Tricor Products, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1978

239 N.L.R.B. 65 (N.L.R.B. 1978)

TRICOR PRODUCTS, INC.
Tricor Products, Inc. and/or C & J Pattern Co. and
Pattern Makers League of North America, Denver
Association. Case 27-CA-5370
October 24, 1978
DECISION AND ORDER
BY MEMBERS JENKINS. MURPHY, AND TRUESDALE
On July 11, 1978, Administrative Law Judge Rus-
sell L. Stevens issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed an
answering brief and cross-exceptions and supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Tri-
cor Products, Inc. and/or C & J Pattern Company,
Broomfield, Colorado, its officers, agents, successors,
and assigns shall take the action set forth in the said
recommended Order, as so modified:
1. Substitute "May 31, 1978," for the date appear-
ing in paragraph 2(a).
2. Substitute the attached notice for that of the
Administrative Law Judge.
' Respondent impliedly argues that only a single overall unit is appropri-
ate at Tricor and that, such being the case, the Union is precluded from
representing the unit unless and until it shows a majority status through
election. However, the Administrative Law Judge found that Tricor's pat-
ternmaking operation is a continuation of and the same as the patternmak-
ing business of C & J. Moreover, the record establishes that Tricor's pat-
ternmaker employees constitute a separate. integral work group, with
separate craft and/or departmental interests, and as such constitute an ap-
propriate bargaining unit.
In adopting the Administrative Law Judge's Decision, we note that his
fn. 19 indicates that the Board's Decision in Marquis Elevaior Company, Inc.
appears at 213 NLRB 405, whereas the correct citation to that Decision is
217 NLRB 461 (1975).
3 In his recommended Order and notice, the Administrative Law Judge
incorrectly reflects the expiration date of the collective-bargaining agree-
ment between C & J and the Union as May 31. 1977. The record estab-
lishes that the expiration date of that agreement is actually May 31, 1978,
and the Order and notice are hereby modified to correct this inadvertent
mistake.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WiLL NOT fail and refuse to honor and ap-
ply the C & J Pattern Co.'s collective-bargain-
ing agreement with Pattern Makers League of
North America, Denver Association, upon relo-
cation of the C & J patternmaking facility to
the Tricor Products, Inc., facility or to bargain
with the Union concerning effects of that reloca-
tion.
WE WILL NOT constructively discharge our em-
ployees by giving them the choice of quitting
their jobs or working without union representa-
tion.
WE WILL NOT refuse to make fringe and bene-
fit payments as required by the aforesaid agree-
ment between C & J and the Union.
WE WILL NOT tell our employees that Tricor
was organized and is operated as a nonunion
company and that they can work for Tricor if
they want to work for a nonunion company.
WE WILL NOT offer Tricor stock to our employ-
ees on the condition that they reject the Union
as their bargaining agent.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7
of the Act.
WE WILL honor and comply with all the terms
and conditions of the bargaining agreement be-
tween C & J and the Union, including payment
of all fringe and pension benefits thereunder,
through the term of said agreement, which ex-
pired May 31, 1978, and thereafter until agree-
ment is reached on terms of a new contract, or
until impasse is reached after good-faith bar-
gaining.
WE WILL bargain with the Union concerning
the effects of the relocation of C & J to the Tri-
cor plant.
WE WILL make whole all former C & J em-
ployees for any reduction in wages and benefits,
or for failure to make appropriate pension,
health and welfare, and other contributions,
which said employees may have suffered as a
result of our withdrawal of union recognition
and failure to apply said agreements after relo-
cation.
WE WILL reimburse the Union for the loss of
all health and welfare, pension plan, and other
65
DECISIONS OF NA I IONAL LABOR RELATIONS BOARD
payments incurred by the Union as a result of
our unilateral and illegal violation of the C & J
agreement.
WE WILL offer Alysius Filipowicz immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to hi,: sen-
iority or other rights and privileges, and made him
whole for his loss of earnings, plus interest.
