Webb Tractor and Equipment Co.

National Labor Relations Board - Board Decisions

Feb 19, 1970

181 N.L.R.B. 230 (N.L.R.B. 1970)

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Webb Tractor and Equipment Company and Inland
Machinery Co. and Lodge No. 1123 , International
Association of Machinists and Aerospace Workers,
AFL-CIO. Case 19-CA-3389
February 19, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Supplemental Order of the Trial
Examiner, and hereby orders that the Respondent,
Inland Machinery Co., Wenatchee, Washington, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Supplemental Order.
On September 11, 1967, the National Labor
Relations Board issued a Decision and Order in this
proceeding,' finding that Respondent Webb Tractor
and Equipment Company had violated Section
8(a)(1) of the National Labor Relations Act, as
amended, and, inter alia , ordering Webb to bargain
with Lodge No. 1123, International Association of
Machinists and Aerospace, Workers, AFL-CIO.
Subsequent to the hearing in that proceeding,
Inland Machinery Co. purchased Webb's Wenatchee
facilities and Caterpillar franchise business.
Thereafter, a controversy arose as to Inland's
responsibility to bargain with the Union. On
September 13, 1968, the Acting Regional Director
for Region 19 issued and served upon Webb and
Inland a notice of supplemental hearing for the
purpose of determining whether Inland became a
successor to Webb, and whether Inland should be
required to bargain with the Union. Webb and
Inland filed answers thereto. On December 12 and
13, 1968, a hearing was held before Trial Examiner
Maurice Alexandre. All parties were afforded full
opportunity to be heard, to examine and
cross-examine witnesses, and to adduce evidence
bearing on the issues to be heard.
On June Il, 1969, the Trial Examiner issued his
Supplemental Decision, finding that Inland is a
successor to Webb and ordering it to bargain with
the Union as set forth in the attached Trial
Examiner's Supplemental Decision. Thereafter,
Respondent Inland filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Supplemental Decision and the entire record in this
case, including the exceptions and brief,' and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner.3
1167 NLRB No 46
'Respondent Inland challenges the entire validity of the supplemental
proceeding herein, and alleges that the Board is precluded from proceeding
against it without having made it a party to the original proceeding against
Webb We find no merit in Inland 's contentions We affirm the Trial
Examiner's findings and conclusions on those issues for the reasons he
gives and upon the authorities he cites
'The Board has also reviewed this case in the light of the Supreme
Court's opinion in N L R B v Gissel Packing Company. 395 U S 575,
and is satisfied that, in view of the nature and extent of the unfair labor
practices committed in this case , the purposes of the Act can best be
effectuated by the imposition of a bargaining order upon successor Inland
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
MAURICE ALEXANDRE, Trial Examiner: On September
11, 1967, the Board issued a Decision and Order in which
it found, among other things, that Respondent Webb
Tractor & Equipment Company (hereafter called Webb
Tractor) had violated Section 8(a)(1) of the National
Labor Relations Act, as amended; that certain objections
to the election held among the employees comprising the
appropriate unit at Webb Tractor's store-shop at
Wenatchee, Washington, were meritorious; that Lodge
No. 1123, International Association of Machinists and
Aerospace Workers, AFL-CIO (hereafter called the
Union), which lost the election, had a majority in the said
unit on the date of its request for recognition and
bargaining; and that Webb Tractor's actions were
designed to undermine and destroy that majority and
exhibited a complete rejection of the collective bargaining
principle. Accordingly, the Board set aside the election
and ordered Webb Tractor and its "successors," upon
request, to bargain with the Union as the exclusive
representative of the said appropriate unit . Webb Tractor
and Equipment Co, 167 NLRB No. 46.
