Dee Cee Floor Covering, Inc.

DEE CEE FLOOR COVERING, INC. Dee Cee Floor Covering, Inc. and its alter ego and/or successor, Dagin-Akrab Floor Covering, Inc. and Resilient Floor & Decorative Covering Workers Local Union No. 1179, affiliated with International Brotherhood of Painters & Allied Trades, AFL- CIO. Case 17-CA-6809 September 27, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On March 25, 1976, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting 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 only to the extent consistent herewith. We agree with the Administrative Law Judge's finding that, for the reasons fully set forth by him, Dagin-Akrab Floor Covering, Inc., is the alter ego of Dee Cee Floor Covering, Inc., and that together the two named corporations constitute the Respondent. Furthermore, we agree with his finding that, as alter egos, the Respondent violated Section 8(a)(3) of the Act by conditioning employment at its Ft. Riley project upon employees withdrawing from the Union.' We do not agree, however, with his finding that Dagin-Akrab's refusal to adhere to and apply its April 1975 agreement with the Union at the Ft. Riley project violated Section 8(a)(5) of the Act. The facts, briefly stated, are as follows: Dee Cee Floor Covering, Inc., which was owned and operated by its president, Harry Reeves, was engaged in the sale and installation of carpeting in the construction industry. As a subcontractor, typical of many in the construction industry, Dee Cee did not maintain a regular complement of employees, but hired work- men as the need arose. In April 1973, Dee Cee entered into a collective-bargaining agreement with I Resilient Floor & Decorative Covering Workers Local Union No. 1179. affiliated with International Brotherhood of Painters and Allied Trades. AFLIO. 2 Sec. 8(f) provides in part: It shall not be an unfair labor practice . for an Employer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employ- ment, will be engaged) in the building and construction industry with a 232 NLRB No. 72 the Union setting forth the terms and conditions of employment for Dee Cee's employees. On April 2, 1975, Reeves informed the Union that Dee Cee was going out of business and that a new corporation, Dagin-Akrab Floor Covering, Inc., had come into being and would enter into an agreement with it. The agreement, which in fact was entered into that same day, was identical to the one entered into in 1973 between Dee Cee and the Union. In August 1975, Dagin-Akrab was awarded a contract to buy and install carpeting at the Ft. Riley military installation, said project to last approximate- ly I year. In recruiting workmen for this project, the Respondent's vice president, Don Bernard, and Reeves informed several union members that work at the project would be on a nonunion basis only and, if they wished such employment, they would have to withdraw from the Union. The Respondent informed them that it was willing to pay at the "union scale," but that it would not pay any of the fringe benefits called for in the April 1975 agreement. As a result, some employees accepted employment on the Em- ployer's terms while others, refusing to abandon the Union, did not. Subsequently, the Union protested the Respondent's offers of employment, reflecting unilateral changes in the contractual terms and conditions of employment, and requested that the Respondent bargain with it about such changes. The Respondent replied that it was a nonunion contrac- tor and that it was under no obligation to adhere to the agreement or to bargain with the Union. As previously stated, the Administrative Law Judge found that the Respondent's unilateral changes in the terms and conditions of employment, and its refusal to bargain with the Union, violated Section 8(a)(5) and (1) of the Act. For the reasons discussed below, we find that the contracts between the Respondent and the Union were prehire agreements entered into pursuant to Section 8(f) of the Act and that, therefore, the Respondent's refusal to adhere to these contracts under the circumstances herein did not violate Section 8(a)(5) and (I) of the Act. Section 8(f) of the Act2 permits qualified employ- ers and labor organizations in the building and construction industry to enter into collective-bar- labor organization of which building and construction employees are members (not established, maintained, or assisted by an) action defined in section 8(a) of this Act as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of section 9 of this Act prior to the making of such agreement.... Provided ... That any agreement which would be invalid, but for clause (I) of this subsection, shall not be a bar to a petition filed pursuant to section 9(c) or 9(e). 