TRICOR PRODUCTS. INC. AND/OR C & J
PATTERN CO.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS. Administrative Law Judge: This
matter was heard in Denver, Colorado, on February 2 and
April 20,1 1978.2 The complaint, issued October 14, is
based upon an original charge filed May 10, and an
amended charge filed September 28, by Pattern Makers
League of North America, Denver Association (hereinafter
Union). The complaint alleges that Tricor Products, Inc.
and/or C & J Pattern Co. (hereinafter Tricor, or C & J,
or Respondent) violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of
General Counsel and Respondent.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Since on or about April 20, 1977, Tricor has been a cor-
poration duly organized under, and existing by virtue of
the laws of, the State of Colorado and maintains its princi-
pal office and place of business at Broomfield, Colorado,
where it is engaged in the operation of a pattern shop,
foundry, and machine shop. In the course of its business
operations, Tricor annually sells goods and performs ser-
vices valued in excess of $S50,000 to and for customers lo-
cated outside the State of Colorado.
C & J was, until on or about April 1, 1977, a partner-
ship consisting of Alysius Filipowicz,3 Charles Richard
Sommers, Jr., and John A. Hussle. After about April 1,
1977, C & J was a sole proprietorship consisting of John
A. Hussle. C & J maintained a place of business at Wheat-
' The hearing of February 2. before Administrative Law Judge Jerrold
Shapiro, was opened briefly and continued to April 20.
2 All dates hereinafter are within 1977, unless stated to be otherwise.
3All individuals named herein are referred to by their last names.
ridge, Colorado, until approximately April 15, 1977. At all
times material herein, C & J was engaged in the pattern-
making business and, in the course and conduct of its busi-
ness operations, annually sold goods and performed ser-
vices valued in excess of $50,000 directly to and for
customers located outside the State of Colorado.
I find that Tricor and C & I, at all times material
herein, have been employers engaged in commerce within
the meaning of Section 2(2), (6). and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
Background 4
On May 6. 1974, Hussle and Sommers organized C & J
as a partnership, for the business of making wooden and
metal patterns and models. After the company was orga-
nized, Filipowicz, who had been an employee, became a
partner. C & J's principal customers were four or five
businesses in the computer industry, although it did some
other work. The business occupied leased quarters of ap-
proximately 2,230 square feet. C & J did no foundry or
machine work, and its tools were limited to those used in
pattern- and modelmaking. On September 29, 1976, Som-
mers and Filipowicz signed on behalf of C & J a "Labor
Management Contract" effective Jane 1, 1976, to May 31,
1978. The contract includes, inter alia, a 30-day union-se-
curity provision and provisions for payments by C & J
into a pension trust fund. The contract covered C & J's
patternmakers, then approximately five in number. The
C & J contract was adhered to by C & J and the Union
at all times after it was signed, until approximately April
20, as discussed infra. On April 1, Hussle purchased all of
the partnership interest of Filipowicz and became the sole
proprietor of C & J. Sommers and Filipowicz continued
after April I to work for Hussle as patternmakers. Other
patternmakers employed by C & J after April I were Bob
Chilelli, Frank Amack, and Richard Holsan. All the em-
ployees were supervised by Hussle. Office work was done
by Hussle's wife, who was not an employee and who re-
ceived no compensation for her work.
Jack Weber and his wife were shareholders in a corpora-
tion known as JW Industries, prior to April I. Business of
the corporation was operation of a machine shop of ap-
proximately 1,700 square feet, located approximately 23
miles from C & J. JW Industries had no relationship with
C & J other than doing machine work on castings for
C & J, and the Webers had no personal relationship with
'Much of this background summary is based upon Hussle's testimony.
General Counsel seeks to discredit Hussle and also seeks an adverse infer-
ence on the basis that Respondent did not produce subpenaed documents.
That inference is not made, since Hussle generally was a convincing witness
who is credited unless otherwise stated. The conclusions reached infra are
based in substantial measure upon Hussle's testimony. which, in itself, is
supportive of several allegations of the complaint.
66
TRICOR PRODUCTS, INC.
C & J. Prior to the events relevant herein, all assets of JW
Industries were sold to the Webers, who then became sole
proprietors of the business.
In March Hussle discussed with the Webers the possibil-
ity of forming a new business to do patternmaking.
foundry work, and machine work. As a result of those dis-
cussions., a new corporation, Tricor., was organized on
April 20. Hussle sold his C & J ownership to Tricor in
exchange for 50-percent ownership of Tricor. Only physi-
cal assets were sold; the price incuded nothing for good-
will. The other 50 percent of the stock was sold to the
Webers in exchange for their assets in JW Industries. It
was planned to combine the assets of C & J and JW In-
dustries, to purchase new equipment for a foundry, and to
establish a new business in a new location. Incorporators
were Hussle and his wife and the Webers. Hussle was the
first president of the corporation, Weber was vice presi-
dent, Mrs. Hussle was secretary, and Mrs. Weber was trea-
surer. Those four constituted the first board of directors.
