Precision Carpet, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1976

223 N.L.R.B. 329 (N.L.R.B. 1976)

PRECISION CARPET, INC.
La-Ron Corporation d/b/a Precision Carpet , Inc. and
Arthur Andrew Lane, George Neville, and Car-
pet and Linoleum Layers Local Union No. 484, In-
ternational Brotherhood of Carpenters and Joiners
of America , AFL-CIO, and Associated Trades and
Crafts, Local No. 3, Party of Interest
Precision Carpet, Inc. and Arthur Andrew Lane,
George Neville, and Carpet and Linoleum Layers
Local Union No. 484, International Brotherhood of
Carpenters and Joiners of America , AFL-CIO.
Cases 8-CA-9097-1, 8-CA-9097-2, 8-CA-9094,
8-CA-9098-1, 8-CA-9098-2, and 8-CA-9072
March 25, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On November 24, 1975, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions.
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 has
decided to affirm the rulings, findings,' and conclu-
sions 2 of the Administrative Law Judge and to adopt
her recommended Order.
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, La-Ron Corporation,
Akron, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing her findings.
2 In adopting the Decision of the Administrative Law Judge, Member
Walther finds it unnecessary to consider or to rely on Midwest Piping and
Supply Co., Inc., 63 NLRB 1060 (1945).
DECISION
STATEMENT OF THE CASE
329
NANCY M. SHERMAN , Administrative Law Judge: This
proceeding was heard at Akron, Ohio, on July 21-23, 1975,
pursuant to the following charges and complaints:
1. A charge filed on April 7, 1975, and amended on
April 15, 1975, by Carpet and Linoleum Layers Local No.
484, International Brotherhood of Carpenters and Joiners,
AFL=CIO (the Carpet Layers), against Precision Carpet,
Inc. d/b/a La-Ron, Inc. (Case 8-CA-9072).'
2. Charges filed on April 14, 1975, by Arthur Andrew
Lane (Case 8-CA-9097-1) and George Neville (Case 8-
CA-9097-2) against La-Ron, d/b/a Precision Carpet, Inc.
3. Charges filed on April 14, 1975, by Arthur Andrew
Lane (Case 8-CA-9098-1) and George Neville (Case 8-
CA-9098-2) against Precision Carpet, Inc.
4. A charge filed on April 15, 1975, by the Carpet Layers
against La-Ron Corp., d/b/a Precision Carpet, Inc. (Case
8-CA-9094).
5. An order consolidating Cases 8-CA-9097-1, 8-CA-
9097-2, 8-CA-9098-1, and 8-CA-9098-2, dated May 14,
1975, and a consolidated complaint in such cases, dated
May 14, 1975, and amended on July 18, 1975.
6. An order consolidating such cases with Cases 8-CA-
9072 and 9-CA-9094, and a consolidated complaint in all
the captioned cases , both dated July 1, 1975.
The questions presented , inter alia, are whether Section
8(a)(1) of the National Labor Relations Act, as amended
(the Act), was violated by threats of economic reprisal to
certain alleged employees if they did not join Associated
Trades and Crafts, Local No. 3 (the ATC); whether Sec-
tion 8(a)(2) and (1) of the Act was violated by urging and
soliciting employees to sign ATC authorization cards or
join ATC, and by executing and maintaining a contract
with ATC; and whether Section 8(a)(3) and (1) of the Act
was violated by the alleged termination of Arthur Andrew
Lane and George Neville because they would not join the
ATC.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the brief filed by
counsel for the General Counsel (the General Counsel), the
brief filed by counsel for La-Ron Corporation and Preci-
sion Carpet, Inc., and the brief filed by counsel for the
ATC, I make the following:
FINDINGS OF FACT
1. JURISDICTION
La-Ron Corporation is an Ohio corporation with its
principal office and place of business at 2268 East Avenue,
Akron, Ohio, herein sometimes called the East Avenue ad-
dress. Lawrence West, the president of and sole stockhold-
er in La-Ron Corporation, testified that between its August
1974 incorporation and mid-January 1975, La-Ron Corpo-
ration was engaged in a real estate and stock operation.
Lawrence West further testified that beginning about Janu-
1 The amended charge names "Precision Carpet, Inc."
223 NLRB No. 63
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ary 15, 1975, and continuing until the July 1975 hearing,
La-Ron Corporation has been engaged in the sale and in-
stallation of carpeting , 95 percent of its business being in-
dustrial-commercial and the rest residential . Between Feb-
ruary and July 1975, inclusive, La-Ron Corporation
received carpeting from outside Ohio valued at $5,000 per
month . The alleged unfair labor practices began in January
1975, and the hearing was held in July 1975. La-Ron Cor-
poration and Precision Carpet, Inc., contend, in effect, that
whether to assert jurisdiction over La-Ron Corporation
should be determined on the basis of its operations alone.
For reasons set forth infra, I agree . I find that La-Ron
Corporation has at material times been engaged in com-
merce within the meaning of the Act, and that to assert
jurisdiction over its operations will effectuate the policies
of the Act. Gradwohl House, Inc., 146 NLRB 977 (1964);
United Slate, Tile and Composition Roofers, Damp and Wa-
terproof Workers Association, AFL-CIO, Local Union No. 7
(Atlas Roofing Co.), 131 NLRB 1267 (1961)2
Precision Carpet , Inc., is an Ohio corporation which was
incorporated in October or November 1972. A number of
the formal papers in this proceeding were mailed to Preci-
sion Carpet, Inc., at the East Avenue address . Counsel for
Precision Carpet , Inc., stated on the record that he was not
challenging the validity of the service of these documents.
Precision Carpet, Inc., contends that it did no business in
1973, 1974, or 1975. At the July 1975 hearing, the General
Counsel contended that Precision Carpet , Inc., had been
continuously engaged in business from its incorporation
through the date of the hearing. In this connection, the
General Counsel initially contended that Precision Carpet,
Inc., occupies single-employer status with La-Ron Corpo-
ration or, in the alternative , that La-Ron Corporation is a
successor to Precision Carpet, Inc. Later in the hearing and
in the General Counsel 's posthearing brief and his concom-
itant "Motion to Conform the Pleadings to the Proof," he
made the further alternative contentions that Precision
Carpet, Inc., is the alter ego of Precision Carpet Installation
(not referred to by that name in the original pleadings);
that La-Ron Corporation is the alter ego of Precision Car-
pet Installation ; that La-Ron Corporation is the successor
to Precision Carpet Installation ; and that La-Ron Corpo-
ration , Precision Carpet, Inc., and Precision Carpet Instal-
lation constitute a single employer . The issues so raised will
be disposed of hereafter.
The ATC and the Carpet Layers are both labor organi-
zations within the meaning of the Act.
If. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The 1970 bargaining agreement
About 1970, Leo Petri, who was then a business agent
for the Carpet Layers, met with William West and his son
Lawrence West. They agreed to join the Carpet Layers, to
sign an agreement , and to hire some members of that
2 Decision on remand , 134 NLRB 367.
Union. William West's fully executed copy of this contract,
which expired by its terms no earlier than June 1973, bears
the following entry on the signature page, written by Wil-
liam West, "Precision Carpet Inst. [By] Wm. West, 2268
East Ave., Akron, Ohio 44314." When this document was
signed, William West told Petri that Lawrence West was a
"partner" and that "the only reason he was not in full con-
trol was that Mr. Bill West had the funds to run the compa-
ny and Larry West was the Vice President of the compa-
ny"
The 1970 bargaining agreement contains a union-shop
clause . In June 1972, Arthur Andrew Lane applied to Law-
rence West for a job. Lawrence West said that if Lane
wanted to work for him, Lane would have to join the Car-
pet Layers. Lane had previously tried to join the Carpet
Layers, but had been told that he could not get in unless he
had a job in a union shop. After this conversation with
Lawrence West, Lane requested and received membership
in the Carpet Layers. Thereafter, Lawrence West hired
Lane.
2. The incorporation of Precision Carpet, Inc.
In October or November 1972, Precision Carpet, Inc.,
was incorporated by William West, his wife Helen (Law-
rence West's stepmother), and Rex Sager (infra, fn. 3). At
all relevant times thereafter , William West has been the
president of Precision Carpet, Inc., and, with Helen West,
has owned virtually all its stock.'
3. Payments made after execution of the 1970 contract
In early 1973, the employees and the Carpet Layers had
considerable problems with checks which were returned to
them because of insufficient funds. William West told Petri
that the checking account was "screwed up," that the bank
was going to close the checking account, and that thereaf-
ter he would write checks on an account maintained by
LeNest Corporation, which he said was another corpora-
tion which he owned and which had some apartments.4
7 The only other stockholder is Rex Sager, who was secretary of Precision
Carpet, Inc. Sager is a member of the law firm which represented Precision
Carpet, Inc., La-Ron Corporation , and ATC at the hearing. He set up La-
Ron Corporation , and is named in La-Ron Corporation's articles of incor-
poration as the agent upon whom process, tax notices, or demands may be
served. I infer that his stock ownership in Precision Carpet, Inc., is nominal
only.
Lawrence West testified that from August 1974 until January 15, 1975,
LeNest was a holding company which occupied the East Avenue premises
and engaged in the business of real estate , stocks and bonds, and carpet
(sales and "somewhat , sometimes" installation). He further testified that
when he acquired the carpet business in which La- Ron Corporation is now
engaged William West owned LeNest , and that at some time which Law-
rence West did not recall , Helen West owned an interest in LeNest. Law-
rence West testified , in effect, that he had never owned any interest in
LeNest. Neville credibly testified without contradiction that at one time not
fixed in the record, William West told him that LeNest "was a corporation
between Bill West and Helen West;" and that at another time not fixed in
the record, William West told him that Lawrence West owned half of Le-
Nest . Lawrence West testified at one point that he worked for LeNest be-
tween August and December 1974, and he further testified that during this
period LeNest was located at 2268 East Avenue . Fourteen checks written by
William West on LeNest's account in October and November 1974 bear the
printed address , "105 Mayfield Ave., Akron, Ohio," which is the home ad-
dress of William and Helen West . I conclude that in 1973 and 1974, LeNest
PRECISION CARPET, INC. 331
The first subsequent paychecks on that account did not
have deduction statements . After Petri complained about
this to William West, he immediately started stapling to the
paychecks an itemized list of deductions. Among the de-
ductions so made were vacation savings (see infra) and
union dues, the deduction of both items having been called
for by the 1970 and 1973 contracts. This practice continued
through December 1974.5
4. The 1973 contract and subsequent dealings with the
Carpet Layers
In 1973, with the expiration of the first contract signed
by Petri and William West, William and Lawrence West
entered into negotiations with Petri for a new contract.
