Rushton & Mercier Woodworking Co., Inc.,

National Labor Relations Board - Board Decisions

Apr 25, 1973

203 N.L.R.B. 123 (N.L.R.B. 1973)

RUSHTON & MERCIER WOODWORKING CO.
Rushton & Mercier Woodworking Co., Inc ., and Rand
& Co., Inc . and Local 51, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO and
International Union of District 50, Allied and Tech-
nical Workers of the United States and Canada, and
its Local Union 13974 , Parties to the Contract. Case
1-CA-7889
April 25, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On August 25, 1972, Administrative Law Judge '
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, Respondents filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs2
and has decided to affirm the rulings findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
The Administrative Law Judge finds that Respon-
dents violated Section 8(a)(1), (2), (3), and (5) of the
Act. Respondents except to these findings. For the
reasons stated herein, we agree that Respondents did
violate Section 8(a)(1), (2), (3), and (5) by certain of
their conduct in September 1971. However, as more
fully discussed hereinafter, we do not adopt the Ad-
ministrative Law Judge's finding that Respondent
Rand acted unlawfully in shutting down its operation
in April 1971 and in subcontracting work without
consulting the Charging Party during the period from
May through August 1971.
The facts are set forth in the Administrative Law
Judge's Decision. In brief summary they are as fol-
lows:
As of April 1971, Rand was actively engaged in the
manufacture of store fixtures. Its carpenters 3 were
represented by Local 51, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO. On April
30, 1971, Rand shut down for lack of work and laid
off all the unit employees 4 and almost all nonunit
' The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Respondents ' motion for oral argument is hereby denied as the record,
the exceptions, and the briefs adequately present the issues and the positions
of the parties.
a The greater part of its work force.
4 One unit employee was transferred to another of the Rand companies,
123
employees. Approximately 4 months later, store fix-
ture production operations were resumed at the Rand
Boston facility, this time by a wholly owned subsid-
iary of Rand formed for that purpose, Rushton &
Mercier of Massachusetts. This company was capital-
ized with assets previously used by Rand & Co. In its
production operations which had been shut down in
April. The name chosen for the new corporation was
purchased from a Rand subcontractor, Rushton &
Mercier of New Hampshire. Rand & Co. employees
were not recalled from layoff to staff the resumed
operation. Instead, Rushton & Mercier of Massachu-
setts initially obtained its employee complement by
hiring the employees of the subcontractor whose
name it was using . Rushton & Mercier of Massachu-
setts also recognized the collective-bargaining repre-
sentative of the subcontractor's employees as the
collective-bargaining representative of its employees
and assumed, as a "successor," the subcontractor's
obligations under its collective-bargaining agreement.
When a Local 51 business representative, upon dis-
covering that production had resumed at the Rand &
Co. plant, telephoned Rand's attorney, Wasserman,
he was told that Rand & Co. had not resumed opera-
tions . Thus, although Rand apparently may still have
been recognizing Local 51 as the exclusive bargaining
representative for the laid-off Rand & Co. carpenters,
as of September 1971 that was a largely academic
right with the facility where Rand production was
formerly carried on now being used by a wholly
owned subsidiary of Rand whose employees were
now represented by District 50.
The General Counsel contends that Rushton &
Mercier of Massachusetts is nothing more than a dis-
guised continuance of Rand which exists for the pur-
pose of permitting Rand to substitute a less expensive
union for the collective-bargaining representative of
the Rand employees, Local 51 s Moreover, General
Counsel contends that the entire congeries of facts
herein, resulting not in a change of ownership of busi-
ness , but, rather, in a change in union, amply demon-
strate the underlying motivation of Respondent to get
rid of Local 51.6
Respondents contend that their actions were dictat-
ed by a chain of events related to the economic situ-
ation and other economic factors which were in no
way contrived by Respondents.
The General Counsel contends that Rushton &
Mercier and Rand are a single integrated enterprise
and that Rushton & Mercier is a continuation and
alter ego of Rand. We agree. The record reveals that
the Respondents have interlocking directors and
Rand Industries.
S Officials of Respondent Rand had complained that Rand was not able
toray the Local 51 contract rates and still remain competitive.
Citing N L.R.B v Great Dane Trailers, Inc, 388 U.S. 26 (1967).
203 NLRB No. 17
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
management,' interlocking officials,8 and the same
ownership? As noted above, Rushton & Mercier of
Massachusetts is using the same plant and equipment
previously used by Rand. Most, if not all, of the or-
ders produced by Rushton & Mercier of Massachu-
setts are obtained by Rand salesmen using the Rand
name.10 Morris Rand exercises control over both com-
panies. Respondents contend, however, that the na-
ture of the business operated by Rand was different
than that operated by Rushton & Mercier of Massa-
chusetts in that Rand was engaged exclusively (in its
shop) in the manufacture on a volume basis for large
discount chains, principally for the Zayre chain, and
that Rushton & Mercier of Massachusetts is engaged
in the manufacture of customized orders. It is unques-
tionably true that to some extent the manufacturing
operations of the two Respondents are different be-
cause Rand has been unable to obtain large volume
orders and has therefore been forced to rely on cus-
tom orders. However, these differences are no more
than the adjustments that are frequently required by
manufacturers as the nature of their sales change. The
custom orders were produced in the same plant using
the same equipment as was used to produce the high
volume orders." The Rand employees who worked on
the high volume orders possessed the necessary skills
to produce the custom orders.12 The end product is
basically the same. Under these circumstances, the
differences between the high volume production and
the customized order production are not sufficiently
great to warrant our finding that Rushton & Mercier
of Massachusetts is a separate entity in the face of the
strong evidence to the contrary discussed above.
Respondent Rushton & Mercier hired a completely
new work force for the reopening of the plant in Bos-
ton, failing to recall any of the laid-off employees
represented by Local 51. It then recognized District
50 as the collective-bargaining representative, stating
that District 50 had represented these employees
when they worked for another employer. While it did
7 John Burke was production manager of Respondent Rand and is director
and general manager of Respondent Rushton & Mercier of Massachusetts.
B The officers of Respondent Rand are Morris Rand , president and treas-
urer; Robert C. Paiva , vice president ; Burton Peitz, clerk ; and the directors
are Morris Rand , Eunice V. Rand, and Arthur T. Wasserman . The officers
of Respondent Rushton & Mercier of Massachusetts are Morris Rand , presi-
dent and treasurer ; Burton Peitz , clerk ; and the directors are Morris Rand,
Frank Fiorella , and John Burke.
9 Respondent Rushton & Mercier is wholly owned by Rand & Co. Respon-
dent Rand & Co. is wholly owned by Eunice Rand , the wife of its president,
Moms Rand.
10 The testimony is very vague as to when , if ever, sales are solicited using
the name of Rushton & Mercier . At the hearing, the sales manager , Fiorella,
testified that he presently only has business cards with the Rand name and
the name of Brankowitz , a wholly owned subsidiary of Rand in New Jersey
"Respondent Rushton & Mercier does not use one machine called a
double-end tenoner because it is only suitable for mass production.
12 In fact, Respondents contend that for the most part it takes less carpen-
try skill , not more , to do the custom work.
subsequently hire some of the Rand employees, it did
so only on the basis that they were new hires coming
into a plant where District 50 was recognized as the
collective-bargaining representative. In agreement
with the Administrative Law Judge, we find that such
conduct violated Section 8(a)(3) in that it discriminat-
ed against Rand & Co. employees represented by Lo-
cal 51. We also agree that specific proof of an intent
to discourage membership in Local 51 is unnecessary
as Respondent's conduct inherently discouraged such
union membership.
The key question is whether an employer, when
resuming operations after an economic layoff, may
hire a whole new work force represented by one union
to the exclusion of his laid-off employees who are
represented by a different union. In other words, can
he, by hiring a new work force instead of recalling
laid-off employees, rid himself of the union that repre-
sents these employees with a resulting effect of substi-
tuting a new union for the one which previously
represented his employees. The Supreme Court in N.
L.R.B. v. Great Dane Trailers, 388 U.S. 26, 33, stated:
Some conduct ... is so `inherently destructive of
employee interests' that it may be deemed pro-
scribed without need for proof of an underlying
improper motive. [citing N.L.R.B. v. Brown 380
U.S. 278 at 287; American Ship Building Co. v.
Labor Board 380 U.S. 300 at 311.1 That is, some
conduct carries with it unavoidable conse-
quences which the employer not only foresaw but
which he must have intended and this bears `its
own indicia of intent.' [citing N.L.R.B. v. Erie
Resistor Corp., 373 U.S. 221 at 228, 231.1 If the
conduct in question falls within this `inherently
destructive' category, the employer has the bur-
den of explaining away, justifying or characteriz-
ing `his actions as something different than they
appear on their face,' and if he fails, `an unfair
labor practice charge is made out.' Id. at 228.
And even if the employer does come forward
with counter explanations for his conduct in this
situation, the Board may nevertheless draw an
inference of improper motive from the conduct
itself and exercise its duty to strike the proper
balance between the asserted business justifica-
tions and the invasion of employee rights in light
of the Act and its policy. Id., at 229.
It is obvious that Respondents' actions here were "in-
herently destructive of employee interests" in that the
natural effect of Respondents' failure to recall any of
the employees represented by Local 51 when they
resumed operation was to discourage membership in
a union. Thus, such conduct is violative of Section
8(a)(3) unless Respondents can establish that they had
adequate business justification for their actions.
RUSHTON & MERCIER WOODWORKING CO
Respondents seek to justify the result arrived at
here as that which naturally resulted from a series of
events over which they had no control. As part of their
explanation, Respondents present a number of rea-
sons why they could not continue to subcontract to
Rushton & Mercier of New Hampshire and thus why
it became necessary to again use the Rand Boston
facility. That, of course, is not the issue here . Rather
the question is did Respondents have adequate justifi-
cation for hiring new employees rather than recalling
laid-off employees when they did resume operations.
The only apparent business justification they had for
hiring the nine Rushton & Mercier of New Hampshire
employees is the fact that they were doing Rand work
for that Rand subcontractor." In our view that justifi-
cation is inadequate to meet their burden where, as
here, Respondents failed to recall employees who
were capable of doing the work and had previously
worked at the plant on the very machines which were
now being put back into operation.
Respondents also contend that Rushton & Mercier
of Massachusetts is a successor to Rushton & Mercier
of New Hampshire, relying on the fact that the work
was the same as the work done by Rushton & Mercier
of New Hampshire and the initial work force was the
same . The difficulty with this contention is that (1) the
work being done was Rand work which had been
subcontracted and was work which Rand carpenters
were entitled to when it was performed by Rand and
(2) the basic issue to be determined is whether Re-
spondents properly hired the work force of Rushton
& Mercier of New Hampshire rather than recalling
the Rand & Co. employees. Respondents cannot un-
lawfully fail to rehire Rand's laid-off employees and
then claim that they are successor to another compa-
ny because they hired that company's employees.
The Administrative Law Judge finds that the re-
placement of Local 51 was, in fact, part of a scheme
carried out by Respondents to get rid of an expensive
union and to substitute one which was less expensive.
While, as indicated above, we would find that Re-
spondents had violated Section 8(a)(3) even if the evi-
dence did not establish such an overall scheme, we
agree with the Administrative Law Judge that the
evidence establishes that there was, in fact, such a
scheme.
