United Constructors & Goodwin Construction Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Constructors and Goodwin Construction Com- pany and Five Basic Construction Trades. Case 19-CA-8550 December 2, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 3, 1977, Administrative Law Judge Roger B. Holmes issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondents filed a brief in response. 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 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge: The original charge in this case was filed on May 6, 1976, by the Five Basic Construction Trades, herein called the Union. The amended charge in this case was filed on June 30, 1976, by the Union. The complaint was issued on June 29, 1976, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for Region 19. The General Counsel's complaint alleges that United Constructors, herein called Respondent United, and Goodwin Construction Compa- ny, herein called Respondent Goodwin, have engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, herein called the Act. Respondent United and Respondent Goodwin filed separate answers to the complaint and, inter alia, denied the commission of the alleged unfair labor practices and raised certain affirmative defenses. The Respondents correctly assert in their answers to the complaint that the amended charge was filed and served after the issuance of the General Counsel's complaint. The original charge 233 NLRB No. 135 alleged the unfair labor practices as a violation of only Section 8(a)(l) of the Act. Nevertheless, the Board has held that an unfair labor practice charge is not a pleading, but that it merely serves to initiate an investigation by the General Counsel to determine whether a complaint should be issued. The Board has held that it is the function of the General Counsel's complaint, rather than the unfair labor practice charge, to serve notice on a respondent of the particular conduct alleged to be violative of the Act. Texas Industries, Inc., 139 NLRB 365, 366-367 (1962). In the instant case, the General Counsel's complaint particularized the con- duct alleged to be violative of Section 8(aXl1) and (5) of the Act, and the interval of time between the issuance of the complaint on June 29, 1976, and the hearing of this case on February 24, 1977, in Pocatello, Idaho, afforded the Respondents more than ample notice of the specific allegations against them. Both counsel for the General Counsel and the attorney for the Respondents timely filed briefs by the due date of March 31, 1977. Those briefs have been read and duly considered. Upon the entire record in this proceeding and based upon my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION A. Respondent United Respondent United has been at all times material herein a partnership engaged in the general construction business with an office and place of business located in Blackfoot, Idaho. There are seven coequal partners in Respondent United. They are: Bhueland R. Goodwin, Verl D. Goodwin, Robert Goodwin, J. C. Goodwin, Russell Goodwin, Raymond Goodwin, and Evan Goodwin. During the 12-month period preceding the issuance of the complaint, Respondent United performed work within the State of Idaho in the contract amount of approximately $167,000 for an entity known as the Farmer Grain Co- operative whose address is in Ogden, Utah. During the same period of time, Respondent United also performed work at Soda Springs, Idaho, for Monsanto Industrial Chemicals Company whose headquarters are located in St. Louis, Missouri, in the amounts of approximately $19,000 and $284,000. B. Respondent Goodwin Respondent Goodwin has been at all times material herein a partnership engaged in the general construction business with an office and place of business located in Blackfoot, Idaho. There are two coequal partners in Respondent Goodwin. They are: Bhueland R. Goodwin and Verl D. Goodwin. During the 12-month period preceding the issuance of the complaint, Respondent Goodwin performed work pursuant to a contract in the amount of approximately $290,000 for the Idaho School District No. 25 of Pocatello, 904 UNITED CONSTRUCTORS AND GOODWIN CONSTRUCTION CO. Idaho. During the same period of time, Respondent Goodwin also performed work in the amount of approxi- mately $2.5 million for Idaho School District No. 55 which is located in Blackfoot, Idaho. During the same period of time, Respondent Goodwin also performed work pursuant to a contract in the amount of approximately $164,000 for the Idaho State Department of Highways which is located in Boise, Idaho. Although the work performed by Respondent Goodwin was for certain school districts of the State of Idaho and for the Department of Highways of the State of Idaho, counsel for the General Counsel persuasively points to the Board's Decision in Carroll-Naslund Disposal, Inc., 152 NLRB 861 (1965), wherein the Board reiterated one of its holdings in the landmark case, Siemnons Mailing Service, 122 NLRB 81, 85, fn. 12 (1958), as follows: We will also continue our past practice of treating sales of goods or services to enterprises or organizations which are themselves exempted from the Board's jurisdiction as indirect outflow, where such enterprises' or organizations' operations are of the magnitude necessary for assertion of jurisdiction over comparable nonexempt organizations. C. Conclusion In view of all of the foregoing, I find that both Respondent United and Respondent Goodwin separately meet the Board's indirect outflow jurisdictional standards and that both partnerships have been at all times material herein employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II1. THE LABOR ORGANIZATION INVOLVED It was admitted that the Union has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act, and I so find. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues raised by the pleadings in this case are whether Respondent United and Respondent Goodwin constitute a single integrated enterprise, or whether Respondent United is the alter ego of Respondent Goodwin. If the answer is in the affirmative to either one of the foregoing complaint allegations, then the question is whether Respondent United and Respondent Goodwin have violated Section 8(a)(1) and (5) of the Act (1), by the refusal to recognize the Union as the exclusive collective- bargaining representative of the journeymen and appren- tices of Respondent United, and (2), by the refusal to apply the terms and conditions of the collective-bargaining agreement between Respondent Goodwin and the Union to those employees of Respondent United. B. Admissions and Stipulations It was admitted in the pleadings that, at all times material herein, Respondent Goodwin has been a party to a collective-bargaining agreement with the Union effective from June 1, 1974, to May 31, 1977, covering the employment terms and conditions of employees in a unit of those employed by Respondent Goodwin as journeymen or apprentices in the construction industry. It was further admitted in the pleadings that the unit described above has been at all times material herein