Wiley Bros. Transit Mix, Inc.

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wiley Bros. Transit Mix, Inc.; Shamrock Sand and Rock, Inc.; and Shamrock Trucking, Inc. and Building Material and Dump Truck Drivers Local No. 36 of the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America and International Union of Operating Engineers, Local No. 12, AFL-CIO. Cases 21-CA-11293 and 21-CA-11296 June 12, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 5, 1974, Administrative Law Judge Allen Sinsheimer, Jr., issued the attached Decision in this proceeding. Thereafter, Respondents, General Counsel, and each of the Charging Parties filed exceptions and a supporting brief, and the General Counsel 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc., Vista, California, their officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to recognize Teamsters Local 36 as the exclusive bargaining representative of their employ- ees in the following appropriate unit: All drivers of pickup trucks, 2 axle, 3 axle, semi-3 axle, and 4 or more axle trucks, mixers, cement tankers, flat beds, Euclid type trucks, parts clerks, warehousemen, bunkermen, batch plant operators (manual), gas station attendants, greasers and tiremen, refinishers, car and truck washers, general maintenance and yard cleanup men, power broom operators, body repair- men, truck mechanics or welders, forklift operators, concrete pump operators, concrete pump assistants, dixon wagon or athey wagon drivers, off-highway hauling unit operators, and truck foremen employed by the employer-members of San Diego County Rock Producers Association, and including Respon- dents Wiley Bros . Transit Mix, Inc., and Shamrock Trucking, Inc. (b) Failing to adhere to, comply with, and maintain in full force and effect the terms and conditions of the collective-bargaining agreement covering said unit, currently in effect, between the aforesaid Teamsters Union Local 36 and the San Diego Rock Producers Association. (c) Refusing to recognize Operating Engineers Local 12 as the exclusive representative of their employees in the following appropriate unit: All heavy duty repairman's and/or welder's helpers, firemen, oilers, and greasers, general helpers and/or assistant engineers , cruchermen and/or screen men, skip loaders and tractor operators-yard operations, conveyor men, drag-scraper operators, mixer opera- tors-all types and sizes, excluding transit-mix trucks, tractor operators (pit excavation, tournepull Euclid, motor patrol and DW operators), rock plant operators, bulk cement plant operators, heavy duty repairmen and/or welders, equipment greasers, heavy duty repairmen-electricians, batch plant oper- ators (nonmanual), universal equipment operators, shovel, dragline, clamshell or crane operators, load- ing out operators-skip loader, and computer batch- men-weighmasters employed by the employer-mem- bers of the San Diego County Rock Producers Association, and including Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc, (d) Failing to adhere to, comply with, and maintain in full force and effect the terms and conditions of the collective-bargaining agreement covering said unit, currently in effect, between the aforesaid Operating Engineers Local 12 and the San Diego Rock Producers Association. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which is required to effectuate the policies of the Act: (a) Bargain collectively through the San Diego Rock Producers Association with Teamsters Local 36 as the exclusive bargaining representative of their employees in the above-described unit, and execute the current agreement between the Association and Teamsters Local 36 which was effective August 16, 1972. (b) Adhere to, comply with, and maintain in full force and effect the terms and conditions set forth in said Teamsters Local 36 agreement and give and apply retroactive effect thereto to August 16, 1972, including making employees whole for wages and benefits lost as a result of the failure to comply, as well as making whole the welfare funds or other 211 NLRB No. 45 WILEY BROS. TRANSIT MIX, INC. 383 sources for any unpaid fringe benefits provided in the Teamsters Local36 agreement. (c) Bargain co11e6tively through the San Diego Rock Producers Association with Operating Engi- neers Local 12 as the exclusive bargaining represent- ative of our employees in the above-described unit, and execute the current agreement between the Association and Operating Engineers Local 12 which was effective August 17, 1972. (d) Adhere to, comply with, and maintain in full force and effect the terms and conditions set forth in said Operating Engineers Local 12 agreement and give and apply retroactive effect thereto to August 17, 1972, including making employees whole for wages and benefits lost as a result of the failure to comply as well as making whole the welfare funds or other sources for any unpaid fringe benefits provided in the Operating Engineers Local 12 agreement. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at each of their operating facilities copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by its representative, shall be posted by each Respondent or its representative immediately upon receipt there- of, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. , In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize Teamsters Local 36 as the exclusive bargaining representa- tive of our employees in the following appropriate unit: All drivers of pickup trucks, 2 axle, 3 axle, semi-3 axle, and 4 or more axle trucks, mixers, cement tankers, flat beds, Euclid type trucks, parts clerks, warehousemen, bunkermen, batch plant operators (manual), gas station attendants, greasers and tiremen, refinishers, car and truck washers, general maintenance and yard cleanup men, power broom operators, body repairmen, truck mechanics or welders, forklift operators, concrete pump operators, concrete pump assist- ants, dixon wagon or athey wagon drivers, off- highway hauling unit operators, and truck fore- men employed by the employer-members of San Diego County Rock Producers Association, and including Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc. WE WILL NOT fail to adhere to, comply with, and maintain in full force and effect the terms and conditions of the collective-bargaining agree- ment covering said unit, currently in effect, between the aforesaid Teamsters Union Local 36 and the San Diego Rock Producers Association. WE WILL NOT refuse to recognize Operating Engineers Local 12 as the exclusive representative of our employees in the following appropriate unit: All heavy duty repairman's and/or welder's helpers, firemen, oilers, and greasers, general helpers and/or assistant engineers, crushermen and/or screen men, skip loaders and tractor operators-yard operations, conveyor men, drag- scraper operators, mixer operators-all types and sizes, excluding transit-mix trucks, tractor opera- tors (pit excavation, tournepull Euclid, motor patrol and DW operators), rock plant operators, bulk cement plant operators, heavy duty repair- men and/or welders, equipment greasers, heavy duty repairmen-electricians, batch plant operators (nonmanual), universal equipment operators, shovel, dragline, clamshell or crane operators, loading out operators-skip loader, and computer batchmen-weighmasters employed by the em- ployer-members of the San Diego County Rock Producers Association, and including Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc. WE WILL NOT fail to adhere to, comply with, and maintain in full force and effect the terms and conditions of the collective-bargaining agree- ment covering said unit, currently in effect, between the aforesaid Operating Engineers Local 12 and the San Diego Rock Producers Associa- tion. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL bargain collectively through the San Diego Rock Producers Association with Team- 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sters Local 36 as the exclusive bargaining repre- sentative of our employees in the above -described unit, and execute the current agreement between the Association and Teamsters Local 36 which was effective August 16, 1972. WE WILL adhere to, comply with, and maintain in full force and effect the terms and conditions set forth in said Teamsters Local 36 agreement and give and apply retroactive effect thereto to August 16, 1972, including making employees whole for wages and benefits lost as a result of the failure to comply, as well as making whole the welfare funds or other sources for any unpaid fringe benefits provided in the Teamsters Local 36 agreement. WE WILL bargain collectively through the San Diego Rock Producers Association with Operat- ing Engineers Local 12 as the exclusive bargain- ing representative of our employees in the above- described unit and execute the current agreement between the Association and Operating Engineers Local 12 which was effective August 17, 1972. WE WILL adhere to, comply with, and maintain in full force and effect the terms and conditions set forth in said Operating Engineers Local 12 agreement and give and apply retroactive effect thereto to August 17, 1972, including making employees whole for wages and benefits lost as a result of the failure to comply as well as making whole the welfare funds or other sources for any unpaid fringe benefits provided in the Operating Engineers Local 12 agreement. WILEY BROS. TRANSIT Mix, INC. (Employer) Dated By (Representative) (Title) SHAMROCK TRUCKING, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, Room 600, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5254. DECISION STATEMENT OF THE CASE ALLEN SlNSHEIMER, JR., Administrative Law Judge: The above proceeding was heard at San Diego, California, on July 31 , August 1 , 2, 3, 6, 13, and 14, 1973. On November 20, 1972, an order consolidating cases, a consolidated complaint,' and a notice of hearing issued, alleging that Respondent Wiley Bros. Transit Mix, Inc., violated Section 8(a)(1) and (5) of the Act. On April 23, 1973, an amended consolidated complaint 2 and an amended notice of hearing issued, alleging that Respondents Wiley Bros. Transit Mix, Inc., Shamrock Sand and Rock, Inc., and Shamrock Trucking, Inc., engaged in violations of Sections 8(aXl) and (5) of the Act by refusing to sign agreements which had been negotiated on Respondent's behalf (by San Diego Rock Producers Association) with Truck Drivers Local 36 and Operating Engineers Local 12. The issues involve : First, whether or not Wiley Bros . Transit Mix, Inc., is bound by contracts negotiated by the San Diego Rock Producers Association with Truck Drivers Local 36 and Operating Engineers Local 12 . Second, assuming, arguendo, that it is so bound, whether or not said contracts also are applicable to Shamrock Sand and Rock , Inc., and Shamrock Trucking, Inc. The latter involves whether or not either or both were in effect a single, common, or joint employer with Wiley Bros. Transit Mix, Inc. A further issue involves whether or not Wiley Bros . Transit Mix, Inc., had any employees in classifications subject to the contract to which the San Diego Rock Producers Association, Wiley Bros. Transit Mix, Inc., and Operating Engineers Local 12 and the Association had admittedly been parties at the commencement of the negotiations here involved. Further issues arise from contentions as to jurisdiction, majority status, and application of Section 10(b). Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs of the General Counsel, the Charging Parties, and the Respon- dent, I make the following: 3 i Based on an original charge filed October 6, 1972, in Case 2I-CA-11293 filed by Dump Truck Drivers Local No. 36 of the Teamsters and an original charge in Case 21-CA-11296 filed October 10, 1972, by International Union of Operating Engineers, Local No. 12. 