In its Decision and Order, the Board denied a motion
to dismiss the complaint made by Webb Tractor, which
alleged that it had ceased to own or operate any business
in or near Wenatchee. In denying the motion, the Board
stated that the question whether Webb Tractor has gone
out of business and the responsibility of any successor
employer "are issues more properly to be decided in the
compliance stage of this proceeding." On September 13,
1968, the Acting Regional Director issued and served
upon Webb Tractor and on Inland Machinery Co
(hereafter called Inland) a notice of supplemental hearing
alleging that Inland had acquired Webb Tractor's
Wenatchee facility on February 1, 1967, under
circumstances which charged Inland with notice of the
unfair labor practice proceeding pending against Webb
Tractor on the latter date; that Inland retained a majority
of the employees in the unit found to be appropriate; that
since that time, Inland had continued without substantial
change the same business activities as Webb Tractor had
previously carried on at that location, that accordingly
Inland was a successor to Webb Tractor and was
obligated to comply with the requirements of the Board's
181 NLRB No. 39
WEBB TRACTOR AND EQUIPMENT COMPANY 231
Decision and Order of September 11, 1967; and that
neither Webb Tractor nor Inland had complied with such
requirements.
Thereafter, Webb Tractor and Inland filed answers to
the said notice, and a supplemental hearing was held
before me on December 12 and 13, 1968, at which time
Webb Tractor and Inland both appeared and were
afforded the opportunity to participate. At the close of the
hearing, I requested the parties to furnish a stipulation
regarding certain evidence which was not available at the
time. Such stipulation together with attachments bearing
the designation Exhibits A, B, and C were received on
May 28, 1969 and are hereby made a part of the record
herein and identified as TE Exh. 1. The questions
presented are (1) whether or not Inland became a
successor to Webb Tractor under circumstances which
obligate it to comply with the requirements of the Board's
Decision and Order of September 11, 1967; (2) if so,
whether or not the imposition of such an obligation would
unlawfully deprive Inland of due process of law; and (3)
whether or not the supplemental proceeding is
procedurally defective.
Upon the entire record,' my observation of the
witnesses, and the briefs filed by the General Counsel and
Inland, I make the following:
FINDINGS AND CONCLUSIONS'
1. INLAND'S RESPONSIBILITY
purchaser does not work an unfair hardship upon him.
When he substituted himself in place of the perpetrator
of the unfair labor practices, he became the beneficiary
of the unremedied unfair labor practices. Also, his
potential liability for remedying the unfair labor
practices is a matter which can be reflected in the price
he pays for the business, or he may secure an indemnity
clause in the sales contract which will indemnify him for
liability arising from the seller's unfair labor practices.
[Footnote omitted.]
Conceding that Inland was a bona fide purchaser, the
General Counsel contends that under Perma Vinyl, it is
nevertheless responsible for remedying Webb Tractor's
unfair labor practices. Inland contends that it should not
be held responsible for several reasons: it is not a
successor to Webb Tractor; the information it received
prior to the time it began operations at the Wenatchee
facility formerly operated by Webb Tractor cannot be
deemed to constitute notice of the unfair labor practice
proceedings against Webb Tractor; in any event, it will be
deprived of due process of law if it is required to comply
with the Board's bargaining order against Webb Tractor;
and the supplemental proceeding is procedurally defective
and should be dismissed. These contentions are considered
immediately below.
A. The Successorship Issue
1. The employing industry
a. The evidence
In Perma Vinyl Corp, 164 NLRB 968, enfd. sub nom.
U S Pipe & Foundry Co. v NLRB , 398 F.2d 544
(C.A 5), the Board stated that.
. . one who acquires and operates a business of an
employer found guilty of unfair labor practices in
basically unchanged form under circumstances which
charge him with notice of unfair labor practice charges
against his predecessor should be held responsible for
remedying his predecessor's unlawful conduct.
[Footnote omitted.]
In imposing this responsibility upon a bona tide
purchaser, we are not unmindful of the fact that he was
not a party to the unfair labor practices and continues
to operate the business without any connection with his
predecessor. However, in balancing the equities involved
there are other significant factors which must be taken
into account. Thus, "It is the employing industry that is
sought to be regulated and brought within the corrective
and remedial provisions of the Act in the interest of
industrial peace " [Footnote omitted.] When a new
employer is substituted in the employing industry there
has been no real change in the employing industry
insofar as the victims of past unfair labor practices are
concerned, or the need for remedying those unfair labor
practices. Appropriate steps must still be taken if the
effects of the unfair labor practices are to be erased and
all employees reassured of their statutory rights And it
is the sucessor who has taken over control of the
business who is generally in the best position to remedy
such unfair labor practices most effectively. The
imposition of this responsibility upon even the bona fide
' Inland 's unopposed motion to correct the transcript is granted
'No issue of commerce is presented The notice of supplemental hearing
alleges, and Inland admitted and stipulated to, facts which , I find, establish
that it is an employer engaged in commerce and in operations affecting
commerce within the meaning of the Act
Prior to February 1, 1967, Webb Tractor was a
franchised retailer of Caterpillar machinery and
equipment in the central part of the State of Washington
In addition, it also sold the John Deere and certain other
lines of machinery and equipment, sold parts therefor, and
serviced and repaired all these items. Webb Tractor
operated through stores in four cities: Yakima, Pasco,
Ellensburg and Wenatchee. The Wenatchee store is the
one involved in this proceeding. Webb Tractor's
headquarters were at Yakima, where the main business
records were housed, although the Wenatchee store billed
its customers directly. The supervisory hierarchy included
Company President Webb, a general sales manager, a
general service manager, and a general parts manager.
