Gerace Construction, Inc.

GERACE CONSTRUCTION, INC. 645 Gerace Construction, Inc. and Helger Construction Company, Inc. and United Brotherhood of Carpen- ters and Joiners of America , AFL-CIO, Local No. 1654, and Bricklayers, Masons and Plasterers International Union of America, AFL-CIO, Local No. 7, Saginaw, Michigan, and Local Union No. 1098, Laborers International Union of North America, AFL-CIO, and Local 324, 324-A, 324-B, and 324-C, International Union of Operat- ing Engineers, AFL-CIO. Cases 7-CA-8222, 7-CA-8223, 7-CA-8224, and 7-CA-8225 October 8, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 26, 1971, Trial Examiner Herbert Silberman issued his Decision in the above-entitled proceeding, finding that the Respondents had en- gaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that the Respon- dents had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect to those allegations. Thereafter, the Respondents filed excep- tions to the Trial Examiner's Decision and a support- ing brief, and the General Counsel filed cross-excep- tions and a brief in support thereof. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, only to the extent consistent herewith. The Trial Examiner found, and we agree, that the Respondents have common stockholders and com- i N L R B v. Condenser Corporation, 128 F 2d 67, 71 See also J Howard Jenks, d/b/a Glendora Plumbing, 165 NLRB 101, L & S Construction Company, Inc, 155 NLRB 524, AAA Electric, Inc and Simms Electric Co, 190 NLRB No 23 2 Joe Robertson & Son, Inc. 174 NLRB No 160, Bel-Air Door, et al, 150 NLRB 481 •i Los Angeles Newspaper Guild, Local 69, et al (Hearst Corp), 185 NLRB No 25, enfd 443 F 2d 1173 (C A 9), Poole's Warehousing, Inc, 158 mon directors who have the legal right to control and direct the affairs of Helger Construction Company, Inc. However, we disagree with his finding that the Respondents function as a single enterprise and therefore constitute a single employer under the Act. A critical factor in determining whether separate legal entities operate as a single employing enterprise is the degree of common control of labor relations policies.' Thus, the Board has found common ownership not determinative where requisite common control was not shown,2 and the Board has held with court approval that such common control must be actual or active, as distinguished from potential control.3 The record shows that Helger Construction is a separate legal entity with separate bank and payroll accounts. While Gerace Construction and Helger share a common bookkeeper, she keeps separate corporate records, and the two companies file separate tax returns. Francis Gerace initially con- trolled a majority of Helger's stock, and he and Wardin, who is an official of Gerace Construction, constituted two of Helger's three directors. However, in late November 1970, Francis Gerace resigned as a director of Helger and transferred his shares of stock to Lawrence E. Sweebe, who has been Helger's principal managerial official since its inception. Sweebe has no such authority with respect to Gerace Construction. While Sweebe initially consulted Fran- cis Gerace and Wardin on policy matters, the record shows that he has progressively assumed more independent responsibility. Sweebe testified that as of the date of the hearing, January 13, 1971, he consulted with other officials on only I of every 10job bids, and that he is in complete charge of day-to-day opera- tions. The record also shows that the two companies submit separate job bids and normally do not bid on the same jobs, and that Helger operates on its own capital without guarantee of performance by Gerace Construction or Francis Gerace.4 There is no showing that Gerace Construction has lost business to Helger or that any Gerace employee has lost work he otherwise would have had. Helger's contracts amount to less than $50,000 while Gerace's are seldom less than $250,000. Unlike Gerace, Helger operates an open shop without regard to craft lines and pays employees less than Gerace's contract rates.5 The two companies have separate health and welfare and NLRB 1281, Miami Newspaper Printing Pressmen's Local No 46 v NLRB,322F2d405(CADC). 4 Cf B & B Industries, Inc, 162 NLRB 832, in which the Board found that the collective-bargaining agreements between the unions and one of two companies did not cover employees of both, even though the individual owner of one company signed, as financial guarantor, the bids submitted by the other 5 Helger belongs to the Associated Building Contractors of Michigan; 193 NLRB No. 91 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD workmen's compensation insurance contracts. Ge- race has an average employee complement of 95; Helger has only 16. While some Helger employees previously worked for Gerace on occasion, there is no interchange of employees. It is undisputed that Helger uses Francis Gerace's trailer for its temporary office and some tools and equipment of Gerace Construc- tion. However, Helger pays rent for them. Moreover, the renting of tools and equipment appears to be common practice in the construction industry. We find the above facts show that Francis Gerace was the prime mover in organizing Helger Construc- tion and that he and Wardin had potential control over its operations, but such control was gradually relinquished to Sweebe who in fact had actual control over Helger's operations and employees. In these circumstances and upon the entire record, as outlined above, we find that Gerace Construction and Helger Construction constitute separate employers under the Act and that the employees of each constitute separate bargaining units. Accordingly, we find that the Respondents had no obligation to recognize the Charging Parties as bargaining representatives of Helger's employees or extend the terms of the existing agreements to such employees.6 We shall therefore order