay they may have suffered by
reason of the discrimination against them in the
manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its plant in Fraser, Michigan, copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Di-
rector for Region 7, after being duly signed by
Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 7. in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER WALTHER , dissenting in part:
The complaint alleged that Respondent had dis-
criminatorily refused to hire its predecessor's em-
ployees and that it had unlawfully refused to bargain
with the Union. The Administrative Law Judge
found that Respondent was not a successor to its
predecessor, William Moors, Inc., and that it had not
unlawfully refused to hire Moors' employees on pur-
chasing part of Moors' operations. Accordingly, he
recommended dismissing the complaint in its entire-
ty. The General Counsel did not file exceptions: the
Union excepted only to the dismissal of the 8(a)(3)
allegations. The majority decision reverses the Ad-
ministrative Law Judge's dismissal of the latter. I do
not agree to the reversal and therefore I dissent.
The Administrative Law Judge found that the em-
ployees of Moors never made applications for
straight employment, but rather that they and their
union representatives "demanded that Respondent
do business as the alter ego of Moors, accepting all
Moors' old employees, granting them from the start
all the benefits previously enjoyed by them while
with Moors, and deeming itself bound as a party to
the collective-bargaining agreement which Local 247
in January of 1974 had with the Guild, the multiem-
ployer association." The majority finds this reason-
ing deficient in two respects: (1) the Administrative
Law Judge's finding as to the employees' precondi-
tions to employment by Respondent is found in the
admitted purpose of the picket line which was estab-
lished several weeks after Respondent initially re-
fused to hire the Moors' employees; (2) the failure of
the Moors employees to formally apply for employ-
ment with Respondent is irrelevant because applica-
tions would have been futile.
I find the majority's reasoning, rather than that of
the Administrative Law Judge, defective. As set forth
by the Administrative Law Judge, the union repre-
sentatives from the very beginning believed that Re-
spondent was bound by the agreement or under-
standing which had been reached with Moors
because that agreement contained a successor's
clause. When the employees on the picket line were
asked what they wanted, the Moors union steward
replied "our job, our union and our benefits." When
employee Harris was asked, he replied, "our wages
... our benefits and our union." Of course, Respon-
dent, which, as the Administrative Law Judge found
and the majority agrees, was not a successor to
Moors, was not required to recognize the Union or
the latter's contract with Moors. This insistence by
the majority extenuates upon the ground that it was
made weeks after Respondent initially refused to hire
the Moors employees. But the picket line statements
reflect what the Union and its members wanted of
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent from the very beginning of the relations
between the two. This evidence of the pickets is rele-
vant to determining what the employees initially
sought from Respondent. As Professor Wigmore has
stated (2 Wigmore, Evidence § 437 (3d ed. 1940) ):
When the existence of an object, condition,
quality, or tendency at a given time is in issue,
the prior existence of it is in human experience
some indication of its probable persistence or
continuance at a later period.
*
Similar considerations affect the use of subse-
quent existence as evidence of existence at the
time in issue.
* * * * *
The general principle that a prior or subsequent
existence is evidential of a later or earlier one
has been repeatedly laid down and has even
been spoken of as a Presumption.
There is not an iota of evidence which indicates that
the Moors employees would at any time have accept-
ed employment with Respondent except on the con-
ditions indicated at the picket line. In fact, the
Board's own experience would indicate that this was
highly unlikely for strong unions usually do not low-
er area standards to accommodate employers with
only a handful of employees. Instead, they strike and
picket to compel such employers to meet the stan-
dards applicable to all other employers. Moreover, at
the very beginning of the negotiations with Respon-
dent the latter indicated that it did not want to em-
ploy the Moors employees because of their contract
benefits. The dispute between the parties was thus
essentially over contract terms. It may be assumed
that Respondent preferred not to deal with the
Teamsters. But in view of the entire record, the find-
ing is not justified that "but for" Respondent's antip-
athy to the Union it would have hired the Moors'
employees.
