Intl. Un. of Operating Engineers, Loc. 428, AFL-CIO

184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local 428, AFL-CIO; and Wallace Godfrey and William A. Ralston and See Bee Slurry Matic, Inc. Case AO-106 January 16, 1968 ADVISORY OPINION This is a petition filed on August 28, 1967, by In- ternational Union of Operating Engineers, Local 428, AFL-CIO, herein called the Union, and by Wallace Godfrey, herein collectively called the Petitioners, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the National Labor Relations Board Rules and Regulations, Se- ries 8, as amended. On September 1, 1967, William A. Ralston, herein called Ralston, filed a Response to Petition for Advisory Opinion regarding Board Jurisdiction. Thereafter on September 7, 1967, Charles W. Hen- derson, Regional Director for Region 28, National Labor Relations Board, Albuquerque, New Mex- ico, herein called the Regional Director, filed a Mo- tion to Intervene setting forth jurisdictional infor- mation developed in the course of his investigation of the unfair labor practice charge in Case 28-CB-355 filed by Ralston against the Union. Subsequently, on September 15, 1967, in their Response to Motion of the Regional Director to In- tervene the Petitioners raised no objections to the Regional Director's motion. On October 26, 1967, the Regional Director filed supplementary informa- tion in support of his Motion to Intervene and on November 8, 1967, the Petitioners filed a Response thereto. The Regional Director's Motion to Inter- vene, as supplemented, is hereby granted. In pertinent part, the petition, the Response thereto, the intervention, as supplemented, and the Responses thereto, allege as follows: 1. There is presently pending in the Superior Court of the State of Arizona in and for the County of Maricopa, herein called the State Court, a civil damage action, Case 179990, filed by Ralston against the Petitioners and See Bee Slurry Matic, Inc., herein called the Employer, alleging that the Petitioners unlawfully caused Ralston's discharge from employment with the Employer because he was not a member of the Union. 2. The Employer, an Arizona corporation with its principal place of business in Phoenix, Arizona, was engaged in the business of sealing State and Federal highways and private driveways from February 1, 1965, until July 1966, when it went out of business, having gone bankrupt.During the 5- month period the Employer had been operating at the time of the Regional Director's investigation in Case 28-CB-355, its gross volume of business ap- proximated $30,000 to $40,000 of which only $10,000 came from work performed on State or Federal highways. During that same period, the Employer's out-of-state purchases were negligible except for the two trucks, each valued at $30,000. 3. Peter Homer Excavating, Inc., herein called Homer, an Arizona corporation, was engaged in earth excavating in the Phoenix, Arizona, area until July 1966, when it too went out of business, having gone bankrupt. During calendar 1965, Homer per- formed no work or made no purchases from outside the State of Arizona. During that same period, how- ever, it performed excavating work valued in excess of $500,000 for the city of Phoenix which itself purchased water pipes, hydrants, and other supplies from outside Arizona valued in excess of $50,000. 4. Both the Employer and Horner had in com- mon some incorporators, officers, directors, and stockholders, and had the same statutory agent. The corporations had different presidents who were the only salaried officers and each of whom owned 50 percent of the stock of their respective compa- nies. The Employer's president was not an officer of Horner, but Homer's president was a secretary of the Employer. Although located in the same building, each company had separate bookkeeping and payroll records and each' paid its proportionate share for rent and office help. Homer had no con- trol over the hiring or firing of the Employer's em- ployees. Each corporation had its own superintend- ent who supervised only its own ^ employees. Homer was a much larger operation employing a minimum of 25 employees while the Employer had only 6 employees. While the Employer regularly used Homer equipment for which it was charged rental, neither company performed work for the other. There was occasional interchange of em- ployees but each corporation paid the other for the work performed by its employees. Neither com- pany was a member of the Associated General Contractors, herein called AGC, although both were signatories to its Arizona Master Labor Agreement with the Union. Horner's president discussed with the Union its objections to Ralston's employment by the Employer, and after he had re- ported to the Employer's president, the latter ter- minated Ralston. 5. In his investigation of Case 28-CB-355, the Regional Director concluded that the Employer's out-of-state purchase of two trucks valued at $60,000 was a nonrecurring capital expenditure which under Board precedent would be disregarded for purposes of computing inflow. The Regional Director then proceeded to project the Employer's 5-month operations for a 12-month period and found that the Employer's annual inflow or outflow would be less than $50,000. Accordingly, he con- cluded that it would not effectuate the policy of the Act to assert jurisdiction over the Employer in Case 28-CB-355, and accordingly he requested, and subsequently approved, Ralston's withdrawal of the charges filed in that case. 169 NLRB No. 30 INTL. UN. OF OPERATING ENGINEERS, LOC. 428, AFL-CIO 6. The Petitioners contend, however, that the Employer and Homer were highly integrated with respect to ownership and operations and that there- fore they both constitute a single employer for ju- risdictional purposes over whom the Board would assert jurisdiction. Alternatively, the Petitioners argue that the Board would assert jurisdiction over the Employer alone under the theory set forth in Philadelphia Moving Picture Machine Operators' Union (Velio Iacobucci), 159 NLRB 1614. 