Each of the four stores had a store service manager, a
store parts manager, and a store manager who also served
as the store sales manager. Webb, who was called as a
witness by Inland, testified on direct examination that
each store was fairly autonomous, that the store service
and parts managers were under the supervision of the
store manager, that the store manager was directly
responsible to Webb, and that the general service and
parts managers would also "check in" with the store
manager before conferring with the store parts or service
manager. On cross-examination by the General Counsel,
he testified that the store service and parts managers were
also responsible to the general service and parts managers,
respectively, and that the store manager was responsible
to the general sales manager According to the
uncontradicted testimony of Webb, there was some
interchange of employees among the branch stores.
In the spring of 1966, Webb Tractor informed
Caterpillar Tractor Co. that it wished to relinquish its
franchise. Caterpillar thereupon initiated a search for a
new dealer; and in September of that year, it entered into
negotiations with Inland, which then held a Caterpillar
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
franchise in Oregon.' Caterpillar sent inland a letter
indicating its intention to execute a franchise contract with
that company if it could satisfy certain financial and other
conditions. Inland then began preparations for
commencing business in central Washington, and its
representatives made several trips to that area and entered
into negotiations with Webb Tractor respecting the rental
of some of its realty and the purchase of some of its
assets. As a result of these negotiations, Inland leased
most of the land and buildings formerly used by Webb
Tractor in Yakima, Pasco,' and Wenatchee, purchased
some of Webb Tractor's assets, and purchased from
Caterpillar Tractor certain machinery which the latter had
repurchased from Webb Tractor preparatory to
termination of the latter's Caterpillar franchise. Directly
and indirectly, Inland purchased Webb Tractor assets
valued at $368,849
Webb Tractor's Caterpillar franchise was terminated on
January 31, 1967. Inland discontinued its operations in
Oregon, transferred assets valued at $1,124,000 from that
State,' and commenced operations in central Washington
on February 1, 1967.6 Inland now maintains operations in
three cities, Yakima, Pasco, and Wenatchee, where it sells
and services the Caterpillar and certain other lines of
machinery, equipment and attachments' Its headquarters
are at Yakima, where it keeps its principal records. All of
Inland's statements to customers are sent from Yakima,
and about 90 percent thereof are paid at that location. Its
operational structure is as follows Spitzer, its vice
president and general manager , is in charge of overall
operations. In addition, there is a general parts manager,
a general service manager, and a general sales manager
Each of its three stores has a parts manager, a service
manager, and a store manager .8 The general sales, parts,
and service managers establish the policies governing the
various branch store managers. Although Spitzer testified
that the store service manager and store parts manager
are "primarily" responsible to the corresponding general
manager, it appears from a close reading of his testimony
that they also have some responsibility to the store
manager ; and that although the latter's prime
responsibility is in connection with sales, to which he
devotes approximately 80 percent of his time, the store
manager, at least in the case of Wenatchee Store Manager
O'Connell, " is in charge of the store."
