Air-Vac Industries, Inc.

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Air-Vac Industries, Inc., Leeward Constructors, Inc., "All drivers of Respondents employed at their Air-Vac Environmental Limited and Local Smithtown, New York location; excluding all Union No. 282, affiliated with International other employees, guards and supervisors as de- Brotherhood of Teamsters, Chauffeurs, Ware- fined in the Act." housemen and Helpers of America. Case 29- CA-7887 2. Substitute the following for paragraph l(e): "(e) In any like or related manner interfering with, restraining, or coercing employees in the ex- DECISION AND ORDER ercise of the rights guaranteed them under Section 7 of the Act." BY CHAIRMAN VAN DE WATER AND 3. Substitute the attached notice for that of the MEMBERS FANNING AND HUNTER Administrative Law Judge. On June 29, 1981, Administrative Law Judge Howard Edelman issued the attached Decision in APPENDIX this proceeding. Thereafter, Respondents filed ex- NOTICE To EMPLOYEES ceptions and a supporting brief. POSTED BY ORDER OF THE Pursuant to the provisions of Section 3(b) of the NATIONAL LABOR RELATIONS BOARD National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- An Agency of the United States Government thority in this proceeding to a three-member panel. The Board has considered the record and the at- WE WILL NOT refuse to bargain in good tached Decision in light of the exceptions and brief faith with Local Union No. 282, affiliated with and has decided to affirm the rulings, findings,' and International Brotherhood of Teamsters, conclusions of the Administrative Law Judge and Chauffeurs, Warehousemen and Helpers of to adopt his recommended Order, as modified America, herein called the Union, as the repre- herein.2 sentative of the employees in the unit de- scribed herein, by refusing to sign the supple- mental agreement submitted to us and agreed Pursuant to Section 10(c) of the National Labor to on or about October 23, 1979. Relations Act, as amended, the National Labor Re- WE WILL NOT refuse to implement the terms lations Board adopts as its Order the recommended of the supplemental agreement described Order of the Administrative Law Judge, as modi- above and effective as of January 1, 1980. fled below, and hereby orders that the Respond- WE WILL NOT bargain directly with employ- ents, Air-Vac Industries, Inc., Leeward Construc- ees, promising employees hospitalization bene- tors, Inc., and Air-Vac Environmental Limited, fits and other benefits or improvements in their Smithtown, New York, their officers, agents, suc- working conditions or terms of employment. cessors, and assigns, shall take the action set forth WE WILL NOT threaten our employees with in the said recommended Order, as so modified: the partial closure of our operations and lay- I. Add the following at the end of the last sen- offs. tence to paragraph l(a): WE WILL NOT in any like or related manner "The appropriate bargaining unit is: interfere with, restrain, or coerce employees in Respondents have excepted to certain credibility findings made by the exercise of the rights guaranteed them the Administrative Law Judge. It is the Board's established policy not to under Section 7 of the Act. overrule an administrative law judge's resolutions with respect to credi- WE WILL recognize the Union as the exclu- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, sive bargaining representative of our drivers Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have with respect to rates of pay, wages, hours, and carefully examined the record and find no basis for reversing his findings.ther terms and conditions of employment. 2 In view of the nature and extent of Respondents' violations and in other terms and conditions of employment. order to more fully effectuate the policies of the Act, we have, sua The appropriate bargaining unit is: sponte, determined that the Administrative Law Judge's recommended broad cease-and-desist Order is unwarranted in this case. Accordingly, All drivers of the Employers employed at we will modify the Administrative Law Judge's recommended Order and our Smithtown, New York location; exclud- notice to include the narrow injunctive language. See, generally, Hick- mort Foods, Inc., 242 NLRB 1357 (1979). ing all other employees, guards and supervi- The Administrative Law Judge inadvertently failed to include the de- sors as defined in the Act. scription of the unit in his recommended Order and notice. We have cor- rected them accordingly. We also delete the Administrative Law Judge's WE WILL, upon request by the Union, ex- reference to F W. Woolworth Company, 90 NLRB 289 (1950), in his rec- ommended remedy. See, e.g., Ogle Protection Service. Inc., 183 NLRB 682 ecute the supplemental agreement agreed upon (1970); Paramount Plastic Fabricators, Inc., 190 NLRB 170 (1971). on or about October 23, 1979, and give retro- 259 NLRB No. 51 AIR-VAC INDUSTRIES, INC. 337 active effect to all the provisions in said sup- duct of its business performed services valued in excess plemental agreement as of January 1, 1980. of S50,000 of which services were performed in New WE WILL jointly and severally make whole York State for customers who during the same period the employees in the unit described above, purchased and caused to be transported to their places of with interest, for our failure to implement the business goods and materials valued in excess of S50,000, supplemental agreement we agreed to. which were delivered to their place of business in inter- state commerce directly from States of the United States other than the State in which they are located. Respondent Leeward is a New York corporation WARD CONSTRUCTORS, INC., AIR- which at all times material herein has maintained its prin- VAC ENVIRONMENTAL LIMITED cipal office and place of business in Smithtown, New DECISION York, operating out of the same facility as Respondent Air-Vac. Respondent Leeward is engaged in the mainte- STATEMENT OF THE CASE nance and rehabilitation of drain and sewer systems for municipalities located in Nassau and Suffolk Counties. HOWARD EDELMAN, Administrative Law Judge: This During the past year, which period is representative of case was heard before me on December 8, 1980, in its annual operations generally, Respondent Leeward, in Brooklyn, New York. The complaint in this case issued the course and conduct of its business, performed serv- on May 30, 1980, based on an unfair labor practice ices for such municipalities valued in excess of $50,000, charge filed on March 26, 1980, by Local Union No. which services were performed within New York State 282, affiliated with International Brotherhood of Team- for municipalities which during the same period pur- sters, Chauffeurs, Warehousemen and Helpers of Amer- chased and caused to be transported to their places of ica, herein called the Union, which alleged that Air-Vac business goods and materials valued in excess of $50,000 Industries, Inc., and Leeward Constructors Inc., a single which were delivered to their places of business in inter- employer, herein respectively called Respondent Air-Vac state commerce directly from States of the United States and Respondent Leeward and collectively called Re- other than the State in which they are located. spondent, violated Section 8(a)(1) and (5) of the National Respondents Air-Vac and Leeward admit, and I find, Labor Relations Act, as amended, herein called the Act. The complaint alleges, inter alia, that Respondents Air- terial herein employers engaged in commerce within the terial herein employers engaged in commerce within the Vac, Leeward, and Air-Vac Environmental Limited, herein called Respondent Environmental, violated Sec- meaning of Section 2(2), (6), and (7) of the Act. herein called Respondent Environmental, violated Sec- tion 8(a)(l) and (5) of the Act by refusing to sign and Respondents Air-Vac and Leeward also admit and I execute a collective-bargaining agreement with the find that, at all times material herein, they have been af- execute a collective-bargaining agreement with the filiated businesses, with common officers, ownership, di- Union.' The complaint also alleges that, following refusal filiated businesses, with common officers, ownership, di- by Respondents to execute the collective-bargaining rectors, and operators, and constitute a single integrated agreement negotiated with the Union, Respondents bar- business enterprise, the said directors and operators for- gained directly and individually with its employees, of- mulating and administrating a common labor policy af- fered and promised its employees hospitalization benefits, fecting the employees of said Respondents. and threatened its employees with a partial closing of its I further find that Respondent Environmental is and business and layoffs, in order to discourage their assist- has been at all times material herein an employer en- ance and support for the Union. gaged in commerce within the meaning of Section 2(2), The parties to this proceeding did not file briefs. Upon (6), and (7) of the Act. 2 consideration of the entire record, and my observation of the demeanor of the witnesses, I make the following: II. THE LABOR ORGANIZATION INVOLVED Respondents admit and I find that the Union is now, and has been at all times material herein, a labor organi- 1. JURISDICTION zation within the meaning of Section 2(5) of the Act. Respondent Air-Vac is a New York corporation which IIIll. THE FACTS at all times material herein has maintained its principal office and place of business in Smithtown, New York. Respondent Leeward commenced its operation in Respondent Air-Vac is engaged in the construction, 1970. Respondent Air-Vac commenced its operation in maintenance, and rehabilitation of drain and sewer sys- 1971. At all times herein, Respondents Leeward and Air- tems for private corporations. During the past year Vac were owned by Edward Jost and his wife, who which period is representative of its annual operations generally, Respondent Air-Vac in the course and con- 2 Respondent Environmental did not admit or deny that it was an em- ployer engaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the Act. Nor are there any jurisdictional facts contained in the record During the course of the hearing herein, the complaint was amended which establish independently that Respondent Environmental is an em- to include Respondent Environmental as a single integrated business en- ployer engaged in commerce within the meaning of the Act. This finding terprise with Respondents Air-Vac and Leeward, having been affiliated is based upon my conclusion described below that Respondents Air-Vac, businesses with common officers, ownership, directors, and operators Leeward, and Environmental are a single employer and that Respondent whose directors and operators formulate and administer common labor Environmental is an oilter ego of Respondent Leeward. B.JS. Drugs, 243 policy. NLRB 830 (1979) 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were also the sole officers and directors of both the cor- other benefits for those employees working on Respond- porations. Additionally, Respondents Leeward and Air- ent Leeward's jobs. These employees were not perform- Vac have had at all times since 1971 common supervi- ing sufficient work under the Union's contract with Re- sory personnel and employees and have operated out of spondent Air-Vac to qualify for the union benefits pro- the same facility. Prior to 1977, Respondents Air-Vac vided in such agreement. When Jost refused, the Union and Leeward performed maintenance and rehabilitation commenced a strike. The strike concluded when Jost work on drain and sewer systems for municipalities lo- agreed to meet with union representatives for the pur- cated principally in the counties of Nassau and Suffolk pose of negotiating a supplemental agreement on behalf Sometime in or around November 1977, Respondent of the employees performing work for Respondent Lee- Air-Vac commenced performing drain and sewer system ward. construction and maintenance work for private compa- Sometime during the latter part of October 1979, Jost nies in the heavy construction industry located primarily and his attorney, Leonard Kimmell, met at the Union's in the counties of Nassau and Suffolk. At this time, in offices with Union Representative Andrew Boggia, order to be able to perform such work for private com- Union Attorney Brian McCarthy, and Union Steward panies and to avoid labor disputes, Respondent Air-Vac Thomas Sallie. During this meeting, Jost explained that signed a collective-bargaining agreement with the Union he could not afford to pay the rates and benefits pro- covering its drivers who perform such construction and vided for in Respondent Air-Vac's agreement on munici- maintenance work.3 The collective-bargaining agreement pal jobs performed by Respondent Leeward because the herein expired on June 30, 1978. Thereafter, Respondent municipalities paid lower contract rates than the private Air-Vac entered into a subsequent collective-bargaining corporations. Boggia told Jost that the Union would do agreement with the Union which was effective from July everything it possibly could to influence the municipal- 1, 1978, through June 30, 1982. ities to raise their contract rates. During this meeting, all At the time Respondent Air-Vac initially entered into terms of a supplemental agreement between Respondent its collective-bargaining agreement with the Union, it Leeward and the Union were agreed upon. After reach- was orally agreed by union representatives and Edward ing an agreement, Boggia reassured Jost that he would Jost that all heavy construction work would be per- contact the various town supervisors and exert union in- formed through Respondent Air-Vac and that such work fluence in order to convince the municipalities to raise would be covered by the Union's contract. It was further the contract rate paid to Respondent Leeward. Jost re- agreed that Respondent Leeward would continue to op- plied that, if the rates were not increased, there was no erate as a nonunion corporation performing municipal way he could pay the new contract rate. Boggia re- work exclusively. sponded that he could not help this. From November 1977 through July 1980, Respondents The agreed-upon terms were incorporated into a writ- Air-Vac and Leeward have employed five to seven driv- ten "supplemental agreement" drawn up and submitted ers in a single common unit. Following the execution of to the Union for employee ratification and signature by the union contract, a seniority list was prepared by Re- Respondents Air-Vac and Leeward (by its attorney, spondent Air-Vac. Those drivers having the highest se- Kimmell). The supplemental agreement submitted to the niority were awarded the more lucrative Air-Vac work. Union provided in part as follows Since such work was covered by the Union's contract, the drivers received a higher rate of pay than those per- AGREEMENT entered into between Air-Vac In- forming similar work for Respondent Leeward. Addi- dustries Inc. and its subsidiary Leeward Construc- tionally, drivers performing work for Respondent Air- tors Inc., 137 Oakside Drive, Smithtown, New Vac received the contract benefits which included pen- York (herein called the Company) and Building sion and hospitalization benefits. The lower seniority Material Local Union No. 282, affiliated with the drivers performing work for Respondent Leeward were International Brotherhood of Teamsters, Chauf- not covered by the Union's contract and received no feurs, Warehousemen and Helpers of America, 1975 hospitalization or pension benefits. Linden Boulevard, Elmont, New York (herein At times, depending on the volume of work available, called the Union). all Respondents' employees might be performing work WHEREAS, Air-Vac Industries Inc. and the Union for Respondent Air-Vac. At other times the entire com- entered into a collective bargaining agreement ef- plement of employees might be performing work for Re- fective July 1, 1978 covering the terms and condi- spondent Leeward. Generally, however, the two to three tions of employment of its members employed by employees with the lowest seniority were assigned to Air-Vac, and work jobs for municipalities performed by Respondent WHEREAS, the employees of Air-Vac have from Leeward. time to time been assigned to work for Leeward on Sometime in September 1979 the employees of Re- contracts with various public municipalities at spondents Air-Vac and Leeward, including Union Shop which time they did not receive wages and fringe Steward Thomas Sallie, met with Edward Jost. The em- benefits in accordance with the contract between ployees demanded that Jost provide hospitalization and Air-Vac and the Union, and WHEREAS, such assignments of employees to ' In November 1977, Respondent Air-Vac became a signatory to the Leeward to perform public work was done in good heavy construction excavating collective-bargaining agreement between Nassau-Suffolk Constructors Association Inc.. an employer association, faith belief that the bargaining agreement between and the Union. Air-Vac and the Union was not applicable to such AIR-VAC INDUSTRIES, INC. 339 employees when performing public work for Lee- Sometime in January or February 1980, Boggia tele- ward, and phoned Respondents and spoke to Jost's wife. He asked WHEREAS, it has been established that the con- Mrs. Jost when the supplemental agreement would be tract rates paid to Leeward by public municipalities signed and she indicated that her husband was out of are not presently sufficient to enable the Company town and she did not know whether the agreement had (Respondent Leeward) to grant employees all the been signed. About I month later, on or about the end of wages and other benefits under the bargaining February, when the agreement had not been submitted agreement with the Union, and to the Union, Boggia telephoned Kimmell and asked him WHEREAS, the parties agree that the continued when the agreement would be signed. Kimmell stated operation of the Company (Respondent Leeward) is that he had given the agreement to Jost and indicated he in the best interests of the employees, did not know when and if Jost had signed the agreement. Now THEREFORE, it is hereby agreed as follows: Boggia informed Kimmell that he intended to file 1. The collective bargaining agreement effectiv charges with the National Labor Relations Board. 1. The collective bargaining agreement effective July 1, 1978 between Air-Vac and the Union shall Jost admits that he did not sign the supplemental agreement submitted to him by the Union, nor did he im- cover at all times, all of the Company's (Respond- plement the terms and conditions set forth therein. Jost ent Leeward's) employees including such times as contends that the agreement was orally conditioned upon they are employed by the Company performing the Union being able to obtain a higher contract rate work for public municipalities except as set forth from the municipalities for work performed for them. In below. this respect, Jost testified, "My feeling was that if we had gotten the increase [from the municipalities], we cer- Thereafter, paragraphs 2, 3, and 4 of the supplemental agreement provided for wage rates which, although tainly would have went [sic] along with the supplemental sgreement." below that provided in Respondent Air-Vac's agreement, greement. J were more than presently in effect for work performed Sometime in January 1980, Jost assembled all employ- for Respondent Leeward, and for contributions by Re- sulemental areement bthe was not going to sign the spondent Leeward into the Union's pension, welfare, and and the Union. He explained to the employees that he and the Union. He explained to the employees that he annuity funds for those employees performing municipal would not be able to go along with the supplemental work for Respondent Leeward. The concluding para- agreement because he had been unable to get an increase graph 6 of the supplemental agreement provided as fol- in his contract rate from the municipalities. He informed lows: the employees that, if he had to pay the contract benefits 6. In consideration for the undertakings by the and wage increases provided in the supplemental agree- Company (Respondent Leeward) set forth above, ment, he would have to close his doors and give up the the Union and its members employed by the Com- municipal work and that employees would lose their pany agreed to make no claim for unpaid wages or jobs. He also told the employees that he would try to unpaid trust fund contributions under the bargaining provide them with hospital benefits in lieu of the benefits agreement that may have arisen prior to the date of provided for in the supplemental agreement provided he this agreement. could obtain such benefits at a lower rate than that set forth in the supplemental agreement. He asked the men There is no language contained in the supplemental to think about this and to get back to him. agreement as drawn up by Respondent Leeward's attor- Sometime later, employees informed Jost that they ney, which would indicate directly or impliedly that the would rather have the union contract but would not supplemental agreement was in any way conditioned close the door to his proposal entirely. upon the municipalities raising the contract rate for work At all times prior to January 1980, all employees who performed by Respondent Leeward on behalf of such performed work for municipalities were on Respondent municipalities. Leeward's payroll and received Respondent Leeward's Upon receiving the supplemental agreement prepared paychecks. After January 1980, the employees who per- by Respondent Leeward's attorney, Kimmell, Boggia formed work for municipalities were transferred to the turned over the agreement to Shop Steward Sallie to payroll of Respondent Environmental. obtain ratification by the employees. Shortly thereafter Respondent Environmental was formed in 1979. It is Sallie met with all employees and described the terms of owned solely by Jost and his wife who are the sole offi- the supplemental agreement to them. The employees cers and directors as well. Respondent Environmental thereupon orally ratified the agreement. Sallie returned operates out of the same facility as Respondents Air-Vac the agreement to Boggia informing him of the employee and Leeward and employs the same supervisory person- ratifications. Boggia thereupon signed the supplemental nel. Prior to January 1980, Respondent Environmental agreement and submitted it to his attorney, McCarthy, was primarily engaged in the cleaning of oil spills on who forwarded the agreement to Attorney Kimmell.4 ' highways, stack cleaning, and the wholesale sale of var- ious chemical cleaners and degreasers to municipalities 'The record does not disclose the date ratification took place. Nor and private corporations used for the purpose of cleaning does the record disclose the date when Union Attorney McCarthy for- sewers and drains. Prior to January 1980, Respondent warded the supplemental agreement to Respondent. Environmental employed on its payroll a single outside 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD salesman who was engaged in the selling of the afore- In view of the admissions by Respondents Air-Vac mentioned chemical cleaners and degreasers to munici- and Leeward as to single employer status and in view of palities and private corporations. the evidence described above, and the above-cited au- Subsequent to January 1980, all those employees classi- thorities, I conclude that Respondents Air-Vac, Lee- fled as drivers who were employed by Respondent Lee- ward, and Environmental constitute a single integrated ward, performing work for municipalities, were trans- enterprise, and a single employer within the meaning of ferred to Respondent Environmental's payroll. Thereaf- the Act. ter, these employees received Respondent Environmental checks. These employees working for Respondent Envi- B. The Appropriate Unit ronmental, excluding the outside salesman, continued to Although I have concluded that Respondents Air-Vac, perform the same work under the same supervision, Leeward, and Environmental constitute a single employ- using the same equipment as they had been performing er, such conclusion does not necessarily support a find- when working for Respondent Leeward.' ing that a single employerwide unit is appropriate for bargaining. In this connection, the Supreme Court, fol- lowing the Board's theory in a line of prior Board cases, A. The Single Employer Issue held in South Prairie Construction Co. v. Local 627, Inter- national Union of Operating Engineers, AFL-CIO, et al., A critical issue presented in this case is whether Re- 425 U.S. 800, 805 (1976), that a determination that two spondents Air-Vac, Leeward, and Environmental consti- affiliated firms constitute a single employer "does not tute a single employer within the meaning of the Act. necessarily establish that an employerwide unit is appro- The Supreme Court held in Radio & Television Broad- priate, as the factors which are relevant in identifying of cast Technicians, Local Union 1264, International Brother- the breadth of an employer's operation are not conclu- hood of Electrical Workers, AFL-CIO, et al. v. Broadcast sively determinative of the scope of an appropriate unit." Service of Mobile, Inc., 380 U.S. 255, 256 (1965), that in The Supreme Court remanded to the Board for determi- determining whether enterprises constitute a single em- nation of the question of whether the employees em- ployer: ployed by Peter Kiewit Sons' Co. and South Prairie Construction Co. constituted an appropriate unit within The controlling criteria set out and elaborated in the meaning of Section 9 of the Act. Board decisions are interrelation of operations, On remand the Board in Peter Kiewit Sons' Co. and common management, centralized control of labor South Prairie Construction Co., 231 NLRB 76, 77 (1977), relations and common ownership. held that in determining the appropriate bargaining unit, the following factors were particularly relevant: "the The Board in Blumenfeld Theatres Circuit, a partnership, bargaining history; the functional integration of oper- et al., 240 NLRB 206, 214, 215 (1979), held that a "single ations; the differences in the types of work and skills of employer" status, for the purposes of the National Labor employees; the extent of centralization of management Relations Act, depends upon all the circumstances of the and supervision, particularly in regard to labor relations, case [and] that not all of the 'controlling criteria' speci- hiring, discipline, and control of day-to-day operations; fied by the Supreme Court [in Radio & Television Broad- and the extent of interchange and contact between the cast Technicians, supra] need be present." groups of employees." Turning our consideration to the instant case, it is ad- An examination of the facts of the instant case estab- mitted by Respondents Air-Vac and Leeward that these lish that Jost and his wife are in complete charge of all two entities are affiliated businesses with common offi- three Companies and orders are passed from them to a cers, ownership, directors, and operators and constitute a single supervisor utilized by all three Companies. Addi- single business enterprise, the said directors and opera- tionally, there is but a single complement of employees. tors formulating and administering a common labor Prior to January-February 1980, this single complement policy. However, it is denied that Respondent Environ- of employees performed work either for Respondent Air- mental is a single employer along with Respondents Air- Vac or Respondent Leeward. The type of work per- Vac and Leeward. In this connection, the evidence es- formed by the employees comprising this single comple- tablishes that all three Respondent Companies are owned ment was essentially the same work except that Re- by Jost and his wife. Moreover, Jost and his wife are the spondent Air-Vac employees performed work for private sole directors and officers of all three corporations, for- companies whereas Respondent Leeward's employees mulating and administering a common labor policy. Ad- performed work for municipalities. Employees were se- ditionally, Respondents operate out of the same facility lected to perform the more desirable and higher paid Re- using the same equipment. The employees of all three spondent Air-Vac work, based on a single seniority list. Companies are supervised by a single supervisor. Addi- The employees having the greatest seniority received as- tionally, and most significantly, Respondents utilize a signments for Respondent Air-Vac work while those single complement of employees, within the same complement with lesser seniority re- ceived assignments for Respondent Leeward work. At ' Sometime after March 2, 1980, Respondents Air-Vac, Leeward, and certain time depending upon work availability, the Environmental moved from their 137 Oak Side Drive, Smithtown, loca- certain times, depending upon work availability, the tion to 45 Terry Road, Smithtown. To date, all operations operate from entire complement of employees might be performing this facility. work for Respondent Air-Vac. On other occasions, AIR-VAC INDUSTRIES, INC. 341 where no Respondent Air-Vac work was available, the that, at all times material herein, the Union represented entire complement of employees might perform work for such complement or unit of employees which I have Respondent Leeward. Most of the time those employees found to be an appropriate unit for bargaining. with greater seniority performed work for Respondent Such conclusion is further established by an examina- Air-Vac while those employees on the lower end of the tion of the language of the supplemental agreement seniority list performed work for Respondent Leeward. drawn up by Respondents' counsel contained in the A single supervisor supervised the work of all employees "whereas" provisions of the agreement, where it is set whether working for Respondent Air-Vac or Respond- forth by way of a recitation of prior bargaining history: ent Leeward. Prior to the January-February 1980 period, Respond- [T]he employees of [Respondent] Air-Vac have ent Environmental operated essentially as a sales corpo- from time to time been assigned to work for [Re- ration, employing a single outside salesman. At some spondent] Leeward on contracts with various public point in time during the January-February 1980 period, municipalities at which time they did not receive and at all times thereafter, following the negotiation of wages and fringe benefits in accordance with the the supplemental agreement herein, all employees per- contract between [Respondent] Air-Vac and the forming work for municipalities and on the payroll of Union, and WHEREAS, such assignments of em- Respondent Leeward receiving Respondent Leeward's ployees to [Respondent] Leeward to perform this checks were transferred to the payroll of Respondent public work was done in a good faith belief that the Environmental and received Respondent Environmental bargaining agreement between [Respondent] Air- checks. The effect of this transfer was that the employ- Vac and the Union was not applicable to such em- ees performing work previously performed by Respond- ployees when performing public work for [Re- ent Leeward were now performing the same work for spondent] Leeward. Respondent Environmental. Except for the change of payroll all else remained the same. Thus, the same em- Thus, as among themselves, the Union and Respondents ployees performed the same work under the same super- recognized that, while the Union at all times material vision. The facts establish that Respondent Leeward and herein represented the single complement of employees Respondent Environmental had the same management, employed by all Respondents herein, the contract bene- had the same business purpose and operation, utilized the fits were applicable to only the employees when per- same equipment, serviced the same customers, employed forming Respondent Air-Vac work. The effect of the the same supervision, and utilized the same single com- supplemental agreement is not to expand the scope of plement of employees. The Board had held that, in these employee coverage of the bargaining unit, but rather to circumstances, an alter ego relationship between two such increase the type of work covered by the agreement. enterprises exists. See Young's Metal Fabricators and Roofing, Inc. and Young's Sheet Metal and Roofing Inc., D. The Supplemental Agreement 241 NLRB 978 (1979); Crawford Door Sales Company. The next issue presented is whether the Union and Re- Inc., and Cordes Door Company, Inc., 226 NLRB 1144 spondents reached an agreement on the terms of the sup- (1976). plemental agreement involved in this case. Respondents I therefore conclude that, in addition to Respondents take the position that the agreement reached was condi- Air-Vac, Leeward, and Environmental constituting a tioned upon Respondents' receiving a higher contract single employer, Respondent Environmental was an alter rate from the municipalities for the work thcy per- ego of Respondent Leeward. I further conclude that, formed. Respondents' contention is based on Jost's testi- based on all the factors recited above, including common mony that he understood the promise made by Boggia ownership, officers, and directors, common supervision, during the negotiation on October 23 that the Union a common facility, single complement of employees, the would use its influence in obtaining from the municipal- similar nature of the work involved, and the utilization ities such higher contract rate to be an implied agree- of the same equipment, that the single unit of employees ment by the Union that the supplemental agreement was which I find to be commonly employed by Respondents conditioned on Respondents' obtaining such higher rate Air-Vac, Leeward, and Environmental constitutes an ap- from the municipalities. However, this contention is not propriate unit for bargaining within the meaning of the supported by the evidence. There is no evidence that Act. Boggia or any other union representative stated expressly at any time during the negotiations that the supplemental C. Representative Status of the Union agreement negotiated was conditioned upon Respond- The facts establish that the Union has, at all times ma- ents' obtaining a higher contract rate from the municipal- terial herein, represented the employees of Respondent ities. Boggia affirmatively denies that such statement was Air-Vac. This is established by the existing collective- made during the negotiations or at any other time. More- bargaining agreement between Respondent Air-Vac and over, an inspection of the terms of the supplemental the Union. In view of my conclusions, described above, agreement, including the preliminary language, fails to that Respondents Air-Vac, Leeward, and Environmental include anywhere within the four corners of the agree- constitute a single employer and that Respondent Envi- ment any language, either directly or by implication, in- ronmental is an alter ego of Respondent Leeward, and in dicating that such agreement was conditional on Re- view of my further conclusion that Respondents herein spondent Leeward's receiving a greater rate from mu- employ the same complement of employees, I conclude nicipalities. Clearly, had the agreement been so condi- 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tioned, such condition would have been inserted within formed them that he was not going to sign the supple- the agreement itself. That this is true is established by the mental agreement between Respondent Leeward and the inclusion in the preliminary language reciting the reason Union. At this time he explained to the employees that if for the differences in the lower rates and benefit cover- he had to pay the benefits provided in the supplemental age to be applied to employees performing work for Re- agreement he would have to close his doors and give up spondent Leeward where it is set forth as follows: the municipal work and that employees would lose their jobs. During this meeting he told the employees that he WHEREAS, it has been established that the con- would try to provide them with hospital benefits in lieu tract rates paid to [Respondent] Leeward by public of the benefits provided in the supplemental agreement municipalities are not presently sufficient to enable provided he could obtain such benefits at a lower rate the company to grant employees all the wages and than provided in the supplemental agreement. It is also other benefits under the bargaining agreement with undisputed that such meeting took place without the the Union. knowledge, consultation, consent, or presence of union In view of the meticulous preliminary language pre- representatives. The Board has long held that dealing ceding the actual terms of the supplemental agreement, with employees directly at a time when there is a recog- as illustrated by the above example, I conclude that, had nized collective-bargaining representative and promising such conditional agreement existed, it is inconceivable or discussing terms and conditions not sanctioned by a that such condition would not have been inserted in the collective-bargaining agreement and outside the presence agreement. In this regard, the agreement was drawn up of any union representative constitutes direct dealing by Respondents' counsel. I therefore conclude that the with employees and interference with their Section 7 parties did not condition the supplemental agreement on rights. Accordingly, I conclude that Jost's promise that Respondent Leeward's receiving higher contract rates he would try to provide employees with hospital benefits from the municipalities. in lieu of those benefits provided in the supplemental Moreover, under the parole evidence rule, a prior con- agreement constituted direct dealing with employees and temporaneous oral agreement may not alter the terms of that, by engaging in such activity, Respondents thereby a written contract. The Board has consistently applied violated Section 8(a)(l) of the Act. Mountaineer Excavat- this rule in refusing to permit a party to a collective-bar- ing Co., Inc., 241 NLRB 414 (1979); John M. Lastooka, gaining agreement to vary the terms thereof by proving trading as Ram Construction Company, 228 NLRB 769 a contemporaneous or prior oral agreement or undertak- (1977). I also find Jost's statement to the employees at ing. Gollin Block and Supply Company, 243 NLRB 350 this meeting, that if he had to pay the contract benefits (1979), and cases cited therein. and wage increases provided in the supplemental agree- Neither can it be argued by Respondents that its finan- ment, he would have to close his doors, give up the mu- cial inability to implement the terms of the supplemental nicipal work, and employees would lose their jobs, to be agreement because of the failure to obtain from the mu- an unlawful threat of partial closing with an implied nicipalities an increased contract rate excuses the unilat- threat of loss of jobs, violative of Section 8(a)(1) of the eral repudiation of the supplemental agreement. Nassau Act. Henry A. Young d/b/a Columbia Engineers Interna- County Health Facilities Association, Inc. and its Members; tional, 249 NLRB 1023 (1980). et al., 227 NLRB 1680, 1684 (1977). There is no dispute but that the parties reached agree- CONCLUSIONS OF LAW ment on all substantive terms and conditions set forth in the supplemental agreement. This is established by the 1. Respondents Air-Vac, Leeward, and Environmental testimony of Boggia and Jost and reflected by the sup- are, individually, employers engaged in commerce within plemental agreement drawn up by Respondents' attorney the meaning of Section 2(2), (6), and (7) of the Act. and submitted to the Union. 2. Respondents Air-Vac, Leeward, and Environmental In view of my conclusion that there was no under- constitute a single employer within the meaning of the standing or condition, either oral or written, whereby Act. the supplemental agreement herein was conditioned on 3. Respondent Environmental is an alter ego of Re- Respondent Leeward's obtaining a higher rate from the spondent Leeward. municipalities, and in view of my conclusion that Re- 4. The Union is a labor organization within the mean- spondents and the Union agreed upon all substantive ing of Section 2(5) of the Act. terms and conditions set forth in the supplemental agree- 5. The Union is the exclusive collective-bargaining ment, I find that Respondents, by failing and refusing to representative of all drivers employed by Respondents execute this supplemental agreement and to implement its Air-Vac, Leeward, and Environmental. terms, has violated Section 8(a)(1) and (5) of the Act. H. 6. At all times material herein, since 1976, the Union J. Heinz Company v. N.L.R.B., 311 U.S. 514 (1941); has had a collective-bargaining agreement with Respond- Gollin Block and Supply Company, supra. ent Air-Vac covering the employees in the bargaining unit described above in paragraph 5 of the Conclusions E. The 8(a)(1) Violations of Law. The undisputed evidence establishes that Respondents 7. On or about October 23, 1979, the Union and Re- bargained directly and individually with its employees in spondents Air-Vac, Leeward, and Environmental January 1980 when Jost assembled all employees and in- reached an agreement as to all terms of a supplemental AIR-VAC INDUSTRIES, INC. 343 collective-bargaining agreement covering the employees (a) Refusing to bargain in good faith with Local Union in the bargaining unit described above in paragraph 5. No. 282, affiliated with International Brotherhood of 8. Respondents Air-Vac, Leeward, and Environmental Teamsters, Chauffeurs, Warehousemen and Helpers of by refusing to sign the agreement described above in America, herein called the Union, as the representative paragraph 7 and by refusing to implement the terms of of its employees in the unit described herein by refusing such agreement violated Section 8(a)(1) and (5) of the to sign the supplemental agreement submitted to them Act. and agreed to on or about October 23, 1979. 9. Respondents Air-Vac, Leeward, and Environmental (b) Refusing to implement the terms of the supplemen- by bargaining directly and individually with the employ- tal agreement described above and effective as of Janu- ees described above in paragraph 5 and by offering and ary 1, 1980. promising such employees hospitalization benefits and (c) Bargaining directly with employees and promising other benefits and improvements violated Section 8(a)(l). employees hospitalization benefits and other benefits or 10. Respondents Air-Vac, Leeward, and Environmen- improvements in their working conditions or terms of tal by threatening its employees with partial closure of employment. its business and impliedly threatening its employees with (d) Threatening its employees with layoffs and the par- layoff violated Section 8(a)(1) of the Act. tial closure of its operations. II. The aforesaid unfair labor practices have a close, (e) In any other manner interfering with, restraining, intimate, and substantial effect on the free flow of com- or coercing employees in the exercise of the rights guar- merce within the meaning of Section 2(2), (6), and (7) of anteed them in Section 7 of the Act. the Act. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the National THE REMEDY Labor Relations Act, as amended: (a) Recognize the Union as the exclusive bargaining Having found that Respondents Air-Vac, Leeward, representative of the employees in the unit described and Environmental have engaged in unfair labor prac- above with respect to rates of pay, wages, hours, and tices in violation of Section 8(a)(1) and (5) of the Act, I other terms and conditions of employment. shall recommend that it be ordered to cease and desist (b) Upon request by the Union, execute the supple- therefrom and take the following affirmative action de- mental agreement agreed upon on or about October 23, signed to effectuate the policies of the Act. My recom- 1979, and give retroactive effect to all of the provisions mended Order will require Respondents Air-Vac, Lee- in said supplemental agreement as of January 1, 1980. ward, and Environmental to execute the supplemental (c) Jointly and severally, make whole the employees in agreement submitted to them described hereinabove, and the unit described above, in the manner and to the extent to apply all the provisions of said supplemental agree- set forth and prescribed in "The Remedy" section of this ment retroactively to January 1, 1980, and to further Decision. make whole unit employees as appropriate for failure to (d) Preserve and, upon request, make available to the do so in the manner described by the Board in F. W. Board or its agents, for examination and copying, all Woolworth Company, 90 NLRB 289 (1950), and with in- payroll records, social security payment records, time- terest thereon computed in the manner and amount pre- cards, personnel records and reports, and all other re- scribed in Florida Steel Corporation, 231 NLRB 651 cords necessary to analyze and determine the amount of (1977),6 making available, if necessary, records for com- backpay due under the terms of this Order, if any. putation purposes and posting the attached notice. (e) Post at its place of business copies of the attached Upon the basis of the foregoing findings of fact, con- notice marked "Appendix. " ' Copies of said notice, on clusions of law, and upon the entire record in this case, I forms provided by the Regional Director for Region 29, hereby issue the following recommended: after being duly signed by Respondents' authorized rep- resentative, shall be posted immediately upon receipt ORDER' thereof, and be maintained by them for 60 consecutive The Respondents, Air-Vac Industries, Inc., Leeward days thereafter, in conspicuous places, including all Constructors, Inc., and Air-Vac Environmental Limited, places where notices to employees are customarily herein called Respondents Air-Vac, Leeward, and Envi- posted. Reasonable steps shall be taken by Respondents ronmental, respectively, their officers, agents, successors, to insure that said notices are not altered, defaced, or and assigns, shall: covered by any other material. I. Cease and desist from: (f) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. · See, generally, Isis Plumbing & Heating Ca, 138 NLRB 716 (1962). '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 find- In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein, shall as provided in States Court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board."