Frank N. Smith Associates, Inc.

212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frank N. Smith Associates, Inc. and Keuka Construc- tion Corporation and Finger Lakes and Vicinity District Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Local No. 700 of the Seneca and Vicinity District Council of Carpenters, of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 3-CA-4325 and 3-CA-4345 November 16, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Smith Associates, Inc., herein called Associates, and Keuka Construction Corporation, herein called Keuka, are a single entity. The issue on jurisdiction concerns the self-imposed jurisdiction requirements set up by the Board in order to determine whether an employer is engaged in commerce within the meaning of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. It, in turn, breaks down into questions: (a) as to whether Associates by itself is such an employer; (b) whether Keuka itself is such an employer; and (c) whether Associates and Keuka together as a single entity meet the jurisdiction requirements. Case 3-CA-4325 began with the filing of a charge on December 7, 1970, by Finger Lakes and Vicinity District Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called Carpenters, against Associates and Keuka. Based upon the charge, the General Counsel of the Board, herein On July 13, 1971, Trial Examiner George L. Powell issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Parties each filed exceptions and a supporting brief, and Respondents filed an answering 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the parties' exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopthis recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. called General Counsel, through the Acting Regional Director for the Third Region of the Board, issued a complaint on February 19, 1971, alleging that Associates and Keuka had violated Section 8(a)(1) and (5) of the Act. The charge in Case 3-CA-4345 was filed on January 8, 1971, against Associates and Keuka by Local 700 of the Seneca and Vicinity District Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called Local 700, and the complaint based thereon was issued March 5, 1971, by the same Acting Director, above, alleging violations of the same section of the Act. On March 5, 1971, an order was issued consolidating the cases for hearing. Associates conducts its labor policies under collective- bargaining agreements with the Carpenters and Local 700, but Keuka observes no contract, never in name having been a party to the agreements. Charging Parties and the General Counsel contend that Keuka is bound by the Associates' contracts because it and Associates, in fact, are a single employer, and employees of Keuka are'accretions to the bargaining units in the contracts with Associates. Upon consideration of the entire record, including oral argument and the -briefs filed with me, and specifically upon my observation of the 'witnesses as they testified before me,' I find, for the reasons hereinafter set forth, that 1 In adopting the Trial Examiner's dismissal of the complaint, we note that the issues posed are sumlar to those we recently considered and the General Counsel has failed to establish by a preponder- that resolved in Gerace Construction, Inc and Helger Construction ance of the evidence that Respondent violated the Act as company, Inc, 193 NLRB No 91. - enumerated in the complaint because Associates and TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE L. PowELL, Trial Examiner: These cases were tried before me in the Court House of Steuben County, Corning, New York, on May 5 and 6, 1971. The General Counsel argued orally and he and Respondent, after an extension of time, filed briefs with me on June 11, 1971. The broad issues litigated were two in number: (1) Whether the National Labor Relations Board, herein called the Board, has jurisdiction; and (2) whether Frank N. Keuka are not a single entity and Keuka therefore is not bound by Associates' contracts. Accordingly, I will recommend that the complaint be dismissed in its entirety. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE EMPLOYER Frank N. Smith Associates, Inc., herein called Associates, is a New York State corporation engaged in the building and repair of commercial and industrial buildings at its principal place of business at 196 West Sixth Street, Corning, New York. 1 Cf. Bishop and Malco, Inc, 159 NLRB 1159, 1161. 