2 An amended charge in Case 21-CA-11293 was filed March 9, 1973, by Dump Truck Driers Local No. 36 of the Teamsters, naming as Respondents Wiley Bros. Transit Mix, Inc., Shamrock, and Provident Engineers, and on April 16, 1973, a second amended charge was filed by Dump Truck Driers Local No. 36 of the Teamsters, naming as Respondents Wiley Bros. Transit Mix, Inc., Shamrock Sand and Rock, Inc., and Shamrock Trucking, Inc. On March 12, 1973, an amended charge was filed in Case 21-CA-112% by Operating Engineers Local No. 12, naming as Respondents Wiley Bros. Transit Mix, Inc., Provident Engineering Development Company and Shamrock Sand and Rock, Inc. On April 16, 1973, a second amended charge was filed by Operating Engineers Local No. 12, naming as Respondents Wiley Bros. Transit Mix, Inc ., Shamrock Sand and Rock, Inc., and Shamrock Trucking, Inc. 3 After the close of the hearing, the Respondents moved that the briefs of the Charging Parties not be considered by the Administrative Law Judge on the ground that they had not been served on the Respondents. Both WILEY BROS. TRANSIT MIX, INC. FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYERS (AND RESPONDENTS) The jurisdictional facts herein do not rest upon the separate businesses of Respondents but rather upon the total business of members of the San Diego Rock Producers Association and whether or not Respondent Wiley Bros. Transit Mix, Inc. and other Respondents are bound by a contract negotiated by the San Diego Rock Producers Association (herein called the Association). There is no doubt that said Association is engaged in commerce within the meaning of the Act. The employer- members of the San Diego County Rock Producers Association, including Wiley Bros. Transit Mix, Inc., in the aggregate, annually sell and deliver products valued in excess of $50,000 to customers in the State of California, each of whom annually purchases and receives goods, materials, or supplies valued in excess of $50,000 directly from suppliers located outside the State of California. I find that said Association is engaged in commerce within the meaning of the Act and that Wiley Bros. Transit Mix, Inc., herein called Wiley or Wiley Bros., as a member of said Association and a party to its contract with various unions, was also engaged in commerce within the meaning of the -Act. The issues herein are whether Wiley Bros. Transit Mix, Inc., is now bound by a subsequent contract negotiated by the Association with Truck Drivers Local 36 and Operating Engineers Local 12, and whether or not Shamrock Trucking, Inc., and Shamrock Sand and Rock are also bound by said contracts if Wiley is. II. THE LABOR ORGANIZATIONS INVOLVED Building Material and Dump Truck Drivers Local No. 36 of the International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, herein called Teamsters Local No. 36 or Teamsters, is a labor organization within the meaning of the Act. International Union of Operating Engineers, Local No. 12, AFL-CIO, herein either called Operating Engineers Local No. 12 or Operating Engineers, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction As set forth previously, the issues are essentially (1) whether or not Wiley Bros. Transit is bound by a contract negotiated by the Association and (2) whether or not Shamrock Sand and Rock, Inc., herein called Shamrock Sand, and Shamrock Trucking, Inc., herein called Sham- rock Trucking or Trucking, are part of a single operation Charging Parties have submitted copies of affidavits of service of said beefs showing service on Respondents and Charging Party Operating Engineers advised, by letter of November 21, 1973, it was forwarding to Respondents a second copy of its brief . In view of the foregoing, I see no pertinent issue respecting my consideration of said briefs . I have accordingly considered them. In the event any party has not as yet received a copy of every other 385 or a common or joint employer with Wiley Bros. Transit Mix, Inc. San Diego Rock Producers Association, herein called the Association, has existed since at least 1956 and for years the Association has engaged in collective bargaining and had collective-bargaining agreements with both Teamsters Local 36 and Operating Engineers Local 12. The members of the Association have delegated authority to it to represent them for purposes of collective bargaining and the members are required to enter into and abide by the collective-bargaining agreements negotiated by the Associ- ation. The latest agreements prior to 1972 between the Association and Teamsters Local 36 and Operating Engineers Local 12 were entered into in 1969. The agreement between Local 36 and the Association was effective from August 15, 1969, to August 15, 1972, and the agreement between Operating Engineers Local 12 and the Association, effective from August 16, 1969, to August 16, 1972. Sometime prior to the 1969 agreements, Wiley Bros. Transit Mix, Inc., joined the Association and the 1969 to 1972 agreements were signed by each of the members, including Wiley, with both Local 36 of the Teamsters and Local 12 of the Operating Engineers. B. The Negotiations for the 1972 Contracts There is no question or problem as to Wiley's member- ship in the Association until at least April 17, 1972. At that time, William Halloran, president of Respondent Wiley, wrote to Howard Dennis, then president of the Associa- tion, that "I must reserve the right to accept or reject the pending labor contracts." Halloran then stated that he appreciated this was contrary to the bylaws of the Association and added he felt that "... this prerogative could be necessary to this company's preservation. I am so notifying the Unions involved in this decision." However, Halloran did not send a copy of this letter to either Local 36 or Local 12 but did send them each a letter dated April 17, 1972: One to Teamsters Local 36 read "Pursuant to Article 15 of our agreement, we hereby give you official notice that this firm may desire to either amend or modify or terminate said agreement [emphasis sup- plied]." The letter to Operating Engineers Local 12 read "Pursuant to our agreement we hereby give you official notice that this firm may desire to either amend, modify or terminate said agreement [emphasis supplied]." The above letters were Wiley's only communication to Teamsters Local 36 or Operating Engineers Local 12 and they received no other notification that Wiley was in any different position from any other members of the Associa- tion with respect to the 1972 negotiations. At a meeting of Association members (not including Wiley) on May 15, 1972, Halloran's April 17 letter to Dennis was discussed and it was agreed that Dennis would talk to Halloran about the letter.4 parties' bnef, I am hereby directing that, upon appropriate request, such copy be furnished. 4 On May 15, Teamsters Local 36 wrote Fjellestad (chairman of the negotiating committee) of the Association as follows In accordance with Article XV of the San Diego County Rock Producers' Association Agreement now in effect, we hereby give (Continued) 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dennis and Halloran met May 22, 1972, in Dennis' office. According to Dennis, he told Halloran: A. I explained to Mr . Halloran that under the bylaws of the Association that he could not accept or reject the labor contracts as an individual company; that he would have to abide by the decision of the overall Association and still retain membership in the Association, and I asked him if there was any possibility that he could retain his membership in the Association and join in the negotiations until at a later date prior to the termination of negotiations, that if he decided at that time that he did not like the way negotiations were proceeding, he could resign at that time and the unions would be so notified. Q. O.K. Continue. A. And after discussion along those lines, Mr. Halloran advised me that he would talk to his attorney and would advise me later as to his decision. At another Association meeting on June 5 5 (at which Wiley was not present) Wiley's participation was discussed and Dennis reported on his meeting with Halloran. It was agreed Dennis would talk to Halloran again and report back. He was to try to get an answer before the first negotiation meeting with Teamsters Local 36 scheduled for June 7. There is some conflict as to what occurred after June 5. Dennis testified that Halloran called him on June 7 and: He advised me that, yes, he would stay in the Association and follow the negotiations and then decide at a later date whether or not he would resign or go through the negotiations to completion. Dennis also testified he told Halloran "he had the right to pull out of the Association at any time." Fjellestad testified: Q. again? Do you know if he did talk to Mr. Halloran A. After the 5th? Q. Yes. A. He might have, yes. Q. Do you recall discussing it with Mr. Dennis after the 5th? A. He told me that Wiley Bros. would remain in the Association, but they would reserve the right to official notice sixty (60) days prior to August 15, 1972, of our desire to change, modify and terminate the aforementioned agreement and all amendments and addendums thereto. We are opening this letter for all Association Companies. Please notify us if there are any changes in your affiliates. Please contact Mr. A. Henderson of the San Diego Building Trades Council, as to time and place convenient with your Committee for a first meeting. This letter was signed by John Lyons for the Union and shows copies to "all Rock Association members." On June I, 1972, Operating Engineers Local 12 sent a letter to the Association, attention Ralph Virden, secretary, which states: This letter will serve as official notice that the International Union of Operating Engineers, Local Union No. 12, wishes to reopen the existing Rock, Sand and Gravel either accept or reject the new labor contracts prior to August 15th. Although Dennis, as set forth, testified to a June 7 conversation with Halloran, the latter said he did not have any conversation with Dennis after June 5 but testified he did speak to Dennis on May 22 as follows: THE WITNESS: He said, "We were upset about receiving your letter," and he said, in essence, this is-"You cannot remain in the organization and not allow us to bargain." And I said, "Well, Howard, just off-the-record-" this is me talking. I says, "Off-the-record." I gave him reasons why I felt I could not stay in. And he says, "Bill, I wish you would reconsider." And, I said, "I am acting on counsel's advice, Mr. Pappas advised me not to get involved in this." And, he said, "Will you talk to him again and see if there is any other way you can handle this?" And I said, "I will." That was pretty well-he said, "I wish you a lot of luck in your venture and I hope it works out for you." Halloran testified he had a phone conversation with Association Representatives Taylor Elliott, vice president, and Charles McAllen on June 5 or 6, after the Association meeting of June 5. According to Halloran, the following occurred: He says, "We have to submit names tomorrow at a meeting. Did you change your mind?" And I said, "No, I have not." They said, "Well, it is terribly important to us at this time that we be allowed to use you on our-part of our negotiations. We feel that your withdrawal at this point in time could cause serious complications to our negotiating." And he said, "We are referring to you and we are also referring to Mr. Tom Streuder." That is Southcoast Asphalt. I says, "Well, Tom is here in my office. Let me put him on the other phone." So I did. We specifically asked, or Mr. McAllen and Mr. Agreement for the purpose of changing or modifying wages, hours and working conditions as provided under the terms of the present contract. In accordance with the provisions of the termination clause, if a new agreement has not been concluded as of the expiration date of the current contract, you are hereby notified that the Local Union No. 12 considers the present agreement terminated as of that date. Please signify by return mail or telephone call a time and place of your choosing, so that these negotiations may be entered into and concluded prior to the expiration of the agreement now in effect. 