The Webers subsequently sold their interest in the corpora-
tion, and Tricor shares now are owned by the Hussles,
Sommers, Oscar Hewitt, and a few minor shareholders.
Present officers are Hussle as president and Mrs. Hussle as
secretary. The Hussles are the principal shareholders. Hew-
itt is general manager of the plant and holds 10 shares of
corporate stock. The Hussles and Hewitt presently consti-
tute the board of directors.
Tricor commenced business approximately April 15, in
leased quarters of approximately 38,500 square feet located
approximately II miles from C & J. All machinery and
equipment previously owned by C & J and JW Industries
were moved to Tricor's location, and C & J and JW In-
dustries were closed. The premises leased by C & J were
subleased by Hussle to an independent third party. New
equipment for the foundry was ordered and was financed
by a lending institution, with machinery and equipment
formerly owned by C & J and JW Industries used as col-
lateral. Patternmakers working for C & J when it was
closed were transferred to Tricor and became employees of
Tricor. Those employees were paid by C & J through the
payroll period ending April 20. Some pattern work not
completed by C & J was taken to Tricor and finished
there.
When Tricor first started doing business, it had four or
five patternmakers, two full-time and one part-time ma-
chinists, and no foundry workers. The foundry occupies
15,000 square feet of the building, the machine shop 10,000
square feet, and the pattern shop 4,500 square feet. At the
present time, the foundry produces approximately 50 per-
cent of the revenue, with a projection of 70 percent, and
has eight employees. Machinist employees now total four,
and patternmaker employees have been reduced to two,
plus a foreman. Projections for the machine shop are 20 or
25 employees, and pattern shop projections are uncertain
at the present time. Books and records are maintained for
the single entity Tricor.
Prior to April I, Hussle talked with the employees of
C & J and told them about the proposed formation of
Tricor. He advised the employees that Tricor would pay
the equal of union wages and benefits and said the employ-
ees could transfer to Tricor if they wanted but that it would
be a nonunion shop.
On April 8, Farrell Gerland, business manager and fi-
nancial secretary of the Union, sent a letter to Hussle read-
ing as follows:
It has come to the attention of this Association that
some important changes in the status of C & J Pat-
tern Co. may occur. If these changes result in any legal
ramifications concerning our Collective Bargaining
Agreement with you, then the Executive Committee of
this Association desires to meet with you promptly to
discuss these items of change.
So that difficulties do not arise in the future and
also that our members employed by your firm do not
suffer any loss of Contracted Benefits, please keep this
Office informed of any contemplated restructuring of
C & J Pattern Co.
I further wish to remind you that until proof in writ-
ing is presented to us of dissolution of C & J Pattern
Co. that the Collective Bargaining Agreement must be
complied with, and concerning all workers as covered
by that Agreement.
On April 22, Hussle replied as follows:
This is to advise you that as of April 20. 1977
C & J Pattern Co. no longer exists.
Therefore, as of this same date, there is no Pattern
Makers Union Contract for the man that *was em-
ployed with us at that time.
On May 3. Gerland met at Tricor with Hussle and Weber
and asked them to re-sign the C 8: J contract or negotiate
a new contract for Tricor. Hussle and Weber refused the
request. At that time, Amack. Filipowicz. Chilelli. and Hol-
san were paid-up members of the Union in good standing.
In July Hussle and Gerland talked on the telephone
about the possibility of the Union supplying pattern work-
ers for Tricor, and Hussle said he wanted to have a con-
tract with the Union. That conversation was confirmed in
writing by Gerland on July 21.s On July 28. Gerland. Chi-
lelli.6 and a union representative named Lightfoot met with
Hussle, Hussle's wife, and Sommers to negotiate a con-
tract. The Union wanted Hussle to re-sign the old C & J
contract, but Hussle wanted some changes. Gerland agreed
to take the suggestions back to the Union's executive com-
mittee, which he did. The committee refused to accept the
changes, because it felt the old contract with C & J still
was effective, and applicable at Tricor. Since that time
Hussle has not re-signed the C & J contract, nor has he
entered into a new contract for Tricor. The last report sub-
mitted to the union trust fund on behalf of C & J is dated
May 15 7 and covers two employees, Chilelli and Holsan.
