Better Building Supply Corp.

BETTER BUILDING SUPPLY CORP. 469 Better Building Supply Corp., and Evergreen Roof- Seattle, Washington, their officers, agents, succes- ing, Inc., its alter ego and Local 54 of the sors, and assigns, shall take the action set forth in United Slate, Tile & Composition Roofers, the said recommended Order,4 except that the at- Damp and Waterproof Workers Association, tached notice is substituted for that of the Adminis- AFLCIO. Cases 19-CA-11908 and 19-CA- trative Law Judge. 12035 19iwm8hr 3, 981 Q* In accordance with his dissent in Olympic Medical Corporation, 250 December 3, 1981 NLRB 146 (1980), Member Jenkins would award interest on the backpay ~~~DECISION AND ORDER ~~ ~due based on the formula set forth therein. DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND APPENDIX ZIMMERMAN NOTICE TO EMPLOYEES On February 27, 1981, Administrative Law POSTED BY ORDER OF THE Judge William J. Pannier III issued the attached NATIONAL LABOR RELATIONS BOARD Decision in this proceeding. Thereafter, Respond- An Agency of the United States Government ents filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Ad- After a hearing at which all sides had an opportu- ministrative Law Judge's Decision. nity to present evidence and state their positions, Pursuant to the provisions of Section 3(b) of the the National Labor Relations Board found that we National Labor Relations Act, as amended, the Na- have violated the National Labor Relations Act, as tional Labor Relations Board has delegated its au- amended, and has ordered us to post this notice. thority in this proceeding to a three-member panel. The Board has considered the record and the at-The Act gives employees the following rights: tached Decision in light of the exceptions and To engage in self-organization briefs and has decided to affirm the rulings, find- To form, join, or assist any union ings, 1 and conclusions2 of the Administrative Law To bargain collectively through repre- Judge and to adopt his recommended Order. 3 sentatives of their own choice ORDER To engage in activities together for the purpose of collective bargaining or other Pursuant to Section 10(c) of the National Labor mutual aid or protection Relations Act, as amended, the National Labor Re- To refrain from the exercise of any or all lations Board adopts as its Order the recommended such activities. Order of the Administrative Law Judge and WE WILL NOT refuse to bargain collectively hereby orders that the Respondents, Better Build- with Local 54 of the United Slate, Tile & ing Supply Corp., and Evergreen Roofing, Inc., Composition Roofers, Damp and Waterproof Respondents have excepted to certain credibility findings made by Workers Association, AFL-CIO, as the exclu- the Administrative Law Judge. It is the Board's established policy not to sive collective-bargaining representative of all overrule an administrative law judge's resolutions with respect to credi- employees in the following appropriate unit: bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Product All roofers and waterproofers employed by Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Better Building Supply Corp., Evergreen We fully agree with the Administrative Law Judge's conclusion that Roofing, Inc., and their subcontractors in Respondent Evergreen Roofing, Inc., violated Sec. 8(a(5) by failing and the Washington Counties of Clallam, Jeffer- refusing to apply to its employees the collective-bargaining agreement ex- ecuted between Respondent Better Building Supply Corp. and the Charg- son, King, Kitsap, Mason and Snohomish; ing Party Union. We note that, under the Supreme Court's decision inexcluding professional employees, guards South Prairie Construction Co. v. Local No 627, International Union of Op- e mly , erating Engineers AFL-CIO, 425 U.S. 800 (1976), the fact that two or and supervisors as defined in the Act. more entities constitute a single employer is not dispositive of the issue of WE WILL NOT fail and refuse to apply the whether each is bound to the collective-bargaining agreements of the others. Rather, the test is whether, given the single-employer finding, the terms and conditions of our collective-bargain- employees of the separate companies constitute the appropriate unit or ing agreement with Local 54 of the United whether the employees of each individual company constitute distinct and separate units. The criteria for finding a single employer are different Slate, Tile & Composition Roofers, Damp and from those for determining the appropriateness of the unit. Peter Kiewit Waterproof Workers Association, AFL-CIO, Sons' Co. and South Prairie Construction Co. 231 NLRB 76 (1977). In the to all employees in the above-described bar- present case, the operations of both Respondents and the work of their employees have been so intertwined as to render appropriate only a unit gaining unit, without the written consent of of employees of both Respondents and to preclude a finding of separate that Union. appropriate units. 3We adopt the Administrative Law Judge's recommended Order as WE WILL NOT refuse to bargain collectively modified by his errata of March 16, 1981. with Local 54 of the United Slate, Tile and 259 NLRB No. 63 BETTER BUILDING SUPPLY CORP. 469 Better Building Supply Corp., and Evergreen Roof- Seattle, Washington, their officers, agents, succes- ing, Inc., its alter ego and Local 54 of the sors, and assigns, shall take the action set forth in United Slate, Tile f Composition Roofers, the said recommended Order,' except that the at- Damp and Wa t er p r o o f W orkers A ssocia t io n, t ac h e d n o tic e i s substituted for that of the Adminis- AFL I00 Cases 19-CA-11908 and 19-CA- trative Law Judge. 12035 riwemnhr 3, 1Q°14 I n accordance with his dissent in Olympic Medical Corporation, 250 DeC~cember 3,1981NLRB I46 (1980), Member Jenkins would award interest on the backpay DECISION AND ORDER d ue based on the formula set forth t herein. BY MEMBERS FANNING, JENKINS, AND APPENDIX Z I M M E R M A N NOTICE TO EMPLOYEES On February 27, 1981, Administrative Law POSTED BY ORDER OF THE Judge William J. Pannier III issued the attached NATIONAL LABOR RELATIONS BOARD Decision in this proceeding. Thereafter, Respond- An Agency of the United States Government ents filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Ad- After a hearing at which all sides had an opportu- ministrative Law Judge's Decision. nity to present evidence and state their positions, Pursuant to the provisions of Section 3(b) of the the National Labor Relations Board found that we National Labor Relations Act, as amended, the Na- have violated the National Labor Relations Act, as tional Labor Relations Board has delegated its au- amended, and has ordered us to post this notice. thority in this proceeding to a three-member panel. T A g ees fl g h The Board has considered the record and the at- T h e A c t Kl v e s employees the following rights: tached Decision in light of the exceptions and To engage in self-organization briefs and has decided to affirm the rulings, find- To form, join, or assist any union ings,' and conclusions 2 of the Administrative Law To bargain collectively through repre- Judge and to adopt his recommended Order.3 sentatives of their own choice ORDER To e ngage in activities together for the purpose of collective bargaining or other Pursuant to Section 10(c) of the National Labor mutual aid or protection Relations Act, as amended, the National Labor Re- To refrain from the exercise of any or all lations Board adopts as its Order the recommended such activities. Order of the Administrative Law Judge and WE WILL NOT refuse to bargain collectively hereby orders that the Respondents, Better Build- with Local 54 of the United Slate, Tile & ing Supply Co rp., a n d Evergreen Roofing, In c., Composition Roofers, Damp and Waterproof ' Respondents have excepted to certain credibility findings made by Workers Association, AFL-CIO, as the exclu- the Administrative Law Judge. It is the Board's established policy not to sive Collective-bargaining representative of all overrule an administrative law judge's resolutions with respect to credi-plnvpfs in the fnllnwint annrnnriate unit: bility unless the clear preponderance of all of the relevant evidence con-employees in te following appropriate Unit: vinces us that the resolutions are incorrect. Standard Dry Wall Products All roofers and waterproofers employed by Inc, 91 NLRB 544 (1950), enfd. 188 F,2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Better Building Supply Corp., Evergreen 2We fully agree with the Administrative Law Judge's conclusion that Roofing, Inc., and their Subcontractors in Respondent Evergreen Roofing, Inc., violated Sec. 8(aX5) by failing and ti/ «L:_~*»_ C~'..-;- of Clall-- T.-CT'- refusing to apply to its employees the collective-bargaminig agreement ex- t h e Washington Counties Of Clallar, Jeffer- ecuted between Respondent Better Building Supply Corp. and the Charg- son, King, Kitsap, Mason and Snohomish; ing Party Union. We note that, under the Supreme Court's decision in excluding professional employees, guards South Prairie Construction Co. v. Local No 627. International Union of Op- ° . , <* , . ,. , erating Engineere AFL-CIO, 425 U.S. 800 (1976). the fact that two or a n d Supervisors as defined in the Act. more entities constitute a single employer is not dispositive of the issue of117 W,.. NT r-i -_j r „ .„ 1*1 whether each is bound to the collective-bargaining agreements of the W E W I L L N OT fa i a n d re fu s e t o appl t h e others. Rather, the test is whether, given the single-employer finding, the terms and Conditions of Our collective-bargain- employees of the separate companies constitute the appropriate unit or ing agreement with Local 54 of the United whether the employees of each individual company constitute distinct and separate units. The criteria for finding a single employer are different Slate, Tile & Composition Roofers, Damp and from those for determining the appropriateness of the unit. Peter Kiewit Waterproof Workers Association, AFL-CIO, Sons' Co. and South Prairie Construction C., 231 NLRB 76 (1977). In the to all employees in the above-described bar- presem case, the operations of both Respondents and the work of their employees have been so intertwined as to render appropriate only a unit gaining Unit, Without the Written Consent of of employees of both Respondents and to preclude a finding of separate that Union. appropriate ^ ^^ WE WILL NOT refuse to bargain collectively 3We adopt the Administrative Law Judge's recommended Order as W ILNTrfs obrancletvl modified by his errata of March 16, 1981. with Local 54 of the United Slate, Tile and 259 NLRB No. 63 BETTER BUILDING SUPPLY CORP. 469 Better Building Supply Corp., and Evergreen Roof- Seattle, Washington, their officers, agents, succes- ing, Inc., its alter ego and Local 54 of the sors, and assigns, shall take the action set forth in United Slate, Tile f Composition Roofers, the said recommended Order,' except that the at- Damp and Wa t er pr oof W orkers A ssocia t io n, t ac h e d n o tic e i s substituted for that of the Adminis- AFI,-00 Cases 19-CA-11908 and 19-CA- trative Law Judge. 12035 riwemnhr 3, 1Q°14 I n accordance with his dissent in Olympic Medical Corporation, 250 DeC~cember 3,1981NLRB I46 (1980), Member Jenkins would award interest on the backpay DECISION AND ORDER d ue based on the formula set forth t herein. BY MEMBERS FANNING, JENKINS, AND APPENDIX Z I M M E R M A N NOTICE TO EMPLOYEES On February 27, 1981, Administrative Law POSTED BY ORDER OF THE Judge William J. Pannier III issued the attached NATIONAL LABOR RELATIONS BOARD Decision in this proceeding. Thereafter, Respond- An Agency of the United States Government ents filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Ad- After a hearing at which all sides had an opportu- ministrative Law Judge's Decision. nity to present evidence and state their positions, Pursuant to the provisions of Section 3(b) of the the National Labor Relations Board found that we National Labor Relations Act, as amended, the Na- have violated the National Labor Relations Act, as tional Labor Relations Board has delegated its au- amended, and has ordered us to post this notice. thority in this proceeding to a three-member panel. T A g ees fl g h The Board has considered the record and the at- T h e A c t Kl v e s employees the following rights: tached Decision in light of the exceptions and To engage in self-organization briefs and has decided to affirm the rulings, find- To form, join, or assist any union ings,' and conclusions 2 of the Administrative Law To bargain collectively through repre- Judge and to adopt his recommended Order.3 sentatives of their own choice ORDER To e ngage in activities together for the purpose of collective bargaining or other Pursuant to Section 10(c) of the National Labor mutual aid or protection Relations Act, as amended, the National Labor Re- To refrain from the exercise of any or all lations Board adopts as its Order the recommended such activities. Order of the Administrative Law Judge and WE WILL NOT refuse to bargain collectively hereby orders that the Respondents, Better Build- with Local 54 of the United Slate, Tile & ing Supply Co rp., a n d Evergreen Roofing, In c., Composition Roofers, Damp and Waterproof ' Respondents have excepted to certain credibility findings made by Workers Association, AFL-CIO, as the exclu- the Administrative Law Judge. It is the Board's established policy not to sive Collective-bargaining representative of all overrule an administrative law judge's resolutions with respect to credi-plnvpcs in the fnllnwint annrnnriate unit: bility unless the clear preponderance of all of the relevant evidence con-employees in te following appropriate Unit: vinces us that the resolutions are incorrect. Standard Dry Wall Products All roofers and waterproofers employed by Inc, 91 NLRB 544 (1950), enfd. 188 F,2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Better Building Supply Corp., Evergreen 2We fully agree with the Administrative Law Judge's conclusion that Roofing, Inc., and their Subcontractors in Respondent Evergreen Roofing, Inc., violated Sec. 8(aX5) by failing and ti/ «L:_~*»_ C~'..-;- of Clall-- T.-CT"- refusing to apply to its employees the collective-bargaminig agreement ex- t h e Washington Counties Of Clallar, Jeffer- ecuted between Respondent Better Building Supply Corp. and the Charg- son, King, Kitsap, Mason and Snohomish; ing Party Union. We note that, under the Supreme Court's decision in excluding professional employees, guards South Prairie Construction Co. v. Local No 627. International Union of Op- ° . , <* , . ,. , erating Engineere AFL-CIO, 425 U.S. 800 (1976). the fact that two or a n d Supervisors as defined in the Act. more entities constitute a single employer is not dispositive of the issue of117 W,.. NT r-i -_j r „ .„ 1*1 whether each is bound to the collective-bargaining agreements of the W E W I L L N OT fa i a n d re fu s e t o appl t h e others. Rather, the test is whether, given the single-employer finding, the terms and Conditions of Our collective-bargain- employees of the separate companies constitute the appropriate unit or ing agreement with Local 54 of the United whether the employees of each individual company constitute distinct and separate units. The criteria for finding a single employer are different Slate, Tile & Composition Roofers, Damp and from those for determining the appropriateness of the unit. Peter Kiewit Waterproof Workers Association, AFL-CIO, Sons' Co. and South Prairie Construction C., 231 NLRB 76 (1977). In the to all employees in the above-described bar- presem case, the operations of both Respondents and the work of their employees have been so intertwined as to render appropriate only a unit gaining Unit, Without the Written Consent of of employees of both Respondents and to preclude a finding of separate that Union. appropriate ^ ^^ WE WILL NOT refuse to bargain collectively 3We adopt the Administrative Law Judge's recommended Order as W ILNTrfs obrancletvl modified by his errata of March 16, 1981. with Local 54 of the United Slate, Tile and 259 NLRB No. 63 BETTER BUILDING SUPPLY CORP. 469 Better Building Supply Corp., and Evergreen Roof- Seattle, Washington, their officers, agents, succes- ing, Inc., its alter ego and Local 54 of the sors, and assigns, shall take the action set forth in United Slate, Tile f Composition Roofers, the said recommended Order,' except that the at- Damp and Wa t er pr oof W orkers A ssocia t io n, t ac h e d n o tic e i s substituted for that of the Adminis- AFI,-00 Cases 19-CA-11908 and 19-CA- trative Law Judge. 12035 riwemnhr 3, 1Q°14 I n accordance with his dissent in Olympic Medical Corporation, 250 DeC~cember 3,1981NLRB I46 (1980), Member Jenkins would award interest on the backpay DECISION AND ORDER d ue based on the formula set forth t herein. BY MEMBERS FANNING, JENKINS, AND APPENDIX Z I M M E R M A N NOTICE TO EMPLOYEES On February 27, 1981, Administrative Law POSTED BY ORDER OF THE Judge William J. Pannier III issued the attached NATIONAL LABOR RELATIONS BOARD Decision in this proceeding. Thereafter, Respond- An Agency of the United States Government ents filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Ad- After a hearing at which all sides had an opportu- ministrative Law Judge's Decision. nity to present evidence and state their positions, Pursuant to the provisions of Section 3(b) of the the National Labor Relations Board found that we National Labor Relations Act, as amended, the Na- have violated the National Labor Relations Act, as tional Labor Relations Board has delegated its au- amended, and has ordered us to post this notice. thority in this proceeding to a three-member panel. T A g ees fl g h The Board has considered the record and the at- T h e A c t S'^ employees the following rights: tached Decision in light of the exceptions and To engage in self-organization briefs and has decided to affirm the rulings, find- To form, join, or assist any union ings,' and conclusions 2 of the Administrative Law To bargain collectively through repre- Judge and to adopt his recommended Order.3 sentatives of their own choice ORDER To e ngage in activities together for the purpose of collective bargaining or other Pursuant to Section 10(c) of the National Labor mutual aid or protection Relations Act, as amended, the National Labor Re- To refrain from the exercise of any or all lations Board adopts as its Order the recommended such activities. Order of the Administrative Law Judge and WE WILL NOT refuse to bargain collectively hereby orders that the Respondents, Better Build- with Local 54 of the United Slate, Tile & ing Supply Co rp., a n d Evergreen Roofing, In c., Composition Roofers, Damp and Waterproof ' Respondents have excepted to certain credibility findings made by Workers Association, AFL-CIO, as the exclu- the Administrative Law Judge. It is the Board's established policy not to sive Collective-bargaining representative of all overrule an administrative law judge's resolutions with respect to credi-plnvpcs in the fnllnwint annrnnriate unit: bility unless the clear preponderance of all of the relevant evidence con-employees in te following appropriate Unit: vinces us that the resolutions are incorrect. Standard Dry Wall Products All roofers and waterproofers employed by Inc, 91 NLRB 544 (1950), enfd. 188 F,2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Better Building Supply Corp., Evergreen 2We fully agree with the Administrative Law Judge's conclusion that Roofing, Inc., and their Subcontractors in Respondent Evergreen Roofing, Inc., violated Sec. 8(aX5) by failing and ti/ «L:_~*»_ C~'..-;- of Clall-- T.-CT"- refusing to apply to its employees the collective-bargaminig agreement ex- t h e Washington Counties Of Clallar, Jeffer- ecuted between Respondent Better Building Supply Corp. and the Charg- son, King, Kitsap, Mason and Snohomish; ing Party Union. We note that, under the Supreme Court's decision in excluding professional employees, guards South Prairie Construction Co. v. Local No 627. International Union of Op- ° . , <* , . ,. , erating Engineere AFL-CIO, 425 U.S. 800 (1976). the fact that two or a n d Supervisors as defined in the Act. more entities constitute a single employer is not dispositive of the issue of117 W,.. NT r-i -_j r „ .„ 1*1 whether each is bound to the collective-bargaining agreements of the W E W I L L N OT fa i a n d re fu s e t o appl t h e others. Rather, the test is whether, given the single-employer finding, the terms and Conditions of Our collective-bargain- employees of the separate companies constitute the appropriate unit or ing agreement with Local 54 of the United whether the employees of each individual company constitute distinct and separate units. The criteria for finding a single employer are different Slate, Tile & Composition Roofers, Damp and from those for determining the appropriateness of the unit. Peter Kiewit Waterproof Workers Association, AFL-CIO, Sons' Co. and South Prairie Construction C., 231 NLRB 76 (1977). In the to all employees in the above-described bar- presem case, the operations of both Respondents and the work of their employees have been so intertwined as to render appropriate only a unit gaining Unit, Without the Written Consent of of employees of both Respondents and to preclude a finding of separate that Union. appropriate ^ ^^ WE WILL NOT refuse to bargain collectively 3We adopt the Administrative Law Judge's recommended Order as W ILNTrfs obrancletvl modified by his errata of March 16, 1981. with Local 54 of the United Slate, Tile and 259 NLRB No. 63 BETTER BUILDING SUPPLY CORP. 469 Better Building Supply Corp., and Evergreen Roof- Seattle, Washington, their officers, agents, succes- ing, Inc., its alter ego and Local 54 of the sors, and assigns, shall take the action set forth in United Slate, Tile f Composition Roofers, the said recommended Order,' except that the at- Damp and Wa t er pr oof W orkers A ssocia t io n, t ac h e d n o tic e i s substituted for that of the Adminis- AFI,-00 Cases 19-CA-11908 and 19-CA- trative Law Judge. 12035 riwemnhr 3, 1Q°14 I n accordance with his dissent in Olympic Medical Corporation, 250 DeC~cember 3,1981NLRB I46 (1980), Member Jenkins would award interest on the backpay DECISION AND ORDER d ue based on the formula set forth t herein. BY MEMBERS FANNING, JENKINS, AND APPENDIX Z I M M E R M A N NOTICE TO EMPLOYEES On February 27, 1981, Administrative Law POSTED BY ORDER OF THE Judge William J. Pannier III issued the attached NATIONAL LABOR RELATIONS BOARD Decision in this proceeding. Thereafter, Respond- An Agency of the United States Government ents filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Ad- After a hearing at which all sides had an opportu- ministrative Law Judge's Decision. nity to present evidence and state their positions, Pursuant to the provisions of Section 3(b) of the the National Labor Relations Board found that we National Labor Relations Act, as amended, the Na- have violated the National Labor Relations Act, as tional Labor Relations Board has delegated its au- amended, and has ordered us to post this notice. thority in this proceeding to a three-member panel. T A g ees fl g h The Board has considered the record and the at- T h e A c t S'^ employees the following rights: tached Decision in light of the exceptions and To engage in self-organization briefs and has decided to affirm the rulings, find- To form, join, or assist any union ings,' and conclusions 2 of the Administrative Law To bargain collectively through repre- Judge and to adopt his recommended Order.3 sentatives of their own choice ORDER To e ngage in activities together for the purpose of collective bargaining or other Pursuant to Section 10(c) of the National Labor mutual aid or protection Relations Act, as amended, the National Labor Re- To refrain from the exercise of any or all lations Board adopts as its Order the recommended such activities. Order of the Administrative Law Judge and WE WILL NOT refuse to bargain collectively hereby orders that the Respondents, Better Build- with Local 54 of the United Slate, Tile & ing Supply Co rp., a n d Evergreen Roofing, In c., Composition Roofers, Damp and Waterproof ' Respondents have excepted to certain credibility findings made by Workers Association, AFL-CIO, as the exclu- the Administrative Law Judge. It is the Board's established policy not to sive Collective-bargaining representative of all overrule an administrative law judge's resolutions with respect to credi-plnvpcs in the fnllnwint annrnnriate unit: bility unless the clear preponderance of all of the relevant evidence con-employees in te following appropriate Unit: vinces us that the resolutions are incorrect. Standard Dry Wall Products All roofers and waterproofers employed by Inc, 91 NLRB 544 (1950), enfd. 188 F,2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Better Building Supply Corp., Evergreen 2We fully agree with the Administrative Law Judge's conclusion that Roofing, Inc., and their Subcontractors in Respondent Evergreen Roofing, Inc., violated Sec. 8(aX5) by failing and ti/ «L:_~*»_ C~'..-;- of Clall-- T.-CT"- refusing to apply to its employees the collective-bargaminig agreement ex- t h e Washington Counties Of Clallar, Jeffer- ecuted between Respondent Better Building Supply Corp. and the Charg- son, King, Kitsap, Mason and Snohomish; ing Party Union. We note that, under the Supreme Court's decision in excluding professional employees, guards South Prairie Construction Co. v. Local No 627. International Union of Op- ° . , <* , . ,. , erating Engineers AFL-CIO, 425 U.S. 800 (1976). the fact that two or a n d Supervisors as defined in the Act. more entities constitute a single employer is not dispositive of the issue of117 W,.. NT r-i -_j r „ .