There is no dispute that the Moors employees did
not make formal applications for work with Respon-
dent. The majority excuses this failure upon the
ground that applications would have been futile. I do
not agree that the law about futility is applicable to
the present fact situation. One employee, a working
foreman for Moors did apply and was hired as a
supervisor. It is not at all evident that if other em-
ployees had said that they were willing to work for
the wages and benefits which Respondent was pre-
pared to pay Respondent would have refused to hire
them. It was futile of course to have applied for em-
ployment on the terms indicated by the pickets. But
Respondent was not required to meet those terms.
Nor was it required to offer employment to the
Moors employees. In fact, if it had offered employ-
ment on terms other than those indicated by the
Union, that would have been a futile gesture.
The remedy adopted by the majority provides con-
ventional reinstatement and make-whole provisions.
However, the majority decision does not decide the
basis upon which the make-whole provision is to be
determined. Is it the provisions of Moors' collective-
bargaining contract with the Union which Respon-
dent did not, and was not required to, accept? Or is it
the actual benefits paid by Respondent to its non-
union employees, benefits for which the employees
said that they would not work? This remedy dilemma
demonstrates the soundness of the Administrative
Law Judge's judgment that the dispute between Re-
spondent and the Union which led to the refusal to
hire the former Moors employees was and is eco-
nomic, and was not the result of any antipathy by
Respondent to the union membership of the pickets.
I would therefore adopt his Decision dismissing the
complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Lo-
cal 247, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, by
refusing to consider for employment or by refus-
ing to employ employees because of their union
activities or representation, or in any other man-
ner discriminating against employees in regard
to hire or tenure of employment or any terms or
conditions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed to them by Sec-
tion 7 of the National Labor Relations Act, ex-
cept to the extent that such rights may be
affected by lawful agreements in accord with
Section 8(a)(3) of the Act.
WE WILL offer all former employees of Wil-
liam Moors, Inc., for whom Teamsters Local
247 sought employment at our Fraser, Michi-
gan, plant immediate and full employment with-
out prejudice to their seniority and other rights
and privileges enjoyed by them, and WE WILL
make them whole for any loss of pay they may
have suffered by reason of the discrimination
MACOMB BLOCK AND SUPPLY, INC. 1289
against them with interest at 6 percent per an-
num.
Our employees are free either to support, or to're-
frain from supporting, any labor organization, with-
out our interference, restraint, or coercion.
MACOMB BLOCK AND SUPPLY, INC.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held at Detroit, Michigan, on Sep-
tember 29 and 30, 1975, on complaint of the General
Counsel against Macomb Block and Supply, Inc., herein
called the Respondent. The complaint issued on May 28,
1974, upon a charge filed on January 21, 1974, by Local
247, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union or the Charging Party. The conclusionary allega-
tions of the complaint are that the Respondent violated
Section 8(a)(3) and (5) of the Act. Briefs were filed by the
Charging Party and the Respondent.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Macomb Block and Supply, Inc., a State of Michigan
corporation, is engaged in the manufacture and sale of ce-
ment blocks and related products in the City of Fraser,
Michigan. During the 12-month period beginning January
24, 1974, in the conduct of its business it purchased goods
and products valued in excess of $70,000, of which an
amount valued in excess of $50,000 was transported to its
Fraser, Michigan, location directly from out-of-state
sources . I find that the Respondent is engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Local 247, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Pertinent Facts
For some years a company called Wm. Moors, Inc., op-
erated a cement block manufacturing plant in the City of
Fraser, Michigan, where it produced building blocks of
two quite different kinds, one called plain cement blocks
and the other called Celdex, or cement blocks reinforced
with steel cable. The two divisions were physically separat-
ed clearly, each with its separate building, machinery, and
equipment. The products were sold to the construction in-
dustry, and the total complement of employees was as high
as'about 30, depending upon the rise and fall of seasonal
demand. The employees were shifted at times between the
two portions of the production process.