Stated in the report, inter alia, is the comment, "C & J
Pattern Co. no longer exists...." Tricor employs no
union patternmakers at this time. Tricor has made no ben-
efit payments under the C & J contract since April 20.
GC,(. Exh 7
Chilelli was a union representalive. in addition to being a patternmaker.
C,(. Eih. 6.
67
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The C & J Contract
The fact that the C & J bargaining agreement was
signed by two of C & J's partners, and the fact that the
contract was honored by the Union and C & J at all times
prior to April 20, is shown by the record and by Hussle's
testimony. Hussle testified that he never has had a copy of
the contract, but he said he believed the contract was dis-
cussed at a C & J partnership meeting, and he said the
other two partners told him they signed it. However, that
testimony is irrelevant, since two of the three partners
could and did bind the partnership to the contract, and
further, Respondent cannot now disavow that contract
since, as Hussle testified, it has received benefits, and per-
formed under it, since June 1, 1976.
Respondent argues that the C & J contract is void be-
cause there was no union election, Board certification,
show of authorization cards, or other evidence that the
Union was the properly designated representative of pat-
ternmakers at C & J. That argument is devoid of merit.
All C & J patternmakers, at all times since the contract
was signed, were union members, and further, as pointed
out supra, C & J and the Union recognized, worked un-
der, and honored the contract after it was signed. It is too
late now to attack the C & J contract.
It is found that the C & J contract is valid in every
respect and fully enforceable by the parties thereto.
B. Tricor
1. It is abundantly clear that Tricor is an independent
legal entity. Hussle was candid in his testimony. He testi-
fied that he did not plan to have a union shop at Tricor and
that he told the employees at C & J, and Gerland, that
such was his intention. Whatever may be his attitude to-
ward unions, Hussle told the employees they would be paid
by Tricor at the union level, and further, he had some ne--
gotiations with the Union about the possibility of using
union patternmakers. In any event, there is nothing to
show, or even to raise a suspicion, that Tricor was con-
ceived or established in order to avoid the C & J contract
or to run away from the Union. Gerland testified that Hus-
sle never said anything to indicate that the new plant was
being established at Tricor in order to avoid the C & J
contract. It is found that Tricor was organized and estab-
lished for economic reasons only and that C & J was
closed for economic reasons unrelated in any way to the
Union.
2. It is clear that Tricor is an entirely different business
and separate from C & J. Tricor occupies a building of
about I acre in size, with a present complement of approxi-
mately 19 employees and a projected complement of sev-
eral times that number. The principal source of revenue,
and the largest operation, of Tricor is the foundry. Tricor is
a corporate entity, with approximately 10 or 12 sharehold-
ers. Tricor is located several miles from the former location
of C & J and JW Industries. C & J occupied quarters of
only 2,230 square feet, was devoted solely to making pat-
terns and models, and had only five employees. C & J
sent its foundry and machining work to outside businesses,
one of which was JW Industries. The only common link of
importance between C & J and Tricor is the fact that
Hussle is the principal figure behind the two organizations.
The two businesses are almost totally different in size,
structure, business goals, concept, and location.
3. It is equally clear, however, that Tricor's patternmak-
ing operation is almost identical with that of C & J. When
C & J closed, it transferred its operation to Tricor.
C & J's machinery and equipment were moved to Tricor,
and all C & J's patternmakers were transferred to Tricor.
All work pending at C & J was moved to Tricor and fin-
ished there by using the same machinery, equipment, and
employees formerly used on that work at C & J. It is
found that Tricor's patternmaking operation is a continua-
tion of, and the same as, the patternmaking business of
C & J.