Immediately before the termination of its franchise,
Webb Tractor's total work force was somewhere between
110 and 124 employees, of whom 20-odd were employed
in the Wenatchee store. When Inland began operations on
February 1, 1967, it had a total of 90 or 92 employees. Of
these, 31 had been transferred from Oregon, about 55
were former employees of Webb Tractor and 6 were
newly hired Of the total, 15 were supervisory employees,
of whom 3 were former Webb Tractor employees. One of
the three, Everett Miller, had been employed by Webb
Tractor at its Wenatchee store. At the hearing herein, the
parties stipulated that immediately prior to February 1,
1967, Webb Tractor had in its employ at its Wenatchee
store approximately 14 or 15 rank-and-file shop and
service employees in the unit found to be appropriate It
was further stipulated that when Inland began operations
in Wenatchee on that date, it had 10 rank-and-file
employees in its parts and shop departments, consisting of
8 former members of the Webb Tractor Wenatchee
bargaining unit, Morrison who had been a supervisor at
Wenatchee, and 1 employee who had been transferred
from Inland's Oregon operation The parties further
stipulated that such majority of former Webb employees
continued until February 21, 1967 According to Spitzer's
uncontradicted testimony, there has been some
interchange of employees among Inland's stores.
Following termination of its Caterpillar franchise,
Webb Tractor was left with an inventory of used
Caterpillar machines and several new Caterpillar
machines, upon which Spitzer placed a valuation of over
$1 million and $125,000, respectively' Since that time
Webb Tractor, directly and through a subsidiary, has
continued in business in central Washington, but only at
Yakima and Ellensburg, where it sells and services used
Caterpillar machines, the John Deere and certain other
lines of new machinery and Westrac parts.10 It maintains
no facilities at Pasco or Wenatchee. However, it has
continued to service used Caterpillar and other machinery
in the Wenatchee area, and its general service manager
has visited the area about once a month. In addition, since
about 2 months before the hearing herein, one of its
employees, who spends about 90 percent of his time
traveling about to collect bills, has also attempted to sell
merchandise in Wenatchee. During that 2-month period,
Webb Tractor's sales in the Wenatchee area amounted to
$10,000, as compared with total gross sales of about $3
million in that area during 1966. Inland's sales in the
Wenatchee area amounted to $1,600,000 during 1967. The
John Deere industrial line of machinery and the Westrac
parts which Webb Tractor sells compete to some extent
with the Caterpillar machinery and parts sold by Inland
As of February 1, 1967, Webb Tractor was left with
about 40 employees. In August 1967, when it transferred
part of its John Deere line to its subsidiary, it also
transferred about half of its employees, and currently
employs about 20 employees, including 2 parts and 9
service employees at Ellensburg and 4 service employees
at Yakima.
b Contentions ; concluding findings
'Inland was also a dealer in the John Deere line
'These assets included new machinery, attachments , parts, tools, fixtures,
and furniture Inland had purchased an additional $106,000 in parts sold
by Webb Tractor to Caterpillar , but thereafter returned them to
Caterpillar pursuant to authorization contained in their agreement
'These included new and used machinery , parts, furniture, fixtures, tools,
trucks, and automobiles Inland also had Oregon accounts receivable
valued at $786,000
' it is not clear whether Inland 's franchise contract with Caterpillar was
signed on that date or shortly thereafter Its Caterpillar franchise in
Oregon was terminated on February 15, 1967
'Inland did not lease Webb Tractor' s premises at Ellensburg , but merely
placed two resident servicemen there with service trucks containing
sufficient tools and machines to make most repairs in the field from these
vehicles
'Spitzer is the store manager at Yakima
Inland contends that it is not a successor to Webb
Tractor because it commenced a new operation in central
Washington and did not merely continue Webb Tractor's
former operation In support of this position, it relies on
the following principal claims: (1) it did not take over
Webb Tractor as a going business, but merely purchased,
directly and indirectly, a portion of Webb Tractor's assets
to supplement the large quantity of its own assets
transferred from Oregon; (2) its work force differs from
'It is not clear from the record whether the new machines had already
been sold or whether the sales were made at a subsequent date
"It acquired the Westrac line largely in order to obtain replacement
parts at wholesale prices, and sells at retail no more than half its Westrac
purchases
WEBB TRACTOR AND EQUIPMENT COMPANY 233
Webb Tractor's because there was an almost complete
change in supervisory personnel and a substantial change
in rank-and-file employees after Inland replaced Webb
Tractor; (3) its operational structure is substantially
different in that whereas Webb Tractor's stores were
independent operations supervised by the store managers,
Inland's stores are integrated with the various store
supervisors responsible only to their respective superiofs
based at its headquarters in Yakima; because of such
integration as well as the interchange of employees among
its stores, a unit confined to its parts and service
employees at Wenatchee is not appropriate; and (4) Webb
Tractor has continued to conduct business in central
Washington in competition with Inland
The successorship issue presented in this proceeding is
whether the employing industry at Wenatchee remained
substantially unchanged after February 1, 1967. I find that
it did. Like Webb Tractor prior to that date, Inland has
continued to sell and service Caterpillar and other lines of
machinery and equipment at Wenatchee; it has done so at
the same premises in Wenatchee as those formerly utilized
by Webb Tractor; and it hired for its parts and service
departments at Wenatchee a majority of the employees
who were formerly in Webb Tractor's Wenatchee unit. It
is not decisive that Inland hired fewer than all the
Wenatchee supervisory and unit employees formerly
employed by Webb Tractor, and purchased only some of
the assets owned or formerly owned by Webb Tractor to
supplement its own."