From at least 1967 and up to 1973 Moors was a member
of a multiemployer association, first called Greater Detroit
Chapter Concrete Products Association of Michigan, and
later called Concrete Products Guild. Throughout that pe-
riod the multiemployer group had successive collective-
bargaining agreements with Teamster Local 247, the
Charging Party here. The 1970-1973 contract expired by its
terms on May 31, 1973, and before that date Moors gave
timely notice of withdrawal from the Guild and from the
multiemployer bargaining arrangement. In the summer of
1973 it started to talk with the Union on a single-employer
basis. Unable to reach agreement, the Union struck Moors
on about July of 1973, the parties continued to talk, and
there was a strike settlement towards the end of the year.
In about October Robert Duncan, business representative
of the Union, sent Moors what he called a "memorandum
of agreement," setting out his understanding of the parties'
settlement arrangement. By this time Moors was in process
of arranging to sell the straight cement block portion of its
business, and indeed also planning upon getting rid of all
the rest of its business, and therefore never signed any con-
tract or memorandum of any kind with the Union. .
On December 31, 1973, Moors closed down its cement
block operation, and in the first week of January 1974,
sold it to Macomb Block and Supply, the Respondent here,
including a building, land, and the pertinent machinery
and equipment. When last operating its cement block pro-
duction in late December Moors had about five employees
there. The Macomb Company was a stranger to Moors,
and paid a third of a million dollars for what it got. In May
1974 Moors sold the rest of its business, including the re-
mainder of its real estate and equipment to still another
purchaser unrelated to Moors in the past.
With the sole exception of one man who had been a
supervisor for Moors in its Celdex business and who came
to work for Macomb as a supervisor, Macomb did not
employ any of Moors' old workmen.
It is against these plain and undisputed facts that the
complaint allegations, and the various contentions made
by the parties to this proceeding, must be appraised.
B. The Complaint
In its charge against Macomb, filed on January 21, 1974,
the Union accuses that Company of having "discharged"
members of the Union, and of unlawfully refusing to bar-
gain with the Union with respect to such employees. By
amendment of that charge on February 12, 1974, the
Union added the precise names of the employees who as-
sertedly had been illegally discharged by Macomb; the list
names every one of the 30 employees who had previously
worked for Moors-throughout its entire operations.
Clearly the charge bears'no relationship to the plain facts,
if only because the Respondent bought no more than a
minor part of Moors' business and because it never hired
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of the old rank-and-file. It could not have discharged,
and did not discharge , anyone.
The complaint takes a different approach. It starts by
saying that before the January 1974 sale, all of Moors' em-
ployees constituted an appropriate bargaining unit and
that the Union was then their exclusive bargaining agent.
The complaint then continues with the following factual
statements:
Paragraph 12: A unit limited to Macomb's employ-
ees at this location is appropriate for collective-bar-
gaining purposes.
Paragraph 13: From the day it started business, Ma-
comb refused to hire Moors' old employees but hired
new employees instead.
Paragraph 14: Macomb refused to hire Moors' old
employees because they were represented by the
Union.
Paragraph 15: By refusing to hire Moors' old em-
ployees Macomb prevented the Union from 'continu-
ing to be' their majority representative.
Paragraph 16: From the day Macomb took over a
part of Moors' old business, the Union has been and
now is, the exclusive bargaining agent of Moors' pres-
ent complement of employees.
Paragraph 17: From the beginning of January 1974
and thereafter the Union has called on Macomb to
bargain for its employees but Macomb has refused to
do so.
On the basis of these allegations , the complaint then
concludes that the Respondent violated Section 8(a)(3)
and (5) of the Act.
C. Further Evidence, Analysis, and Conclusion
I suppose there must be an explanation for what at least
appear to be incoherences in both the charge and the com-
plaint . When a company goes out of business, as did
Moors, its employees lose their jobs with that employer
and are unhappy; they, and their union, try to find em-
ployment with whoever buys the business , if there is a pur-
chaser . Contending that it did not continue doing the same
plain cement block business as had performed Moors, Ma-
comb disputes the contention, voiced by both the General
Counsel and the Union at the hearing, that it is the succes-
sor of the underlying industry . But even assuming it can be
said the Respondent continued doing the same business,
the fact is that it did not hire the predecessor 's employees,
and Board law holds that until it does hire the old comple-
ment, or unequivocally announces an intention to do so, it
can not be deemed a successor . N.L.R.B. v. Burns Interna-
tional Security Services Inc., et al, 406 U.S. 272 (1972). But
even jumping over this insurmountable hurdle, under no
conceivable view could it be said Macomb ever "dis-
charged" anyone , if only because it never hired the em-
ployees in question . The Union's charge, therefore , is liter-
ally false.