5 Association minutes of this meeting state: 1. President Dennis said he had talked with Mr . Halloran of Wiley Bros. about his letter of resignation, and Mr. Halloran while expressing his desire to remain a member, stated that he felt he must reserve the right to accept or reject any labor contract negotiated by our Association. Mr. Dennis said they would discuss further and he would report to the group prior to June 7, when the first meeting with the Teamsters would take place. WILEY BROS. TRANSIT MIX, INC. Elliott said, "If you people will retract your letter," which Mr. Streuder did, which I did not, he said, "We would like to feel that you were-that you would not pressure withdrawal any further." And, he said, as I recall the words, "And we want you to know that you will not be bound by the negotiations at any time, unless you wish to do so." Q. (Continuing) At this point time, as best I can recall, Mr. Elliott had said that they had talked to their attorney and that I positively-that Mr. Streuder, myself, would positively would not be bound by the negotiations unless we so wished and could drop out of the entire thing anytime or not sign, that we had that prerogative. I said at that time, I said, "The advice I have been getting is contrary-" this is Taylor Elliott-"has been contrary to this, and I don't want to hurt your bargaining position, but I feel this is perhaps bad information." And he said, "Bill, I want you to be assured that you in no way will jeopardize your rights to negotiate individually with this matter." And he said, "Tom, that goes for your matter too," and that was pretty well-I said, "In light of that, I won't make any more effort at this point in time, then, to damage your bargaining position as long as there is a clear understanding on that." Halloran testified further: JUDGE: What did you say to him? THE WITNESS: I said, "Taylor, if you feel that I will damage your negotiating position," I said, "I cannot believe a company as large as you people would be possibly affected by a small, tiny operation such as ours." Well, he said, "There is you and there is Tom Streuder." He said, "If you both pull out at this time," he said, "this is going to seriously jeopardize us," and I will quote. He says, "We may be forced to sign any contract as presented to us." And I said, "I cannot believe what you are saying, but, if this is true, " I said, "I won't do anything further at this point. I won't withdraw my letter or anything, but with the assurance that I can retain my bargaining rights, I will attend the meetings on a hearing basis, to keep-" Not the negotiating hearing now. This is a periodic rock and gravel meeting." "I will attend those, just to be abreast of what is going on [emphasis supplied]." Halloran further testified: Was there anything discussed as to how you would appear in the negotiations, insofar as the union was concerned between you and Elliott? THE WITNESS: Just to this degree. I said, I had talked to my attorney regarding this and 387 he said he is not a labor specialist, but he said, "I feel that you should make a firm withdrawal at this time," and Mr. Elliott and Mr. McAllen said "We have talked to our counsel, who is a labor attorney, and he said this was not necessary. He says, you can withdraw any time you want to." And I said, "Taylor, as I say, I find it hard to believe-what would happen if everybody assumed this position on the night before the contract was to be signed, everybody got up and walked out and stated that they did not feel they were bound, what kind of bargaining arrangement would that be?" He said, "Nevertheless, you have the assurance that this is still your prerogative." I said, "On that basis, I won't do anything further [emphasis supplied]." Halloran, as set forth, testified McAllen and Elliott said it was important they have his answer prior to a meeting the next day, June 7. Halloran said they didn't tell him why. ". . . I assume they said who they were representing or who they were not [emphasis supplied]." Halloran also testified: Q. Did they tell you how your not withdrawing would be communicated to the unions? A. I indicated, as I recall, that "I don't know how you are going to handle this. As long as I can maintain, preserve my rights, I don't know how you are going to handle this with your bargaining, but I will try to stay out of it." JUDGE: Stay out of what? THE WITNESS: Stay out of any further involvement with the union, as far as a letter or any further communications with them [emphasis supplied]. Hallo- ran admitted he did not communicate his position as to the Association and a contract to either Teamsters Local 36 or Operating Engineers Local 12. In any case, it is clear that neither Local 36 nor Local 12 had knowledge of the situation as between Wiley and the Association or the discussions between Halloran and the Association. After April 17, the only information the Union received were statements made by Associa- tion representatives during the negotiations. The negotiations between Local 36 and the Association extended from May 8, 1972, through August 18, 1972, and between Local 12 and the Association, from June 22 through August 16 or 17, 1972. Hans Fjellestad was chairman of the Association's negotiating committee, and at one of the earlier meetings Local 36 asked him whom the Association was representing and whether it was representing Wiley. Fjellestad replied he would furnish Local 36 with a list of employees represented by the Association. At a later meeting he furnished Local 36 with a list of such employers with Wiley listed among the employers named thereon. At one of the other meetings, Local 12 asked which employers the Association was representing and whether it was representing Wiley. Fjellestad, according to uncontradicted testimony which I credit, said the Association did represent Wiley. Local 12 then requested a list of the members of the Association be furnished them in writing. At a 388 DECISIONS OF NATIONAL LABOR kELATIONS BOARD subsequent meeting, an Association representative gave Local 12 a list of employers represented by it and Wiley was named thereon. Negotiations between Local 36 and the Association were completed August 18 when the parties reached agreement subject to approval by the employees who ratified it the next day. Local 12 and the Association reached agreement on August 16 or 17 subject to approval by the employees who ratified it shortly thereafter. About a week later, both agreements were ratified by the membership of the Association' (evidently excluding Wiley Bros Transit), according to Dennis. After the drafts of the agreements had been prepared for signatures, some of the individual members signed the agreements at a meeting in mid-September at which no representative of Wiley was present. The agreements were then taken to those members who were not present, including Wiley. The signed agreements were returned to the Unions. Neither of the agreements had been signed by Wiley, although they had been signed by all other members of the Association. On September 27, Halloran sent Dennis a letter which stated: Regarding the execution of the current labor agree- ments, I refer you to our letter of April 17, 1972, in which I reserved the right to `accept or reject' the current labor contracts. I find I cannot accept these contracts . I regretfully submit my resignation from your San Diego Rock Producers Association.6 [Emphasis supplied.] On October 3, the Association informed Local 36 and Local 12 by letter of Wiley's resignation from the Association and sent each of the Unions a copy of Halloran's letter of September 27. Prior to receiving Halloran's letter of September 27, neither Local 36 nor Local 12 had been informed of any limitation on the Association's authority to represent Wiley. Representatives of Wiley attended several Association meetings which were held about July and August for the purpose of discussing negotiations. Wiley officials not only were present but participated actively, according to Fjellestad, discussing proposals and even suggested a change in the grievance procedure which became a part of one of the final agreements. At a meeting held on or about August 16, when negotiations with the Unions had reached a critical point, a list of names and the business and phone numbers was prepared so the negotiating committee could reach them on short notice.? Members present wrote their own names and phone numbers on the list. Halloran's name appeared on the list and it is not disputed that Halloran was present at the meeting and wrote in his own name and phone numbers. Also, as a member of the Association, Wiley was required to pay dues and continue to pay throughout the period when negotiations were going on, with his last payment made in September which, according to Halloran, was intended to cover dues for the month of August. On July 7, Halloran called Swanson, a member of the negotiation committee, requesting Swanson to meet and inform him concerning the negotiations. Swanson and Halloran met for lunch, with Swanson explaining in general terms how he thought the negotia- tions would go. From the foregoing, it is clear, first, that the letter of April 17 from Respondent Wiley to the Unions was not an unequivocal notice of the Respondent's intention to with- draw from Association bargaining. Since there was no other communication from the Respondent Wiley to the Unions either directly or through the Association as to Wiley's qualified participation, it is evident that, under the cases, Wiley was bound by the negotiations conducted by the Associations In addition, it is evident that Wiley was continuing in the Association during the negotiations even though the issue had been raised but not resolved as to its legal position or obligations in the event it subsequently sought to withdraw from negotiations. Further, to a certain extent, as set forth, Wiley did participate in connection with negotiations by checking on what was occurring, by actively taking part in Association meetings preliminary to negotiations and indicating its views therein, while claiming to reserve the right not to accept a final agreement. In so doing, Wiley, in addition to not withdrawing from the Association, cloaked the Association with apparent authority and further, by its conduct, Wiley is also estopped from denying the Associa- tion's authority. In fact, it was after Wiley through 6 Halloran testified as follows as to this letter it some serious consideration, and I no longer felt I could be a party to Q (By Mr Manning) Mr Halloran, I hand you General Counsel's the negotiations Exhibit 7 and ask you if you are familiar with it' Q (By Mr Manning) I ask you again, if you consider the language A Yes, I am between the two letters to be essentially the same' t T • • M Q Would you tell me why you sent that letter' A Yes I was told my resignation had not been formally accepted, although it was brought to the attention of the San Diego Rock Producers I was dust repeating my request to resign which was-this was, just to reiterate, this was my intent Q. You refer to the original letter of April 17, 1972 meaning in that letter you resigned A I felt I did, yes Is the language in the letter of April 17, 1972 essentially the same as the language in your September 27, 1972 letter' A. As I recall, it set forth something to the extent after I had given A I think the basic difference might be in reply, in this letter of April 17 of 1972, 1 specifically referred to an article here that required, under our by-laws, if I were going to remain a member or be a member of the San Diego Rock Producers Association, it was necessary for me to allow them to bargain in my behalf, and I am saying, I am reserving the right to do my own bargaining. I am appreciating this is contrary to Article 2, Section 3, Article 5 and that that does not say this here, but was tantamount to resignation, is what they asked Apparently they considered my resignation at the next meeting 7 According to Fjellestad, agreement was reached with the Operating Engineers on August 17 and with the Teamsters, August 18 or 19. 