an appropriate unit within the meaning of Section 9(b) of the Act. The parties stipulated that there was never a time when a supervisor for one company was authorized, or had authority, to be supervising for another company at the same time. The parties stipulated that if a person was a supervisor for Respondent United, that person had no supervisory authority for Respondent Goodwin and vice versa. The parties also stipulated with regard to Noel Buckley that he served with Respondent United as a supervisor on a grain elevator job. After he completed his work on that job, Buckley then went to work as a supervisor for Respondent Goodwin on the kitchen facility for the school in Pocatello, Idaho. Thereafter, Buckley was a supervisor for Respon- dent Goodwin on the Eagle Rock Bridge job in Idaho Falls, Idaho. After completing his service there, Buckley worked as a supervisor for Respondent United on the Monsanto job. After that job, Buckley left the area permanently in January 1976, and he did not work for either Respondent United or Respondent Goodwin there- after. With regard to Boyd Bowers, the parties stipulated that at the end of 1975 Bowers was working as a supervisor for Respondent Goodwin on the Bronco Road project. After that job was completed and after some elapse of time, Bowers worked for Respondent United on the Ririe outlet job. Bowers next worked as a supervisor for Respondent United on the Sutton Brothers job, and then Bowers returned to the Ririe outlet job as a supervisor for Respondent United. From that job, Bowers went to the lower Idaho Falls Dam job as a supervisor for Respondent Goodwin. With regard to Howard Clark, the parties stipulated that Clark served as a supervisor for Respondent United only on one occasion, and that occasion was the Ririe outlet job. At all other times, Clark has been employed as a supervisor for Respondent Goodwin. With regard to persons who had worked for both companies as employees, the parties stipulated that Respondent Goodwin at its peak employment period would employ approximately 100 to 120 employees. Over the 2-year period of time since Respondent United was formed, approximately 20 to 30 percent of the employees of Respondent Goodwin may have at some time also worked for Respondent United, but those employees never were on the payroll of both companies at the same time. 905 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Formation of Respondent Goodwin In 1944, Bhueland R. Goodwin and his brother, Verl Goodwin, became equal partners in the Goodwin Con- struction Company. In the early part of the 1950's, Respondent Goodwin recognized the Union, and at the time of the hearing, Respondent Goodwin was signatory to the Southern Idaho Master Labor Agreement with the Union. The negotiations for that agreement were handled by the Associated General Contractors of which Respon- dent Goodwin is a member. The two partners have divided the areas of responsibility for operating Respondent Goodwin between themselves. Bhueland Goodwin generally has responsibility for manag- ing the office and doing the major part of the estimating, while Verl Goodwin has the responsibility for handling most of the field work and the equipment. Respondent Goodwin is a general contractor. While it has done some work in the private sector, most of Respondent Goodwin's work has been in the public sector, including Public Works projects, State Highway Depart- ment projects and projects for the Bureau of Reclamation. Bhueland Goodwin, Verl Goodwin, and perhaps Supervi- sor Howard Clark usually decide on which jobs Respon- dent Goodwin will submit a bid. The partners in Respon- dent United, other than Bhueland Goodwin and Verl Goodwin, do not play a part in the decisionmaking as to which jobs Respondent Goodwin will bid on. Bhueland Goodwin and Verl Goodwin together decide who will be the supervisor on one of Respondent Goodwin's projects. The other five partners in Respondent United do not play any part in deciding who will be the supervisor of the project for Respdndent Goodwin. The supervisor of the job for Respondent Goodwin possesses the authority to hire and fire employees and handles the labor relations on that particular job unless the matter comes to the point where the entire Company is involved. Respondent Goodwin has employed supervisors who had previously supervised a job for Respondent United, but there has never been an occasion where a supervisor for Respondent Goodwin has had supervisory authority at that time over a job for Respondent United. When supervisors have been working for Respondent Goodwin, they have not had any labor relations responsibilities for Respondent United. The foregoing findings of fact are based on the testimony of Bhueland Goodwin, whose testimony has been credited throughout this proceeding. Bhueland Goodwin, J. C. Goodwin, and Evan Goodwin gave testimony in a clear and coherent manner, and in my view, their testimony is the more reliable and accurate account of these events. Many of the findings of fact made herein are based on the testimony which they gave, but in some instances testimo- ny by other witnesses or other evidence was not disputed in this proceeding. Accordingly, certain findings of fact also rest on testimony given by other witnesses and on documentary evidence. However, where there are conflict- ing versions, I have made findings of fact based on the accounts related by Bhueland Goodwin, J. C. Goodwin, and Evan Goodwin. D. The Formation of Respondent United In June or July 1974, Respondent United was formed with the seven equal partners previously mentioned. Bhueland Goodwin, who was 61 years old at the time of the hearing, gave both family and economic reasons for the formation of Respondent United. The family reasons concerned forming a company for the sons of Bhueland Goodwin and Veri Goodwin, and the economic reasons concerned forming a company to enter a field of work in which Respondent Goodwin did not compete. Bhueland Goodwin explained: Well, it came to be organized because there was a distinct market that Goodwin Construction Company couldn't touch. Well, mainly the market is in that sector where the predetermined wages are not involved in certain areas where companies didn't invite Goodwin to bid on work and a lot of jobs in the utility field where the non-union contractors were taking all the work. We bid the work for periods of a year or two years at a time and probably bid as high as 15 or 20 jobs and never received a contract because we were just out of the competition. That was one factor. The other factor was that our son, Evan Goodwin, had been working for a large contractor in the East. We hired him to come in as an engineer for our company just a few months prior to this, and we felt that they were capable and should be on their own, and they wanted to be on their own and form their own company and make their own money. J. C. Goodwin, who is the son of Verl Goodwin and who was 39 years old at the time of the hearing, explained the reasons for the formation of Respondent United as follows: Well, as I and some of the other partners got along in years and were still working for wages, we felt we would like to be in a business also. We had talked it over somewhat and we decided amongst us that there was a definite market for an open shop contractor in the utility field, and we decided to form a company in regards to these two points. According to Evan Goodwin, the five sons of Bhueland and Verl Goodwin who are partners in Respondent United, have also worked for companies other than Respondent United and Respondent Goodwin. The foregoing findings of fact in this section are based upon the testimony given by Bhueland Goodwin, J. C. Goodwin, and Evan Goodwin. 