„ 1*1 whether each is bound to the collective-bargaining agreements of the W E W I L L N OT fa i a n d re fu s e t o appl t h e others. Rather, the test is whether, given the single-employer finding, the terms and Conditions of Our collective-bargain- employees of the separate companies constitute the appropriate unit or ing agreement with Local 54 of the United whether the employees of each individual company constitute distinct and separate units. The criteria for finding a single employer are different Slate, Tile & Composition Roofers, Damp and from those for determining the appropriateness of the unit. Peter Kiewit Waterproof Workers Association, AFL-CIO, Sons' Co. and South Prairie Construction C., 231 NLRB 76 (1977). In the to all employees in the above-described bar- presem case, the operations of both Respondents and the work of their employees have been so intertwined as to render appropriate only a unit gaining Unit, Without the Written Consent of of employees of both Respondents and to preclude a finding of separate that Union. appropriate ^ ^^ WE WILL NOT refuse to bargain collectively 3We adopt the Administrative Law Judge's recommended Order as W ILNTrfs obrancletvl modified by his errata of March 16, 1981. with Local 54 of the United Slate, Tile and 259 NLRB No. 63 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Composition Roofers, Damp and Waterproof Labor Relations Act, as amended, 29 U.S.C. §151, et Workers Association, AFL-CIO, by refusing seq., herein called the Act. On February 27, 1980, the upon request to supply relevant information said Regional Director issued a complaint and notice of needed by it to represent employees in the hearing in Case 19-CA-12035, based on an unfair labor above-described bargaining unit. practice charge filed on January 18, 1980, alleging addi- W tional violations of Section 8(a)(l) and (5) of the Act. WE WILL NOT refuse to provide Local 54 of Also on February 27, 1980, the Regional Director issued the United Slate, Tile & Composition Roofers, an order consolidating cases and notice of hearing, con- Damp and Waterproof Workers Association, solidating the two complaints for hearing and decision. AFL-CIO, with requested information that is All parties have been afforded full opportunity to appear, relevant and necessary to the collective-bar- to introduce evidence, to examine and cross-examine wit- gaining process. nesses, and to file briefs. Based upon the entire record, WE WILL NOT in any other manner interfere upon the briefs filed on behalf of the parties, and upon with, restrain, or coerce you in the exercise of my observation of the demeanor of the witnesses, I make your rights under the National Labor Rela- the following: tions Act as set forth above. FINDINGS OF FACT WE WILL recognize and bargain collectively with Local 54 of the United Slate, Tile & I. JURISDICTION Composition Roofers, Damp and Waterproof Workers Assoiationofers, AFL-CIOmp ands the exclu-rproof Better Building Supply Corp., herein called Respond- Workers Association, AFL-CIO, as the exclu ent BBS, and Ever green Roofing, Inc., its alter ego, sive collective-bargaining representative of all ent BBS, and Evergreen Roofing, Inc., its alter ego, sive collective-barga g representative of all herein called Respondent Evergreen, and herein collec- employees in the above-described bargaining tively called Respondents, are each Washington State unit. corporations, with an office and place of business at the WE WILL apply the terms and conditions of same location in Seattle, Washington, where they are en- our current collective-bargaining agreement gaged as roofing contractors. There is no dispute regard- with Local 54 of the United Slate, Tile & ing the dollar volume of Respondents' operations. Thus, Composition Roofers, Damp and Waterproof it is admitted that, during the 12-month periods preced- Workers Association, AFL-CIO, to all em- ing issuance of each of the complaints, each of which is ployees in the above-described bargaining unit. conceded to be a representative period, Respondents, in WE WILL provide Local 54 of the United the course and conduct of their business operations, sold Slate, Tile & Composition Roofers, Damp and and shipped goods or provided services from within the WaterprosAssociation, AFL-CIO, State of Washington either directly to customers outside Waterproof Workers Association, AFL-CIO, that State, or to customers within the State of Washing- with any and all requested information that is ton which, in turn, were themselves engaged in interstate relevant and necessary to the collective-bar- commerce on some basis other than indirect inflow or gaining process. outflow. During those same 12-month periods, Respond- WE WILL make whole all employees for any ents, in the course and conduct of their business oper- losses sustained on or after May 7, 1979, by ations, purchased and caused to be transferred and deliv- our failure to apply the terms and conditions ered to their facilities within the State of Washington of our collective-bargaining agreement with goods and materials valued in excess of $50,000 which Local 54 of the United Slate, Tile & Composi- originated from sources outside the State of Washington. tion Roofers, Damp and Waterproof Workers Notwithstanding these admissions, Respondents denied Association, AFL-CIO, to them, with interest. the allegation that at all times material they have been a single integrated business enterprise and a single employ- er within the meaning of the Act, because they have BETTER BUILDING SUPPLY CORP., been affiliated business enterprises with common officers, AND EVERGREEN ROOFING, INC., ITS ownership, directors, management, and supervision; have ALTER EGO formulated and administered common labor policy affect- ing employees of said operations; have shared common DECISION premises and facilities, common advertising, phone, sales, STATEMENT OF THE CA and purchasing; have provided services for and made sales, to each other; have interchanged personnel with WILLIAM J. PANNIER III, Administrative Law Judge: each other; and have held themselves out to the public as This matter was heard by me in Seattle, Washington, on a single integrated business enterprise. The record, how- July 10, 11, and 22 through 25, 1980. On December 28, ever, supports the conclusion that at all times material 1979, the Regional Director for Region 19 of the Nation- Respondents have been a single integrated business enter- al Labor Relations Board issued a complaint and notice prise and a single employer within the meaning of Sec- of hearing in Case 19-CA-11908, based on an unfair tion 2(2) of the Act. labor practice charge filed on November 7, 1979, alleg- ing violations of Section 8(a)(l) and (5) of the National ' As amended at the hearing. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Composition Roofers, Damp and Waterproof Labor Relations Act, as amended, 29 U.S.C. §151, et Workers Association, AFL-CIO, by refusing seq., herein called the Act. On February 27, 1980, the upon request to supply relevant information said Regional Director issued a complaint and notice of needed by it to represent employees in the hearing in Case 19-CA-12035, based on an unfair labor above-described bargaining unit. practice charge filed on January 18, 1980, alleging addi- WE WILL NOT refuse to provide Local 54 of tional violations of Section 8(a)(l) and (5) of the Act. W E W IL L t NOT SltTe & Composition Roof Also on February 27, 1980, the Regional Director issued the United Slate, Tile &t Composition Roofers, an order consolidating cases and notice of hearing, con- Damp and Waterproof Workers Association, solidating the two complaints for hearing and decision. AFL-CIO, with requested information that is All parties have been afforded full opportunity to appear, relevant and necessary to the collective-bar- to introduce evidence, to examine and cross-examine wit- gaining process. nesses, and to file briefs. Based upon the entire record, WE WILL NOT in any other manner interfere upon the briefs filed on behalf of the parties, and upon with, restrain, or coerce you in the exercise of my observation of the demeanor of the witnesses, I make your rights under the National Labor Rela- the following: tions Act as set forth above. FA ,,, . . . . „ . ,~~~~~~~FINDINGS OF FACT WE WILL recognize and bargain collectively with Local 54 of the United Slate, Tile & I. JURISDICTION Composition Roofers, Damp and Waterproof. „ Workers Association, AFL-CIO, as the exclu- Better Building Supply Corp., herein called Respond- Workers Association, AFL-CIO, as thatie exclul ent BBS, and Evergreen Roofing, Inc., its alter ego,' sive collective-bargaining representative of all herein called Respondent Evergreen, and herein collec- employees in the above-described bargaining tively called Respondents, are each Washington State unit. corporations, with an office and place of business at the WE WILL apply the terms and conditions of same location in Seattle, Washington, where they are en- our current collective-bargaining agreement gaged as roofing contractors. There is no dispute regard- with Local 54 of the United Slate, Tile & ing the dollar volume of Respondents' operations. Thus, Composition Roofers, Damp and Waterproof it is admitted that, during the 12-month periods preced- Workers Association, AFL-CIO, to all em- ing issuance of each of the complaints, each of which is ployees in the above-described bargaining unit. conceded to be a representative period, Respondents, in WE WILL provide Local 54 of the United the cour se and conduct of thei r business operations, sold Slate, Tile & Composition Roofers, Damp and and shipped goods or provided services from within the Waterproof Workers Association, AFL-CIO, State of Washington either directly to customers outside Waterproot workers Association, AM^-CIO, that State, or to customers within the State of Washing- with any and all requested information that is ton which, in turn, were themselves engaged in interstate relevant and necessary to the collective-bar- commerce on some basis other than indirect inflow or gaining process. outflow. During those same 12-month periods, Respond- WE WILL make whole all employees for any ents, in the course and conduct of their business oper- losses sustained on or after May 7, 1979, by ations, purchased and caused to be transferred and deliv- our failure to apply the terms and conditions ered to their facilities within the State of Washington of our collective-bargaining agreement with goods and materials valued in excess of $50,000 which Local 54 of the United Slate, Tile & Composi- originated from sources outside the State of Washington. tion Roofers, Damp and Waterproof Workers Notwithstanding these admissions, Respondents denied Association, AFL-CIO, to them, with interest. the allegation that at all times material they have been a single integrated business enterprise and a single employ- er within the meaning of the Act, because they have BETTER BUILDING SUPPLY CORP., been affiliated business enterprises with common officers, AND EVERGREEN ROOFING, INC., ITS ownership, directors, management, and supervision; have ALTER EGO formulated and administered common labor policy affect- ing employees of said operations; have shared common DECISION premises and facilities, common advertising, phone, sales, STATEMENT OF THE CASE a nd Purchasing; have provided services for and made sales, to each other; have interchanged personnel with WILLIAM J. PANNIER III, Administrative Law Judge: each other; and have held themselves out to the public as This matter was heard by me in Seattle, Washington, on a single integrated business enterprise. The record, how- July 10, 11, and 22 through 25, 1980. On December 28, ever, supports the conclusion that at all times material 1979, the Regional Director for Region 19 of the Nation- Respondents have been a single integrated business enter- al Labor Relations Board issued a complaint and notice prise and a single employer within the meaning of Sec- of hearing in Case 19-CA-11908, based on an unfair tion 2(2) of the Act. labor practice charge filed on November 7, 1979, alleg- ing violations of Section 8(a)(l) and (5) of the National As amended at the hearing. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Composition Roofers, Damp and Waterproof Labor Relations Act, as amended, 29 U.S.C. §151, et Workers Association, AFL-CIO, by refusing seq., herein called the Act. On February 27, 1980, the upon request to supply relevant information said Regional Director issued a complaint and notice of needed by it to represent employees in the hearing in Case 19-CA-12035, based on an unfair labor above-described bargaining unit. practice charge filed on January 18, 1980, alleging addi- WE WILL NOT refuse to provide Local 54 of tional violations of Section 8(a)(l) and (5) of the Act. W E W IL L t NOT SltTe & Composition Roof Also on February 27, 1980, the Regional Director issued the United Slate, Tile &t Composition Roofers, an order consolidating cases and notice of hearing, con- Damp and Waterproof Workers Association, solidating the two complaints for hearing and decision. AFL-CIO, with requested information that is All parties have been afforded full opportunity to appear, relevant and necessary to the collective-bar- to introduce evidence, to examine and cross-examine wit- gaining process. nesses, and to file briefs. Based upon the entire record, WE WILL NOT in any other manner interfere upon the briefs filed on behalf of the parties, and upon with, restrain, or coerce you in the exercise of my observation of the demeanor of the witnesses, I make your rights under the National Labor Rela- the following: tions Act as set forth above. FA ,,, . . . . „ . ,~~~~~~~FINDINGS OF FACT WE WILL recognize and bargain collectively with Local 54 of the United Slate, Tile & I. JURISDICTION Composition Roofers, Damp and Waterproof. „ Workers Association, AFL-CIO, as the exclu- Better Building Supply Corp., herein called Respond- Workers Association, AFL-CIO, as thatie exclul ent BBS, and Evergreen Roofing, Inc., its alter ego,' sive collective-bargaining representative of all herein called Respondent Evergreen, and herein collec- employees in the above-described bargaining tively called Respondents, are each Washington State unit. corporations, with an office and place of business at the WE WILL apply the terms and conditions of same location in Seattle, Washington, where they are en- our current collective-bargaining agreement gaged as roofing contractors. There is no dispute regard- with Local 54 of the United Slate, Tile & ing the dollar volume of Respondents' operations. Thus, Composition Roofers, Damp and Waterproof it is admitted that, during the 12-month periods preced- Workers Association, AFL-CIO, to all em- ing issuance of each of the complaints, each of which is ployees in the above-described bargaining unit. conceded to be a representative period, Respondents, in WE WILL provide Local 54 of the United the cour se and conduct of thei r business operations, sold Slate, Tile & Composition Roofers, Damp and and shipped goods or provided services from within the Waterproof Workers Association, AFL-CIO, State of Washington either directly to customers outside Waterproot workers Association, AM^-CIO, that State, or to customers within the State of Washing- with any and all requested information that is ton which, in turn, were themselves engaged in interstate relevant and necessary to the collective-bar- commerce on some basis other than indirect inflow or gaining process. outflow. During those same 12-month periods, Respond- WE WILL make whole all employees for any ents, in the course and conduct of their business oper- losses sustained on or after May 7, 1979, by ations, purchased and caused to be transferred and deliv- our failure to apply the terms and conditions ered to their facilities within the State of Washington of our collective-bargaining agreement with goods and materials valued in excess of $50,000 which Local 54 of the United Slate, Tile & Composi- originated from sources outside the State of Washington. tion Roofers, Damp and Waterproof Workers Notwithstanding these admissions, Respondents denied Association, AFL-CIO, to them, with interest. the allegation that at all times material they have been a single integrated business enterprise and a single employ- er within the meaning of the Act, because they have BETTER BUILDING SUPPLY CORP., been affiliated business enterprises with common officers, AND EVERGREEN ROOFING, INC., ITS ownership, directors, management, and supervision; have ALTER EGO formulated and administered common labor policy affect- ing employees of said operations; have shared common DECISION premises and facilities, common advertising, phone, sales, STATEMENT OF THE CASE a nd Purchasing; have provided services for and made sales, to each other; have interchanged personnel with WILLIAM J. PANNIER III, Administrative Law Judge: each other; and have held themselves out to the public as This matter was heard by me in Seattle, Washington, on a single integrated business enterprise. The record, how- July 10, 11, and 22 through 25, 1980. On December 28, ever, supports the conclusion that at all times material 1979, the Regional Director for Region 19 of the Nation- Respondents have been a single integrated business enter- al Labor Relations Board issued a complaint and notice prise and a single employer within the meaning of Sec- of hearing in Case 19-CA-11908, based on an unfair tion 2(2) of the Act. labor practice charge filed on November 7, 1979, alleg- ing violations of Section 8(a)(l) and (5) of the National As amended at the hearing. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Composition Roofers, Damp and Waterproof Labor Relations Act, as amended, 29 U.S.C. §151, et Workers Association, AFL-CIO, by refusing seq., herein called the Act. On February 27, 1980, the upon request to supply relevant information said Regional Director issued a complaint and notice of needed by it to represent employees in the hearing in Case 19-CA-12035, based on an unfair labor above-described bargaining unit. practice charge filed on January 18, 1980, alleging addi- WE WILL NOT refuse to provide Local 54 of tional violations of Section 8(a)(l) and (5) of the Act. W E W IL L t NOT SltTe & Composition Roof Also on February 27, 1980, the Regional Director issued the United Slate, Tile &t Composition Roofers, an order consolidating cases and notice of hearing, con- Damp and Waterproof Workers Association, solidating the two complaints for hearing and decision. AFL-CIO, with requested information that is All parties have been afforded full opportunity to appear, relevant and necessary to the collective-bar- to introduce evidence, to examine and cross-examine wit- gaining process. nesses, and to file briefs. Based upon the entire record, WE WILL NOT in any other manner interfere upon the briefs filed on behalf of the parties, and upon with, restrain, or coerce you in the exercise of my observation of the demeanor of the witnesses, I make your rights under the National Labor Rela- the following: tions Act as set forth above. FA ,,, . . . . „ . ,~~~~~~~FINDINGS OF FACT WE WILL recognize and bargain collectively with Local 54 of the United Slate, Tile & I. JURISDICTION Composition Roofers, Damp and Waterproof. „ Workers Association, AFL-CIO, as the exclu- Better Building Supply Corp., herein called Respond- Workers Association, AFL-CIO, as thatie exclul ent BBS, and Evergreen Roofing, Inc., its alter ego,' sive collective-bargaining representative of all herein called Respondent Evergreen, and herein collec- employees in the above-described bargaining tively called Respondents, are each Washington State unit. corporations, with an office and place of business at the WE WILL apply the terms and conditions of same location in Seattle, Washington, where they are en- our current collective-bargaining agreement gaged as roofing contractors. There is no dispute regard- with Local 54 of the United Slate, Tile & ing the dollar volume of Respondents' operations. Thus, Composition Roofers, Damp and Waterproof it is admitted that, during the 12-month periods preced- Workers Association, AFL-CIO, to all em- ing issuance of each of the complaints, each of which is ployees in the above-described bargaining unit. conceded to be a representative period, Respondents, in WE WILL provide Local 54 of the United th e co u r se an d co n duct of their business operations, sold Slate, Tile & Composition Roofers, Damp and and shipped goods or provided services from within the Waterproof Workers Association, AFL-CIO, State of Washington either directly to customers outside Waterproot workers Association, Ar'L-CO, that State, or to customers within the State of Washing- with any and all requested information that is ton which, in turn, were themselves engaged in interstate relevant and necessary to the collective-bar- commerce on some basis other than indirect inflow or gaining process. outflow. During those same 12-month periods, Respond- WE WILL make whole all employees for any ents, in the course and conduct of their business oper- losses sustained on or after May 7, 1979, by ations, purchased and caused to be transferred and deliv- our failure to apply the terms and conditions ered to their facilities within the State of Washington of our collective-bargaining agreement with goods and materials valued in excess of $50,000 which Local 54 of the United Slate, Tile & Composi- originated from sources outside the State of Washington. tion Roofers, Damp and Waterproof Workers Notwithstanding these admissions, Respondents denied Association, AFL-CIO, to them, with interest. th e allegation that at all times material they have been a single integrated business enterprise and a single employ- er within the meaning of the Act, because they have BETTER BUILDING SUPPLY CORP., been affiliated business enterprises with common officers, AND EVERGREEN ROOFING, INC., ITS ownership, directors, management, and supervision; have ALTER EGO formulated and administered common labor policy affect- ing employees of said operations; have shared common DECISION premises and facilities, common advertising, phone, sales, STATEMENT OF THE CASE a nd Purchasing; have provided services for and made sales, to each other; have interchanged personnel with WILLIAM J. PANNIER III, Administrative Law Judge: each other; and have held themselves out to the public as This matter was heard by me in Seattle, Washington, on a single integrated business enterprise. The record, how- July 10, 11, and 22 through 25, 1980. On December 28, ever, supports the conclusion that at all times material 1979, the Regional Director for Region 19 of the Nation- Respondents have been a single integrated business enter- al Labor Relations Board issued a complaint and notice prise and a single employer within the meaning of Sec- of hearing in Case 19-CA-11908, based on an unfair tion 2(2) of the Act. labor practice charge filed on November 7, 1979, alleg- ing violations of Section 8(a)(l) and (5) of the National As amended at the hearing. BETTER BUILDING SUPPLY CORP. 471 Both Respondents were formed during the mid-1950's. phased in, to replace the hot tar system, by Respondent So far as the record discloses, the stock of each has BBS when, in 1977 or 1978, the trust fund department, always been owned primarily, if not wholly, by Gerald acting pursuant to Respondent BBS's collective-bargain- Mylan and his immediate family. From its inception, Re- ing agreement with the Union, attached Respondent spondent Evergreen engaged in all facets of the roofing BBS's bond and bank account in connection with a dis- business, using what is referred to as the hot tar process pute concerning payment of fringe benefits. This had the for applying roofs.2 Respondent BBS, however, remained effect of effectively terminating Respondent BBS's oper- dormant after its formation, conducting no operations ations in the six- county area of west Washington. Nev- and being only a corporate shell. ertheless, Mylan testified that Respondent BBS continued In the late 1960's or very early 1970's, Mylan decided operations in Oregon until "'78 or early '79," when it en- to bid for roofing work on certain houses being remod- gaged in "[c]old application of re-roofs." Moreover, Re- eled under the sponsorship of the United States Depart- spondent BBS's Washington business license did not ment of Housing and Urban Development. Discovering expire until June 30, 1980, shortly before commencement that his success in this venture would be enhanced if he of the hearing in this matter. bid to do all remodeling work on those homes, he se- Once Respondent BBS's bond had been attached, cured a general contractors license for Respondent BBS Mylan again activated Respondent Evergreen to com- and commenced bidding under its name. Concomitantly, plete conversion to the cold processing system and to Respondent Evergreen ceased conducting operations, be- contract for performing roofing working utilizing that coming dormant from 1971 to 1977. During that period, system. Initially, Respondent Evergreen used employees Respondent BBS became a party to two successive col- to perform this work though ultimately it substituted lective-bargaining agreements with Local 54 of the what it contends are independent contractors for those United Slate, Tile & Composition Roofers, Damp and employees in the west Washington area.4 Respondent Waterproof Workers Association, AFL-CIO, herein Evergreen has continued to employ employees outside of called the Union, the latest of which is still effective. that area. For example, at the time of the hearing it had These agreements covered all roofers and waterproofers three crews working in the Portland, Oregon, area. Ap- in the six west Washington Counties of Clallam, Jeffer- parently, these three crews are performing the same type son, King, Kitsap, Mason, and Snohomish. of work as had been performed by the crews employed Respondent BBS's operations, however, were not con- by Respondent BBS in the Portland, Oregon, area. fined to the west Washington geographic area. It bid on With regard to the allegation that Respondents are a and obtained work on Government projects as far from single employing entity, the factors to be considered in that area as Albuquerque, New Mexico, and Denver, resolving whether two nominally separate and distinct Colorado. Moreover, commencing in approximately 1974 business entities are a single employer, within the mean- or 1975, Respondent BBS's operations began to involve ing of Section 2(2) of the Act, "are (1) interrelation of principally performing roofing work on Government operations, (2) common management, (3) centralized con- facilities, rather than general remodeling. Thus, Mylan trol of labor relations, and (4) common ownership." testified: N.L.R.B. v. Don Burgess Construction Corporation, d/b/a Burgess Construction, 596 F.2d 378, 384 (9th Cir. 1979), Q. When you were working as Better Building cert. denied 444 U.S. 940 (1979); see also N.LR.B. v. Big Supply and let's address about 1974 or 1975 now, Bear Supermarkets #3 and its alter ego Richard Holmes, did you get back into roofing work as such? 640 F.2d 924 (9th Cir. 1980). Here, the stock of Re- A. Yes. When the HUD started to dissipate or spondents is held by Mylan and his immediate family. dry up then we went into government work. These individuals also serve as the only directors and of- Q. When you say government work, do you ficers of Respondents. Further, while Mylan has used mean various government buildings? different individuals to assign work to employees of Re- A. Yes. spondents, the history of each of them and the descrip- tions of how they operate demonstrate that he has re- On its income tax returns for calendar years 1978 and tained and possessed control over their labor relations 1979, Respondent BBS listed its principal business activi- policies throughout their history. Indeed, in their brief, ty as being a contractor and its product or service as Respondents acknowledge that [lit is undisputed that being roofing. Better Building was, and Evergreen is, owned and oper- The mid-1970's was also a period during which an- ated by the Mylans and that common ownership and other development of significance began to emerge. control are facts in this case." Mylan testified that he and his son had begun experi- menting with development of a polyester cold processing 'As will be discussed infra, the nature of the relationship between Re- system for installing roofs.3 This system was being spondent Evergreen and these contractors is the crux of the allegations of refusal to bargain in this matter. For present purposes, however, it suf- fices to note that Mylan admitted that these contractors perform the same 'Basically, this process consists of laying tar paper and then pouring work as had the roofing employees whom they succeeded and, further, hot tar over it. while he equivocated at some points regarding the matter, that Mylan ' In essence, this process involves spraying cutback on the roof, then conceded that, after Respondent Evergreen had resumed operations, laying a polyester mat across it and then spraying more cutback over there had been a period of time when it had employed employees, as had that. Respondent BBS, to install roofs using the cold process system. BETTER BUILDING SUPPLY CORP. 471 Both Respondents were formed during the mid-1950's. phased in, to replace the hot tar system, by Respondent So far as the record discloses, the stock of each has BBS when, in 1977 or 1978, the trust fund department, always been owned primarily, if not wholly, by Gerald acting pursuant to Respondent BBS's collective-bargain- Mylan and his immediate family. From its inception, Re- ing agreement with the Union, attached Respondent spondent Evergreen engaged in all facets of the roofing BBS's bond and bank account in connection with a dis- business, using what is referred to as the hot tar process pute concerning payment of fringe benefits. This had the for applying roofs.' Respondent BBS, however, remained effect of effectively terminating Respondent BBS's oper- dormant after its formation, conducting no operations ations in the six- county area of west Washington. Nev- and being only a corporate shell. ertheless, Mylan testified that Respondent BBS continued In the late 1960's or very early 1970's, Mylan decided operations in Oregon until ."78 or early '79," when it en- to bid for roofing work on certain houses being remod- gaged in "[c]old application of re-roofs." Moreover, Re- eled under the sponsorship of the United States Depart- spondent BBS's Washington business license did not ment of Housing and Urban Development. Discovering expire until June 30, 1980, shortly before commencement that his success in this venture would be enhanced if he of the hearing in this matter. bid to do all remodeling work on those homes, he se- Once Respondent BBS's bond had been attached, cured a general contractors license for Respondent BBS Mylan again activated Respondent Evergreen to com- and commenced bidding under its name. Concomitantly, plete conversion to the cold processing system and to Respondent Evergreen ceased conducting operations, be- contract for performing roofing working utilizing that coming dormant from 1971 to 1977. During that period, system. Initially, Respondent Evergreen used employees Respondent BBS became a party to two successive col- to perform this work though ultimately it substituted lective-bargaining agreements with Local 54 of the w h at it contends are independent contractors for those United Slate, Tile & Composition Roofers, Damp and employees in the west Washington area. 4 Respondent Waterproof Workers Association, AFL-CIO, herein Evergreen has continued to employ employees outside of called the Union, the latest of which is still effective,. that area. For example, at the time of the hearing it had These agreements covered all roofers and waterproofers three crews working in the Portland, Oregon, area. Ap- in the six west Washington Counties of Clallam, Jeffer- parently, these three crews are performing the same type son, King, Kitsap, Mason, and Snohomish. of work as had been performed by the crews employed Respondent BBS's