421 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining agreements covering employees not yet hired without thereby violating the Act.3 This section, however, merely immunizes the parties to such agreements from liability under Section 8(a) and (b) of the Act. Such prehire agreements do not, however, give rise to a presumption of majority status on behalf of the union.4 Thus, where a union fails to prove that it has obtained majority status among the employer's employees, an employer may withdraw recognition from that union and/or make unilateral changes in the contractual working conditions without thereby violating Section 8(a)(5) of the Act.5 While the April 1975 agreement was validly entered into pursuant to Section 8(f) of the Act, that agreement was not binding on the Respondent for purposes of Section 8(a)(5) until such time as the Union demonstrated that it enjoyed the support of a majority of the Respondent's employees employed at the Ft. Riley project. However, in light of the fact that the Respondent had no employees working for it either at the time that it executed the contract or when it unilaterally set the conditions of employment at the Ft. Riley project and refused to bargain with the Union, it is obvious that the Union could not have had a majority status. Furthermore, the mere fact that the Union might indeed have represented a majority of the employees at Respondent Dee Cee's previous jobsites is of no consequence inasmuch as the Union must demon- strate its majority at each new jobsite in order to invoke the provisions of Section 8(a)(5) of the Act. 6 As the facts here show that the Respondent had no employees at the Ft. Riley job when it decided to abrogate its prehire agreement with the Union, no violation of Section 8(a)(5) of the Act can be found. Moreover, although Dagin-Akrab as the alter ego of Dee Cee would normally have been bound to Dee Cee's 1973 agreement, no violation can be found in its failure to apply that agreement at the Ft. Riley job, since it had no employees working at that job when the unilateral changes were made. Therefore, a refusal-to-bargain violation also cannot be predicat- ed on the breach of the 1973 agreement. As previously stated, we agree with the Administra- tive Law Judge that the Respondent violated Section 8(a)(3) of the Act by conditioning employment at its Ft. Riley project upon employees withdrawing from I Carpet, Linoleum and Soft Tile Local Union No. 1247 of the Brotherhood of Painters, Decorators and Paper Hangers of America, AFL-CIO [Indio Paint and Rug CenterJ, 156 NLRB 951 (1966). R. J. Smith Construction Co., 191 NLRB 693, 695 (1971), enforcement denied 480 F.2d 1186 (C.A.D.C., 1973). See also Ruttman Construction Company, and Ruttmann Corporation, Joint Employers 191 NLRB 701 (1971), decided the same day. 5 Ibid. n David F. Irvin, et al., d/b/a The Irvin-McKelvy Company, 194 NLRB 52 (1971), enforcement denied in part 475 F.2d 1265 (C.A. 3, 1973). 7 The record discloses that union members Fred Wakefield and Garry the Union. Therefore, we shall order the Respondent to make whole those employees who were offered, but who refused, employment because they would not abandon the Union. Since we have already found that the Respondent was under no obligation to adhere to its agreement, it would be inimical to such a finding to award backpay according to the terms of that agreement. Therefore, backpay shall be awarded at the rate that the Respondent offered to pay those employees who would work on a nonunion basis. The Respondent shall make whole those employees 7 who refused its illegal offer of employment from such time the employer's offer was made until such time as the Respondent made or will make a good-faith offer of employment. The backpay and interest thereon shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).8 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dee Cee Floor Covering, Inc., and its alter ego, Dagin-Akrab, Kansas City, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Conditioning employment at their current or future projects upon abandonment of the Union by its prospective employees. (b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole all persons who refused to accept offers of employment at the Ft. Riley project on the unlawful condition that they abandon the Union by paying them a sum of money equal to what they would have earned from the time the illegal offer of employment was made until such time as the Respondent has made or will make a good-faith offer of employment, less interim earnings. (b) 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 Allen declined Respondent's offers of employment because of the unlawful conditions. We leave to the compliance stage of this proceeding the question of whether other employees also declined Respondent's unlawfully condi- tioned offers of employment and are therefore entitled to reimbursement thereunder. 8 See generally Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In accordance with our decision in Florida Steel Corporation, supra, we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 422 DEE CEE FLOOR COVERING, INC. other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Ft. Riley, Kansas, its current construction project, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by its representatives, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of Section 8(a)(5) of the Act. CHAIRMAN FANNING, concurring in part and dissent- ing in part: I agree with my colleagues' findings of violations. I do not agree with their dismissal of the 8(a)(5) allegation. I previously have dissented from the interpretation of Section 8(f) to which the majority adheres. See the dissenting opinions in the cases cited in footnote 4, supra. 