906 UNITED CONSTRUCTORS AND GOODWIN CONSTRUCTION CO. E. The Offices, Bank Accounts, Licenses and Other Matters of Respondent Goodwin and Respondent United A major break in the Teton Dam on June 4, 1976, caused severe flooding in Blackfoot, Idaho, and surrounding areas. As a result of the flood, Respondent Goodwin built a new office building. The new building houses offices for both Respondent Goodwin and Respondent United just as the old building which it replaced had done in the past. Respondent United continued to pay a fee to Respondent Goodwin (I) for the use of office space in the building (2), for use of office equipment, and (3) for the services performed for Respondent United by Evan Goodwin. The fee which Respondent United pays to Respondent Goodwin is set at 7 percent of the annual gross revenues of Respondent United. The 7-percent figure originated with the accountants who annually audit the books of Respon- dent Goodwin. Although Respondent Goodwin and Respondent United occupy offices in the same building, they have different telephone numbers and different post office boxes. Re- spondent Goodwin and Respondent United maintain separate bank accounts at different banks. Each company has a separate contractor's license. Each one keeps a separate set of books and each one files separate tax returns. They carry separate insurance policies, and they have different wage and benefit programs. With regard to the use of Respondent Goodwin's equipment, there is no special arrangement between the two companies. Bhueland Goodwin stated that they used the "same procedure as if we rent it to anybody else." He explained that Respondent Goodwin's equipment is rented on an hourly, weekly, or monthly basis at rates established by the Associated Equipment Dealers Guide Book for the State of Idaho, the Department of Highways Rate Book, or what is known as the Blue Book. J. C. Goodwin, who is one of the partners in Respon- dent United, stated that Respondent United leased equipment from various companies, including Respondent Goodwin, and that Respondent United paid the normal rates in the State of Idaho for such equipment pursuant to written leases. He said that when equipment was leased from Respondent Goodwin, Goodwin's name on the equipment was not removed. He estimated that from January 1, 1976, to the time of the hearing on February 24, 1977, that Respondent United leased about 50 percent of its equipment from Respondent Goodwin. Evan Goodwin, who is one of the partners in Respon- dent United and also a civil engineer for Respondent Goodwin, explained that Respondent United during 1976 had made leases in the amount of $35,000 for equipment from firms other than Respondent Goodwin, and during the same period of time, Respondent United had made equipment leases in the amount of $30,000 from Respon- dent Goodwin. He said that Respondent Goodwin some- times leased only the equipment to Respondent United and at other times Respondent Goodwin leased both the equipment and the operator to Respondent United. He added that Respondent Goodwin has charged for its delivery of equipment to the jobsite. Respondent Goodwin does not guarantee the perfor- mance of any work by Respondent United. Although Bhueland Goodwin and Verl Goodwin are two of the seven partners in Respondent United, they are not involved in the day-to-day operations of Respondent United. They do not hire any employees of Respondent United. They do not play any part in deciding who the supervisors for Respondent United will be. They do not do any of the bidding for Respondent United. They do not supervise any of Respondent United's jobs. They do not handle labor negotiations or labor relations matters for Respondent United. They also do not sign checks for Respondent United. Bhueland Goodwin acknowledged that persons who had been employees of Respondent Goodwin at one time had later worked for Respondent United. He gave one such occasion as the Ririe outlet job where the employees of Respondent Goodwin had completed their work in the fall of the year. The employees were terminated by Respondent Goodwin; however, Respondent United had work for them. Bhueland Goodwin explained: Well, we felt that there was a lot of good manpower available; that if they wanted to go to work for United, we were happy that people had worked for us who we hoped to hire again in the spring could keep on working. We couldn't provide the work, but we were certainly willing to have them work on some other job if they could. With regard to former employees of Respondent Good- win who worked for Respondent United, Evan Goodwin described the situation as follows: The only time that I would know that United Constructors would be hiring a Goodwin Construction employee or someone that had worked with Goodwin Construction Company was if he was presently unem- ployed and was seeking employment. Evan Goodwin gave the following as sources for employees of Respondent United: Well, there are several avenues. One of them is that they go through the state employment agency for employees. They also advertise in the local papers in the area in which they are working. They also advertise over the radio for personnel. They also use other personnel whose recommendations they have for people. While Respondent United has been a member of the Associated General Contractors, Respondent United, unlike Respondent Goodwin, has not authorized the AGC to negotiate on its behalf with labor organizations. Evan Goodwin gave the following description of the differences in the wage-and-benefit policy between the two companies: Well, I think in explanation, the Goodwin Construc- tion has agreements signed with the Five Basic Crafts and also other unions, which would particularly be the Iron Workers, in which the fringe benefits, the wages, are negotiated and established for a definite period of 907 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time, and the fringe benefits are paid directly to a trust fund. United Constructors' wages are based upon when - if they are predetermined it would be written into a contract that they bid, and also those that don't have predetermined wages are Davis-Bacon Act, and the wages are determined from whatever the man - what he produces and when he has worked he is paid on that basis. Under the Davis-Bacon Act, the fringe benefits are paid directly to the employee himself as direct cash to him rather than to a trust fund, which is within the union agreement. The