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National Labor Relations Board v. Al Bryant Inc.

decided: June 30, 1983.

NATIONAL LABOR RELATIONS BOARD, PETITIONER,
v.
AL BRYANT, INC., HARRISBURG DRYWALL AND CONSTRUCTION CORPORATION, AND AL BRYANT ASSOCIATES, INC., RESPONDENTS



APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.

Weis, Sloviter and Becker, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge.

I.

INTRODUCTION

The National Labor Relations Board (Board) petitions for enforcement of its order directing respondents Al Bryant, Inc. (ABI), Harrisburg Drywall and Construction Corp. (Harrisburg Drywall), and Al Bryant Associates, Inc. (Associates) to cease and desist from refusing to bargain collectively with the two charging unions, to recognize the two unions, to apply the relevant bargaining agreement terms to employees of Harrisburg Drywall and Associates, to make those employees whole for loss of earnings or compensation, to reimburse employee trust funds, and to post a specified notice.

ABI was formed by Albert Bryant in 1967 and operated as an interior design and finishing contractor, engaged in hanging drywall, installing ceilings and laying floors. During the relevant period, Bryant owned 90% of ABI and served as president; his wife owned the remaining 10% and served as treasurer. Jean Hoffman, the office manager, was the secretary. The office was located in Harrisburg, Pennsylvania in a building owned by the Bryants.

ABI was a member of the Central Pennsylvania Subcontractors Association (CPSA), which conducted labor negotiations for its employer members and which negotiated agreements with both charging unions, the United Brotherhood of Carpenters & Joiners of America, Carpenters' District Council of Western Pennsylvania (Western) and Keystone District Council (Keystone). The two unions operate in different geographic areas. The ALJ found that ABI was bound by these agreements; this fact is apparently not disputed on appeal.

In 1971, a drywall finishing business known as Harrisburg Drywall and Construction Corp. operated by Geno Premici was incorporated, and Bryant acquired 51% ownership and became vice-president and secretary. Jean Hoffman, ABI's secretary, became Harrisburg Drywall's treasurer. The following year, Bryant became sole owner. In 1975, Bryant selected Charles May, ABI's field supervisor, to be Harrisburg Drywall's president. Harrisburg Drywall did not adhere to any labor agreements in performing its work. Bryant used the two companies to maintain a "double breasted" operation, one whereby different legal entities in the construction industry with common proprietary and managerial aspects operate separately, one on a union and the other on a nonunion basis.

The third corporation, Al Bryant Associates, Inc., was formed in 1979 by Bryant, Larry McClain, ABI's coordinator, and Jean Hoffman, its office manager, after unfair labor practice charges had been filed against ABI and Harrisburg Drywall in connection with the nonunion operation of Harrisburg Drywall. McClain became its president, Bryant its treasurer and vice-president in charge of sales, and Hoffman its secretary and vice-president in charge of administration. McClain and Hoffman each contributed $20,000 in cash to Associates and received 35% stock ownership. Bryant contributed all Harrisburg Drywall's stock, valued at $40,000, for 30% ownership. Associates began operating January 1, 1980, as a subcontractor in the same business as ABI and Harrisburg Drywall.

This case centers on the interrelationship between these three entities, and the legal obligations which arise as a result. The unions charged that since respondents constituted a single employer, they violated sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to recognize the charging unions and by refusing to apply to certain Harrisburg Drywall and Associates employees the collective bargaining agreement terms applicable to ABI. The Board's order was predicated on its findings, in substantial affirmance of the rulings, findings and conclusions of the ALJ, that all three respondents were a single employer, that Harrisburg Drywall was the alter ego of ABI, that Associates was the alter ego and "disguised continuance" of ABI and Harrisburg Drywall, and that the carpenter employees of all three companies constituted an appropriate unit for collective bargaining purposes.

The enforcement petition raises the following issues: (1) Were the initial charges filed by Keystone and the charges filed by Western time-barred by section 10(b) of the NLRA? (2) Should the Board have deferred to an arbitration decision made on Keystone's charges regarding the nonunion operation of Harrisburg Drywall? (3) Does substantial evidence support the Board's findings of single employer, unit determination, and alter ego? (4) Were respondents deprived of a fair hearing due to the ALJ's conduct?

II.

TIMELINESS OF THE CHARGES

Keystone filed its initial charge with the Board on August 10, 1979 in which it complained about Harrisburg Drywall's failure to honor the Keystone collective bargaining agreement. It charged ABI and Harrisburg Drywall with committing unfair labor practices by "hiring non-Union employees in contravention of its obligation under the collective bargaining agreement" and by "having a non-Union subsidiary and refusing to recognize the Union as a representative of the employees employed by Harrisburg Drywall." Keystone filed a second unfair labor practice charge on October 6, 1980, after Associates was formed. As amended, the charge alleged the three companies had "since on or about August 1980, . . . refused to bargain collectively and in good faith with Keystone." Western filed its charge on October 3, 1979, claiming ABI "d/b/a Harrisburg Drywall" had "since on or about June 1, 1979, and at all times thereafter, . . . failed and refused to bargain collectively and in good faith with [Western]."

Respondents argue that Western's charge and Keystone's initial charge were untimely under section 10(b) of the NLRA, 29 U.S.C. ยง 160(b), which provides "that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board." Western knew by about January 1979, more than six months before it filed charges, that Harrisburg Drywall had been awarded a subcontract on a job in Venango County, Pennsylvania, a site within Western's geographic jurisdiction. A representative of that union telephoned Bryant requesting employment of union personnel and Bryant refused, stating he was doing the job under Harrisburg Drywall. Respondents contend that Bryant thus "repudiated" the contractual duties with respect to employees of Harrisburg Drywall, and that the section 10(b) period began to run when the repudiation was made known to the union.

The ALJ concluded that the section 10(b) six-month period did not begin until such time as Harrisburg Drywall commenced operations under employment terms distinct from those in the union contract.*fn1 The ALJ found that the record did not permit finding that Harrisburg Drywall actually commenced work at the Venango County job by April 3, 1979, the section 10(b) cut-off date for Western. That work apparently commenced about June 1979.

The ALJ's conclusion that the charge was timely filed is consistent with well-established legal principles. A statement of intent or threat to commit an unfair practice does not start the statutory six months running. The running of the limitations period can begin only when the unfair labor practice occurs. Thus in NLRB v. Plumbers & Pipe Fitters Local Union 214, 298 F.2d 427, 428 (7th Cir. 1962), the court held that the actual date of the discharge of the nonunion employee, not the date the union demanded that he be discharged, started the statutory period. Similarly, when an unfair labor practice stemmed from denial of union membership to strikebreakers, the six-month period was counted from the date membership was denied, because that was the first date the employees could have filed their charge. Local 1104, Communications Workers v. NLRB, 520 ...


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