9 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 condition employment at any of our present or future projects upon abandonment of the Union by any prospective employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL make whole all persons for loss of earnings sustained as a result of their refusal to work on a nonunion basis. DEE CEE FLOOR COVERING, INC. AND DAGIN-AKRAB FLOOR COVERING, INC. DECISION STATEMENT OF THE CASE THOMAS A. RICCI, Administrative Law Judge: A hearing in this proceeding was held on February 5, 1976, at Kansas City, Kansas, on complaint of the General Counsel against two separately named corporations, Dee Cee Floor Covering, Inc., herein called Dee Cee, and Dagin-Akrab Floor Covering, Inc., herein called Dagin-Akrab, the two together here called the Respondent. The complaint issued on December 10, 1975, and rests upon a charge filed on October 23, 1975, by Resilient Floor and Decorative Covering Workers Local Union No. 1179, affiliated with International Brotherhood of Painters and Allied Trades, AFL-CIO, herein called the Union. The essential issue of the case is whether the Respondent refused to bargain with the Union within the intendment of the statute and thereby violated Section 8(aX5), and whether, as an inseparable element of that unfair labor practice, it also violated Section 8(a)(3) of the National Labor Relations Act, as amended. Briefs were filed by all three parties. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGs OF FACT I. THE BUSINESS OF THE RESPONDENT Dee Cee Floor Covering, Inc., is a corporation engaged in the business of selling and installing carpeting in the construction industry, with its principal place of business at 1125 Grand, Kansas City. Missouri. In the conduct of its business in the past fiscal year this corporation purchased materials valued in excess of $50,000 directly from sources located outside the State of Missouri. During the same period it sold goods valued in excess of $50,000 directly to customers located outside that State. Dagin-Akrab Floor Covering, Inc., is also a corporation engaged in the business of selling and installing carpeting in the construction industry, with its principal place of business in the same location where Dee Cee Floor Covering, Inc., has its office. Dagin-Akrab was incorporat- ed in March 1975, and in or about August of that year entered upon a contract valued about $490,000 to supply and install carpeting in a military site at Fort Riley, Kansas. That contract is directly related to the National Defense of the United States. I find that both Dee Cee and Dagin-Akrab are engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. 1l. THE LABOR ORGANIZATION INVOLVED I find that Resilient Floor and Decorative Covering Workers Local Union No. 1179, affiliated with Interna- tional Brotherhood of Painters and Allied Trades, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 423 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ill. THE UNFAIR LABOR PRACTICES The Case in Brief From 1972 through 1974 and into 1975, Dee Cee Floor Covering, Inc., sold and installed carpeting in the construc- tion industry; its employees were covered under a collec- tive-bargaining agreement with the Union, and, as a unionized employer, the person in charge of the business on a day-to-day basis was Harry Reeves. In 1975 another corporation was formed - Dagin-Akrab Floor Covering, Inc., which continued the same business. This corporation also signed a collective-bargaining agreement with the Union, and Harry Reeves continued in charge of the business operation. In mid-year 1975 Dagin-Akrab entered into a contract to sell and install carpeting at a Fort Riley military site; work on that job was expected to require a number of carpetlayer craftsmen and to last as long as a full year. In the recruitment of craftsmen the employer - under the name Dagin-Akrab - made prospective work- men understand they must work "nonunion," their com- pensation in no sense to be governed by any union contract. In fact, some employees were hired, and started work, without benefit of recognition of their union and without enjoyment of a number of financial benefits provided for in the union contract. Some persons who were asked to work on this basis - as nonunion employees - refused and were denied employment. The complaint alleges that the two corporations are really one and the same, or alter egos, with Reeves always the essential controlling element. It then alleges that by disregarding and violating its contract with the Union - the one signed in 1973 by Dee Cee extended to March 1, 1976, and one signed by Dagin-Akrab in April 1975 extended to the same date - by conditioning employment at Fort Riley in 1975 upon abandonment of the Union by its employees, and by in fact employing some at compensa- tion rates below the contract provisions, the Respondent - whatever its proper name at the moment - violated Section 8(a)(5) and (3) of the Act, illegal refusal to bargain and illegal discrimination against employees because of their union affiliation. In defense, the Respondent contends that Dee Cee and Dagin-Akrab are not one and the same, that the two are completely unrelated employers having nothing to do with one another, and that while Dee Cee did once have a contract with the Union, Dagin-Akrab was never a "union" contractor, was never obligated to bargain at all, and could therefore rightfully set its conditions of employ- ment unilaterally. The Respondent