8 See Retail Associates, Inc, 120 NLRB 308, Sheridan Creations, 148 NLRB 1503, enforced 357 F.2d 245 (C.A 2, 1966), Ray Hopman Plumbing and Heating, 174 NLRB 403, Senco, Inc, 177 NLRB 882, and Imperial Laundry, 195 NLRB 708 WILEY BROS. TRANSIT MIX, INC. 389 Halloran indicated, supra, about June 6 that it was not then withdrawing from the negotiations that thereafter the Association, following requests by the Unions, named Wiley as one of the members for whom the Association was bargaining. It was only after the agreements had been reached and concluded that Wiley finally indicated to the Association that it would not accept the contracts and the Association then informed the Unions. From the forego- ing, it is evident that not only was there no unequivocal withdrawal from the Association but in fact Wiley continued to remain a member of the Association, did not withdraw from negotiations until after they were complet- ed, clothed the Association with apparent authority to proceed for it, and caused a situation wherein it was estopped from denying such authority. Accordingly, I find it is bound by the Association contract with said Unions .9 C. Appropriate Units and Majority Two other questions raised herein are the appropriate units which are denied as to both Teamsters Local 36 and Operating Engineers Local 12 and, second, the majority in said units. First, it is clear that by entering into the agreements, the Association and Local 36, as well as Local 12, agreed that the units were proper ones for bargaining. Wiley, by accepting the units in the 1969 to 1972 contracts which covered essentially the same units, also admitted the appropriateness of the units. The majority status in 1969 of both Teamsters Local 36 and Operating Engineers Local 12 is established by the existence of the contracts between Local 36 and Local 12 and such majority status continues absent evidence to the contrary. No effort was made to dispute this at the hearing. I accordingly find that the units to which Teamsters Local 36 and Operating Engineers Local 12 are parties in both the past and current Association contracts, as set forth below,10 are appropriate. I also find, based on a continuing presumption of majority status, that Teamsters Local 36 and Operating Engineers Local 12 continued to be and are exclusive bargaining representatives of the employees covered by said units. C. Coverage of Employees Under Operating Engineers Local 12's Agreement Wiley contends it had no employees subject to Local 12's contract during the period 1969 to 1972. There is no question that Wiley did have employees in the unit covered by Teamsters 36 at all times material. The issue is whether Wiley at either its old Vista plant or a 9 See cases cited, supra, In. 8 and see Jeffries Banknote Company, 281 F.2d 893 (C.A. 9, 1960). 10 These units represented respectively by Local 36 and Local 12 are: (a) All drivers of pick-up trucks, 2 axle, 3 axle, semi-3 axle, and 4 or more axle trucks, mixers, cement tankers, flat beds, Euclid type trucks, parts clerks, warehousemen, bunkermen, batch plant operators (manu- al), gas station attendants, greasers and tiremen, refinishers, car and truck washers, general maintenance and yard clean-up men, power broom operators, body repairmen, truck mechanics or welders, fork lift operators, concrete pump operators, concrete pump assistants, dixon wagon or athey wagon drivers, off-highway hauling unit operators, and truck foremen employed by the employer-members of SDCRPA, and including Respondents Wiley Bros. Transit Mix, Inc. and Shamrock Trucking, Inc. (whom I am finding, post, constitute a single enterprise for purposes of collective bargaining). (b) All ,heavy duty repairman's and/or welder's helpers, firemen, plant which it operated at Fallbrook had a batch plant operator who came within the unit represented by Local 12. Wiley had a batch plant operator at Vista but the question is whether such batch plant operator was operating a manual or nonmanual batch plant. Manual operators were to be in the unit covered by Local 36, while nonmanual operators were to be in the unit represented by Local 12. The question with respect to the old Vista plant which existed prior to May 15, 1973, was whether the batch plant operation was manual or nonmanual.11 There is no question that the operation at the new Vista plant since May 1973 is a nonmanual operation. In general, the term "batch plant operator (manual)," according to Ernest Heinrich, business manager for Operating Engineers Local 12, refers to a batch plant in which the operator controls the flow of materials by manually pulling levers. According to Heinrich, the term "batch plant operator (nonmanual)" describes a plant where the operator controls the flow of materials through hydraulic and/or electric action and power is automatically provided by pushing buttons rather than actual physical labor. However, the difficulty is that plants vary from all manual to fully automated, with many in between, and the old Vista plant was neither all manual nor fully automated. Before 1968, there was a dispute concerning the proper application of the terms to the batch plant operators employed by some members of the Association, according to Alex Swanson, vice president and general manager of two companies which are members of the Association. At that time in 1968, following a meeting among employers, Teamsters Local 36 and Operating Engineers Local 12, according to Swanson, it was agreed that these batch plant operators whose status had previously been in dispute would be in the unit represented by Local 12. Local 36 agreed to the resolution of the dispute and, as a result of the agreement, five batch plant operators employed by three of the employer-members were transferred from Local 36 to Local 12. This agreement did not directly involve Wiley. These members of the Association had a variety of different types of batch operations with varying degrees of automation and one or more wherein the operator pulls levers for a portion of the load. There is no question that certain parts of the operation at the old Vista plant were conducted by pushing buttons. Halloran estimated that 10 to 15 percent of the operation involved facilities that used buttons. Halloran testified specifically: oilers, and greasers, general helpers and/or assistant engineers, crushermen and/or screen men, skip loaders and tractor operators -yard operations, conveyor men, drag-scraper operators, mixer operators-all types and sizes , excluding transit-mix trucks, tractor operators (pit excavation, tournepull Euclid, motor patrol and DW operators), rock plant operators, bulk cement plant operators, heavy duty repairmen and/or welders , equipment greasers, heavy duty repairmen-electricians, batch plant operators (non-manual), universal equipment operators, shovel, dragline, clamshell or crane operators, loading out operators-skip loader, and computer batchmen-weigh- masters employed by the employer-members of SDCRAP, and including Respondents Wiley Bros. Transit Mix, Inc. and Shamrock Trucking, Inc. (whom I am finding, post, constitute a single enterprise for purposes of collective bargaining). 11 The Fallbrook operation appears to have been manual but that does not appear to be in issue. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE WITNESS: There was a button pushed to open the gate on the overhead material hopper. One button, say, perhaps for rock and another button for sand, and then when the proper weight would fall into the end of the weigh hopper, why, another button would be pushed to shut it off and then commence -push a button, drawing some more weight, so no rock and sand would be drawn, say, with a start and a stop button. The water was done with a different system and the cement was drawn with a different system. After manually setting the required water on a large scale, a "toggle" switch would be "hit" to start the flow and subsequently switched to turn it off at the proper point. According to Halloran, to stop the rock and sand flow it had to be manually stopped. As for the cement, Halloran testified: THE WITNESS: They would push a button to start it. They would set a weight-they would set the weight and push the button. A hand would come up to the proper indicated weight and when it reached that point, the operator would then push the stop button. According to Alex Swanson, vice president of Fenton Product Co., and Hugh McDonald, business agent of Teamsters Local 36, this plant was similar to one of the Fenton Company plants whose batch plant operators were included in the unit represented by Local 12. As stated, Halloran contended that the old Vista plant was essentially a manual plant. The new Vista plant is fully operated and there is no dispute that it is a nonmanual plant. Although Respondents contend that Wiley had no employees covered by the contracts between Local 12 and the Association, Wiley did sign a 1969 to 1972 contract with Local 12 as well as with Local 36. According to Halloran, he signed because he thought Wiley was required to sign all contracts negotiated by the Association, even if it had no employees covered by such contracts.12 Halloran also signed a contract with one of the Laborers locals, although Wiley had no laborers at the time. It is evident that, while the old Vista plant had less automation than the current one, it did have certain operations which were automated and some, as set forth, which could be said to relate to a manual operation. However, it appears that Association members and the Unions, by a prior agree- ment, supra, in 1968, had agreed that employees at other operations similar to Wiley's plant at the old Vista location were to be represented by Local 12. Even if this were not the case, Wiley, as a member of the Association, had entered into a contract from 1969 to 1972 under which he had agreed that if Wiley had any employees who were covered by Local 12's contract, that they would come within that contract. In any case, since, as found above, Wiley is bound by the current Association contract and now has an automated batch plant at Vista requiring nonmanual operators, I find that Wiley now has an employee or employees subject to the agreement between Local 12 and the Association and that Wiley is accordingly bound to enter into the Association agreement with said Local 12. D. The Business Control and Relationship of Respondents Wiley Transit and Shamrock Trucking Respondent Wiley Transit is solely owned by Provident Engineering and Development Company, herein called Provident. Provident is owned in equal shares by William Halloran, Donald Shepardson, William Kemper, and Donald Winn. Halloran is president of Wiley and appears to be the only one of the owners of Provident actively engaged in controlling