National Labor Relations Board v. E. L. Clark, Owner, Jim H. Pierce, Lessee of the Ashville-Whitney Nursing Home

468 F.2d 459, 81 L.R.R.M. (BNA) 2353
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 4, 1972
Docket71-2541
StatusPublished
Cited by23 cases

This text of 468 F.2d 459 (National Labor Relations Board v. E. L. Clark, Owner, Jim H. Pierce, Lessee of the Ashville-Whitney Nursing Home) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. E. L. Clark, Owner, Jim H. Pierce, Lessee of the Ashville-Whitney Nursing Home, 468 F.2d 459, 81 L.R.R.M. (BNA) 2353 (5th Cir. 1972).

Opinions

WISDOM, Circuit Judge:

This cause comes here on application for enforcement of an order of the National Labor Relations Board holding that the respondents refused to hire certain employees in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. § 151 et seq., and requiring respondents to remedy the alleged violation. We deny enforcement and remand the case for further evidence because the record will not support the Board’s assertion of statutory jurisdiction over the enterprise operated by the respondents.

I.

At the outset, we are met with the contention that the proceedings before the trial examiner and the Board are of no effect because preceded by improper service of process on the respondents.

Some factual background is in order. Before September of 1969, one S. P. Robinson owned a nursing home in Ashville, Alabama. The home was operated by Mid-South Convalescent and Medicare Centers, Inc. as Robinson's lessee. Mid-South became embroiled in a dispute with the Retail, Wholesale, and Department Store Union, AFL-CIO. At the end of August 1969, Mid-South ceased to operate the Ashville facility and removed its patients. E. L. Clark bought the home some time in August and took physical possession of the premises about August 31, 1969. Clark employed respondent Jim H. Pierce as his “administrator” (or manager) in accordance with Alabama law. Under Clark’s ownership and Pierce’s administration, the home did not employ any of the former employees of the home during Mid-South’s tenure. The union attributed this failure to the union affiliation of many of the former employees. This failure to hire, allegedly on account of union affiliation, is the substantive conduct at the core of this labor dispute.

After only a few months of operating the home as owner, and after the alleged commission of unfair labor practices, Clark leased the home to Pierce on January 1, 1970. The trial examiner found:

“In September, 1969, Ashville-Whitney Nursing Home was a sole proprietorship of E. L. Clark, an individual with his place of business located at Ashville, Alabama. . . . Respondent Jim H. Pierce was the administrator of the nursing home for Mr. Clark. On January 1, 1970, Mr. Pierce leased the building and equip[462]*462ment from Mr. Clark and since that time has been the lessee-operator of the Ashville-Whitney Nursing Home. Mrs. Pierce became acting administrator until May 11, 1970, when she became the administrator.
. . . I further find, as is self-evident from the record, that on and after January 1, 1970, Respondent, Jim H. Pierce, as the lessee-operator of the Ashville-Whitney Nursing Home, was a successor of Respondent E. L. Clark. . . . ■ Clark operated the Ashville-Whitney Nursing Home from September 22, 1969, to January 1, 1970, when the premises were leased to Pierce who then became the lessee-operator. ... I have also found that Respondent James [sic] H. Pierce operated the Ashville-Whitney Nursing Home on and after January I, 1970, as the successor of Respondent Clark.”

On March 6, 1970, the union filed an unfair labor practice charge1 with the Board, naming the “employer against whom the charge is brought” as “Ash-ville and Whitney Nursing Home” and “the employer representative to contact” as “Mr. E. L. Clark, Owner” and “Mr. Jim Pierce, Admn.” The charge was addressed to “Ashville and Whitney Nursing Home, Route #2, Ashville, Alabama,” and there received by Jim Pierce on March 6, 1970. As of March 6, Pierce had leased the home from Clark, but the only public record dealing with ownership and management of the home, the Alabama State license application to operate the home, continued to list Pierce as administrator and Clark as owner. The lease was not filed with the State Board of Licensure until May 11, 1970, two months after service of the charge. So far as the record reveals, neither Clark nor Pierce took any steps to notify the union or the Board of the change in the ownership of the enterprise after January 1, before or after the charge was received by Pierce on March 6.

On June 10, 1970, the Board issued a complaint, naming “Ashville-Whitney Nursing Home” as respondent and, in paragraph 2, stating that “Respondent is and has been at all times material herein, a sole proprietorship of E. L. Clark.” The complaint stated that Pierce “is and has been at all times material herein, the administrator of Respondent’s operations at Ashville, Alabama.” Copies of the complaint were sent by registered mail to Ashville-Whitney Nursing Home and to Gerald Swann, attorney for Pierce. During the course of the hearing, the caption on the complaint was amended to read “Ashville-Whitney Nursing Home and J. H. Pierce, Lessee”, with the consent of Swann on Pierce’s behalf. The trial examiner found Clark and Pierce jointly liable for the restitutional remedies it imposed.

On the basis of these facts, the respondents argue that there was no proper service of the charge or the complaint on Clark or on any authorized agent for service of process on Clark. They argue that the charge was made against Clark but was served only on Pierce, at the home, and on Pierce’s lawyer, Swann. Further, respondents argue that the complaint was not properly served on Clark through Pierce when the complaint was served at the home on June 10, 1970.

These contentions were advanced before the Board. The Board held that “for the purposes of service [of process] Clark held Pierce out to be his apparent agent until May 11, 1970, so that the charge filed on March 5, 1970, and received by Pierce on March 6, 1970, constituted valid service on Clark.” The Board reasoned that the lease agreement, though purportedly executed on [463]*463January 1, 1970, was not a matter of public record until May 11 of that same year.

II.

Under Rule 4(d) of the Federal Rules of Civil Procedure, service upon “an individual other than an infant or an incompetent person” is proper if served “in the manner prescribed by any statute of the United States.” Rule 4(d)(7).2 The NLRA provides, in section 10(b), that both the charge and the complaint must be served upon “the person against whom such charge is made.” 3 Section 11(4) adds that “complaints . and other process and papers of the Board . . . may be served . by registered mail or . by leaving a copy at the principal office or place of business of the person required to be served.” 4 A Board charge constitutes “other process and paper” within the meaning of section 11(4). NLRB v. Columbus Marble Works, 5 Cir. 1956, 233 F.2d 406.

In considering service of the charge on Clark, we must decide whether service was accomplished on the facts of this case “by leaving a copy at the principal office or place of business” of Clark. A threshold question is whether “principal” modifies “place of business” as well as “office”. For purposes of argument and no more, we assume that the correct reading is “principal office or [principal] place of business.”

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Bluebook (online)
468 F.2d 459, 81 L.R.R.M. (BNA) 2353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-e-l-clark-owner-jim-h-pierce-lessee-ca5-1972.