Moreover, I reject Inland's contention that a unit
confined to the parts and service employees at its
Wenatchee facility is not appropriate The background of
the unit question is as follows. In February and March
1966, petitions for certification were respectively filed by
Webb Tractor and by the Union. The former sought an
election in a unit embracing its shop and service
employees at all four stores; the latter urged a unit limited
to such employees at the Wenatchee store. Following a
hearing, the Regional Director issued a Decision and
Direction of Election on April 1, 1966, directing an
election in a unit limited to the Wenatchee store-shop.
Webb Tractor did not seek Board review of that
determination. The election was held on April 28, 1966,
and resulted in 7 ballots for and 8 against the Union. The
Union then filed- objections to conduct affecting the results
of the election, as well as unfair labor practice charges,
and these were consolidated for hearing before a Trial
Examiner Although Webb Tractor contended at that
hearing that the unit designated by the Regional Director
was not appropriate, the Trial Examiner found that the
issue was not relitigable and, without making an
independent determination on the merits of the issue,
adopted the Regional Director's unit determination as
controlling. Thereafter, the Board affirmed the Trial
Examiner's action,12 and in its bargaining order, expressly
found that,"the appropriate unit" is as follows:
All shop department and parts department employees
employed by Respondent at its Wenatchee, Washington,
tractor store-shop, excluding janitors, salesmen, office
clerical employees, professional employees, guards, and
supervisors as defined in the Act.
"Western Freight Assn, 172 NLRB No 46, Johnson Ready Mix Co .
142 NLRB 437; cf. McGuire v Humble Oil & Refining Co, 355 F 2d 352
(C A 2) -
"The Board adopted the Trial Examiner 's findings, conclusions and
recommendations "to the extent consistent " with the Board ' s Decision and
Order, and did not otherwise refer to his views respecting the unit
That unit is identical with the one designated by the
Regional Director
I find that there is insufficient evidence in the record
before me to warrant a finding that the Wenatchee
store-shop unit designated in the Board's Decision and
Order is no longer appropriate. In his Decision and
Direction of Election, the Regional Director, based on
Sav-On Drugs, 138 NLRB 1032, designated as the
appropriate unit the Wenatchee store-shop unit rather
than a division-wide unit in view of several factors: the
geographical separation of the Wenatchee employees from
those at Webb Tractor's other stores, the substantial
authority of each store manager, the minimal interchange
of employees among the stores, the absence of a
bargaining history, and the fact that no labor organization
was seeking to represent the employees on a broader
basis." Contrary to Inland's contention, I find that the
record fails to establish substantially more interchange of
employees among its stores since February 1, 1967 than
among Webb Tractor's stores prior to that date.
Similarly, although Inland seeks to minimize the authority
of its store managers, I find that the record does not
establish a substantial difference between their authority
and that given to the store managers by Webb Tractor.
And since there is no evidence that the remaining factors
referred to above have changed, I conclude that the
Wenatchee store-shop unit designated by the Board
continues to be the appropriate unit
Finally, the record establishes that Webb Tractor
operates no facilities in Wenatchee, that it sells no new
Caterpillar machinery in that area, and that it does not
otherwise compete significantly with Inland in the area I
therefore find that Webb Tractor cannot be regarded as
having remained in business as a serious competitor of
Inland in the Wenatchee area. Accordingly, it is
unnecessary to decide whether a finding of successorship
would be precluded if Webb Tractor were a serious
competitor to Inland.