that the complaint be dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed. Gerace belongs to the Michigan Chapter of Associated General Contractors of America, Inc fi While Helger was organized by Francis Gerace, president of Gerace Construction, Inc. to operate in the area of small construction jobs, the Trial Examiner found, and we agree, there is no adequate proof that the organizing of Helger was motivated by a desire to discourage union activity or to destroy the Unions' majority status in relation to the existing bargaining units of Gerace Construction's employees The Unions' majorities in such units were not challenged TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN , Trial Examiner. Upon charges filed on September 24, 1970, and amended charges filed on November 19, 1970, a consolidated complaint, in the above-numbered cases, dated November 24, 1970, was issued alleging that the Respondents Gerace Construction, Inc., herein called Gerace Construction, and Helger Construction Company, Inc., herein called Helger, have engaged in and are engaging in conduct constituting unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. In substance, the consolidated complaint alleges: (1) that about May 27, 1970, Gerace Construction formed Helger to do construction work similar to the work being performed by Gerace Construction in order to divert work to Helger and thereby to evade its obligations under the terms of the collective-bargaining agreements between Gerace Con- struction and the Charging Parties; (2) that since its organization Helger has been paying its employees substantially less than Gerace Construction; (3) that Gerace Construction and Helger constitute a single employer for the purposes of the application of the Act; (4) that the employees of Helger constitute accretions to the collective-bargaining units of Gerace Construction's em- ployees; (5) that Respondents unlawfully have refused to recognize the Charging Parties as the representatives of Helger's employees pursuant to the terms of the applicable collective-bargaining agreements between the Charging Parties and Gerace Construction and unlawfully have failed to apply the terms of said agreements to Helger's employees; (6) that Respondents, although requested, unlawfully have refused to furnish the Charging Parties with information which is relevant and necessary to the discharge by the Charging Parties of their functions as collective-bargaining representatives; and (7) that Respon- dents' purpose has been to undermine the bargaining, contractual, and representative status of the Charging Parties and to discourage union activities on the part of their employees. Respondents duly filed answers which generally deny that they have committed the alleged unfair labor practices. A hearing in these proceedings was held in Midland, Michigan, on January 13, 1971. Subsequent to the hearing, the Respondent and Charging Party filed briefs with me which have been carefully considered. Upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESSES OF THE RESPONDENTS Gerace Construction and Helger are Michigan corpora- tions engaged in construction work as general contractors. During the fiscal year which ended February 28, 1970, which period is representative of its operations, Gerace Construction derived gross income in excess of $500,000 and purchased and caused to be transported and delivered to its principal place of business and to its various construction sites in the State of Michigan goods and materials valued in excess of $200,000 of which an amount in the excess of $50,000 was transported from sources outside the State of Michigan through channels of interstate commerce. Since about May 27, 1970, which period is representative of its operations, Helger has obtained construction contracts from which it will receive revenue in excess of $100,000. During this same period, in the course and conduct of its business operations, Helger has performed construction work in excess of $50,000 for companies who are engaged in interstate commerce and who annually purchase products and goods valued in excess of $50,000 directly from suppliers located outside the State of Michigan. Respondents admit, and I find, that Gerace Construction and Helger are each engaged in commerce within the meaning of Section 2(6) and (7) of the Act. GERACE CONSTRUCTION, INC. 647 II. THE LABOR ORGANIZATIONS INVOLVED United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local No. 1654, herein called Carpenters ; Bricklayers, Masons and Plasterers Interna- tional Union of America , AFL-CIO, Local No. 7, Saginaw, Michigan, herein called Bricklayers ; Local Union No. 1098, Laborers International Union of North America, AFL-CIO, herein called Laborers ; and Local 324, 324-A, 324-B and 324-C, International Union of Operating Engineers , AFL-CIO, herein called Operating Engineers, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Respondent Gerace Construction has been operating as a general contractor in the Midland, Michigan, area for more than 12 years. Its annual revenues in recent years has approximated $5 million and the value of its individual construction projects has ranged from upwards of $100,000 to above $1 million . From the inception of its business Gerace Construction has recognized and has had contrac- tual relations with the Charging Parties.' Described colloquially, Gerace Construction is a union contractor. The collective-bargaining agreements provide that Gerace Construction recognizes the respective Unions as the representative of all its employees within the classifications covered by each contract2 and the terms of each contract apply to all such employees of Gerace Construction. Francis E. Gerace, president of Gerace Construction, testified that since early 1969 Gerace Construction has not been able to get any jobs under $100,000. Among the