Wiley's business. Before the formation of Respondent Shamrock Truck- ing, Wiley was in the business of ready-mix concrete production and delivery. It brought rock, sand, and cement into its plant where it was stored, then weighed and mixed to form concrete and delivered tojobsites. Wiley employed both material drivers who brought the original raw materials to the plant and mixer drivers who transported the finished concrete to Wiley's customers at jobsites. There was also a batch plant operation, previously referred to, and a shop which maintained both the material trucks and the mixer trucks. Prior to the formation of Shamrock Trucking, Halloran was president of Wiley and Harlen Brown was general manager who as such had responsibility for supervising Wiley's operations. John Patten, as dis- patcher, was in charge of both material and mixer drivers. Dean Zornes was lead mechanic or shop superintendent and Dorothy Leckband was the office manager. On May 1, 1972, Wiley entered into a consultant agreement with Brown under which Brown was retained as a business consultant to Wiley (at $1,000 a month, subsequently increased to $1,100 a month about August) and, according to Halloran, at the same time Brown submitted his resignation as general manager of Wiley. On June 1, an agreement was entered into between the four owners of Provident and Brown restricting Brown's right to dispose of the stock (to be issued) of Shamrock Trucking. At the time Shamrock Trucking Corporation apparently was in contemplation but not in legal existence. During the period May 1 to October 1, Brown, although listed as a consultant, continued to perform in fact as general manager of Wiley in supervising its affairs. September 18, 1972, Shamrock Trucking was incorporat- ed and commenced operations on October 1. Shamrock Trucking issued 10 shares of stock, all of which are held by Brown. Brown's powers of ownership are restricted by the agreement referred to above which provides that if he intends to sell or otherwise dispose of his shares in Shamrock Trucking, he must first notify Halloran and the other owners of Provident. For 60 days thereafter they have the right to acquire the shares on the same terms as his proposed transaction. Also, if Brown should die, his personal representative must sell, and Halloran and the others buy, his shares at the par value of the shares. Halloran stated the purpose of the agreement was to assure that Shamrock Trucking did not pass to an outsider. 12 There is some evidence in the record that Wiley in 1969 had an continued to be a member until about 1972 although he became a employee, Patten, working as a batch man at the old Vista plant and that dispatcher in 1969. Patten, at the time, was a member of the Operating Engineers and WILEY BROS. TRANSIT MIX, INC. Brown is the president and treasurer of Shamrock Trucking, Dorothy Leckband, Wiley' s office manager, is vice president, and the directors are Brown, Leckband, and Frank Robertson, who is field superintendent and truck foreman of Shamrock Trucking. Upon Shamrock Trucking's commencing operations, it took over a substantial part of the operations which Wiley had previously performed. Wiley ceased its material hauling operations and Shamrock took over the operations Wiley gave up. Wiley continued to perform a portion of its operations not taken over by Shamrock consisting primari- ly of the production of ready-mix concrete and delivery of the concrete to customers. Prior to formation of Shamrock Trucking, Wiley also maintained shop facilities for repair and maintenance for all of Wiley's mobile equipment, including both mixer trucks and material trucks. At the time Shamrock began operations, the shop facilities passed to it. Shamrock Trucking either purchased or leased Wiley's shop facilities, including its inventory of shop parts, its tools, and its heavy repair equipment. Employees of Wiley who performed the work taken over by Shamrock Trucking terminated employment with Wiley and were then hired by Shamrock Trucking. Wiley had approximately 10 employees performing this work, includ- ing 5 or 6 material drivers and about 4 shop employees. Virtually all of these left Wiley and became employees of Shamrock as soon as it began operations and apparently all of them had become employees of Shamrock within a short time thereafter. The employees performed substan- tially the same kind of work at Shamrock as they had for Wiley. Practically all ceased employment with Wiley on September 30 and practically all were employed by Shamrock Trucking on or before October 15, with most of them employed by Shamrock Trucking on October 1. Each was employed in the same job classification at Shamrock as he had been at Wiley, except that persons classified as "material drivers" with Wiley were called "truck drivers" when they became employees of Shamrock Trucking. As set forth, the equipment Wiley used to perform the work was transferred to Shamrock Trucking on October 1, 1972. All of the equipment which Shamrock Trucking had when it began operations was leased from either Wiley or Provident. All of it was equipment which had been used by Wiley immediately before October 1. Shamrock Trucking entered into lease agreements with Wiley and Provident covering numerous specific trucks and other pieces of mobile equipment on October 1. Some of these vehicles had been leased by Wiley from Provident prior to October 1. When Shamrock was formed, the existing lease agree- ments terminated and Provident entered into new lease agreements with Shamrock Trucking. All of the equipment Wiley had been using for material hauling was transferred to Shamrock Trucking. After Shamrock Trucking began operations, Brown continued to participate in the management of Wiley. On October 1, Wiley, through Halloran, and Shamrock Trucking, through Brown, entered into a consultant agreement under which it was agreed that Brown and Fred Robertson would render consultant services to Wiley relating to matters such as premix plant operations, sales, 391 prices, credit terms, and hiring and that Wiley would pay Shamrock $1,100 per month for such services. Halloran said that Brown resigned from Wiley on October 1 but admitted Brown continued to be a consultant and that Wiley paid Brown $1,100 per month for several months after October 1. Brown apparently has continued to be a consultant to Wiley to the date of the hearing although the $1,100 per month payments purportedly ceased after a few months. This amount of $1,100 was the amount Brown was receiving from Wiley during the period immediately before Shamrock Trucking commenced operations, which would indicate that Wiley in effect paid Brown's salary for some months after Shamrock began operations. Brown in a deposition in December 1972 testified he was the manager of Wiley and said he entered into all phases of the company operation. Brown sought to explain this testimony by saying he was referring to the time of the incident involved in the suit rather than the time of the deposition. It also appears that after October 1, 1972, certain employees of Wiley in the batch plant and the mixer operation continued to consult with Brown, that Brown maintained two offices, one in Wiley's operation and the other in that part which Shamrock Trucking leased, and that in essence he was involved to some extent in the operations of both Wiley and Shamrock. Dean Zornes, who was lead mechanic and shop superintendent, testified that after Shamrock began opera- tions, he worked on both Wiley trucks and Shamrock Trucking trucks in the same shop and that if he felt it necessary to send out a truck for a major overhaul, regardless of which truck it was, he would consult Brown, who would tell him whether to incur the expense on the Wiley trucks as well as Shamrock trucks. In addition to Brown, the remaining Shamrock supervi- sors either came from Wiley or in part remained on Wiley's payroll while supervising Shamrock Trucking employees. Robertson, who is field superintendent and truck foreman of Shamrock Trucking, worked for Wiley before October 1 as Halloran's assistant , particularly on setting up the new Vista plant. Under the consultant agreement set forth, Robertson as well as Brown remained available to Wiley as consultants. The move to the new Vista plant did not take place until May 1973. Zornes, who was shop superintend- ent for Wiley, was subsequently employed by Shamrock for whom he performed the same work as shop superin- tendent. John Patten became dispatcher for Wiley in 1969 and was still performing this job up to the time Shamrock began operations. Patten was in charge of both material drivers and mixer drivers. He assigned trucks to all the drivers and gave them their instructions. After Shamrock began operating, Patten remained on Wiley's payroll and still is on Wiley's payroll, according to Halloran. However, Patten continued to supervise both the mixer and material drivers, the latter of whom were after October listed as employees of Shamrock Trucking. Halloran testified he is not authorized to sign checks or handle labor problems for Shamrock. However, Zornes testified that Halloran some- times made a decision whether to incur a major expendi- ture on a truck, including trucks of Wiley and Shamrock Trucking. In addition, Halloran arranged with Aetna Insurance 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company for Shamrock Trucking employees to be covered under Wiley's medical insurance policy although, accord- ing to Halloran, Shamrock paid its pro rata share of this insurance. Further, at all times since Shamrock com- menced operations, Shamrock Trucking has been at the same location as Wiley's main Vista plant. When it first started, a trailer on Wiley's property became Shamrock's office adjacent to Wiley's office building. The drivers who went to work for Shamrock Trucking continued to work at the same facility. Wiley trucks were stationed at one end of the yard with Shamrock trucks at the other end. Shop employees who went to Shamrock Trucking continued to work in the same shop located at the same premises of Wiley's old Vista plant. Halloran testified that Shamrock leased its facilities at the old Vista plant from Wiley for $125 a month. On May 15, 1973, the entire operations of Wiley and Shamrock were moved to the new Vista plant at another location. Wiley and Shamrock Trucking are now located at the same address at 2683 Oleander. The entire property, consisting of about 200 acres, is leased by Wiley from Thibodo Estates. Shamrock Trucking subleases 2 or 3 acres from Wiley. The shop building and Shamrock Trucking's offices on the property are subleased by Shamrock Trucking, for which it is obligated to pay $250 a month. As set forth, Brown has two offices, one on Wiley property, the other on Shamrock's leased property. Wiley has power to terminate the lease at any time if Shamrock fails to adequately perform services as required by Wiley. Shamrock Trucking performs primarily two types of work, material hauling and repair maintenance. Virtually all of its material hauling is done for Wiley. According to Halloran, this is about 90 percent of Shamrock Trucking's business. There is no commitment by Wiley to use Shamrock Trucking, so this business relationship could be terminable at any time. It also means, when coupled with leases, etc., that Wiley has considerable control over Shamrock Trucking. Brown testi- fied that the outside hauling was somewhat more than the 10 percent indicated by Halloran. The outside hauling which Shamrock does is also work which Wiley formerly performed for some outside customers who continued to call Wiley for materials, which Wiley would obtain and Shamrock Trucking would then deliver. Shamrock Trucking's shop, as stated, performed