In Wiley & Sons, Inc v. Livingston, 376 U.S. 543, 549,
the Supreme Court stated
Employees . . ordinarily do not take part in
negotiations leading to a change in corporate
ownership The negotiations will ordinarily not concern
the well-being of the employees, whose advantage or
disadvantage, potentially great, will inevitably be
incidental to the main considerations. The objectives of
national labor policy, reflected in established principles
of federal law, require that the rightful prerogative of
owners independently to rearrange their businesses and
even eliminate themselves as employers be balanced by
some protection to the employees from a sudden change
in the employment relationship.
And in N L R B v. McFarland, 306 F.2d 219 (C.A.-10),
the court stated that in ascertaining whether the
employing industry remains unchanged after a change in
ownership, "we necessarily deal in terms of succession of
employment, and not succession of employers, i.e. in
terms of the continued nature of the employment rather
than the source of the employment " Here, the
replacement of Webb Tractor by Inland in the Wenatchee
area resulted in no substantial change in the "nature of
the employment" I therefore find that the employing
industry at Wenatchee remained unchanged after Inland
began operations.
"I take official notice of the Regional Director ' s Decision and Direction
of Election
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 Inland 's notice of the proceeding against Webb
Tractor
As noted above, Inland representatives made several
trips to central Washington after receiving the October 20,
1966, letter of intent from Caterpillar Tractor. On
October 24, 1966, Spitzer, Inland's executive vice
president and general manager, met with Webb for the
first time. Thereafter, the two had additional
conversations 2 weeks later, in late November 1966, on
December 15, 1966, and on December 16, 1966. Although
initially, Spitzer was somewhat evasive in his testimony,
he finally admitted, and I find, that during December, i.e.,
well before Inland commenced operations on February I,
1967, Spitzer was told several times by Webb that Webb
Tractor was having problems with the National Labor
Relations Board. I further find that in the same month,
Spitzer was told by Morrison, Webb Tractor's parts
manager at Wenatchee, that he was probably the cause of
the union problems at Webb Tractor. By the time Inland
acquired that information, the hearing in the unfair labor
practice proceeding against Webb Tractor had been held
I find that such information was sufficient to charge
Inland with notice of that proceeding. Spitzer testified
that he ignored such information because he "felt that it
was Webb's problem and not Inland's." But it is clear
that the problem also concerned Inland. Perma Vinyl
Corp , supra. As the court pointed out in enforcing the
order against the successor in that case," although the
Board changed its position regarding the responsibility of
the successor subsequent to the latter's purchase of the
business, "that was a risk entailed in the purchase "
3. Concluding findings
It is undisputed that Webb Tractor at no time complied
with the Board 's Order of September 11, 1967; that on
October 16, 1967, the Union requested Inland to bargain
with it as representative of the employees in the above
mentioned appropriate Wenatchee unit ; and that on
November 6, 1967, Inland refused. Since Inland is a
successor charged with notice as found above, I find that
it is responsible for remedying Webb Tractor's unlawful
conduct Perma Vinvl Corp., supra. Although the remedy
in that case consisted only of reinstatement of
discriminatees, the remedial principle announced therein
applies equally to the bargaining order here involved The
Alexander Milburn Co., 78 NLRB 747, cited with
approval by the Board in Perma Vinyl; see also Cohen
Bros Fruit Co, 166 NLRB No. 2, fn. 13, and cf.
Ramada Inns, Inc., 171 NLRB No. 155."
B. The Due Process Issue
It is undisputed that Inland was given, and availed itself
of, the opportunity to resist the allegations contained in
the notice of supplemental hearing. Accordingly, it cannot
properly be claimed, and Inland does not assert, that it
has been deprived of due process of law in that respect.