operations, however, were not con- by Respondent BBS in the Portland, Oregon, area. fined to the west Washington geographic area. It bid on With regard to the allegation that Respondents are a and obtained work on Government projects as far from single employing entity, the factors to be considered in that area as Albuquerque, New Mexico, and Denver, resolving whether two nominally separate and distinct Colorado. Moreover, commencing in approximately 1974 business entities are a single employer, within the mean- or 1975, Respondent BBS's operations began to involve ing of Section 2(2) of the Act, "are (1) interrelation of principally performing roofing work on Government operations, (2) common management, (3) centralized con- facilities, rather than general remodeling. Thus, Mylan trol of labor relations, and (4) common ownership." testified: N.L.R.B. v. Don Burgess Construction Corporation, d/b/a Burgess Construction, 596 F.2d 378, 384 (9th Cir. 1979), Q. When you were working as Better Building cert. denied 444 U.S. 940 (1979); see also N.LR.B. v. Big Supply and let's address about 1974 or 1975 now, Bear Supermarkets #3 and its alter ego Richard Holmes, did you get back into roofing work as such? 640 F.2d 924 (9th Cir. 1980). Here, the stock of Re- A. Yes. When the HUD started to dissipate or spondents is held by Mylan and his immediate family. dry up then we went into government work. These individuals also serve as the only directors and of- Q. When you say government work, do you ficers of Respondents. Further, while Mylan has used mean various government buildings? different individuals to assign work to employees of Re- A. Yes. spondents, the history of each of them and the descrip- tions of how they operate demonstrate that he has re- On its income tax returns for calendar years 1978 and tained and possessed control over their labor relations 1979, Respondent BBS listed its principal business activi- policies throughout their history. Indeed, in their brief, ty as being a contractor and its product or service as Respondents acknowledge that [i]t is undisputed that being roofing. Better Building was, and Evergreen is, owned and oper- The mid-1970's was also a period during which an- ated by the Mylans and that common ownership and other development of significance began to emerge. control are facts in this case." Mylan testified that he and his son had begun experi- menting with development of a polyester cold processing A s wi"l be discussed infra, the nature of the relationship between Re- system for installing roofs.. This system was being Lpondent Evergreen and these contractors is the crux of the allegations of system or instlling rofs . This sstem wa being refusal to bargain in this matter. For present purposes, however, it suf- -fics to note that Mylan admitted that these contractors perform the same 'Basically, this process consists of laying tar paper and then pouring work as had the roofing employees whom they succeeded and, further, hot tar over it. while he equivocated at some points regarding the matter, that Mylan I In essence, this process involves spraying cutback on the roof, then conceded that, after Respondent Evergreen had resumed operations, laying a polyester mat across it and then spraying more cutback over there had been a period of time when it had employed employees, as had that. Respondent BBS, to install roofs using the cold process system. BETTER BUILDING SUPPLY CORP. 471 Both Respondents were formed during the mid-1950's. phased in, to replace the hot tar system, by Respondent So far as the record discloses, the stock of each has BBS when, in 1977 or 1978, the trust fund department, always been owned primarily, if not wholly, by Gerald acting pursuant to Respondent BBS's collective-bargain- Mylan and his immediate family. From its inception, Re- ing agreement with the Union, attached Respondent spondent Evergreen engaged in all facets of the roofing BBS's bond and bank account in connection with a dis- business, using what is referred to as the hot tar process pute concerning payment of fringe benefits. This had the for applying roofs.' Respondent BBS, however, remained effect of effectively terminating Respondent BBS's oper- dormant after its formation, conducting no operations ations in the six- county area of west Washington. Nev- and being only a corporate shell. ertheless, Mylan testified that Respondent BBS continued In the late 1960's or very early 1970's, Mylan decided operations in Oregon until ."78 or early '79," when it en- to bid for roofing work on certain houses being remod- gaged in "[c]old application of re-roofs." Moreover, Re- eled under the sponsorship of the United States Depart- spondent BBS's Washington business license did not ment of Housing and Urban Development. Discovering expire until June 30, 1980, shortly before commencement that his success in this venture would be enhanced if he of the hearing in this matter. bid to do all remodeling work on those homes, he se- Once Respondent BBS's bond had been attached, cured a general contractors license for Respondent BBS Mylan again activated Respondent Evergreen to com- and commenced bidding under its name. Concomitantly, plete conversion to the cold processing system and to Respondent Evergreen ceased conducting operations, be- contract for performing roofing working utilizing that coming dormant from 1971 to 1977. During that period, system. Initially, Respondent Evergreen used employees Respondent BBS became a party to two successive col- to perform this work though ultimately it substituted lective-bargaining agreements with Local 54 of the wh at it contends are independent contractors for those United Slate, Tile & Composition Roofers, Damp and employees in the west Washington area. 4 Respondent Waterproof Workers Association, AFL-CIO, herein Evergreen has continued to employ employees outside of called the Union, the latest of which is still effective,. that area. For example, at the time of the hearing it had These agreements covered all roofers and waterproofers three crews working in the Portland, Oregon, area. Ap- in the six west Washington Counties of Clallam, Jeffer- parently, these three crews are performing the same type son, King, Kitsap, Mason, and Snohomish. of work as had been performed by the crews employed Respondent BBS's operations, however, were not con- by Respondent BBS in the Portland, Oregon, area. fined to the west Washington geographic area. It bid on With regard to the allegation that Respondents are a and obtained work on Government projects as far from single employing entity, the factors to be considered in that area as Albuquerque, New Mexico, and Denver, resolving whether two nominally separate and distinct Colorado. Moreover, commencing in approximately 1974 business entities are a single employer, within the mean- or 1975, Respondent BBS's operations began to involve ing of Section 2(2) of the Act, "are (1) interrelation of principally performing roofing work on Government operations, (2) common management, (3) centralized con- facilities, rather than general remodeling. Thus, Mylan trol of labor relations, and (4) common ownership." testified: N.L.R.B. v. Don Burgess Construction Corporation, d/b/a Burgess Construction, 596 F.2d 378, 384 (9th Cir. 1979), Q. When you were working as Better Building cert. denied 444 U.S. 940 (1979); see also N.LR.B. v. Big Supply and let's address about 1974 or 1975 now, Bear Supermarkets #3 and its alter ego Richard Holmes, did you get back into roofing work as such? 640 F.2d 924 (9th Cir. 1980). Here, the stock of Re- A. Yes. When the HUD started to dissipate or spondents is held by Mylan and his immediate family. dry up then we went into government work. These individuals also serve as the only directors and of- Q. When you say government work, do you ficers of Respondents. Further, while Mylan has used mean various government buildings? different individuals to assign work to employees of Re- A. Yes. spondents, the history of each of them and the descrip- tions of how they operate demonstrate that he has re- On its income tax returns for calendar years 1978 and tained and possessed control over their labor relations 1979, Respondent BBS listed its principal business activi- policies throughout their history. Indeed, in their brief, ty as being a contractor and its product or service as Respondents acknowledge that [i]t is undisputed that being roofing. Better Building was, and Evergreen is, owned and oper- The mid-1970's was also a period during which an- ated by the Mylans and that common ownership and other development of significance began to emerge. control are facts in this case." Mylan testified that he and his son had begun experi- menting with development of a polyester cold processing A s wi"l be discussed infra, the nature of the relationship between Re- system for installing roofs.. This system was being Lpondent Evergreen and these contractors is the crux of the allegations of system or instlling rofs . This sstem wa being refusal to bargain in this matter. For present purposes, however, it suf- -fles to note that Mylan admitted that these contractors perform the same 'Basically, this process consists of laying tar paper and then pouring work as had the roofing employees whom they succeeded and, further, hot tar over it. while he equivocated at some points regarding the matter, that Mylan I In essence, this process involves spraying cutback on the roof, then conceded that, after Respondent Evergreen had resumed operations, laying a polyester mat across it and then spraying more cutback over there had been a period of time when it had employed employees, as had that. Respondent BBS, to install roofs using the cold process system. BETTER BUILDING SUPPLY CORP. 471 Both Respondents were formed during the mid-1950's. phased in, to replace the hot tar system, by Respondent So far as the record discloses, the stock of each has BBS when, in 1977 or 1978, the trust fund department, always been owned primarily, if not wholly, by Gerald acting pursuant to Respondent BBS's collective-bargain- Mylan and his immediate family. From its inception, Re- ing agreement with the Union, attached Respondent spondent Evergreen engaged in all facets of the roofing BBS's bond and bank account in connection with a dis- business, using what is referred to as the hot tar process pute concerning payment of fringe benefits. This had the for applying roofs.' Respondent BBS, however, remained effect of effectively terminating Respondent BBS's oper- dormant after its formation, conducting no operations ations in the six- county area of west Washington. Nev- and being only a corporate shell. ertheless, Mylan testified that Respondent BBS continued In the late 1960's or very early 1970's, Mylan decided operations in Oregon until ."78 or early '79," when it en- to bid for roofing work on certain houses being remod- gaged in "[c]old application of re-roofs." Moreover, Re- eled under the sponsorship of the United States Depart- spondent BBS's Washington business license did not ment of Housing and Urban Development. Discovering expire until June 30, 1980, shortly before commencement that his success in this venture would be enhanced if he of the hearing in this matter. bid to do all remodeling work on those homes, he se- Once Respondent BBS's bond had been attached, cured a general contractors license for Respondent BBS Mylan again activated Respondent Evergreen to com- and commenced bidding under its name. Concomitantly, plete conversion to the cold processing system and to Respondent Evergreen ceased conducting operations, be- contract for performing roofing working utilizing that coming dormant from 1971 to 1977. During that period, system. Initially, Respondent Evergreen used employees Respondent BBS became a party to two successive col- to perform this work though ultimately it substituted lective-bargaining agreements with Local 54 of the wh at it contends are independent contractors for those United Slate, Tile & Composition Roofers, Damp and employees in the west Washington area. 4 Respondent Waterproof Workers Association, AFL-CIO, herein Evergreen has continued to employ employees outside of called the Union, the latest of which is still effective,. that area. For example, at the time of the hearing it had These agreements covered all roofers and waterproofers three crews working in the Portland, Oregon, area. Ap- in the six west Washington Counties of Clallam, Jeffer- parently, these three crews are performing the same type son, King, Kitsap, Mason, and Snohomish. of work as had been performed by the crews employed Respondent BBS's operations, however, were not con- by Respondent BBS in the Portland, Oregon, area. fined to the west Washington geographic area. It bid on With regard to the allegation that Respondents are a and obtained work on Government projects as far from single employing entity, the factors to be considered in that area as Albuquerque, New Mexico, and Denver, resolving whether two nominally separate and distinct Colorado. Moreover, commencing in approximately 1974 business entities are a single employer, within the mean- or 1975, Respondent BBS's operations began to involve ing of Section 2(2) of the Act, "are (1) interrelation of principally performing roofing work on Government operations, (2) common management, (3) centralized con- facilities, rather than general remodeling. Thus, Mylan trol of labor relations, and (4) common ownership." testified: N.L.R.B. v. Don Burgess Construction Corporation, d/b/a Burgess Construction, 596 F.2d 378, 384 (9th Cir. 1979), Q. When you were working as Better Building cert. denied 444 U.S. 940 (1979); see also N.LR.B. v. Big Supply and let's address about 1974 or 1975 now, Bear Supermarkets #3 and its alter ego Richard Holmes, did you get back into roofing work as such? 640 F.2d 924 (9th Cir. 1980). Here, the stock of Re- A. Yes. When the HUD started to dissipate or spondents is held by Mylan and his immediate family. dry up then we went into government work. These individuals also serve as the only directors and of- Q. When you say government work, do you ficers of Respondents. Further, while Mylan has used mean various government buildings? different individuals to assign work to employees of Re- A. Yes. spondents, the history of each of them and the descrip- tions of how they operate demonstrate that he has re- On its income tax returns for calendar years 1978 and tained and possessed control over their labor relations 1979, Respondent BBS listed its principal business activi- policies throughout their history. Indeed, in their brief, ty as being a contractor and its product or service as Respondents acknowledge that [i]t is undisputed that being roofing. Better Building was, and Evergreen is, owned and oper- The mid-1970's was also a period during which an- ated by the Mylans and that common ownership and other development of significance began to emerge. control are facts in this case." Mylan testified that he and his son had begun experi- menting with development of a polyester cold processing A s wi"l be discussed infra, the nature of the relationship between Re- system for installing roofs.. This system was being Lpondent Evergreen and these contractors is the crux of the allegations of system or instlling rofs . This sstem wa being refusal to bargain in this matter. For present purposes, however, it suf- -fles to note that Mylan admitted that these contractors perform the same 'Basically, this process consists of laying tar paper and then pouring work as had the roofing employees whom they succeeded and, further, hot tar over it. while he equivocated at some points regarding the matter, that Mylan I In essence, this process involves spraying cutback on the roof, then conceded that, after Respondent Evergreen had resumed operations, laying a polyester mat across it and then spraying more cutback over there had been a period of time when it had employed employees, as had that. Respondent BBS, to install roofs using the cold process system. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the existence of interrelated oper- spondent BBS became a party. Moreover, Respondents ations, it is true that Respondent BBS was licensed as a have ignored the Union's requests that they do so. Aside general contractor whereas Respondent Evergreen is li- from the argument that Respondents are separate em- censed to perform only roofing work and, further, that ployers, rejected above, Respondents base their refusal to Respondent Evergreen does its roofing work by means continue honoring that agreement upon the relationship of the polyester cold process system. Yet, these hardly between Respondent Evergreen and the applicators- are differences of substance. For, as set forth above, Re- those who install the roofs. spondent BBS, however licensed, had been performing As set forth above, when Respondent Evergreen re- primarily roofing work after the HUD remodeling work sumed operations, it employed its own employees initial- had begun to "dissipate or dry up," and, as its income ly. However, within a short span of time, it changed the tax returns disclose, had been listing roofing as its pri- nature of that relationship so that some of the applicators mary business before it was completely deactivated fol- were reclassified as subcontractors. They, then, retained lowing attachment of its bond. other applicators to install the roofs, and Respondent Ev- Development of the cold process system, which Re- ergreen ceased employing its own employees. Inasmuch spondent Evergreen now uses, was instituted under the as this occurred more than 6 months prior to the filing of auspices of Respondent BBS and the commencment of the charge in Case 19-CA-11908, there is no allegation phasing it in, to replace the hot tar system, had begun that in making these changes Respondents violated the under Respondent BBS. In fact, so far as the record dis- Act. closes, the reactivation of Respondent Evergreen had However, Mylan conceded that the subcontractors and been occasioned exclusively by the attachment of Re- the applicators whom they retained to install the roofs spondent BBS's bond which had the effect of preventing are performing the same type of work as had formerly it from continuing operations in the west Washington been performed by Respondent Evergreen's employees area. There is no evidence showing that had that not prior to the relationship conversion. The General Coun- happened, Respondent Evergreen would have been reac- sel argues that, notwithstanding this conversion, the ap- tivated to handle contracts for performing the polyester plicators doing the roofing work for Respondent Ever- cold process system of roofing. Rather, with Respondent green have remained its employees within the meaning BBS's bond attached, Mylan needed an entity to conduct of Section 2(3) of the Act, and, accordingly, that Re- that system of roofing and so reactivated Respondent spondent Evergreen has remained obligated to apply the Evergreen to do it. So far as the evidence shows, had terms of its collective-bargaining agreement with the Respondent BBS's bond not been attached, Mylan simply Union to them. Conversely, Respondent argues, in es- would have continued developing and phasing in the sence, that the terms of the collective-bargaining agree- cold processing system under that entity. Indeed, should ment cannot be applied to these persons by Respondent Respondent BBS obtain another business license and Evergreen inasmuch as the conversion resulted in their straighten out its bond problem, "there is nothing to pre- becoming independent contractors within the meaning of vent [Mylan] from retransferring [roofing operations] Section 2(3) of the Act and separate employers within back to Respondent [BBS]." Los Angeles Marine Hard- the meaning of Section 2(2) of the Act, with the result ware Co., a Division of Mission Marine Associates, Inc.; and that the applicators employed by them are not employees California Marine Hardware Co., a Division of Mission of Respondent Evergreen. Consequently, the principal Marine Associates, Inc., 235 NLRB 720, 732 (1978), enfd. issue in this case is whether the applicators retained by 640 F.2d 1017 (9th Cir. 1981). the subcontractors 5 are employees only of the subcon- In these circumstances there is sufficient identity of tractors or remain employees of Respondent Evergreen. operations, management, control of labor relations, and In addition, on January 2, 1980, the Union requested ownership to warrant the conclusion that Respondents that Respondent provide it with a list of the names and are a single employer within the meaning of Section 2(2) addresses of the employees performing the roofing of the Act. Therefore, I find that at all times material work, the hours worked by each of them and the wages Respondents have been a single employer within the and fringe benefit contributions, if any, made on behalf meaning of Section 2(2) of the Act, engaged in com- of each one of them. In its letter the Union recites that merce within the meaning of Section 2(6) and (7) of the its purpose in making the request "is to determine wheth- 0 ~~~~~~~~Act. "~er your employees are complying with our collective- II. THE LABOR ORGANIZATION INVOLVED bargaining agreement with respect to their obligation to join Roofers Local 54 and maintain their membership in At all times material the Union has been a labor orga- the Union; and also to determine whether or not your nization within the meaning of Section 2(5) of the Act. firm has been complying with the collective-bargaining agreement by paying contractual wages and fringe bene- llI. ISSUE fits consistent with the agreement." It is undisputed that As set forth above, Respondent Evergreen had been Respondent has not complied with that request. Thus, reactivated to continue developing the polyester cold the General Counsel alleges that Respondent violated processing system initiated by Mylan through Respond- ent BBS. The parties stipulated that since June 20, 1977, t'rs appears undisputed that those individuals who became subcontrac- tors would be considered supervisors within the meaning of Sec. 2(11) of Respondent Evergreen has not considered itself bound the Act even if Respondent Evergreen remained the employer of the ap- by the collective-bargaining agreement to which Re- plicators hired by them. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the existence of interrelated oper- spondent BBS became a party. Moreover, Respondents ations, it is true that Respondent BBS was licensed as a have ignored the Union's requests that they do so. Aside general contractor whereas Respondent Evergreen is li- from the argument that Respondents are separate em- censed to perform only roofing work and, further, that ployers, rejected above, Respondents base their refusal to Respondent Evergreen does its roofing work by means continue honoring that agreement upon the relationship of the polyester cold process system. Yet, these hardly between Respondent Evergreen and the applicators- are differences of substance. For, as set forth above, Re- those who install the roofs. spondent BBS, however licensed, had been performing As set forth above, when Respondent Evergreen re- primarily roofing work after the HUD remodeling work sumed operations, it employed its own employees initial- had begun to "dissipate or dry up," and, as its income ly. However, within a short span of time, it changed the tax returns disclose, had been listing roofing as its pri- nature of that relationship so that some of the applicators mary business before it was completely deactivated fol- were reclassified as subcontractors. They, then, retained lowing attachment of its bond. other applicators to install the roofs, and Respondent Ev- Development of the cold process system, which Re- ergreen ceased employing its own employees. Inasmuch spondent Evergreen now uses, was instituted under the as this occurred more than 6 months prior to the filing of auspices of Respondent BBS and the commencment of the charge in Case 19-CA-11908, there is no allegation phasing it in, to replace the hot tar system, had begun that in making these changes Respondents violated the under Respondent BBS. In fact, so far as the record dis- Act. closes, the reactivation of Respondent Evergreen had However, Mylan conceded that the subcontractors and been occasioned exclusively by the attachment of Re- the applicators whom they retained to install the roofs spondent BBS's bond which had the effect of preventing are performing the same type of work as had formerly it from continuing operations in the west Washington been performed by Respondent Evergreen's employees area. There is no evidence showing that had that not prior to the relationship conversion. The General Coun- happened, Respondent Evergreen would have been reac- sel argues that, notwithstanding this conversion, the ap- tivated to handle contracts for performing the polyester plicators doing the roofing work for Respondent Ever- cold process system of roofing. Rather, with Respondent green have remained its employees within the meaning BBS's bond attached, Mylan needed an entity to conduct of Section 2(3) of the Act, and, accordingly, that Re- that system of roofing and so reactivated Respondent spondent Evergreen has remained obligated to apply the Evergreen to do it. So far as the evidence shows, had terms of its collective-bargaining agreement with the Respondent BBS's bond not been attached, Mylan simply Union to them. Conversely, Respondent argues, in es- would have continued developing and phasing in the sence, that the terms of the collective-bargaining agree- cold processing system under that entity. Indeed, should ment cannot be applied to these persons by Respondent Respondent BBS obtain another business license and Evergreen inasmuch as the conversion resulted in their straighten out its bond problem, "there is nothing to pre- becoming independent contractors within the meaning of vent [Mylan] from retransferring [roofing operations] Section 2(3) of the Act and separate employers within back to Respondent [BBS]." Los Angeles Marine Hard- the meaning of Section 2(2) of the Act, with the result wa r e Co., a D ivision of Mi s sio n M a rin e A sso cia t es, I n c. a n d that the applicators employed by them are not employees California Marine Hardware Co., a Division of Mission of Respondent Evergreen. Consequently, the principal Marine Associates, In c 2 35 NL R B 720 , 7 32 ( 197 8), en f d . issue in this case is whether the applicators retained by 640 F.2d 1017 (9th Cir. 1981). the subcontractors5 are employees only of the subcon- In these circumstances there is sufficient identity of tractors or remain employees of Respondent Evergreen. operations, management, control of labor relations, and In addition, on January 2, 1980, the Union requested ownership to warrant the conclusion that Respondents that Respondent provide it with a list of the names and are a single employer within the meaning of Section 2(2) addresses of the employees performing the roofing of the Act. Therefore, I find that at all times material w e hours worked by each of them and the wages Respondents have been a single employer within the a benefit contributions, if any, made on behalf meaning of Section 2(2) of the Act, engaged in com- of each one of them. In its letter the Union recites that merce within the meaning of Section 2(6) and (7) of the i puo i mi the request "is to determine wheth- Act. er your employees are complying with our collective- I. THE LABOR ORGANIZATION INVOLVED bargaining agreement with respect to their obligation to join Roofers Local 54 and maintain their membership in At all times material the Union has been a labor orga- the Union; and also to determine whether or not your nization within the meaning of Section 2(5) of the Act. firm has been complying with the collective-bargaining agreement by paying contractual wages and fringe bene- III. ISSUE fits consistent with the agreement." It is undisputed that As set forth above, Respondent Evergreen had been Respondent has not complied with that request. Thus, reactivated to continue developing the polyester cold t he General Counsel alleges that Respondent violated processing system initiated by Mylan through Respond- ent BBS. The parties stipulated that since June 20, 1977, It appears undisputed that those individuals who became subcontrac- tors would be considered supervisors within the meaning of Sec. 2(11) of Respondent Evergreen has not considered Itself bound the Act even if Respondent Evergreen remained the employer of the ap- by the collective-bargaining agreement to which Re- plicators hired by them. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the existence of interrelated oper- spondent BBS became a party. Moreover, Respondents ations, it is true that Respondent BBS was licensed as a have ignored the Union's requests that they do so. Aside general contractor whereas Respondent Evergreen is li- from the argument that Respondents are separate em- censed to perform only roofing work and, further, that ployers, rejected above, Respondents base their refusal to Respondent Evergreen does its roofing work by means continue honoring that agreement upon the relationship of the polyester cold process system. Yet, these hardly between Respondent Evergreen and the applicators- are differences of substance. For, as set forth above, Re- those who install the roofs. spondent BBS, however licensed, had been performing As set forth above, when Respondent Evergreen re- primarily roofing work after the HUD remodeling work sumed operations, it employed its own employees initial- had begun to "dissipate or dry up," and, as its income ly. However, within a short span of time, it changed the tax returns disclose, had been listing roofing as its pri- nature of that relationship so that some of the applicators mary business before it was completely deactivated fol- were reclassified as subcontractors. They, then, retained lowing attachment of its bond. other applicators to install the roofs, and Respondent Ev- Development of the cold process system, which Re- ergreen ceased employing its own employees. Inasmuch spondent Evergreen now uses, was instituted under the as this occurred more than 6 months prior to the filing of auspices of Respondent BBS and the commencment of the charge in Case 19-CA-11908, there is no allegation phasing it in, to replace the hot tar system, had begun that in making these changes Respondents violated the under Respondent BBS. In fact, so far as the record dis- Act. closes, the reactivation of Respondent Evergreen had However, Mylan conceded that the subcontractors and been occasioned exclusively by the attachment of Re- the applicators whom they retained to install the roofs spondent BBS's bond which had the effect of preventing are performing the same type of work as had formerly it from continuing operations in the west Washington been performed by Respondent Evergreen's employees area. There is no evidence showing that had that not prior to the relationship conversion. The General Coun- happened, Respondent Evergreen would have been reac- sel argues that, notwithstanding this conversion, the ap- tivated to handle contracts for performing the polyester plicators doing the roofing work for Respondent Ever- cold process system of roofing. Rather, with Respondent green have remained its employees within the meaning BBS's bond attached, Mylan needed an entity to conduct of Section 2(3) of the Act, and, accordingly, that Re- that system of roofing and so reactivated Respondent spondent Evergreen has remained obligated to apply the Evergreen to do it. So far as the evidence shows, had terms of its collective-bargaining agreement with the Respondent BBS's bond not been attached, Mylan simply Union to them. Conversely, Respondent argues, in es- would have continued developing and phasing in the sence, that the terms of the collective-bargaining agree- cold processing system under that entity. Indeed, should ment cannot be applied to these persons by Respondent Respondent BBS obtain another business license and Evergreen inasmuch as the conversion resulted in their straighten out its bond problem, "there is nothing to pre- becoming independent contractors within the meaning of vent [Mylan] from retransferring [roofing operations] Section 2(3) of the Act and separate employers within back to Respondent [BBS]." Los Angeles Marine Hard- the meaning of Section 2(2) of the Act, with the result wa r e Co., a D ivision of Mi s sio n M a rin e A sso cia t es, I n c. a n d that the applicators employed by them are not employees California Marine Hardware Co., a Division of Mission of Respondent Evergreen. Consequently, the principal Marine Associates, In c 2 35 NL R B 720 , 7 32 ( 197 8), en f d . issue in this case is whether the applicators retained by 640 F.2d 1017 (9th Cir. 1981). the subcontractors5 are employees only of the subcon- In these circumstances there is sufficient identity of tractors or remain employees of Respondent Evergreen. operations, management, control of labor relations, and In addition, on January 2, 1980, the Union requested ownership to warrant the conclusion that Respondents that Respondent provide it with a list of the names and are a single employer within the meaning of Section 2(2) addresses of the employees performing the roofing of the Act. Therefore, I find that at all times material w hours worked by each of them and the wages Respondents have been a single employer within the a benefit contributions, if any, made on behalf meaning of Section 2(2) of the Act, engaged in com- of each one of them. In its letter the Union recites that merce within the meaning of Section 2(6) and (7) of the i puo i mi t ru "is t determine wheth- Act. er your employees are complying with our collective- I. THE LABOR ORGANIZATION INVOLVED bargaining agreement with respect to their obligation to join Roofers Local 54 and maintain their membership in At all times material the Union has been a labor orga- the Union; and also to determine whether or not your nization within the meaning of Section 2(5) of the Act. firm has been complying with the collective-bargaining agreement by paying contractual wages and fringe bene- III. ISSUE fits consistent with the agreement." It is undisputed that As set forth above, Respondent Evergreen had been Respondent has not complied with that request. Thus, reactivated to continue developing the polyester cold t he General Counsel alleges that Respondent violated processing system initiated by Mylan through Respond- ent BBS. The parties stipulated that since June 20, 1977, It appears undisputed that those individuals who became subcontrac- tors would be considered supervisors within the meaning of Sec. 2(11) of Respondent Evergreen has not considered Itself bound the Act even if Respondent Evergreen remained the employer of the ap- by the collective-bargaining agreement to which Re- plicators hired by them. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the existence of interrelated oper- spondent BBS became a party. Moreover, Respondents ations, it is true that Respondent BBS was licensed as a have ignored the Union's requests that they do so. Aside general contractor whereas Respondent Evergreen is li- from the argument that Respondents are separate em- censed to perform only roofing work and, further, that ployers, rejected above, Respondents base their refusal to Respondent Evergreen does its roofing work by means continue honoring that agreement upon the relationship of the polyester cold process system. Yet, these hardly between Respondent Evergreen and the applicators- are differences of substance. For, as set forth above, Re- those who install the roofs. spondent BBS, however licensed, had been performing As set forth above, when Respondent Evergreen re- primarily roofing work after the HUD remodeling work sumed operations, it employed its own employees initial- had begun to "dissipate or dry up," and, as its income ly. However, within a short span of time, it changed the tax returns disclose, had been listing roofing as its pri- nature of that relationship so that some of the applicators mary business before it was completely deactivated fol- were reclassified as subcontractors. They, then, retained lowing attachment of its bond. other applicators to install the roofs, and Respondent Ev- Development of the cold process system, which Re- ergreen ceased employing its own employees. Inasmuch spondent Evergreen now uses, was instituted under the as this occurred more than 6 months prior to the filing of auspices of Respondent BBS and the commencment of the charge in Case 19-CA-11908, there is no allegation phasing it in, to replace the hot tar system, had begun that in making these changes Respondents violated the under Respondent BBS. In fact, so far as the record dis- Act. closes, the reactivation of Respondent Evergreen had However, Mylan conceded that the subcontractors and been occasioned exclusively by the attachment of Re- the applicators whom they retained to install the roofs spondent BBS's bond which had the effect of preventing are performing the same type of work as had formerly it from continuing operations in the west Washington been performed by Respondent Evergreen's employees area. There is no evidence showing that had that not prior to the relationship conversion. The General Coun- happened, Respondent Evergreen would have been reac- sel argues that, notwithstanding this conversion, the ap- tivated to handle contracts for performing the polyester plicators doing the roofing work for Respondent Ever- cold process system of roofing. Rather, with Respondent green have remained its employees within the meaning BBS's bond attached, Mylan needed an entity to conduct of Section 2(3) of the Act, and, accordingly, that Re- that system of roofing and so reactivated Respondent spondent Evergreen has remained obligated to apply the Evergreen to do it. So far as the evidence shows, had terms of its collective-bargaining agreement with the Respondent BBS's bond not been attached, Mylan simply Union to them. Conversely, Respondent argues, in es- would have continued developing and phasing in the sence, that the terms of the collective-bargaining agree- cold processing system under that entity. Indeed, should ment cannot be applied to these persons by Respondent Respondent BBS obtain another business license and Evergreen inasmuch as the conversion resulted in their straighten out its bond problem, "there is nothing to pre- becoming independent contractors within the meaning of vent [Mylan] from retransferring [roofing operations] Section 2(3) of the Act and separate employers within back to Respondent [BBS]." Los Angeles Marine Hard- the meaning of Section 2(2) of the Act, with the result wa r e Co., a D ivision of Mi s sio n M a rin e A sso cia t es, I n c. a n d that the applicators employed by them are not employees California Marine Hardware Co., a Division of Mission of Respondent Evergreen. Consequently, the principal Marine Associates, In c 2 35 NL R B 720 , 7 32 ( 197 8), en f d . issue in this case is whether the applicators retained by 640 F.2d 1017 (9th Cir. 1981). the subcontractors5 are employees only of the subcon- In these circumstances there is sufficient identity of tractors or remain employees of Respondent Evergreen. operations, management, control of labor relations, and In addition, on January 2, 1980, the Union requested ownership to warrant the conclusion that Respondents that Respondent provide it with a list of the names and are a single employer within the meaning of Section 2(2) addresses of the employees performing the roofing of the Act. Therefore, I find that at all times material w hours worked by each of them and the wages Respondents have been a single employer within the a benefit contributions, if any, made on behalf meaning of Section 2(2) of the Act, engaged in com- of each one of them. In its letter the Union recites that merce within the meaning of Section 2(6) and (7) of the its p in m th rqe " determine wheth- Act. er your employees are complying with our collective- I. THE LABOR ORGANIZATION INVOLVED bargaining agreement with respect to their obligation to join Roofers Local 54 and maintain their membership in At all times material the Union has been a labor orga- the Union; and also to determine whether or not your nization within the meaning of Section 2(5) of the Act. firm has been complying with the collective-bargaining agreement by paying contractual wages and fringe bene- III. ISSUE fits consistent with the agreement." It is undisputed that As set forth above, Respondent Evergreen had been Respondent has not complied with that request. Thus, reactivated to continue developing the polyester cold t he General Counsel alleges that Respondent violated processing system initiated by Mylan through Respond- ent BBS. The parties stipulated that since June 20, 1977, It appears undisputed that those individuals who became subcontrac- tors would be considered supervisors within the meaning of Sec. 2(11) of Respondent Evergreen has not considered Itself bound the Act even if Respondent Evergreen remained the employer of the ap- by the collective-bargaining agreement to which Re- plicators hired by them. BETTER BUILDING SUPPLY CORP. 473 Section 8(aX5) and (1) of the Act by disregarding the system is the pumper rig developed by Mylan.? These Union's request for this information. rigs are leased to the subcontractors. However, the lease is not a written one and the subcontractors are charged IV. THE RELATIONSHIP BETWEEN RESPONDENTS AND but a dollar per year for the lease of one of these vehi- THE APPLICATORS cles. When not in use, the rigs normally are parked at Mylan, one former subcontractor (Walter L. Camp- Respondent Evergreen yard. Moreover, Respondent Ev- bell), and two current subcontractors (M. Christopher ergreen also provides Gardner and Romei with chase Gardner, Jr., and Christopher Alessio Romei, who are trucks that are used to transport roofing materials to job- jointly doing business as Fresh Air Roofing, a corpora- sites. So far as the record discloses no rental is charged tion) testified regarding the relationship between Re- to them for the chase trucks. While subcontractors are spondent Evergreen, the subcontractors, and other appli- obliged to furnish fuel for their own vehicles, Respond- cators. Each of the subcontractors formed their own or- ent Evergreen provides the fuel used for the rigs, either ganizations, in some instances corporations, and obtained from a pump in its yard or by reimbursing the subcon- their own business licenses as contractors to perform, at tractors for fuel purchased elsewhere. Furthermore, least, roofing work. Respondents make no deductions or while subcontractors furnish the labor used to maintain contributions for subcontractors or the applicators whom the vehicles owned by Mylan or by Respondent Ever- they retain to assist them in installing roofs. The subcon- green, the latter furnishes the materials needed and pays tractors pay the wages of the applicators they hire. In es- for any major maintenance work that must be performed sence, therefore, each of the subcontractors has estab- on the rigs or chase trucks. lished at least a nominally separate and distinct business The materials used to perform the roofing work, i.e., enterprise. rolls of polyester, cutback, mastic, and webbing, are sup- As set forth above, Respondent Evergreen markets a plied by Respondent Evergreen. It maintains locked polyester cold processing system of roofing, primarily areas at its yard for each of the subcontractors in which for nonresidential structures. Contracts to perform this these materials are stored and which Respondent Ever- work are obtained for Respondent Evergreen by inde- green replenishes periodically. Only in the event that, in pendent sales representatives, called ISR, individuals effect, a subcontractor causes the loss of material who have signed an Independent Sales Representative through negligence or heedlessness is the subcontractor Agreement with Respondent Evergreen.6 Under the charged for the material. While the subcontractors pro- terms of these agreements Respondent "Evergreen will vide their own tools used to perform roofing work, pay a commission to the ISR at the rates currently pub- Campbell testified, without contradiction, that journey- lished by the Company as amended from time to time, man roofers are expected to provide their own hand- on all jobs sold by the ISR." tools. There is no showing that the tools actually used by Having obtained these contracts Respondent Ever- the subcontractors differed in any respect from what green then selects the subcontractor who will be as- journeyman roofers normally use. signed to perform the specific work called for by each The employees who compose the crews used by Gard- contract. So far as the record discloses, the subcontrac- ner, Romei, and other subcontractors are hired by and tors have no voice in determining the particular jobs to paid by the subcontractors at rates which they set. How- which they will be assigned. Nor, for that matter, does ever, during their first year of operation, Gardner and the subcontractor have any direct contact with custom- Romei were the only two crewmembers working for ers, save in those instances, apparently rare, where the Fresh Air, with the result that during that period they subcontractor has also sold a particular roofing job as an did not have the need to hire any employees. Moreover, independent sales representative. All subcontractors testi- the initial three person crew hired by Campbell had been fled that they could reject jobs that were assigned to working for Respondent Evergreen immediately before them. However, the evidence discloses only a single spe- commencing work for Campbell. While he testified that cific instance where a subcontractor rejected a roofing he had had a choice as to whether or not to hire them, job assigned by Respondent Evergreen-Romei testified he acknowledged that Respondent Evergreen had told that he had once turned down a job at the Aurora him to take them as his first crew. Finally, the record Drive-In Theatre because "I got dizzy up there . .. and discloses evidence of a degree of more regular integra- I just didn't feel comfortable being there." tion between employees who work for subcontractors The system followed for performing roofing work is, and Respondent Evergreen. Thus, Mylan conceded that of course, the polyester cold processing one which Re- some or all of the employees hired to do work in Re- spondent Evergreen has developed and which it markets. spondent Evergreen's yard alternate back and forth be- While subcontractors own their own pickup trucks and, tween employment with it and its subcontractors. He fur- at least in some instances, their own flatbed trucks, the ther agreed that in some cases Respondent Evergreen crucial vehicle for performing the work under this provides yardwork to tide over employees who normally do roofing work for Fresh Air in situations where roof- ' Some of the subcontractors have signed such agreements with Re d r w f F A - spondent Evergreen, thereby enabling them to sell roofing projects, ing work is not available. In addition, there is evidenoe addition to applying, roofs sold by others. However, as illustrated by Campbell's testimony that he had never signed such an agreement with 7 While both Campbell and Gardner agreed that roofs could be applied Respondent Evergreen, it is not necessary for such an agreement to be without the use of such a rig, the former testified that he had never done signed in order for individuals to apply roofs as Respondent Evergreen's so and the latter testified, credibly, that it would not be commercially subcontractors. feasible, in the sense of competitive, to do so. BETTER BUILDING SUPPLY CORP. 473 Section 8(aX5) and (1) of the Act by disregarding the system is the pumper rig developed by Mylan. 7 These Union's request for this information. rigs are leased to the subcontractors. However, the lease is not a written one and the subcontractors are charged IV. THE RELATIONSHIP BETWEEN RESPONDENTS AND but a dollar per year for the lease of one of these vehi- THE APPLICATORS cles. When not in use, the rigs normally are parked at Mylan, one former subcontractor (Walter L. Camp- Respondent Evergreen yard. Moreover, Respondent Ev- bell), and two current subcontractors (M. Christopher ergreen also provides Gardner and Romei with chase Gardner, Jr., and Christopher Alessio Romei, who are t ru c ks that are used to transport roofing materials to job- jointly doing business as Fresh Air Roofing, a corpora- s ite s. So far as the record discloses no rental is charged tion) testified regarding the relationship between Re- t o t h em fo r t h e chase trucks. While subcontractors are spondent Evergreen, the subcontractors, and other appli- obliged to furnish fuel for their own vehicles, Respond- cators. Each of the subcontractors formed their own or- ent Evergreen provides the fuel used for the rigs, either ganizations, in some instances corporations, and obtained from a pump in its yard or by reimbursing the subcon- their own business licenses as contractors to perform, at tractors for fuel purchased elsewhere. Furthermore, least, roofing work. Respondents make no deductions or while subcontractors furnish the labor used to maintain contributions for subcontractors or the applicators whom the vehicles owned by Mylan or by Respondent Ever- they retain to assist them in installing roofs. The subcon- green, the latter furnishes the materials needed and pays tractors pay the wages of the applicators they hire. In es- for any major maintenance work that must be performed sence, therefore, each of the subcontractors has estab- on the rigs or chase trucks. lished at least a nominally separate and distinct business The materials used to perform the roofing work, i.e., enterprise. rolls of polyester, cutback, mastic, and webbing, are sup- As set forth above, Respondent Evergreen markets a plied by Respondent Evergreen. It maintains locked polyester cold processing system of roofing, primarily areas at its yard for each of the subcontractors in which for nonresidential structures. Contracts to perform this these materials are stored and which Respondent Ever- work are obtained for Respondent Evergreen by inde- green replenishes periodically. Only in the event that, in pendent sales representatives, called ISR, individuals effect, a subcontractor causes the loss of material who have signed an Independent Sales Representative through negligence or heedlessness is the subcontractor Agreement with Respondent Evergreen.I Under the charged for the material. While the subcontractors pro- terms of these agreements Respondent "Evergreen will vide their own tools used to perform roofing work, pay a commission to the ISR at the rates currently pub- Campbell testified, without contradiction, that journey- lished by the Company as amended from time to time, man roofers are expected to provide their own hand- on all jobs sold by the ISR." tools. There is no showing that the tools actually used by Having obtained these contracts Respondent Ever- the subcontractors differed in any respect from what green then selects the subcontractor who will be as- journeyman roofers normally use. signed to perform the specific work called for by each The employees who compose the crews used by Gard- contract. So far as the record discloses, the subcontrac- ner, Romei, and other subcontractors are hired by and tors have no voice in determining the particular jobs to paid by the subcontractors at rates which they set. How- which they will be assigned. Nor, for that matter, does ever, during their first year of operation, Gardner and the subcontractor have any direct contact with custom- Romei were the only two crewmembers working for ers, save in those instances, apparently rare, where the Fresh Air, with the result that during that period they subcontractor has also sold a particular roofing job as an did not have the need to hire any employees. Moreover, independent sales representative. All subcontractors testi- the initial three person crew hired by Campbell had been fied that they could reject jobs that were assigned to working for Respondent Evergreen immediately before them. However, the evidence discloses only a single spe- commencing work for Campbell. While he testified that cific instance where a subcontractor rejected a roofing he had had a choice as to whether or not to hire them, job assigned by Respondent Evergreen-Romei testified he acknowledged that Respondent Evergreen had told that he had once turned down a job at the Aurora him to take them as his first crew. Finally, the record Drive-In Theatre because "I got dizzy up there ... and discloses evidence of a degree of more regular integra- I just didn't feel comfortable being there." tion between employees who work for subcontractors The system followed for performing roofing work is, and Respondent Evergreen. Thus, Mylan conceded that of course, the polyester cold processing one which Re- some or all of the employees hired to do work in Re- spondent Evergreen has developed and which it markets. spondent Evergreen's yard alternate back and forth be- While subcontractors own their own pickup trucks and, tween employment with it and its subcontractors. He fur- at least in some instances, their own flatbed trucks, the ther agreed that in some cases Respondent Evergreen crucial vehicle for performing the work under this provides yardwork to tide over employees who normally ~---~~ .. . .~~~~~~~~~do roofing work for Fresh Air in situations where roof- ' Some of the subcontractors have signed such agreements with Re- d r w fo Frs A in sui w rof spondent Evergreen, thereby enabling them to sell roofing projects, in ing w o r k is n o t available. In addition, there is evidenoe addition to applying, roofs sold by others. However, as illustrated by Campbell's testimony that he had never signed such an agreement with While both Campbell and Gardner agreed that roofs could be applied Respondent Evergreen, it is not necessary for such an agreement to be without the use of such a rig, the former testified that he had never done signed in order for individuals to apply roofs as Respondent Evergreen's so and the latter testified, credibly, that it would not be commercially subcontractors.feasible, in the sense of competitive, to do so. BETTER BUILDING SUPPLY CORP. 473 Section 8(aX5) and (1) of the Act by disregarding the system is the pumper rig developed by Mylan. 7 These Union's request for this information. rigs are leased to the subcontractors. However, the lease is not a written one and the subcontractors are charged IV. THE RELATIONSHIP BETWEEN RESPONDENTS AND but a dollar per year for the lease of one of these vehi- THE APPLICATORS cles. When not in use, the rigs normally are parked at Mylan, one former subcontractor (Walter L. Camp- Respondent Evergreen yard. Moreover, Respondent Ev- bell), and two current subcontractors (M. Christopher ergreen also provides Gardner and Romei with chase Gardner, Jr., and Christopher Alessio Romei, who are t ru c ks that are used to transport roofing materials to job- jointly doing business as Fresh Air Roofing, a corpora- s ite s. So far as the record discloses no rental is charged tion) testified regarding the relationship between Re- t o t h em fo r t h e chase trucks. While subcontractors are spondent Evergreen, the subcontractors, and other appli- obliged to furnish fuel for their own vehicles, Respond- cators. Each of the subcontractors formed their own or- ent Evergreen provides the fuel used for the rigs, either ganizations, in some instances corporations, and obtained from a pump in its yard or by reimbursing the subcon- their own business licenses as contractors to perform, at tractors for fuel purchased elsewhere. Furthermore, least, roofing work. Respondents make no deductions or while subcontractors furnish the labor used to maintain contributions for subcontractors or the applicators whom the vehicles owned by Mylan or by Respondent Ever- they retain to assist them in installing roofs. The subcon- green, the latter furnishes the materials needed and pays tractors pay the wages of the applicators they hire. In es- for any major maintenance work that must be performed sence, therefore, each of the subcontractors has estab- on the rigs or chase trucks. lished at least a nominally separate and distinct business The materials used to perform the roofing work, i.e., enterprise. rolls of polyester, cutback, mastic, and webbing, are sup- As set forth above, Respondent Evergreen markets a plied by Respondent Evergreen. It maintains locked polyester cold processing system of roofing, primarily areas at its yard for each of the subcontractors in which for nonresidential structures. Contracts to perform this these materials are stored and which Respondent Ever- work are obtained for Respondent Evergreen by inde- green replenishes periodically. Only in the event that, in pendent sales representatives, called ISR, individuals effect, a subcontractor causes the loss of material who have signed an Independent Sales Representative through negligence or heedlessness is the subcontractor Agreement with Respondent Evergreen.I Under the charged for the material. While the subcontractors pro- terms of these agreements Respondent "Evergreen will vide their own tools used to perform roofing work, pay a commission to the ISR at the rates currently pub- Campbell testified, without contradiction, that journey- lished by the Company as amended from time to time, man roofers are expected to provide their own hand- on all jobs sold by the ISR." tools. There is no showing that the tools actually used by Having obtained these contracts Respondent Ever- the subcontractors differed in any respect from what green then selects the subcontractor who will be as- journeyman roofers normally use. signed to perform the specific work called for by each The employees who compose the crews used by Gard- contract. So far as the record discloses, the subcontrac- ner, Romei, and other subcontractors are hired by and tors have no voice in determining the particular jobs to paid by the subcontractors at rates which they set. How- which they will be assigned. Nor, for that matter, does ever, during their first year of operation, Gardner and the subcontractor have any direct contact with custom- Romei were the only two crewmembers working for ers, save in those instances, apparently rare, where the Fresh Air, with the result that during that period they subcontractor has also sold a particular roofing job as an did not have the need to hire any employees. Moreover, independent sales representative. All subcontractors testi- the initial three person crew hired by Campbell had been fied that they could reject jobs that were assigned to working for Respondent Evergreen immediately before them. However, the evidence discloses only a single spe- commencing work for Campbell. While he testified that cific instance where a subcontractor rejected a roofing he had had a choice as to whether or not to hire them, job assigned by Respondent Evergreen-Romei testified he acknowledged that Respondent Evergreen had told that he had once turned down a job at the Aurora him to take them as his first crew. Finally, the record Drive-In Theatre because "I got dizzy up there ... and discloses evidence of a degree of more regular integra- I just didn't feel comfortable being there." tion between employees who work for subcontractors The system followed for performing roofing work is, and Respondent Evergreen. Thus, Mylan conceded that of course, the polyester cold processing one which Re- some or all of the employees hired to do work in Re- spondent Evergreen has developed and which it markets. spondent Evergreen's yard alternate back and forth be- While subcontractors own their own pickup trucks and, tween employment with it and its subcontractors. He fur- at least in some instances, their own flatbed trucks, the ther agreed that in some cases Respondent Evergreen crucial vehicle for performing the work under this provides yardwork to tide over employees who normally ~---~~ .. . .