findings of fact in this section are based upon the testimony given by Bhueland Goodwin, J. C. Goodwin, and Evan Goodwin. F. The Five Sons of Bhueland Goodwin and Verl Goodwin With regard to Evan Goodwin, Bhueland Goodwin stated that Evan Goodwin had been working for a construction company in Washington, D.C., when he returned to Idaho and was hired as an engineer for Respondent Goodwin. Evan Goodwin works in Respon- dent Goodwin's office with Respondent Goodwin's estima- tor, bookkeeper, and a secretary. He has the authority to see that those three persons perform their job. On one occasion, Evan Goodwin replaced a bookkeeper of Respondent Goodwin who had fallen behind in his work. Bhueland Goodwin said that Evan Goodwin had the authority to hire office personnel for Respondent Goodwin with the approval of Bhueland Goodwin. Evan Goodwin has the authority to fire office personnel who are not performing their jobs, but he does not have the authority to hire field employees of Respondent Goodwin or supervi- sors for Respondent Goodwin. Bhueland Goodwin stated that the other partners in Respondent United similarly do not have the authority to hire and fire for Respondent Goodwin unless that person is working as a supervisor for Respondent Goodwin on a project. Evan Goodwin, who is the son of Bhueland Goodwin, holds a degree as a civil engineer. He described his duties for Respondent Goodwin as follows: Well, I'm involved in an administrative capacity. Generally my responsibility would apply to oversee that the records are kept as to costs on jobs; also to participate to some extent in the bidding process and generally responsible for the flow of the paperwork through the Goodwin Construction. He clarified that his participation in the bidding process involved the estimating part since Bhueland Goodwin and Verl Goodwin make the decision as to which jobs Respondent Goodwin will bid on. Evan Goodwin is the primary managing partner in Respondent United along with his first cousin, J. C. Goodwin, who has also participated at times as a superintendent for Respondent United. J. C. Goodwin said that normally he and Evan Goodwin decided what jobs would be bid by Respondent United and who the superintendent on the job would be for Respondent United. During 1976, J. C. Goodwin worked all 12 months for Respondent Goodwin on certain projects, including the Burley-Rupert bridge overlay project and the rehabilitation of some canals in the Blackfoot, Idaho, area. During that time, J. C. Goodwin did not supervise any employees of Respondent United or handle labor relations matters for Respondent United; however, he continued to make recommendations to Evan Goodwin for superintendents for Respondent United's projects. At the time of the hearing, he was employed elsewhere other than by Respondent Goodwin. Raymond Goodwin, who is a son of Bhueland Goodwin, worked as the superintendent on one project during 1976 for Respondent United. That was the East Village project. Raymond Goodwin has never been a supervisor for Respondent Goodwin. On two occasions during 1976, he worked in the office of Respondent Goodwin and did estimating. At the Farmers Grain project, Raymond Goodwin did not work for Respondent United. However, Bannock Paving Company leased a backhoe and an operator from Respondent Goodwin for that particular project. Raymond Goodwin worked as the operator of that leased equipment. Ron Green, a business agent for Operating Engineers Local 370, confirmed that Raymond Goodwin was operat- ing the backhoe when Green visited the jobsite. Green observed Respondent Goodwin's equipment and Bannock Paving's equipment on the project. He asked Raymond Goodwin (described as being a member of his Union) for whom he was working. Green said that Goodwin informed him that it was Respondent United. Green's testimony regarding the response by Raymond Goodwin was not contradicted. Therefore, I have accepted it as factual. Nevertheless, I find that Raymond Goodwin was not, in fact, employed by Respondent United on that particular project, based on the credited testimony of Evan Goodwin. Ron Green said that in September 1976 he went to the East Bench job in Pocatello. He said that Raymond Goodwin told him that he was the superintendent of the job. Green asked him to sign the agreement, but Raymond Goodwin refused to do so. Green observed Respondent Goodwin's equipment on that project, and he also observed an operating engineer named Leo Gilbert operating the backhoe. East Bench appears to be another designation for the East Village project where Raymond Goodwin was a superintendent for Respondent United. Raymond Good- win did not testify, and I have accepted as factual the foregoing description by Green. Russell Goodwin, who is a son of Bhueland Goodwin, was employed on the Tiffany Park and East Village projects for Respondent United during 1976. He also worked for Respondent Goodwin for about 2 weeks after the flood caused by the break in the Teton Dam. At the time of the hearing, he was not employed. Robert Goodwin, who is a son of Verl Goodwin, supervised two projects for Respondent United during 1976. One of the projects was the Tiffany Park project and the other was the Cedar Park project. Also during 1976, 908 UNITED CONSTRUCTORS AND GOODWIN CONSTRUCTION CO. Robert Goodwin worked as an employee of Respondent Goodwin for part of the year; however, he has never been a superintendent for Respondent Goodwin. In July 1976, Ron Green went to a project where he said the following took place: Then again in July of 1976 on a sewer and water project on Quinn Road in Pocatello, I went on that job. There was Goodwin equipment on that one also. Bob Goodwin was the superintendent on the job. I asked him to sign an agreement. He said no, that would eliminate the reason for United Constructors. I asked him what he meant by that. He says, "Well, under United Constructors, we don't have to hire the union help." According to Green, he observed Respondent Goodwin's equipment on that project, and he also saw one of his union members, Leo Gilbert, operating a backhoe. Evan Goodwin said that Leo Gilbert was an operator of a backhoe that had been leased from Respondent Goodwin to Respondent United on the Quinn Road project and the East Bench project. He said that Gilbert was an employee of Respondent Goodwin at that time. The foregoing findings of fact in this section are based upon the testimony of Bhueland Goodwin, J. C. Goodwin, Evan Goodwin, and Ron Green. G. Three Instances of Subcontracting of Work Between Respondent United and Respondent Goodwin Since the time that Respondent United has been in existence, Respondent Goodwin has had about 19 major projects and about 20 to 25 minor projects. Normally, Respondent Goodwin and Respondent Unit- ed do not subcontract work to each other. However, there have been three instances where this has occurred. These three projects were known as the Burley-Rupert overlay project; the Garden City project, and the Farmers Grain project. With regard to the Burley overlay project, Respondent United was a subcontractor to the general