And when the complaint goes on to say that although
Macomb never hired any of the employees the Union nev-
ertheless became their bargaining agent vis-a-vis Macomb,
it too on its face becomes meaningless . By what reasoning
an employer becomes obligated to bargain with a union
claiming to represent employees who never worked for it
remains unexplained, in the complaint at least.
As best I can understand the Union's position, it is that
when it sold the cement block business, Moors was party to
a contract with the Union containing a "successor" clause,
a provision which legally bound the stranger purchaser to
take the old complement of employees-lock, stock, and
barrel-together with their existing contractual conditions
of employment, their union, and their collective-bargaining
agreement .' The fatal weaknesses of this contention in this
case are so clear that they really do not warrant extended
discussion. (1) Macomb is not an alter ego of Moors; not
only is no alter ego contention advanced by anyone, but
the record facts could not make clearer the absolute inde-
pendence, virtually competitive positions, between the two
Companies at all times. (2) The truth of the matter is
Moors was not party to any written contract with the
Union when it sold what it sold. Business Representative
Duncan conceded as much from the witness stand. Indeed,
when, some weeks after the sale and when the Union was
picketing the cement block operation making demands on
behalf of Moors' old employees, Duncan showed to Dennis
DeClerk, Macomb's president, the collective-bargaining
agreement assertedly binding upon the alleged successor
and demanded that DeClerk sign it or at least admit it was
binding upon him. But the contract which Duncan was
then handing to DeClerk was the 1973-1976 contract be-
tween the Union and the Guild, from which Moors had
timely withdrawn long before that contract was negotiated!
(3) Successorship cases involve alleged violations of Sec-
tion 8(aX5) of the Act, and all 8(a)(5) cases require proof of
majority status, shown either by direct evidence or by pre-
sumption. Local 247 represented a majority of Moors' total
complement of about 30 employees in the fall of 1973, be-
cause Moors bargained with it at that time. But does it
follow from that fact that Local 247 also represented a
majority of the nebulous sampling of five or so men, their
identity constantly changing as the business needs kept
shifting, who at the time of the sale worked in the cement
block part of the business?
As to the complaint, the way it is written, I read it as
intending to argue the following theory of illegality; Ma-
comb did not hire Moors' old employees because of their
prounion attitude, and thereby discriminated against them
in violation of Section 8(a)(3) of the Act. Had it hired
them-and nobody else-they would, of course, have con-
stituted an appropriate bargaining unit. Also, had it hired
them, they would all have adhered to their past desire to be
represented by the Union and the Union would in conse-
quence have been their exclusive collective-bargaining
agent. Ergo, when the Union demanded that Macomb rec-
ognize it as the agent of Moors' employees and Macomb
refused-as it did refuse-you look upon Macomb as
though it in fact had hired old Moors' employees and no
one else, and simply disregard the fact that it did not do
1 The Union's last contract with Moors, through the multiemployer ar-
rangement which ended in 1973. did provide that any purchaser "shall con-
tinue to be subject to the terms and conditions of this agreement for the life
thereof."
MACOMB BLOCK AND SUPPLY, INC. 1291
that. After all, what could be more just than to ignore un-
lawful conduct-the illegal refusal to hire Moors' employ-
ees-and saddle the wrongdoer with a restructured picture
of the past so as to burden him with a legal obligation
which, had he behaved nicely in the first place, would have
been his legal duty anyway. I am not at all sure this argu-
ment, if in fact it be the theory of complaint, is a defensible
position under Board, or any other law. The General
Counsel chose not to file a brief.
Whatever the ambiguities and inconsistencies of the
complaint, one allegation can fairly be read into it, and
that is that the Respondent refused to hire Moors' employ-
ees because of their union activities.2 If it did not commit
this unfair labor practice to start with, anything else the
complaint alleges, or is intended to allege, must be ignored.