most of its work on repair and maintenance of vehicles operated by Wiley and vehicles operated by Shamrock. It also performs work for other customers. According to Halloran, this latter amounted to about 35 percent of the shop's business and was more than when Wiley operated the shop because it did very little outside work. Halloran said that of the 35 percent, about 15 was for Shamrock Sand and the remaining 20 percent for outsiders. Brown testified about 60 percent of the shop's work was for Wiley, about 25 percent for Shamrock Trucking, about 10 percent for Shamrock Sand and that the work for outside customers is so very minor that he didn't count it. Brown said he prefers not to do work for outside customers and did so only in unusual circumstances. Wiley performs administrative, accounting and clerical services for Shamrock Trucking under an agreement entered into October 1, 1972, by which Shamrock Trucking is obligated to pay Wiley $600 per month for services rendered. Of four office workers Wiley has on its payroll, two, including Dorothy Leckband, participated in work for Shamrock Trucking immediately after it began operations. In addition, Provident has also performed similar work for Shamrock through its secretary-treasurer, Gerald Nelson. Shamrock does not compensate Provident for his work. Shamrock now has an office clerical who began work about 60 days before the hearing. The office work includes all phases of office clerical work, accounting and billing, communications, payroll, finances and cash for credit and so forth and even involves answering the phone for Shamrock Trucking which did not have a separate phone at the old Vista plant. Shamrock Trucking checks are signed by Mrs. Leckband and Brown, and Mrs. Leckband also signs Wiley's checks. She is Wiley's office manager and vice president, secretary of Shamrock Trucking and a member of its board of directors, and may participate in its profits. She kept the books on the material hauling phase of Wiley's business prior to Shamrock Trucking's formation and continued to do so after the material hauling was taken over by Shamrock. She also makes financial decisions in the interests of Shamrock as to its privilege of drawing money against its billing to Wiley and handles the actual transfer of funds from Wiley to Shamrock Trucking. Brown didn't know how the money was actually transferred from Wiley to Shamrock Trucking. Mrs. Leckband determines whether money owed to Wiley by Shamrock is paid by check or by set off of amounts due from Wiley. She gives Brown checks to sign and he normally signs them. Brown usually doesn't know which basis Mrs. Leckband is using for the financing. Shamrock Trucking, and also another company, South- em California Testing Laboratory, is included under the same workman's compensation policy as Wiley. As stated, Shamrock Trucking is under the same medical program and life insurance as Wiley and so also evidently is Shamrock Sand. Shamrock Trucking pays its quarterly portion of the cost of the life insurance, medical insurance, and the workman's compensation insurance but it isn't clear whether this is paid to Wiley or directly to the insurance company. Shamrock Trucking does not have separate liability insurance for the trucks and leased equipment which is evidently covered by Wiley's and Provident's insurance policies. Also, Wiley's insurance coverage as to fire, theft, etc., applies to the premises, equipment, etc., Shamrock Trucking has or uses on its premises as Shamrock Trucking does not separately carry such insurance. Shamrock Trucking is supposed to be billed in due course for the foregoing types of insurance but does not appear to have been so billed. Also, Shamrock Trucking credited its employees with seniority for the time they had been with Wiley on such matters as vacations and truck assignments. Most of the material drivers were reduced from $5.97 an hour to $5.49 upon transferring from Wiley to Shamrock Trucking, while wages of some of the other employees remained the same. In the case of Shamrock Trucking employees, they were WILEY BROS. TRANSIT MIX, INC. 393 listed as employees of Wiley on the insurance cards issued them by the Aetna Insurance Company. Halloran testified, assto the reason for the formation and development of Shamrock Trucking as follows: JUDGE: Do you know the reason for the formation and development of Shamrock Trucking? THE WITNESS: I do. JUDGE: What was it? THE WITNESS: There was another material source available. It became very important to us and to other members of the industry to coordinate the material delivery and the rock and sand pick-ups. The trucking end of the company had been a losing venture for us. At that time we approached Harlen Brown, who was then manager of Wiley Brothers to see if he would be interested in taking over the trucking. We felt an owner-operator could give it the close attention and the supervision that it would require to make money. Shamrock Trucking began its organization with $1,000 which was obviously an under capitalization for a company with a weekly payroll of $2,500 or $3,000 and which owed a large amount of money to Wiley and Provident for monthly lease payments and also other expenses for materials, etc. Some expenses were deferred through credit but there were obligations which Shamrock Trucking could not currently cover and which could not be deferred. The $1,000 derived from the issuance of the stock was paid to Wiley about the time Shamrock commenced operations. According to Halloran, this was for the privilege of obtaining Wiley's business in a gesture of good faith. Brown testified it was to purchase the right to the material hauling business whatever that right might be in view of the right of Wiley to terminate its business with Shamrock Trucking at any time. Brown said part of the necessary funds were given to Shamrock Trucking by himself and that he contributed $3,000 of his own money. Halloran assured Brown he would help out if there was a shortage. About mid- October, Brown went to Halloran and obtained $1,000 from Halloran personally which was placed in Shamrock Trucking's account. Shamrock Trucking also operates under Wiley's PUC license. Wiley pays Shamrock Trucking at PUC rates for the hauling which Shamrock Trucking does for Wiley. However, the first payments from Wiley were not received by Shamrock until November 1972. During this time, Shamrock Trucking obtained funds through an arrange- ment whereby it was permitted to draw against billings to Wiley for services which had been performed. This was a special arrangement since Wiley normally paid monthly. It apparently resulted from an agreement between Halloran and Brown but was administered by Mrs. Leckband, who decided when and how much of the draw should be made. Wiley has also subsidized the operations of Shamrock Trucking in other ways until Shamrock Trucking could establish credit. It made purchases from suppliers with whom Wiley was doing business and charged such purchases to Wiley's account for approximately the first 60 days after Shamrock Trucking commenced operations. Second, Shamrock Trucking took over Wiley's inventory of shop parts, tools, and heavy equipment. Some of the heavy repair equipment was leased to Shamrock Trucking, while other items, including the inventory of shop parts, were purchased for approximately $15,000. Shamrock Trucking did not pay the purchase price immediately but did so under an arrangement whereby Wiley was not charged for parts used on Wiley equipment which was repaired in the shop. Wiley received credit for parts used on its equipment until it had used up enough parts to offset the value of the inventory. After Shamrock Trucking began operations, it had to obtain additional parts. With regard to a substantial part of the new parts, Wiley was billed rather than Shamrock because Shamrock at the time was unable to pay for them. This practice continued for about 60 to 90 days after Shamrock Trucking began operations and then Shamrock Trucking purchased directly. Although Halloran testified that the entire debt to Wiley was liquidated in 60 to 90 days, Brown testified he did not know whether the original debt had been liquidated at the time of hearing. It would be difficult to understand how such was accomplished in that time since, according to Halloran, only 60 to 70 percent of the original inventory was used up during the first 60-to 90-day period. At the time the inventory was transferred from Wiley to Sham- rock Trucking, Brown determined the value and evidently acted on behalf of both companies in so doing. Shamrock Trucking's shop, apart from dealing with Wiley for parts, also bills it for labor at a profit. The labor rate charge of $12 an hour is lower than the prevailing labor rate which is $14. Shamrock Trucking not only bills Wiley but it also bills itself for cost purposes for both parts and labor. In addition to the foregoing, although Shamrock Trucking is required to pay Wiley under lease agreements at certain times, the payments have on many occasions been late with Halloran's approval. From the foregoing, it is evident that Wiley Transit and Shamrock Trucking have operated as a single employing enterprise (or joint employer) since the inception of Shamrock Trucking. Shamrock Trucking took over a substantial part of Wiley's business with the same employees at substantially the same location with the same general manager, Haden Brown, who has continued to in part also perform work for Wiley. Halloran still makes certain decisions respecting equipment of both companies. Some supervision overlaps as set forth, supra. In addition, Shamrock Trucking uses the same trucking equipment under lease from either Wiley or Provident. It also uses the same shop equipment under lease that Wiley did. Sham- rock Trucking also obtained its inventory from Wiley under an arrangement to pay it off. Its principal customer is Wiley. Shamrock has essentially been and still is being financed by Wiley. The bulk of its business is with Wiley both in hauling materials and in its shop repair depart- ment. Shamrock Trucking uses Wiley's PUC permit. Wiley keeps books and records and does billing and handles financial matters for Shamrock. Wiley and Shamrock Trucking are treated as a single employer for insurance purposes. Wiley and Provident carry the insurance on the vehicles leased by Shamrock. A single fleet policy covers Wiley's mobile equipment and 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shamrock Trucking's mobile equipment. Shamrock, ac- cording to Brown, does not even have any liability insurance so that liability is also covered by Wiley's and Provident's policies. Wiley and Provident pay the premi- ums and Shamrock Trucking, according to Brown, has not reimbursed them as yet. Shamrock Trucking carries no fire, theft, or any other type of insurance on its premises. This is covered by Wiley's insurance. Health-medical insurance is carried under an overall policy written in the name of Wiley. The same is true as to workman's compensation and life insurance. Finally, there is no agreement covering any of the terms under which Shamrock Trucking's material hauling for Wiley is done and there is no limitation on Wiley 's right to terminate its business with Shamrock Trucking at any time. Wiley also can terminate Shamrock Trucking's lease of its premises and physical facilities if Shamrock Trucking fails to perform the delivery services properly. While Brown owns the stock of Shamrock Trucking, it is subject to an agreement to sell to the owners of Provident, as set forth supra. The above factors and others indicate that Wiley and Shamrock Trucking are legally functioning as a single employing enterprise (or joint employer) and/or