C. The Union's Position
Gerland made several attempts to bargain with Hussle
concerning the Tricor operation and the C & J employees,
without success. Hussle contended that Tricor was not
bound by the C & J contract and had no duty to bargain
with the Union, since there had been no Board certifica-
tion, card claim, or election at Tricor. Hussle discussed
with Gerland the possibility of using union patternmakers,
without a contract, but nothing resulted from that discus-
sion. Gerland did not seek to represent all of Tricor's em-
ployees; he only requested bargaining for the patternmak-
ers. At the time of Hussle's letter of April 22 to Gerland,
when C & J no longer existed, Tricor's patternmakers all
were union members. Since that time Tricor's patternmak-
ers have been turned over, and the present employees are
nonunion.
During all of the foregoing discussions, the Union at-
tempted to continue the application of the C & J contract
to the patternmakers at Tricor,8 including attempts to en-
force the union-security clause and vacation pay clause.
Those attempts have not been successful.
D. The 8(a)(5) Issue
I. At the time Hussle decided to form Tricor, and at the
time the actual move of C & J's machinery, equipment,
and patternmakers to Tricor was made, C & J and the
Union had a valid, existing contract. The Union requested
that C & J discuss with it effects of the proposed move, 9
but Hussle refused to discuss the matter. ° Generally, the
Board has held that an employer must bargain with em-
ployees concerning a partial discontinuance or relocation
of its business operations and the effects thereof." There is
nothing in the record herein to take C & J outside the
ambit of Board requirements. Practical effects of the move
to Tricor may not have been substantial, but the move
The Union's attempt to interfere with Tricor's business arrangements to
finance the purchase of foundry equipment and machinery is given no
weight so far as this 8(aS5) issue is concerned. That is a collateral matter.
G.C. Exh. 2.
0 G.C. Exh. 3.
1 Burroughs Corporation, 214 NLRB 571 (1974); Royal Typewriter Compa-
ny. 209 NLRB 1006 (1974): Ozark Trailers, Incorporated et al., 161 NLRB
561 (1966).
68
TRICOR PRODUCTS, INC.
could have an effect on transportation of employees, num-
ber of patternmakers anticipated by Tricor as necessary for
future operations, working conditions at Tricor, and re-
lated matters. In any event, bargaining was required if re-
quested, and the Union's request was denied. Such a denial
of bargaining relative to effects of the move constituted a
violation of Section 8(a)(5) and (1) of the Act.
2. The Union consistently, from April 8 to the present
time, has contended that the C & J contract followed the
employees to Tricor. At no time did the Union acquiesce in
Respondent's position or waive its rights under the C & J
contract. To the contrary, the Union repeatedly has
pressed its position and requested Hussle to bargain, but
Hussle refused to do so.
It is well established that an existing and effective collec-
tive-bargaining agreement remains in effect following relo-
cation of a plant, provided operations and equipment re-
main substantially the same and a substantial percentage
of the employees at the old plant transfer to the new loca-
tion.i2 It is found, above, that operations and equipment of
the facility substantially were the same as those at Tricor
and, further, that a majority of Tricor's patternmakers were
comprised of unit employees from C & J. Respondent
therefore had a duty to honor its C & J bargaining con-
tract at Tricor when the C & J move was required.' As
discussed supra, Respondent refused to apply the C & J
contract to the patternmakers at Tricor and announced to
employees, as well as to the Union, that Tricor would be a
nonunion plant. Respondent thereby violated Section
8(a)(5) and (1) of the Act.
3. Respondent impliedly argues that only a single unit is
appropriate at Tricor and that, such being the case, the
Union is precluded from representing the unit unless and
until it shows its majority status through election. It is in-
cumbent upon Respondent to reach through bargaining an
accommodation with the Union relative to employees the
Union represents at Tricor. Any appropriate unit question
can be determined in orderly fashion, either by agreement
of the parties or through established Board procedure." It
cannot be determined by Respondent's unilateral decision.
Further, the existence of more than one unit in a single
plant is common.
4. The fact that C & J was permanently closed approxi-
mately April 20 is immaterial. First, the closure was ac-
companied by a simultaneous move of all machinery,
equipment, work in process, and employees to the new lo-
cation at Tricor. The facility merely was transferred to a
new location; it was not out of existence, as Respondent
contends. Second, article IX of Tricor's articles of incorpo-
ration provides that C & J and JW Industries are "merg-
ing into one company, to be known as Tricor Products,
Incorporated and which assumes all assets and liabilities
of" C & J and JW Industries. Under such circumstances,
merely stating that C & J "closed" does not alter the legal
12 Allied Mills, Inc., 218 NLRB 281 (1975); The Riftling Corporation, 203
NLRB 355 (1973); International Paper Company, 150 NLRB 1252 (1965);
Calfornia Footwear Company, 114 NLRB 765 (1955).