reasons he ascribed for this situation was that union jurisdictional problems had unduly increased labor costs. For some period of time he had been giving consideration to forming another company which would be better able to compete for the smaller jobs. His plan was to organize a nonunion firm which could recapture the type of work that Gerace Construction had lost.3 The impetus for effecting this amorphous design occurred in May 1970. The expiration dates of the then subsisting collective- bargaining agreements with the Charging Parties were April 30, 1970. Renewal negotiations began on March 24 and about April 1 the expiration dates of the contracts were extended until May 31, 1970. In mid-May Donald Wardin, who was then vice president in charge of field operations of Gerace Construction, learned about a remodeling job that Dow Chemical Company wished to undertake. He was unable to bid for the job on behalf of Gerace Construction because a condition imposed by Dow Chemical was that the contractor must guarantee completion without any work interruption. Gerace Construction was then unable to give such undertaking because of the possibility that there might be a strike commencing on June 1, 1970.4 The opportunity to get the Dow Chemical remodeling job precipitated the decision on the part of Francis E. Gerace to form another company-which would operate nonunion-and which would be in a position to give the guarantee that Dow Chemical was insisting upon before it would award the job. Accordingly, Helger was organized and in fact obtained the particularjob. The principal issues in this case arise out of the organization of Helger: whether Helger and Gerace Construction together constitute a single employer and, if so, whether Gerace Construction's collective-bargaining agreements cover Helger's employees as accretions to the units described in the respective contracts. As of November 24, 1970, the management of Gerace Construction was as follows: Number of Shares of Name Stock Owned Director Office Held Francis E. Gerace 5,300 Yes Pres. & trea. Helen Gerace, wife 4,000 Yes Secretary Harlan 0. Peterson 3,400 Yes Vice pres. of engi- neering & estimating Gerace Construction is a member of the Michigan chapter, Associated General Contractors of America, Inc , and the applicable contracts are between the Association and the individual unions or the bodies with which such unions are affiliated 2 The work classifications are defined differently in the various contracts Thus, the Carpenters contract covers "all employees performing work coming under [its] jurisdiction", the Operating Engineers contract covers "all work performed at the site of construction, building, repair, alteration or demolition and all railroad construction work within the property limits", the Laborers contract covers "all building and heavy construction work, excluding highway work, performed within the geographical jurisdiction of the union"; and the Bricklayers contract covers "all Employees performing work coming under the jurisdiction of the [union ] " s Gerace explained that Helger was formed "with the idea .. that a man would be able to do any work for which he was qualified," and would not be limited to work within his craft classification " and this in itself was quite a savings in cost and we thought this would put us back competitive with other smaller contractors in our area." 4 As it happened both the Laborers and the Carpenters called strikes on June I which lasted for I and 2 weeks, respectively 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Number of Shares of Name Stock Owned Director Office Held Donald Wardin 500 Yes General superintendent (before May 26, V.P. of field development) J. Fisher None Yes None H. Arbury None Yes None The Articles of Incorporation of Helger was signed by the incorporators on May 26, 1970, and was filed with the Michigan Department of Treasury, Corporation Division, on June 15, 1970. However, the bid for the Dow Chemical remodeling job was submitted on behalf of Helger before that company was formally incorporated and work on the job was started on May 26, 1970, the same day that the incorporators signed the Articles of Incorporation. The incorporators of Helger, who were its first Board of Directors, and the number of shares subscnbed to by each of the incorporators were as follows: Francis E. Gerace-2,080 shares Donald 0. Wardin-960 shares Lawrence E. Sweebe5-960 shares As of November 24, 1970, the management of Helger was as follows:6/ Number of Name Shares Owned Director Office Held Lawrence E. Sweebe 480 Yes President & treasurer Donald 0. Wardin 480 Yes Vice president & secretary Francis E. Gerace 1,040 Yes None When Helger commenced business operations in May 1970 its affairs were managed by Gerace Construction personnel. Lawrence E. Sweebe, who from the inception of Helger has been its principal managerial official, was then employed full time by Gerace Construction. For approxi- mately the first 5 months of Helger's business existence Sweebe was paid by Gerace Construction. During this penod, for the most part, Sweebe conducted the business of Helger from his home. However, from time to time Sweebe was contacted dunng his normal working hours for Gerace Construction about matters concerning Helger. The bookkeeping for Helger since its organization has been performed by Helen Gerace in her home for which she receives no compensation. In September 1970, Helger's Board of Directors formally elected Sweebe to the office of President and Treasurer of the Company.? As of that date Sweebe was transferred from the payroll of Gerace Construction to the payroll of 5 Sweebe was then employed by Gerace Construction as a project manager 6 In late November 1970 Francis E Gerace transferred to Sweebe his shares of stock in Helger and resigned as director of Helger However. Respondents specifically