Inland does insist, however, that before it can be held
responsible for remedying the unfair labor practices found
to have been committed by Webb Tractor, due process of
law entitles it to the opportunity to resist such findings
through presentation of evidence, cross-examination of
"U S Pipe & Foundry Co v NLRB B. supra
"An order to bargain is , of course , prospective and does not raise the
retroactivity problem involved in connection with backpay in Perma Vinyl
witnesses, and opportunity for argument; that since the
Regional Director had notice on March 14, 1967 that
Inland had begun operation of the Wenatchee facility,"
the General Counsel could have joined Inland as a party
to the proceeding against Webb Tractor before the Trial
Examiner, who had not yet issued his Decision, or at least
could have petitioned the Board for a remand to the Trial
Examiner after the latter issued his Decision on March 29,
1967. Since he did not do so, Inland asserts, it has not
"been afforded the right to contest upon the merits the
factual and legal issues in the prior hearings herein
involving Webb Tractor & Equipment Company and the
prior Board decision therein reported at 167 NLRB No
46, all of which were conducted and rendered without
Inland being a party thereto." Accordingly, it is Inland's
position that the instant proceeding against it must be
dismissed I disagree.
In enforcing the Board's Order against the successor in
US Pipe & Foundry v N L.R B., supra, the court
expressly stated that the successor was not claiming the
right to contest the original complaint against the
predecessor, and hence that that issue was not before the
court. Inland thus correctly states that the US Pipe
decision is not dispositive of the due process here
presented. What I deem to be dispositive at this stage of
the proceeding is that so far as the record shows, Inland
has never requested the Board to afford it the opportunity
to resist the Decision and Order against Webb Tractor."
Of course, prior to Perma Vinyl, which was decided on
May 24, 1967, a bona fide purchaser of a business with
knowledge of unfair labor practices by the seller was not
held responsible for remedying the unfair labor practices.
Symns Grocer Co , 109 NLRB 346. Accordingly, prior to
that date, there was no reason for Inland to seek such
opportunity, nor was there any reason for the General
Counsel to seek the joinder of Inland In Perma Vinyl, the
Board expressly reversed Symns to the extent that it was
inconsistent therewith. But although Inland was
chargeable with notice of the Perma Vinyl decision, it is
perhaps arguable that there was nevertheless no reason for
Inland at that time to have sought to intervene in the
unfair labor practice proceeding against Webb Tractor,18
inasmuch as the Trial Examiner did not recommend
issuance of a bargaining order against Webb Tractor.
Moreover, it was not necessary that the General Counsel
request joinder of Inland in that proceeding after Perma
Vinyl, since the issues of successorship and a successor's
responsibility are litigable at the compliance stage of this
proceeding. Webb Tractor & Equipment Corp., supra, 167
NLRB No 46.
After issuance of the Board's bargaining order against
Webb Tractor on September 11, 1967, however, Inland
was on notice that it might now be held responsible as a
successor to Webb Tractor in a supplemental proceeding.
As a potential successor, Inland has been an interested
party which could move to intervene in the Board's
proceedings against Webb Tractor. And as an intervenor,
it has been able to file a motion for reconsideration,
"Inland predicates such notice upon a charge filed against it on that
date, alleging among other things that it had refused to hire certain
individuals because they had testified at the hearing on the complaint
against Webb Tractor The Regional Director subsequently refused to issue
a complaint on that charge because of insufficient supporting evidence.
"Inland has at no tune indicated in what respect the Board erred in that
Decision and Order. Indeed, it has not even asserted that the Board erred
"That proceeding had already been transferred to, and was pending
before, the Board at the tune it decided Perma Vinyl
WEBB TRACTOR AND EQUIPMENT iCOMPANY
rehearing or reopening of the record in that proceeding."
Since Inland has never filed such a motion, it is difficult
to see how it has been prejudiced. I therefore reject its due
process argument.
C. The Defective Procedure Issue
Inland asserts that an employer can be made a party to
a proceeding before the Board only in the manner
prescribed by the Act, that Section 10(b) of the Act sets
forth the procedure to be followed, i.e., a timely charge
followed by a complaint against the employer; that no
charge or complaint was issued against it; and that a
charge is now barred by the 6-month limitation in Section
10(b).S0 Accordingly, Inland contends that the Notice of
Supplemental Hearing, which Inland labels a
"complaint," was improperly issued Alternatively, Inland
argues that the relief sought by the Notice of
Supplemental Hearing amounts to a request for
enforcement against Inland of the Board 's Decision and
Order against Webb Tractor, and that the only
appropriate forum for an enforcement order is a circuit
court of appeals. I disagree.