Respondents have engaged in several transactions
here and there is at least one unexplained coincidence
present which, when considered in combination with
13 Respondents contend that Rushton himself and the working foreman,
Maurice Marquis, of Rushton & Mercier of New Hampshire had special
skills In our opinion , Respondents ' desire to obtain the services of two
individuals with special skills as plant manager and working foreman does
not justify the hiring of all the Rushton & Mercier of New Hampshire
employees
125
those transactions, in our view, establishes that Re-
spondents were attempting to bring about a situation
which would enable them to get rid of Local 51.
The first transaction was the buying of the name
and goodwill of Rushton & Mercier of New Hamp-
shire. The explanation offered that Respondents
wanted to subcontract to Rushton & Mercier of New
Hampshire without fear that that company would
steal customers seems unlikely. Rand & Co. was rep-
resented in that transaction by very competent coun-
sel, Wasserman, who undoubtedly knew that the
purchase of the name and goodwill did little, if
anything, to prevent such stealing of customers and
that much better protection could be achieved by sim-
ply contracting with the subcontractor against his en-
gaging in such conduct." Also, Respondents state that
Rand hoped to acquire the services of Rushton by this
route. However, there is nothing to indicate that
Rushton's services could not be acquired in some oth-
er way. On the other hand, the purchase of this name
provided an ostensible support for Respondents'
claim that another company had replaced Rand at the
Rand facility. Next came the highly suspect coin-
cidence of a Distnct 50 representative showing up to
organize the Rushton & Mercier of New Hampshire
employees the Monday after the Friday that the sale
of the name and goodwill was completed." Next was
Rushton's consultation with Rand officials prior to
recognizing Distnct 50 and the use of a Rand official,
Burke, to negotiate the collective-bargaining agree-
ment.16 An unusual aspect of the negotiations them-
selves was Burke's insistence on a clause in the
contract providing that the contract was to be effec-
tive at Salem, New Hampshire, "or any subsequent or
new location of this plant." In our experience, it is not
unusual for unions to insist on such a clause, but it is
extremely unusual for employers to do so and suggests
that Rand was creating a basis for asserting that the
contract was to be effective elsewhere. The remaining
event which suggests a conscious purpose to get rid of
Local 51 was the one discussed above, the reopening
of the Rand plant without recalling the Rand employ-
ees. When considered individually, there may be some
weak but plausible explanation for all but the last of
these transactions. However, these events, when con-
sidered in combination against the background of
Rand's stated concern that its labor costs were the
source of its difficulties, present a clear picture of an
14 We note also that there was very little, if any, use of the name and
goodwill of Rushton & Mercier to obtain business Unlike the case of Bran-
kowitz, which Rand also acquired , there is no evidence that Rushton &
Mercier had any customers whom Rand hoped to obtain by such a move
15 We note that Burke testified that Respondents had some difficulty in
selling to some companies unless the furniture was union stamped
16 Burke testified he did so because Respondents' deals with Rushton &
Mercier were on a cost-plus basis and therefore the cost of the contract bore
on the cost of the product
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer who is maneuvering into a position where it
can reopen its manufacturing operations with a less
expensive union representing its employees. In our
view, such evidence is sufficient to establish that Re-
spondents violated Section 8(a)(1) and (3) by replac-
ing the laid-off employees with others in order to get
rid of their collective-bargaining representative."
However, while Respondents took a number of
steps pursuant to this scheme, we do not agree that
Respondents actually committed any violations prior
to September 1971. In particular, since it is clear from
the record that Respondent Rand & Co. would have
shut down in any event in April 1971, we find that the
shutdown was not in violation of the Act, even though
Respondents subsequently used that shutdown as
part of their efforts to eliminate Local 51 as the collec-
tive-bargaining representative. Similarly, as to Re-
spondent Rand & Co.'s subcontracting of work
during the May through August period, the record is
clear that Rand had in the past always subcontracted
between five and ten percent of its work without con-
sulting with Local 51 and that the work involved was
not sufficient to warrant reopening the plant. There-
fore, we find that its failure to consult Local 51 as to
this subcontracting did not violate the Act. Accord-
ingly, we find no violation as to these events, even
though Respondents subsequently took advantage of
this subcontracting in their efforts to eliminate Local
51 and may have directed the work to Rushton &
Mercier of New Hampshire to better enable them to
do just that.l8
Of course, a finding of a violation of Section 8(a)(2)
in Respondents' recognition of District 50 follows as
a matter of course from our finding that Respondents
17 if any further indications of such a plan are required , we need only look
at the credited testimony of employee Richard Infantino that Burke told him
in somewhat vague language in April that Rand was interested in moving a
New Hampshire company to Boston because Rand was interested in getting
a union at a lower rate of pay (Respondents contend that this credibility
resolution should be overruled as the Administrative Law Judge also credited
Burke 's testimony that he had not heard of Rushton & Mercier prior to June.
However , the reference to the New Hampshire company is not necessarily
a reference to Rushton & Mercier. Moreover, Burke was new with Rand at
the time and would in all likelihood only be repeating what he had been told
by other Rand officials. These officials were aware of Rushton & Mercier
having, according to Fiorella , previously subcontracted work to them Thus,
it is not inconsistent for Burke to have known of such a plan in general terms
while not knowing the particular company Accordingly , we find insufficient
basis for overruling the Administrative Law Judge 's credibility resolution.)
We note also that according to Infantino 's credited testimony Burke stated
that Morns Rand was releasing Infantino because he was afraid that having
a Local 51 member working there might force Rand to sign a new local 51
contract , indicating a Rand desire to get rid of Local 51
is Also, we do not find that the decision to purchase the name and goodwill
of Rushton & Mercier of New Hampshire was in violation of the Act in and
of itself We do not find that steps taken by Rushton & Mercier of New
Hampshire to recognize District 50 or the part Respondent Rand & Co.
played in those efforts constitute a violation of the Act, as Rushton & Mercier
of New Hampshire was not a party to this proceeding . Finally, we do not find
that Respondent 's acts of incorporating Rushton & Mercier of Massachu-
setts constitute a violation of the Act in and of themselves
discriminatorily refused to recall employees repre-
sented by Local 51 and hired instead employees repre-
sented by District 50. Similarly, a violation of Section
8(a)(5) follows from Respondents' refusal to bargain
with Local 51 after having recognized District 50. Re-
spondents took the position, when asked by Local 51
about the plant reopening, that Respondent Rand
had not reopened. Thus, any additional bargaining
request by Local 51 would have been futile. Accord-
ingly we shall affirm the Administrative Law Judge's
finding that Respondents violated Section 8(a)(2) and
8(a)(5).19
2. Remaining for consideration are two matters of
remedy: (a) The Administrative Law Judge's ordering
reinstatement of nonunit employees and (b) the Ad-
ministrative Law Judge's leaving to the compliance
stage the matter of the adequacy of the letters sent by
Respondents to the laid-off Rand employees in Octo-
ber and November 1971 and March 1972 to toll back-
pay liability.
The Administrative Law Judge finds that nonunit
employees should be ordered reinstated. We do not
agree. These employees were not alleged as discrim-
inatees and, therefore, it would be a violation of due
process to now find that they were discharged in vio-
lation of the Act and therefore entitled to rein-
statement. Moreover, there is not sufficient evidence
in the record to warrant a finding that they were in
fact discriminated against when Respondents re-
sumed operations in September 1971.
As to the letters, Respondents sent all of the laid-off
Rand employees letters offering them employment.
Some of the letters were dated October 26, 1971; oth-
ers November 26, 1971; and the remainder March 17,
1972. The letters read as follows:
Dear
The undersigned company hereby offers you em-
ployment in the manufacturing operations at its
plant located at 300 C Street, South Boston, the
location of the plant formerly operated by Rand
& Company, Inc.
This offer of employment includes all of the
rights and privileges, if any, to which you might
be legally entitled by virtue of your former em-
ployment, at said location, with Rand &
Company Inc.
If you are interested in our offer of employment
please report to the undersigned in person at the
19 We reject Respondents' contention that bargaining with Local 51 would
have been futile . In the past , bargaining with Local 51 had always produced
agreement . Moreover, it was Respondents ' unfair labor practices here which
make it impossible to know whether bargaining with Local 51 would have
produced agreement
RUSHTON & MERCIER WOODWORKING CO.
above address as soon as possible.
If we have not heard from you by 3 working days
after receipt of this letter, we will assume you are
not interested in this offer of employment with
the undersigned company.
Very truly yours,
RUSHTON & MERCIER WOODWORKING,
INC.
Thomas Rushton
Plant Manager
Although the letter is signed by Rushton, Burke
talked to all employees who came in after receiving
the letter and testified that he told them the following:
Number one, we told these people that there was
a union present who had a union scale and that
they would be interviewed. And, based on their
ability to convince the supervisor, Rushton, of
their skills, he would offer them a job somewhere
on that scale or whatever he thought they qual-
ified. And they could ultimately move up as they
proved themselves. Secondly, as to the sentence
in here (the letter) involving rights and privileges,
we understand that there was a suit pending by
their union versus Rand and Co. and Rushton
and Mercier and Co. and that should anything
result from that suit causing them to be paid at
the higher rate they would get this higher rate of
pay retroactively to whenever they came to work.
Discnminatees are entitled to reinstatement to their
former positions or, if these jobs no longer exist, sub-
stantially equivalent positions. Here Respondents
were simply offering the laid-off employees jobs as
new hires, something clearly less than they were enti-
tled to receive. The notation that they might receive
the wages they were entitled to at some time in the
future is not sufficient to turn this otherwise invalid
offer into a valid offer. An employer charged with
unfair labor practices may, of course, toll backpay by
offering to reinstate employees to their former posi-
tions or, if the positions are no longer available, to
equivalent positions. However, he cannot do so by
offering them lesser positions even if he , at the same
time, assures them that they will receive in addition
whatever they will be awarded as a result of litigation.
Such a result would shift the risk of an employer's
unfair labor practices to the wronged innocent par-
ties, the discriminatees. Accordingly, we find that
Respondent's letters to the Rand employees were in-
effective to toll backpay liability.
ORDER
127
Pursuant to Section 10(c) of the National Labor
Relations Act , as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge , as modified
below, and hereby orders that Respondents Rushton
& Mercier Woodworking Co., Inc., and Rand & Co.,
Inc. both of Boston , Massachusetts , their officers,
agents , successors , and assigns , shall take the action
set forth in the said recommended Order , as so mod-
ified.
1. Substitute the following for paragraph 1(c):
"(c) Refusing to recall laid-off employees and hir-
ing other employees in order to get rid of an incum-
bent labor organization and replace it with another,
thereby discouraging membership in Local 51, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO."
2. Delete paragraph 1(d) and reletter the remaining
paragraphs accordingly.
3. Insert in paragraph 2(d), (e), (f), and (g) the
words "represented by Local 51, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO"
after the words "Rand & Co., Inc."
4. Substitute the attached notice for the Adminis-
trative Law Judge 's notice.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having
found, after a trial, that we violated Federal law by
engaging in a course of conduct by which we got rid
of a labor organization chosen by employees and re-
placed it with one of our choice, we hereby notify you
that:
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all of these things.
WE WILL NOT contribute assistance or support
to International Union of District 50, Allied and
Technical Workers of the United States and Can-
ada, and its Local Union 13974 or any other
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization, as your collective-bargaining
representative.