194 NLRB No. 34 FRANK N. SMITH ASSOCIATES 213 Until withdrawing from "all multi-employer collective bargaining negotiations with ... [Chemung Valley Build- ers Association, Inc.]" on March 17, 1971, Associates had been a member of the association and considers itself bound by the existing collective-bargaining agreement with Local 700 expiring May 31, 1972. Associates also considers itself bound by an agreement between the Carpenters and the Building Employers' Trades Association, Inc., of Auburn, New York, the Geneva Builders and Trades Association, Inc., of Geneva, New York, and the Ithaca- Cortland Builders Exchange of Ithaca, New York, having a term from July 1, 1970, to May 31, 1972. Associates purchased $312,870.34 worth of materials in the 12-month period ending December 31, 1970, of which sum, $19,806.08 worth was purchased directly from outside New York State. During the same period, Associates received $51,449.16 for goods and services performed for New York Telephone Company,2 a nonretail enterprise coming within the $50,000 outflow standard or a public utility which meets the Board's jurisdictional standards. Additionally Associates received for four jobs performed by it, including its subcontractors, for Pleasant Valley Wine Co., a part of Taylor Wine Co., Inc.,3 $266,779.70, $391,978.76, $19,424, and $6,090.4 These sums represent jobs performed and value of contracts performed between January 1, 1970, and March 3, 1971. As revealed in employment, hereinafter set forth, Associates had 632 man weeks of employment in the months of August through December 1970 as compared with only 80 man weeks of employment in the first 2 months of 1971. This clearly shows that the great bulk of employment and the concomitant value of services performed took place in calendar 1970 for the four figures above of some $684,272.46. Accordingly more than $100,000 worth of goods and services were performed in 1970 by Associates for Taylor Wine Co., Inc., an enterprise coming within the $50,000 outflow jurisdictional standard of the Board and the Board has jurisdiction over Associates. Jonesboro Grain Drying Cooperative, 110 NLRB 481, 484, as modified by Whippany Motor Co. 115 NLRB 52. Keuka Construction Corporation, herein called Keuka, is a New York State corporation engaged in the building and construction of commercial, industrial, and residential buildings at its principal place of business at 196 West Sixth Street, Corning, New York. Originally incorporated in 1966 it was dissolved in December 1969 but was reincorporated in September 1970 to get a contract job with Pleasant Valley Wine.5 Keuka purchased materials valued at $166,943.73 in the period September 1, 1970, to March 1, 1971, of which sum $797.25 was purchased directly from outside New York State. From September to May 1970, Keuka billed one customer, Pleasant Valley Wine, $219,685 for materials bought for and services rendered .6 As noted above, Pleasant Valley Wine is a part of Taylor Wine Company and is engaged in interstate commerce within the Board's jurisdictional standards. As Keuka received more than $100,000 worth of goods and services performed for an enterprise [Pleasant Valley Wine ] coming within the $50,000 outflow standard of the Board, Keuka meets the Board's jurisdictional standard in the category referred to by the Board as the "indirect outflow" standard. Jonesboro Grain Drying Cooperative, 110 NLRB 481, 484, as modified by Whippany Motor Co., 115 NLRB 52 (1956). See also Vogue Craft, 111 NLRB 220, and The Plastic Molding Co., Inc. 110 NLRB 2137. II. THE LABOR ORGANIZATIONS I also find as true the admitted allegations in paragraphs IV of both complaints that the Unions are labor organizations within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES As noted earlier, Associates is performing under collective-bargaining agreements involving both Local 700 and the Carpenters. Keuka, on the other hand, is not party to any collective-bargaining agreements and operates an open shop. If Keuka is a part of Associates its employees are accretions to the unit of Associates and it should be following the collective-bargaining agreements of Associ- ates and its failure to do so results in Associates' breaching its agreements and also violating Section 8(a)(5) and (1) of the Act by unilateral modification of the collective- bargaining agreements. The question to be resolved is whether, under the circumstances, Keuka and Associates are an integrated enterprise or a single entity. Frank N. Smith is the president of both Associates and Keuka and owns between 70 percent and 75 percent of the stock of each. He credibly and forthrightly testified that Keuka was reincorporated in September 1970 in order to negotiate for or bid on jobs as an open shop. These were jobs which Associates were not given a chance to bid on because of its high union carpenter-labor costs. The remaining 30 percent to 25 percent of the stock of each corporation is owned equally by three persons, Daniel McLaughlin, Arlone Kosty, and Franklin Freeborn, who are, respectively, vice president, secretary, and treasurer of each corporation. Labor relations at the higher level are handled by Smith for Associates and by Daniel McLaughlin for Keuka, with day-to-day problems handled by the respective job superintendent of each. The following breakdown details the categories under each corporation for comparison: 2 Mr. Smith testified that 1/3 of this $51,449.16 was for services performed by subcontractors. As the subcontractor was performing for Associates and not the telephone company the whole amount received is the value of the services performed by Associates. Vogue Craft, 111 NLRB 220. 