that Wiley for all practical purposes controls Shamrock Trucking. I accordingly so find and the Association contracts with the Unions, which are applicable to Wiley and which it should have executed following the Association agreement there- to, are equally applicable to Shamrock Trucking, which also should be required to enter into the same contracts.13 E. Respondent's Contention Concerning) Section 10(b) Respondent Shamrock Trucking, Inc., contends that "operations started outside the statute of limitations as set forth in the Act and prior to six (6) months from the first filing of any charge against said firm . . . and also includes the date of Wiley Brothers' refusal to sign the association agreement." As set forth, a first charge in Case 21-CA-11293 naming Wiley Bros. Transit Mix, Inc., was filed by Teamsters Local 36 on October 6, alleging a failure to bargain from August 15, 1972; and a first charge in Case 21-CA-11296 naming Wiley Bros. Transit Mix, Inc., was filed by Operating Engineers Local 12 on October 10, 1972, alleging a failure to bargain from August 17, 1972. Subsequently, an amended charge was filed or, May 9, 1973, in Case 21-CA-11293 by Teamsters Local 36, alleging a failure to bargain from the same August 15, 1972, date but naming Wiley Bros. Transit Mix, Inc., "Shamrock," and Provident as Respondents. Service for all three was accepted by William J. Halloran, the president of Wiley. On March 12, 1973, Operating Engineers Local 12 filed an amended charge in Case 21-CA-11296, alleging a failure to bargain from the same August 17, 1972, date, but naming as Respondents Wiley Bros. Transit Mix, Inc., Provident Engineering, and Shamrock Sand and Rock, Inc. Service on Wiley and Shamrock Sand was apparently ' See cases cited at fn. 18, post. 14 See Senco, Inc., 177 NLRB 882, 894. signed for by Dorothy Leckband and for Provident by W. Kemper. Finally, on April, 16, 1973, a second amended charge was filed by Teamsters Local 36 in Case 21-CA-11293, alleging a refusal to bargain from August 15, 1972, and naming as Respondents Wiley Bros. Transit Mix, Inc., Shamrock Sand and Rock, Inc., and Shamrock Trucking, Inc. On April 16, 1973, Operating Engineers Local 12 filed a second amended charge in Case 21-CA-11296, alleging a refusal to bargain from August 17, 1972, and naming the same Respondents as in the Teamsters second amended charge in Case 21-CA-11293. First, while the charges refer to dates of August 15 and August 17, these are not controlling dates. It was not until September 27, 1972, that Wiley Bros. Transit Mix, Inc., informed the Association that it could not sign the agreements and not until about October 3, 1972, that the Unions were so informed. It is accordingly clear that the 6- month limitation period in any case would not begin to run until at least October 3, 1972. While there may be some ambiguity in the reference to "Shamrock" in the second amended charge filed by Teamsters Local 36 on March 9, 1973, it could very well apply to Shamrock Trucking and it was served on Halloran, whose status and involvement with Wiley and Shamrock Trucking is set forth above. The first amended charge filed by the Operating Engineers clearly refers to Shamrock Sand. However, I do not consider that the foregoing affects the application of any of the charges to Shamrock Trucking, Inc. First, I have found it to be a single or common enterprise with Wiley Transit. Accordingly, service of the charges on Wiley Transit Mix, Inc., were sufficient to bind and apply to Shamrock Trucking, Inc., so that Section 10(b) of the Act is inapplicable. 14 An additional argument for inapplicability of Section 10(b) which is unnecessary to resolve herein may be that the obligation to comply with and abide by the terms of a contract validly negotiated by an authorized representative should be considered a continuing one and the failure to do so a continuing violation thereof and of the obligation to bargain. This latter might be viewed as comparable to the continuing obligation to bargain .during a certification year which may be viewed as a "continuing fact" and requests to bargain during said time as continuing requests which need not be repeatedly made where futile.15 F. The Relationship of Shamrock Sand to the Other Respondents Herein Halloran testified concerning the formation of Shamrock Sand as follows: JUDGE: Now, how did Shamrock Sand come to be formed? THE WITNESS: Approximately four years ago I felt that if we were going to continue to exist with a ready- mix company, it was liable [sic] to attain [sic] a material source that we could depend on for quality, quantity and pricing. 15 See Sewanee Coal Operator's Association, 167 NLRB 172. Cf Bryan Manufacturing Co v N.L.R.B., 362 U.S. 411 (1960) WILEY BROS. TRANSIT MIX, INC. Our prior situation was one in which we were forced [to] by [sic] all of our rock and sand from our largest ready-mix concrete competitor. JUDGE: Who was that? THE WITNESS: San Diego Consolidated Corporation. This obviously was not a desirable arrangement. I spoke to Mr. Morana who owned a large piece of property East of Temecula. We tried to put a deal together. * * r THE WITNESS: (Continuing) So, to make a long story short, four years ago, we were unable financially to put the package together. We commenced, probably late 1971 to try to develop something, and, subsequently, Shamrock evolved, incorporated in, I think it was April 31, commenced, production August, late August. Shamrock Sand was organized about April 30, 1972. It is owned 50 percent by John Marana, and the other 50 percent in equal shares by the four owners of Providen- t-Halloran, Shepardson, Kemper, and Winn. As set forth previously, Provident owns all the stock of Wiley. The officers of Shamrock Sand are John Marana, president, Martha Marana, vice president, and Harlen Brown, secretary. The board of directors is composed of John Marana, Martha Marana, and Brown. Shamrock Sand is in the business of mining and excavating rock and sand and selling it. It commenced production about August 24, 1972. Shamrock Sand did not take over any operations which Wiley had previously performed. However, Wiley is Shamrock Sand's principal customer and purchases ap- proximately 70 percent of the material produced by Shamrock Sand. Before Shamrock Sand came into exist- ence, Wiley purchased sand and rock from a facility of San Diego Consolidated Corporation located at Pala, Califor- nia. Shamrock Sand is located at Temecula, California. Wiley is required to purchase from Shamrock Sand and Shamrock Sand is required to sell to Wiley at least 75 percent of all sand, rock, and gravel required by Wiley in Wiley's business. There is no evidence that Wiley obtained any such materials from any other suppliers than Sham- rock Sand since October or November 1972. Shamrock Sand at Temecula is on property owned by John and Martha Marana. This is about 36 miles from the old Vista plant and about 40 from the new plant. Lloyd Mitchell is superintendent and there are six employees, including two skip load operators, a dump truck operator, and a plant man. None of these worked for Wiley prior to commencing work for Shamrock Sand. Between May and October 1972, Harlen Brown, the owner of the stock of Shamrock Trucking and the former general manager of Wiley, spent a good deal of time at Shamrock Sand (on loan) developing proper loading facilities and also some time obtaining a large truck scale to be used by Shamrock Sand. Brown has continued to visit Shamrock Sand almost daily to the present time in order to coordinate trucking deliveries and make sure that the trucks arrive on time and are properly loaded. Shamrock Sand's other main customer is Escondido Ready Mix which accounts for about 15 to 25 percent of 395 Shamrock Sand's business. Wiley is required to purchase from Shamrock Sand and Shamrock Sand is required to sell to Wiley at least 75 percent of all sand, rock, and gravel required by Wiley in its business. It does not appear that Wiley, for its business, has obtained these materials from any supplier other than Shamrock Sand since November 1972. Halloran has acted on behalf of Shamrock Sand in communications with Escondido Ready Mix concerning Shamrock Sand's loading facilities and hours of operation since Shamrock Sand has no salesman. Halloran also represented Shamrock Sand in discusions relating to purchase of materials from Shamrock Sand by Escondido Ready Mix. Porter, who is now shop superintendent for Shamrock Trucking and who remained on Wiley's payroll until January 1973, although beginning services for Shamrock Trucking in October, also performed work for Shamrock Sand during the time he was on Wiley's payroll. Shamrock Sand during that time reimbursed Wiley for Porter's salary. Wiley also performs clerical services for Shamrock Sand pursuant to written agreement under which Shamrock Sand pays Wiley $600 a month. Mrs. Leckband handles the work for Shamrock Sand and signs Shamrock Sand's checks. Shamrock Sand's superintendent, Mitchell, fre- quently stops by the Vista location to deliver tickets or records which are needed for payroll, computations and used in connection with services performed at Wiley's location for Shamrock Sand. Mrs. Leckband also picks up mail for Shamrock Sand at a post office box in Vista where most of its mail goes. Shamrock Sand employees are included with Wiley and Shamrock Trucking employees for certain purposes, such as Wiley's medical health program with Aetna, and also with Wiley and Shamrock Trucking on a single workman's compensation policy. Shamrock Sand's mobile equipment is maintained and repaired by Shamrock Trucking's shop and Shamrock Sand is billed for parts at an hourly rate for labor. This latter work makes up about 10 percent of the total business for Shamrock Trucking's shop, according to Brown. Shamrock Trucking also does some repairs on Shamrock Sand's nonmobile equipment. Shamrock Sand has ob- tained equipment from the other employers referred to herein. It does not appear to operate any trucks or cars but operates a motor grader leased from either Provident or possibly Shamrock Trucking and a water truck rented from Shamrock Trucking. Shamrock Sand also leases a loader from Capital Leasing Corporation. Wiley pays Shamrock Sand for materials at a lower rate than other customers under an agreement between Wiley and Shamrock. It was agreed that if Wiley moved its Vista plant, the cost of such relocation up to $100,000 would be borne by Shamrock Sand and Shamrock Sand's liability for the expense was to be paid gradually over a period of years by reducing the price of materials sold to Wiley by 25 cents per ton. As set forth, supra, under the agreement Wiley agrees to purchase and Shamrock Sand to supply not less than 75 percent of all rock, sand, and gravel required by Wiley in its business. The agreement also provides: THIRD: Wiley shall cooperate with Shamrock in selling by Shamrock of all sand, rock and earth 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD materials mined by Shamrock which are not purchased by Wiley. Shamrock shall pay to Wiley, as a commis- sion, five (5) percent of all such monthly net sales. Shamrock shall give orders by Wiley priority over other customers insofar as delivery and availability are concerned. There is an agreement under which the stock held by Marana cannot be sold without giving the other sharehold- ers an opportunity to purchase at a price set forth in the agreement. It also provides, before any shares can be sold, that the remainil3g shareholders, excluding Marana, will have the opportunity to purchase these at a price set forth in the agreement and there is another provision that in the event of Marana's death, the shares go to his wife subject