All of these contentions were raised and rejected in
Alexander Milburn Co., 78 NLRB 747. That case, which
preceded and was overruled by Symns Grocer Co , supra,
has now been restored by Perma Vinyl. It is true that in
Milburn, the successor was made a party, following the
Board 's Order against the predecessor, by a subsequent
Board Order reopening the record and remanding the
proceeding for the purpose of receiving evidence relating
to the matter of successorship and the responsibility of
anyone found to be a successor. Here, on the other hand,
the Regional Director proceeded to reopen the proceeding
without a Board Order. Since this procedure has resulted
in no apparent prejudice to Inland, I can see no objection
to it. As already noted, the Board expressly stated in its
Decision and Order against Webb Tractor that the issues
of successorship and of any successor's responsibility, "are
issues more properly to be decided at the compliance stage
of the proceeding." 167 NLRB No. 46, fn. 10.
CONCLUSIONS OF LAW
1. Respondent Inland is, and since February 1, 1967,
has been , a successor of Webb Tractor.
2. Respondent Inland had notice, at the time it
commenced operations in Wenatchee , Washington, on
February 1, 1967, of the unfair labor practice proceeding
then pending against Webb Tractor.
3. Respondent Inland is responsible for remedying the
unfair labor practices found by the Board to have been
committed by Webb Tractor.
4. The Wenatchee store-shop unit designated by the
Board in Webb Tractor and Equipment Co., 167 NLRB
No. 46, continues to be the appropriate unit.
RECOMMENDED SUPPLEMENTAL ORDER
It is recommended that Respondent Inland Machinery
Co., its officers, agents, successors, and assigns, shall take
the following action which, I find, will effectuate the
"See the Board ' s Rules and Regulations . Series 8, as amended, Secs
102.48(d) and 102.29, cf Potter V. Castle Construction Co, 355 F 2d 212,
2I6(CA 5).
"Inland argues that if it was a successor , it became one on February 1,
1967, that if it was obligated to recognize the Union , its refusal occurred
on November 6, 1967, and that the charge filed on November 9, 1967,
based on such refusal was withdrawn.
235
policies of the Act:
A. Upon request, bargain collectively, with respect to
rates of pay, wages, hours of work, and other terms and
conditions of employment, and embody in a signed
agreement any understanding reached, with Lodge No.
1123, International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
representative of Inland's employees in the following
appropriate unit:
All shop department and parts department employees
employed by Respondent at its Wenatchee, Washington,
tractor store-shop, excluding janitors, salesmen , office
clerical employees, professional employees, guards, and
supervisors as defined in the Act.
B. Post at its Wenatchee, Washington, place of
business, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms provided by
the Regional Director for Region 19, Seattle, Washington,
after being duly signed by a representative of the
Respondent, shall be posted by the Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
C. Notify the Regional Director for Region 19, in
writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
"In the event that this Recommended Supplemental Order is adopted by
the Board, the words "a Supplemental Decision and Order" shall be
substituted for the words "the Recommended Supplemental Order of a
Trial Examiner" in the said notice In the further event that the Board's
Order is enforced by a decree of a United States Court of Appeals, the
words "a Decree of the United States Court of Appeals Enforcing an
Order" shall be substituted the the words "a Supplemental Decision and
Order "
"In the event that this Recommended Supplemental Order be adopted
by the Board , this provision shall be modified to read "Notify said
Regional Director , in writing, within 10 days from the date of this Order,
what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Supplemental Order of
a Trial Examiner of the National Labor Relations Board
and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our
employees that:
WE WILL, upon request, bargain collectively with.
Lodge No. 1123, International Association of
Machinists and Aerospace Workers, AFL-CIO, as the
exclusive representative of all our employees in the
following unit with respect to rates of pay, wages, hours
of work, and other terms and conditions of
employment, and embody in a signed agreement any
understanding reached. The bargaining unit is-
All shop department and parts department employees
employed by us at our Wenatchee, Washington,
tractor store-shop, excluding janitors, salesmen , office
clerical employees, professional employees, guards,
and supervisors as defined in the act.
INLAND MACHINERY CO.
(Employer)
Dated By
(Representative) (Title)
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days or compliance with its provisions they may communicate
from the date of posting and must not be altered, defaced, directly with the Board 's Regional Office, Republic
or covered-by any other material. Building, 10th Floor, 1511 Third Avenue, Seattle,
If employees have any question concerning this notice Washington 98101, Telephone 583-7473.