contractor, Respondent Goodwin. Respondent United was supposed to do the deck sealant work on the Twin Bridges overlay project. A standard written subcontracting agreement was entered into between the two companies on March 19, 1976. After Respondent United began the job, Respondent United decided that they did not have the expertise to perform the specialty work. Therefore, Respondent United requested in a letter dated June 18, 1976, to Respondent Goodwin that it be released from that portion of the subcontracting agreement. Respondent United went ahead and completed the remaining portion of the subcontract. Meanwhile, on April 27, 1976, John Charlton, a field representative of Laborers Local 267 had a conversation with J. C. Goodwin, who at that point in time was superintendent for Respondent Goodwin on the Burley overlay project. Charlton said that he observed a trailer on the project with the name "Goodwin Construction Compa- ny" on it. Charlton gave the following version of their conversation that day: So then when I walked down to the job and Mr. Jake Goodwin was there, I asked Jake at that time if he was superintendent on the job for Goodwin Construction and he said yes, and I said, "I don't recognize these laborers and I would like to know what was taking place." Jake Goodwin told me at that time that United Construction had a subcontract on the demolition work from - I forget the construction company. . * * Yes. I asked Jake at that time if we could sit down and talk about signing the union agreement with United Construction or Constructors or whatever, and he said, "No, there's no need to talk about signing an agreement with United; it will defeat the purpose of starting a non-union job out there." Yes. Jake told me about the Ririe outlet. He said United Construction had ajob there and that Goodwin employees were working on that job for United Constructors. Charlton testified that he visited the project on three or four other occasions during which time J. C. Goodwin told him that maybe Respondent United would not be on that project anymore. J. C. Goodwin recalled having a conversation with Charlton on the Burley jobsite regarding the Ririe outlet job. Goodwin, however, recalled that their conversation was with regard to the fact that Respondent Goodwin had a lot of employees who were out of work because Respondent Goodwin did not have any work at that time. Thus, J. C. Goodwin said that their conversation con- cerned employees who were formerly employed by Re- spondent Goodwin. As indicated previously, I have credited J. C. Goodwin's testimony, and I base the findings of fact with regard to this matter on his version of the conversation with Charlton. With regard to the Garden City project, Respondent United was a subcontractor to Nielsen Construction Company. That work similarly involved concrete overlay work on a bridge in Boise, Idaho. Like the Burley overlay project, Respondent United realized that it did not have the experience to perform that work. Accordingly, Respon- dent United asked Nielsen to release Respondent United from its agreement, and Respondent Goodwin did the work. With regard to the Farmers Grain project, Respondent United was the successful bidder for the construction of the foundation for six grain silos about 30 feet in diameter. However, the contract had a 45-day time limit and was a contract of about $167,000 in amount. Respondent United entered into a subcontract with Respondent Goodwin to furnish additional personnel for the job because Respon- dent Goodwin had better access to qualified people. Respondent United also had a subcontract with Bannock Paving for the excavation work. Employees of all three companies worked at thejobsite. 909 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The foregoing findings of fact in this section are based on the testimony of Bhueland Goodwin and Evan Goodwin as well as documentary evidence introduced at the hearing. H. Superintendent Howard Clark and Related Matters Bhueland Goodwin pointed out that Howard Clark had been a superintendent for Respondent Goodwin for a number of years. He described one occasion where Clark had completed his work for Respondent Goodwin, and then Clark became a superintendent for Respondent United on a job. Bhueland Goodwin said that a similar occurrence had taken place when Respondent Goodwin had run out of work on another occasion, and Clark went to work for another contractor, Wangsgaard Construction Company, for 2 or 3 months. Bhueland Goodwin stated that Respondent Goodwin did not pay Clark when he worked for either Respondent United or for Wangsgaard. As noted earlier, it was stipulated that Howard Clark had been a supervisor for Respondent United on only one occasion and that occasion was the Ririe outlet project. Cleston Taylor, a business representative of Carpenters Local 609, recalled having a conversation with Clark sometime in November 1975 while Clark was a superinten- dent for Respondent Goodwin. Taylor testified: Well, I was asked what my attitude would be if they used people on the Goodwin payroll at that time, transferring them to a job for United Constructors, and I indicated at the time that I could not take an attitude until such time as it did happen. A dispatch slip signed by Taylor and dated August 26, 1975, was introduced in evidence. It shows the dispatch of Dee Young to work on August 27, 1975, for Respondent Goodwin at the Rigby project at the request of Howard Clark. Subsequently, in January 1976, Dee Young, who was a member of Carpenters Local 609, telephoned Taylor and advised him that he was being paid by Respondent United. Taylor expressed the opinion that it was illegal since Young had previously been dispatched to work for Respondent Goodwin, and Young was not being paid the contract benefits. However, Young testified that he told Taylor that he was being paid the equivalent of the fringe benefits in cash. Young confirmed that he went to work for Respondent Goodwin about the end of August 1975. He said that he was dispatched to the North Rigby overpass job, but that he subsequently went to work on another job for Respon- dent Goodwin. About the end of November 1975, the bridge job at Menan was completed, and Howard Clark told Young and another carpenter "there wouldn't be any work for a while .... " Young was of the view at the hearing, however, that he was not laid off from work. Young said that it was a couple of weeks later when Howard Clark asked him if he wanted to go back to work for a nonunion company, Respondent United. Young said that Clark explained that he had spoken to the local union regarding it, and that Young's benefits would be paid to him on his check along with his wages. At first, Young said that he went to work for Respondent United just before Christmas 1975, but after being confronted during cross-examination with Respondent United's timecard record, Young said that he began work for Respondent United during the week ending January 30, 1976. At the Ririe canal project, Young said that he saw two foremen who had previously worked with Young on jobs for