stated at the hearing that they will make no Helger. Also, in September 1970, a trailer owned by Gerace Construction was moved to an unimproved plot of land in Midland, Michigan, which is owned by Francis E. Gerace, and since that date has been used by Helger as its temporary office. A building is now being constructed for Francis Gerace by Helger on this land which will be used as Helger's permanent office. Helger has been paying rent to Gerace Construction for the use of its trailer but has been paying no rent to Francis E. Gerace for the use of his land. The location of Helger's present offices is about one-half mile from the offices of Gerace Construction. Helger rents power tools and equipment from Gerace Construction and also from an unrelated business organization. However, more than one-half of such equipment and tools are rented by Helger from Gerace Construction. Helger keeps separate bank accounts, payroll accounts, and corporate records. It files tax returns in its own name. It has never borrowed any money and its performance contention that such transfer of stock by Francis E Gerace affects any rights or liabilities that might be determined as of a time prior to the disposition of said shares of stock 7 According to Sweebe he assumed the office of president and chief executive officer of Helger in July 1970. GERACE CONSTRUCTION, INC. bonds are not endorsed by Gerace Construction or Francis Gerace. Both Helger and Gerace Construction are engaged in the same general business. The principal difference between their operations is the size of their undertakings. Except for one project obtained from the Ford Press which amounted to a little more than $125,000 all otherjobs done by Helger have involved contracts calling for gross payments of less than $50,000. Gerace Construction, on the other hand, seldom performs work involving a contract of less than $250,000 and most of its jobs are for substantially larger amounts. Helger's peak employment work force has been 16, while Gerace Construction's average work force is 95. The principals of Gerace Construction have given substantial assistance to Helger in obtaining contracts for work. Thus, Helger's first job for Dow Chemical was obtained largely through the intercession of Donald Wardin. Francis Gerace testified that the opportunity to get this job was the precipitating reason for the organization of Helger. The largest job obtained by Helger was for Ford Press. Francis Gerace introduced Sweebe to the principals of Ford Press and assisted Sweebe in the preparation of the bid for that job. Normally the two Companies do not bid for the same jobs. There have been only one or two exceptions and in one such instance where both Companies submitted bids (although on different bases) for a job for the Township of Milwaukee, the amount of Helger's bid was determined jointly by Sweebe and Francis Gerace. The latter has reserved to himself the authority to restrict Helger's opportunity to compete with Gerace Construction. According to Francis Gerace, "The only control that I as an individual had (with respect to the jobs bid by Helger) was the determination I did not desire the two companies would compete with one another." The reason for this limitation was to allay disquiet on the part of management employees of Gerace Construction arising from the prospect of Gerace Construction losing work to Helger. According to Sweebe, initially, he prepared the bids for jobs presented on behalf of Helger with the assistance of both Francis E. Gerace and Donald Wardin. However, as time went by, he has assumed more independent responsi- bility and as of the date of the hearing he consults with Wardin or Gerace on only I out of every 10 bids. Sweebe further testified that he is in charge of the day-to-day operations of Helger but that with respect to such matters he consults frequently with Donald Wardin. The first individual employed by Helger, other than the incorporators, was Walter Sasse, who was hired as a job superintendent by Wardin and Sweebe acting together. Sasse previously worked for Gerace Construction as a job superintendent, although at the time he was hired by Helger he was not actually employed. Sasse in turn hired his son who was then working for Gerace Construction. A second job superintendent hired by Helger is a Mr. Krotzer who previously had been employed by Gerace Construction as a journeyman bricklayer and also as a supervisor of brickwork and building work. In addition, other employees of Helger on occasion have worked for Gerace Construc- tion. 649 Helger does not recognize the Charging Parties as the representatives of any of its employees, does not observe the terms of the collective-bargaining agreements between Gerace Construction and the Charging Parties, and pays its employees lower wage rates than are called for by the terms of said agreements . The job classifications for the employees of Helger and the wage rates being paid them were established after consultation among Francis Gerace, Wardin, and Sweebe. In August 1970 each of the Charging Parties wrote to Gerace Construction, care of Francis E. Gerace, a substantially identical letter, in pertinent part, reading as follows- In order to better police our collective bargaining agreement with you, we request you provide us with the names, addresses, social security numbers, dates hired, and rates being paid of all [Carpenters, Laborers, etc. as the case may have been ] working for you either under the company name of Gerace Construction Company or Helger Construction Company for the week beginning August 3rd, 1970. An identical reply was sent to each of the Charging Parties, as follows: You may obtain the information you requested covering employees of Gerace Construction Company via the Health and Welfare Reports which are sent to your office each month. Representatives of the Charging Parties