3 I take judicial notice of Standard & Poor's Corporation Records, Cumulative News for April-May, 1971, p. 5138, reporting that Taylor Wine Co, Inc. is a New York corporation engaged in making and selling (nationally) wines under the brand name of Taylor and Great Western, and that in calendar year 1970 its sales of wines exceeded $34 million. Finally I notice that the Pleasant Valley Wine Co. is a part of Taylor Wine Co, Inc 4 These jobs are set out in G.C. Exh 2 5 Frank N Smith credibly testified that Keuka was reorganized in order to bid on.jobs without union labor. See G C. Exh. 2. 6 Forty percent of the $219,685 was the approximate value of Keuka's subcontractors. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Category Associates Keuka 1. Job Superintendents Paul McLaughlin Donald Knowles (Supervisors) Robert Young Gordon Lilley Clifford Ellison James Hogue Martin Nee 2. Hires Has no office force force but pays Associates for its share of expenses. Daniel McLaughlin hires job super- intendents and hires employees from job applications. Does not advertise for Advertises for help. for help. 3. Office Owns the building. Uses same office and pays pro rata share, also has office at home of Daniel McLaughlin. 4. Interchange of None, except once Employees Paul McLaughlin worked 2 weeks for Keuda for which Keuka paid Associates.!/ 5. 6. None, except once Job Superintendent and helper did small amount of phone booth installation for Associates which in turn paid Keuka. Job Estimating Smith with Franklin Freeborn assisting, estimates jobs for both Associates and Keuka. Pay Checks Prepared for both by Mrs. Negri (employee of 8 years) but separate payroll for each signed for both corporations by Mrs . Kosty (employee of 16 years). All Associates employees All Keuka employees are not on Associates on payroll for payroll. Keuka. 7. Accountant Michael A. Carnevale acts for both and is paid separately. Mrs. Kosty, hires office girls. Smith hires job superintendents. Unions refer car- penters to jobs they report in to Job Superintend- ents. Union represents No craft category and refers them and employees work to Associates. across craft lines Employs other No union. Not hired craftsmen also. from Associates nor solicited from Associates but hired from job applications. From testimony of General Counsel's witness, Ellison, partially corroborated by Smith, it seems that in August 1970 before Keuka was reincorporated two employees of Associates laid out batter boards for a building in Pleasant Valley Wine which Associates did not build, 8. Carpenters FRANK N. SMITH ASSOCIATES Category Associates Keuka 9. Construction Activity 10. Equipment Commercial and Industrial. Work obtained by bids. Party to collec- tive bargaining agreements'with Carpenters and Local 700 in respective areas since 1966. High lift tractor, power tools, scaffolding, construction project tools, four trucks and insurance. Smaller Cost commercial, industrial and resi- dential. Negotiated jobs. Performs in same geographical work area as Associates since 1966, but never had collective bar- gaining agreements. Does no bidding for jobs. Rents from Associates and other on hourly charge when needed. Pays pro rata for office equipment. 215 Rents equipment to Keuka and to others when available. Owns office equipment. 11. Vacations Mrs. Kosty handles Job superintendents vacation for with Daniel office help. McLaughlin. Job, superintendents Smith not involved. with Smith handle for Associates' carpenters. 12. Telephone Separate directory Separate directory listing and listing and phone phone number. number 13. Advertising Separate adver- Separate advertising tising for and advertises for employees. employees. 14. Books and Records Kept separate. Kept separate. 15. Clients Referral None to each None to each other. other. 16. Competition on None None Bids 17. Credit Has own line Has own line of of credit. credit from bank. 18. Chemung Valley Member Non Member Employers Association 19. Directors Meetings Separate from Separate from Keuka Associates. 216 Category DECISIONS OF NATIONAL LABOR RELATIONS BOARD Associates Keuka 20. Salaries of Smith , Paid by Asso- Pays Associates for D. McLaughlin , ciates . their services Freeborn and when given. Kosty. 21. Number of Employees Employees of this There are no craft Corporation are divisions of separated into employees here. crafts. Week ending All Carp enters All 8/4/70 53 20 8/11/70 49 19 8/18/70 50 19 8/25/70 50 19 9/1/70 51 19 9/8/70 41 17 9/15170 39 16 7 9/22/70 36 16 8 9/29/70 36 16 9 10/6/70 29 10 12 10/13/70 24 8 17 10/20/70 22 7 19 10/27/70 21 7 23 11/3/70 16 5 24 11/10/70 '18 5 24 11/17/70 15 4 24 11/24/70 14 4 25 12/1/70 18 6 28 12/8/70 16 5 31 12/15/70 12 3 39 12/22/70 11 3 35 12/29/70 11 3 35 1/5/71 11 3 36 1/12/71 11 3 35 1/19/71 11 3 36 1/26/71 11 3 33 2/2/71 11 3 31 2/9/71 10 3 30 2/16/71 9 3 30 2/23/72 6 1 30 Arnold Johnson, business manager and secretary-treasur- Keuka were members of the Corning local, a different local. er of the Carpenters since 1954, admitted that Smith refused Roger Strauss