WE WILL withdraw and withhold recognition
from International Union of District 50, Allied
and Technical Workers of the United States and
Canada, and its Local Union 13974, and cease
giving effect to the collective- bargaining agree-
ment of Rushton & Mercier Woodworking Co.,
Inc., with those labor organizations unless and
until such time as one of them is certified by the
Board; WE WILL NOT refuse to recognize and
bargain with Local 51, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO,
as your exclusive collective-bargaining represent-
ative.
WE WILL reimburse present and former em-
ployees for any initiation fees, dues, or other
moneys withheld from their wages for the benefit
of International Union of District 50, Allied and
Technical Workers of the United States and Can-
ada, and its Local Union 13974, and make whole
the employees represented by Local 51, United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO of Rand & Co., Inc., who
were laid off on April 30, 1971, for any earnings
they may have lost as a result of our discrimina-
tion against them with interest at 6 percent per
annum.
WE WILL, upon request, bargain collectively
with Local 51, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, as your
exclusive representative and, if an understanding
is reached, embody it in a signed agreement. The
unit appropriate for such bargaining is:
All journeymen and apprentice carpenters em-
ployed by Rushton & Mercier Woodworking
Co., Inc., and/or Rand & Co., Inc., excluding
all other employees.
WE WILL NOT refuse to recall laid-off employees
and hire other employees in order to get rid of an
incumbent labor organization and replace it with
another.
WE WILL offer to as many of the Rand & Co.
employees represented by Local 51, United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO, laid off on April 30, 1971,
as are presently required by Rushton & Mercier
Woodworking Co., Inc., reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges, and place the names of any,such employees
who are not offered immediate and full rein-
statement on a preferential hiring list and offer
them immediate and full reinstatement on the
same conditions as above as vacancies occur.
WE WILL NOT, in any manner, interfere with you
or attempt to restrain or coerce you in the exer-
cise of the above rights.
All our employees are free, if they choose, to join
Local 51, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or any other labor
organization.
RUSHTON & MERCIER
WOODWORKING CO,
INC. AND RAND & CO, INC
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Seventh Floor, Bulfinch Building, 15
New Chardon Street, Boston, Massachusetts 02114,
Telephone 617-223-3353.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN. Trial Examiner: The charge in
this case was filed on September 29, 1971, 1 and amended on
November 8. The complaint was issued on January 20,
1972. The hearing was held on April II and 12 and May 2
and 3, 1972, in Boston, Massachusetts. The complaint alleg-
es violations of Section 8(a)(1), (2), (3), and (5) of the Na-
tional Labor Relations Act, as amended, growing out of
events which occurred when Rand & Co. closed its wood-
working shop and laid off employees represented by the
Charging Party, Local 51, on April 30, and Rushton &
Mercier, a wholly owned subsidiary of Rand & Co., re-
sumed woodworking operations at the same shop with em-
ployees represented by Distract 50 on September 7. For the
reasons set forth below, I find Respondents violated the Act
as alleged.
Upon the entire record, including my observations of the
demeanor of the witnesses , and after due consideration of
1 Dates are 1971 unless otherwise specified
RUSHTON & MERCIER WOODWORKING CO.
briefs filed by Respondents and the General Counsel, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Rand & Co., a Massachusetts corporation, was engaged
in Boston, prior to April 30, in the business of manufactur-
ing store fixtures. It annually shipped products valued at
more than $50,000 directly to customers located outside the
Commonwealth of Massachusetts. Since April 30, it has
remained in business as the sales agent for Rushton & Mer-
cier and others. (The complaint contains allegations, admit-
ted in Respondents' answers, that Rand & Co. is engaged,
"inter alia, as a woodworking contractor in the construction
industry" and "annually performs woodworking and relat-
ed construction services valued in excess of $50,000 in states
other than the Commonwealth of Massachusetts." There is
no other indication in the record of such activity by Rand
& Co.) Rushton & Mercier was incorporated on September
2 in Massachusetts and is a wholly owned subsidiary of
Rand & Co. It has been engaged since September 7 in the
business of manufacturing store fixtures, using part of the
plant and most of the machinery previously used by Rand
& Co. It annually ships products valued at more than
$50,000 directly to customers located outside the Common-
wealth of Massachusetts. Respondents are engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Local 51 and District 50 are labor organizations within
the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Credibility
I. Infantino versus Burke and Fiorella
The bare bones of this case are undisputed. Rand & Co.
had contracts with Local 51 for many years. On April 30,
the last day of its then current contract, it laid off its em-
ployees and ceased operations. On May 1, Local 51 began
a strike in the Boston area. The strike ended on May 27
when Local 51 and an association of employers agreed to
a new contract. Rand & Co. subcontracted work to a firm
located in Salem, New Hampshire, and incorporated in that
State under the name of Rushton & Mercier Woodworking
Co., Inc. On June 25, Rand & Co. bought the name and
good will of Rushton & Mercier (New Hampshire). Rush-
ton & Mercier (New Hampshire) continued in business and
continued to work on jobs sent to it by Rand & Co. On June
28, District 50 obtained authorization cards from all the
employees of Rushton & Mercier (New Hampshire) and
demanded recognition. On July 1, Rushton & Mercier (New
Hampshire) recognized District 50. A contract was nego-
tiated in July and backdated to June 28. It provided for
wage rates lower than those in the contract between Local
51 and Rand & Co. which had expired on May 1 and the
new contract between Local 51 and the employers' associa-
tion which would have replaced it if Rand & Co. had contin-
ued operations and followed its practice of signing contracts
129
negotiated by Local 51 and the association . On September
2 Rushton & Mercier (Massachusetts) was incorporated as
a wholly owned subsidiary of Rand & Co. On September 7
it began operations in the plant previously used by Rand &
Co. It recognized District 50 and adopted its contract with
Rushton & Mercier (New Hampshire). It worked on the
jobs which Rand & Co. had subcontracted to Rushton &
Mercier (New Hampshire). All employees of Rushton &
Mercier (New Hampshire), as well as two of its three own-
ers, went to work for Rushton & Mercier (New Hampshire)
went into the woodworking business in Salem under a name
other than Rushton & Mercier Woodworking Co., Inc.
The General Counsel claims a plot to replace an expen-
sive union with a cheap one. Respondents claim coin-
cidence. As more fully developed in section C, 1, below, I
am not persuaded that motive is necessarily an issue in this
case . However, there is no gainsaying that conclusion that,
if Respondents were motivated as the General Counsel ar-
gues they were, Respondents have obviously violated the
Act. Therefore, Respondents ' motive is a threshold issue.
The only direct evidence in the record of a plot is the
testimony of Richard Infantino. Infantino was one of the
carpenters laid off by Rand & Co. on April 30. However,
unlike his fellow employees , he was transferred to the pay-
roll of Rand Industries , a companion corporation , and con-
tinued to work until mid-June as a traveling carpenter
repairing damaged fixtures in customers ' stores. In the con-
versation in mid-April which led to this arrangement, ac-
cording to Infantino , John Burke , Rand & Co .'s production
manager , told him explicitly there was such a plot in the
presence of Frank Fiorella, Rand & Co.'s sales manager.
Burke and Fiorella denied that Burke made the statements
attributed to him by Infantino.
When he was laid off for good in June , Infantino testified,
Burke told him Morris Rand, president of Rand & Co. and
Rushton & Mercier (Massachusetts) (and, presumably, of
Rand Industries), did not want him around because Rand
was afraid that Infantino 's membership in Local 51 would
lead to Rand having to sign a new contract with Local 51.
Burke denied making this statement.
A week or so later Burke sought to recall Infantino for a
special job in Detroit . Infantino at first agreed to go, but,
after Burke and Fiorella had gone to some trouble to make
the necessary arrangements, changed his mind.
Neither Infantino nor Burke indicated that Fiorella was
present when Burke finally laid Infantino off in mid-June.
On direct examination as Respondents' witness, Fiorella
was not asked about that incident . He did, however, testify
about the incident when Infantino agreed to make one more
trip for Rand Industries and then reneged . On cross-exam-
ination , the following exchange took place between Fiorella
and counsel for the General Counsel:
Q. Let's go to Mr . Infantino . Did you have anything
to do with Mr. Infantino's layoff?
A. No.
Q. Nothing at all. When Mr. Burke told you some-
time-when was it in May or June of 1971-that Mr.
Infantino would not be permitted or could not go to
Chicago [a slip of the tongue for "Detroit"] do you
remember that?
A. Yeah.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. When Mr. Burke told you that, did he give you
the reason?
A. He mentioned something about, I think it was
something about the union?
Q. What did he mention about the union?
A. I can't recall exactly what it was.
Q. Did he mention anything about Mr. Rand and the
Union?
A. No, Mr. Rand wasn't mentioned at all.
Q. Did he mention the fact that Mr. Infantino, or
words to this effect, could not go to Chicago because
he was a member of Local 51?
A. I remember something like that, yeah.
Neither Burke, Infantino nor, on direct, Fiorella testified
that Infantino's membership in Local 51 came up during the
Detroit trip incident. Therefore, this portion of Fiorella's
testimony is subject to various interpretations. Either the
subject did come up at that time, as he suggests, or, what
seems to me to be more likely, he suddenly remembered
something Burke had said to him at the time Infantino was
laid off . In either case , this testimony is clearly an admission
by an official of Respondents in a position to have firsthand
information that union considerations played a part in Re-
spondents' action . I take it as confirmation of Infantino's
testimony of his conversation with Burke on the day that
Burke laid him off. I rely on it as my primary basis for
crediting Infantino over Burke and Fiorella as to the mid-
April conversation in which Burke told Infantino there was
a plot as well as crediting Infantino over Burke as to the
layoff conversation in mid-June.
My secondary basis for crediting Infantino over Burke
grows out of an important inconsistency between Burke's
testimony under rule 43b, as a witness for the General
Counsel, and his testimony as a witness for Respondents.
Early in the hearing, counsel for the Charging Party tried to
get Burke to admit that the imminence of a carpenters'
strike scheduled to begin in Boston on May I played some
part in his scheduling work remaining in the shop for com-
pletion on April 30 with this result:
Q. Are you suggesting it was just a happy coin-
cidence that all of the employees, all 22 employees that
were left were laid off on April 30th, the last day of the
contract?
A. If I had come to the company a month earlier,
they would have been laid off a month earlier, as the
work progressed. As I got hold and saw what was hap-
pening they were laid off.
Q. So you are saying to us that it is a coincidence that
that large number of employees were laid off on April
30th?
A. That is right.
Q. This last day of the contract with Local 51?
A. Right.
Counsel for Respondents called as his first witness Arthur
Wasserman, Respondents' corporate counsel , who readily
conceded on cross-examination "[t]here was no coincidence
at all" in the closing of Rand & Co.'s shop on April 30 and
the opening of Local 51's strike on May 1. When Burke
returned to the stand as a witness for Respondents, this
occurred while he was on direct examination:
We calculated that the work would be out on April
30th. We made it, if you want to say we made it come
out on April 30th.
TRIAL EXAMINER I take your answer to mean, Mr.
Burke, that the fact that the contract with Local 51 also
expired on April 30th was pure and simple coincidence,
was a fact that played no part in your planning of the
work. Am I understanding your correctly?