Respondent Goodwin, and he also saw two employees with whom he had worked on Respondent Goodwin's jobs. Nevertheless, Young said that it was not unusual to see employees who had previously worked for one employer be working on projects for another employer. In addition, to Respondent Goodwin and Respondent United, Young named two other employers for whom he had worked. Young gave the opinion: "[Y]ou don't go from one job, you know, with all the same guys. I mean you run into two or three guys on every job that you worked other jobs with." On June 7, 1976, after the flood, Young quit work for Respondent United, and he has not worked for either Respondent United or Respondent Goodwin since that time. In the spring of 1976, Ron Green, a business agent of Operating Engineers Local 370, went to the Ririe Canal project and spoke with Howard Clark. Green recalled their conversation as follows: Yes. I then asked Mr. Clark - I asked who would be the superintendent. He said he would. I said, "How do you intend to man the job?" He said, "We have a nearby road job and Goodwin Construction has this." He says, "We figure on putting the people on the Ririe Canal job from them when they are not busy on the road job." I then asked him how they intended to pay them. He said, "Well, we will pay them on the United Contractors' payroll and put the fringes in cash." Green acknowledged that Clark told him that the job was going to be handled by Respondent United. The foregoing findings of fact in this section are based on the testimony of Bhueland Goodwin, Cleston Taylor, Dee Young, and Ron Green as well as documentary evidence and a stipulation. Howard Clark did not testify. Mel Dyer, business agent of Laborers Local 1227, dispatched Wilfred Terry, Jr., and Bob Steed, on July 17, 1975, and August 13, 1975, respectively, to work for Respondent Goodwin. On February 9, 1976, Dyer visited the Ririe Canal job and found two members of his union, Wilfred Terry, Jr., and Rick Dimos, working on the job. Dyer said that he told the two members that it was a nonunion job, but he took no further action. Dyer said that the signs on the project indicated that it was a job of Respondent United. In March 1976, Dyer once again visited the Ririe Canal job and found still another member, Bob Steed, working there. Dyer said that he took no action as a result of his second visit. Wilfred Terry, Jr., confirmed that he worked for Respondent Goodwin from July 1975 to sometime in November 1975 when the Rigby overpass was finished. He was terminated at that time, but he did not notify the 910 UNITED CONSTRUCTORS AND GOODWIN CONSTRUCTION CO. Union of his termination, which was not unusual. Howard Clark had been his superintendent for Respondent Good- win and Clive Lott had been one of the foremen on the Rigby project. Terry said that Clark called him regarding going to work for Respondent United on the Ririe outlet project. Terry agreed to do so, and Terry began work for Respondent United about the end of January 1976 or the early part of February 1976. Clive Lott was one of the foremen on the Ririe job. Terry worked for Respondent United until just after the flood in June 1976. Rick Dimos stated that he had worked for Respondent Goodwin for most of the year 1975. He was terminated by Respondent Goodwin in mid-December 1975 when there was no more work for him. His superintendent was Howard Clark and his foreman was Clive Lott. Dimos said that he did not notify the Union of his termination by Respondent Goodwin, which was not unusual for him. In mid-January 1976, Dimos went to work for Respon- dent United after receiving a telephone call from Howard Clark who asked him if he would accept the work. Dimos recalled that Business Agent Dyer spoke with him while Dimos was working for Respondent United. Dimos said that Dyer suggested that Dimos continue working because "There was no other work." While Dimos worked for Respondent United, his superintendent was Howard Clark and his foreman was Clive Lott. About the first part of May 1976, Howard Clark asked Dimos to be a cement finisher, and Dimos returned to work at that time for Respondent Goodwin. Howard Clark was once again his superintendent for Respondent Goodwin, and his foreman was Dean Stump. Bob Steed worked as a laborer for Respondent Goodwin from August 1975 until November 1975 when he was laid off. His superintendent was Howard Clark and his foreman was Boyd Bowers. Steed did not notify the Union of his layoff by Respondent Goodwin, which was not unusual for him. Following his layoff, Steed worked on a ranch for about a month or so. In April 1976, he was called by Boyd Bowers and as a result, he went to work for Respondent United where he continued to work until August 1976. His superintendent for Respondent United was Howard Clark and his foreman was Boyd Bowers. After his termination by Respondent United, Steed did not go back to work for Respondent Goodwin. I. The Farmers Grain Project Oliver D. Wilkinson was dispatched by George A. Misner, business agent of Carpenters Local 1258, on May 5, 1975, to work for Respondent Goodwin pursuant to a by-name request from Evan Goodwin for Oliver Wilkinson to go to work with his brother, Gary Wilkinson. Evan Goodwin acknowledged that he had called the union hall regarding the dispatch of Oliver Wilkinson. Evan Goodwin said that Gary Wilkinson was working at the Farmers Grain project at the time and asked him about his brother going to work there. Therefore, Evan Goodwin called the union hall and the Union dispatched Oliver Wilkinson to the job. Evan Goodwin said that he had made only two such requests - one for Wilkinson and one for a Teamster. A dispatch slip dated May 5, 1975, for Oliver Wilkinson to report to work for Respondent Goodwin was introduced in evidence. Gary Wilkinson said that he was working for Respon- dent Goodwin on a kitchen facility for School District No. 25 in Pocatello until the first week in May 1975 when his crew was transferred by Respondent Goodwin's Superin- tendent Taylor from the school district to the grain and storage elevator job in Blackfoot. Wilkinson testified that Taylor told them they were going to "work on that job for 8 or 10 days because it was under a tight schedule and they had to have all the help they could get." Wilkinson was instrumental in getting jobs for both his brother, Oliver, and for Harold Cornwall. Wilkinson stated that he talked with Evan Goodwin who told him that his brother, Oliver, would be dispatched by the Union and would be paid union scale and benefits under the union contract. However, with regard to Cornwall, Evan Goodwin told him that Cornwall's wage would be negotiated according to his ability since Cornwall was more or less unskilled. Gary Wilkinson said that the three of them worked as a crew on the project for a week. However, Oliver Wilkinson said that: "The whole job itself was not very big, and there were three contractors on this job. Actually, we were all working together." Noel Buckley was the superintendent for Respondent United on the Farmers Grain project. As noted previously, Respondent Goodwin was