American Can Company, 218 NLRB 102 (1975); Allied Mills. supra;
Westinghouse Electric Corp., 174 NLRB 636 (1969).
4 Gerland testified that the Union represents only patternmakers. That
point was not explored at the hearing.
principles involved. Both operations--C & J and Tricor-
effectively were and are owned and controlled by the same
individual.
5. The facts that C & J and Tricor are separate legal
entities and that the establishment of Tricor was economi-
cally motivated are irrelevant. For the purposes of this
case, Tricor is the alter ego of C & J. As noted supra, Hus-
sie is the principal force behind both C & J and Tricor.
Hussle presently owns, with his wife, most of the stock of
Tricor, and Hussle is the administrator of Tricor's affairs.
Patternmaking is only a portion of Tricor's business, but
that portion was the entire business of C & J; the latter
firm was absorbed in toro by Tricor. C & J's closure, un-
der such circumstances, does not relieve Tricor of responsi-
bility for C & J's contract with the Union. Tricor assumed
C & J's debts, liabilities, current business, customers, em-
ployees, machinery, and equipment, moved the entire oper-
ation to Tricor's new facility 11 miles away, and immedi-
ately picked up C & J's work where C & J had left off,
with Hussle as the principal director and administrator at
both locations. Clearly, C & J and Tricor are one and the
same. 15
Tricor being the alter ego of C & J, Tricor is bound by
C & J's contract with the Union, even though Tricor was
not signatory to that agreement.'6
E. The 8(a)(1) Issues-Statement and Offer of Stock
Paragraph VI of the complaint alleges that on or about
May 3 Hussle offered stock in Tricor to employees if they
would reject the Union as their collective-bargaining repre-
sentative and on or about April 7 told employees that Tri-
cor was to be formed and operated as a nonunion compa-
ny.
Hussle acknowledged the statement attributed to him in
the allegation, and Gerland, Amack, Chilelli, and Filipow-
icz credibly testified to the same effect. Relative to the of-
fer of stock, Amack credibly testified:
Q. Now, during the time you were on lay-off, did
you receive any phone calls from Mr. Hussle?
A. Yes. The last time I was laid off. He called me
up, and he wanted to know if I would accept some
shares in his company, and this way I could get a-I
would be part owner of the company, and I could get
a withdrawal card from the union, and he told me he
was going to offer this to myself, Al Filipowicz, and
Richard Holsan, and I said, "Well, what about Bob
Chilelli," and he says, "I don't want to offer this to
Bob at this time on account of his position with the
union."
Q. Mr. Chilelli's position with the union was what?
A. He was President of our local.
These two allegations cannot be considered in a vacuum;
they must be assessed against the background of Hussle's
15 Southport Petroleum Company v. N.LR.B., 315 U.S. 100 (1942): Co-Ed
Garment Comnpany and its Alter Ego Delta Manufacturing Corp.. 231 NLRB
848, 855 (1977), citing Crawford Door Sales Company. Inc., 226 NLRB 1144
(1976).
16 Schultz Painting and Decorating Co., 202 NLRB I 1 11973).
69
DECISIONS OF NAIIONAL LABOR RELATIONS BOARD
entire course of action in order to determine the nature of
the violation.
Hussle made no secret of his determination to close
C & J, move its operation to Tricor. repudiate his conti act
with the Union, and run Tricor as a nonunion business. He
advised Gerland and the C & J employees of his inten-
tions, and made it clear that he was serious. He refused to
bargain with the Union about the move, and he took sev-
eral affirmative actions in advance of the move, such as
signing a lease for Tricor premises and talking with the
employees about definite plans. Chilelli and Amack, both
of whom were union members, were told by Hussle when
they were hired about the move and the fact that Tricor
would be nonunion. Yet all the C & J patternmakers
moved to the new location.
So far as the offer of stock is concerned, there is no
indication that the offers were accepted. Thus, it appears
that the offer of stock constitutes no more than an 8(a)(l)
violation, as an offer of inducement to abandon union
membership. That violation is found.