was called as a witness by the General to discuss Keuka employees with him and that none of the Counsel. He testified on cross-examination that while he members of the Carpenters went to work for Keuka after- did carpentry work at Associates his work at Keuka was not being laid off by Associates. Those that went to work for restricted to that, but at Keuka he did different work, i.e., FRANK N. SMITH ASSOCIATES 217 mason work, ironworkers' work, and laborers' work as well as carpentry. He testified that George Heath, Gordon Lilley, and six or seven former employees he knew at Associates also did this multicraft type work at Keuka. No one solicited him to go to work for Keuka. He filled out an application for work there and was hired. He would go to the same address (196 West Sixth Street) for Keuka as for Associates occasionally to pick up a work order. He kept his tools in his pickup truck when he worked for Associates and when he worked for Keuka. It is clear from the testimony that no employees were solicited to change employment from Associates to Keuka nor were transferred from Associates to Keuka or were moved from Associates payroll to the payroll of Keuka. Rather, any employee desiring work at Keuka first filled out a work application at Keuka and was hired if work was available. Charles B. Wilhelm, business representative of Local No. 700, testified that he asked Smith in October 1970 if he was reactivating Keuka and was told that Keuka would be "structured separately" and "financed separately" from Associates, and the employees would be paid "what they were worth." Smith refused to discuss Keuka employees with Wilhelm. Later on near the end of October or first part of November 1970 Wilhelm again asked Smith about Keuka but Smith again refused to discuss that corporation. Discussion and Conclusions Johnson, the business manager of the Carpenters, maintains that Keuka is bound in the Carpenters' contract with the Building Employers' Traders Association (GC Exh. 3) in accordance with article IV, section 15.7 As the employers in this collective-bargaining contract are legal entities, the entity (corporation) itself would have to "own and/or control" Keuka in order to qualify under article IV, section 15. The facts above show that Associates does not own and/or control Keuka and Keuka is not part of the Associates Corporation as, for example, a wholly or partially owned subsidiary corporation would be. Rather, Keuka is a separate entity albeit owned and controlled by the same officers and directors of Associates. The question to be decided here is whether Associates and Keuka are a single employer in the view of the Board in effectuating the purposes of the Act. The theory of the General Counsel in his complaint is that the two corporations are a single entity. Both the General Counsel and Respondent set out in their briefs the four factors weighed by the Board in deciding whether sufficient integration exists to treat separate concerns as a single employer in exercising jurisdiction. The General Counsel and Respondent then proceed to use the Board's tests for jurisdiction in the instant case where the issue is whether employees of Keuka are an accretion to the unit of employees of Associates and accordingly are covered in the collective-bargaining agreements or whether by virtue of being a single entity Associates 'is making unilateral 7 Article IV, section 15 . - "Me provisions of this Agreement shall apply to and bind any construction company or construction corporation owned and/or controlled by the employers at the time of the execution of " this Agreement or during the effective term thereof." 8 The same result applies to the unit of employees represented by the Carpenters (GC Exh. 3). However, instead of the doctrine of accretion, the changes in its contract in violation of its obligation to bargain in good faith. I believe that before using these tests for asserting jurisdiction, assuming without now deciding that they do apply in this area, I should first consider the theory of accretion and see if Keuka's employees would even belong in the unit of carpenters under Associates if Keuka and Associates were a single employer. Accretion Associates has many employees 'but only recognizes Local No. 700 "for its employees employed as Journeyman Carpenters, Carpenters Apprentices, Carpenters Foremen, Journeymen Millwrights, Millwright Foremen, and Mill- wright Apprentices, Pile driver Foremen and Carpenter and Millwright General Foremen." See section 1.2 of the Agreement and Working Rules between the Building Trades Employers Division of the Chemung Valley Builders Association, Inc. and Local No. 700 of the Seneca and Vicinity District Council of Carpenters of the United Brotherhood of Carpenters and Joiners of America, Effective: June 1, 1969. Expiration: May 31, 1972. (GC Exh. 4). Who represents other than carpenter employees of Associates is unknown but the above lists shows that the carpenter employees of Associates are only about one third of the total number. Possibly other craftsmen are likewise