one of the subcontractors to Respondent United on that project. On May 12, 1975, Buckley signed individual termination slips for three employees on that project. They were Gary Wilkinson, Oliver Wilkinson, and Harold Cornwall. Bhueland Goodwin said that Buckley was not a superin- tendent for Respondent Goodwin at that time that Buckley signed the termination slips. Bhueland Goodwin stated that he had not authorized Buckley to do so, and that Buckley had made a mistake. He did not know of any other occasion where that had occurred. Evan Goodwin also said that Buckley had no authority over employees of Respon- dent Goodwin at that point in time and that he had not authorized Buckley to sign the termination slips. Both Bhueland Goodwin and Evan Goodwin asserted that a supervisor for one company has not concurrently had any supervisory authority over the employees of the other company. Business Agent Misner stated that Oliver Wilkinson showed his paycheck to Misner for the May 5 to May 12, 1975, period, and that the paycheck was from Respondent Goodwin and signed by B. R. Goodwin. Misner also said that Cornwall showed his paycheck to Misner for that period, and Cornwall's paycheck was from Respondent United and signed by Evan Goodwin. Gary Wilkinson and Oliver Wilkinson also saw the paychecks. They said that they received paychecks from Respondent Goodwin, whereas Cornwall's check was from Respondent United. As noted above, Respondent United was the general contractor on that job, and Respondent Goodwin was a subcontractor. The findings of fact set forth above in this section are based on the testimony of Bhueland Goodwin, Evan 911 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Goodwin, George Misner, Gary Wilkinson, and Oliver D. Wilkinson as well as documentary evidence. J. The Meeting in April 1976 Bhueland Goodwin recalled receiving a telephone call from the union agents who asked if they could come over and talk. He said that Evan Goodwin was in the office when the agents came in. He testified: "He was in the office, and when they came in, they just asked him if it was all right for him to sit in." He said that after a general conversation, the union agents asked why Respondent United had not signed an agreement. Bhueland Goodwin was of the opinion that Respondent United was working in a market where Respondent Goodwin was unable to compete. He said, "In other words, they were allowing other non-union contractors to do work that they wouldn't allow us to do on union jobs." The findings of fact in this section are based on the credited testimony of Bhueland Goodwin. Cleston Taylor, a business representative of Carpenters Local 609, gave a different version of the conversation. He said that he and two other business representatives, Mel Dyer and John Walters, met with Bhueland Goodwin and Evan Goodwin in Respondent Goodwin's offices. He recalled that they asked the Goodwins to sign an agreement for Respondent United on the Ririe Channel outlet. Taylor did not remember which one of the Goodwins responded, but he said that one of them said that Respondent United was formed to compete with nonunion companies in the area, and also that the prime contractor on the project had requested that the job be bid by a nonunion company. A slightly different version of that conversation was related by Mel Dyer, a business agent of Laborers Local 1227. According to Dyer, it was Bhueland Goodwin who responded to the question from the union business agents. He recalled that Bhueland Goodwin told them that they would not sign an agreement, and the reason was because of the competition with nonunion contractors. Dyer also stated that Bhueland Goodwin told them that they were using Respondent Goodwin's people on the Ririe Canal job of Respondent United because they were more qualified to do the job. As indicated previously, I have credited the account given by Bhueland Goodwin, rather than the other two versions, and I have based the findings of fact on Bhueland Goodwin's version. K. The First Aid Training Course On May 15, 1976, a first aid training course was given in the Armory in Blackfoot, Idaho, by the Associated General Contractors Five Craft Training Trust. Dewey Myler, who is the training coordinator for the trust, made arrangements for the first aid course after initially receiving a telephone call from Ray Pendlebury, office manager of Respondent Goodwin. Since it did not appear that Respondent Goodwin would have the desired number of employees to attend the course, Myler contact- ed Ellsworth Construction Company in Blackfoot regard- ing the course. In addition, a cement mason contacted Myler regarding the course. In any event, the attendance list introduced into evidence by counsel for the General Counsel shows that 10 persons attended the first aid class. Of those 10 persons, 4 listed Respondent United, as their company, 3 listed Respondent Goodwin as their company, and I each listed Ellsworth Construction, Mitchell, and Western as their companies. According to Myler, no one has been excluded from attending such first aid classes, but the funding for the classes comes from the 10-cent-an-hour payments made to the trust by signatory contractors. As noted earlier, Respondent United is a member of the Associated General Contractors, although Respondent United is not signatory to an agreement with the Union. The foregoing findings of fact in this section are based upon the credited testimony of Myler and documentary evidence. L. Conclusions Among the many factors to be considered in resolving the issues presented in this case are the interrelation of operations, common management, centralized control of labor relations, and common ownership. Radio and Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255 (1965). The Board has pointed out that common ownership, by itself, is not sufficient. Milo Express, Inc., 212 NLRB 313 (1974); Drivers, Chauffeurs and Helpers Local No. 639, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Poole's Warehousing, Inc.), 158 NLRB 1281 (1966). As the Board stated in Gerace Construction, Inc., and Helger Construction Conpany, Inc., 193 NLRB 645 (1971): The Trial Examiner found, and we agree, that the Respondents have common stockholders and common directors who have the legal right to control and direct the affairs of Helger Construction Company, Inc. However, we disagree with his finding that the Respondents function as a single enterprise and therefore constitute a single employer under the Act. A critical factor in determining whether separate legal entities operate as a single employing enterprise is the degree of common control of labor relations policies. Thus, the Board has found common ownership not determinative where requisite common control was not shown, and the Board has held with court approval that such common control must be actual or active, as distinguished from potential control. [Footnotes omit- ted.] After weighing all of the factors which favor the finding of a single integrated enterprise or an alter ego, and the factors which do not favor such findings, I conclude that the following factors are persuasive that Respondent United and Respondent Goodwin are not a single integrated enterprise and that Respondent United is not the alter ego of Respondent Goodwin: 1. The differences in ownership between Respondent Goodwin and Respondent United. Respondent Goodwin has two coequal partners, Bhueland Goodwin and Verl 912 UNITED CONSTRUCTORS AND GOODWIN CONSTRUCTION CO. Goodwin. Respondent United has seven coequal partners, only two of whom are Bhueland Goodwin and Verl Goodwin. Thus, while Bhueland Goodwin and Verl Goodwin own all of Respondent Goodwin, they own only two-sevenths of Respondent United. 