~~~~~~~~~do roofing work for Fresh Air in situations where roof- ' Some of the subcontractors have signed such agreements with Re- d r w fo Frs A in sui w rof spondent Evergreen, thereby enabling them to sell roofing projects, in ing w o r k is n o t available. In addition, there is evidenoe addition to applying, roofs sold by others. However, as illustrated by Campbell's testimony that he had never signed such an agreement with While both Campbell and Gardner agreed that roofs could be applied Respondent Evergreen, it is not necessary for such an agreement to be without the use of such a rig, the former testified that he had never done signed in order for individuals to apply roofs as Respondent Evergreen's so and the latter testified, credibly, that it would not be commercially subcontractors.feasible, in the sense of competitive, to do so. BETTER BUILDING SUPPLY CORP. 473 Section 8(aX5) and (1) of the Act by disregarding the system is the pumper rig developed by Mylan. 7 These Union's request for this information. rigs are leased to the subcontractors. However, the lease is not a written one and the subcontractors are charged IV. THE RELATIONSHIP BETWEEN RESPONDENTS AND but a dollar per year for the lease of one of these vehi- THE APPLICATORS cles. When not in use, the rigs normally are parked at Mylan, one former subcontractor (Walter L. Camp- Respondent Evergreen yard. Moreover, Respondent Ev- bell), and two current subcontractors (M. Christopher ergreen also provides Gardner and Romei with chase Gardner, Jr., and Christopher Alessio Romei, who are t ru c ks that are used to transport roofing materials to job- jointly doing business as Fresh Air Roofing, a corpora- s ite s. So far as the record discloses no rental is charged tion) testified regarding the relationship between Re- t o t h em fo r t h e chase trucks. While subcontractors are spondent Evergreen, the subcontractors, and other appli- obliged to furnish fuel for their own vehicles, Respond- cators. Each of the subcontractors formed their own or- ent Evergreen provides the fuel used for the rigs, either ganizations, in some instances corporations, and obtained from a pump in its yard or by reimbursing the subcon- their own business licenses as contractors to perform, at tractors for fuel purchased elsewhere. Furthermore, least, roofing work. Respondents make no deductions or while subcontractors furnish the labor used to maintain contributions for subcontractors or the applicators whom the vehicles owned by Mylan or by Respondent Ever- they retain to assist them in installing roofs. The subcon- green, the latter furnishes the materials needed and pays tractors pay the wages of the applicators they hire. In es- for any major maintenance work that must be performed sence, therefore, each of the subcontractors has estab- on the rigs or chase trucks. lished at least a nominally separate and distinct business The materials used to perform the roofing work, i.e., enterprise. rolls of polyester, cutback, mastic, and webbing, are sup- As set forth above, Respondent Evergreen markets a plied by Respondent Evergreen. It maintains locked polyester cold processing system of roofing, primarily areas at its yard for each of the subcontractors in which for nonresidential structures. Contracts to perform this these materials are stored and which Respondent Ever- work are obtained for Respondent Evergreen by inde- green replenishes periodically. Only in the event that, in pendent sales representatives, called ISR, individuals effect, a subcontractor causes the loss of material who have signed an Independent Sales Representative through negligence or heedlessness is the subcontractor Agreement with Respondent Evergreen.I Under the charged for the material. While the subcontractors pro- terms of these agreements Respondent "Evergreen will vide their own tools used to perform roofing work, pay a commission to the ISR at the rates currently pub- Campbell testified, without contradiction, that journey- lished by the Company as amended from time to time, man roofers are expected to provide their own hand- on all jobs sold by the ISR." tools. There is no showing that the tools actually used by Having obtained these contracts Respondent Ever- the subcontractors differed in any respect from what green then selects the subcontractor who will be as- journeyman roofers normally use. signed to perform the specific work called for by each The employees who compose the crews used by Gard- contract. So far as the record discloses, the subcontrac- ner, Romei, and other subcontractors are hired by and tors have no voice in determining the particular jobs to paid by the subcontractors at rates which they set. How- which they will be assigned. Nor, for that matter, does ever, during their first year of operation, Gardner and the subcontractor have any direct contact with custom- Romei were the only two crewmembers working for ers, save in those instances, apparently rare, where the Fresh Air, with the result that during that period they subcontractor has also sold a particular roofing job as an did not have the need to hire any employees. Moreover, independent sales representative. All subcontractors testi- the initial three person crew hired by Campbell had been fied that they could reject jobs that were assigned to working for Respondent Evergreen immediately before them. However, the evidence discloses only a single spe- commencing work for Campbell. While he testified that cific instance where a subcontractor rejected a roofing he had had a choice as to whether or not to hire them, job assigned by Respondent Evergreen-Romei testified he acknowledged that Respondent Evergreen had told that he had once turned down a job at the Aurora him to take them as his first crew. Finally, the record Drive-In Theatre because "I got dizzy up there ... and discloses evidence of a degree of more regular integra- I just didn't feel comfortable being there." tion between employees who work for subcontractors The system followed for performing roofing work is, and Respondent Evergreen. Thus, Mylan conceded that of course, the polyester cold processing one which Re- some or all of the employees hired to do work in Re- spondent Evergreen has developed and which it markets. spondent Evergreen's yard alternate back and forth be- While subcontractors own their own pickup trucks and, tween employment with it and its subcontractors. He fur- at least in some instances, their own flatbed trucks, the ther agreed that in some cases Respondent Evergreen crucial vehicle for performing the work under this provides yardwork to tide over employees who normally ~---~~ .. . .~~~~~~~~~do roofing work for Fresh Air in situations where roof- ' Some of the subcontractors have signed such agreements with Re- d r w fo Frs A in sui w rof spondent Evergreen, thereby enabling them to sell roofing projects, in ing w o r k is n o t available. In addition, there is evidenoe addition to applying, roofs sold by others. However, as illustrated by Campbell's testimony that he had never signed such an agreement with While both Campbell and Gardner agreed that roofs could be applied Respondent Evergreen, it is not necessary for such an agreement to be without the use of such a rig, the former testified that he had never done signed in order for individuals to apply roofs as Respondent Evergreen's so and the latter testified, credibly, that it would not be commercially subcontractors.feasible, in the sense of competitive, to do so. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of at least one instance where Mylan switched an em- tractor is no longer doing work for Respondent Ever- ployee from the crew of one subcontractor to that of an- green, then either Gordon or some other contractor other. Thus, Campbell testified that Mylan had asked makes the repairs. If the subcontractor who performed him (Campbell) to hire and train an employee who had the work is still working for Respondent Evergreen and been working around Respondent Evergreen's shop. Ac- if someone else performs the repair work, then that sub- cording to Campbell, Mylan had said "in the beginning contractor is backcharged for the cost of the repairs. · .. that I was to take him for a couple of days and that The method of computing the cost of a roofing job is Chris Romei was to take him for a couple of days" after based on the number of squares involved. A square is 10 2 or 3 days of working for Campbell, the employee was by 10 feet. The rate charged per square is known as the switched to another crew, with Mylan telling Campbell par rate. It is Respondent Evergreen which sets the par that he was pulling the man off Campbell's crew and rates for the various types of roofs that can be installed transferring him to that of another subcontractor. using the polyester cold processing system. The subcon- Until January 1980 Respondent Evergreen employed tractor, in turn, is awarded a flat percentage of that rate, Charles R. Gordon as its superintendent. He distributed by Respondent Evergreen, for installing the roof. Romei the roofing work to the subcontractors. From approxi- claimed that this percentage rate had been negotiated by mately November 1978 to the end of January 1980, a Evergreen and by Fresh Air. However, his testimony in period during which Respondent Evergreen had consid- this respect was less than credible, being unsupported ered those performing roofing work as subcontractors, either by specific examples of such purported negotia- Gordon testified that he had regularly gone to sites tions orbycorroboration from other witnesses. Indeed, where subcontractors were working to check on their Mylan testified that Respondent Evergreen publishes a progress. Campbell testified, without contradiction, that a on approximately 30 percent of the jobs which he had sand wch , which is updated fros shod bi tie perfoed while working as a subcontractor for Re and which shows the rate at which ISRs should bid the performed while working as a subcontractor for Re- various types of roofs for application by the polyester spondent Evergreen, both Gordon and Mylan had come v a n o u s t o f r o o f s f o r a ation by the polyester to the sites to check on the progress of the work being cold prooessing systemAccording to Mylan that same performed there. Moreover, Campbell also testified that, standard par sheet is used by the subcontractors to deter- on approximately 20 to 25 percent of the total numbers mine, based on a percentage of the cost of the job, the of jobs which he had been assigned, Mylan or Gordon rate at which the subcontractors will be remunerated. had given him instructions with regard to "prepping my Both Gardner and Romei testified that there had been jobs, prepping my work before I sprayed it, before I laid occasions when, on arriving at the job, they had discov- the roofing material down. Take a fire wall, for instance, ered that it had been underbid and that the rates set for up on a roof that has old roofing material on it that has performing the work were not sufficient. In that event, to be repaired. ... The acceptability of the work to they testified that they would contact Respondent Ever- Chuck or Jerry sometimes wasn't acceptable, the work green, normally Gordon, and seek a readjustment. So far itself and it had to be redone." Indeed, Gordon conceded as the record discloses, however, final determination as that he also had checked the quality of the work after to whether a readjustment will be permitted rests with each job had been completed. Respondent Evergreen. While the two subcontractors In January 1980 Gordon executed an Independent testified that they had the right to refuse to perform a Sales Representative Agreement. However, in addition job if Respondent Evergreen refused to increase the to continuing to distribute work to subcontractors, amount that they would be paid for doing so, there is no Gordon continues to go to jobsites to inspect the work evidence that they have ever done so. Moreover, there is of subcontractors and is paid to do so by Respondent no showing that situations involving underbidding or Evergreen. Thus, while he does not spend as much time low bidding of jobs have ever arisen with any significant doing so now as had formally been the fact, his inspec- degree of frequency. Finally, it is worth noting, that, tion visits to sites occupy a maximum of approximately 8 while Gardner and Romei are ostensibly both employed to 10 hours each week. He visits projects "as long as I by Fresh Air Roofing, each of them submits separate have the time" and attempts to visit each job, while it is bills for the work performed by his crew. So far as the in progress, on at least one occasion. Moreover, he con- record discloses Fresh Air, itself, does not submit a tinues to inspect projects after they have been complet- single bill for the total of work performed collectively ed, although only in instances where problems have by the crews of Romei and Gardner. In short, notwith- arisen in connection with them. standing the existence of Fresh Air as an ostensibly inde- Subcontractors guarantee their work. However, that pendent entity, Respondents continue to deal separately guarantee is not written and is given only to Respondent and individually with Gardner and Romei. Evergreen, not to customers. Respondent Evergreen, Mylan and each of the subcontractors testified that the itself, extends a 4-year warranty to oustomers on roofs latter were free to seek work other than for Respondent which it contracts to install. If a defect in the work of a Evergreen. However, both Campbell and Gardner testi- subcontractor is discovered, it is Respondent Evergreen, fied that they had never done so. Romei testified equiv- not the subcontractor who installed the roof, that is con- ocally with regard to this point. Initially, he claimed that tacted by the customer. Gordon testified that if the sub- he had attempted to get other work for Fresh Airs and contractor who did the work is still working for Re- spondent Evergreen, he dispatches that subcontractor to I A claim not corroborated by Gardner who is, after all, Romei's part- repair the problem. However, if that particular subcon- ner. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of at least one instance where Mylan switched an em- tractor is no longer doing work for Respondent Ever- ployee from the crew of one subcontractor to that of an- green, then either Gordon or some other contractor other. Thus, Campbell testified that Mylan had asked makes the repairs. If the subcontractor who performed him (Campbell) to hire and train an employee who had the work is still working for Respondent Evergreen and been working around Respondent Evergreen's shop. Ac- if someone else performs the repair work, then that sub- cording to Campbell, Mylan had said "in the beginning contractor is backcharged for the cost of the repairs. . . . that I was to take him for a couple of days and that The method of computing the cost of a roofing job is Chris Romei was to take him for a couple of days" after based on the number of squares involved. A square is 10 2 or 3 days of working for Campbell, the employee was by 10 feet. The rate charged per square is known as the switched to another crew, with Mylan telling Campbell par rate. It is Respondent Evergreen which sets the par that he was pulling the man off Campbell's crew and rates for the various types of roofs that can be installed transferring him to that of another subcontractor. using the polyester cold processing system. The subcon- Until January 1980 Respondent Evergreen employed tractor, in turn, is awarded a flat percentage of that rate, Charles R. Gordon as its superintendent. He distributed by Respondent Evergreen, for installing the roof. Romei the roofing work to the subcontractors. From approxi- claimed that this percentage rate had been negotiated by mately November 1978 to the end of January 1980, a Evergreen and by Fresh Air. However, his testimony in period during which Respondent Evergreen had consid- this respect was less than credible, being unsupported ered those performing roofing work as subcontractors, either by specific examples of such purported negotia- Gordon testified that he had regularly gone to sites tions or by corroboration from other witnesses. Indeed, where subcontractors were working to check on their t Respondent Evergreen publishes a progress. Campbell testified, without contradiction, that sd p s w on approximately 30 percent of the jobs which he had and which shows the rate at which ISRs should bid the performed while working as a subcontractor for Re- spondent Evergreen, both Gordon and Mylan had come v a n o us t o f r o o f s f o r apcation by the polyester to the sites to check on the progress of the work being cold processing system. According to Mylan that same performed there. Moreover, Campbell also testified that, s t an d ar d par sh ee t is us ed by t h e subcontractors to deter- on approximately 20 to 25 percent of the total numbers mine, b a sed o n a percentage o f t h e cost of the job, the of jobs which he had been assigned, Mylan or Gordon ra t e at w h i h t h e subcontractors will be remunerated. had given him instructions with regard to "prepping my Both Gardner and Romei testified that there had been jobs, prepping my work before I sprayed it, before I laid occasions when, on arriving at the job, they had discov- the roofing material down. Take a fire wall, for instance, ered that it had been underbid and that the rates set for up on a roof that has old roofing material on it that has performing the work were not sufficient. In that event, to be repaired. . . . The acceptability of the work to they testified that they would contact Respondent Ever- Chuck or Jerry sometimes wasn't acceptable, the work green, normally Gordon, and seek a readjustment. So far itself and it had to be redone." Indeed, Gordon conceded as the record discloses, however, final determination as that he also had checked the quality of the work after to whether a readjustment will be permitted rests with each job had been completed. Respondent Evergreen. While the two subcontractors In January 1980 Gordon executed an Independent testified that they had the right to refuse to perform a Sales Representative Agreement. However, in addition job if Respondent Evergreen refused to increase the to continuing to distribute work to subcontractors, amount that they would be paid for doing so, there is no Gordon continues to go to jobsites to inspect the work evidence that they have ever done so. Moreover, there is of subcontractors and is paid to do so by Respondent no showing that situations involving underbidding or Evergreen. Thus, while he does not spend as much time low bidding of jobs have ever arisen with any significant doing so now as had formally been the fact, his inspec- degree of frequency. Finally, it is worth noting, that, tion visits to sites occupy a maximum of approximately 8 while Gardner and Romei are ostensibly both employed to 10 hours each week. He visits projects "as long as I by Fresh Air Roofing, each of them submits separate have the time" and attempts to visit each job, while it is bills for the work performed by his crew. So far as the in progress, on at least one occasion. Moreover, he con- record discloses Fresh Air, itself, does not submit a tinues to inspect projects after they have been complet- single bill for the total of work performed collectively ed, although only in instances where problems have by the crews of Romei and Gardner. In short, notwith- arisen in connection with them. standing the existence of Fresh Air as an ostensibly inde- Subcontractors guarantee their work. However, that pendent entity, Respondents continue to deal separately guarantee is not written and is given only to Respondent and individually with Gardner and Romei. Evergreen, not to customers. Respondent Evergreen, Mylan and each of the subcontractors testified that the itself, extends a 4-year warranty to customers on roofs latter were free to seek work other than for Respondent which it contracts to install. If a defect in the work of a Evergreen. However, both Campbell and Gardner testi- subcontractor is discovered, it is Respondent Evergreen, fied that they had never done so. Romei testified equiv- not the subcontractor who installed the roof, that is con- ocally with regard to this point. Initially, he claimed that tacted by the customer. Gordon testified that if the sub- he had attempted to get other work for Fresh Air" and contractor who did the work is still working for Re- spondent Evergreen, he dispatches that subcontractor to I A claim not corroborated by Gardner who is, after all, Romei's part- repair the problem. However, if that particular subcon- ner. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of at least one instance where Mylan switched an em- tractor is no longer doing work for Respondent Ever- ployee from the crew of one subcontractor to that of an- green, then either Gordon or some other contractor other. Thus, Campbell testified that Mylan had asked makes the repairs. If the subcontractor who performed him (Campbell) to hire and train an employee who had the work is still working for Respondent Evergreen and been working around Respondent Evergreen's shop. Ac- if someone else performs the repair work, then that sub- cording to Campbell, Mylan had said "in the beginning contractor is backcharged for the cost of the repairs. . . . that I was to take him for a couple of days and that The method of computing the cost of a roofing job is Chris Romei was to take him for a couple of days" after based on the number of squares involved. A square is 10 2 or 3 days of working for Campbell, the employee was by 10 feet. The rate charged per square is known as the switched to another crew, with Mylan telling Campbell par rate. It is Respondent Evergreen which sets the par that he was pulling the man off Campbell's crew and rates for the various types of roofs that can be installed transferring him to that of another subcontractor. using the polyester cold processing system. The subcon- Until January 1980 Respondent Evergreen employed tractor, in turn, is awarded a flat percentage of that rate, Charles R. Gordon as its superintendent. He distributed by Respondent Evergreen, for installing the roof. Romei the roofing work to the subcontractors. From approxi- claimed that this percentage rate had been negotiated by mately November 1978 to the end of January 1980, a Evergreen and by Fresh Air. However, his testimony in period during which Respondent Evergreen had consid- this respect was less than credible, being unsupported ered those performing roofing work as subcontractors, either by specific examples of such purported negotia- Gordon testified that he had regularly gone to sites tions or by corroboration from other witnesses. Indeed, where subcontractors were working to check on their t Respondent Evergreen publishes a progress. Campbell testified, without contradiction, that sd p s w on approximately 30 percent of the jobs which he had and which shows the rate at which ISRs should bid the performed while working as a subcontractor for Re- spondent Evergreen, both Gordon and Mylan had come v a n o us t o f r o o f s f o r apcation by the polyester to the sites to check on the progress of the work being cold processing system. According to Mylan that same performed there. Moreover, Campbell also testified that, s t an d ar d par sh ee t is us ed by t h e subcontractors to deter- on approximately 20 to 25 percent of the total numbers mine, b a sed o n a percentage of t h e cost of the job, the of jobs which he had been assigned, Mylan or Gordon ra t e at w h i h t h e subcontractors will be remunerated. had given him instructions with regard to "prepping my Both Gardner and Romei testified that there had been jobs, prepping my work before I sprayed it, before I laid occasions when, on arriving at the job, they had discov- the roofing material down. Take a fire wall, for instance, ered that it had been underbid and that the rates set for up on a roof that has old roofing material on it that has performing the work were not sufficient. In that event, to be repaired. . . . The acceptability of the work to they testified that they would contact Respondent Ever- Chuck or Jerry sometimes wasn't acceptable, the work green, normally Gordon, and seek a readjustment. So far itself and it had to be redone." Indeed, Gordon conceded as the record discloses, however, final determination as that he also had checked the quality of the work after to whether a readjustment will be permitted rests with each job had been completed. Respondent Evergreen. While the two subcontractors In January 1980 Gordon executed an Independent testified that they had the right to refuse to perform a Sales Representative Agreement. However, in addition job if Respondent Evergreen refused to increase the to continuing to distribute work to subcontractors, amount that they would be paid for doing so, there is no Gordon continues to go to jobsites to inspect the work evidence that they have ever done so. Moreover, there is of subcontractors and is paid to do so by Respondent no showing that situations involving underbidding or Evergreen. Thus, while he does not spend as much time low bidding of jobs have ever arisen with any significant doing so now as had formally been the fact, his inspec- degree of frequency. Finally, it is worth noting, that, tion visits to sites occupy a maximum of approximately 8 while Gardner and Romei are ostensibly both employed to 10 hours each week. He visits projects "as long as I by Fresh Air Roofing, each of them submits separate have the time" and attempts to visit each job, while it is bills for the work performed by his crew. So far as the in progress, on at least one occasion. Moreover, he con- record discloses Fresh Air, itself, does not submit a tinues to inspect projects after they have been complet- single bill for the total of work performed collectively ed, although only in instances where problems have by the crews of Romei and Gardner. In short, notwith- arisen in connection with them. standing the existence of Fresh Air as an ostensibly inde- Subcontractors guarantee their work. However, that pendent entity, Respondents continue to deal separately guarantee is not written and is given only to Respondent and individually with Gardner and Romei. Evergreen, not to customers. Respondent Evergreen, Mylan and each of the subcontractors testified that the itself, extends a 4-year warranty to customers on roofs latter were free to seek work other than for Respondent which it contracts to install. If a defect in the work of a Evergreen. However, both Campbell and Gardner testi- subcontractor is discovered, it is Respondent Evergreen, fied that they had never done so. Romei testified equiv- not the subcontractor who installed the roof, that is con- ocally with regard to this point. Initially, he claimed that tacted by the customer. Gordon testified that if the sub- he had attempted to get other work for Fresh Air" and contractor who did the work is still working for Re- spondent Evergreen, he dispatches that subcontractor to I A claim not corroborated by Gardner who is, after all, Romei's part- repair the problem. However, if that particular subcon- ner. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of at least one instance where Mylan switched an em- tractor is no longer doing work for Respondent Ever- ployee from the crew of one subcontractor to that of an- green, then either Gordon or some other contractor other. Thus, Campbell testified that Mylan had asked makes the repairs. If the subcontractor who performed him (Campbell) to hire and train an employee who had the work is still working for Respondent Evergreen and been working around Respondent Evergreen's shop. Ac- if someone else performs the repair work, then that sub- cording to Campbell, Mylan had said "in the beginning contractor is backcharged for the cost of the repairs. . . . that I was to take him for a couple of days and that The method of computing the cost of a roofing job is Chris Romei was to take him for a couple of days" after based on the number of squares involved. A square is 10 2 or 3 days of working for Campbell, the employee was by 10 feet. The rate charged per square is known as the switched to another crew, with Mylan telling Campbell par rate. It is Respondent Evergreen which sets the par that he was pulling the man off Campbell's crew and rates for the various types of roofs that can be installed transferring him to that of another subcontractor. using the polyester cold processing system. The subcon- Until January 1980 Respondent Evergreen employed tractor, in turn, is awarded a flat percentage of that rate, Charles R. Gordon as its superintendent. He distributed by Respondent Evergreen, for installing the roof. Romei the roofing work to the subcontractors. From approxi- claimed that this percentage rate had been negotiated by mately November 1978 to the end of January 1980, a Evergreen and by Fresh Air. However, his testimony in period during which Respondent Evergreen had consid- this respect was less than credible, being unsupported ered those performing roofing work as subcontractors, either by specific examples of such purported negotia- Gordon testified that he had regularly gone to sites tions or by corroboration from other witnesses. Indeed, where subcontractors were working to check on their t Respondent Evergreen publishes a progress. Campbell testified, without contradiction, that sd p s w on approximately 30 percent of the jobs which he had and which shows the rate at which ISRs should bid the performed while working as a subcontractor for Re- spondent Evergreen, both Gordon and Mylan had come v a n o us t o f r o o f s f o r a cation by the polyester to the sites to check on the progress of the work being cold processing system. According to Mylan that same performed there. Moreover, Campbell also testified that, s t an d ar d par sh ee t is us ed by t h e subcontractors to deter- on approximately 20 to 25 percent of the total numbers mine, b a sed o n a percentage of the cost of the job, the of jobs which he had been assigned, Mylan or Gordon r at e at w h i h t h e subcontractors will be remunerated. had given him instructions with regard to "prepping my Both Gardner and Romei testified that there had been jobs, prepping my work before I sprayed it, before I laid occasions when, on arriving at the job, they had discov- the roofing material down. Take a fire wall, for instance, ered that it had been underbid and that the rates set for up on a roof that has old roofing material on it that has performing the work were not sufficient. In that event, to be repaired. . . . The acceptability of the work to they testified that they would contact Respondent Ever- Chuck or Jerry sometimes wasn't acceptable, the work green, normally Gordon, and seek a readjustment. So far itself and it had to be redone." Indeed, Gordon conceded as the record discloses, however, final determination as that he also had checked the quality of the work after to whether a readjustment will be permitted rests with each job had been completed. Respondent Evergreen. While the two subcontractors In January 1980 Gordon executed an Independent testified that they had the right to refuse to perform a Sales Representative Agreement. However, in addition job if Respondent Evergreen refused to increase the to continuing to distribute work to subcontractors, amount that they would be paid for doing so, there is no Gordon continues to go to jobsites to inspect the work evidence that they have ever done so. Moreover, there is of subcontractors and is paid to do so by Respondent no showing that situations involving underbidding or Evergreen. Thus, while he does not spend as much time low bidding of jobs have ever arisen with any significant doing so now as had formally been the fact, his inspec- degree of frequency. Finally, it is worth noting, that, tion visits to sites occupy a maximum of approximately 8 while Gardner and Romei are ostensibly both employed to 10 hours each week. He visits projects "as long as I by Fresh Air Roofing, each of them submits separate have the time" and attempts to visit each job, while it is bills for the work performed by his crew. So far as the in progress, on at least one occasion. Moreover, he con- record discloses Fresh Air, itself, does not submit a tinues to inspect projects after they have been complet- single bill for the total of work performed collectively ed, although only in instances where problems have by the crews of Romei and Gardner. In short, notwith- arisen in connection with them. standing the existence of Fresh Air as an ostensibly inde- Subcontractors guarantee their work. However, that pendent entity, Respondents continue to deal separately guarantee is not written and is given only to Respondent and individually with Gardner and Romei. Evergreen, not to customers. Respondent Evergreen, Mylan and each of the subcontractors testified that the itself, extends a 4-year warranty to customers on roofs latter were free to seek work other than for Respondent which it contracts to install. If a defect in the work of a Evergreen. However, both Campbell and Gardner testi- subcontractor is discovered, it is Respondent Evergreen, fied that they had never done so. Romei testified equiv- not the subcontractor who installed the roof, that is con- ocally with regard to this point. Initially, he claimed that tacted by the customer. Gordon testified that if the sub- he had attempted to get other work for Fresh Air" and contractor who did the work is still working for Re- spondent Evergreen, he dispatches that subcontractor to I A claim not corroborated by Gardner who is, after all, Romei's part- repair the problem. However, if that particular subcon- ner. BETTER BUILDING SUPPLY CORP. 475 that there had been a time when he had done work other accorded degree of independence, Respondent Ever- than for Respondent Evergreen. Later, however, he ac- green controls the significant and crucial means by knowledged that he had performed such work prior to which subcontractors perform roofing work, with the forming Fresh Air and that, since working as a subcon- result that the subcontractors operations are integrated tractor for Respondent Evergreen, all of his work had fully into those of Respondent Evergreen and that the been performed at the behest of that firm. Indeed, it subcontractors lack the entrepreneurial ability normally seems unlikely that subcontractors would be in a position arising from independent contractor status. Most obvious to perform polyester cold process roofing installation in this regard is Respondent Evergreen's control over work on their own, separate from Respondent Ever- the process to be followed by subcontractors in installing green. For, Romei agreed that the rig was the heart of roofs. Respondent Evergreen does not simply retain sub- Respondent Evergreen's system of installing roofs. As contractors to install roofs by whatever means they noted above, Gardner testified that it would not be com- deem most appropriate. Rather, Respondent Evergreen petitive to install roofs by the polyester cold processing markets a specific system for installing roofs, the polyes- system without the rigs. Yet, the rigs are stored at Re- ter cold processing system, and subcontractors are spondent Evergreen's yard when not in use, and Gordon obliged to install roofs in accordance with that system. testified that he would not have authorized removal of So far as the record discloses, subcontractors have no the rig by a subcontractor to install a roof for a roofing discretion in this regard and no ability to use some other company other than Respondent Evergreen. method, for example, the hot tar process described in Respondents argue that the subcontractors are inde- footnote 2, supra, for applying roofs. Consequently, they pendent contractors, within the meaning of Section 2(3) are not free to attempt to improve their profit by substi- of the Act, and, accordingly, that their crewmembers are tuting a possibly less costly alternative system for the their own employees and not those of Respondents, spe- one specified by Respondent Evergreen. cifically Respondent Evergreen. Several factors are pres- It is Respondent Evergreen, specifically Gordon, who ent which tend to support that contention. Thus, for ex- selects the particular projects on which subcontractors ample, the subcontractors have been established as nomi- are assigned to work in the Seattle area. So far as the nally separate enterprises, in some cases having been in- record discloses, subcontractors make no contribution to corporated, with their own business licenses. They have these decisions. Accordingly, the right of assignment to rented or purchased some of the vehicles and equipment projects rests exclusively with Respondent Evergreen, which they use. They insure and pay for the fuel and thereby precluding subcontractors from any possibility of other costs of these vehicles. They hire their own crew improving their situation through negotiation of better members, determine the rates of pay for those crew- selection of assignments. Moreover, save for those seem- members, pay the crew, and make all necessary deduc- ingly rare instances where subcontractors have sold roof tions and contributions on their behalf. They are free to installations as independent sales representatives, they work for firms other than Respondent Evergreen. have no contact with customers regarding the prices at Yet the fact that subcontractors have established their which the roofing work will be performed. Even in situ- own entities, hire, and pay their own helpers, own or ations where the subcontractor sells the project as an in- lease their own vehicles which they insure and are, in dependent sales representative, the commissions which theory, free to work for a number of companies does not subcontractors will receive are set by Respondent Ever- compel the conclusion that an independent contractor re- green, pursuant to the above-quoted provision from the lationship exists. See, e.g., Seven-Up Bottling Company of Independent Sales Representative Agreement. Boston, Inc. v. N.LR.B., 506 F.2d 596, 599-600 (Ist Cir. While subcontractors can and have sought changes in While subcontractors can and have sought changes in 1974); N.LR.B. v. John Warner, d/b/a D.J.W. Cartage, 587 4F.2d 896, 900901 (8th Cirn. 1978). For the correct h rate of compensation for performing specific roofing 587 F.2d 896, 900-901 (8th Cir. 1978). For the correct projects, the evidence shows that such changes have test for determining whether an employee or independ- p the evdence hows that such changes have test for determining whether an employee or ndepen been confined to situations where the projects have been ent contractor relationship exists is rooted in whether or n ne to aon her th ts a be underbid, for one reason or another, and, thus, cannot be not a company, such as Respondent Evergreen, has con- uerd f e eson o notea hs n trol over the details and means by which work is to be erformed t the cost contemplated when sold Thus, performed. Thus, as the United States Court of Appeals these renegotiated changes do not originate from the sub- for the Seventh Circuit stated in N.LR.B. v. Phoenix contractors' desire to increase their profit margins, Mut Life Ins. Co, 167 F.2d 983, 986 (7th Cir. 1948), beyond that contemplated by Respondent Evergreen. cert. denied 335 U.S. 845: Rather, they occur within the framework of Respondent Evergreen's unilaterally established price and cost struc- T]Jhe employer-employee relationship exists when ture and arise only, so far as the record shows, where in- the person for whom the work is done has the right dependent sales representatives have failed to apply that to control and direct the work, not only as to the structure properly to specific jobs. Moreover, there is no result accomplished by the work, but also as to the showing that these types of situations arise within any details and means by which that result is accom- degree of regularity or frequency. In any event, so far as plished, and . . . it is the right and not the exercise the record discloses, the ultimate determination as to of control which is the determining element. whether to read just the prices of particular jobs rests solely with Respondent Evergreen. Although subcon- In this case, a preponderance of the evidence shows tractors testified that, in theory, they were free to reject that, while Respondent Evergreen's subcontractors are projects if underestimated, in practice only single in- BETTER BUILDING SUPPLY CORP. 475 that there had been a time when he had done work other accorded degree of independence, Respondent Ever- than for Respondent Evergreen. Later, however, he ac- green controls the significant and crucial means by knowledged that he had performed such work prior to which subcontractors perform roofing work, with the forming Fresh Air and that, since working as a subcon- result that the subcontractors operations are integrated tractor for Respondent Evergreen, all of his work had fully into those of Respondent Evergreen and that the been performed at the behest of that firm. Indeed, it subcontractors lack the entrepreneurial ability normally seems unlikely that subcontractors would be in a position arising from independent contractor status. Most obvious to perform polyester cold process roofing installation in this regard is Respondent Evergreen's control over work on their own, separate from Respondent Ever- the process to be followed by subcontractors in installing green. For, Romei agreed that the rig was the heart of roofs. Respondent Evergreen does not simply retain sub- Respondent Evergreen's system of installing roofs. As contractors to install roofs by whatever means they noted above, Gardner testified that it would not be com- deem most appropriate. Rather, Respondent Evergreen petitive to install roofs by the polyester cold processing markets a specific system for installing roofs, the polyes- system without the rigs. Yet, the rigs are stored at Re- ter cold processing system, and subcontractors are spondent Evergreen's yard when not in use, and Gordon obliged to install roofs in accordance with that system. testified that he would not have authorized removal of So far as the record discloses, subcontractors have no the rig by a subcontractor to install a roof for a roofing discretion in this regard and no ability to use some other company other than Respondent Evergreen. method, for example, the hot tar process described in Respondents argue that the subcontractors are inde- footnote 2, supra, for applying roofs. Consequently, they pendent contractors, within the meaning of Section 2(3) are not free to attempt to improve their profit by substi- of the Act, and, accordingly, that their crewmembers are tuting a possibly less costly alternative system for the their own employees and not those of Respondents, spe- one specified by Respondent Evergreen. cifically Respondent Evergreen. Several factors are pres- It is Respondent Evergreen, specifically Gordon, who ent which tend to support that contention. Thus, for ex- selects the particular projects on which subcontractors ample, the subcontractors have been established as nomi- are assigned to work in the Seattle area. So far as the nally separate enterprises, in some cases having been in- record discloses, subcontractors make no contribution to corporated, with their own business licenses. They have these decisions. Accordingly, the right of assignment to rented or purchased some of the vehicles and equipment projects rests exclusively with Respondent Evergreen, which they use. They insure and pay for the fuel and thereby precluding subcontractors from any possibility of other costs of these vehicles. They hire their own crew improving their situation through negotiation of better members, determine the rates of pay for those crew- selection of assignments. Moreover, save for those seem- members, pay the crew, and make all necessary deduc- ingly rare instances where subcontractors have sold roof tions and contributions on their behalf. They are free to installations as independent sales representatives, they work for firms other than Respondent Evergreen. have no contact with customers regarding the prices at Yet the fact that subcontractors have established their which the roofing work will be performed. Even in situ- own entities, hire, and pay their own helpers, own or ations where the subcontractor sells the project as an in- lease their own vehicles which they insure and are, in dependent sales representative, the commissions which theory, free to work for a number of companies does not subcontractors will receive are set by Respondent Ever- compel the conclusion that an independent contractor re- green, pursuant to the above-quoted provision from the lationship exists. See, e.g., Sevn-Up Bottling Company of Independent Sales Representative Agreement. Boston, Inc. v. N.L.R.B., 506 F.2d 596, 599-600 (Ist Cir. Whlsucnrtosanndavsugthnesi ^ '^LR~~v~nhn ^ R d //?; 5?)^ S^ ' W hi e subcontractors can and have sought changes in 1974); N .L.R.B . v. John Warner, d~bla D.J. W e Cartage, the rate of compensation for performing specific roofing 587 F.2d 896, 900-901 (8th Cir. 1978). For the correct prjcsthevdnehoshasuhhngsae test for determining whether an employee or independ- P" 1 ' t e v d e c . ! h w h t s c . c a g s h v testfordeteminng wethr anempoyeeor ndepnd- been confined to situations where the projects have been ent contractor relationship exists is rooted in whether or b id, f o r o s o n o r t h e t s ca no b e not a company, such as Respondent Evergreen, has con- perbrd at the cost ontempatd whus, Thue trol over the details and means by which work is to be Performed at the cost contemplated when sold Thus, performed. Thus, as the United States Court of Appeals t h es e renegotiated changes do not originate from the sub- for the Seventh Circuit stated in N.L.R.B. v. Phoenix contractors' desire to increase their profit margins, Mut. Life Ins. Co, 167 F.2d 983, 986 (7th Cir. 1948), beyond t h a t contemplated by Respondent Evergreen. cert. denied 335 U.S. 845: Rather, they occur within the framework of Respondent Evergreen's unilaterally established price and cost struc- [T]he employer-employee relationship exists when ture and arise only, so far as the record shows, where in- the person for whom the work is done has the right dependent sales representatives have failed to apply that to control and direct the work, not only as to the structure properly to specific jobs. Moreover, there is no result accomplished by the work, but also as to the showing that these types of situations arise within any details and means by which that result is accom- degree of regularity or frequency. In any event, so far as plished, and ... it is the right and not the exercise the record discloses, the ultimate determination as to of control which is the determining element. whether to read just the prices of particular jobs rests solely with Respondent Evergreen. Although subcon- In this case, a preponderance of the evidence shows tractors testified that, in theory, they were free to reject that, while Respondent Evergreen's subcontractors are projects if underestimated, in practice only single in- BETTER BUILDING SUPPLY CORP. 475 that there had been a time when he had done work other accorded degree of independence, Respondent Ever- than for Respondent Evergreen. Later, however, he ac- green controls the significant and crucial means by knowledged that he had performed such work prior to which subcontractors perform roofing work, with the forming Fresh Air and that, since working as a subcon- result that the subcontractors operations are integrated tractor for Respondent Evergreen, all of his work had fully into those of Respondent Evergreen and that the been performed at the behest of that firm. Indeed, it subcontractors lack the entrepreneurial ability normally seems unlikely that subcontractors would be in a position arising from independent contractor status. Most obvious to perform polyester cold process roofing installation in this regard is Respondent Evergreen's control over work on their own, separate from Respondent Ever- the process to be followed by subcontractors in installing green. For, Romei agreed that the rig was the heart of roofs. Respondent Evergreen does not simply retain sub- Respondent Evergreen's system of installing roofs. As contractors to install roofs by whatever means they noted above, Gardner testified that it would not be com- deem most appropriate. Rather, Respondent Evergreen petitive to install roofs by the polyester cold processing markets a specific system for installing roofs, the polyes- system without the rigs. Yet, the rigs are stored at Re- ter cold processing system, and subcontractors are spondent Evergreen's yard when not in use, and Gordon obliged to install roofs in accordance with that system. testified that he would not have authorized removal of So far as the record discloses, subcontractors have no the rig by a subcontractor to install a roof for a roofing discretion in this regard and no ability to use some other company other than Respondent Evergreen. method, for example, the hot tar process described in Respondents argue that the subcontractors are inde- footnote 2, supra, for applying roofs. Consequently, they pendent contractors, within the meaning of Section 2(3) are not free to attempt to improve their profit by substi- of the Act, and, accordingly, that their crewmembers are tuting a possibly less costly alternative system for the their own employees and not those of Respondents, spe- one specified by Respondent Evergreen. cifically Respondent Evergreen. Several factors are pres- It is Respondent Evergreen, specifically Gordon, who ent which tend to support that contention. Thus, for ex- selects the particular projects on which subcontractors ample, the subcontractors have been established as nomi- are assigned to work in the Seattle area. So far as the nally separate enterprises, in some cases having been in- record discloses, subcontractors make no contribution to corporated, with their own business licenses. They have these decisions. Accordingly, the right of assignment to rented or purchased some of the vehicles and equipment projects rests exclusively with Respondent Evergreen, which they use. They insure and pay for the fuel and thereby precluding subcontractors from any possibility of other costs of these vehicles. They hire their own crew improving their situation through negotiation of better members, determine the rates of pay for those crew- selection of assignments. Moreover, save for those seem- members, pay the crew, and make all necessary deduc- ingly rare instances where subcontractors have sold roof tions and contributions on their behalf. They are free to installations as independent sales representatives, they work for firms other than Respondent Evergreen. have no contact with customers regarding the prices at Yet the fact that subcontractors have established their which the roofing work will be performed. Even in situ- own entities, hire, and pay their own helpers, own or ations where the subcontractor sells the project as an in- lease their own vehicles which they insure and are, in dependent sales representative, the commissions which theory, free to work for a number of companies does not subcontractors will receive are set by Respondent Ever- compel the conclusion that an independent contractor re- green, pursuant to the above-quoted provision from the lationship exists. See, e.g., Sevn-Up Bottling Company of Independent Sales Representative Agreement. Boston, Inc. v. N.L.R.B., 506 F.2d 596, 599-600 (Ist Cir. Whlsucnrtosanndavsugthnesi ^ '^LR~~v~nhn ^ R d //?; 5?)^ S^ ' W hi e subcontractors can and have sought changes in 1974); N .L.R.B . v. John Warner, d~bla D.J. W e Cartage, the rate of compensation for performing specific roofing 587 F.2d 896, 900-901 (8th Cir. 1978). For the correct prjcsthevdnehoshasuhhngsae test for determining whether an employee or independ- P" 1 ' t e v d e c . ! h w h t s c . c a g s h v testfordeteminng wethr anempoyeeor ndepnd- been confined to situations where the projects have been ent contractor relationship exists is rooted in whether or b id, f o r o s o n o r t h e t s ca no b e not a company, such as Respondent Evergreen, has con- perbrd at the cost ontempatd whus, Thue trol over the details and means by which work is to be Performed at the cost contemplated when sold Thus, performed. Thus, as the United States Court of Appeals t h es e renegotiated changes do not originate from the sub- for the Seventh Circuit stated in N.L.R.B. v. Phoenix contractors' desire to increase their profit margins, Mut. Life Ins. Co, 167 F.2d 983, 986 (7th Cir. 1948), beyond t h a t contemplated by Respondent Evergreen. cert. denied 335 U.S. 845: Rather, they occur within the framework of Respondent Evergreen's unilaterally established price and cost struc- [T]he employer-employee relationship exists when ture and arise only, so far as the record shows, where in- the person for whom the work is done has the right dependent sales representatives have failed to apply that to control and direct the work, not only as to the structure properly to specific jobs. Moreover, there is no result accomplished by the work, but also as to the showing that these types of situations arise within any details and means by which that result is accom- degree of regularity or frequency. In any event, so far as plished, and ... it is the right and not the exercise the record discloses, the ultimate determination as to of control which is the determining element. whether to read just the prices of particular jobs rests solely with Respondent Evergreen. Although subcon- In this case, a preponderance of the evidence shows tractors testified that, in theory, they were free to reject that, while Respondent Evergreen's subcontractors are projects if underestimated, in practice only single in- BETTER BUILDING SUPPLY CORP. 475 that there had been a time when he had done work other accorded degree of independence, Respondent Ever- than for Respondent Evergreen. Later, however, he ac- green controls the significant and crucial means by knowledged that he had performed such work prior to which subcontractors perform roofing work, with the forming Fresh Air and that, since working as a subcon- result that the subcontractors operations are integrated tractor for Respondent Evergreen, all of his work had fully into those of Respondent Evergreen and that the been performed at the behest of that firm. Indeed, it subcontractors lack the entrepreneurial ability normally seems unlikely that subcontractors would be in a position arising from independent contractor status. Most obvious to perform polyester cold process roofing installation in this regard is Respondent Evergreen's control over work on their own, separate from Respondent Ever- the process to be followed by subcontractors in installing green. For, Romei agreed that the rig was the heart of roofs. Respondent Evergreen does not simply retain sub- Respondent Evergreen's system of installing roofs. As contractors to install roofs by whatever means they noted above, Gardner testified that it would not be com- deem most appropriate. Rather, Respondent Evergreen petitive to install roofs by the polyester cold processing markets a specific system for installing roofs, the polyes- system without the rigs. Yet, the rigs are stored at Re- ter cold processing system, and subcontractors are spondent Evergreen's yard when not in use, and Gordon obliged to install roofs in accordance with that system. testified that he would not have authorized removal of So far as the record discloses, subcontractors have no the rig by a subcontractor to install a roof for a roofing discretion in this regard and no ability to use some other company other than Respondent Evergreen. method, for example, the hot tar process described in Respondents argue that the subcontractors are inde- footnote 2, supra, for applying roofs. Consequently, they pendent contractors, within the meaning of Section 2(3) are not free to attempt to improve their profit by substi- of the Act, and, accordingly, that their crewmembers are tuting a possibly less costly alternative system for the their own employees and not those of Respondents, spe- one specified by Respondent Evergreen. cifically Respondent Evergreen. Several factors are pres- It is Respondent Evergreen, specifically Gordon, who ent which tend to support that contention. Thus, for ex- selects the particular projects on which subcontractors ample, the subcontractors have been established as nomi- are assigned to work in the Seattle area. So far as the nally separate enterprises, in some cases having been in- record discloses, subcontractors make no contribution to corporated, with their own business licenses. They have these decisions. Accordingly, the right of assignment to rented or purchased some of the vehicles and equipment projects rests exclusively with Respondent Evergreen, which they use. They insure and pay for the fuel and thereby precluding subcontractors from any possibility of other costs of these vehicles. They hire their own crew improving their situation through negotiation of better members, determine the rates of pay for those crew- selection of assignments. Moreover, save for those seem- members, pay the crew, and make all necessary deduc- ingly rare instances where subcontractors have sold roof tions and contributions on their behalf. They are free to installations as independent sales representatives, they work for firms other than Respondent Evergreen. have no contact with customers regarding the prices at Yet the fact that subcontractors have established their which the roofing work will be performed. Even in situ- own entities, hire, and pay their own helpers, own or ations where the subcontractor sells the project as an in- lease their own vehicles which they insure and are, in dependent sales representative, the commissions which theory, free to work for a number of companies does not subcontractors will receive are set by Respondent Ever- compel the conclusion that an independent contractor re- green, pursuant to the above-quoted provision from the lationship exists. See, e.g., Sevn-Up Bottling Company of Independent Sales Representative Agreement. Boston, Inc. v. N.L.R.B., 506 F.2d 596, 599-600 (Ist Cir. Whlsucnrtosanndavsugthnesi ^ '^LR~~v~nhn ^ R d //?; 5?)