to the same agreements. It appears that there is a certain interrelationship between Shamrock Sand's operation and Wiley's. Howev- er, the relationship is not the same as that between Wiley and Shamrock Trucking. Shamrock Sand was not a part of Wiley previously, nor had Wiley previously engaged in a business such as Shamrock Sand's. Neither were any of the employees of Shamrock Sand previously employed by Wiley. Furthermore, neither the employees nor the business of Shamrock Sand is at the same location as Wiley. Shamrock Sand also does business with another company, Escondido Ready Mix. In addition, the land on which Shamrock Sand is operating is owned by Marana and leased to Shamrock Sand. Marana himself owns 50 percent of the stock of Shamrock Sand and it does not appear that Shamrock Sand was financed by either Wiley, Shamrock Trucking or Provident. Based on the foregoing, I conclude that Shamrock Sand is not to be considered part of a single employer enterprise (or joint employer) with Wiley Transit and Shamrock Trucking. In addition, even if Shamrock Sand were a part or division of an overall enterprise, there would exist a question as to the application of a contract to its employees who had never been covered under any prior contract and who performed work of a different nature from that previously performed by employees of Wiley Bros. Transit. This would be true whether Wiley were subject to a contract as a single employer or as part of an association. Accordingly, for the reasons, first, that I do not consider that Shamrock Sand should be treated as a common or joint employer with Wiley Bros. Transit (and Shamrock Trucking) and, second, that Shamrock Sand's employees should not be included under any collective-bargaining agreement pending resolution of a question of representa- tion, I am recommending dismissal of the complaint as to Shamrock Sand.16 E. The Failure to Bargain by Wiley Bros. Transit and Shamrock Trucking By Halloran's letter of September 27, supra, in which he stated that Wiley would not accept the new agreements between the Association and Operating Engineers Local 12 and Teamsters Local 36, Respondent Wiley Bros. Transit Mix, Inc., repudiated said agreements. I find by so doing Wiley Bros. Transit Mix, Inc., violated Section 8(a)(5) and (1) of the Act.17 I further find that to the extent that Wiley has failed to comply with the terms of said agreements it has also violated Section 8(a)(5) and (1) of the Act. Wiley appears to conform to the contract with Local 36 except for provisions requiring it to act through the Association and except for the wages of several of its employees who were terminated and then reemployed by Shamrock Trucking herein found to be a single or common employer enterprise with Wiley. Shamrock Trucking is not complying with the contract, particularly by paying wage rates lower than those specified therein. As for Local 12, Wiley does not even admit having any employees covered by a contract with Local 12, although, as found above, it appears to have had such an employee at its old Vista plant and clearly has such an employee or employees at its new Vista plant. Since I have found above that Wiley Bros. Transit and Shamrock Trucking are a single or common employing enterprise within the meaning of the Act, for purposes of bargaining, I further find that the employees listed on Shamrock Trucking's payroll are included in the bargain- ing unit covered by the contracts between Teamsters Local 36 and Operating Engineers Local 12 and the Associa- tion 18 and, of course, so also are employees on Wiley's payroll. I further find that by their conduct Wiley Transit Mix, Inc., and Shamrock Trucking, Inc., are failing and refusing to recognize Teamsters Local 36 and Operating Engineers Local 12 as the exclusive bargaining representatives of their employees in the units found appropriate herein, supra, and further have failed and refused to execute the current collective-bargaining agreements, entered into on their behalf, between the Association and Teamsters Local 36 and Operating Engineers Local 12. I accordingly therefore find that Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc., have violated Section 8(a)(1) and (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Association and of Respondents Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc., set forth in section III, above, occurring in connection with the operations of Respondents set forth in section I, above, have a close, intimate, and substantial relation 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 V. THE REMEDY Having found that the Respondents Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc., have engaged in 16 Under these circumstances, it is unnecessary to consider any question 18 See Royal Oak Tool & Machine Co., 132 NLRB 1361; Glendora of the application of Section 10(b) to Shamrock Sand's operations. Plumbing, 165 NLRB 101. See also Senco, Inc., 177 NLRB 882; N.L.R.B. v. 17 Sheridan Creations, 148 NLRB 1503; Bill O'Grady Carpet Service, Inc., Gibraltar Industries, Inc., 307 F.2d 428 (C.A. 4, 1962) enf. 133 NLRB 1527; 185 NLRB 587; Imperial Laundry, 195 NLRB 708. N.L.R.B. v. Jewell Smokeless Coal, 435 F.2d 1270 (C.A. 4, 1970). WILEY BROS. TRANSIT MIX, INC. 397 certain unfair labor practices, I shall recommend that they cease and desist therefrom and take affirmative action to effectuate the policies of the Act. Having found that Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc., have, in violation of Section 8(a)(1) and (5) of the Act, failed and refused to recognize Teamsters Local 36 as the exclusive bargaining representa- tive of their employees in an appropriate Association-wide unit and to execute the current agreement between the Association and Teamsters Local 36, I shall recommend that they be ordered to recognize Teamsters Local 36 as such representative and to execute the current contract effective August 16, 1972, between the San Diego Rock Producers Association and Teamsters Local 36 and to maintain in full force and effect the terms and conditions of employment under said agreement, retroactive to August 16, 1972. Having found that Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc., have, in violation of Section 8(a)(1) and (5) of the Act, failed and refused to recognize Operating Engineers Local 12 as the exclusive bargaining representative of their employees in an appro- priate Association-wide unit and to execute the current agreement between the Association and Operating Engi- neers Local 12, I shall recommend that they be ordered to recognize Operating Engineers Local 12 as such represent- ative and to execute the agreement between the San Diego Rock Producers Association and Operating Engineers Local 12 effective August 17, 1972, and to maintain in full force and effect the terms and conditions of employment under said agreement retroactive to August 17, 1972. CONCLUSIONS OF LAW 1. At all times material herein Teamsters Local 36 and Operating Engineers Local 12 have been labor organiza- tions within the meaning of Section 2(5) of the Act. 2. At all times material herein, the Association has been an association of employers existing for the purpose, inter alia, of representing employers in multiemployer collective bargaining with Teamsters Local 36 and Operating Engineers Local 12. 3. At all times material herein, Respondent Wiley Bros. Transit Mix, Inc., has been a member of the Association and its letter of withdrawal from the Association dated September 27, 1972, was untimely and ineffective. 4. At all times material herein, Respondent Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc., have been integrated employers engaged in commerce and constitut- ed a single enterprise within the meaning of the Act, for the purposes of bargaining herein. 5. At all times material herein, Respondent Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc., as a single enterprise, have been obligated to adhere to the terms and conditions of the collective-bargaining agreements in effect between the Association and Teamsters Local 36 and Operating Engineers Local 12. 6. All drivers of pick-up trucks, 2 axle, 3 axle, semi-3 axle, and 4 or more axle trucks, mixers, cement tankers, flat beds, Euclid type trucks, parts clerks, warehousemen, bunkermen, batch plant operators (manual), gas station attendants, greasers and tiremen, refinishers, car and truck washers, general maintenance and yard clean-up men, power broom operators, body repairmen, truck mechanics or welders, fork lift operators, concrete pump operators, concrete pump assistants, dixon wagon or athey wagon drivers, off-highway hauling unit operators, and truck foremen employed by the employer-members of San Diego County Rock Producers Association, and including Res- pondents Wiley Bros. Transit Mix, Inc. and Shamrock Trucking, Inc., constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act. 7. All heavy duty repairman's and/or welder's helpers, firemen, oilers, and greasers, general helpers and/or assistant engineers, crushermen and/or screen men, skip loaders and tractor operators-yard operations, conveyor men, drag-scraper operators, mixer operators-all types and sizes, excluding transit-mix trucks, tractor operators (pit excavation, tournepull Euclid, motor patrol and DW operators), rock plant operators, bulk cement plant operators, heavy duty repairmen and/or welders, equip- ment greasers, heavy duty repairmen-electricians, batch plant operators (nonmanual), universal equipment opera- tors, shovel, dragline, clamshell or crane operators, loading out operators-skip loader, and computer batchmen- weighmasters employed by the employer-members of the San Diego County Rock Producers Association, and including Respondents Wiley Bros. Transit Mix, Inc. and Shamrock Trucking, Inc., constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act. 8. At all times relevant herein, Teamsters Local 36 has been the exclusive representative of the employees in the aforesaid unit set forth in paragraph 6 above for the purposes of collective bargaining within the meaning of Section 9 of the Act. 9. At all times relevant herein, Operating Engineers Local 12 has been the exclusive representative of the employees in the aforesaid unit set forth in paragraph 7 above for the purposes of collective bargaining within the meaning of Section 9 of the Ac'. 10. By failing and refusing to recognize Teamsters Local 36 as the exclusive bargaining representative of the employees in the unit set forth in paragraph 6, above, by failing and refusing to execute the current agreement effective August 16, 1972, between the Association and Teamsters Local 36, and by failing and refusing to adhere to and comply with the terms and conditions of said agreements, Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc., have violated Section 8(a)(1) and (5) of the Act. 11. By failing and refusing to recognize Operating Engineers Local 12 as the exclusive bargaining representa- tive of the employees in the unit set forth in paragraph 7, above, by failing and refusing to execute the current agreement effective August 17, 1972, between the Associa- tion and Operating Engineers Local 12, and by failing and refusing to adhere to and comply with the terms and conditions of said agreement, Wiley Bros. Transit Mix, Inc., and Shamrock Trucking, Inc., have violated Section 8(a)(1) and (5) of the Act. 12. Shamrock Sand and Rock Company is not an 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD integrated or common employer with Wiley Bros. Transit merce within the meaning of Section 2(6) and (7) of the Mix, Inc., and Shamrock Trucking, Inc. Act. 13. The aforesaid unfair labor practices affect com- [Recommended Order omitted from publication.]