on two different occasions visited the offices of Gerace Construction to discuss Helger's operations with Francis Gerace and each time the latter advised them, in effect, that Helger was unrelated to Gerace Construction. Thus, Francis Gerace told Lee Bargeron, business representative of the Laborers, that there was no chance that Gerace Construction would take over Helger. Similarly, Arthur Clark, business representative for Tri-City Building and Construction Trades Council, and Chester Cabray, Bricklayers business representative, were told by Francis Gerace that they would have to talk to someone else about the Ford Press job which was being done by Helger and suggested that they speak with Sweebe. CONCLUSIONS Section 2(2) of the Act defines the term "employer" to include "any person acting as an agent of an employer, directly or indirectly." Thus, where necessary to safeguard statutory rights and to effectuate the purposes of the Act, the Board may disregard technical considerations and "may view separate legal entities as a single employing enterprise." 8 A variety of factors normally are considered by the Board in determining whether it should penetrate the separate guises under which two or more enterprises are conducting their businesses and find that they constitute a single employer. Among the more frequent of these are: common ownership, common management, financial dependence, integration of operations, and interchange of employees. ' N L R B. v. G,braltor Industries, Inc, 307 F 2d 428, 431 (C A. 4), cert denied 372 U.S 911 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Most significant is the degree of common control of labor relations .9 In this case there is a predominating presence of factors pointing to entrepreneurial unity. The Gerace family effectively owns 70 percent of the outstanding shares of stock of Gerace Construction and 52 percent of Helger. Half the balance, or 24 percent of the outstanding shares of Helger, is owned by Wardin who is a shareholder, director, and full-time employee of Gerace Construction. Francis Gerace and Wardin, who together own 76 percent of the shares of Helger, constitute two- thirds of the Board of Directors of the Company and therefore between them have the legal right to control and direct the affairs of Helger. According to Sweebe, Helger has been using as operating capital only the funds obtained from the sale of its shares of stock and has not obtained any loans or other direct financial assistance. However, 76 percent of such capital was contributed by Francis Gerace and Wardin. In addition, Helger has been using Francis Gerace's land free of rent. More than half of Helger's power tools and building equipment as well as its office trailer is rented from Gerace Construction. The foregoing demon- strates not only the common ownership and directorship of the two Companies but also Helger's financial reliance, if not dependance, upon Francis Gerace and Gerace Construction. Of critical significance is the fact that the employment and labor relations policies of Helger have been determined jointly by the Company's directors with a two-thirds majority being lodged in Francis Gerace and Wardin who between them also establish the industrial relations practices for Gerace Construction. More than this, Helger was planned as an extension of the business activities of Gerace Construction. It was organized by Francis Gerace to operate nonunion 10 and to capture smaller construction work which Gerace Construction can no longer perform profitably. These policies have been pursued by Helger. The participation of Francis Gerace in determining the job classifications and wage rates for Helger's employees insures the "non-union" character of its operations. The authority Francis Gerace effectively exercises over the kind of business Helger solicits contains its activities within the planned design of Francis Gerace. The nexus between the two Companies is emphasized by Francis Gerace's testimony that he does not permit Helger to compete with Gerace Construction in order to minimize dissatisfaction among the so-called management employees of Gerace Construction, such as estimators, who are frightened by the prospect of possible transfer of work opportunity to Helger. An effort was made by Respondents to portray Helger as being independent of Gerace Construction principally by asserting that managerial authority is lodged in Sweebe who is not connected with Gerace Construction. However, while Sweebe may direct the day-to-day operations of Helger he frequently consults with Wardin on such matters. Neither Sweebe nor Francis Gerace had the temerity to testify that Sweebe can initiate any important changes in the operations of Helger without the concurrence of 9 N L.R.B. v Condenser Corporation of America, 128 F 2d, 67, 71 (C.A 3); N L R B v National Shoes, Inc, 208 F 2d 130, 131 (C A 2). 10 1 use the term "non-union" here not to describe or characterize an unlawful business practice but to refer to the policy of Helger of not Francis Gerace. Furthermore, Sweebe has worked for Gerace Construction and for more than half the period of time (as of the date of the hearing) that he purportedly was directing the affairs of Helger he was being paid by Gerace Construction. It would be unrealistic to believe that Sweebe conducts the activities of Helger independent of Francis Gerace, particularly as the bookkeeping and clerical work of Helger is performed free of charge by Helen Gerace who thus is able to maintain continuous scrutiny over the affairs of Helger for the benefit of her husband. The elements adverted to above, including the fact that Helger was organized by Francis Gerace to extend the business opportunities of Gerace Construction, the fact that Francis Gerace controls a majority of the shares of stock of Helger, and that he and Wardin, who are principals of Gerace