asserts that Dee Cee ceased doing business completely by the end of the year 1974 and that therefore now there can be no unfair labor practices charged to it because it never ignored the Union while in business, and there can be no unfair labor practices charged to Dagin-Akrab because it is a stranger to any union activity by whoever may have once worked for Dee Cee. I Helrose BinderV, Inc. and Graphic Arts Finishing, Inc., 204 NLRB 499 (1973). Clarification For reasons set out below, I find that the two corpora- tions were in fact one and the same, and that by flouting its contract with the Union and unilaterally changing condi- tions of employment to put an end to union representation by any of its employees, the "Respondent," as named in the complaint, committed the unfair labor practices alleged.' The interest of clarity requires, however, that an alternative allegation appearing in the complaint, and reasserted by the General Counsel at the hearing, be understood and put into proper prospective in this Decision. The complaint alleges that Dagin-Akrab is "an alter ego of, and/or a successor to" Dee Cee. There is an absolute distinction between alter ego concepts as dealt with in Board law, and so-called successorship cases. The one bears no relationship whatever to the other. And where the complaint alleges here, as it does, that Dee Cee and Dagin-Akrab were alter egos one to the other, while simultaneously also being predecessor-successor, it is incoherent on its face. Businesses, commercial operations, and employing enter- prises are run and controlled by people, management groups, and human beings; what designating names they choose to use from time to time in no way alters this reality. When the Board speaks of alter egos it is dealing with changes of facade, superficial appearance of management, or control group substitutions which in truth do not alter the identity of the human element in the ownership and running of the business. Here Harry Reeves was the central controlling force in Dee Cee, and the General Counsel says, in his first part, that Reeves held the same position with respect to Dagin-Akrab. In contrast, successorship looks to the business itself, the employing enterprise, as something apart from its owner, or the management force which runs and controls it at any given moment. The business itself - with its real estate, its machinery and equipment, its complement of employees, its fixed custom- ers or valuable goodwill - stands apart from whoever owns it now or then. When the business passes into other hands, or into control of new and different interests from that which first owned and controlled it, whoever receives the business is called the successor - a competitor who buys it up, a trustee in bankruptcy, a creditor committee, an heir, anybody - but always a stranger to the first identified employer. Dee Cee and Dagin-Akrab therefore cannot be both alter egos and predecessor-successor. It is important to stress this distinction lest there be misconception of the basis of decision in this case. The unfair labor practice finding in no sense rests upon any successorship concept. In my considered judgment a factual finding that Dagin-Akrab was a successor - and therefore of necessity not the alter ego - to Dee Cee, would not be justified by the evidence. Dee Cee was a subcontractor typical of many in the construction industry. It had an office in what must have been rented space upstairs in an inner-city office building. It owned no real estate, no building, no shop, no machinery or production equipment, and it had no employees working for it on a 424 DEE CEE FLOOR COVERING, INC. regular basis. No less significant, it had no regular customers, or continuing predictable flow of business. It submitted a bid here and there to a general contractor; when it succeeded in winning a contract it bought carpeting to be brought to the jobsite, hired available workmen pursuant to its contract with the Union - not necessarily the same persons who had worked on its previous job - and then released them when the project was completed for other employment wherever they could find it. If the successor is an employer who buys, or otherwise takes over the business of the predecessor, what business did Dagin-Akrab take from Dee Cee? It took no assets, it took no customers, and it certainly took no employees. Among the essential tests of successorship is whether the successor hires a majority, or at least a great number of the predecessor's employees. Which employees did Dagin-Akrab hire? Nor did the alleged "successor" in this instance take over the predecessor's name. I suppose there could be a case in the subcontracting aspect of the construction industry - involving the use of a fluid group of craftsmen - where the established name of the seller is of such value in a business getting sense as to approach the transfer of an employer enterprise concept. Such was not the case with respect to Dee Cee. It may well be that in this industry there can be no such thing as successorship. In any event, that question is not reached here, and this Decision is not to be taken as a ruling on the matter in any sense.2 Alter Ego Harry Reeves was the principal witness called by the Respondent. He said he has been in the carpet selling and installing business since 1971, first