I shall recommend dismissal of the complaint because
the record as a whole does not prove that the Respondent
unlawfully refused to hire the old employees, indeed it does
not even prove that it refused to hire them at all.
I think the ultimate fallacy underlying the prosecution in
this case is an unrealistic expansion of the proscription set
out in Section 8(a)(3) of the Act. It prohibits refusals to
hire where the employer's purpose is to discourage mem-
bership in a labor organization.3 When an applicant for
employment makes clear he will only go to work at a rate
of so many dollars per hour, with so many days of paid
vacation per year, with such and such fringe benefits, and
with guarantee of greater relative seniority rights over
other applicants, the employer violates no law if he refuses
to hire him. If the applicant were to add that the reason
why he insists upon all of these things as a condition pre-
ceding to hire is because in his prior employment, with
some other company, he enjoyed them under a "union"
contract, does the refusal become an antiunion act, and
therefore a violation of this statute? Without belaboring
the point, I think not. And this is precisely what happened
in the case at bar.
When DeClerk expressed his indifference towards Local
247 and its asserted contract with Moors, or with anybody
else, the Union established a picket line in front of the
premises on January 22, 1974, and kept it there for over a
year. Macomb hired outsiders and kept on doing business.
The witnesses' testimony of what was said at the time, and
of what the object of the picketing was, illumines what it
was that the "applicants for employment" demanded and
what it was that the Respondent refused to grant. I find, on
the total record, that there were no applications simply for
straight employment, but rather that the employees of
Moors, and their union representatives, demanded that the
Respondent do business as the alter ego of Moors, accept-
ing all of Moors' old employees, granting them from the
start all the benefits previously enjoyed by them while with
Moors, and deeming itself bound as a party to the collec-
tive-bargaining agreement which Local 247 in January
2 As stated by the General Counsel on the record: "Paragraph 13 essen-
tially is an 8(aX3) allegation of refusing to hire , refusing to consider for
hire."
3 Section 8 (a)(3) reads : "It shall be an unfair labor practice for an em-
ployer ... by discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or discourage member-
ship in any labor organization ......
1974 had with the Guild, the multiemployer association.
1. Elmer Nobles, an employee of Moors, was the
Union's steward with that Company. He admitted he never
asked Macomb for a job. He explained how Moors used to
shift employees from the cement block operation to Cel-
dex, and back, as work fluctuated. "Q. -After you were
transferred to Celdex, did you ever, on occasion, do some
work in the block operation? A. Yes, I did. Q. On what
occasions? A. In the winter time. When we were short of
help and business was slow, we would drop down the se-
niority list and be transferred. Q. What do you mean you
dropped back in seniority? A. They would lay the youngest
men off on the bottom of the seniority list until it came up
to the older men and we keep them working. Q. This se-
niority list, does that consist of all of the employees? A. All
the employees." Nobles was working in Moors' Celdex de-
partment in January, after the cement block had been
transferred to Macomb, and one day asked DeClerk, "if he
was going to take the men from the Teamsters Union into
his block shop when he started operating." When DeClerk
said no, Nobles filed a grievance under some Local 247
contract-the record, of course, does not show which-
against "Macomb Block! " There could be no clearer evi-
dence than this that the demand upon the Respondent was
that it be bound by a union contract even before it hired
anyone.
2. A few days later, on the picket line, DeClerk asked
the pickets "What do you guys want?" Nobles answered
him: "all we want is our job back, our fringe benefits and
our union." Again, from Nobles' testimony on cross-exam-
ination: "Q. When you said to Mr. DeClerk on the picket
line you wanted your job back, which job were you talking
about? A. Any job. We had no particular job. Q. But that
was the job that you had previously had at Moors Compa-
ny; is that correct? A. Well, only our job, our union and
our benefits. That's all we asked for. Q. You were asking
for that from Macomb? A. From Macomb Block and Sup-
ply ."