Construction, constitute two of the three directors of Helger who determine its employee and industrial relations policies, demonstrate that the relationship between Helger and Gerace Construction is such that they function, to a substantial degree, as a single enterprise and therefore constitute a single employer under the Act. It does not necessarily follow that because Gerace Construction and Helger constitute a single employer that the employees of Helger are accretions to the units of Gerace Construction's employees represented by the Charging Parties. As the term is used here accretion refers to the expansion of an appropriate collective-bargaining unit. Where the expansion arises from hiring additional employees to work in the same premises and to do the same jobs along with the current employees of a particular employer, the new employees are easily recognized as accretions. However, there is no simple formula which mechanically can be applied to determine an accretion issue where the employer enlarges his operations by acquiring additional premises which are staffed with newly hired personnel. Whether or not a particular operation constitutes an accretion or a separate unit turns, of course, on the entire congeries of facts in each case . In determining that a newly established facility or operation is an accretion to an existing unit , the Board has given weight to a variety of factors, such as integration of the operations; centralization of managerial and adminis- trative control; geographic proximity; similarity of working conditions, skills, and functions; common control over labor relations; collective-bargaining history; and interchangeability of employees. Obvious- ly, cases in which all of these, or only these, positive accretion factors are present are rare . For, the normal situation presents a variety of elements, some militating toward and some against accretion , so that a balancing of factors is necessary . In addition, in some cases the Board gives greater weight to some factors than to others and, indeed, the presence or absence of a particular factor may be crucial.ii The application of the foregoing criteria is particularly difficult in this case because of the nature of Respondents' entering into prehire agreements such as are permitted by Section 8(1) of the Act. it The Great Atlantic and Pacific Tea Company (Family Savings Center), 140 NLRB 1011, 1021. GERACE CONSTRUCTION, INC. 651 businesses . Each job which a general contractor undertakes may be distinct and separate from the preceding and succeeding projects. Except for an office, which is not essential for a small company, the place of business of a general contractor changes with the situs of his work. Material and goods are not stocked but purchased separately for each project. Even the ownership of tools and equipment can be dispensed with-as is done by Helger-by rental arrangements. It is also possible for a small contractor to operate with minimal capital-as does Helger. Finally, it is not uncommon for a general contractor to hire almost an entirely new work force for each new job. This latter characteristic impelled Congress to sanction prehire agreements for the construction industry by adding Section 8(f) to the Act. Also, the subsisting collective-bargaining agreements to which Ge- race Construction is a party recognize the itinerant nature of employment in the industry by, among other things, having no seniority provisions. Thus, there is no require- ment under these agreements for the contracting employer to lay off employees in accordance with seniority or to give preference to former employees when staffing a new job. Nothing in the agreements prevents Gerace Construction from hiring an entirely new complement of employees for each new project. Yet the intent of the contracts-which Respondents do not dispute-is that during the term of the agreements their provisions cover all work performed for Gerace Construction within the defined appropriate units of employees. The collective-bargaining agreements with the Charging Parties are for terms of between 2 and 3 years. The contracts would be meaningless if they do not apply to the changing composition of the work forces as the contractor moves from job to job. Respondents in their brief acknowledge the continuing applicability of the agreements to each successive project of Gerace Construc- tion. Their position in this regard is only that "[t]here is absolutely no evidence to show that Gerace Construction Company, Inc. has lost any work due to the formation of Helger Construction Company, Inc." But this does not determine the accretion question in this case. Gerace Construction's agreements with the Unions are not limited to a particular volume of work but apply to all its work-even if the amount should increase substantially. Likewise, the agreements are not confined to large, medium, or small projects-they apply to all the construc- tion jobs obtained by Gerace Construction. The law will not countenance Gerace Construction avoiding its contrac- tual obligations to the Charging Parties merely by changing the name or the style under which it conducts its affairs. Where necessary to effect justice, Courts will pierce the veil of business identity and upon finding that "the corporate forms [are] largely paper arrangements that do not reflect the business realities," 12 will treat separate corporate enterprises as one. Helger was organized to do work which Gerace Construction was equipped to do, had done, and which its principal, Francis Gerace, wanted to do 13 and in order that the Employer's obligations under the contracts between Gerace Construction and the Charging Parties could be circumvented. I have found above that Helger and Gerace Construction constitute a single employer. During the first 5 months of its business activity, except for name, Helger was