7. The State court has made no findings with respect to the commerce data herein set forth. 8. There is no representation or unfair labor practice proceeding involving the same labor dispute now pending before the Board. On the basis of the above, the Board is of the opinion that: 1. The Employer was a nonretail enterprise en- gaged in the sealing of highways and driveways in and about Phoenix, Arizona. 2. The Employer's operations, as properly pro- jected by the Regional Director for a 12-month period, had less than $50,000 inflow or outflow and therefore did not meet the Board's current standard for exercising jurisdiction over nonretail enterprises enunciated in Siemons Mailing Service, 122 NLRB 81,85. 3. While the Board may treat separate corpora- tions as one employer for jurisdictional purposes, it does so only when it appears that they are highly integrated with respect to ownership and opera- tions. In making such a determination, the Board considers relevant such indicia of identity as (1) in- terrelationship of operations, (2) centralized control of labor relations, (3) common management, (4) common ownership or financial control, and (5) representation to the public as a single integrated enterprise,2 although no one of these factors is con- trolling. 4. To support their general allegation that the Employer and Horner were highly integrated with respect to ownership and operations, the Peti- tioners rely upon the fact that both companies had some common incorporators, officers, directors, and stockholders, were located in the same build- ing, had the same bookkeeping staff, had occasional interchange of employees, and were both signato- ries to Arizona Master Labor Agreement. In addi- tion, the Employer utilized Horner equipment and Horner's president discussed with the Union and the Employer the former's objections to Ralston's employment with the Employer. As opposed to these relatively insubstantial indicia of a common relationship between the Employer and Horner, there are much more significant factors which 1 See Twenty-first Annual Report, pp. 14-15, Sakrete of Northern California, Inc, 137 NLRB 1220, 1222, enfd. 332 F.2d 902 (C.A. 9), Midwest News Reel Theatres, Inc., 151 NLRB 857. 185 clearly establish their separate identities. The com- panies were in different businesses , the Employer did sealing while Horner performed excavating. Horner had a much larger operation than the Em- ployer. They did no work for each other. Homer had no control of the hiring or firing of the Em- ployer's employees. Each corporation had its own superintendent who supervised only its own em- ployees. Corporate payrolls, telephones, and billings were separate. When there was occasional interchange of employees, each company paid the other for the work performed. Similarly, both com- panies paid their proportionate share of the com- mon clerical help and the Employer paid for the use of Homer equipment. While both were signatories to the Union's Master Labor Agreement with the multiemployer association, AGC, neither was a member of that association. There was no represen- tation to the public that both companies constituted one integrated enterprise. The single instance of Horner's president participating in the Ralston in- cident is insufficient to establish that Horner was in a position to influence the Employer 's general labor relations policy , or that there existed common or centralized control of labor relations in both com- panies. Since the circumstances establish that the Employer and Horner are basically two separate enterprises rather than a single one , it would be un- reasonable for the Board to assume that they constitute a single employer for jurisdictional pur- poses.3 Accordingly, for the purposes of this Ad- visory Opinion, only the operations of the Employer have been considered. 5. The Petitioners urge that the Board advise that it would have asserted jurisdiction over the Employer under the principle enunciated in the Philadelphia Moving Picture case, supra. In that case, the allegations of the complaint charged inter- ference with the statutory right of an individual to resort to the Board's processes and the Board exer- cised its jurisdiction apart from whether its discre- tionary standards for the assertion of jurisdiction had been met. Public policy required that the Board, in order to protect its processes , exercise its statu- tory jurisdiction to the fullest extent. The Philadelphia Moving Picture principle, however, is inapposite herein since there are no allegations of interference with the statutory right to utilize the Board processes and therefore it would afford no basis for the assertion of jurisdiction over the Em- ployer. Accordingly, the parties are advised, under Sec- tion 102.103 of the Board's Rules and Regulations, Series 8, as amended , that, on the allegations sub- mitted herein, the Board would not assert jurisdic- tion over the Employer's operations. 2 See Thriftown, Inc., d/bla Value Village, 161 NLRB 603. ' Piedmont Wood Products Co., Inc., 156 NLRB 51; see fn 1 and 2, supra, and cases cited therein.