The statement that Tricor would be nonunion is an
8(a)(l) violation, but more was involved. General Counsel
did not allege any constructive discharge, but Filipowicz
testified that after being off work since May 6 he returned
to the plant for work on June 30 and talked with Hussle:
A. Yes. I came in and worked approximately two
hours, and at the end of that time period, I was asked
by John to come into the office, and, at that time, with
Roberta Hussle present, John told me the conditions
under which he would expect me to work.
Q. What were those?
A. The wages would be under the present pattern
maker's wage of $10.16 an hour. Don't quote me on
the 16 cents. It might have been 10 cents, 12 cents or
13 cents. Instead of working for that, he says, "You
don't need that. You can work for $10 an hour," and
he also said that the vacations and the pension contri-
bution would-well, let's separate vacations from pen-
sion. Vacations would be the same as the pattern mak-
ers' benefits; the retirement contribution which
ordinarily would go into the pattern makers' pension
trust fund would not be mailed in, but would be put
on a paycheck, and I asked him at that time whether
he would put that in writing, and he says, "There is no
necessity for that." So I told him that I felt that I
didn't belong in the place. So I terminated my employ-
ment.
Hussle did not deny Filipowicz' testimony, and Filipow-
icz is credited. There is no definite indication of what the
employees' status was between the move to Tricor, on
April 20, and May 6, but it is clear that there was some
confusion, and that the Union still was trying to get Hussle
to the bargaining table. It is not unreasonable to conclude
that as of May 6 Filipowicz still believed the Union would
represent the employees. Immediately after returning to
work on June 20, however, he learned otherwise. Being
faced with a choice of working without a union representa-
tive or quitting his job to protect his union status, he chose
the latter. Because of Hussle's refusal to recognize the
Union and bargain, Filipowicz clearly was constructively
discharged in violation of Section 8(a)(3) and (1) of the
Act.'7
As far as the other employees who moved to Tricor are
concerned, it is equally clear that they were faced with the
same choice faced by Filipowicz. although their construc-
tive discharge was not alleged, argued, or shown. Hussle's
giving such a choice to all the employees, i.e., work without
union representation or quit, was a violation of Section
8(a)(3) and (1) of the Act.
F. The 8(a)(3) and (1) Issue-Refusal to Make Payments
Paragraph VII of the complaint alleges that since on or
about April I, 1977, Respondent has refused to make pay-
ments to employees pursuant to the terms of the C & J
contract.
Amack credibly testified that he was laid off in June but
did not receive accumulated vacation pay. The C & J con-
tract provides for such payments, under section (a) of the
provision "vacations and holidays." Chilelli credibly testi-
fied that he received no vacation pay, either at Tricor or at
C & J. Amack credibly testified that Tricor did not make
pension or other payments to the Union on his behalf, as
required by the C & J contract.
Hussle did not deny the testimony of Amack and Chilel-
li, and Hussle acknowledged that Tricor did not honor the
C & J contract. In view of the finding made, supra, that
Tricor was bound by the C & J contract, this allegation
was proved.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
spondent as described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tends to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1), (3),
and (5) of the Act, I shall recommend that they be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully and con-
structively discharged Alysius Filipowicz. I will, therefore,
recommend that Respondent offer Filipowicz his former
job or, if that job no longer exists, a substantially equiva-
lent job, without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of earn-
ings suffered by reason of the discrimination against him
by payment to him of a sum of money equal to that which
he normally would have earned absent the discrimination,
less net earnings during such period, with interest thereon,
I Superior SprinAler, Inc., et at. d ha William Augusto Fire Protection
Servires, 227 NLRB 204 (1976); N. LR.B. v. Rae-Rich Manufacturing Corpo-
ration, 120 NL RB 503. 506 (1958). enfd. 276 F.2d 451 (2d Cir. 1960).
70
TRICOR PRODUCTS, INC.
to be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 65L (1977).8 It will be further rec-
ommended that Respondent preserve and make available
to the Board, upon request, all payroll records, social se-
curity payment records, timecards, personnel records and
reports, and all other records necessary and useful to de-
termine the amounts of backpay due and the rights of rein-
statement under the terms of these recommendations.