THE WITNESS Well, I couldn't say that a hundred
percent because I was just there, and people were tell-
ing me everyday that April 30th we're going to be on
strike. We are not going to be around. That kind of
thing. So, naturally, we wanted to be sure that the work
was done by that time, the work that we had.
Finally, two items in the record urged by Respondents as
discrediting Infantino require comment . Counsel for Re-
spondents offered the affidavit which Infantino gave to a
Board investigator into evidence as a prior inconsistent
statement . I received it. I find nothing in it inconsistent with
the testimony which Infantino gave while on the witness
stand. Both Infantino and Mario Natale, Local 51's busi-
ness representative , admitted that Infantino is presently em-
ployed by the Massachusetts Transit Authority in a good
job which Natale got for Infantino. I find this an insufficient
basis for concluding that Infantino is biased and prejudiced
against Respondents or for Local 51.
2. Natale and Bosworth versus Wasserman and Marques
There is another credibility conflict in the record which
is, in my opinion, of relatively minor significance, for my
conclusions of law are the same regardless of which side I
credit. It involves what, if anything, happened between Lo-
cal 51 and Rand & Co. when the carpenters' strike in the
Boston area ended on May 27. Mario Natale, Local 51's
business representative , testified that he tried several times
to contact Rand & Co. to get it to sign the new contract but
that his calls were never returned . Arthur Wasserman,
Respondents ' corporate counsel , testified that he never
heard from Natale until September 17, after Rushton &
Mercier (Massachusetts ) began production in Rand & Co.'s
old shop, and that he had his secretary call Natale's office
after the strike to obtain a copy of the new area contract
without success. Gloria Marques, Wasserman's secretary,
testified that she made such a call to Natale's secretary, who
promised to send her a copy of the contract as soon as it was
available. Grace Bosworth, Natale's secretary, testified that
she never received such a request. (There is no dispute that
a copy of the new contract was not sent to Rand & Co.)
There is no basis , either in the record or on their demean-
or, for crediting one side or discrediting the other. I do not
doubt Miss Bosworth's testimony that she searched through
her telephone records and found no indication of such a call
from Wasserman's secretary and that she disposed of the
book in which she would have recorded such a call because
it filled up between the time a Labor Board investigator
asked her to check it and the hearing. I do not, however,
think such testimony sufficient to establish a negative since
an equally possible explanation is that Miss Bosworth neg-
lected to make a note of the call when she received it.
Therefore, solely on the basis of inherent credibility, I credit
Wasserman and Miss Marques over Natale and Miss Bos-
RUSHTON & MERCIER WOODWORKING CO.
worth to find that Local 51 did not contact Rand & Co.
between May 27 and September 17. 1 conclude that Rand
& Co. had a low priority in Natale's busy life during this
period because it was just another closed plant and he had
no reason to think about it until the plant reopened.
B. Facts
1. Rand & Co. closes its plant
Rand & Co. has had a collective-bargaining agreement
with Local 51 for upwards of 20 years. Local 51 bargains
with the Woodworking Association of Boston & Vicinity,
an employers' association made up of many of the wood-
working plants like Rand & Co. in the Boston area. Rand
& Co. is not a member of the association. Morris Rand, the
real owner of Rand & Co. (his wife is legal owner of all
Rand & Co. stock), Rushton & Mercier (Massachusetts)
(Rand & Co. is legal owner of all Rushton & Mercier (Mas-
sachusetts) stock), and other enterprises which bear the
Rand name such as Rand Industries , joined the association
for a short time in 1968 but soon dropped out. Rand & Co.
has, prior to 1971, always signed the area contract negotiat-
ed by Local 51 and the Woodworking Association of Boston
& Vicinity. The last such contract signed by Rand & Co.
was negotiated in 1968 and was effective by its own terms
through April 30, 1971.On occasion in the past Rand & Co.
has sought to persuade Local 51 to accord it less expensive
terms than the association had agreed to. Local 51 has taken
the position that the most-favored-nation clause in the asso-
ciation contract precludes such concessions, and Rand &
Co. has wound up signing. Bargaining for a new contract
began between Local 51 and the association in early 1971.
By April negotiations had reached a point where Local 51
had scheduled a strike of Boston area carpenters for May
1. The contract which was expiring provided for wages of
$4.80 per hour for journeymen carpenters. The 3-year con-
tract ultimately negotiated by Local 51 and the association
after a strike lasting from May I through May 27 provided
for wages of $5.35 per hour for journeymen carpenters from
May 1, 1971, to April 30, 1972, and 65-cent-per-hour raises
in each of the next 2 years.
Rand & Co. manufactured store fixtures of wood with
aluminum edges. Its principal customer, prior to 1971, was
the Zayre Company, a national chain of discount depart-
ment stores . In the period May 1, 1968, to May 1, 1971, 72
percent of Rand & Co.'s sales were to Zayre. Sales to the
Stouffer Restaurants chain and Glosser Brothers, an opera-
tion similar to Zayre, brought that figure to approximately
95 percent. For a number of years Rand & Co. was Zayre's
sole supplier of store fixtures. Consequently, its operations
were geared to Zayre's demands. Each fall Zayre placed an
order for the miscellaneous sort of fixtures, such as checkout
counters, it would need for the large number of stores it
planned to open in the following calendar year. In the late
winter of the following year, it placed the order for the large
number of standard counters it would need for those same
stores. Zayre orders ran in the hundreds of thousands of
dollars. When Rand & Co. received the miscellaneous order
in the fall it ordered the necessary materials and built the
items Zayre would require on an essentially mass produc-
131
tion basis. When it received the counters order after the first
of the year, it did the same thing. Items produced were
stored until Zayre ordered them shipped to the locations of
the stores it was about to open. When they were shipped,
foremen carpenters on the payroll of Rand Industries went
with them to install them . (Rand industries had no contract
with Local 51. The 1968 contract between Rand & Co. and
Local 51 was modified by a side agreement, memorialized
in a letter from Local 51 to Rand & Co., that it would not
apply outside Local 51's geographical jurisdiction, Boston
and its immediate environs. Carpenters who traveled for
Rand Industries actually received a higher rate of pay than
that provided in the contract.) Rand & Co. used mass pro-
duction techniques in the sense that products moved
through four departments, i.e., the mill where wood was cut,
assembly where the wood was put together, painting, and
final assembly where items such as lights and trim were
added, while the employees, generally, stayed in one depart-
ment . Because it did not use precise milling techniques,
Rand & Co.'s carpenters were required to exercise greater
craft skills than would have been the case if its millwork had
been more precise.
In the fall of 1969, for the first time, Rand & Co., because
of its rising costs, received less than 100 percent of Zayre's
order for fixtures for stores Zayre planned to open in 1970.
That year Rand & Co. got half. In the fall of 1970 Rand &
Co. got orders for the miscellaneous fixtures in only 10 of
the 30 stores Zayre planned to open in 1971. Sometime,
apparently in 1969, concern for its rising costs sent Rand &
Co. to Dana Scott, Inc., efficiency experts. John Burke was
a part owner of Dana Scott, Inc. Burke worked with Rand
& Co. for a time and installed various programs designed
to bring its costs under control. Around November 1970,
when Rand & Co.'s complement of employees was 85 car-
penters (i.e., employees represented by Local 51 in a craft
unit) and 30 other employees and a third shift was working,
Burke placed a man in the shop in an effort to reinstitute
the programs he had installed earlier but which Rand & Co.
had, apparently, let slide. This move notwithstanding, Rand
& Co.'s costs remained high. Consequently, when it entered
its bid in January 1971 for the counters portion of Zayre's
1971 order, Rand & Co.'s price was third high in a list of
nine bidders. Zayre awarded the contract to the three lowest
bidders. Rand & Co. learned on February 15 that it had lost
the Zayre account at last, at least until it could bid on the
1972 miscellaneous order in the fall of 1971.
John Burke's personal situation sent him into the job
market around this time. In march he asked Morris Rand
for a job. Rand hired him to be Rand & Co.'s production
manager. Burke began his new duties on April 5. At the
same time Frank Fiorella, Rand & Co.'s production manag-
er, moved over to sales manager Burke was fully conversant
with the situation Rand & Co. faced as a result of its failure
to get the 1971 Zayre counters contract.
Burke determined that the breakeven point for Rand &
Co.'s operations was sales of $25,000 per week or, in other
terms, a complement of 30 to 35 shop employees. He began
scheduling the work which remained in the shop on Zayre's
miscellaneous order for 1971 store openings so that it would
be completed on April 30, thus avoiding problems if, in fact,
the strike which was scheduled to begin on May I came to
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pass. As the operations on which they were engaged were
completed, Burke laid off two carpenters on April 9, one (a
temporary employee hired on March 14) on April 16, and
one on April 23. By April 30, when the Zayre work was, in
fact, completed, the number of Rand & Co. employees was
down to 24 carpenters and 9 others.
In mid-April Burke and Fiorella told Richard Infantino,
a carpenter, of the impending shutdown of the shop. They
explained their tentative plan to him that while he would
technically be laid off by Rand & Co. before May 1, he
would be retained on Rand Industries' payroll primarily to
repair damaged fixtures already in Zayre stores as com-
plaints were received . Burke hoped , in this way, to increase
Rand & Co.'s chances of getting the Zayre miscellaneous
order for 1972 when Rand & Co. bid on it in the fall of 1971.
In the course of this conversation , Burke told Infantino, in
Infantino 's words:
The shop was going to close its doors before May 1st
and that they were in some sort of deal or were in the
process of dealing with a shop in New Hampshire. I
was never told the name of the shop. And that there
was a small crew there, five , six, eight men, and they
were trying to get them down into Boston to work after
Local 51 was finished, after the contract expired. That
they were to come down to Boston , and they weren't
so much interested in these men, you know, they
weren't interested in this company, but they were more
interested in getting a union in there that paid a lower
rate of pay.
Q. Did Mr. Burke say that to you?
A. To that effect . He said that they were having
trouble competing with other companies and they
needed men at a different pay scale. They couldn't
afford to pay Local Union 51 rates, which were then
$4.80 an hour, and would have been higher after the
contract.
Fiorella told Infantino , in Infantino 's words:
... well, Frank interrupted , too, now. He didn't have
much to say in the conversation but when the shop
finally did reopen, and they were not sure when that
was going to happen, they wanted me-they used the
work "management"-they wanted me to come back
in the management , like as an assistant foreman or run
the glass department down in back where they put the
glass in the showcases and the mirrors. He wanted me
to come back in some type position like that.
Q. Did he say that the plan was to keep you around
until this operation resumed , is that it?
A. At that time they were not sure if I was going to
be around after April 30th, but they did suggest to me
that if I was laid off the chance would be that I would
be called back to help again , as a sub foreman or some-
thing.
On the afternoon of April 30, Burke laid off 22 of the 24
carpenters unit employees still on the payroll and 8 of the
9 nonunit employees. The two unit employees retained were
a painter and a laborer. The nonunit employee retained was
a truckdriver. They were kept on the Rand & Co. payroll
to take care of Zayre fixtures still in stock which had to be
shipped at Zayre's orders after April 30. Rand & Co. still
had approximately $500,000 worth of completed Zayre fix-
tures at this time . As had been planned, Infantino went on
Rand Industries ' payroll.
Burke laid off Infantino in mid-June . At that time, Burke
told Infantino , in Infantino 's words:
Q. Can you tell us what Mr. Burke said to you during
this conversation?