starting with the name "Direct Carpeting Contractors." He continued that he also did business under the name "Dee Cee Floor Covering, Inc.," organized in June 1973. Reeves' opening testimony is that he signed a union contract in 1972 or 1973 under the name "Dee Cee Floor Covering," of which he was the president. Later received in evidence, that contract shows his signature and the name "Dee Cee Carpet" as the employer; it is dated April 1, 1973. Reeves was president and his wife secretary of that company, whatever its name, and between the two they owned 325 of the outstanding 500 shares of stock. Reeves alone held a majority of the shares. There is no indication Mrs. Reeves had anything to do in fact with the business operations reflected in this story. Reeves also signed another contract with the Union on November 29, 1972, this time under the name "D. C. Installation" to identify the employer. The Respondent conceded in its answer and at the hearing that during late 1973 and throughout 1974, in the name of Dee Cee Flooring, Inc., Reeves - or that corporate entity - was in collective-bargaining relationship with the Union, calling 2 While in his posthearing brief the General Counsel says he will no longer "pursue" the successorship theory, he nevertheless cites a number of prior Board successorship decisions in support of the complaint. I There is no rational explanation anywhere in the record for the interchangeable use by Reeves of the two names Dee Cee Floor Covering. Inc. and Dee Cee Carpet. While doing business as Dee Cee Floor Covering, Inc., he signed Dee Cee Carpet to identify himself. In his brief his counsel makes much of the different names Reeves used. Asked about these two for employees through the Union, and carrying on the carpet selling and installing business on that basis. Reeves said at the hearing that Dee Cee Floor Covering went completely out of business in December 1974, but two employees testified they worked for that company in 1975. Edwin Hogan said he worked on two projects for Dee Cee during March, one at Joplin and one at Leavenworth. Garry Allen, another union member, said he too worked on these jobs for Dee Cee at that time. Aside from saying that these employees were paid by the general contractor on those projects, Reeves did not deny that Dee Cee Floor Covering hired them on these jobs during the first half of 1975. 1 credit Hogan and Allen, for, as will appear, Reeves was not a reliable witness. In 1975 still another name came into being - Dagin- Akrab Floor Company, Inc. When it was first organized, in March, Josephine Reeves owned all the stock and was the president; this Mrs. Reeves is Harry Reeves' aunt, and she worked as the office secretary of one company or corporation after another. In September the stock was reapportioned, with Mrs. Reeves holding 588 shares and one Everett Lee holding 612. The record is silent as to who Mr. Lee may be, and there is nothing to indicate he ever had anything to do with running whatever business was carried on. On April 2, 1975, Reeves went to the Union's office, taking one Allen Gibson with him. At that time Gibson held no position at all with Dagin-Akrab Floor Company, Inc., and owned no part of it. In the union office, on April 2, Reeves told Richard Meyers, the Union's business manager with whom he had done business in the past, "that Dee Cee Carpet was going to be no more and that they were going to open a company named Dagin- Akrab," and that "they wanted to sign a new contract." This is Meyers' testimony. A contract was signed that day, another copy of the 1973-76 agreement Reeves had signed in 1973 in the name of Dee Cee Carpet. This one was signed by Gibson, and the employer identified simply as Dagin-Akrab. The agreement was received in evidence without question. Reeves also explained to Meyers that he would do the selling and Gibson the installing. Gibson had been a straight carpetlayer, sent by the Union, on previous jobs controlled by Reeves. As a witness Reeves asserted he ceased being a business man, ceased being an employer or in any sense an agent of an employer, with the demise of Dee Cee - whether it be called Dee Cee Carpet or Dee Cee Floor Covering, Inc.3 He said that in August 1975 he became an employee of Dagin-Akrab, several times stressing that he was no more than a salesman, a consultant. And to prove this conclu- sionary assertion, he produced a written hiring agreement dated August 5, 1975; it is signed by him, by his aunt - Josephine Reeves - attesting as secretary, and by Gibson, formally designated on the document as president of Dagin-Akrab. Gibson had only 2 weeks earlier replaced names, Reeves testified: "I am familiar with Dee Cee Floor Covering. Inc." And then: "Q. Is that synonomous with Dee Cee Carpet Company? A. I wouldn't know how to answer that." Clearly he paid no attention to the details of his operational names. and that very fact further strengthens the essential finding that throughout it was he personally who was doing business, with the wording of his legal title of the moment having no real significance. 