individually represented by their craft unions. On the other hand, the evidence discloses that Keuka has no craft divisions in its complement of employees with each employee doing the work customarily done by other craftsmen, such as masons, ironworkers, and laborers. In other words, Keuka does not have a unit of carpenters as does Associates. For Local No. 700 to claim all the employees of Keuka under the theory of accretion, the unit would end up being inappropriate and Local No. 700 would be representing employees not in its unit. Other craft unions, if any, would have the same claim. Accordingly, under these circumstances I find Keuka's employees cannot be added to Local No. 700's unit of Associates' employees.8 Single Employers In Marine Welding and Repair Works, et al, 174 NLRB 661, dated February 20, 1969, and cited as authority by the General Counsel in his brief, the Board affirmed Trial Examiner Herzel H. E. Plaine in his handling of jurisdiction. Judge Plaine had this to say: Under the tests for "single employer" developed by the Board, 21st Annual Report NLRB (1956) 14-15, restated and approved in Sakrete of Northern California v. N.LR.B., 332 F.2d 902, 905-908 (C.A. 9,1964), cert. denied 379 U.S. 961, and by the Supreme Court in Radio and TV, etc., Union 1264 v. Broadcast Service of Mobile, 380 U.S. 255-256 (1965), the question is whether the four corporations [involved in the case] are sufficiently integrated to consider the business of all together in applying the standards of the Act. The theory of the General Counsel rightly is based upon a unilateral change in the agreement made by Associates in violation of its obligation to bargain in good faith as article II, section 3 requires the employer to assign certain prescribed work to carpenters. General Counsel's brief claims this theory and it will be disposed of in the following category "Single Employers. 218 DECISIONS OF NATIONAL principal factors weighed in deciding that sufficient integration exists include the extent of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. While none of the factors has been held to be controlling, stress has been laid upon the first three factors to show operational integration, particu- larly centralized control of labor relations. [Sakrete, supra.] On April 12, 1971, in N.L.R.B. v. Welcome-American Fertilizer Co., 443 F.2d 19, the same Circuit Court as in Sakrete, above affirmed the use of the four criteria, reversing the Board only in its application of the facts to the factors. Conclusion It is evident from the foregoing recital that the two corporations do not constitute a single integrated enterprise and a single employer within the meaning of the Act. Rather, I find that each corporation is a separate and independent entity and the Associates' contracts have no application to Keuka. The facts in Marine Welding are vastly different from those here. There the four enterprises "grew" to handle different facets of the total business. Judge Plaine found all of the four factors to be present in Marine Welding. He found specifically: The two Williamsons and Williams are the owners, officers, and active managers of the four corporations, in control of their labor relations subject to the supreme management and labor relations control of President Bill Williamson. All four companies occupy a single combined principal office at the waterfront. The major business of the companies originates at the Marine Welding docks where shipbuilding and repair is done. The supporting specialty work performed by the other three companies in fabricating, repairing, machin- ing, or supplying parts and materials, is either brought to their shops from the Marine Welding docks or is performed at the Marine Welding docks or on the water by employees of the three companies. In turn, Marine Welding employees who perform the bulk of their shipbuilding and repair functions at the docks or on the water, occasionally do their work at the shops and with the equipment of the other three companies. The employees of all four companies, or a lesser combina- tion of them, frequently work on the same shipbuilding or repair project, often simultaneously and sometimes side-by-side. The employees share the tools and equipment provided by one or the other of the companies. In addition to the temporary assignments of some employees to the shops of one or more of the other companies, a few of the employees have been perma- nent transfers from shop to another. The employees occupy two basic locations, one at the waterfront and the other a short distance away in town, with employees and materials moving to and from each location. At the in-town location, the shops are side-by- LABOR RELATIONS BOARD side, and the employees share common toolroom, timeclock, locker, and toilet facilities. At the waterfront location, while the two shops there are a short distance apart, the Williamson Engine employees spend almost half of their working time on the Marine Welding docks and the Marine Welding employees spend some of their time in the Williamson