A. That that was the day that I was definitely being
laid off. No ands, ifs, or buts, I was being laid off that
day. I was being released from the company and he had
talked to Mr . Rand and Mr . Rand was battling about
something about me being in Local 51 and he didn't
want to have anything to do with me because he was
afraid that with my working there he would be forced
to sign a contract by having a Local 51 member there.
He might be forced into signing the new contract when
it came up, in the middle of May or whenever it hap-
pened.
2. Rand & Co. sends its work to Salem, New Hampshire
Rand & Co. has a second wholly-owned subsidiary
named Peter Brankowitz Corp. located in Hackensack, New
Jersey . Rand & Co. acquired Brankowitz , a smaller opera-
tion than Rand & Co., in the summer of 1970 by purchase.
Brankowitz was also engaged in the business of manufactur-
ing store fixtures . Its principal customer at that time was
W. T. Grant, a national chain store operation . Because it
feared it was losing the Zayre account, Rand & Co. sought
to protect itself by getting Grant's business through Bran-
kowitz. After Rand & Co. closed its plant on April 30, it
continued to receive orders from various customers. There
were small orders , running, in each case , to hundreds or
thousands of dollars rather than the hundreds of thousand
of dollars of Zayre orders. In the period from May through
September they totaled approximately $20,000 . In that peri-
od some of these orders were sent to Brankowitz . Most of
them were subcontracted to Rushton & Mercier (New
Hampshire), and the work was performed in Rushton &
Mercier's (New Hampshire) small plant in Salem, New
Hampshire.
Rushton & Mercier (New Hampshire) was incorporated
by Thomas Rushton, Edward Mercier, and Clarence Hall
in 1962 . Rushton and Mercier owned equal interests in the
business ; Hall, a somewhat lesser share . All three are cabi-
net makers , Rushton an especially talented one. All three
worked in the shop side by side with employees of the
corporation. On June 25, Rushton & Mercier (New Hamp-
shire) had two employees. On June 28 and September 7, two
other significant dates , it had six. Prior to June 28 , Rushton
& Mercier's (New Hampshire) employees had never been
represented by a union . Before Rand & Co. began subcon-
tracting store fixtures to Rushton & Mercier (New Hamp-
shire), its principal product was custom made kitchen
cabinets.
Just when Rand & Co. first subcontracted work to Rush-
ton & Mercier (New Hampshire) is difficult to say . (In the
3-year period prior to April 30, Rand & Co. subcontracted
5-10 percent of its work as measured in sales dollars.) John
Burke did not hear of the firm until early June when Ken-
neth Weed , a personal friend of Thomas Rushton and a
designer-draftsman for Rand & Co., suggested to Burke that
RUSHTON & MERCIER WOODWORKING CO.
Rand & Co. buy it. However, it is clear that Rand & Co.
knew of it long before that, for Frank Fiorella talked to
Weed about the firm and its potentials when Fiorella was
production manager, prior to the hire of Burke, and Weed
told Burke that he had put the firm on the list when Rand
& Co. asked for bids from possible subcontractors prior to
June. Also, while he was not the most precise of witnesses
where dates were concerned, Thomas Rushton testified it
was possible Rushton & Mercier (New Hampshire) was
doing work for Rand & Co. as early as April. (I credit
Burke's testimony that he first met Rushton in June over
Rushton's testimony that Burke first came up to Salem in
April. Rushton was a most evasive witness .) In any event,
a document in evidence which lists all Rand & Co. subcon-
tracts during May, June, July, August, and September
shows an order for counters for a customer named Nugents
in June as the first to Rushton & Mercier (New Hampshire)
in that period.
3. Rand & Co. acquires a name and Rushton
& Mercier (New Hampshire) acquires
a union
While it is impossible to pinpoint the exact moment at
which Rand & Co. became aware of Rushton & Mercier
(New Hampshire), the record does reveal when the former
acquired the name and good will of the latter. It happened
on Friday, June 25.
Some 6 months before, Rushton first suggested to Weed
that Rand & Co. solve his business problems by buying his
company. Rushton's suggestions to Weed became more ser-
ious as time went by. Weed eventually relayed the sugges-
tion to John Burke. Burke carried it to Morris Rand, who
instructed Burke to look into the matter . Burke did so. He
learned that Rushton & Mercier (New Hampshire) was in
serious financial difficulties and probably would not survive
for long, principally due to disagreements between Rushton
and Edward Mercier. He reported his findings to Rand.
Rand decided that he did not want to buy Rushton & Mer-
cier (New Hampshire) as a going business with its outstand-
ing debts. He decided that he could use its name and good
will.
Arthur Wasserman, Respondents' counsel, prepared a
contract of sale. Burke carried it to Salem on June 25 and
met with Rushton, Mercier, and Clarance Hall at the office
of their attorney, Lewis Soule. After some dickering and a
telephone conference between Soule in Salem and Wasser-
man in Boston, Rushton, Mercier, and Hall agreed to sell
the name Rushton & Mercier Woodworking Co., Inc., and
the good will of their business to Rand & Co. for $1,000. The
document which Burke had brought to Salem for the con-
ference was retyped in Soule's office to reflect the agree-
ment finally reached. It contains the following pertinent
provisions:
1. SELLER [i.e., Rushton & Mercier (New Hamp-
shire)] agrees that for a period of four (4) months or
more (as BUYER [i.e., Rand & Co.] may determine)
from the date hereof, SELLER will conduct its busi-
ness in the regular and usual course and shall manufac-
ture such work for BUYER as BUYER may choose
SELLER to manufacture for it, all such work to be
133
performed at Seller's premises and in accordance with
the terms and conditions of this Agreement [i.e., for
costs plus 7 1/2 percent profit].
4. Tom Rushton, an employee of SELLER, agrees
to work for BUYER or for a new corporation to be
formed by BUYER utilizing the name (or any modifi-
cation or variation thereof) conveyed to BUYER by
this Agreement, in a capacity similar to that now served
by the said Rushton or in such capacity as BUYER
may request, BUYER hereby agreeing to pay him at
the rate of (SEE ATTACHED SCHEDULE)
Such employment shall commence upon the termina-
tion of Seller's business operation under its present
corporate name or at such time as BUYER shall so
request.
Both were included at Rand & Co.'s insistence.
On the morning of Monday, June 28, two organizers for
District 50, Domenic DiPilato and William Foley, invited
all of the employees of Rushton & Mercier (New Hamp-
shire) to lunch. Rushton, Mercier, and all six of the men
employed in the shop on that day went to the 88 Restaurant
in Salem at noon. They ate with DiPilato and Foley. When
the meal was over, the organizers passed out District 50
authorization cards. Rushton and Mercier left the restau-
rant. The six employees stayed and signed the cards.
That afternoon DiPilato visited the office of Rushton &
Mercier (New Hampshire). Rushton and Burke were in the
office when he arrived. DiPilato demanded recognition for
District 50 on the basis of the cards obtained that day.
Rushton referred him to Burke. Burke looked at the cards
DiPilato proffered. They came as no surprise to him be-
cause Rushton had already told him, when Rushton and
Mercier returned from lunch, about the meeting at the res-
taurant. Burke did not give DiPilato an immediate answer.
DiPilato left a recognition agreement form with Burke.
Burke carried the recognition agreement form back to
Boston . He conferred with Rand and Fiorella about what
to do. They decided that Rushton & Mercier (New Hamp-
shire) should recognize District 50. Burke returned to Salem
and told Rushton it was all right to recognize District 50.
Rushton and Mercier signed the agreement on July 1 on
behalf of Rushton & Mercier (New Hampshire).
Burke acted as sole negotiator for Rushton & Mercier
(New Hampshire) in negotiations with District 50 which
followed. Negotiations were held on July 1, 5, 6, 14, and 19
and August 3. Agreement was reached on a 3-year contract
which was backdated to June 28 and signed by Rushton and
Mercier on behalf of Rushton & Mercier (New Hampshire).
The contract provided for various grades in various job
classifications. The highest nonsupervisory wage rate during
the first year of the contract was $4 an hour for millman 1.
(Working foreman I got $5; working foreman 2 got $4.50.)
The lowest was $2 for laborer 2. The contract called for 30
cents an hour raises across the board in each of the second
and third years. Article I "Recognition" reads:
THE COMPANY RECOGNIZES THE UNION AS THE SOLE AND EX-
CLUSIVE COLLECTIVE BARGAINING AGENT FOR THE PURPOSES OF
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
COLLECTIVE BARGAINING IN REGARDS TO WAGES , HOURS, AND
OTHER TERMS AND CONDITIONS OF EMPLOYMENT FOR ALL PRO-
DUCTION EMPLOYEES , INCLUDING WORKING FOREMEN , MAINTE-
NANCE EMPLOYEES , TRUCK DRIVERS , SHIPPERS AND LABORERS,
BUT EXCLUDING EXECUTIVES , SUPERVISORY EMPLOYEES, PRE-
SENTLY RETIRED EMPLOYEES AS OF EFFECTIVE DATE OF THIS
FIRST CONTRACT, OFFICE EMPLOYEES PROVIDED FURTHER THAT
SUCH RECOGNITION IS LIMITED TO EMPLOYEES IN THE COMPANY'S
PLANT AT SALEM DEPOT, NEW HAMPSHIRE, OR ANY SUBSEQUENT
OR NEW LOCATION OF THIS PLANT
The latter phrase was included at the Company's sugges-
tion.
4. Rand & Co. brings its work back to Boston
All the work turned out by Rushton & Mercier (New
Hampshire) during June, July, and August was work sub-
contracted to it by Rand & Co. Around the first of August
Burke informed Rushton that the work was going to be
returned to Boston in the near future . To that end, Rushton
& Mercier (Massachusetts) was incorporated in Massachu-
setts on September 2, under the name of Rushton & Mercier
Woodworking Co., Inc., as a wholly owned subsidiary of
Rand & Co. to carry on the business of a manufacturer of
store fixtures . Morris Rand became its president , treasurer,
and one of its directors. The other two directors are Frank
Fiorella and John Burke. It was capitalized at $100,000,
comprised entirely of machinery and other assets of Rand
& Co. It leased the basement and third floor and part of the
second floor of the premises in which Rand & Co. conduct-
ed its manufacturing operations prior to April 30.
Rushton visited Boston during the week before Labor
Day to prepare for the move from Salem to Boston. On
August 28, Burke conferred with DiPilato about the move
and agreed to recognize District 50 as the representative of
the employees of Rushton & Mercier (Massachusetts) and
apply District 50's contract with Rushton & Mercier (New
Hampshire) to them after the move. Beginning on Tuesday,
September 7, the day after Labor Day, Rushton & Mercier
(Massachusetts) began operations with Rushton, Hall, and
all six of the Rushton & Mercier (New Hampshire) employ-
ees. Of the men working in the Salem plant just prior to
Labor Day, only Mercier failed to report for work in Bos-
ton. He continued to operate a woodworking business in the
Salem plant in his own name until December when the
building was sold as part of the liquidation of Rushton &
Mercier (New Hampshire). Rushton & Mercier (New
Hampshire) still exists as a New Hampshire corporate enti-
ty. It has no assets and is engaged in no business activities.