425 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reeves' aunt as president of the Company. With this it is the burden of Reeves' testimony Dagin-Akrab never had anything to do with Dee Cee Floor Covering, or with him as an employer. Reeves was hard put to explain away a number of objective facts of record giving the lie to his contrary contentions. His attempt to distort the picture of his activities must be totally rejected, if only on the basis of his answer to the following question put to him, as the last witness, by Respondent's counsel: Q. With regard to the conversations that were allegedly held on or about April 2, 1975, with Mr. Meyers, was there every any statement made that Dagin-Akrab Floor Covering, Inc., was going to sign a contract with the Union or intended to? A. No. But the contract signed then and there in the name of Dagin-Akrab was received in evidence. At the start of the hearing, as an adverse witness, Reeves had said, "I was not with Mr. Gibson at the time he signed a document with the Union for Dagin-Akrab Floor Covering...." He admit- ted having brought Gibson to Meyers' office. "Did you remain to hear what went on?. . . No, I was talking to his partner at the time .... Did you stay there, I mean? ... I was in the room, on the other side." Again: "Did he [Gibson] sign anything that day. A. I wasn't sitting there watching him sign it, I can't say if he did or didn't," Reeves simply was not a credible witness. This was Reeves, at the union office, for reasons sufficient onto himself, desirous of making a paper record creating a fictitious picture of substantive change in his business activities where there really was none. His total testimony was no more than a continuing effort to erase himself from the position of employer, as it were. He insisted he is now no more than a salesman, but his contract with Dagin-Akrab provides: "The duties of said consultant are to be those of a general supervisor, including employer/employee relations [emphasis supplied], the pur- chasing of materials, handling relations with the general contractor, negotiating any contracts which are necessi- tated by the project, and all other duties incident to the performance of the said subcontract." All this is but another way of saying he runs the business.4 The Fort Riley job, which gave rise to this proceeding, was expected to occupy the entire company for a year and there is no indication any other job or project was even anticipated at the time of the hearing. Asked to explain what he does for Dagin-Akrab, Reeves said as a witness: "I oversee management of the entire issue." Asked how many contracts does the company presently have, he answered: "I have no idea." His lawyer then said Fort Riley is the only one. Merely because a subcontractor in the construction business may not have an identifiable business operation with physical assets such that can be passed on to a successor, it does not follow that the management, the operator, the owner, the people who carry on such commercial operations, do not constitute a continuing entity such as to bring into existence employer-employee relationships subject to the jurisdiction of the Act like any other employer. The labor law is concerned with substance, not with form. Constantly changing corporate titles, or any other names, may serve a purpose under other laws, but they are meaningless insofar as the employees are con- cerned and insofar as the question of who determines conditions of employment. This law is concerned with people, not names. In this case it was Harry Reeves who ran this business from first to last, who hired employees - or decided how they would be hired and under what conditions, and who made the decision - changing from time to time - as to whether they were to be "union" or "nonunion." To coin a phrase, he was the ego in all the alters. When Gibson was needed, he was used to sign the Dagin-Akrab contract in April, although he was a stranger to the employer - whatever its name. By August a man named Bernard - also just another former employee of Reeves' - was added to the company - made a vice president out of a clear sky. When Meyers called the office that month to inquire what was going on at Fort Riley, Bernard answered, and said: "Mr. Reeves and Mr. Gibson were no longer with the firm." But Gibson had been made president of the "firm" only a month earlier. "Oh, what a tangled webb we weave ... ." By agreement with the Union as the representative of his employees, Reeves hired, as he admitted, through the union hall throughout 1974. He bid successfully on another job in 1975, and again he needed carpetlayers as he had needed them in the past. This time he simply decided he did not care to continue recognizing the Union, and the still effective contract - and never mind the law which says it is the employees and not the employer who decide questions of representation. If a subcontractor in the construction industry can look upon each new contract it undertakes as a business enterprise unrelated to any of his previous business projects, it means an end to all collective- bargaining contracts, and all stable union representation, in the entire industry. Refusal to Bargain When Meyers, of the Union, got word, from three or four union members, that they had been approached to work at Fort Riley but on a "nonunion" basis, he telephoned the office of Dagin-Akrab. Bernard answered, and, as Meyers testified, said he was the new owner, and that "Reeves and Gibson were no longer with the firm." Bernard did not appear as a witness, and it is clear on this record he was lying to Meyers. Later Bernard went to Meyers' office, but refused to sign the usual necessary health and welfare contribution document on request. Meanwhile, Bernard called several union members in his search for carpetlayers needed at Fort Riley. On the phone he offered work to Allen, saying he would pay the union hourly rates, but not any of the various fringe benefits called for in the union contract. He told Allen the men "would have to drop out of the Union ... would have to 4 J. HowardJenks, d/b/a Glendora Plumbing, 165 NLRB 101 (1%967). 