indistin- guishable from Gerace Construction. The management of Helger worked for and was paid by Gerace Construction. Helger's first job, which it obtained in May 1970 before its formal organization, was solicited on behalf of Gerace Construction and would have been accepted by Gerace Construction but for the fact that the Company was unable to guarantee completion of the job without work interrup- tion in consequence of the possibility that a strike might develop if the then pending collective-bargaining negotia- tions were not resolved by the month's end. Also, Helger had no separate place of business or observable independ- ent identity. Unless corporate form is permitted to overcome business realities all work done by Helger prior to September 1970 must be deemed to have been the work of Gerace Construction and the employees of Helger must be deemed to be covered by the collective-bargaining agreements between Gerace Construction and the Charging Parties to the same extent as if the work had been done under the name and style of Gerace Construction. The few changes, summarized above, that have taken place since September 1970 have effected only little alteration in the relationships between the two Companies. As the opera- tions of Helger effectively are extensions of the operations of Gerace Construction, contrary to Respondents, I find that the employees of Helger are accretions to the bargaining units of Gerace Construction and that Respon- dents have violated Section 8(a)(5) and (1) of the Act by refusing to recognize the Charging Parties as such representatives and by failing to apply the terms of the subsisting collective-bargaining agreements to the employ- ees of Helger. The Respondents are also accused in the complaint of having violated Section 8(a)(3) of the Act as well as Section 8(a)(5) and (1). Presumably the theory of the General Counsel in support of the alleged violations of Section 8(a)(3) is that the conduct of the Respondents in organizing Helger to embark upon nonunion construction work was "to discourage the union activities and adherence of their employees" (par. 24 of the complaint). There is no evidence that Respondents were motivated by such purpose or that Helger in hiring employees discriminated against members of the Charging Parties. There is no direct evidence in the record that Respondents sought "to destroy and dissipate the majority status of the Charging Parties in relation to the [described] bargaining units" (par. 24 of the complaint). Whatever evidence there is in the record would tend to indicate the contrary. The testimony of Francis Gerace is that the organization of Helger has resulted in no diminution of work for Gerace Construction. No attempt was made to prove that the formation of Helger deprived any employees of Gerace Construction of any work they otherwise would have had. The uncontradicted testimony 12 N L R B v Deena Arrware, Inc, 361 U S 398, 403 longer compete due to the competitive structure of the construction 13 Thus, in their brief Respondents state industry in the Saginaw Valley area. In effect, Helger Construction Helger Construction Company, inc was conceived and molded Company, inc. is an attempt to recapture a competitive position that into a viable organization to penetrate the area of light, general Gerace Construction Company, Inc. no longer held construction where Gerace Construction Company, Inc could no 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Francis Gerace is that the only construction work which Helger has obtained were jobs that were foreclosed to Gerace Construction because of its high labor costs or for other reasons unrelated to the existence of Helger. In two specific instances, described in the record, namely, the Dow Chemical remodeling job and the Ford Press job, Gerace either had been rejected as a bidder or was unable to meet the conditions imposed by the owner. As none of the employees of Gerace Construction were prejudiced either as to their earnings or work opportunities they certainly were not the objects of Respondents' discrimination. Helger offered employment to applicants at rates less than those called for by the contracts between Gerace Construc- tion and the Charging Parties. I do not see that this constitutes discrimination against the persons who applied for employment with Helger. At most, it constitutes a breach of contract on the part of the Respondents. Furthermore, apart from whether or not any employees were the objects of discrimination, I find no adequate proof that the Respondents' activities here complained of were motivated by a desire "to discourage the union activities and adherence of their employees" (par. 24 of the complaint).14 Accordingly, I find no violation of Section 8(a)(3) of the Act has been established. The complaint also alleges a violation of Section 8(a)(5) of the Act by reason of the fact that the Charging Parties requested the names, addresses, social security numbers, dates of hire, and rates of pay for the employees within the classifications represented by them of both Gerace Construction and Helger and that Respondents furnished such information with respect to Gerace Construction but not with respect to Helger. As the employees of Helger constitute accretions to the bargaining units of Gerace Construction employees represented by the Charging Parties, the refusals of Respondents to furnish the requested information, which patently is material and necessary in order for the Charging Parties to discharge their representative obligations, were further failures on the part of Respondents to bargain collectively with the representatives of their employees and constituted addi- tional violations of Section 8(a)(5) and (1) of the Act.15 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with Respondents' opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 14 Specific