During this period, William West repeatedly told Petri that
William West was "president" of "Precision Carpet," and
that Lawrence West was a "partner" in "Precision Carpet."
The contract eventually executed, on July 19, 1973, was a
printed form contract to expire by its terms no earlier than
June 1976. Petri testified that the same parties entered into
both the 1970 and 1973 agreements. However, when Re-
spondents' counsel then suggested that the employer party
to the 1970 contract was "obviously Precision Carpet In-
stallation," Petri credibly testified, "I don't really know
what company I was dealing with because they were con-
tinually changing checks and changing all their statuses
completely." In William West's presence, Petri inserted
"Precision Carpet" in the blank for the employer' s name in
the preamble in the 1973 contract .6 William West inserted
on the signature page, under the language "For the Em-
ployer," the words, "Wm. A. West, Pres. . . . 2268 East
Ave. . . . Akron, Ohio, 44314." Above this signature is the
notation, "Employers IRS No. 34-1111186."
The 1973 agreement, like the 1970 agreement, contains a
union-shop clause . When carpetlayer Neville started to
work at the East Avenue shop in July 1973, he joined the
Carpet Layers because Lawrence West said he "had to be a
member in order to work in the shop because it was a
Union shop."
The 1973 agreement contains clauses requiring the Em-
ployer to contribute to a health and welfare and a pension
fund a specified sum for each hour worked by a unit em-
ployee. The received exhibits include the Carpet Layers
carbon copies of certain forms sent to an unspecified bank
for the months of January through October 1974 and head-
ed "Monthly Combined Report form to be used in report-
ing employees working under Carpenters and Joiners
Agreements." These forms each contain an entry in the
square labeled "Remittance." Of these 10 forms, 7 bear the
IRS identification number recited in the 1973 contract, 2
bear no IRS identification number, and 1 (for August
1974) bears a different IRS identification number. The
employer's name on the first of these documents is "Preci-
sion Carpet, Inc." The remaining documents give its name
as "Precision Carpet Installation," except that two of them
(for the months of April and June) give the name "Preci-
sion Carpet." All of these documents give the employer's
address as the East Avenue address. All of them bear, in
similar handwriting, the purported signature of Mark Gun-
derson, whom Petri identified as the bookkeeper for Preci-
sion Carpet Installation, except that the last two are signed
by William West I and the report for February bears the
signature "H. A. West"; as previously noted, one of the
major stockholders of Precision Carpet, Inc., is Helen
West. A "vacation savings" provision in the 1973 contract
requires the Employer to forward to an agreed-upon "de-
pository" a specified sum for each hour worked by a unit
employee. The received exhibits include the Carpet Layers
carbon copies of certain forms, all but the first of which
bear a "Received" stamp from the First National Bank of
Akron, which are headed "Local No. 484 Vacation-Holi-
day Fund" and which specify the amounts allegedly owed
for the months of January to October 1974, inclusive. All
of these forms state the employer's address as the East Av-
enue address. The last two of these forms give the
employer's name as "Precision Carpet, Inc." and bear the
signature of "Wm. West Pres." B All but one (for March) of
the remaining forms bear Mark Gunderson's purported
signature in handwriting similar to his purported signatures
on the "Combined Reports" forms. Of these eight remain-
ing forms, two name the employer as "Precision Carpet
Installation," four as "Precision Carpet," and two as "Pre-
cision Inc." With the exception noted below,9 the employee
names and their respective working hours set forth on the
"vacation savings" form for each month are the same as
those on the "welfare and pension" form for that month.
On September 26, 1973, Petri sent by certified mail a
letter alleging violations of the 1973 contract between the
Carpet Layers and "Precision Carpet," to "Mr. William
West, President, Precision Carpet, 105 Mayfield Rd., Ak-
ron, Ohio." The letter stated that if the matter was not
resolved before October 5, 1973, then the letter was to be
considered as a grievance, three named persons were to be
the union representatives of the arbitration board, and Pe-
tri should be advised of the designated arbitrators for
..your company." Petri never received a reply to this letter,
which, according to a subsequent letter from William West,
he did not receive until October 10, 1973. On October 8,
1973, Petri sent a letter addressed to "Bill West, President,
Precision Carpet," at the East Avenue address. The letter
alleged that "your company has not complied with the con-
tract by naming its three arbitrators," and requested the
Employer to appoint an arbitrator in accordance with the
next step of the contractual grievance procedure. The letter
was sent by certified mail, and the receipt was signed by
Lawrence West, as agent for Bill West. A letter to Petri
r I find these signatures to be authentic on the basis of comparison with
admittedly authentic signatures on other exhibits.
8 See supra, fn. 7.
9 Arthur Lane's name and alleged working hours are listed on the
"Monthly Combined Report Form" for May through July 1974. Similar
was in effect owned by William and/or Helen West . entries on the "Vacation-Holiday Fund" reports for those months are
s However , vacation fund contributions were not forwarded after October crossed out, and his crossed -out hours are subtracted from the "Total Regu-
1974. lar Hours" with the notation "pd. to Lane." Lane testified that he worked
6 The record fails to disclose the corresponding entry, if any, in the 1970 for "Precision Carpet" beginning in June. His name and hours are listed on
contract . both sets of forms beginning in August 1974.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from William West, dated October 12, 1973, tacitly con-
ceded the existence of contractual obligations which had
not been fully met but would assertedly be complied with
shortly. The printed letterhead on this letter reads, "Preci-
sion Carpet Installation / 2268 East Avenue, Akron, Ohio
44314/ Bus. 836-6111, Res. 836-9369."
5. Alleged 1968-74 functioning of Precision Carpet
Installation and Precision Carpet, Inc.
Lawrence West initially testified that from August 1974
until January 15, 1975, he worked for LeNest Corporation
at the East Avenue address. Two days later, he testified
that for a 6-year period which included December 1974, he
was employed by Precision Carpet Installation as a manag-
er, under the immediate supervision of his father, William
West. Lawrence West further testified that throughout this
6-year period, he did all the hiring and all the firing.10 In
addition, Lawrence West testified that other duties in man-
aging the shop were divided between himself, his father
William West, his stepmother Helen West, and Ronald
Taylor, one of La-Ron's original incorporators.) I Attorney
John A. Daily (who represented ATC at the hearing but
who filed certain prehearing pleadings as counsel for Re-
spondents and whose partner represented Respondents at
the hearing in July 1975), stated on the record:
... our search was that . . . in talking to the attorney
who does the tax returns, he said that Precision Carpet
Inc. did not do business in the years 1973, '74 or '75.
However, he did deduct-I should say there was a
trade style known as William West d.b.a. Precision
Carpet Installation on his individual returns when his
Schedule C was filed for the year 1974, and that is the
extent of our knowledge.
This representation that the tax attorney had made these
statements to Daily was accepted by the General Coun-
sel.12
Counsel for Precision Carpet, Inc., contended on the rec-
ord that this corporation had done no business in 1973 or
1974. Counsel for this corporation further stated on the
record that its president in 1974 was William West. A no-
tarized affidavit signed by William West on February 7,
1974,13 states that Precision Carpet, Inc., "is an Ohio cor-
10 When hiring Neville in July 1973, and rehiring Lane in May 1974,
Lawrence West said that they were working for "Precision Carpet"
"Lawrence West testified that he and his father had decided to hire
Taylor. Lawrence West further testified that Taylor did work for Precision
Carpet Installation , but that Lawrence West did not know "whether he was
an employee of Precision Carpet Installation or LeNest [supra, In. 4]. 1 don't
know who he was paid by."
12 The transcript is hereby corrected.
13 Attorney Daily, who signed certain prehearing pleadings on behalf of
Respondents, but who appeared at the hearing as counsel for the ATC,
notarized William West's signature . Daily testified that he knew William
West and that as a matter of practice , Daily would not have signed, as
notary , a document bearing the purported signature of William West if it in
fact had not been signed by William West. See also rule 902(8 ) of the Feder-
al Rules of Evidence . Daily's subscription gives February 7 as the date but
omits the year . I infer that the year was 1974 in view of the February 13,
1974, date of the NLRB receipt stamp on the document and the fact that the
document describes various alleged events occurring on or prior to January
7, 1974.
poration engaged in the selling and installation of carpet
.... Annually in the course and conduct of its business, it
received goods in the value of $50,000 from points located
outside the State of Ohio." I adhere to my determination at
the hearing that this affidavit is admissible to prove the
truth of the foregoing matters asserted therein. See rule
801(d)(2)(D) of the Federal Rules of Evidence.
B. Lawrence West's Alleged Acquisition of a Carpet
Business at the East Avenue Address
La-Ron Corporation was incorporated in April 1974 by
Ronald Taylor (its first president), Lawrence West, and
Rex Sager (supra, fn. 3). Between August 1974 and January
15, 1975, La-Ron Corporation was engaged in a stocks and
real estate operation. At some time during this period,
Lawrence West bought out the other shareholders and be-
came the sole shareholder in La-Ron Corporation.
Counsel for Respondents stated at the outset of the hear-
ing, "We plan to show ... that early in 1975 La-Ron Cor-
poration and Larry West, its president, bought out all of
the assets and accounts from Precision Carpet, Inc... .
Further, . . . we will state that Precision Carpet, Inc.,
through our knowledge did not do any business in 1974
... and 1975." Lawrence West initially testified that in
mid-January 1975 he bought out LeNest (supra, fn. 4). Two
days later, Lawrence West testified as follows:
Q. [By the General Counsel] . . . You say you are
now the owner of what?
A. La-Ron Corporation d.b.a. Precision Carpet In-
stallation.
Q. La-Ron d.b.a. Precision Carpet Installation?
A. Correct. That's what I bought, Precision Carpet
Installation.
Q. How much did you pay for Precision Carpet In-
stallation?
A. A total of $101,000.
Q. Did you buy Precision Carpet Installation or did
you buy LeNest?
A. No, I did not buy LeNest.
Q. You did not?
A. No, I did not.
Q. It is your testimony here today that you bought
Precision Carpet, Incorporated?
A. Correct.
JUDGE SHERMAN: No. Installation.
MR. HILL: I mean, Installation. Precision Carpet
Installation.
THE WITNESS: Correct.
JUDGE .SHERMAN: Who did you buy it from?
THE WITNESS: William A. West, of LeNest. I bought
Precision Carpet Installation from LeNest, Incorpo-
rated. William A. West d.b.a. Precision Carpet Instal-
lation, that is who I bought Precision Carpet from.
Q. (By Mr. Hill) Let's go over that slowly again.
You bought what?
A. I bought Precision Carpet Installation from Wil-
liam A. West d.b.a. Precision Carpet Installation and
LeNest.
PRECISION CARPET, INC. 333
Q. Are you saying that William A. West owned
Precision Carpet and LeNest?
A. Correct.
Q. And you bought Precision Carpet Installation
from him?
A. As far as I can remember, yes.
JUDGE SHERMAN : You bought it from him and from
LeNest?
THE WITNESS : Yes.
Of this $101,000 payment, $20,000 was in cash and the
rest in notes. Lawrence West testified that for this sum he
received "the good will of the company, actually, their
name," inventories, materials, supplies, trucks, a towmotor,
and all of its carpeting (valued at $25,000 to $30,000). He
further testified that he assumed the lease on the building
for 5 years, that he received some payables, and that he
received no accounts receivable or shares of stock. When
asked whether Precision Carpet Installation, when he pur-
chased it, was a proprietorship, a partnership, or a corpora-
tion, Lawrence West replied that he did not know, "All I
know is [I am] working under William A. West d.b.a. Preci-
sion Carpet Installation, but we put it under La-Ron d.b.a.
Precision Carpet Installation." He also testified that he did
not know how Precision Carpet Installation differed from
Precision Carpet, Inc.
After January 1, Neville and Lane, who continued to
work at the East Avenue address, began receiving checks
signed by Lawrence West with the printed heading, "La-
Ron Corp., 406 W. Exchange St., Akron, Ohio 44302."
When Neville asked Lawrence West about this, he replied
that he and Ronald Taylor had ordered these checks 4 or 5
months ago, but "before [La-Ron] ever got started .. .
[they] had a disagreement, and La-Ron . . . dissolved and
he was going to use these new checks" until regular payroll
checks came in.14 Lawrence West directed the carpetlayers
both before and after La-Ron Corporation took over the
business in January 1975. All four of the carpetlayers who
were on La-Ron Corporation's payroll in January and
February 1975 were included among the four or five who
had worked as such under Lawrence West's direction in
December 1974. The sign "Precision Carpet" appeared on
the front of the East Avenue building from at least July
1973 through at least February 1975, and there is no evi-
dence that it was ever changed. During this same period,
all mail was addressed to "Precision Carpet Company," at
the East Avenue address, and the secretary answered the
phone "Precision Carpet." A letter written to Petri by Wil-
liam West in October 1973 appears on the same stationery
as a letter written to a Carpet Layers attorney by Lawrence
West dated March 7, 1975. The letterhead reads, "Preci-
sion Carpet Installation, 2268 East Avenue, Akron, Ohio
44314, Bus. 836-6111, Res. 836-9369"; and at the July
1975 hearing, Lawrence West testified, "That is our com-
pany stationery." The March 1975 letter was signed by
Lawrence West under the typewritten signature, "Precision
14 No deductions for taxes or union dues were made from their 1975
checks.
Carpet, Inc." and over the typewritten signature, "Law-
rence M. West, President."15 On April 19, 1975, Lawrence
West signed a receipt bearing the name "Precision Carpet"
for the amended charge and accompanying letter in Case
8-CA-9072, naming as Respondent "Precision Carpet,
Inc." 16 The receipt of a number of other formal papers
served between April and July 1975 by registered mail in
the instant proceeding (heard in July 1975) was acknowl-
edged by the purported signature of Peggy Ann West, who
is Lawrence West's sister and William West's daughter
and whom Lawrence West identified as a secretary work-
ing for La-Ron Corporation.17 As previously noted, Re-
spondents do not question the sufficiency of the service of
these documents, all of them mailed to the East Avenue
address.
After the beginning of 1975, Lawrence West caused to
be printed a supply of folded business cards. The outside
contains the printed name, with a picture of a yardstick,
"Precision Carpet Installation," the first word being in
larger and different style type from the rest. When the card
is opened, it states, inter alia, "Larry M. West, Owner, 2268
East Avenue, Akron, Ohio 44313 (216) 836-6111," the busi-
ness telephone number appearing on the 1973 and 1975
stationery. He testified that he caused these cards to be
printed "Because I am now the owner of La-Ron Corpora-
tion d/b/a Precision Carpet Installation, but I haven't
changed all the book works or my contracts in making
them La-Ron. I am still going under the name of Precision
Carpet Installation."
About May 22, 1975, Precision Carpet, Inc., filed a "Mo-
tion and Answer" whose caption bears the name of Preci-
sion Carpet, Inc., but does not bear the name of La-Ron
Corporation. This document, which was drafted as an an-
swer to a complaint referring to Precision Carpet, Inc., as
"Precision" and not naming Precision Installation Compa-
ny as such, states, in connection with an allegation that
Neville and Lane were unlawfully discharged, "upon re-
ceipt of business by Precision, Neville and Lane will be
able to bid on same as subcontractors."
Carpetlayer Neville testified that William West retired
the first of January, and that the next check received by
Neville was from La-Ron Corporation.18 Lawrence West
testified at the July 1975 hearing that his father had recent-
ly retired "from his business," which Lawrence West de-
scribed as "LeNest, Incorporated" (supra, fn. 4). There is
no evidence that William West ever played any part in the
operations of La-Ron Corporation.
15 Lawrence West attributed the signature's phrasing to the nomenclature
used in the letter to which West's letter was a response. When asked whether
he was president of Precision Carpet, Inc., as of March 7, 1975, he replied
"Just by the letterhead, to answer [Carpet Layers' attorney] Gore' s letter,
just to stall for time."
16 1 find his signature on this document to be authentic by comparing it
with admittedly authentic signatures on other exhibits.
17 Peggy Ann West's purported signatures appear on two receipts as agent
for "La-Ron" and two as agent for "Precision Carpet." The quoted material
appears to be in the same handwriting as the signatures. All four receipts
were signed less than 3 weeks before the hearing.
Is The earliest such check in the record is dated January 31, 1975. The
latest prior check signed by William West is dated December 5, 1974.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Events Culminating in Recognition of the A TC
1. Lawrence West's opinion of the Carpet Layers and the
ATC
Carpet Layers representative Petri credibly testified to a
belief that Lawrence and William West continuously vio-
lated the bargaining agreement , refused to go to arbitra-
tion, and discharged an employee because he had testified
to that effect before the Board . 19 In late 1974, Petri ap-
proached Lawrence West and said that Petri wished West
would "pay the people according to the agreement and
abide by the agreement that we had signed ." West called
Petri a "bastard" and a "son of a bitch ," and told him to
"get the hell out of there," whereupon Petri slapped him.
West thereafter filed but later dropped assault charges
against Petri.
In November 1974, Petri and other representatives of the
Carpet Layers got into a discussion with Lawrence West
about alleged breaches of the 1973 contract . West "blew
up," said that he "wasn 't going to put up with this type of
aggravation and he was going to quit [the Carpet Layers]
and join ATC, where they would go to bat for him. They
would hire an attorney and fight [the Carpet Layers] if
necessary."
On two occasions in January 1975, Petri telephoned
Lawrence West to ask him "what his intentions were with
regard to abiding by the contract that the company had
signed." The record fails to show West 's reply.
2. Alleged interference , restraint , and coercion
In January 1975, Lawrence West told carpetlayer Lane
that "they was thinking about changing the union , going to
Associated Trades and Crafts Union," and asked Lane
what he thought of it . Lane, who was a member of the
Carpet Layers, said that he "didn't think it would be such
a good idea." Later in January, in the presence of carpet-
layer Neville, Lawrence West told Lane that if he did not
join the ATC "with them," Lane would no longer work for
West . Lane replied that he would not join.20 Still later in
January , Lawrence West gave Lane a copy of the ATC
contract, said he thought the contract was a good idea, and
told Lane to read it and to tell West what Lane thought
about it . At or about the same time, Lawrence West asked
Lane and Neville to attend a meeting at the shop at 7:30
that evening with an ATC representative . Lane and Neville
went down to the shop and waited until 8:15 or later, but
no one else showed up. On the following day, they asked
Lawrence West what happened to the meeting. He said
that he had gone out of town and could not make it back
or get to a phone.21
19 A charge based on this alleged incident was settled by payment of
partial backpay.
m West was not asked about this conversation . Accordingly , I credit
Lane's version, although Neville was not asked about it either.
21 Lawrence West testified that sometime after January 1975, La-Ron
Corporation's officers-President Lawrence West, Vice President Sue Ann
D'Amico , and comptroller William Chapman-called a "company meet-
ing," not attended by ATC representative Eddie Beam , to decide what
union to affiliate with. West further testified that the employees present,
In early February, Lawrence West and La-Ron comp-
troller William Chapman asked Lane to join the ATC.
West said that he thought it would be a better union, the
benefits were better, and "we" would work more often.
Lane replied that he would not join the ATC and he did
not think it was a good idea for West and Chapman to join
either. 2
Also in early February 1975, ATC business agent Eddie
Beam received a report that Lawrence West was having
trouble with the Carpet Layers business agent, who had
punched him, and might be glad to talk to Beam . There-
upon Beam called Lawrence West, identified himself, and
asked whether he would be interested in talking to Beam.
West said, "Yes, I would ... I am glad you called."
3. The ATC meeting in Lawrence West's office
On February 17, at or about 6:30 p.m., Lawrence West
telephoned Neville that there was a meeting at the shop at
7 that evening and "For your own good, you better be
there." Neville replied that he was not coming because he
had other plans and the notice was too short. West did not
relate the purpose of the meeting to Neville, who testified
that he "had a good idea, but . . . wasn't positive" as to its
purpose . Lane was never informed of this meeting.
The names of four, and only four, nonclerical employees
appear on La-Ron Corporation's payroll records between
mid-January and the end of February 1975-namely, Wil-
liam Ringer , Louie Sloey, George Neville, and Arthur An-
drew Lane. I find that until the end of February 1975, these
four comprised the bargaining unit for which the ATC was
recognized as the bargaining representative on February
19.23 About 7 p.m. on February 17, ATC representative
Beam met in Lawrence West's office with Lawrence West,
William Chapman (La-Ron Corporation's comptroller),
and employees Ringer and Sloey. Neville and Lane were
not present. Also present were Terrence Pearson, Jerry
Hershberger, and (perhaps) someone named "Angelo."
Hershberger's name does not appear on any of La-Ron
Corporation's payroll records through June 13, which were
supplied in response to a subpena issued at the General
Counsel's instance, and seeking all such records through
May 30, 197524 Nor does Pearson's name appear on any of
whom he identified as William Ringer , John Percocco , Harry Dean, and
Carroll Haywood , "all collectively," said they wanted to be represented by
the ATC. I do not believe Lawrence West 's wholly uncorroborated testimo-
ny in this respect . Because he testified that "we didn ' t have a union" at this
time, any such meeting must have been held before February 19, 1975,
when Lawrence West signed a contract with the ATC. However, Dean's
name first appears on the payroll for the week ending April 1. 1975,
Haywood 's first appears on the payroll for the week ending May 9, 1975,
and Percocco 's does not appear on any of the payroll records through June
13, 1975.
u Lane testified at the hearing that he said this because he had heard that
the ATC had trouble getting on big commercial jobs.
23 For reasons set forth infra, I find that Neville and Lane were employees
rather than independent contractors , and that they were terminated on Feb-
ruary 18 in violation of Section 8(a)(3) and (1) of the Act. Accordingly, they
are included in the unit at all times, including the period after their dis-
charge . Independent Sprinkler & Fire Protection Co., 220 NLRB No. 140
(1975); Old King Cole, Inc. v. N.L.R.B., 260 F.2d 530 (C.A. 6, 1958).
24 The dated ATC documents signed by Hershberger are all dated May
30, 1975, or later.
PRECISION CARPET, INC. 335
these records 25 The only "Angelo" on such records is An-
gelo Sabaro , whose name first appears on the payroll rec-
ord for the week ending March 7, 1975. Beam told the
group about the benefits called for by the ATC contracts,
all of which are identical, and about the ATC dues and
assessments . Ringer , Sloey , Pearson , Hershberger, and
(perhaps) Chapman and "Angelo" said they wanted to
join , but Beam had mislaid his blank ATC authorization
cards.26 Lawrence West was present throughout this con-
ference , but said nothing.
4. The alleged discriminatory discharges
At 10 p.m. that evening, February 17, Lawrence West
telephoned Neville and said, "Precision Carpet is now an
ATC union shop; and if you intend to work there any
more, you have to join the union with us." Immediately
thereafter , Lawrence West telephoned Lane and said "that
they had just joined Associated Trades and Crafts Union
and if [Lane] didn't intend . . . to join, that [he] shouldn't
bother showing up for work the next day." In a telephone
conversation immediately thereafter, Neville and Lane
agreed to go to work the next day as if nothing had hap-
pened.27
On the following day, February 18, Neville and Lane
came to the shop about 8 a.m. Lawrence West was not
there. La-Ron Corporation's comptroller, Chapman, said
that West had told him that the shop had become an ATC
shop the night before and if they did not intend to join the
ATC, then they were not going to work there. Chapman
said that if they did not intend to join the ATC, they might
as well go home, there would not be any work for them. At
this point Lane became "sort of aggravated" and walked
away. Chapman then told Neville, "We have guys that did
join with us and we have to give them the work first ... .
If we had a lot of work, . . . I would be glad to give it to
you guys." After waiting around for a few more minutes,
Lane and Neville went home. They never again reported
for work there, and were never directed to report for
work 28
35 Lane testified that "Terry," whose last name Lane did not know, was
the "shop man" who delivered cut carpeting to the installation site . Howev-
er, "Terry" performed this function at least partly before Lawrence West
bought the business in January 1975, whereas Lawrence West testified in
July 1975 that Terrence Pearson was hired, apparently to cut carpeting,
after the first of 1975, without giving any further particulars about the date.
Pearson's February 19, 1975 , checkoff card describes him as a warehouse
manager, a classification not shown to exist in La -Ron Corporation 's shop,
and none of the ATC documents signed by him indicates that he was cur-
rently employed by La-Ron Corporation , Precision Carpet Installation, or
Precision Carpet, Inc.
26 1 do not accept West 's testimony that the La -Ron personnel filled out
the ATC forms at this meeting . This testimony is inconsistent with the
ATC's records and was not corroborated by Beam.
27 The Carpet Layers had previously suggested this course of action
should the problem arise.
28 My findings as to the February 18 events are based on the mutually
corroborative testimony of Neville and Lane . Chapman did not testify, nor
was his absence explained . While Neville and Lane are listed on the payroll
through the week ending February 28, the record establishes that they were
frequently paid late (see infra, part II,13,1). I do not credit the testimony of
Lawrence West, who was a singularly unimpressive witness (see infra, parts
II,B, II,D,4), that at an employee meeting after February 19 he gave Neville
and Lane the choice of working as employee members of the Carpet Layers
or as employee members of the ATC, and they replied that they did not
5. The execution of a contract with the ATC
On February 19, La-Ron President Lawrence West, La-
Ron comptroller Chapman, employee Ringer, and Pearson
went down to the ATC hall. West signed a membership
pledge, an authorization card, and a checkoff card, and
then called in one of the others. Thereafter, each person
who signed called in another as he left. Chapman, Ringer,
and Pearson all signed membership pledge cards that day;
Pearson and (perhaps) Ringer filled out applications for
membership that day;29 and Chapman and Pearson filled
out authorization and checkoff cards that day.30 At some
time prior to the end of the meeting, Lawrence West and
ATC business representative Phil Williams executed a col-
lective-bargaining agreement with the ATC effective from
March 1, 1975, to March 1, 1978, and covering, inter alia,
wages , hours; an apprenticeship program, and a grievance-
arbitration procedure. On the signatory page of this docu-
ment, Lawrence West wrote, in the blank under the type-
written work "Employer," "Lawrence M. West d.b.a. Pre-
cision Carpet Inc." Similarly, in the blank for the name of
the "Employer" on the first page of this document, he
wrote, "Lawrence M. West DBA Precision Carpet Inc."
Thereafter, West advised Beam by telephone, "Ed, you
have to get out here. There is a couple of guys who want to
join. You have to get out here and sign them up." West and
Beam agreed that Beam would come to the shop on Febru-
ary 28, a day when the employees would come in for their
pay. When Beam arrived, he took a seat by the desk where
West was paying off the employees.
Lawrence West was not asked about the February 28
events . As a witness for the General Counsel, Beam testi-
fied that he left "booklets" with Sloey and Sloey's "part-
ner," whom Beam did not identify by name but did identi-
fy as an employee who had attended the February 17
conference but not the February 19 meeting .31 Beam went
on to testify that West said he would mail the filled-out
"booklets" to the ATC's main office along with the em-
ployees' payments. Although Sloey remained on La-Ron
Corporation's payroll until the end of March, the ATC's
records fail to show that Sloey ever applied for member-
ship, nor did they disclose any applications on or shortly
want to be associated with the ATC. Moreover , La-Ron Corporation was
not bound by any union-security contract with the Carpet Layers (infra,
part II,D,3) and does not rely on the ATC union-shop clause. Accordingly,
the conversation as testified to by Lawrence West would establish an unlaw-
ful termination . See cases cited infra II,D,5a (text).
29 Ringer 's application is dated February 16, but there is no credible evi-
dence that prior to February 17 he had any contact with the ATC. Ringer's
authorization and checkoff cards are dated May 1, 1975. After the inquiry
on the application , "Who referred you to us?" Ringer wrote, "Persion [sic]
Caet Co."
Because West is a shop owner and he and Chapman do not work with
the tools, they were admitted as nonvoting associate members.
31 Before March 1975, Sloey's usual partner was Ringer, who was present
on both February 17 and 19 and had already signed a pledge card and
(perhaps) a membership application (see supra, In. 29). Beam did not cor-
roborate Lawrence West's testimony that "Angelo" attended the February
17 conference , Angelo Sabaro's name does not appear on La-Ron
Corporation 's payroll until the week ending March 7, and the ATC has no
record of any papers signed by him . La-Ron Corporation 's payroll for the
week ending February 28 lists Ringer , Sloey, Neville , and Lane.
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after February 28 from anyone on La-Ron Corporation's
payroll 32
Neville also came to the shop that evening to pick up a
check for sums held back for 5 weeks. Lawrence West
asked him whether he had made up his mind yet to join the
ATC, and Neville replied no. West introduced Neville to
Beam as a "good man . . . a good installer. . . . So right
now we are going to forget all of those differences . . . and
any question that he asks you, would you be good enough
to answer it?" Beam explained the benefits called for by
the ATC agreement, told Neville the number of ATC
members and unemployed members, described the qualifi-
cations and the dues payments required , and discussed the
ATC's policy regarding employee grievances. Beam said
that he was not going to beg anyone to join the ATC, said
Neville could join or not as he pleased, and said, "What do
you want to do? Think it over." Beam wrote his name and
telephone number on the back of a copy of the ATC agree-
ment, gave this copy to Neville in West's presence , and left
the shop . West was present throughout this conversation.
After Beam had left, West told Neville to take the agree-
ment home , read it, and think it over.33 Beam testified that
he believed Neville to be "interested enough that he would
come with us . . . . Apparently I was wrong."
The ATC contract, like the Carpet Layers 1970 and 1973
contracts , contained a checkoff provision and a union-se-
curity provision with a grace period of 8 days rather than
the 30 days called for by the proviso to Section 8(a)(3).
None of the parties has taken a definitive position as to
whether these clauses were rendered lawful by Section 8(f)
of the Act, which permits a 7-day grace period where inter
alia, the employer is engaged "primarily in the building
and construction industry." 34 Without finding whether or
not Respondents were or are so engaged, I note that the
burden of proof as to this issue rests upon Respondents
and the ATC.35 Respondents conceded at the hearing that
the propriety of Neville's and Lane's alleged discharge was
to be determined without regard to the union -security pro-
visions in the ATC contract. Moreover , ATC representa-
tive Beam stated that he would have no objection to their
continuing to work for the Company but remaining Carpet
Layers members rather than joining the ATC.
32 The next application shown by the ATC's records is from Harry Dean
on March 29 , 1975. His name does not appear on the payroll until the week
ending April 1, 1975.
33 Beam testified that the ATC contracts are so administered that certain
payments are made by the employees, even though the contracts on their
face provide that the payments are to be made by the employer . In addition.
ATC counsel stated on the record that although the ATC contract calls for
payment by the hour, the ATC has no objections to payment by the piece if
the employee thereby receives the minimum contractual hourly rate. Many
of the grievances pressed by the Carpet Layers under the 1970 and 1973
agreements , which also called for hourly rates, were based on alleged piece-
work payments.
34 Cf. Carpet, Linoleum and Soft Tile Local Union No. 1247 of the Brother-
hood of Painters, Decorators and Paper Hangers of America, AFL-CIO (Indio
Paint and Rug Center), 156 N LRB 951 (1966); United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, Local 1839 (Kroeter Construction
Co.?, 160 NLRB 1, 3 (1966).
3 Carpet, Local Union No. 1247 (Indio Paint), supra. In. 1.
D. Analysis and Conclusions
1. The status of Neville and Lane
Respondents contend that Neville and Lane were at all
times independent contractors rather than employees and,
further, that if they were employees, before La-Ron Corpo-
ration took over the carpeting business in mid-January
1975 they were employees of LeNest. For the purposes of
convenience, these contentions, whose relevance will ap-
pear infra, will be discussed at this point.
a. Whether they were employees
I conclude that Neville and Lane were at all times em-
ployees rather than independent contractors. It is undis-
puted that carpetlayers Ringer and Sloey were employees
during the latter part of 1974 and in 1975. All four carpet-
layers were provided the same personal tools; all four were
provided without charge with the same company supplies
and equipment, including precut carpeting to be installed;
all four performed the same kind of work and (before La-
Ron Corporation's takeover) sometimes worked together
on the same job; all four received their instructions from
William (before La-Ron's takeover) and Lawrence West
about when to report for work, whether to report at the
shop or at a particular job, how many square yards of car-
pet to install, the color of the carpet, and what was sup-
posed to be done first; and all four were paid partly by the
square yard (at a rate unilaterally set by Lawrence West)
and partly by the hour before La-Ron's takeover, and by
the square yard thereafter.36 Lane always gave an advance
explanation, such as sickness, before taking a whole day
off. The record is silent as to Neville's practice in this re-
spect. Lane and Neville were permitted to leave a job early,
without pay, if they were finished on the job or there was a
hold up on the job. On a few occasions, Lane took an
unpaid hour or two off in the afternoon for personal rea-
sons without notifying his employer.37 In filing his income
tax return for 1974, Neville filed the W-2 form used by
employees. 38
Both Neville and Lane were required to join the Carpet
Layers when they first began to work at the East Avenue
shop (in 1972 and 1973, respectively), Carpet Layers dues
and vacation savings payments were deducted from their
1974 paychecks, and payments to the Carpet Layers health
and welfare and pension funds were made in 1974 on their
behalf, all as required by the Carpet Layers bargaining
agreements . Also during 1974, income and social security
taxes were deducted from their checks. In 1973 and 1974,
both Neville and Lane made repeated complaints to the
Carpet Layers that they were being paid by the piece rather
than, as required by the bargaining agreement, on an hour-
ly basis, and the Carpet Layers brought some of these com-
plaints to the attention of William West and asked him to
36 See supra, In. 33 . After the takeover , employees were paid by the hour
when repairing damage effected by others . There is no evidence that Neville
or Lane ever received such an assignment.
17 When he did call the shop during the day, most of the time nobody was
there.
38 There is no evidence regarding Lane's income tax return.
PRECISION CARPET, INC. 337
remedy such grievances . Neither Lane nor Neville ever
took jobs with another company while working in the East
Avenue shop,39 or hired anyone else to work with him, or
entered into any contractual agreement with La-Ron Cor-
poration or Precision Carpet, Inc. Neville never bid on any
jobs, and there is no evidence that Lane did (see supra, fn.
39). Neville was never told that he was an independent
contractor, and there is no evidence that any such state-
ment was ever made to Lane, who usually worked with
Neville. As previously found, Lawrence West told Neville
to attend a meeting at which the ATC urged La-Ron
Corporation's employees to join, and told both Neville and
Lane to attend an abortive meeting where such ATC
exhortations were anticipated.
In contending that Neville and Lane were independent
contractors, Respondents seem to rely largely on the evi-
dence that after 1974 no tax deductions were made from
their pay, and beginning in October 1974 they repeatedly
endorsed checks made out to "Neville Carpet Service" and
"Lane Carpet Service" respectively. However, Lawrence
West's explanation to Lane for the absence of deductions
was "we didn't make enough money to deduct anything";'
when asked by Lane why "Lane Carpet Service" was
named on the checks, Lawrence West never gave a definite
answer ; and Neville and Lane credibly testified, respective-
ly, that there is no such company as "Neville Carpet Ser-
vice" or "Lane Carpet Service," that they had never used
this nomenclature , and that they cashed these checks 41 be-
cause such checks were for badly needed payments already
long overdue and Neville and Lane had sometimes re-
ceived checks from the East Avenue shop which were re-
turned because of insufficient funds.42 Respondents also
rely on a 1974 incident where Neville was required to pay
for a third of the carpet damaged on the job; but Sloey and
Ringer, undisputedly employees, each also had to pay for a
third of the carpet, which Ringer damaged on a job where
all three were working. Further, Respondents point to Wil-
liam West's 1974 action in withholding for 5 weeks Lane's
and Neville's payment for two jobs where West thought,
erroneously, that they had laid the wrong carpet. However,
it is uncontradicted that West was not acting pursuant to
any agreement with Neville and Lane, and that they
promptly complained about his action to the Carpet Lay-
ers, which took the position that employees should not be
charged for damaged carpeting but could be discharged for
repeatedly doing bad work. Moreover, similar 1973-74 at-
79 The 1973 contract provides , "nor will any Union employee do outside
work on his off hours."
40 Neville never asked about the absence of deductions.
41 Lane and Neville each signed his own name on each of these checks.
Some are also endorsed "Lane Carpet Service" or "Neville Carpet Service."
Lane and Neville explained these respective endorsements on the ground
that this was the only way they could get the checks cashed.
42 Two February checks to "Neville Carpet Service," and two February
checks (including one for $124 . 89) to "Lane Carpet Service," all from La-
Ron Corporation and signed by Lawrence West, are. stamped "Insufficient
Funds." Lane eventually cashed a La-Ron check for $124.89 dated March
7, 1975, more than 2 weeks after the terminations . Neville likewise cashed a
check bearing that date . As previously noted, the employees and the Carpet
Layers had had like difficulties in 1973. Lane resigned in 1973 because of
such problems , and did not return to work at the East Avenue shop until
mid-1974.
tempts to compel Neville to pay for allegedly damaged car-
peting were unavailing.
In short, the evidence shows that the Employer retained
the right to control the manner and means by which
Neville's and Lane's carpeting installation work was to be
accomplished. Accordingly, I conclude that Neville and
Lane were at all times employees rather than independent
contractors. Local No. 2265, United Brotherhood of Carpen-
ters (Carpet Center, Inc.), 170 NLRB 633 (1968); Carpet,
Linoleum and Soft Tile Layers, Local No. 1238 (Arnold's
Carpet), 175 NLRB 332 (1969).
b. Identity of their 1974 employer
The evidence fails to support Respondents' further con-
tention that assuming Lane and Neville were employees at
any time, prior to 1975 they were employees of LeNest.
The use of LeNest paychecks after early 1973 was ex-
plained to Carpet Layers representative Petri by William
West as arising from the bank's cancellation of the account
on which paychecks had previously been drawn. While
Lawrence West (Lane's and Neville's immediate supervisor
at all times) initially testified that he worked for LeNest
between August and December 1974, I do not credit such
testimony. Rather, I credit his subsequent testimony that
for a 6-year period which included December 1974, he was
employed by Precision Carpet Installation. In so finding, I
note his testimony that as shop manager for Precision Car-
pet Installation, he inspected work on the Federal Building
performed by Precision Carpet Installation from late No-
vember 1974 to early January 1975.43 I further note the
absence of any evidence of any de facto change prior to
1975 in the duties, responsibilities, or on-the-job relation-
ships of the carpetlayers or Lawrence West.
The following evidence further militates against the con-
tention that prior to 1975 Lane and Neville were employees
of LeNest: When hiring Neville in July 1973 and rehiring
Lane in May 1974, Lawrence West said they were working
for "Precision Carpet"; and there is no evidence that either
was ever told that he was working for LeNest. Prior to
1974, both were paid on paychecks bearing the name of
"Precision Carpet." Both were treated by the Carpet Lay-
ers and their employer as part of the bargaining unit cov-
ered by the 1970 and 1973 "Precision Carpet" contracts.
Both were listed as employees on the health and welfare
pension forms and "vacation savings" forms submitted be-
tween January and October 1974 by "Precision Carpet,
Inc.," "Precision Carpet Installation," "Precision Inc.," or
"Precision Carpet." Moreover, both of them worked on
jobs which Lawrence West identified as jobs performed by
Precision Carpet Installation.44
43 He initially so testified at three different points. On the basis of his
demeanor, I do not believe his subsequent testimony that he did not know
whether this was true. See also infra, In. 44.
44 More specifically, both of them worked on the Mayflower job between
June and October 1974; on the Fairhill Towers job in 1974 ; and on the
Federal Building job in November and December 1974.
Moreover , Neville worked on the Forest City Dillon job in October and
November 1974. Lawrence West initially testified that as Precision Carpet
Installation shop manager, he inspected "Forest City Dillon in Barberton,
Ohio. That was a subcontract from City Floors and Tile." He later testified,
Continued
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The relationship between Precision Carpet, Inc., and
Precision Carpet Installation
I agree with the General Counsel's contention that Preci-
sion Carpet Installation is an alter ego of Precision Carpet,
Inc. Thus, 1974 forms submitted in connection with the
health-welfare-pension and "vacation savings" clauses in
the 1973 agreement (executed by William West, "Pres.," on
behalf of "Precision Carpet") variously designate the em-
ployer as "Precision Carpet, Inc.," "Precision Carpet In-
stallation," "Precision Carpet," and "Precision Inc." That
the 1973 agreement and all these forms involved the same
employer is demonstrated by the use of the same IRS iden-
tification number on practically all of these documents; by
the fact that contemporaneous forms name the same em-
ployees and consecutive forms repeat many of the same
employee names; and by the appearance on all of them of
the same East Avenue address. Moreover, William West,
the president of Precision Carpet, Inc., executed an affida-
vit stating that this corporation did business in 1973 and
early 1974, but filed only an individual tax return for 1974
setting forth a "trade style known as William West d.b.a.
Precision Carpet Installation." Furthermore, admittedly
valid service on Precision Carpet, Inc., in 1975 was effected
at the same East Avenue address set forth in the 1970 bar-
gaining agreement signed "Precision Carpet Inst." This
same address is printed on stationery bearing the letter-
head "Precision Carpet Installation" used by the president
of Precision Carpet, Inc., William West, in correspondence
regarding the 1973 agreement, which named the employer
as "Precision Carpet" and was signed on its behalf by
"Wm. A. West, Pres." with the same East Avenue address.
Also, the abbreviated name "Precision Carpet" was used
not only in the 1973 agreement and on 1974 forms used to
administer that agreement, but on admittedly valid ac-
knowledgements of service on "Precision Carpet, Inc." at
the East Avenue address displaying at all times the sign
"Precision Carpet," in correspondence accepted by Wil-
liam West (through Lawrence West, admittedly employed
by Precision Carpet Installation) about this agreement ad-
dressed to "President, Precision Carpet" at the East Ave-
nue address, on mail accepted at the East Avenue address,
in acknowledgements of telephone calls to the East Ave-
nue address, and in Lawrence West's 1973 statement to
Neville and 1974 statement to Lane about whom they
worked for. This indiscriminate use of "Precision Carpet"
in situations clearly involving Precision Carpet Installation
(at the very least) and in situations clearly involving Preci-
sion Carpet, Inc. (at the very least) provides further sup-
port for my conclusion that both constitute the same enti-
ty. Such alter ego status is further indicated by the
statement of Precision Carpet, Inc.'s counsel that La-Ron
Corporation "bought out all of the assets and accounts
from Precision Carpet, Inc.," when that statement is taken
with Lawrence West's testimony that he bought Precision
Carpet Installation 45
"We subcontracted that job off of City Floors and Tile ." Still later, he
testified that he did not know whether Precision Carpet Installation per-
formed any work in 1974 for Forest City Dillon . I accept his initial testimo-
ny in this respect.
3. The relationship between La-Ron Corporation and
Precision Carpet Installation/Precision Carpet, Inc.
As previously found, after taking over the business from
the entity variously known as Precision Carpet Installation
and Precision Carpet, Inc., La-Ron Corporation continued
to engage in the same kind of business at the same location
under the same trade name "Precision Carpet Installa-
tion," with the same shop manager, the same equipment,
and substantially the same work force. Further, La-Ron
Corporation acquired the seller's "good will," inventories,
supplies, trucks, and towmotor, and all of its carpeting. 46
This evidence persuades me, and I find, that La-Ron Cor-
poration occupies successorship status with respect to Pre-
cision Carpet, Inc./Precision Carpet Installation 47
However, I do not agree with the General Counsel's con-
tention that La-Ron Corporation occupies alter ego or sin-
gle-employer status with Precision Carpet, Inc./Precision
Carpet Installation. I so conclude because Lawrence West
is the sole stockholder in La-Ron Corporation and there is
no substantial evidence that he ever had a financial interest
in Precision Carpet, Inc./Precision Carpet Installation. In
urging alter ego or single-employer status, the General
Counsel relies primarily on the fact that more than 80 per-
cent of the amount which Lawrence West paid for the bus-
iness consists of notes made payable, at least as a practical
matter, to William West 48 However, there is no evidence
that William West participated in any way in operating the
business after he sold it to Lawrence West. While it is true
that William West's creditor interest in the business might
afford him the incentive and the power to resume opera-
tion of the business if his son defaulted on the notes, there
is no evidence that such a default occurred or was immi-
nent, and the record indicates that William West sold the
business because he wanted to retire. See Eberhard Foods
Inc., 173 NLRB 5 (1968)."
4. The complaint allegations against Precision Carpet,
Inc.
The unfair labor practice allegations set forth in the in-
stant complaints are limited to periods after La-Ron Cor-
45 See Steve Aloi Ford, 179 NLRB 229, 230 (1968). 1 do not accept Law-
rence West's sporadic and uncorroborated testimony, inconsistent with the
representations of La-Ron Corporation's counsel, that LeNest was some-
how involved in the transaction as a seller.
46 Moreover, G.C. Exh. 15(f) indicates that La-Ron Corporation paid Ne-
ville and Lane wages which William West withheld from them before the
takeover in the mistaken belief that they had laid the wrong carpet.
47 N. L.R.B. v. William J. Burns, Burns International Security Services, 406
U.S. 272 (1972); Continental Inn, 186 NLRB 248 (1970); enfd. in material
part 453 F.2d 269 (C.A. 6,); N.L.R.B. v. Wayne Convalescent Center, Inc. 465
F.2d 1039 (C.A. 6, 1972).
48 The record fails to show the interest rate, if any, called for by these
notes: nor whether the payee named therein is William West or a firm in
which he has an interest. Although suggesting that William West may no
longer hold these notes, the General Counsel tendered no evidence to this
effect.
49 Cf. J. Howard Jenks, d/b/a Glendora Plumbing, et al, 172 NLRB 1700
(1968), enfd. 72 LRRM 2768, 61 LC Para. 10,488 (C.A. 5, 1969), cited by the
General Counsel, where the prior owner remained in control of the subse-
quently established firm.
PRECISION CARPET, INC. 339
poration acquired the business. Accordingly, my finding
that La-Ron Corporation does not occupy single-employer
or alter ego status with respect to Precision Carpet, Inc.,
requires the dismissal of the complaint allegations against
the latter.
However, because reviewing authority may disagree with
my finding in connection with the alter ego and single-
employer contention, I find as follows with respect to the
commerce of Precision Carpet, Inc.: My finding that this
corporation is the alter ego of Precision Carpet Installation
means that the General Counsel's unsuccessful attempts to
obtain by subpena the commerce facts regarding Precision
Carpet Installation constituted unsuccessful attempts to
obtain such facts regarding Precision Carpet, Inc. These
attempts are summarized below.
As previously noted, prior to the hearing John Daily was
counsel for Precision Carpet, Inc., and La-Ron Corpora-
tion. When asked whether he had ever mentioned "William
West d.b.a. Precision Carpet Installation" to any Board
investigator during the investigation of this case, Daily tes-
tified, "I don't recall." At the hearing, Lawrence West testi-
fied that he had been employed by Precision Carpet Instal-
lation for several years before La-Ron Corporation went
into the carpet business. In addition, on the last day of the
hearing, Lawrence West initially testified that he had given
his attorney certain Precision Carpet Installation records
relating to its commerce (including a contract for work in
Sharon, Pennsylvania), inferentially in compliance with a
subpena served on Lawrence West prior to the hearing.
Attorney Enright, who represented Precision Carpet, Inc.,
and La-Ron Corporation at the hearing, stated that he had
no such documents in the files he had been working with
throughout the case. Following Lawrence West's initial tes-
timony about the location of these Precision Carpet Instal-
lation documents, Enright's partner John Daily, who ap-
peared on ATC's behalf at the hearing, declined to state
whether the material referred to by Lawrence West was in
Daily's file. Thereupon, the General Counsel served a sub-
poena duces tecum on Daily, seeking documents regarding
Precision Carpet Installation's commerce. Daily stated that
he would not turn over any such records in his file, initially
on the ground that they were privileged because of an at-
torney-client relationship between Daily and William West
d/b/a Precision Carpet Installation, and then on the
ground that they were privileged because of such a rela-
tionship between Daily and Lawrence West. When I asked
Daily whether he received these materials in Daily's capac-
ity as William West's attorney, Daily replied, "I don't re-
call, to be honest with you . . . I have seen the documents.
I am not even going to say from that standpoint, who and
where I got them. Any documents that are in my file hav-
ing to do with a person who is not a party, who my firm
represents, will not be provided in this court."
I declined on the record to infer from Daily's statement
in this respect and from Lawrence West's testimony up to
this point that Lawrence West supplied these materials to
Daily because of an attorney-client relationship between
him and William West, and stated on the record that Daily
seemed to be taking the position that the appropriate per-
son to subpena for these records was the client (Lawrence
West) rather than counsel5° At this point, the General
Counsel subpenaed Lawrence West for these documents.
Lawrence West thereupon testified that he had given some
documents in an envelope to an attorney in the hearing
room, but did not know what they were and did not know
whether they concerned Precision Carpet Installation, and
then that he had supplied an attorney with some records
from Precision Carpet Installation, but did not know their
present location. While I did not and do not credit his
belated professions of ignorance, on the strength of such
representations I granted his motion to quash the subpena. -
Later, when asked whether he had received any documents
that day from Lawrence West purporting to show Precision
Carpet Installation's 1975 business, Daily objected to the
question on the ground of attorney-client privilege, and I
sustained the objection.51
. I agree with the General Counsel that in view of the
foregoing sequence of events, Precision Carpet, Inc., meets
the Board's jurisdictional standards on a showing that the
Board has statutory jurisdiction. 52 Such a showing of statu-
tory jurisdiction in 1974 is made by Lawrence West's testi-
mony that in 1974 Precision Carpet Installation performed
work in Sharon, Pennsylvania, and by the February 1974
affidavit by William West, the president of Precision Car-
pet, ,Inc., that "Precision Carpet, Inc. is an Ohio corpora-
tion engaged in the selling and handling of carpet ... .
Annually in the course and conduct of its business, it re-
ceived goods in the value of $50,000.00 directly from points
located outside the State of Ohio." However, my finding
that the entity known as Precision Carpet Installation or
Precision Carpet, Inc., is not the alter ego of La-Ron Cor-
poration and does not occupy single-employer status with
it means that there is no evidence that the former entity
50 Any such position by Daily would appear to be erroneous . 58 Am. Jur.,
Witnesses, §501, p. 281 (1956). Daily never formally moved to quash the
subjena directed to him.
5 This ruling may well have been erroneous . Any such documents would
not be privileged if, as seems likely, they were prepared independently of the
existence of the attorney-client relationship. In re Ruppert, 309 F.2d 97 (C.A.
6, 1962); Radiant Burners, Inc. v . American Gas Association, 320 F .2d 314,
324 (C.A. 7), cert. denied 375 U.S. 929; 58 Am. Jur., Witnesses, Sec. 501, p.
281 (1956). Moreover, on that day Lawrence West was not Daily 's client in
connection with the instant proceedings, and there is no evidence or claim
that any delivery of documents to him by Lawrence West was attributable
to any attorney-client relationship between Daily and William West or Pre-
cision Carpet Installation.
52 Tropicana Products, Inc., 122 NLRB 121 (1958); Supreme, Victory and
DeLuxe Cab Companies, 160 NLRB 140, 146 (1966); Seaboard Warehouse
Terminals Inc., 123 NLRB 378, 380-383 (1959); City and County Electric
Sanitary Sewer Service, Inc., 191 NLRB 167 (1971), enfd. 467 F.2d 209 (C.A.
8, 1972); Quality Motels, 194 NLRB 1035, 1935-36 (1972). These cases indi-
cate that it is immaterial whether at the time of the hearing Lawrence West
knew the location of and had access to these documents. In any event, on
the basis of his demeanor and the sequence of events at the hearing, I find
that he had given them to Daily and that Daily had them in his possession.
However , even assuming arguendo that the Akron Federal building hous-
es Federal agencies involved with the national defense , I would not find that
by laying carpet in this building, Precision Carpet, Inc./Precision Carpet
Installation engaged in activity having a "substantial impact" on national
defense within the meaning of the Board 's jurisdictional standards. Standard
Liquid Gas Co., 165 NLRB 756 (1967); Kwik Kafe of Idaho, 186 NLRB 830
(1970). Further, I reject the General Counsel's request that I take judicial
notice that there are no carpet mills in Ohio . I do not regard this alleged
circumstance as being "generally known" in either Ohio or in the United
States generally, nor have I been referred to any source for making such a
determination. See Rule 201(b), (d), Federal Rules of Evidence.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in business operations after La-Ron acquired the
business about January 15, 1975.53
5. The complaint allegations against La-Ron Corporation
a. The alleged unfair labor practices directed against Lane
and Neville
I have previously rejected the contention that Lane and
Neville were independent contractors , and have found in-
stead that they were employees . It follows that La-Ron
Corporation violated Section 8(a)(l) of the Act when Law-
rence West told them in January and February 1975, that
they would be discharged unless they joined the ATC. It
also follows that La-Ron Corporation discharged them in
violation of Section 8(aX3) and (1) of the Act, when comp-
troller Chapman told them on February 18, 1975, that
Lawrence West had said that they were not going to work
there if they did not intend to join the ATC, and that if
they did not join the ATC they might as well go home,
there would not be any work for them. Gilbert v . Robinson,
Inc., 193 NLRB 279, 281-282 (1971), enfd. 471 F.2d 656
(C.A. 8, 1972); Lifetime Shingle Co., 203 NLRB 688, 688,
693 (1973); N.L.R.B. v. Almeida Bus Lines, Inc., 333 F.2d
725, 727-729 (C.A. 1, 1964).54
b. The alleged support of the A TC
I agree with the General Counsel that La-Ron Corpora-
tion violated Section 8(aX2) and (1) of the Act by soliciting
employees to sign up for the ATC. I find that such viola-
tions occurred when Lawrence West , La-Ron
Corporation's president and sole stockholder, and La-
Ron's comptroller Chapman asked Lane to join the ATC
in early February 1975; when Lawrence West directed La-
Ron's employees to attend a February 17, 1975 , meeting in
his office to listen to ATC representative Beam 's exhorta-
tions to .join the ATC in the presence of Lawrence West
himself and La-Ron comptroller Chapman ; when on Feb-
ruary 19, 1975, Lawrence West and Chapman accompa-
nied employees to the ATC hall to sign up for the ATC,
Lawrence West signed up first and then called in one of the
others to sign , and Chapman signed as well; and when,
later in February , West successfully urged an ATC repre-
sentative to come to the shop to sign up employees and
himself joined in such organizing activity.55
I further agree with the General Counsel that La-Ron
Corporation violated Section 8(aX2) and (1) of the Act by
executing a collective-bargaining agreement with the ATC
on February 19, 1975, and maintaining it on and after
March 1 , 1975, when as of February 19, 1975, the ATC did
531 note , however, Precision Carpet, Inc. 's representations in late May
1975 that "upon receipt of business by [itj, Neville and Lane will be able to
bid on same as subcontractors."
5t Respondent's brief alludes to testimony by Neville that after January 1.
1975, unacceptable jobs were brought to his attention by Lawrence West.
This testimony does not render Neville 's termination lawful , because there
is no evidence that it was motivated by the quality of his work . W. T. Grant
Company, 210 NLRB 622, 624 (1974); Wonder State Manufacturing Co. v.
N.LR.B., 331 F.2d 737, 738 (C.A. 6, 1964). Indeed , after Neville was dis-
charged , Lawrence West described him as a "good man " and a "good in-
staller."
55 Howard Creations, Inc., 212 NLRB 179, 181 (1974 ), and cases cited.
not represent an uncoerced majority of the unit employees.
Particularly in view of Lawrence West's November 1974
predetermination to deal with ATC,56 the pressure unlaw-
fully exerted on the employees to sign up for the ATC
tainted the ATC's purported authorizations and rendered
all of them ineffective . Florida Automatic Sprinkler Con-
tractors Association, 199 NLRB 1151 , 1158 (1972). Such
recognition would be unprotected by Section 8(f), for it
was preceded by La-Ron Corporation's unlawful threats to
Neville and Lane that they would be discharged if they did
not join ATC, by their unlawful discharge for this reason,
and by La-Ron Corporation 's unlawful solicitation for the
ATC. 7
In any event , La-Ron Corporation 's execution and
maintenance of a contract with the ATC were unlawful
under the principles generated by Midwest Piping & Supply
Co., Inc., 63 NLRB 1060, 1069-71 ( 1945). The Carpet Lay-
ers current contract with La-Ron Corporation's predeces-
sor afforded that organization a presumption of continued
majority.58 Moreover , all of the employees in the ATC con-
tract unit had been in the unit represented by the Carpet
Layers while La-Ron Corporation 's predecessor had been
running the business ; on the very day preceding the Febru-
ary 1975 execution of the ATC contract, two members of
the Carpet Layers (comprising half the contract unit) had
been discharged for refusing to join the ATC; and in Janu-
ary 1975 a representative of the Carpet Layers had twice
called Lawrence West to find out whether he intended to
abide by the Carpet Layers contract with La-Ron
Corporation's predecessor . These considerations establish
that when La-Ron Corporation contracted with the ATC,
the Carpet Layers was actively pressing a supportable
claim to representation rights . Accordingly , and assuming
arguendo that the ATC too was actively pressing a support-
able claim, La-Ron Corporation was obligated to afford
both of them substantially equal treatment , and violated
Section 8(a)(2) and ( 1) by contracting with the ATC and
thereby giving it "a marked advantage over [the Carpet
Layers] in securing the adherence of employees" (Airmatics
Systems Division of the Mosler Safe Co., 209 NLRB 71, 77
(1973) ). McKees Rock Foodland, 216 NLRB 968; Riviera
Manor Nursing Home, Inc., 220 NLRB No. 23 (1975);
Downtown Bakery Corp., 139 NLRB 1352, 1368 (1962),
enfd. in this respect 330 F.2d 921 , 927-928 (C.A. 6, 1964);
N.L.R.B. v. Western Commercial Transport, Inc., 487 F.2d
332 (C.A. 5, 1973). Thus to contract with the ATC in the
face of the Carpet Layers claim was unlawful whether or
not La-Ron Corporation was engaged in the construction
56 Carlton Paper Corp., 173 NLRB 153 , 163 (1968).
57 Bear Creek Construction Co., 135 NLRB 1285 (1962 ); Schurr & Finlay,
Inc., 149 NLRB 272, 273, In. I, 276-277 (1964); Disney Roofing & Material
Co., 145 NLRB 88.96-97 (1963); N. L. R. B. v. Sturgeon Electric Co., Inc., 419
F.2d 51 , 55-56 (C.A. 10, 1969).
58 Makela Welding, Inc. v . N. L_ R. B., 387 F .2d 40, 45-46 (C.A. 6, 1967);
Valleydale Packers, Inc., of Bristol, 162 NLRB 1486,1490--91 , enfd . 402 F.2d
768 (C .A. 5, 1968 ), cert. denied 396 U.S. 825 (1969). Because the 1973 con-
tract was the predecessor's second contract with the Carpet Layers and was
honored by the parties thereto , and because employees represented by the
Carpet Layers were continuously on the predecessor 's payroll , the presump-
tion of majority existed assuming that the predecessor was a construction
industry employer within the meaning of Section 8(f). See Peter Kiewit Sons'
Co., 206 NLRB 562, 568-569 (1975 ), remanded 518 F.2d 1040 C.A.D.C.,
1975).
PRECISION CARPET, INC. 341
industry. Couch Electric Co., 143 NLRB 662, 669 (1963);
Barney Wilkerson Construction Co., 145 NLRB 704, 705-
706 (1963) 59
However, I do not agree with the General Counsel that
La-Ron Corporation's execution of the ATC contract was
rendered unlawful by the Carpet Layers' 1973-76 bargain-
ing agreement . The General Counsel's brief seems to con-
cede that this contention is meritorious only if the Carpet
Layers contract bound La-Ron Corporation and, there-
fore, would have barred an ATC petition 60 Although La-
Ron Corporation is the successor to the employer party to
that contract, La-Ron does not occupy alter ego or single-
employer status with respect to such predecessor employer.
Accordingly, that contract does not bind La-Ron Corpora-
tion (see court cases cited supra fn. 47), and would not bar
a rival petition 61
CONCLUSIONS OF LAW
1. La-Ron Corporation is an employer which is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act, and whose operations meet the Board's jurisdic-
tional standards.
2. Precision Carpet, Inc., occupies alter ego status with
respect to Precision Carpet Installation.
3. The entity described in Conclusion of Law 2 was en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act and engaged in operations which met the
Board's jurisdictional standards, prior to mid-January
1975.
4. La-Ron Corporation does not occupy single-employ-
er to alter ego status with respect to the entity described in
Conclusion of Law 2.
5. The entity described in Conclusion of Law 2 has not
been engaged in commerce within the meaning of Section
2(6) and (7) of the Act since mid-January 1975.
6. The entity described in Conclusion of Law 2 has not
engaged in any unfair labor practices.
7. Associated Trades and Crafts, Local No. 3, and Car-
pet and Linoleum Layers Local Union No. 484, Interna-
tional Brotherhood of Carpenters and Joiners of America,
AFL-CIO, are labor organizations within the meaning of
Section 2(5) of the Act.
8. At all material times herein, George Neville and Ar-
thur Andrew Lane have been employees within the mean-
ing of Section 2(3) of the Act.
9. La-Ron Corporation violated Section 8(a)(1) of the
59 In view of my findings in this paragraph , I find it unnecessary to de-
termine whether the fact that half the unit employees did not want the ATC
rendered its recognition unlawful. Apart from 8(f) considerations , this lack
of majority status would in itself establish an unfair labor practice in the
execution of the contract . International Ladies' Garment Workers' Union
AFL-CIO [Bernhard-Altmann Texas Corp.] v. N.L.R.B., 366 U.S. 731
(1961). Cf. Edwards & Webb Construction Co., 207 NLRB 614, 619, In. 22
(1973).
60 See Jackson Sportswear Corporation, 211 NLRB 891, 906, fn. 3 (1974).
But see Michaud Bus Lines, Inc., 171 NLRB 193 (1968).