Rushton & Mercier (Massachusetts) applied the District
50 contract to its employees from the beginning of its opera-
tions as agreed with District 50. Rushton is production su-
pervisor . Maurice Marquis , one of the six Rushton &
Mercier (New Hampshire) employees who made the move
to Boston , is working as foreman . Hall and the other five
became rank-and-file employees.
Soon after it began production in Boston , Rushton &
Mercier (Massachusetts) began to expand its work force. It
placed ads in newspapers a day or two after September 7.
It did not attempt to contact through Local 51 any of the
carpenters laid off by Rand & Co. When several men in the
latter category came to the plant, they were offered jobs as
new employees at the rates specified in the District 50 con-
tract . By mid-October , Rushton & Mercier (Massachusetts)
had expanded its work force to approximately 20 employ-
ees.
Among the four or five former Rand & Co. employees
who were hired by Rushton & Mercier (Massachusetts) in
September were Frank Tino and Pasquale Colacetti. All the
men in this group were offered a wage rate , as new employ-
ees, commensurate with where their skills placed them, in
Rushton's judgment , in the job classifications and grades
specified in District 50's contract . The highest rate offered
to any applicant ,, including some former Rand & Co. em-
ployees who did' not accept, was $4 an hour.
A few days after Tino and Colacetti were hired , Rushton
gave them a number of forms to be filled out . Among them
was a form authorizing the Company to deduct dues from
their wages for District 50. Tino and Colacetti protested.
Rushton told them they had to sign in order to work for
Rushton & Mercier (Massachusetts ). Tino and Colacetti
quit rather than sign.
On September 17 Mario Natale , business representative
of Local 51, discovered that production had resumed in
Rand & Co.'s old plant . He telephoned Rand & Co. that day
and wound up talking to Wassernan. Wasserman denied
that Rand & Co. had reopened its plant . Natale visited the
plant and talked to several Local 51 members who were
working there . He told them they were working in a plant
which Local 51 considered unfair and joining District 50
would make them liable for charges of dual unionism under
the constitution of the Carpenters union . One employee in
this category, Robert Cunio , received a letter from Natale
dated October 1 warning him that charges would be pre-
ferred against him if he continued to work for Rushton &
Mercier (Massachusetts). Cunio also received a letter dated
November 8 informing him that charges had been preferred
against him and that a trial board would consider the matter
on November 18. The record does not indicate what, if
anything, happened on or after November 18.
A former Rand & Co. employee named James Capobian-
co accepted Rushton's job offer but did not report to work
as arranged . He informed the Company he had changed his
mind because Natale had told him not to go to work for
Rushton & Mercier (Massachusetts).
After the charge in this case was filed on September 29,
letters offering employment by Rushton & Mercier (Massa-
chusetts) "in the manufacturing operations at its plant lo-
cated at 300 C Street, South Boston , the location of the plant
formerly operated by Rand & Company , Inc." with "all the
rights and privileges, if any , to which you might be legally
entitled by virtue of your former employment, at said loca-
tion, with Rand & Company, Inc." These letters were first
sent to a group of I 1 former employees of Rand & Co. on
October 26, then to a group of 7 on November 26, and
finally to a group of 10 on March 17, 1972.
Despite the best efforts of Frank Fiorella , its sales manag-
er, Rand & Co. has been unable to land any contracts
similar to the contracts it used to receive from Zayre . Conse-
quently , all the work performed by Rushton & Mercier
(Massachusetts) since September 7 has been similar to the
subcontracts performed by Rushton & Mercier (New
Hampshire) for Rand & Co. before Rand & Co. brought its
RUSHTON & MERCIER WOODWORKING CO.
work back to Boston. In other words, Rushton & Mercier
(Massachusetts) has been producing small custom orders
rather than large mass production orders for store fixtures.
As a result, the operations of Rushton & Mercier (Massa-
chusetts) now are not identical with the operations of Rand
& Co. then. In the first place, in order to improve its product
line, Rushton & Mercier (Massachusetts) has switched to a
style of fixtures in which wood is inserted into a stainless
steel frame . Also, greater skill and care are used in milling
operations so that relatively less skill is required of the car-
penters who assemble the fixtures. In addition, the opera-
tions now are not departmentalized to the same degree they
were under Rand & Co. so that individual carpenters tend
to work on individual fixtures throughout the production
process rather than tend to work on one operation only.
Finally, while Rushton & Mercier (Massachusetts) is using
only tools and equipment formerly used by Rand & Co. (the
tools and equipment belonging to Rushton & Mercier (New
Hampshire) are still in Salem in the possession of Edward
Mercier), it is not using one large piece of machinery called
a double-end tenoner formerly used by Rand & Co. because
it is only suitable for a mass production operation.
C. Analysis and Conclusions
1. Motive
No matter how the record is viewed with respect to this
threshold issue, the result always comes out against Respon-
dents. Of course, my crediting of Richard Infantino 's testi-
mony that John Burke, in effect, told him in April that Rand
& Co. was going to get rid of Local 51 and its expensive
contract through the Rushton & Mercier subterfuge dispos-
es of the matter without more. Even if the record did not
contain this evidence, I would draw the same conclusion
from the record as a whole because the chain of coincidenc-
es relied on by Respondents is too long to be credible. I can
swallow one coincidence, and sometimes two, without hav-
ing my credulity put to the test, but a causeless chain of
events in which an organized company in financial trouble
just happens to close its doors, then just happens to send
work to a small, unorganized company in a neighboring
State, then just happens to purchase the name and good will
of that company, then just happens to direct that company
to recognize a union which has just happened to appear on
the scene and organize its employees, then just happens to
negotiate a contract for that company with that union which
contains wage rates substantially lower than it would have
to pay its old employees, and then just happens to reopen
its own shop under the name acquired from that other com-
pany, utilizing that other company's employees and the low-
er wage rates permitted by its contract with that union, does
not square with any experiences I have ever lived through.
Respondents place much emphasis on the fact that Burke
did not meet Thomas Rushton until June. I have already set
forth in detail my reasons for crediting Infantino over Burke
on their crucial conversations. I have not, however, discred-
ited Burke generally for, with respect to his first meeting
with Rushton as well as many of the other facts set forth
above, I have relied on his testimony. The fact that Burke
did not meet Rushton until June does not preclude a finding
135
that the plan to get rid of Local 51 had its genesis even
before the April 30 layoff. It is clear from the testimony of
Respondents ' own witnesses about the relationship between
Kenneth Weed and Rushton that Rand & Co. was aware of
the existence of Rushton & Mercier (New Hampshire) and
the possibilities it offered long before April 30. Moreover,
the fact that I found Burke to be a generally credible witness
avails Respondents nothing insofar as his assertions that he
was not discriminatorily motivated are concerned. Put most
charitably, Burke 's role was that of a dupe . His motive is
irrelevant. The motive that is controlling in the decision of
this case is Morris Rand 's since all the final decisions as to
what Rand & Co. did were made by him. Rand was not
called as a witness by Respondents . I have given that fact
due weight in concluding that the record requires a finding
Rand & Co. acted pursuant to a plan to get rid of Local 51
and its expensive contract even absent the testimony of
Infantino.
This finding disposes of another issue which sharply di-
vides the parties. The General Counsel argues that Rushton
& Mercier (Massachusetts) is either a single , integrated em-
ployer with Rand & Co. or Rand & Co.'s alter ego. Respon-
dents argue that Rushton & Mercier (Massachusetts) is the
successor to Rushton & Mercier (New Hampshire). Since
Rushton & Mercier (Massachusetts) came into existance as
part of Rand & Co.'s efforts to continue in the business of
manufacturing store fixtures without the burden of Local 51
on its back, I find it is Rand & Co.'s alter ego. Therefore,
the successorship cases relied on by counsel for Respon-
dents in his brief such as Randolph Rubber Co., Inc., 152
NLRB 496 , are not germane to the situation presented in
this case.
I would carry the discussion of Respondents' motive one
step further. Even if the record did not contain Infantino's
credited testimony and I could accept Respondents' asser-
tions that no purpose to rid itself of Local 51 underlay its
actions, I would still find that Respondents had violated
Section 8(a)(3) of the Act by discriminating against Rand &
Co.'s employees. I would do so on the basis of the rationale
expressed by the Supreme Court in Radio Officers' Union of
the Commercial Telegraphers Union, AFL [A. H. Bull Steam-
ship Company] v. N.L.R.B., 347 U.S. 17, that "specific proof
of intent is unnecessary where employer conduct inherently
encourages or discourages union membership ." I recognize
the fact, as pointed out in Respondents' brief, that cases in
which this principle has been applied such as Radio Officers,
supra, Erie Resistor Corp. v. N.L.R.B., 373 U.S. 221, and
N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, involve
discriminations between groups of employees admittedly
predicated on their status as union members or strikers on
the one hand or their status as nonunion employees or
nonstrikers on the other. They are not, therefore, on all
fours with this case. Nonetheless, even if Respondents had
been motivated solely by economic considerations as they
claim, I can imagine no course of conduct more inherently
tending to discourage membership in Local 51 than the one
Rand & Co. set in motion on April 30 when it laid off
employees earning $4.80 an hour and represented by Local
51 and Rushton & Mercier (Massachusetts), its alter ego,
concluded on September 7 when it resumed operations with
a new group of employees earning $4 an hour and repre-
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented by District 50. Being represented by Local 51 cost
Rand & Co.'s employees their jobs. In the few cases of men
who were willing to sacrifice their representation by Local
51 in order to return to work with Rushton & Mercier
(Massachusetts), the price exacted from them was the differ-
ence between $4 an hour and $5.35 an hour, the journeymen
rate in Local 51's poststrike contract.
2. Respondents' other defenses
Lack of discriminatory motive and the criteria for en-
forcing bargaining relationships in successorship situations
are the two main facets of Respondents' defense. A third is
their contention that Local 51 has no right to the work now
being performed by Rushton & Mercier (Massachusetts)
because it is different from the work performed by Rand &
Co. In summary, it stresses the difference between the
latter's essentially mass-production operation and the
former's essentially custom-made operation.
I have found that there are, in fact, the differences be-
tween the two operations which Respondents rely on. I have
also found, however, that products produced by Rushton &
Mercier (Massachusetts) are essentially the same as those
produced by Rand & Co.-store fixtures-made out of es-
sentially the same material-wood-requiring essentially
the skills of the same sort of employees-carpenters-per-
forming essentially the same tasks-milling and assembling
wood. The latter finding outweighs the former to the point
that Respondent's argument verges on hairsplitting. I find
no merit in it.
Implicit in this argument is a contention that the fact
District 50 represents a production and maintenance unit
(i.e., all employees other than the usual exceptions under
Board law) makes inappropriate a craft unit of the employ-
ees of Rushton & Mercier (Massachusetts) such as Local 51
represented at Rand & Co. While the point is not stressed
in Respondents' brief, it is alluded to in this paragraph
which bridges their successorship argument and their type-
of-work argument:
The Rand employees represented by Local 51 were
semi-skilled carpenters performing functions in an as-
sembly-line, departmentalized operation. Together
they constituted a so-called "craft unit". The so-called
"laborers", the assemblers (to a great extent), the pain-
ters, etc. were not included. On the other hand, the R
& M (Mass.) shop has employees all working together
in a looser structure, some highly-skilled, most not
skilled at all. Together they all constitute the broad-
based "production and maintenance" type of unit: that
established at R & M (N. H.) and contracted for by
District 50 on that basis. In what respect, then, could
the claim of Local 51 be superior to that of District 50?