^ S^ ' W hi e subcontractors can and have sought changes in 1974); N .L.RV S. v. John Warner, d~bla D.J. W e Cartage, the rate of compensation for performing specific roofing 587 F.2d 896, 900-901 (8th Cir. 1978). For the correct prjcsthevdnehoshasuhhngsae test for determining whether an employee or independ- P^ 8 h e d e n ! o w t a s c . h ng av testfordeteminng wethr anempoyeeor ndepnd- been confined to situations where the projects have been ent contractor relationship exists is rooted in whether or b id, f o r o s o n o r t h e t s ca no b e not a company, such as Respondent Evergreen, has con- perbrd at the cost ontempatd whus, Thue trol over the details and means by which work is to be Performed at the cost contemplated when sold Thus, performed. Thus, as the United States Court of Appeals t h es e renegotiated changes do not originate from the sub- for the Seventh Circuit stated in N.L.R.B. v. Phoenix contractors' desire to increase their profit margins, Mut. Life Ins. Co, 167 F.2d 983, 986 (7th Cir. 1948), beyond t h a t contemplated by Respondent Evergreen. cert. denied 335 U.S. 845: Rather, they occur within the framework of Respondent Evergreen's unilaterally established price and cost struc- [T]he employer-employee relationship exists when ture and arise only, so far as the record shows, where in- the person for whom the work is done has the right dependent sales representatives have failed to apply that to control and direct the work, not only as to the structure properly to specific jobs. Moreover, there is no result accomplished by the work, but also as to the showing that these types of situations arise within any details and means by which that result is accom- degree of regularity or frequency. In any event, so far as plished, and ... it is the right and not the exercise the record discloses, the ultimate determination as to of control which is the determining element. whether to read just the prices of particular jobs rests solely with Respondent Evergreen. Although subcon- In this case, a preponderance of the evidence shows tractors testified that, in theory, they were free to reject that, while Respondent Evergreen's subcontractors are projects if underestimated, in practice only single in- 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stance of rejection of a job by a subcontractor was pro- while subcontractors guarantee their work, that guaran- vided and that particular rejection was for reason unre- tee is a nonwritten one given only to Respondent Ever- lated to the profitability of the particular job declined by green and not to the customers. The 4-year warranty Romei. Of course, in this area, "it is the actual practice that is extended to customers is one given by Respondent which controls." Queen City Paving Company, 243 NLRB Evergreen. In the final analysis, it is to Respondent Ev- 71, fn. 6 (1979); see also Seven-Up Bottling Company of ergreen, not to the subcontractors, that customers look Boston, supra, 506 F.2d at 600. for correction of deficiencies and for restitution of dam- In sum, therefore, Respondent Evergreen has exclusive ages caused by subcontractors. control over the income of its subcontractors from work As noted above, the fact that subcontractors lease or performed for it, having been the party in control of ne- purchase vehicles which they use in performing work for gotiations for roofing contracts with customers, having Respondent Evergreen is not determinative of the rela- been the one to select the jobs which the subcontractors tionship to Respondent Evergreen. See Brotherhood of will perform, and having unilaterally determined the Carpenters and Joiners (Carpet Center, Inc.), supra; Sheet rates to be paid to the subcontractors for performing that Metal Workers Union Local 283, Sheet Metal Workers In- work. Subcontractors are left in the position of having ternational Association, AFL-CIO (Thomas A. DeVol, no contact with customers and "no opportunity for the d a Tad's Service), 72 NLRB 652, 658 (1968) So far negotiation of different rates" with them for performing as the evidence discloses even without these vehicles the roofing installations. Lucky Stores, Inc., 243 NLRB 642, 644 (1979). "Decisions with respect to the line of prod- subconracors would stll be able to instal roofs using ucts to be sold, the type of customer to be serviced, and, he yester cold prossing system. For, the vehicles in general, the normal risk-taking ventures which distin- that are crucial to that system are the pumper rigs guish the small businessman/independent contractor Those owned by Mylan and are furnished to the subcon- from an employee are, in this case, all made by [Re- tractors at a nominal rental fee, at best, under an oral spondent Evergreen]." The Standard Oil Co. (of Ohio), lease. Without these rigs, it is uncontradicted that it 241 NLRB 1248, 1251 (1979). would not be competitive to install roofs using the poly- As set forth above, in theory the subcontractors are ester cold processing system. Moreover, in addition to free to perform roofing work other than for Respondent the pumper rigs, Respondent Evergreen furnishes, appar- Evergreen. However, in practice, so far as the evidence ently at no cost to the subcontractors, chase trucks discloses, none of them has ever done so, and, of course, which are used to transport the materials needed for per- it is the practice which is controlling in this area. Queen forming the roofing work at no cost to the subcontrac- City Paving Co., supra. Moreover, it is unlikely that they tors. Thus, the essential vehicles used to install the roof- would be able to install roofs using the polyester cold ing system, by means of the polyester cold processing processing system independently of Respondent Ever- system, and to transport materials to project sites are fur- green. For the pumper rig is necessary to do so competi- nished by Respondent Evergreen to the subcontractors, tively and Gordon testified that he would not authorize virtually at no cost. And, as Gordon's testimony illus- the use of these rigs by subcontractors to, in effect, com- trates, control of those vehicles remains with Respondent pete with Respondent Evergreen. 9 Nor is there any evi- Evergreen. dence that Respondent Evergreen would permit subcon- Respondent Evergreen also furnishes the material tractors to forgo accepting its assignments for roofing needed to install the roofs at no cost to the subcontrac- work in order to engage in other roofing work, inde- tors. There is no evidence that subcontractors are free to pendent of Respondent Evergreen. In any event, the per- substitute alternative, possibly cheaper, materials from formance of work for others than Respondent Evergreen other sources for that provided by Respondent Ever- would not, of itself, suffice to establish that an independ- green. Consequently, so far as the record discloses, the ent contractor relationship exists. See, e.g., Carpet, Lino- subcontractors are not able to increase profit by search- leum and Soft Tile Layers Local No. 1238 (Robert A. ing for and securing alternative sources for supplies. In Arnold d/b/a Arnold's Carpet), 175 NLRB 332, 334 effect, that is controlled exlusively by Respondent Ever- (1969). green. Although subcontractors are obliged to pay for While subcontractors are expected to repair or pay for materials damaged, lost, or used negligently, that does any damage that they might cause to a customer's prop- not appear to have been a significant occurrence and, in erty, and to correct or pay for the correction of any defi- any event, it is not abnormal for employers to charge ciency in the roofing work they perform, of itself, this employees for negligent loss, damage, on use of materi- would not dictate conclusion that an independent con- als. Accordingly, this factor does not dictate the exist- tractor relationship exists. Local No. 2265, United Broth- ence of an independent contractor relationship. erhood of Carpenters and Joiners of America, AFL-CIO Great emphasis is placed by Respondents on the fact (Carpet Center, Inc.), 170 NLRB 633, 634 (1968). Indeed, that subcontractors select their own employees for hire, ~- -- ,.... , ~direct their work, and set their rates of compensation, Although at least one subcontractor testified that he had purchased a ir ir r a ir flatbed truck for the purpose of developing his own rig, there is no evi- which is paid by the subcontractors. Yet, close examina- dence that he has made any further efforts, beyond the purchase of the tion of these features shows that the independent judg- vehicle, to do so. Moreover, there is no evidence that such a rig would ment exercised by subcontractors in this area is not much be developed by that contractor within any forseeable period of time. In diffenent, if at all, from that which is exercised by many these circumstances, it is, at best, speculative that this subcontractor would develop his own rig to, in effect, compete with Respondent in supervisors. Thus, the nature of the work to be done is using the polyester cold processing system in the future. governed by the facts that Respondent Evergreen has 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stance of rejection of a job by a subcontractor was pro- while subcontractors guarantee their work, that guaran- vided and that particular rejection was for reason unre- tee is a nonwritten one given only to Respondent Ever- lated to the profitability of the particular job declined by green and not to the customers. The 4-year warranty Romei. Of course, in this area, "it is the actual practice that is extended to customers is one given by Respondent which controls." Queen City Paving Company, 243 NLRB Evergreen. In the final analysis, it is to Respondent Ev- 71, fn. 6 (1979); see also Seven-Up Bottling Company of ergreen, not to the subcontractors, that customers look Boston, supra, 506 F.2d at 600. for correction of deficiencies and for restitution of dam- In sum, therefore, Respondent Evergreen has exclusive ages caused by subcontractors. control over the income of its subcontractors from work As noted above, the fact that subcontractors lease or performed for it, having been the party in control of ne- purchase vehicles which they use in performing work for gotiations for roofing contracts with customers, having Respondent Evergreen is not determinative of the rela- been the one to select the jobs which the subcontractors tionship to Respondent Evergreen. See Brotherhood of will perform, and having unilaterally determined the Carpenters and Joiners (Carpet Center, Inc.), supra; Sheet rates to be paid to the subcontractors for performing that Metal Workers Union Local 283, Sheet Metal Workers In- work. Subcontractors are left in the position of having ternational Association, AFL-CIO (Thomas A. DeVol, no contact with customers and "no opportunity for the d Td S 17 N 6 6 negotiation of different rates" with them for performing as the evidence discloses, even without these vehicles the roofing installations. Lucky Stores, Inc., 243 NLRB 642, s wou sti be a t n r u 644 (1979). "Decisions with respect to the line of prod- ste c o lyester co l d s sing syse F o t he vehicle s ucts to be sold, the type of customer to be serviced, and, h at are c o Pat system are the vehigs in general, the normal risk-taking ventures which distin- t h a t areowned 1 to t h at synt em ar e th e Ptotpesbogs. guish the small businessman/independent contractor Those owned by Mylan and are furnished to the subcono from an employee are, in this case, all made by [Re- rac t o rs s atha n o t n sal re n t al. fe e i at bes t u n d er an, o ral spondent Evergreen]." The Standard Oil Co. (of Ohio), leas e , W l th o u t t t ese "B8' *t *s uncontradicted that it 241 NLRB 1248, 1251 (1979). would not be competitive to install roofs using the poly- As set forth above, in theory the subcontractors are est e r co l d Processing system. Moreover, in addition to free to perform roofing work other than for Respondent the pumper rigs, Respondent Evergreen furnishes, appar- Evergreen. However, in practice, so far as the evidence ently at no co st to t h e subcontractors, chase trucks discloses, none of them has ever done so, and, of course, w h ic h ar e us ed to transport the materials needed for per- it is the practice which is controlling in this area. Queen forming the roofing work at no cost to the subcontrac- City Paving Co., supra. Moreover, it is unlikely that they tors. Thus, the essential vehicles used to install the roof- would be able to install roofs using the polyester cold ing system, by means of the polyester cold processing processing system independently of Respondent Ever- system, and to transport materials to project sites are fur- green. For the pumper rig is necessary to do so competi- nished by Respondent Evergreen to the subcontractors, tively and Gordon testified that he would not authorize virtually at no cost. And, as Gordon's testimony illus- the use of these rigs by subcontractors to, in effect, com- trates, control of those vehicles remains with Respondent pete with Respondent Evergreen." Nor is there any evi- Evergreen. dence that Respondent Evergreen would permit subcon- Respondent Evergreen also furnishes the material tractors to forgo accepting its assignments for roofing needed to install the roofs at no cost to the subcontrac- work in order to engage in other roofing work, inde- tors. There is no evidence that subcontractors are free to pendent of Respondent Evergreen. In any event, the per- substitute alternative, possibly cheaper, materials from formance of work for others than Respondent Evergreen other sources for that provided by Respondent Ever- would not, of itself, suffice to establish that an independ- green. Consequently, so far as the record discloses, the ent contractor relationship exists. See, e.g., Carpet, Lino- subcontractors are not able to increase profit by search- leum and Soft Tile Layers Local No. 1238 (Robert A. ing for and securing alternative sources for supplies. In Arnold d/b/a Arnold's Carpet), 175 NLRB 332, 334 effect, that is controlled exiusively by Respondent Ever- (1969). green. Although subcontractors are obliged to pay for While subcontractors are expected to repair or pay for materials damaged, lost, or used negligently, that does any damage that they might cause to a customer's prop- not appear to have been a significant occurrence and, in erty, and to correct or pay for the correction of any defi- any event, it is not abnormal for employers to charge ciency in the roofing work they perform, of itself, this employees for negligent loss, damage, on use of materi- would not dictate conclusion that an independent con- als. Accordingly, this factor does not dictate the exist- tractor relationship exists. Local No. 2265. United Broth- ence of an independent contractor relationship. erhood of Carpenters and Joiners of America, AFL-CIO Great emphasis is placed by Respondents on the fact (Carpet Center, Inc.), 170 NLRB 633, 634 (1968). Indeed, that subcontractors select their own employees for hire, ~-- -"-, ., . . . . , ~~~~~direct their work, and set their rates of compensation, I Although at least one subcontractor testified that he had purchased a re t wr an set te rae of c psi flatbed truck for the purpose of developing his own rig, there is no evi- w h ic h is paid by t h e subcontractors. Yet, close examina- dence that he has made any further efforts, beyond the purchase of the tion of these features shows that the independent judg- vehicle, to do so. Moreover, there is no evidence that such a rig would ment exercised by subcontractors in this area is not much be developed by that contractor within any forseeable period of time. In diffenent, if at all, from that which is exercised by many these circumstances, it is, at best, speculative that this subcontractor would develop his own rig to, in effect, compete with Respondent in supervisors. Thus, the nature of the work to be done is using the polyester cold processing system in the future. governed by the facts that Respondent Evergreen has 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stance of rejection of a job by a subcontractor was pro- while subcontractors guarantee their work, that guaran- vided and that particular rejection was for reason unre- tee is a nonwritten one given only to Respondent Ever- lated to the profitability of the particular job declined by green and not to the customers. The 4-year warranty Romei. Of course, in this area, "it is the actual practice that is extended to customers is one given by Respondent which controls." Queen City Paving Company, 243 NLRB Evergreen. In the final analysis, it is to Respondent Ev- 71, fn. 6 (1979); see also Seven-Up Bottling Company of ergreen, not to the subcontractors, that customers look Boston, supra, 506 F.2d at 600. for correction of deficiencies and for restitution of dam- In sum, therefore, Respondent Evergreen has exclusive ages caused by subcontractors. control over the income of its subcontractors from work As noted above, the fact that subcontractors lease or performed for it, having been the party in control of ne- purchase vehicles which they use in performing work for gotiations for roofing contracts with customers, having Respondent Evergreen is not determinative of the rela- been the one to select the jobs which the subcontractors tionship to Respondent Evergreen. See Brotherhood of will perform, and having unilaterally determined the Carpenters and Joiners (Carpet Center, Inc.), supra; Sheet rates to be paid to the subcontractors for performing that Metal Workers Union Local 283, Sheet Metal Workers In- work. Subcontractors are left in the position of having ternational Association, AFL-CIO (Thomas A. DeVol, no contact with customers and "no opportunity for the d Td S 17 N 6 6 negotiation of different rates" with them for performing as the evidence discloses, even without these vehicles the roofing installations. Lucky Stores, Inc., 243 NLRB 642, s wou sti be a t n r u 644 (1979). "Decisions with respect to the line of prod- ste c o lyester co l d s sing syse F o t he vehicle s ucts to be sold, the type of customer to be serviced, and, h at are c r l to essat system are the vehigs in general, the normal risk-taking ventures which distin- t h a t areowned 1 to t h ataynd ar e th e Ptotpesbogs. guish the small businessman/independent contractor Those owned by Mylan and are furnished to the subcono from an employee are, in this case, all made by [Re- rac t o rs s atha n o t n sal re n t al. fe e i at bes t u n d er an, o ral spondent Evergreen]." The Standard Oil Co. (of Ohio), leas e , W l th o u t t t ese "B8' *t *s uncontradicted that it 241 NLRB 1248, 1251 (1979). would not be competitive to install roofs using the poly- As set forth above, in theory the subcontractors are est e r co l d processing system. Moreover, in addition to free to perform roofing work other than for Respondent the pumper rigs, Respondent Evergreen furnishes, appar- Evergreen. However, in practice, so far as the evidence ently at no co st to t h e subcontractors, chase trucks discloses, none of them has ever done so, and, of course, w h ic h are used to transport the materials needed for per- it is the practice which is controlling in this area. Queen forming the roofing work at no cost to the subcontrac- City Paving Co., supra. Moreover, it is unlikely that they tors. Thus, the essential vehicles used to install the roof- would be able to install roofs using the polyester cold ing system, by means of the polyester cold processing processing system independently of Respondent Ever- system, and to transport materials to project sites are fur- green. For the pumper rig is necessary to do so competi- nished by Respondent Evergreen to the subcontractors, tively and Gordon testified that he would not authorize virtually at no cost. And, as Gordon's testimony illus- the use of these rigs by subcontractors to, in effect, com- trates, control of those vehicles remains with Respondent pete with Respondent Evergreen." Nor is there any evi- Evergreen. dence that Respondent Evergreen would permit subcon- Respondent Evergreen also furnishes the material tractors to forgo accepting its assignments for roofing needed to install the roofs at no cost to the subcontrac- work in order to engage in other roofing work, inde- tors. There is no evidence that subcontractors are free to pendent of Respondent Evergreen. In any event, the per- substitute alternative, possibly cheaper, materials from formance of work for others than Respondent Evergreen other sources for that provided by Respondent Ever- would not, of itself, suffice to establish that an independ- green. Consequently, so far as the record discloses, the ent contractor relationship exists. See, e.g., Carpet, Lino- subcontractors are not able to increase profit by search- leum and Soft Tile Layers Local No. 1238 (Robert A. ing for and securing alternative sources for supplies. In Arnold d/b/a Arnold's Carpet), 175 NLRB 332, 334 effect, that is controlled exiusively by Respondent Ever- (1969). green. Although subcontractors are obliged to pay for While subcontractors are expected to repair or pay for materials damaged, lost, or used negligently, that does any damage that they might cause to a customer's prop- not appear to have been a significant occurrence and, in erty, and to correct or pay for the correction of any defi- any event, it is not abnormal for employers to charge ciency in the roofing work they perform, of itself, this employees for negligent loss, damage, on use of materi- would not dictate conclusion that an independent con- als. Accordingly, this factor does not dictate the exist- tractor relationship exists. Local No. 2265. United Broth- ence of an independent contractor relationship. erhood of Carpenters and Joiners of America, AFL-CIO Great emphasis is placed by Respondents on the fact (Carpet Center, Inc.), 170 NLRB 633, 634 (1968). Indeed, that subcontractors select their own employees for hire, ~-- -"-, ., . . . . , ~~~~~direct their work, and set their rates of compensation, I Although at least one subcontractor testified that he had purchased a re t wr an set te rae of c psi flatbed truck for the purpose of developing his own rig, there is no evi- w h ic h is paid by t h e subcontractors. Yet, close examina- dence that he has made any further efforts, beyond the purchase of the tion of these features shows that the independent judg- vehicle, to do so. Moreover, there is no evidence that such a rig would ment exercised by subcontractors in this area is not much be developed by that contractor within any forseeable period of time. In diffenent, if at all, from that which is exercised by many these circumstances, it is, at best, speculative that this subcontractor would develop his own rig to, in effect, compete with Respondent in supervisors. Thus, the nature of the work to be done is using the polyester cold processing system in the future. governed by the facts that Respondent Evergreen has 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stance of rejection of a job by a subcontractor was pro- while subcontractors guarantee their work, that guaran- vided and that particular rejection was for reason unre- tee is a nonwritten one given only to Respondent Ever- lated to the profitability of the particular job declined by green and not to the customers. The 4-year warranty Romei. Of course, in this area, "it is the actual practice that is extended to customers is one given by Respondent which controls." Queen City Paving Company, 243 NLRB Evergreen. In the final analysis, it is to Respondent Ev- 71, fn. 6 (1979); see also Seven-Up Bottling Company of ergreen, not to the subcontractors, that customers look Boston, supra, 506 F.2d at 600. for correction of deficiencies and for restitution of dam- In sum, therefore, Respondent Evergreen has exclusive ages caused by subcontractors. control over the income of its subcontractors from work As noted above, the fact that subcontractors lease or performed for it, having been the party in control of ne- purchase vehicles which they use in performing work for gotiations for roofing contracts with customers, having Respondent Evergreen is not determinative of the rela- been the one to select the jobs which the subcontractors tionship to Respondent Evergreen. See Brotherhood of will perform, and having unilaterally determined the Carpenters and Joiners (Carpet Center, Inc.), supra; Sheet rates to be paid to the subcontractors for performing that Metal Workers Union Local 283, Sheet Metal Workers In- work. Subcontractors are left in the position of having ternational Association, AFL-CIO (Thomas A. DeVol, no contact with customers and "no opportunity for the d Td S 17 N 6 6 negotiation of different rates" with them for performing as the evidence discloses, even without these vehicles the roofing installations. Lucky Stores, Inc., 243 NLRB 642, s wou sti be a t n r u 644 (1979). "Decisions with respect to the line of prod- ste c o lyester co l d s sing syse F o t he vehicle s ucts to be sold, the type of customer to be serviced, and, h at are c r l to essat system are the vehigs in general, the normal risk-taking ventures which distin- t h a t areowned 1 to t h ataynd ar e th e Ptotpesbogs. guish the small businessman/independent contractor Those owned by Mylan and are furnished to the subcono from an employee are, in this case, all made by [Re- rac t o rs s atha n o t n sal re n t al. fe e i at bes t u n d er an, o ral spondent Evergreen]." The Standard Oil Co. (of Ohio), leas e , W l th o u t t t ese "B8' *t *s uncontradicted that it 241 NLRB 1248, 1251 (1979). would not be competitive to install roofs using the poly- As set forth above, in theory the subcontractors are est e r co l d processing system. Moreover, in addition to free to perform roofing work other than for Respondent the pumper rigs, Respondent Evergreen furnishes, appar- Evergreen. However, in practice, so far as the evidence ently at no co st to t h e subcontractors, chase trucks discloses, none of them has ever done so, and, of course, w h ic h are used to transport the materials needed for per- it is the practice which is controlling in this area. Queen forming the roofing work at no cost to the subcontrac- City Paving Co., supra. Moreover, it is unlikely that they tors. Thus, the essential