evidence of antiunion motivation is not always required to establish a violation of Section 8 (a)(3) of the Act See N L R B v Great Dane Trailers, Inc, 388 U S. 26, The Radio Officers' Union of the Commercial Telegraphers Union, AFL v N L R B, 347 U S 17, 45; Republic Aviation Corp v. N L R B, 324 U S 793, Crown Petroleum Corporation v N L R B, 430 F 2d 724, 727-728 (C A 5) Such cases, however, present exceptional circumstances as where the employer 's conduct is inherently destructive of important employee rights There are no extraordinary circumstances here which impell abrogation of the normal requirement of proof of animus in order to sustain an alleged violation of Section 8(a)(3) V. THE REMEDY Having found that the Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain action designed to effectuate the policies of the Act. I have found that Respondents unlawfully have refused to recognize the Charging Parties as the representatives of the employees on the payroll of Helger who are included, as accretions thereto, in the units of employees covered by the respective collective-bargaining agreements between the Charging Parties and Gerace Construction and also unlawfully have failed to apply the terms of said collective- bargaining agreements to such employees. Accordingly, I shall recommend that, upon the requests of the Charging Parties, Respondents shall recognize them as the respective representatives of the employees on the payroll of Helger who fall within the job classifications described by the respective collective-bargaining agreements between the Charging Parties and Gerace Construction. I shall further recommend that Respondents, upon the request of the Charging Parties, shall apply the terms of their respective collective-bargaining agreements to the employees within the appropriate job classifications of Helger. It is my recommendation that the effect of this Recommended Order shall operate prospectively from the date of the issuance of my decision herein insofar as it may require Respondents to make any monetary adjustments to or on behalf of employees on the payroll of Helger. The purpose of the remedial provisions of the Act is to correct and rectify unfair labor practices and to restore the "situation, as nearly as possible, to that which would have obtained but for the illegal [conduct ]" 16 but not to punish the Respondents.17 So far as the record shows no employee of Gerace Construction was in any way, directly or indirectly, injured by reason of the formation and operations of Helger. There is no evidence that any employee of Gerace Construction either lost wages or other earnings or the opportunity for work. The record shows that Helger paid its employees at rates less than those paid by Gerace Construction. According to Francis Gerace, because of this and because Helger was not required to observe the jurisdictional lines of the various crafts, Helger was in a position to bid for and to obtain work in categories and areas foreclosed to Gerace Construction. It would be foolish for the Board to close its eyes to the realities of the operations of the construction industry. The employees who accepted work with Helger knew that they were accepting work with a firm which was operating nonunion (in the sense described above). To give them backpay would be to award to them a windfall and at the same time to punish the Respondents. "Certainly, employees are not entitled by way of a Board remedy to payments of which 15 See NLRB v Acme Industrial Co, 385 U.S. 432, 435-436, Prudential Insurance Company of America v N.L R.B, 412 F.2d 77 (C A 2), cert denied 396 U S 928, Standard Oil Company of California, Western Operations Inc v N L R B, 399 F.2d 639 (C.A 9). 16 Phelps Dodge Corp v N.L R B, 313 U S. 177, 194. 17 Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO [Mechanical Handling Systems] v N LR.B., 365 U.S 651, 657; Consolidated Edison Company of New York, Inc v N.LR B, 305 U.S. 197, 235-236 GERACE CONSTRUCTION, INC. they were not deprived or which they would not reasonably have received absent the unfair labor practice." 18 In my opinion the purposes of the Act will be satisfied by the direction that the Respondents hereafter shall recognize the Charging Parties as the representatives of Helger's employees and, upon request of the Charging Parties, apply the terms of the collective-bargaining agreements between themselves and Gerace Construction to the employees of Helger. I shall also recommend that, upon request of the Charging Parties, Respondents furnish them with all information relevant and useful to the discharge by the Charging Parties of their representative obligations. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By failing and refusing to recognize the Charging Parties as the lawful representatives of the employees of Helger falling within the job classifications described in their respective contracts with Gerace Construction and by failing and refusing to apply the terms of such contracts to such employees, Respondents unlawfully have refused to 18 New Orleans Board of Trade, Lid, 152 NLRB 1258, 1265 19 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in 653 bargain collectively with the Charging Parties as the representatives of their employees and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 2. By failing and refusing to furnish the Charging Parties with information relevant and useful to the discharge by the Charging Parties of their obligations as the representatives of employees of Respondents, Respondents further have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondents have not engaged in any violations of Section 8(a)(3) of the Act as alleged in the consolidated complaint herein. 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: 19 [Recommended Order omitted from publication.] Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes