Del Chemical & Supply Co.

PACIFIC POLLUTION ,CONTROL, INC. 293 Pacific Pollution Control, Inc., and Cunningham, Stuart & Wheeler, d/b/a Del Chemical & Supply Company and Thomas F. Accinelli. Case 20-CA- 10287 December 15, 1976 2 The discriminatory discharge of an employee because of his protected concerted activities goes to the very heart of the Act. The Administrative law Judge omitted a broad cease -and-desist order covering the illegal discharge which he found Respondents had committed . Consequently, as it is found that Respondents unlawfully discharged an employee, we shall issue a broad cease-and-desist order herein. N.LR.B. v. Entwistle Mfg. Co, 120 F.2d 532 (C.A. 4, 1941). DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINs On March 30, 1976, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief. The General Counsel filed an answering letter and submitted to the Board the brief that he had submitted to the Administrative Law Judge, for the purpose of supporting the Administra- tive Law Judge's Decision. 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, fmdings,l and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.2 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 Respondents, Pacific Pollution Control, Inc., and Cunningham, Stuart & Wheeler, d/b/a Del Chemical & Supply Company, Emeryville, California, their officers, agents, successors, and assigns, jointly and severally, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1: "1. Cease and desist from: "(a) Discharging employees for engaging in protect- ed concerted activities. - "(b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act." 2. Substitute the attached' notice for that of the Administrative Law Judge. 1 The Respondents have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 227 NLRB No. 54 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employ- ees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a represen- tative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. WE WILL NOT discharge our employees for engaging in protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed under Section 7 of the Act. WE WILL offer Thomas F. Accinelli immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and WE WILL make him whole for any loss of earnings and other benefits suffered because of his unlawful discharge with interest at the rate of 6 percent per annum. PACIFIC POLLUTION CONTROL, INC., AND CUNNINGHAM, STUART & WHEELER, D/B/A DEL CHEMICAL & SUPPLY COMPANY DECISION STATEMENT OF THE CASE RICHARD J. BoYCE, Administrative Law Judge: This case was heard before me in San Francisco , California, on December 4, 9, and 10, 1975. The charge was filed May 29, 1975, and- amended August 19, by Thomas F. Accinelli, in his individual capacity (herein called Accinelli). The complaint issued August 27, 1975, was amended on August 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 28, and alleges a violation by Pacific Pollution Control, Inc.,' and Cunningham, Stuart & Wheeler d/b/a Del Chemical .& Supply. Co., as joint employers (herein, respectively, called PAC and Del), of Section 8(a)(1) of the National Labor Relations Act, as amended: The parties were given opportunity at the hearing to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Briefs were filed for the General Counsel and Del. 1. ISSUES The issues were whether Accinelli's discharge on March 15, 1975, violated Section 8(a)(1) of the Act; and, if so, to whom responsibility should be attributed. H. JURISDICTION PPC is a California corporation, headquartered in Emeryville, engaged in the manufacture, sale, and installa- tion of a product known as Aqua-Fence, which is used in the containment of oil spills. Its customers are located throughout the world and its annual sales approximate $1 million. Among its customers in 1975 were Exxon Compa- ny in Aruba, Dutch Antilles; Hess Oil Company in the Virgin Islands; the Port of Stockton, California; and Sea- Land Service, Inc., in Elizabeth, New Jersey, Oakland and Long Beach, California, and Seattle, Washington. Del is apartnership consisting at relevant times of Dennis Cunningham, Ronald Stuart; and James Wheeler, head- quartered in Emeryville, engaged in the servicing-i.e., deployment, retrieval, and upkeep-of oil spill containment systems, and in the cleanup of oil spills. Between October 1974 and October 1975, Del received over $50,000 for services performed outside -California; and over $50,000 from customers unnamed, each of whom annually grosses in excess of $500,000.' It is, -concluded that PPC and Del, separately, are employers engaged in and affecting commerce, within Section 2(2), (6), and (7) of the Act .2 III. LABOR ORGANIZATION No labor organization is involved in this proceeding. 1 Mr. Finkle initially entered an appearance on behalf of both Del Chemical & Supply Company and Pacific Pollution Control, Inc., stating at the time that he might have to withdraw as representative of Pacific Pollution Control because of a conflict of interest. He did withdraw on the second day of the hearing, and no one entered an appearance for Pacific Pollution Control in his stead Another attorney, Robert C. Field, previously had filed a joint answer for both Del Chemical & Supply and Pacific Pollution Control. 2 The complaint contains no independent jurisdictional allegations concerning PPC, instead alleging jurisdiction on the theory of PPC's joint- employership with Del. The matter of PPC's relationship with Del is treated later in this decision. The complaint alleges that Del has an annual direct inflow exceeding $50,000, otherwise making no assertions concerning the monetary scope of Del's business. During the hearing, on the representation of Del's counsel that it does not meet the direct-inflow standard, counsel for the General IV. THE ALLEGED UNFAIR LABOR PRACTICE A. Evidence The relationship between PPC and Del: Until October 1974, both PPC and Del were wholly owned by Neeld Tanksley; until February 3, 1975, the two shared premises at 800 Grayson Street in Berkeley, California; and, until April 1, 1975, rank-and-file employees of both were treated as Del employees for all payroll purposes. PPC has been primarily involved at all times in the manufacture, sale, and installation of Aqua-Fence; and Del in the servicing of pollution containment systems and oil-spill cleanup. Among Tanksley's employees-until October 1974 were Dennis Cunningham, Ronald Stuart, and James Wheeler. In October, those three formed a partnership and ostensibly relieved Tanksley of the Del end of the business. Tanksley, reputedly having decided that the servicing and cleanup aspect of his enterprise was _ too much of a burden, had conceived of this idea a month or so before. Details of the arrangement between Tanksley and the partnership are seemingly vague and incomplete. Tanksley did not testify,3 and the only partner to testify was Cunningham, whose recital was an exemplar of neither clarity nor responsive- ness. Cunningham testified that all terms of the October 1974 transaction were oral. He continued that $1 passed from the partnership to Tanksley, it being understood that, after a year, they would decide upon a price. During that year, according to Cunningham,,the partnership could void the deal at any time, but Tanksley could not. Cunningham indicated other features of the arrangement to be: (a) The partnership acquired exclusive use of Del's name. (b) The partnership took over the use, on a lease basis, of "certain equipment." Cunningham did not identify the equipment, nor did he reveal any lease terms. - (c) Preexisting receivables and obligations, if any, re- mained Tanksley's. (d) The partnership acquired "first right of refusal" in the servicing of containment systems sold by PPC-on the West Coast. When asked how this, right could be implemented, inasmuch as it presupposed the consent of PPCs custom- ers, Cunningham was at a loss to explain. (e),As previously stated, rank-and-file employees of both PPC and Del remained Del employees for all payroll purposes until April 1, 1975, -when the practice was discontinued as "unworkable." Until the discontinuance, paychecks issued in Del's name, from its account. The Counsel in effect abandoned that allegation without providing another in its place. Del accordingly moved during the hearing, and again in its brief, that the complaint "should be dismissed for failure to state a proper jurisdictional basis as to Respondent Del." The motion was and is denied , it being manifest that Del meets a jurisdictional standard, and it being further manifest that Del was not prejudiced in the presentation of its defense by this situation 3 Tanksley was mysteriously absent throughout the hearing. Counsel for the General Counsel represented that he was under subpena, but could not be located; and Del's counsel stated that his best efforts to locate Tanksley had failed. Cunningham testified that Tanksley telephoned him on Decem- ber 8, - 1975-i e., the day before Cunningham's testimony-and that Tanksley pointedly refused to discuss the case or reveal his whereabouts, or even leave a phone number where he could be reached. Cunningham stated that he asked Tanksley, in that conversation, to "get in touch with" Del's counsel. - PACIFIC POLLUTION CONTROL, INC. 295 employees were represented as Del's in quarterly reports to IRS, and Del withheld from their pay for income tax and social - security purposes. Workmen's compensation cover- age for them was in Del's name, and Cunningham "as- sumed that the -state charged Del's account for any unemployment benefits received by Accinelli because of the discharge in question. Until mid-February, Del some- times advanced funds for-payroll purposes, after which -it- issued checks on behalf of PPC only when PPC money was "in hand." PPC, in addition to making Del whole for moneys thus disbursed, paid a portion, of the salaries of those on Del's office, staff devoting time to PPC's payroll. The reason for the payroll's staying - in Del's name, according to Cunningham, was: [Tanksley ] had been under some pressure in that he had just recently-,cleared, up a situation with the IRS and it had been a large obligation and we agreed then at that point to go ahead and carry the employees under the name of Del Chemical Company.... Cunningham continued: [IJt was basically because of Mr. Tanksley's request ... because of the fact that he had some-problems with the IRS, had gotten those problems straightened out and he was wanting to keep it as nearly as possible a -straight situation at that point. (f) The partnership, ` in Cunningham's words, "would provide the labor force necessary for the manufacture of the oil containment barrier." Whether this was but another reference to the payroll arrangement is unclear from the record. This testimony wag' on examination by Del's counsel, who abruptly changed the line of inquiry before Cunningham could explain, and the thread was never picked up. (g) The partnership took over from Tanksley, as a subcontractor, the servicing of containment systems for Holly Corporation, the Port of Stockton, and Sea-Land Service in Oakland-. As mentioned above, PPC and Del continued to share the Grayson Street premises until February 3, 1975. PPC then moved to a facility - on Hollis Street and Del to one on Horton- Street, both in 'Emeryville. From October `1974 to February 3, there was frequent employee interchange between PPC and DeI-i.e.,, between manufacturing and service-functions. From the-rank-and-file point of view, in fact, about the only change attending the October transac- tion between Tanksley and the partnership was that the' employees thenceforth were'to"`signify on their timeslips hours devoted to manufacturing as opposed to service functions. Coincident with the physical split,, the employees were allocated between PPC and, Del largely on. the basis of where their loyalties lay. At that time, according to Cunningham, -he assembled those allocated to Del, telling them -"that .they would be working strictly out of our location and would not be working for Pacific Pollution Control." Similarly, Tanksley told- those allocated to PPC that, while they would, continue receiving pay from Del, they were working for him and subject to his orders., Employee interchange, for practical purposes, ceased at that poinL4 Cunningham insisted,-in his testimony, that the partners had no say-in the operation of PPC after the split, nor did Tanksley in the operation of Del. Heparticularized that, neither had a voice in the terms and conditions of employment.-and job activities of the other's employees. Cunningham elsewhere conceded, however, that- he "may have -made recommendations to [Tanksley] concerning people and-who he was sending on a given job." Cunning- ham hastened to add that his recommendations "made no difference" The physical split notwithstanding, the functional rela- tionship between PPC and Del continued much as before, PPC concerning itself mainly with manufacturing and sales, Del with servicing and spill cleanup. Some servicing continued-to be done in PPC's name, however-for Sea- Land in Seattle and Long Beach. Cunningham testified that the partnership d/b/a Del has not been limited to the servicing of PPC installations; indeed, that a "major portion" of its business has been independent of PPC. Rather than wait the full year, the partners on August 1, 11975, "fmalized" their takeover of, Del, according to Cunningham. They gave Tanksley an,unsecured note for $125,000, purportedly took title to the equipment previous- ly leased from hun, and displaced PPC in servicing the Sea Land contracts at Seattle-and Long Beach. Incidental to taking over the two Sea Land jobs, Del retained two, incumbent PPC employees at each location. Cunningham characterized Del as a subcontractor under PPC concern- ing those jobs. Although the details are hazy, Tanksley was active on behalf of Del in arranging with Sea-Land'for PPC's -being replaced by"Del. This included the negotiation of a lower fee for Del than that. paid by Sea-Land to PPC, to correspond with the fee of -a ' PPC"subcontractor' doing sunilai' work in New Jersey'.` PPC and Del, in their joint answer to the complaint, dated September 8, 1975, while denying joint-employership, admit that Tanksley had the limited right of supervision of certain activities performed by Del Chemical'and Supply." The record `nowhere spells out that "limited right," and Cunningham denied its existence. The answer was prepared by Attorney Robert- C. Field, who did not enter an appearance at the hearing. And, during the General Counsel's investigation of the charge herein, Attorney Field submitted a document, dated July 17, 1975, stating that Tanksley was Del's "representative best qualified to give further information" of a jurisdictional nature. - - Accinelli's discharge: Accinelh began working for PPC/Del in September 1974-i.e., before the advent of the partnership. He performed both manufacturing-and servic- ing functions on occasion. Until about the time of the physical split, he commonly worked under the direction of one or the other of the partners. Roughly coincident with the split, he expressed dissatisfaction -with his situation, announcing that he would work only under Jesse Tapia, a 4 In February or March 1975, in what was described by Cunningham as accommodation of Tanksley, and that the partners could- have told hun to an "emergency situation," Tanksley borrowed two Del employees to work on "go fly a kite." the Sea-Land job in Long Beach. Cunningham stated that this was purely an - 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foreman assigned to PPC incidental to the split. Accinelli's wishes were honored, and he thereafter worked only under Tapia, and only out of PPC's new location on Hollis Street. On February 19, 1975, Tanksley dispatched Tapia and Accinelli to Seattle to augment an existing PPC crew in servicing a containment system for Sea-Land. The crew eventually came to consist of Tapia, Accinelli, and Otis Hewitt, with Tapia in charge. They were to receive a specified daily wage-$60 in Accinelli's case-plus expense money. By March 14, none of the three had received a single paycheck, and they were almost out of expense money. Consequently, on the morning of March 14, the three decided to take turns calling Tanksley's Emeryville office until they received some kind of satisfaction. Accinelli made the first call in furtherance of this decision, about I p.m. on March 14, after which Tapia called and Accinelli called again. None of these calls succeeded in reaching Tanksley himself. Finally, about 2:30, Hewitt got through to Tanksley. Tanksley told Hewitt that he was working on the problem and would "get back" to the crew; and asked that they manage as best they could in the meantime. This tended to pacify Tapia and Hewitt, but not Accinelli. He shortly called Tanksley again, pressing for details of when money would be coming. Much as he had with Hewitt, Tanksley told Accinelli that he was working on the problem and asked for understanding and patience. Accinelh continued to press; suddenly, Tanksley asked to talk to Tapia. With Accinelh listening on an extension line, Tanksley asked Tapia what was wrong with Accinelli, adding that he had told Hewitt that he was taking care of the problem. Tanksley then commanded Tapia to take Accinelh off the job. That same afternoon, in Emeryville, Tanksley revealed to Lee Wells, PPC's vice president of sales and operations, that he was "upset" over the "numerous telephone calls" from Seattle, elaborating that he was having "problems" with Accinelli. Tanksley directed Wells to go to Seattle, fire Accinelli, and get him on a plane back to Emeryville.5 Wells flew to Seattle that evening, taking with him three paychecks for Accinelli, one which was through March 15-i.e., for days in the pay period not yet concluded. Wells also took expense money for the crew, but no paychecks for Tapia and Hewitt.6 The next morning, March 15, Wells tendered the three checks to Accmelli and told him that he was to return to Emeryville to see Tanksley. Noticing that one of the checks was for a portion of the current pay period, Accinelli asked if he was fired. Wells replied: "Not at this point." Accinelli declined for a time to accept the checks, and announced that he was not going to leave the job in those circumstanc- es. S That Tanksley told Wells on March 14 to fire Accmelb comports with Wells' testimony under direct examination by counsel for the General Counsel . Later, under leading cross-examination by Del's counsel, Wells testified that this was in error and that he first learned that Accmelli was to be fired during a telephone conversation with Tanksley on March 15. Although not employed by PPC at the time of hearing, Wells at various times obviously was attempting to tailor his testimony to best serve PPC's interests For that reason , and because other circumstances suggest the discharge decision to have been made on March 14, Well's repudiation on cross of his earlier testimony is discredited. 6 Wells told Tapia and Hewitt that their checks were being mailed. Tapia Wells at length phoned Tanksley, reporting Accinelh's refusal to cooperate. Tanksley instructed Wells to tell Accinelli he was fired, to which Wells replied that Accinelli would not accept that from him and that Tanksley should tell him. With that, Accinelli was summoned to the phone and Tanksley broke the news. Accinelli asked if he was fired only as concerns Seattle, or for all purposes. Tanksley was noncommittal, saying only that he would talk to Accinelli in Emeryville. Accinelli left Seattle March 17, and met with Tanksley and Wells in Emeryville on March 22. To Accinelli's question if he was "unemployed," Tanksley stated yes; and to his question why, Tanksley referred to the numerous March 14 calls from Seattle about money and said that Accinelli's "was the straw that broke the camel's back." 7 Wells testified that Tanksley and he had decided, the day before Wells flew to Seattle, to reduce the Seattle crew from three to two, but had not decided which employee to remove. He continued that Accinelli was removed pursuant to this decision and because of the problems that had come to a head March 14. There is some rather nebulous testimony that Accinelli had incurred Tanksley's disfavor around March 1 by failing to stand watch on PPC's boat in Seattle as prescribed by Tanksley, the implication being that this was a delayed action contributing factor in the discharge. The boat matter evidently received passing mention during Accinelli's March 22 meeting with Tanksley and Wells. The record establishes that Accinelli was no less zealous in this connection than were Tapia and Hewitt, and that none of them adhered to Tanksley's standards. B. Discussion The discharge: Whatever Tapia's supervisory status, the participation of Accinelli and Hewitt in the decision to take turns calling Tanksley's office over their monetary crisis, and their implementation of that decision, unquestionably were concerted activities protected by Section 7 of the Act. This includes Accinelli's last call, in which he finally talked to Tanksley, even though Tapia and Hewitt by then had been more or less "defused" by Tanksley's assurances to Hewitt a few minutes earlier. Accinelli, in the last call, still was acting consistently with the agreed-upon technique and out ofconcern for the common problem. A fair reading of the evidence leaves no doubt, moreover, that Accinelli's role in this protected activity, and particu- larly the call in which he talked to Tanksley, triggered the discharge. Thus: (a) As an offshoot of that same call, Tanksley expressed to Tapia his annoyance with Accinelli and directed that Tapia take him off the job. testified, contrary to Wells, that Wells delivered paychecks to him and Hewitt as well as Accinelh . Wells' recall on the point seeming more certain than Tapia's, he is credited 7 This is Accmelh's credited version of the conversation . Tanksley did not testify and Wells testified that he could not recall Tanksley 's saying such a thing. But even had Wells expressly denied Accinelli's version , Accinelb would be credited. Although having a stake in the outcome, he impressed me as a conscientious witness capable of accurate recall. Wells' testimony and demeanor, on the other hand, raised doubts of his memory and his commitment to truth. PACIFIC POLLUTION CONTROL, `INC. 297 (b) That same afternoon of March 14, Tanksley revealed to Wells that he was "upset" over the calls from Seattle and that he was having "problems" withAccinellli; anddirected that Wells-go to Seattle and fire him. (c) During Accinelli's March 22 meeting with Tanksley and Wells, Tanksley admitted that the last call from Accinelli "was the straw that broke the camel's back." Del argues that the discharge decision was not made March 14, but rather on March 15, and only after Accinelli's stated refusal to return to Emeryville. This display of "insubordination," the argument goes, coupled with Accinel is earlier derelictions concerning the boat, prompted the discharge. Apart from the factors cited above in support of a contrary conclusion, this argument suffers at least three infirmities.- First, Wells having delivered pay- checks to Accinelli, including one for the partially com- pleted portion of the current pay period, but not to Tapia and Hewitt, Accinelli's fate plainly was decided the day those checks were prepared, March 14-1 day before the so-called insubordination. Second, the business about the boat was, too remote in time and of too slight a concern to Tanksley, when compared with theirritation engendered.by Accinelli on March 14, to have preempted the March 14 activities as the cause of the discharge. Third, Tanksley, the decisionmaker, did not testify. Del's efforts-to characterize his thought processes, being at odds with the weight of objective evidence, are but self-serving speculation, singu- larly lacking in suasive thrust. See Goodyear Tire & Rubber Co. v. N.LRB., 456 F.2d 465,468 (C.A. 5,1972). Accinelli's activities being protected, and the discharge being prompted by them, it follows that the discharge violated Section 8(a)(1). Responsibility for the discharge: Tanksley plainly was an agent of PPC when effecting Accinelli's discharge. Less clear is whether the action also was binding upon Del. The General Counsel contends that it was, on the theory that PPC and Del were joint employers. Del of course argues to the contrary. While the joint-employer label perhaps is less apt than that of alter ego, it is concluded that Del, by whatever designation, must share PPC's responsibility for the dis- charge. Among the factors belying a true transfer of Del from Tanksley to the partners-at least until after the discharge-are these: (a) The idea to create a partnership for the operation of Del originated with Tanksley. (b) The partners, until the October 1974 transaction, were Tanksley's employees. (c) The arrangement was not "finalized" until several months after the discharge. (d) It strains credulity that Tanksley would relinquish so substantial a business as Del, for the first year, without written documentation of the arrangement and in return for the token payment of $1; and permanently from August 1975 in return for only an unsecured note. 8 This is not to intimate that the transaction was undertaken for an improper purpose. 