The same answer applies to this question. A craft unit was
appropriate at Rand & Co. for upwards of 20 years, as the
bargaining history began Rand & Co. and Local 51 attests.
The similarities between operations at Rand & Co. and
operations at Rushton & Mercier (Massachusetts) far out-
weigh the differences. Therefore, the fact that District 50's
production and maintenance unit may also be an appropri-
ate unit does not make a craft unit inappropriate at Rushton
& Mercier (Massachusetts).
The final arguments advanced by Respondents as to the
merits of this case go to its Section 8(a)(5) aspects. One is
that Local 51 has waived its bargaining rights because it did
not request bargaining between April 30 and September 17.
The other is that Local 51 is estopped from asserting those
rights under the rationale of such cases as Spun-lee Corp.,
171 NLRB 557, because it would have taken a take-it-or-
leave-it attitude on the new contract, as it had in the past,
thus creating an immediate impasse and relieving Respon-
dents of any further obligation to bargain.
As to Respondents' waiver theory, Natale's telephone call
to Wasserman on September 17 to inquire what was going
on at the shop was made as soon as Natale discovered that
the shop was no longer closed . A formal request to bargain
while the shop was closed would have served no useful
purpose and was, therefore, not required of Local 51 in
order to protect its right to request bargaining when the
shop reopened. The words spoken between Natale and
Wasserman on September 17, while not couched in techni-
cal terms, were sufficient in law to constitute a request by
Local 51 and a refusal by Respondents. Therefore, Local 51
has not waived its rights by Natale's failure to seek Rand
& Co.'s signature to the new area contract immediately after
that contract came into existence.
As to Respondents' estopped theory, the bargaining his-
tory between Rand & Co. and Local 51 precludes a finding
that an impasse would have resulted if Natale had presented
the new area contract and refused to soften its terms for
Rand & Co.'s benefit. Each time this happened in the past,
no impasse resulted. Rather, each time Rand & Co. accept-
ed the area contract. There is no reason to think that the
same thing would not have happened in 1971 if the events
of this case had not intervened. Moreover, the basic findings
of this decision that Respondents were discriminatorily mo-
tivated in those events precludes a finding that Respondents
innocently altered their position to their detriment in good-
faith reliance on Local 51's conduct prior to 1971 or be-
tween April 30 and September 17, 1971.
3. Respondents' violations
a. Section 8(a)(3) and (5)
The General Counsel contends that Respondents viola-
ted Section 8(a)(3) and (5) of the Act by their entire course
of conduct, beginning with the layoff of April 30. I have
found , on the basis of Burke's statements to Infantino prior
to that date, that Respondents acted from the outset pur-
suant to a plan to replace Local 51 with a less expensive
union. Therefore, despite the fact that Respondents also
had strong economic reasons for what they did, they acted
pursuant to a reason discriminatory within the meaning of
the Act. Even if Respondents are credited with acting on the
basis of economic considerations also so that the analysis is
couched in terms of mixed motive, the discriminatory el-
ement is substantial. Thus the controlling factor in de-
termining whether Respondents violated Section 8(aX3) of
the Act and an important, although not essential, element
in determining whether they violated Section 8(a)(5) is the
fact that their motive was illegal. Even if, as counsel for the
General Counsel is willing to concede, "all or' Respon-
RUSHTON & MERCIER WOODWORKING CO.
dents' "activities might well have been an independent and
unrelated series of fortuitous events of which full advantage
was taken by" Respondents so that Burke's words are inter-
preted not as revealing a plan already complete in every
detail by mid-April but merely an objective on which Re-
spondents had set their sights , the result is the same. When
Respondents took the first step on the path which culminat-
ed on September 7 by laying off all Rand & Co.'s employees
and closing its shop on April 30 , their purpose was already
formed . That first step rendered their actions thereafter ille-
gal even if the details of the plan were worked out step by
step as the situation developed.
The fact that Rand & Co., subcontracted work of the sort
sent to Rushton & Mercier (New Hampshire) to Peter Bran-
kowitz Corp., Rand & Co.'s other wholly owned subsidiary,
and other companies without advising or bargaining with
Local 51 is of no significance . In all of those instances Rand
& Co. was motivated solely by economic considerations. In
fact, another local of the Carpenters union represents Bra-
kowitz employees . (The record does not reveal their wage
rates.)
Respondents ' argument that the ability of Rand & Co.'s
employees to perform the work now being done by Rushton
& Mercier (Massachusetts) is a fact not established is not
well taken . The fact that Rushton & Mercier (Massachu-
setts) is making store fixtures in Rand & Co.'s shop with
Rand & Co.'s tools is sufficient to establish that the men
who used to make store fixtures in that shop with those tools
could do so now notwithstanding the change in the
Employer's name.
I find , therefore, that Respondents discriminated against
their employees within the meaning of Section 8(a)(3) of the
Act and refused to bargain collectively with Local 51, the
representative of some of those employees , within the
meaning of Section 8(a)(5) of the Act when Rand & Co. laid
off all its employees on April 30, thereafter subcontracted
work to Rushton & Mercier (New Hampshire) without first
advising Local 51, and brought Rushton & Mercier (Massa-
chusetts) into existence and recognized District 50 as the
representative of employees in violation of Section 8(a)(2)
of the Act.
b. Section 8(a)(2)
At the hearing, the General Counsel rested on April 12,
1972. When the hearing reconvened on May 2, 1971, and
before Respondents began presenting their defense , counsel
for District 50 withdrew after stating:
I am so satisfied that the evidence which General
Counsel has presented just simply does not sustain the
assertions that it has made in the complaint that I do
not intend to offer any evidence as to the asserted
unlawful assistance which is the only area of this com-
plaint and proceeding in which I have any substantial
interest from my viewpoint.
In their brief Respondents take the same position, thus:
Respondents Have No Bargaining Obligation To Local
51, Because R & M (Mass.) Is Not The "Alter Ego" of
Rand & Co. But Is The "Successor" To R & M (N.H.).
And Accordingly Had To Adopt The Contract of R & M
(N.H.), Absent Any Finding of O(a)(2) Violation by R &
M (N.H.)
137
0
General Counsel had the burden of establishing un-
lawful recognition , which he said he would but did not
on this record . The only evidence General Counsel
adduced bearing at all on this point is found in the
testimony of Thomas Rushton ( 170-177). As noted at
pp. 14 and 15 of this Brief, the state of the evidence is
that all of the employees of R & M (N.H.) attended a
meeting at a cafe at which District 50 organizers, fol-
lowing a luncheon , convinced them to sign cards.
Messrs . Rushton and Mercier went to the cafe, had
lunch , but left as soon as they realized the purpose of
the post-luncheon meeting. Rushton testified that he
"knew something was up", and so he went along to the
cafe, but that he left as soon as he found out what was
going on.
Suspicious? Perhaps. But there is not a scintilla of
evidence that Rushton arranged this meeting, or any
evidence to rebut his testimony that he didn't know the
purpose of his employees ' meeting. General Counsel
called one of the employees in attendance , Marquis,
but he did not testify that Rushton or any management
person urged or advised him to attend (286)).
How was it that this meeting was called then? Who
can say? Perhaps the R & M (N.H .) employees called
in union representatives out of some fear of what they
thought would happen as the result of the Agreement
executed between Rand and their employer a few days
before, which they might have construed as a purchase
and sale.
But why speculate? The burden of coming forth with
evidence of unlawful assistance rested with General
Counsel. But he established nothing. It was not up to
Respondents to justify the recognition , other than to
prove that a check of the cards presumably secured at
this meeting was conducted , which Respondents' wit-
nesses did. The "tainted" nature of the cards which
General Counsel promised in his opening remarks to
establish was not established . General Counsel could
have called other employees who attended the meeting.
He could have called the District 50 representatives.
But he did not, and , proof of this was his burden.
All he managed to show was the fact of a very limited
presence of Rushton , as well as his partner Mercier.
But this will not suffice to establish the claimed viola-
tion . Management presence alone in not sufficient. See
Coamo Knitting Mills, 150 NLRB 579. There must be
proof of something much more , such as proof of the
Employer's having contacted the union, arranging the
meeting, allowing the union use of plant facilities, etc.
Compare Kellers Ladders Southern, 161 NLRB 21. The
record evidence falls far short of this . Evidence of the
violation alleged was simply not established.
Respondents ' brief summarizes the record with reason-
able accuracy . Thomas Rushton, an evasive witness, did try
to leave the impression that he and Edward Mercier went
to lunch with Domenic DiPilato and William Foley, District
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
50's organizers , on June 28 with no advance knowledge of
DiPilato's and Foley's purpose in entertaining all the em-
ployees of Rushton & Mercier (New Hampshire), that or-
ganization of the shop did not come up until after the meal
was over , and that he and Mercier beat a hasty retreat the
moment authorization cards appeared and they realized
what was going on. However , the following excerpts from
his testimony show that his role that day was not quite as
innocent as he claimed:
Q. As soon as the employees got there and as soon
as you got there , Mr. Foley and/or Mr . DiPilato intro-
duced themselves as union representatives , didn 't they?
A. I don't think so, no . I have thought about this
question , you know, let's face it , I knew it was coming,
and I don't believe thay did, yet , if it makes any differ-
ence.
Q. When was the first time to your recollection that
they made themselves known to you as union repre-
sentatives?
A. During the course of the meal.
Q. Early in the course of the meal?
A. Well, yes.
Q. Almost as you sat down and the meal was served,
right?
A. Well, we got sat down and I might have asked
someone , "Who are these guys?" or something like
that.
Q. So you knew throughout the entire meal that they
were union representatives?
A. Yes, not throughout the whole meal, but pretty
close, yes.
s t s 11
Q. Did you have any conversation either that day or
some days before the day of the meeting at the 88
Restaurant with Mr. Burke about the District 50 people
talking to your employees?
A. I don't think so.
Q. Do you remember or don' t you remember?
A. I have to say I don't remember, but I don't think
so.
Q. It is possible that you did, is that it?
A. I would have to say no. I, myself, I think I had
an inkling what this meeting was at the last minute, but
I don't remember having any advance notice of it.
Q. Where did you get your inkling from, Mr. Rush-
ton?
A. I don't know, just second guessing, I guess.
Q. Second guessing what?
A. They were having a meeting.
Q. Does that mean union? Is that what you are tell-
ing us?
A. I would have to say yes. When they were having
that meeting and when we got over there , I said to
myself, well, this is possible , you know. In other words
when I walked in I wasn 't that surprised that it was a
union meeting , but I wasn't that sure either . It could
have been an insurance man, I don't know , as I recall.
Maurice Marquis , a frightened man, almost gave the game
away when he testified:
Q. (By Mr . Zankel) After reading paragraph 12 of
that document I handed you [the witness' affidavit] do
you now recall whether it was Mr. Mercier or Mr.
Rushton who asked you to go to that meeting at the 88?
A. No, I don 't recall.
Q. Was it either one of them?
A. It could have been.
As with Respondent's chain of coincidences, I find
Rushton 's and Marquis ' account of the June 28 luncheon
hard to swallow . But it is true that they were the only wit-
nesses called by the General Counsel to testify about that
episode . If I discredited them, there would be no basis for
any findings of fact about it . Therefore, I have not discred-
ited them but have limited my findings to those set forth in
the section entitled "Facts" above . It is true , as counsel for
Respondents points out , that there is no direct evidence in
the record that Rushton (or, for that matter , anybody else)
arranged the meeting . Since DiPilato and Foley were never
called to the stand by any party , the answer to counsel's
perceptive question-"How was it that this meeting was
called then?"-must forever remain a mystery.