426 DEE CEE FLOOR COVERING, INC. take a leave of absence from the union for a year in order to work up there." Allen refused the offer. Bernard also spoke to Donald Claycomb, of the Union, and asked "if I would sign a statement saying that I didn't belong to the union when I was employed by him." Gibson, too, spoke to Claycomb, and this man did accept the offer on that basis and went to work for straight pay, losing all the contract benefits. Bernard also called a union member named Fred Wakefield, to say he was looking for men, "he was not hiring union men, but that he was paying union scale." When Wakefield answered he was not interested, Bernard asked did Wakefield know any others that might be. The refusal to bargain with the Union, as the statute commands, is clear. I find that by refusing to continue to recognize the Union as the exclusive representative of its employees at the Fort Riley project, by disregarding the effective contract then in force between the Respondent and the Union, and by offering to hire and in fact employing carpetlayers on conditions of employment set unilaterally by the Respondent, the Respondent - precise- ly as named in the complaint - violated Section 8(a)(5), (3), and (1) of the Act. One further argument in defense is advanced for the first time in the Respondent's brief, and it is that because the 1975 union contract signed in the name Dagin-Akrab speaks of the Kansas City area it could not apply to the Fort Riley job, located outside the jurisdiction of this Union. I find no merit in the argument because it is clear the parties intended the agreement to be for that job. It is the only one Reeves was preparing for, it is the only one the Company has been engaged in, and it constitutes the only business of that company involved in the case. Moreover, if the contract did not apply to Fort Riley, there was no reason for Bernard, or any agent of the Company, to condition employment on resignation from the Union, or to say at all it would be a nonunion project. THE REMEDY It having been found that the Respondent unlawfully refused to bargain with the Union by ignoring its effective collective-bargaining agreement, by unilaterally establish- ing conditions of employment, and by denying to its employees covered by the union contract economic benefits in return for work as provided therein, it must be ordered to cease and desist from such conduct and to take remedial action. The Respondent must recognize and bargain with the Union on request, as the statute commands. It must be ordered to abide by the terms of that agreement in every respect. And it must make whole all employees who have worked for it since the summer of 1975 and who have been denied any of the economic benefits, including all fringe benefits, and particularly who have worked at its Fort Riley project. The employees must be reimbursed for any moneys thus due them, and payments must be made retroactively on their behalf to the Union's health, welfare, and pension funds. CONCLUSIONS OF LAW I. By refusing to bargain with the Union in August 1975, and thereafter, concerning wages, hours, and other conditions of employment in the unit found appropriate herein, the Respondent has violated and is violating Section 8(aX5) and (1) of the Act. The unit appropriate for the purposes of collective bargaining now is: All workmen employed by the Respondent who handle the tools of the trade in doing all work on projects located in the Kansas City, Missouri, area, and Wyandotte, Johnson, Leavenworth, Bourbon, Linn and Miami counties in Kansas, and such other areas as may be assigned by the Union, which work may consist of measuring, cutting, and laying of old and new carpet, linoleum and all types of resilient floor and wall covering material, whether in sheets, rolls, or inter- locked; plastic, laminated plastic and metal wall tile, fitting devices for attachment of carpet, linoleum, rubber, and all other resilient floor and wall coverings, and fitting of metal caps at corners used in the installation of linoleum and plastic counters, tables, and steps; artificial turf and derivatives thereof, including monolithic covering; and preparatory work for all the above mentioned, including under laymen, but excluding all supervisors. 2. By unilaterally changing conditions of employment at its Fort Riley project, the Respondent violated Section 8(a)(5) of the Act. 3. By conditioning employment at its Fort Riley project upon withdrawal from the Union, and by denying to employees at its Fort Riley project the economic benefits provided for in the effective collective-bargaining agree- ment, the Respondent has violated and is continuing to violate Section 8(aX3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 427