9 In evaluating Cunningham's credibility, it is not of great significance that his testimony, in which he endeavored to depict total day-to-day (e) Operationally, and from the, rank-and-file vantage point, little changed for several months after the October 1974 transaction. (f) Because Tanksley willed it, all rank-and-file employ- ees were treated as Del employees for payroll purposes, and vis-a-vis state and Federal governments, until sometime after the discharge. (g) That aspect of the arrangement according Del "first right of refusal" in the servicing of PPC systems, to be meaningful, implied continuing Tanksley intervention on Del's behalf with PPC customers. (h) Tanksley demonstrated his continued involvement with Del by securing Sea-Land's acceptance of Del as PPC's stand-in in Seattle and Long Beach as of August 1975, and by negotiating with Sea-Land a fee reduction for Del to match that of a PPC subcontractor in New Jersey. (i) Cunningham's testimony that the partnership-was to "provide the labor force necessary for the manufacture of the oil containment system,' which was a PPC function; and his admission that he "may have made recommenda- tions to [Tanksley] concerning people and who he was sending on a given job," betrayed continuing operational integration. (j) The admission, in the joint answer of PPC and Del, that Tanksley'"had a limited right of supervision" of Del activities`; and, in the jurisdictional- questionnaire,- that Tanksley was - Del's "representative best qualified to give further information," were additional indicia of Tanksley's ongoing role in Del's affairs. `- Although none of these factors alone is conclusive of the issue, their totality raises a considerable inference that the transaction between Tanksley and the partners was more shadow than substance, initiated by Tanksley to gain some advantage not apparent on the record.8 Even in their totality, these factors perhaps could be explained in a manner consonant with an arm's length deal. Cunningham, however, failed to accomplish this, instead leaving the impression, by both the content of his testimony and his demeanor, that he was distorting and suppressing the real nature of the arrangement-an impression in no way abated by Tanksley's studied avoidance of the proceeding." In sum, while the various cases dealing with alter ego and kindred issues present widely disparate and unique factual situations, it is felt that the present facts align more nearly with those in Transcontinental Theaters, Inc., et al., d/b/a Cynatron Enterprises, 216 NLRB 1110 (1975), in which the Board declined to give substantive credence to a transac- tion of the sort presently involved, than with those in such cases as Davis Van & Storage, 218 NLRB 1339 (1975), and El Sol Mexican Foods, Inc., et al., d/b/a La Paloma Foods Co., 200 NLRB 804 (1972), in which an opposite result obtained. CONCLUSIONS OF LAW 1. By discharging Accinelli, as found herein, PPC and Del jointly and severally engaged in an unfair labor practice within Section 8(a)(1) of the Act. autonomy as between the partners d/b/a Del and Tanksley, was unrefuted. No one with a neutral or pro-Accinelli perspective was privy to their day-to- day dealings. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. This unfair labor practice affects commerce within Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERto Respondents, Pacific Pollution Control, Inc., and Cun- ningham, Stuart & Wheeler, d/b/a Del Chemical & Supply Company, their officers, agents, successors, and assigns, jointly and severally, shall: 1. Cease and desist from discharging employees for engaging in protected, concerted activities. 2. Take the following affirmative action: (a) Offer to Thomas F. Accinelli immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings and other benefits suffered because of his unlawful discharge. Back- pay shall be computed in accordance with F. W. Woolworth 10 All outstanding motions inconsistent with this recommended Order hereby are denied In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Preserve and, make available, upon request, to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at their places of business in Emeryville, California, the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respon- dents' authorized representative, shall be posted by Res- pondents Immediately upon receipt thereof, and be main- tained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in wasting, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. 11 In the event the Board's Order is enforced by a Judgment of the 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 "