The trouble with Respondents ' argument that no finding
of a Section 8(a)(2) violation is possible on this record is, as
indicated by the headnote to the section of their brief in
which their Section 8(a)(2) argument appears , that they
have misconstrued the complaint . There is no allegation
that Rushton & Mercier (New Hampshire ) has violated the
Act. In fact, Rushton & Mercier (New Hampshire) is not
even a party to this proceeding . The allegation is that Re-
spondents , that is , Rand & Co. and Rushton & Mercier
(Massachusetts), have assisted District 50 in the course of
a series of events which resulted in Respondents replacing
a union they found too expensive with one they found ac-
ceptable . In that posture , the evidence which bears on the
Section 8(a)(2) issue is much more than merely the evidence
of what happened at the 88 Restaurant on June 28 , and the
case relied on by Respondents , Coamo Knitting Mills, 150
NLRB 579, is inapposite . In Coamo the employer permitted
a union to solicit its employees on company property but on
their own time (for all but 5 of 170 employees) while a
company representative was present . The Board found that
these facts did not add up to a violation of Section 8(a)(2).
Here the additional facts which weigh against Respondents
are legion . June 28 was only a weekend after Rand & Co.'s
purchase of the Rushton & Mercier name . Rushton bucked
the problem of what to do to Burke when DiPilato walked
through the office door and demanded recognition. The
look which Burke gave to the authorization cards signed by
the six employees who had so recently lunched with Rush-
ton and Mercier, DiPilato and Foley was cursory at best.
Burke , the dupe , bucked the problem to Morris Rand, who
decided that Rushton & Mercier (New Hampshire), a com-
pany whose name and good will he had just acquired but
which was specifically required to continue in business on
its own under the terms of the deal, would recognize District
50 without more . Burke , not Rushton or Mercier , negotiated
with District 50. Shortly after September 7, Rushton, by
then a supervisor for Rushton & Mercier (Massachusetts),
told two newly hired employees , Frank Tino and Pasquale
Colacetti, that they had to sign immediately an authonza-
RUSHTON & MERCIER WOODWORKING CO. 139
tion for deduction of District 50 dues from their wages.
Above all , there was a plan. Here , as in the Section 8(a)(5)
aspect of this case, while the finding that Respondents were
discriminatorily motivated is not essential to a finding that
they violated Section 8(a)(2), it dictates that finding. There-
fore , I find Respondents contributed assistance and support
to District 50 as the representative of the employees of
Rushton & Mercier (Massachusetts) as proscribed by Sec-
tion 8(a)(2) of the Act.
Upon the foregoing findings of fact , and upon the entire
record in this case , I make the following:
CONCLUSIONS OF LAW
1. Rushton & Mercier Woodworking Co., Inc., and
Rand & Co., Inc ., are employers engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. Local 51, United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO, and International Union of Dis-
trict 50, Allied and Technical Workers of the United States
and Canada, and its Local Union 13974, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. All journeymen and apprentice carpenters employed
by Respondents or either of them, excluding all other em-
ployees, are a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times relevant to this case, Local 51 has been and
is now the representative for the purpose of collective bar-
gaining of the employees in the unit described above within
the meaning of Section 9(a) of the Act.
5. By laying off Rand & Co.'s employees and closing its
shop on April 30, 1971, by thereafter subcontracting work
to Rushton & Mercier (New Hampshire) in Salem, by pur-
chasing the name and good will of Rushton & Mercier (New
Hampshire) on June 25 ,197 1, by having Rushton & Mercier
(New Hampshire) recognize District 50 on June 28 , 1971, by
thereafter negotiating a contract made effective June 28,
1971, with District 50 on behalf of Rushton & Mercier (New
Hampshire), by incorporating Rushton & Mercier (Massa-
chusetts) on September 2, 1971, by resuming production in
Boston on September 7, 1971, with the former employees of
Rushton & Mercier (New Hampshire), by applying the
terms of District 50's agreement with Rushton & Mercier
(New Hampshire) to their operations in Boston thereafter,
and by threatening newly hired employees of Rushton &
Mercier (Massachusetts) with discharge for refusing to join
District 50, all without notice to or bargaining with Local
51 and all with the purpose of reducing their labor costs by
replacing Local 51 as the representative of their employees
with District 50, Respondents have violated Section 8 (a)(1),
(2), (3), and (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
In order to effectuate the policies of the Act, it is neces-
sary that Respondents be ordered to cease and desist from
the unfair labor practices found and remedy them. Respon-
dents' violations of Section 8(a)(2) of the Act require an
order that they withdraw and withhold recognition from
District 50 as the representative of their employees and
cease giving effect to District 50's agreement with Rushton
& Mercier (Massachusetts) unless and until such time as
District 50 is certified by the National Labor Relations
Board, and that they reimburse employees for any initiation
fees, dues, or other moneys withheld from their wages for
the benefit of District 50, with interest at 6 percent per
annum as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. Respondents' violations of Section 8(a)(5) require an
order that they recognize and bargain with Local 51 and, if
an understanding is reached , embody such understanding
in a signed agreement.
Respondents' violations of Section 8(a)(3) require an or-
der that they undo the effects of the discrimination against
Rand & Co.'s employees. The General Counsel takes the
position that only employees represented by Local 51
should be included in such a remedy, and a list of such
employees has been included in the record so that the order
can list by name all discriminatees to be made whole. How-
ever, such a remedy would be too narrow, for both unit and
nonunit employees were laid off by Rand & Co. on April
30 pursuant to its plan. Nonunit employees are thus as much
victims of Respondents ' discrimination as unit employees
and must be included. Since there is no comparable list of
nonunit employees in the record , I shall not attempt to list
discriminatees by name in my recommended Order but
shall leave that determination to the compliance stage.
Respondents contend that no backpay should be award-
ed, relying on the economic situation in which Rand & Co.
found itself on April 30 . Respondents' argument is based on
its position that the April 30 layoff was motivated solely by
economic considerations. Since I have found that the layoff
was illegally motivated , at least in substantial part, there is
no merit in Respondents' position that no backpay is called
for. However , I have also found that the economic facts at
that time were as Respondents represented them. Absent a
discriminatory motive, Rand & Co. might well have closed
its shop and laid off all its employees for a time on April 30.
When it would have reopened and with how many employ-
ees under those circumstances is speculative . The only thing
that can be said with certainty now is that the measure of
the work which would have been available to Rand & Co.'s
employees is the work which was subcontracted to Rushton
& Mercier (New Hampshire) between May 27, when the
Carpenters strike in the Boston area ended , and September
7 and the work performed by Rushton & Mercier (Massa-
chusetts) since September 7. Therefore, insofar as a rein-
statement remedy is concerned , I shall recommend that
Respondents order immediate reinstatement to as many of
the Rand & Co. employees laid off on April 30 as Rushton
& Mercier (Massachusetts) now needs, discharging present
employees not in that group, if necessary, to make room for
them and that it place on a preferential hiring list the names
of any employees laid off on April 30 who cannot be used
immediately by Rushton & Mercier (Massachusetts).
Which employees shall be offered immediate reinstatement
and which shall be placed on the preferential hiring list can
also be determined in the compliance stage , as well as
whether Respondents' letters of October 26 and November
26, 1971, and March 17, 1972, were valid offers of rein-
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement to some discriminatees . Insofar as a backpay rem-
edy is concerned, I shall simply recommend that employees
discriminated against be made whole . Once again, the
amount due each, including interest at 6 percent per annum
computed in the same manner as interest on initiation fees,
dues, and other moneys withheld for the benefit of District
50, can be determined under the criteria indicated here in
the compliance stage.
Since the violations by Respondents which I have found
deliberately denied to Rand & Co.'s employees the right to
be represented by a representative of their own choosing, a
right which lies at the heart of the Act, I shall recommend
a broad rather than a narrow order.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:2
ORDER
Rushton & Mercier Woodworking Co., Inc., and Rand
& Co., Inc., their officers , agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Contributing assistance or support to International
Union of District 50, Allied and Technical Workers of the
United States and Canada, and its Local Union 13974, or
any other labor organization as the collective -bargaining
representative of their employees.
(b) Refusing to recognize and bargain with Local 51,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, as the exclusive collective -bargaining represent-
ative of their employees in the unit found appropriate here-
in.
(c) Unilaterally changing the terms and conditions of the
employment of its represented employees, including sub-
contracting unit work , without bargaining with their repre-
sentative.
(d) Laying off their employees and closing their plant in
order to get rid of an incumbent labor organization and
replace it with another , thereby discouraging membership in
Local 51 , United Brotherhood of Carpenters and Joiners of
America, AFL-CIO.
(e) In any manner interfering with , restraining, or coerc-
ing employees in the exercise of rights guaranteed in Section
7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Withdraw and withhold recognition from Interna-
tional Union of District 50, Allied and Technical Workers
of the United States and Canada, and its Local Union
13974, and cease giving effect to the collective-bargaining
agreement of Rushton & Mercier Woodworking Co., Inc.,
with those labor organizations unless and until such time as
at least one of them is certified by the National Labor
Relations Board.
2 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,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes.
(b) Reimburse present and former employees for any ini-
tiation fees, dues, or other moneys withheld from their wag-
es for the benefit of International Union of District 50,
Allied and Technical Workers of the United States and
Canada, and its Local Union 13974, with interest at 6 per-
cent per annum.
(c) Upon request, bargain collectively with Local 51,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, as the exclusive representative of the employees
in the unit found appropriate herein and, if an under-
standing is reached, embody such understanding in a signed
agreement.
(d) Offer to employees of Rand & Co., Inc., who were
laid off on April 30, 1971, in such numbers as are presently
required by Rushton & Mercier Woodworking Co., Inc., to
operate their plant, discharging, if necessary, other employ-
ees of Rushton & Mercier Woodworking Co., Inc ., imme-
diate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and privi-
leges.
(e) Place the names of any employees of Rand & Co.,
Inc., laid off on April 30, 1971, who are not offered imme-
diate and full reinstatement pursuant to this Order on a
preferential hiring list and offer them immediate and full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, as va-
cancies occur.
(f) Make whole the employees of Rand & Co., Inc., who
were laid off on April 30, 1971, for any earnings they lost
as a result of the discrimination against them, plus 6 percent
interest.
(g) Notify immediately any employees of Rand & Co.,
Inc., laid off on April 30, 1971,who are presently serving in
the Armed Forces of the United States, of the right to full
reinstatement, upon application after discharge from the
Armed Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
(h) Post at their plant in Boston, Massachusetts, copies
of the attached notice marked "Appendix.- 3 Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by Respondents' authoriz-
ed representative, shall be posted by them immediately
upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or covered
by any other material.
(i) Notify the Regional Director for Region 1, in wasting,
within 20 days from the date of the receipt of this Decision,
what steps Respondents have taken to comply herewith 4
i In the event that this Order is enforced by a Judgment of a United States
Court of Apeals, 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."
4 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read - "Notify
the Regional Director for Region I , in wasting , within 20 days from the date
of this Order , what steps Respondents have taken to comply herewith "