61 Southern Moldings, Inc., 219 NLRB No. 25 (1975); Trans-American
Video, Inc., 198 NLRB 1247 (1972). Accordingly, I need not and do not
decide whether a possibly unlawful 8 -day grace period in the Carpet Layers
contract would in effect privilege the execution of the ATC contract, which
contained a like union-security provision.
Act by telling Neville and Lane that they would be dis-
charged unless they joined the ATC.
10. La-Ron Corporation violated Section 8(a)(3) and (1)
of the Act by discharging Neville and Lane because they
would not join the ATC.
11. La-Ron Corporation violated Section 8(a)(2) and (1)
of the Act by urging and soliciting employees to sign ATC
authorization cards or join the ATC, and by executing and
maintaining a contract with the ATC.
12. The unfair labor practices set forth in Conclusions
of Law 9 through 11 affect commerce within the meaning
of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that La-Ron Corporation has violated the
Act in certain respects, I shall recommend that it be re-
quired to cease and desist therefrom. Because La-Ron
Corporation's unfair labor practices include the discrimi-
natory discharge of two members of the Carpet Layers for
refusing to join the ATC, an unfair labor practice which
"goes to the very heart of the Act" (N.L.R.B. v. United
Mineral & Chemical Corp., 391 F.2d 829, 837-838 (C.A. 2,
1968)) and unlawful assistance to and recognition of the
ATC for the purpose of ridding the shop of the Carpet
Layers, La-Ron Corporation's unlawful conduct leads me
to anticipate that unless restrained, La-Ron Corporation
will engage in "continuing and varying efforts to attain the
same end in the future" (N.L.R.B. v. Express Publishing
Co., 312 U.S. 426, 437-439 (1941) ). Accordingly, I shall
recommend that La-Ron Corporation be required to cease
and desist from infringing on employee rights in any other
manner. Pan American Exterminating Co., Inc., 206 NLRB
298 (1973); N.L.R.B. v. Southern Transport, Inc., 343 F.2d
558, 560-561 (C.A. 8, 1965).
I shall also recommend that La-Ron Corporation be re-
quired to offer Neville and Lane immediate reinstatement
to the jobs of which they were unlawfully deprived, or, in
the event such jobs no longer exist, to substantially equiva-
lent jobs, and make them whole for any loss of earnings by
reason of the d'is'crimination against them, by payment to
each of them of a sum of money equal to that which he
would have earned, but for the discrimination against him,
from February 18, 1975, to the date of a valid offer of
reinstatement, less his net earnings during this period, to be
computed in the manner described in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as described in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
In addition, I shall recommend that La-Ron Corpora-
tion be required to withdraw and withhold all recognition
from the ATC, which was unlawfully recognized, and to
cease giving effect to the 1975 agreement, which was un-
lawfully executed, or to any renewal, modification, or ex-
tension thereof, until such time as the ATC shall have been
certified by the Board as the. exclusive representative of the
employees in question. Further, because on February 17,
19, and 28, 1975, La-Ron Corporation unlawfully solicited
employees to join the ATC, and because the contract en-
tered into on February 19, 1975 (effective March 1, 1975),
was unlawfully entered into with an assisted Union and
contained union-shop and checkoff clauses, I shall recom-
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mend that La-Ron Corporation be required to reimburse
all employees who joined the ATC on or after February 17,
1975, for all initiation fees, dues , and other moneys paid by
them to the ATC, or checked off from their pay, with inter-
est as described in Isis Plumbing, supra. It is true that ATC
representative Beam testified at the hearing that members
of other Unions were free to work in ATC shops without
joining the ATC. However, there is no credible evidence
that La-Ron Corporation employees were ever told this,62
nor is there evidence that this policy applied to employees
who were members of no Union whatever. Moreover, La-
Ron Corporation , which is the only Respondent against
which the order is directed , specifically and repeatedly told
two members of the Carpet Layers that they had to join the
ATC to work for La-Ron Corporation. Furthermore, the
employees would likely conclude from the union -security
clause alone that it meant what it said, and that if they did
not join the ATC they would lose their jobs.
Also, I shall recommend that La-Ron Corporation be
required to post appropriate notices.
The General Counsel's posthearing "Motion to Conform
the Pleadings to the Proof' requests that the name of Re-
spondent "La-Ron Corporation d/b/a Precision Carpet,
Inc." be amended to read "La-Ron Corporation d/b/a
Precision Carpet Installation ." The General Counsel alleg-
es in support of this motion, and Respondents deny in op-
posing it, thus regarding this issue as determinative of the
motion's validity, the General Counsel seems to be assum-
ing that an order would otherwise issue against an entity
consisting of Precision Carpet, Inc. and La -Ron Corpora-
tion, and these corporations seem to be attempting to ex-
clude Precision Carpet Installation from the coverage of
any such order. If I am correct in thus viewing the real
issue between the parties , my dismissal of the complaint as
to Precision Carpet, Inc., which I have found to be the
same entity as Precision Carpet Installation , in effect
moots the General Counsel 's motion.
Absent the motion , the order herein might perhaps issue
against "La-Ron Corporation d/b/a Precision Carpet,
Inc.," the style used in the General Counsel's pleadings.
The General Counsel's motion may constitute an effort to
cause the issuance , instead, of an order against "La-Ron
Corporation d/b/a Precision Carpet Installation." I regard
any such proposed change as inappropriate . While it is true
that La-Ron Corporation has to a substantial extent held
himself out as "Precision Carpet Installation," La-Ron
Corporation has also to some extent held itself out as "Pre-
cision Carpet, Inc." Manifestly, La-Ron Corporation
should not be permitted by merely changing its trade name
to relieve itself from the obligations imposed by the order.
However, to make the proposed change in the General
Counsel's pleadings might suggest that action taken by La-
Ron Corporation under the trade name "Precision Carpet,
Inc." would not be covered by the order . In view of these
considerations , I shall deny the General Counsel's motion
to issue the order against La-Ron Corporation , the style
used in Respondent's pleadings. This order will bind La-
Ron Corporation regardless of any trade name which it
may choose to employ.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 63
Respondent La-Ron Corporation, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Encouraging membership in Associated Trades and
Crafts, Local No. 3, by discharging employees, or other-
wise discriminating in any manner in respect to their hire
and tenure of employment or any term or condition of
employment.
(b) Threatening to discharge employees if they refuse to
join Associated Trades and Crafts, Local No. 3.
(c) Assisting or contributing support to the Associated
Trades and Crafts, Local No. 3, by soliciting employees to
join or sign authorization cards for that organization; by
entering into a collective-bargaining agreement with that
organization where it does not represent an uncoerced ma-
jority of the unit employees and has been maintained or
assisted by an unfair labor practice under Section 8(a), or
where another labor organization is actively pressing a sup-
portable claim to representation rights; or by maintaining
such an agreement.
(d) Giving effect to or enforcing the collective-bargain-
ing agreement executed with Associated Trades and Crafts,
Local No. 3, on February 19, 1975, or to any modification,
extension, renewal , or supplement thereof , unless and until
that organization has been certified by the National Labor
Relations Board as the exclusive bargaining representative
of such employees; provided, however, that nothing herein
shall require La-Ron Corporation to vary or abandon any
existing term or condition of employment.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Withdraw and withhold all recognition from the As-
sociated Trades and Crafts, Local No. 3, as a representa-
tive of its employees for the purpose of collective bargain-
ing, unless and until said labor organization has been duly
certified by the National Labor Relations Board as the ex-
clusive representative of such employees.
(b) Reimburse all present and former employees for all
initiation fees, dues, and other moneys, if any, paid by or
withheld from them in the manner provided in "The Rem-
edy" section of this Decision.
(c) Offer George Neville and Arthur Andrew Lane im-
63 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 findings,
63 See supra. In. 28. On the basis of the witnesses ' demeanor, I credit conclusions, recommendations and recommended Order herein shall, as
Beam 's testimony that he never spoke about this "split shop" policy with provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Lawrence West, and discredit the latter's testimony that Beam told him the Board and become its findings, conclusions, and Order, and all objections
ATC did not care if West worked a split shop. thereto shall be deemed waived for all purposes.
PRECISION CARPET, INC. 343
mediate reinstatement to their former jobs or, if their for-
mer jobs no longer exist , to substantially equivalent jobs,
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 entitled
"The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports , and all other records neces-
sary or useful to an analysis of the amount of backpay due
under the terms of this Order.
(e) Post at its place of business in Akron, Ohio, copies of
the attached notice marked "Appendix." 64 Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by La-Ron Corporation's
representatives, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it in conspicuous
places , including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by La-
Ron Corporation to insure that the said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what steps
La-Ron Corporation has taken to comply herewith.
The complaints against Precision Carpet, Inc., are dis-
missed.
64 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the chance to
present their evidence , it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the order of the Board and abide by the
following:
WE WILL NOT discharge or otherwise discriminate
against any employee to encourage membership in As-
sociated Trades and Crafts, Local No. 3.
WE WILL NOT threaten to discharge employees if they
refuse to join the ATC.
WE WILL NOT assist or contribute support to the ATC
by soliciting employees to join or sign authorization
cards for the ATC, or by contracting with the ATC
where it does not represent an uncoerced majority of
employees and has been maintained or assisted by an
employer labor practice, or where another union is ac-
tively pressing a supportable claim to representation
rights.
WE WILL NOT give effect to our agreement (effective
March 1, 1975) with the ATC, or to any renewal, ex-
tension, modification, or supplement thereof, unless
and until the ATC has been certified by the National
Labor Relations Board, but we are not required to
vary or abandon any existing term or condition of em-
ployment.
WE WILL offer George Neville and Arthur Andrew
Lane immediate reinstatement to their old jobs or, if
these jobs no longer exist, to substantially equivalent
jobs, and make them whole, with interest, for loss of
pay resulting from their discharge.
WE WILL withdraw and withhold all recognition
from the ATC as the collective-bargaining representa-
tive of our employees unless and until it has been cer-
tified by the National Labor Relations Board.
WE WILL reimburse all present and former employ-
ees who joined the ATC on or after February 17, 1975,
for any initiation fees, dues, or other moneys paid or
checked off to the ATC.
The National Labor Relations Act gives employees the
following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purpose of
collective bargaining or other mutual aid or protec-
tion and
To refrain from any such activities.
Our employees are free to exercise any or all these rights.
Our employees are also free to refrain from any or all such
activities, including membership in the ATC, except to the
extent that union membership may be required by a collec-
tive-bargaining agreement as a condition of employment in
accordance with the appropriate provisions of the Act.
WE WILL NOT in any manner interfere with, restrain,
or coerce employees in the exercise of these rights.
LA-RON CORPORATION