3. From the testimony of James Harris, also an old
Moors' employee: "Well, Dennis [DeClerk] stopped [at the
picket line] and asked us if we wanted to go to work and
we said yes if you will give us our wages and pay our
benefits and our union, we'll go to work, . . . he didn't
want to pay the wage scale ...." Judge Ricci: "Would
you have gone back to work at whatever wages he wanted
to give you without the Teamsters Union?" The Witness:
"No, sir, I don't believe I would have."
4. That all this meant compelled initial acceptance of a
contract with Local 247 is again clarified by Duncan's tes-
timony. On January 16 he called DeClerk and ". . . I
pointed out to him that under the contract, that I thought
it was proper that I wished to sit down and discuss with
him a contract." Duncan met with Macomb's representa-
tives again earlier in February, including a Mr. Gryls, still
with no Moors employees ever hired. "I gave him some
documents at this time . . . an existing contract, a Con-
crete Products Guild contract." Judge Ricci: "Which
one?" The Witness: "1973 to '76." Duncan was then asked:
"What was the purpose of that picket line? A. The purpose
of the picket line was the fact that we thought the-the
local union thought that we were legal, that we had a legal
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
document signed , a contract with William Moors , Inc. with
a successor clause in it , and that the company-that the
new owner of the company , Macomb Block and Supply
Company had refused to hire any of the people that were
employed by William Moors, Inc." Again : "If I recall, the
picket line was established to enforce the belief-our be-
lief-under the successor clause of the existing contract
between Teamsters Local 247 and William Moors, Inc."
Again : "I think my initial attempt , counselor , was to have
Macomb Block and Supply Company recognize the suc-
cessor clause existing in the Building Supply contract."
5. Finally , whether it be out of the mouth of the Union
or that of the Respondent , the answer comes out the same:
"Q. (By Mr . Ciaramitaro): Did you ever talk to Mr. De-
Clerk about the William Moors employees? A. Yes. Q. Do
you recall when you first talked to him about the William
Moors employees? When was that? A. I believe it was Jan-
uary 16 . Q. Now what do you recall Mr. DeClerk saying
about the William Moors employees , if anything? A. He
indicated to me that he did not want the employees that
were presently employed by William Moors . One of the
reasons given , if I recall , was the fact that the majority of
the employees there which was some 28 employees at that
time and all of them had some 18 years to 29 years of
seniority . The biggest problem was the initiation of the new
contract would have been that he would have to take over
the liability of vacations which were in excess of three to
four weeks."
The applicable law is clear . In Howard Johnson Co. Inc.
v. Detroit Local Joint Executive Board, Hotel & Restaurant
Employees, & Bartenders International Union , AFL-CIO
417 U.S . 249 (1974), the Supreme Court , reaffirming its
holding in Burns, supra, held that "nothing in the federal
labor law requires that an employer who purchases the as-
sets of a business be obligated to hire all of the employees
of the predecessor ...." This is all that the Respondent
here did-it refused to hire Moors ' old complement. And
its reason for doing so is affirmatively established by the
positive evidence: because they insisted upon setting their
own conditions of employment. In its brief the Union
paraphrases such reason by calling it a desire that the
Union not be the collective- bargaining representative of
those employees . It is no more than a play on words. Noth-
ing can change the basic facts. I shall recommend dismissal
of the complaint.
If he had to have a union in his business DeClerk pre-
ferred to have some other one, and there is indication he
may have assisted an independent organization to become
bargaining agent for the employees he did hire. But even
assuming such conduct were proved, in which event it
might have been a violation of Section 8(a)(2) of the Act, it
would still not alter the true reason for his refusal to hire
Moors' former employees . In any event , whatever the
proof, there can be no finding here of illegal assistance to
any union, for a charge alleging such unfair labor practices
has already been disposed of with finality in another pro-
ceeding. In Case 7-CA-10931 a complaint issued against
the Respondent alleging illegal assistance to National
Building Trades of America and that case ended with in-
formal settlement on March 12, 1974, express disavowal of
wrongdoing conceded. The Respondent fully complied
with that settlement agreement , which was never set aside.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
[Recommended Order for dismissal omitted from publi-
cation.]