2. While the partners in Respondent Goodwin and the partners in Respondent United are all related to one another, Bhueland Goodwin and Verl Goodwin do not play any part in the day-to-day operations of Respondent United. They are not managing partners in Respondent United, and they are not involved in the supervision of Respondent United's employees. Thus, the interest in Respondent United on the part of Bhueland Goodwin and Verl Goodwin is more like an investment in a company. Their fatherly desire to launch a company for their sons, and the sons desire to be partners in a business enterprise were significant reasons leading to the formation of Respondent United, as well as the economic reasons to compete in an area in which Respondent Goodwin was not involved. 3. There are differences in the labor relations between the two companies. Although both are members of the Associated General Contractors, only Respondent Good- win has authorized the AGC to bargain on its behalf. As a consequence, the employees of Respondent Goodwin have received certain wages and fringe benefits pursuant to a collective-bargaining agreement, which does not cover the employees of Respondent United. The hiring and firing of employees in the field are the responsibility of the supervisor for each company, who also handles labor relations matters at that level. 4. There has never been a time when a supervisor of Respondent United was authorized to supervise employees of Respondent Goodwin, or vice versa. Thus, although certain persons, such as Clark and Buckley, have been supervisors at different times for Respondent United and Respondent Goodwin, they have not been supervisors at the same time for both companies. The incident where Buckley signed the termination slips is an isolated one and was done without authorization. 5. Although employees have worked at different times for Respondent United and Respondent Goodwin, they have not worked for both companies at the same time. Only about 20 to 30 percent of Goodwin's employees have worked for Respondent United, but the evidence shows that those employees were laid off or terminated by Respondent Goodwin and were not on the payroll of both companies at the same time. 6. Bhueland Goodwin and Verl Goodwin, with some- times the help of Howard Clark, make the decision as to what jobs Respondent Goodwin will bid, and they also decide who the superintendent of the project will be for Respondent Goodwin. While Evan Goodwin works in the office of Respondent Goodwin, his supervisory authority lies there with regard to Respondent Goodwin's employees. Evan Goodwin's responsibilities primarily involve civil engineering and administrative functions. Evan Goodwin and J. C. Goodwin are the two persons who usually decided which jobs will be bid by Respondent United. 7. Respondent United and Respondent Goodwin maintain their offices in the same building, but Respondent United pays 7 percent of its annual gross for use of the office space, the use of office equipment, and for the services of Evan Goodwin. 8. Respondent United and Respondent Goodwin have separate contractor's licenses; have separate bank ac- counts, maintain a separate set of books; file separate tax returns; have separate insurance policies; have different wage and benefits programs; have different telephone numbers, and have different post office boxes. 9. The leasing of equipment between Respondent Goodwin and Respondent United has been pursuant to written agreements and at leasing fees which are standard rates in Idaho. There has been no special arrangement between them with regard to their leasing. While Respon- dent United leased approximately $30,000 in equipment from Respondent Goodwin in 1976, it leased about $35,000 in equipment from other companies that year. Sometimes, Respondent Goodwin has leased an operator and the equipment, such as Leo Gilbert who operated the backhoe on the Quinn Road project. However, the evidence shows that Respondent Goodwin has leased the operator and equipment to another company in the case of Raymond Goodwin operating the backhoe for Bannock Paving Company on the Farmers Grain project. 10. There have been only three instances of subcon- tracting between Respondent United and Respondent Goodwin. That is a small number when compared with the more than 40 projects in which Respondent Goodwin has been involved since the existence of Respondent United. The subcontracting has been done pursuant to written agreements. In all three instances, it appears that Respon- dent United overextended itself and decided that it would subcontract the work for economic reasons. In two instances, specialty work was involved in which Respon- dent United did not have the experience, and in the third instance, Respondent United was faced with a 45-day time target on a substantial project. Nevertheless, Respondent Goodwin does not guarantee the performance of work by Respondent United, and these subcontracts appear to be arms-length transactions. 11. The evidence shows that the employees of Respon- dent Goodwin have not lost work, which they otherwise would have performed, to the employees of Respondent United. Respondent Goodwin and Respondent United do not compete with each other. 12. While some employees of Respondent United attended the First Aid Training Course on May 15, 1976, the evidence shows that persons were not excluded from attending the session. After considering the foregoing and the entire record, I conclude that a preponderance of the evidence does not establish that either Respondent United or Respondent Goodwin has engaged in the unfair labor practices alleged in the complaint. CONCLUSIONS OF LAW Upon the basis of the findings of fact and upon the entire record in this proceeding, I make the following conclusions of law: 913 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Respondent United and Respondent Goodwin are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent United and Respondent Goodwin have not engaged in the unfair labor practices alleged in the complaint in this proceeding. I In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the Board, the findings, conclusions and recommended Order herein shall, as provided in Sec. 102.48 of the Rules Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER' It is hereby ordered that the complaint in this proceeding be dismissed in its entirety. and Regulations, and all objections thereto shall be deemed waived for all purposes. 914