C & J's contract with the Union expired May 31. It will
be recommended that Respondent be ordered to comply
with all terms of that contract, including payment to pen-
sion trust fund, until agreement is reached on terms of a
new contract or until impasse is reached after good-faith
bargaining. 19
CONCLUSIONS OF LAW
1. Tricor Products, Inc., and C & J Pattern Co. are,
and at all times material herein have been, employers en-
gaged in commerce and in business affecting commerce,
within the meaning of Section 2(6) and (7) of the Act.
2. Pattern Makers League of North America, Denver
Association, is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By failing and refusing to honor and apply the C & J
collective-bargaining agreement with the Union upon relo-
cation of its C & J patternmaking facility to its Tricor fa-
cility, and by refusing to bargain with the Union concern-
ing the effects of said relocation, Respondent violated
Section 8(a)(5) and (1) of the Act.
4. By constructively discharging Alysius Filipowicz on
June 20, 1977, upon giving Filipowicz a choice of quitting
his job or working without union representation, Respon-
dent violated Section 8(a)(3) and (1) of the Act.
5. By refusing to make fringe and benefit payments to
and for employees as required by the C & J collective-
bargaining agreement with the Union, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
6. By telling its employees that Tricor was to be orga-
nized and operated as a nonunion company, and that they
could work for Tricor after C & J closed if they wanted to
work for a nonunion company, Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
7. By offering stock in Tricor to employees if they would
reject the Union as their bargaining representative, Re-
spondent violated Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
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:
See, generally, Isis Plumbing & Heating (o. 138 NLRB 716 (1962).
m Harold W Hinson, d b a Hen House Muarket ,o 3. 175 NLRB 596
(1969); Bariise Sheet Metal Co., Inc. er al. 199 NLRB 372 (1972): ,tarquio
Elevator (ompany, Inc, 213 NL RB 405 (1974).
ORDER2 0
The Respondent, Tricor Products, Inc. and/or C & J
Pattern Co., Broomfield, Colorado, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to honor and apply the C & J
collective-bargaining agreement with the Union, upon relo-
cation of the C & J patternmaking facility to the Tricor
facility, and refusing to bargain with the Union concerning
the effects of said relocation.
(b) Constructively discharging employees by giving
them the choice of quitting their jobs or working without
union representation.
(c) Refusing to make fringe and benefit payments as re-
quired by the C & J collective-bargaining agreement with
the Union.
(d) Telling employees that Tricor was organized and is
operated as a nonunion company and that they could work
for Tricor after C & J closed if they wanted to work for a
nonunion company.
(e) Offering stock in Tricor to employees if they would
reject the Union as their bargaining representative.
(f) In any other manner interfering with, restraining, or
coercing their employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Honor, and comply with all the terms and conditions
of, the bargaining agreement between C & J and the
Union, including payment of all fringe and pension bene-
fits thereunder, through the term of said agreement, which
expired May 31, 1977, and thereafter until agreement is
reached on terms of a new contract or until impasse is
reached after good-faith bargaining.
(b) Bargain with the Union concerning effects of the re-
location of C & J to the Tricor plant.
(c) Make whole all former C & J employees for any re-
duction in wages and benefits, or for failure to make ap-
propriate pension. health and welfare, and other contribu-
tions, which said employees may have suffered as a result
of withdrawal of union recognition and failure to apply
said agreement after said relocation.
(d) Reimburse the Union for the loss of all health and
welfare, pension plan, and other payments incurred by the
Union as a result of Respondent's unilateral and illegal
violation of the C & J agreement.
(e) Offer Alvsius Filipowicz immediate and full rein-
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for his loss of earnings in the manner set forth in the
section of this Decision entitled "The Remedy."
' In the event no ekceptlots are filed as prosided bs Sri 102 46 of the
Rules aind Regul.lions olf the N.laton.al Iabhor Relations Bmoard, the indings.
conIdlusonns, and recommended Order herein shall. as prosided In Sec
10248 of the Rules and Regllatilitns. he adopied bh the Board and become
its findings. conclusions. and Order, and all ohlectl.ns thereto shall he
deemed valived for all purposes
71
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set
forth in the remedy section of this Decision.
(g) Post at Tricor's Denver, Colorado, operation copies
of the attached notice marked "Appendix." 2 Copies of the
attached notice, on forms provided by the Regional Direc-
21 In the event that this Order is enforced by a judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
tor for Region 27, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that the notices are not altered, defaced,
or covered by any other material.
(h) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
72