Engine shop. All of the employees in all four corporations have the same hours, the same vacation, medical, and life insurance benefits, and are covered by workmen's compensation when working landside and by Jones Act insurance when working waterside. From the foregoing, it is evident that the four companies are closely integrated in their functioning and are operated for all practical purposes as four divisions of one company. The Respondent is a single employer under the Act. As distinguished from Marine Welding, the four owners of Associates and Keuka do not participate in the active management of the two corporations on a daily basis, labor relations is vested in separate persons (separate superin- tendents for each corporation and Smith and McLaughlin respectively at the higher level), common work facilities are not shared as the work projects are geographically separated and identifiable, and employees do not work back and forth nor do they work together on the same project .9 The General Counsel also cited, as favorable for his position, Senco, Inc. 177 NLRB No. 102, (1969). However, in Senco, the manufacturing done by the four corporations was functionally integrated The controlling owner distribut- ed work among the firms (the Keuka work at Pleasant Valley wasn't even available to Associates). Monthly rentals for the lease of machines and equipment between corporations, unlike the instant cases, were never paid. Rent, unlike the case here, was only occasionally paid. Checks of one corporation were used to pay for medical services rendered to another corporation's employees and for the latter's want ads. One corporation did not require invoices from others who had performed work for it. Lastly, an officer of the four corporations promoted the affiliation of two corporations with a rival union. These facts are considerably different from the instant case. Finally, the General Counsel cited the case of J. Howard Jenks d/b/a Glendora Plumbing, 165 NLRB No. 1. But again, factually the case is not similar to the instant case. Associates has not phased out any of its operations. Keuka was in existence (albeit, another form) in 1966 to the knowledge of the carpenters (Wilhelm testified, "I asked Mr. Smith if he was, in fact, reforming, reactivating the Keuka Construction Company"). When active, Keuka did commercial, industrial, and residential work as it was doing at the time of trial. Unlike the service department of Glendora, Keuka was never a party to labor contracts which were executed by Smith, Langhans & McLaughlin or Associates. There are no elements of discrimination in the instant case. Keuka is not a successor or alter ego to Associates as was Service to Glendora's service department. 9 The two isolated events are insignificant when viewed in the context of $300,000 worth of business for Keuka. over $1 million worth of construction business for Associates and over FRANK N. SMITH ASSOCIATES 219 Keuka did not embark upon new construction for the first time as a subcontractor on projects bid by Associates. Keuka and Associates are not run on a day-to-day basis by the counterpart of Howard Jenks. Keuka does not have free access to Associates equip- ment; Keuka must rent and pay for it when used at market prices. Keuka and Associates do not have a common telephone nor do the employees report to the same place of work and use a common entrance, but rather go to their separate jobs. Keuka does not service Associates' clients. It does contract with some clients where Associates was shut out or foreclosed from further work. Associates continues in being as a viable firm with significantly larger projects and sales than Keuka. I conclude that Keuka was deliberately incorporated in 1970 to operate as a single employer (and it so qualifies under Board law) in an area of business not available to Associates. No effort has been made to have Keuka perform Associates' work nor is there any antiunion motivation such as there is in "run-away shop" type cases. Accordingly, Associates' contracts do not extend to Keuka. that Associates' collective-bargaining agreements have no application to Keuka, I find that the General Counsel has failed to prove his case that Associates violated Section 8(a)(5) and (1) of the Act by not requiring Keuka to follow the terms of the collective-bargaining agreements, and I shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Associates and Keuka are separate employers within the meaning of Section 2(2) of the Act, and are engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Carpenters and Local 700 are labor organiza- tions within the meaning of Section 2(5) of the Act. 3. The General Counsel has not established by a preponderance of the evidence that Associates or Keuka has violated the Act as set out in the complaint. Upon the foregoing findings of fact and conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: THE REMEDY Having found that Associates and Keuka are separate and independent entities and not a single employer and ORDER The complaint is dismissed in its entirety.