vehicles used to install the roof- would be able to install roofs using the polyester cold ing system, by means of the polyester cold processing processing system independently of Respondent Ever- system, and to transport materials to project sites are fur- green. For the pumper rig is necessary to do so competi- nished by Respondent Evergreen to the subcontractors, tively and Gordon testified that he would not authorize virtually at no cost. And, as Gordon's testimony illus- the use of these rigs by subcontractors to, in effect, com- trates, control of those vehicles remains with Respondent pete with Respondent Evergreen." Nor is there any evi- Evergreen. dence that Respondent Evergreen would permit subcon- Respondent Evergreen also furnishes the material tractors to forgo accepting its assignments for roofing needed to install the roofs at no cost to the subcontrac- work in order to engage in other roofing work, inde- tors. There is no evidence that subcontractors are free to pendent of Respondent Evergreen. In any event, the per- substitute alternative, possibly cheaper, materials from formance of work for others than Respondent Evergreen other sources for that provided by Respondent Ever- would not, of itself, suffice to establish that an independ- green. Consequently, so far as the record discloses, the ent contractor relationship exists. See, e.g., Carpet, Lino- subcontractors are not able to increase profit by search- leum and Soft Tile Layers Local No. 1238 (Robert A. ing for and securing alternative sources for supplies. In Arnold d/b/a Arnold's Carpet), 175 NLRB 332, 334 effect, that is controlled exiusively by Respondent Ever- (1969). green. Although subcontractors are obliged to pay for While subcontractors are expected to repair or pay for materials damaged, lost, or used negligently, that does any damage that they might cause to a customer's prop- not appear to have been a significant occurrence and, in erty, and to correct or pay for the correction of any defi- any event, it is not abnormal for employers to charge ciency in the roofing work they perform, of itself, this employees for negligent loss, damage, on use of materi- would not dictate conclusion that an independent con- als. Accordingly, this factor does not dictate the exist- tractor relationship exists. Local No. 2265. United Broth- ence of an independent contractor relationship. erhood of Carpenters and Joiners of America, AFL-CIO Great emphasis is placed by Respondents on the fact (Carpet Center, Inc.), 170 NLRB 633, 634 (1968). Indeed, that subcontractors select their own employees for hire, ~-- -"-, ., . . . . , ~~~~~direct their work, and set their rates of compensation, I Although at least one subcontractor testified that he had purchased a re t wr an set te rae of c psi flatbed truck for the purpose of developing his own rig, there is no evi- w h ic h is paid by t h e subcontractors. Yet, close examina- dence that he has made any further efforts, beyond the purchase of the tion of these features shows that the independent judg- vehicle, to do so. Moreover, there is no evidence that such a rig would ment exercised by subcontractors in this area is not much be developed by that contractor within any forseeable period of time. In diffenent, if at all, from that which is exercised by many these circumstances, it is, at best, speculative that this subcontractor would develop his own rig to, in effect, compete with Respondent in supervisors. Thus, the nature of the work to be done is using the polyester cold processing system in the future. governed by the facts that Respondent Evergreen has BETTER BUILDING SUPPLY CORP. 477 contracted for the work and has determined the system 3. A unit appropriate for collective bargaining is: to be utilized in performing it. Campbell's uncontradicted testimony illustrates that, in addition, Mylan and Gordon All roofers and waterproofers employed by Better come to sites and give their own directions on a not in- Building Supply Corp., Evergreen Roofing, Inc., significant number of occasions. Further, the wage rates and their subcontractors employed in Clallam, Jef- of crewmembers selected by subcontractors are subject ferson, King, Kitsap, Mason and Snohomish Coun- to the limitations of the amount that subcontractors will ties, Washington; excluding professional employees, receive for performing the work. That amount, as found guards and supervisors as defined in the Act. above, is established unilaterally by Respondent Ever- green. Finally, the ability to select crewmembers who 4. At all times material Local 54 of the United Slate, will be hired is a supervisory function. Of itself, it does Tile & Composition Roofers, Damp and Waterproof not dictate a conclusion that there is independent con- Workers Association, AFL-CIO, has been the exclusive tractor status. In any event, the record here shows that collective-bargaining representative of the employees in Respondent Evergreen has been involved in this process. the above-described bargaining unit within the meaning It has suggested that particular employees be used as of Section 9(a) of the Act. crewmembers by subcontractors. On at least one occa- 5. By failing and refusing to continue recognizing sion, it unilaterally has shifted an employee from one Local 54 of the United Slate, Tile & Composition Roof- subcontractor's crew to that of another. When possible, ers, Damp and Waterproof Workers Association, AFL- it provides work in its yard for subcontractors' crew- it provides work in its yard for subcontractors' crew- CIO, as the collective-bargaining representative of the members when there is a shortage of roofing work for C IO, as te collective-bargaining representative of the them to perform. In short, the record does not support employees in the above-described bargaining unit and by the independence from Respondent Evergreen of sub- failing and refusing to apply the terms and conditions of contractors in the area of the employment of crew- the current collective-bargaining agreement to those em- members that Respondent Evergreen seeks to portray. ployees, Better Building Supply Corp., and Evergreen Moreover, it is significant that, rather than simply paying Roofing, Inc., have unlawfully terminated and modified Fresh Air, as an entity, for the work which its crews the terms and conditions of said collective-bargaining perform, Respondent Evergreen pays Romei and Gard- agreement before it could be reopened pursuant to its ner separately for the work which each of their crews provisions, thereby violating Section 8(a)(5) and (1) of performs, thereby effectively disregarding the fact that the Act. they are nominally part of a single entity. 6. By failing and refusing to provide Local 54 of the In these circumstances, I find that the subcontractors United Slate, Tile & Composition Roofers, Damp and used by Respondent Evergreen are not independent con- Waterproof Workers Association, AFL-CIO, with re- tractors but rather, despite Respondent Evergreen's quested information that is relevant and necessary to the change in their nominal relationship, that an employer collective-bargaining process, Better Building Supply employee relation has continued to exist between the Corp., and Evergreen Roofing, Inc., thereby violated roofing crews and Respondent Evergreen. Inasmuch as Section 8(a)(5) and (1) of the Act. Respondent Evergreen, as found above, in the same em- 7. The aforesaid unfair labor practices affect commerce ployer as Respondent BBS, the two constituting a single within the meaning of Section 2(6) and (7) of the Act. employer, and in view of the fact that the roofing crews have continued as its employees, I find that by failing to THE REMEDY continue applying the terms of Respondent BBS's collec- tive-bargaining agreement to these employees during the Having found that Better Building Supply Corp., and period on and after May 7, 1979, Respondents have vio- Evergreen Roofing, Inc., have engaged in certain unfair lated Section 8(a)(5) and (1) of the Act. Moreover, by labor practices, I shall recommend that they be ordered failing and refusing to provide the above-described infor- to cease and desist therefrom, and that they take certain mation requested in the Union's January 1980 letter, affirmative action to effectuate the policies of the Act. which is information relative to the bargaining process, Specifically, they shall be ordered to honor the terms of Respondents have further violated Section 8(a)(5) and (1) the current collective-bargaining agreement and to make of the Act. whole all employees for any losses sustained by the fail- CONCLUSIONS OF LAW ure to apply the terms and conditions of the collective- bargaining agreement to them on and after May 7, 1979, 1. Better Building Supply Corp., and Evergreen Roof- with interest to be paid on the amounts owing and to be ing, Inc., are each employers within the meaning of Sec- computed in the manner prescribed in F. W Woolworth tion 2(2) of the Act, engaged in commerce and in busi- Company, 90 NLRB 289 (1950), and Florida Steel Corpo- nesses affecting commerce within the meaning of Section ration, 231 NLRB 651 (1977). See, generally, Isis Plumb- 2(6) and (7) of the Act, and, collectively, constitute a ing & Heating Co., 138 NLRB 716 (1962), enforcement single employing enterprise and a single employer within denied on different grounds 322 F.2d 913 (9th Cir. 1963). the meaning of the Act. Upon the foregoing findings of fact, conclusions of 2. Local 54 of the United Slate, Tile & Composition 2. Local 54 of the United Slate, Tile & Composition law, and the entire record, and pursuant to Section 10(c) Roofers, Damp and Waterproof Workers Association, of the Act, I hereby issue the following recommended: AFL-CIO, is labor organization within the meaning of Section 2(5) of the Act. BETTER BUILDING SUPPLY CORP. 477 contracted for the work and has determined the system 3. A unit appropriate for collective bargaining is: to be utilized in performing it. Campbell's uncontradicted testimony illustrates that, in addition, Mylan and Gordon All roofers and waterproofers employed by Better come to sites and give their own directions on a not in- Building Supply Corp., Evergreen Roofing, Inc., significant number of occasions. Further, the wage rates and their subcontractors employed in Clallam, Jef- of crewmembers selected by subcontractors are subject ferson, King, Kitsap, Mason and Snohomish Coun- to the limitations of the amount that subcontractors will ties, Washington; excluding professional employees, receive for performing the work. That amount, as found guards and supervisors as defined in the Act. above, is established unilaterally by Respondent Ever- green. Finally, the ability to select crewmembers who 4. At all times material Local 54 of the United Slate, will be hired is a supervisory function. Of itself, it does Tile & Composition Roofers, Damp and Waterproof not dictate a conclusion that there is independent con- Workers Association, AFL-CIO, has been the exclusive tractor status. In any event, the record here shows that collective-bargaining representative of the employees in Respondent Evergreen has been involved in this process. the above-described bargaining unit within the meaning It has suggested that particular employees be used as of Section 9(a) of the Act. crewmembers by subcontractors. On at least one occa- 5. By failing and refusing to continue recognizing sion, it unilaterally has shifted an employee from one Local 54 of the United Slate, Tile & Composition Roof- subcontractor's crew to that of another. When possible, e Waterproof Workers Association, AFL- it provides work in its yard for subcontractors' crew- C a t c rereenatveofth members when there is a shortage of roofing work for eC I lo a s t h e collective-bargaining representative of the them to perform. In short, the record does not supportemployees in the above-described bargaining unit and by the independence from Respondent Evergreen of sub- failing a n d refusing t o apply the terms and conditions of contractors in the area of the employment of crew- t h e current collective-bargaining agreement to those em- members that Respondent Evergreen seeks to portray. ployees, Better Building Supply Corp., and Evergreen Moreover, it is significant that, rather than simply paying Roofing, Inc., have unlawfully terminated and modified Fresh Air, as an entity, for the work which its crews the terms and conditions of said collective-bargaining perform, Respondent Evergreen pays Romei and Gard- agreement before it could be reopened pursuant to its ner separately for the work which each of their crews provisions, thereby violating Section 8(a)(5) and (1) of performs, thereby effectively disregarding the fact that the Act. they are nominally part of a single entity. 6. By failing and refusing to provide Local 54 of the In these circumstances, I find that the subcontractors United Slate, Tile & Composition Roofers, Damp and used by Respondent Evergreen are not independent con- Waterproof Workers Association, AFL-CIO, with re- tractors but rather, despite Respondent Evergreen's quested information that is relevant and necessary to the change in their nominal relationship, that an employer collective-bargaining process, Better Building Supply employee relation has continued to exist between the Corp., and Evergreen Roofing, Inc., thereby violated roofing crews and Respondent Evergreen. Inasmuch as Section 8(a)(5) and (1) of the Act. Respondent Evergreen, as found above, in the same em- 7. The aforesaid unfair labor practices affect commerce ployer as Respondent BBS, the two constituting a singleSection 2(6) and (7) of the Act. employer, and in view of the fact that the roofing crews have continued as its employees, I find that by failing to THE REMEDY continue applying the terms of Respondent BBS's collec- tive-bargaining agreement to these employees during the Having found that Better Building Supply Corp., and period on and after May 7, 1979, Respondents have vio- Evergreen Roofing, Inc., have engaged in certain unfair lated Section 8(a)(5) and (1) of the Act. Moreover, by labor practices, I shall recommend that they be ordered failing and refusing to provide the above-described infor- to cease and desist therefrom, and that they take certain mation requested in the Union's January 1980 letter, affirmative action to effectuate the policies of the Act. which is information relative to the bargaining process, Specifically, they shall be ordered to honor the terms of Respondents have further violated Section 8(a)(5) and (1) the current collective-bargaining agreement and to make of the Act. whole all employees for any losses sustained by the fail- CONCLUSIONS OF LAW u r e to apply the terms and conditions of the collective- bargaining agreement to them on and after May 7, 1979, 1. Better Building Supply Corp., and Evergreen Roof- with interest to be paid on the amounts owing and to be ing, Inc., are each employers within the meaning of Sec- computed in the manner prescribed in F. W. Woolworth tion 2(2) of the Act, engaged in commerce and in busi- Company, 90 NLRB 289 (1950), and Florida Steel Corpo- nesses affecting commerce within the meaning of Section ration, 231 NLRB 651 (1977). See, generally, Isis Plumb- 2(6) and (7) of the Act, and, collectively, constitute a ing & Heating Co., 138 NLRB 716 (1962), enforcement single employing enterprise and a single employer within denied on different grounds 322 F.2d 913 (9th Cir. 1963). the meaning of the Act. Upon the foregoing findings of fact, conclusions of 2. Local 54 of the United Slate, Tile &t Composition ^ 2. Lcal 4 oftheUnitd Slte, ile& Coposiion law, and the entire record, and pursuant to Section 10(c) Roofers, D a m p and Wat e rpr o o f W o r k er s Association, o t A I h following recommended: AFL-CIO, is labor organization within the meaning of Section 2(5) of the Act. BETTER BUILDING SUPPLY CORP. 477 contracted for the work and has determined the system 3. A unit appropriate for collective bargaining is: to be utilized in performing it. Campbell's uncontradicted testimony illustrates that, in addition, Mylan and Gordon All roofers and waterproofers employed by Better come to sites and give their own directions on a not in- Building Supply Corp., Evergreen Roofing, Inc., significant number of occasions. Further, the wage rates and their subcontractors employed in Clallam, Jef- of crewmembers selected by subcontractors are subject ferson, King, Kitsap, Mason and Snohomish Coun- to the limitations of the amount that subcontractors will ties, Washington; excluding professional employees, receive for performing the work. That amount, as found guards and supervisors as defined in the Act. above, is established unilaterally by Respondent Ever- green. Finally, the ability to select crewmembers who 4. At all times material Local 54 of the United Slate, will be hired is a supervisory function. Of itself, it does Tile & Composition Roofers, Damp and Waterproof not dictate a conclusion that there is independent con- Workers Association, AFL-CIO, has been the exclusive tractor status. In any event, the record here shows that collective-bargaining representative of the employees in Respondent Evergreen has been involved in this process. the above-described bargaining unit within the meaning It has suggested that particular employees be used as of Section 9(a) of the Act. crewmembers by subcontractors. On at least one occa- 5. By failing and refusing to continue recognizing sion, it unilaterally has shifted an employee from one Local 54 of the United Slate, Tile & Composition Roof- subcontractor's crew to that of another. When possible, e Waterproof Workers Association, AFL- it provides work in its yard for subcontractors' crew- C a t c rereenatveofth members when there is a shortage of roofing work for eC I lo a s t h e collective-bargaining representative of the them to perform. In short, the record does not supportemployees in the above-described bargaining unit and by the independence from Respondent Evergreen of sub- failing a n d refusing to apply the terms and conditions of contractors in the area of the employment of crew- t h e current collective-bargaining agreement to those em- members that Respondent Evergreen seeks to portray. ployees, Better Building Supply Corp., and Evergreen Moreover, it is significant that, rather than simply paying Roofing, Inc., have unlawfully terminated and modified Fresh Air, as an entity, for the work which its crews the terms and conditions of said collective-bargaining perform, Respondent Evergreen pays Romei and Gard- agreement before it could be reopened pursuant to its ner separately for the work which each of their crews provisions, thereby violating Section 8(a)(5) and (1) of performs, thereby effectively disregarding the fact that the Act. they are nominally part of a single entity. 6. By failing and refusing to provide Local 54 of the In these circumstances, I find that the subcontractors United Slate, Tile & Composition Roofers, Damp and used by Respondent Evergreen are not independent con- Waterproof Workers Association, AFL-CIO, with re- tractors but rather, despite Respondent Evergreen's quested information that is relevant and necessary to the change in their nominal relationship, that an employer collective-bargaining process, Better Building Supply employee relation has continued to exist between the Corp., and Evergreen Roofing, Inc., thereby violated roofing crews and Respondent Evergreen. Inasmuch as Section 8(a)(5) and (1) of the Act. Respondent Evergreen, as found above, in the same em- 7. The aforesaid unfair labor practices affect commerce ployer as Respondent BBS, the two constituting a singleSection 2(6) and (7) of the Act. employer, and in view of the fact that the roofing crews have continued as its employees, I find that by failing to THE REMEDY continue applying the terms of Respondent BBS's collec- tive-bargaining agreement to these employees during the Having found that Better Building Supply Corp., and period on and after May 7, 1979, Respondents have vio- Evergreen Roofing, Inc., have engaged in certain unfair lated Section 8(a)(5) and (1) of the Act. Moreover, by labor practices, I shall recommend that they be ordered failing and refusing to provide the above-described infor- to cease and desist therefrom, and that they take certain mation requested in the Union's January 1980 letter, affirmative action to effectuate the policies of the Act. which is information relative to the bargaining process, Specifically, they shall be ordered to honor the terms of Respondents have further violated Section 8(a)(5) and (1) the current collective-bargaining agreement and to make of the Act. whole all employees for any losses sustained by the fail- CONCLUSIONS OF LAW u r e to apply the terms and conditions of the collective- bargaining agreement to them on and after May 7, 1979, 1. Better Building Supply Corp., and Evergreen Roof- with interest to be paid on the amounts owing and to be ing, Inc., are each employers within the meaning of Sec- computed in the manner prescribed in F. W. Woolworth tion 2(2) of the Act, engaged in commerce and in busi- Company, 90 NLRB 289 (1950), and Florida Steel Corpo- nesses affecting commerce within the meaning of Section ration, 231 NLRB 651 (1977). See, generally, Isis Plumb- 2(6) and (7) of the Act, and, collectively, constitute a ing & Heating Co., 138 NLRB 716 (1962), enforcement single employing enterprise and a single employer within denied on different grounds 322 F.2d 913 (9th Cir. 1963). the meaning of the Act. Upon the foregoing findings of fact, conclusions of 2. Local 54 of the United Slate, Tile &t Composition ^ 2. Lcal 4 oftheUnitd Slte, ile& Coposiion law, and the entire record, and pursuant to Section 10(c) Roofers, D a m p and Wat e rpr o o f W o r k er s Association, o t A I h following recommended: AFL-CIO, is labor organization within the meaning of Section 2(5) of the Act. BETTER BUILDING SUPPLY CORP. 477 contracted for the work and has determined the system 3. A unit appropriate for collective bargaining is: to be utilized in performing it. Campbell's uncontradicted testimony illustrates that, in addition, Mylan and Gordon All roofers and waterproofers employed by Better come to sites and give their own directions on a not in- Building Supply Corp., Evergreen Roofing, Inc., significant number of occasions. Further, the wage rates and their subcontractors employed in Clallam, Jef- of crewmembers selected by subcontractors are subject ferson, King, Kitsap, Mason and Snohomish Coun- to the limitations of the amount that subcontractors will ties, Washington; excluding professional employees, receive for performing the work. That amount, as found guards and supervisors as defined in the Act. above, is established unilaterally by Respondent Ever- green. Finally, the ability to select crewmembers who 4. At all times material Local 54 of the United Slate, will be hired is a supervisory function. Of itself, it does Tile & Composition Roofers, Damp and Waterproof not dictate a conclusion that there is independent con- Workers Association, AFL-CIO, has been the exclusive tractor status. In any event, the record here shows that collective-bargaining representative of the employees in Respondent Evergreen has been involved in this process. the above-described bargaining unit within the meaning It has suggested that particular employees be used as of Section 9(a) of the Act. crewmembers by subcontractors. On at least one occa- 5. By failing and refusing to continue recognizing sion, it unilaterally has shifted an employee from one Local 54 of the United Slate, Tile & Composition Roof- subcontractor's crew to that of another. When possible, e Waterproof Workers Association, AFL- it provides work in its yard for subcontractors' crew- C a t c rereenatveofth members when there is a shortage of roofing work for eC I lo a s t h e collective-bargaining representative of the them to perform. In short, the record does not supportemployees in the above-described bargaining unit and by the independence from Respondent Evergreen of sub- failing a n d refusing to apply the terms and conditions of contractors in the area of the employment of crew- t h e current collective-bargaining agreement to those em- members that Respondent Evergreen seeks to portray. ployees, Better Building Supply Corp., and Evergreen Moreover, it is significant that, rather than simply paying Roofing, Inc., have unlawfully terminated and modified Fresh Air, as an entity, for the work which its crews the terms and conditions of said collective-bargaining perform, Respondent Evergreen pays Romei and Gard- agreement before it could be reopened pursuant to its ner separately for the work which each of their crews provisions, thereby violating Section 8(a)(5) and (1) of performs, thereby effectively disregarding the fact that the Act. they are nominally part of a single entity. 6. By failing and refusing to provide Local 54 of the In these circumstances, I find that the subcontractors United Slate, Tile & Composition Roofers, Damp and used by Respondent Evergreen are not independent con- Waterproof Workers Association, AFL-CIO, with re- tractors but rather, despite Respondent Evergreen's quested information that is relevant and necessary to the change in their nominal relationship, that an employer collective-bargaining process, Better Building Supply employee relation has continued to exist between the Corp., and Evergreen Roofing, Inc., thereby violated roofing crews and Respondent Evergreen. Inasmuch as Section 8(a)(5) and (1) of the Act. Respondent Evergreen, as found above, in the same em- 7. The aforesaid unfair labor practices affect commerce ployer as Respondent BBS, the two constituting a singleSection 2(6) and (7) of the Act. employer, and in view of the fact that the roofing crews have continued as its employees, I find that by failing to THE REMEDY continue applying the terms of Respondent BBS's collec- tive-bargaining agreement to these employees during the Having found that Better Building Supply Corp., and period on and after May 7, 1979, Respondents have vio- Evergreen Roofing, Inc., have engaged in certain unfair lated Section 8(a)(5) and (1) of the Act. Moreover, by labor practices, I shall recommend that they be ordered failing and refusing to provide the above-described infor- to cease and desist therefrom, and that they take certain mation requested in the Union's January 1980 letter, affirmative action to effectuate the policies of the Act. which is information relative to the bargaining process, Specifically, they shall be ordered to honor the terms of Respondents have further violated Section 8(a)(5) and (1) the current collective-bargaining agreement and to make of the Act. whole all employees for any losses sustained by the fail- CONCLUSIONS OF LAW u r e to apply the terms and conditions of the collective- bargaining agreement to them on and after May 7, 1979, 1. Better Building Supply Corp., and Evergreen Roof- with interest to be paid on the amounts owing and to be ing, Inc., are each employers within the meaning of Sec- computed in the manner prescribed in F. W. Woolworth tion 2(2) of the Act, engaged in commerce and in busi- Company, 90 NLRB 289 (1950), and Florida Steel Corpo- nesses affecting commerce within the meaning of Section ration, 231 NLRB 651 (1977). See, generally, Isis Plumb- 2(6) and (7) of the Act, and, collectively, constitute a ing & Heating Co., 138 NLRB 716 (1962), enforcement single employing enterprise and a single employer within denied on different grounds 322 F.2d 913 (9th Cir. 1963). the meaning of the Act. Upon the foregoing findings of fact, conclusions of 2. Local 54 of the United Slate, Tile &t Composition ^ 2. Lcal 4 oftheUnitd Slte, ile& Coposiion law, and the entire record, and pursuant to Section 10(c) Roofers, D a m p and Wat e rpr o o f W o r k er s Association, o t A I h following recommended: AFL-CIO, is labor organization within the meaning of Section 2(5) of the Act. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER'° ployed in the bargaining unit heretofore found appropri- ate in Conclusion of Law 3, above. The Respondents, Better Building Supply Corp., and ate in Conclusion of Law 3, above. The Respondents, Better Building Supply Corp., and (b) Apply the terms and conditions of the current col- Evergreen Roofing, Inc., Seattle, Washington, their offi- lective-bargaining agreement to all employees employed cers, agents, successors, and assigns, shall: in the aforesaid contractual bargaining unit. 1. Cease and desist from: (c) Provide Local 54 of the United Slate, Tile & Com- (a) Refusing to bargain collectively with Local 54 of position Roofers, Damp and Waterproof Workers Asso- the United Slate, Tile & Composition Roofers, Damp ciation, AFL-CIO, with any and all requested informa- and Waterproof Workers Association, AFL-CIO, as the tion that is relevant and necessary to the collective-bar- exclusive bargaining representative of all employees in gaining process. the bargaining unit heretofore found appropriate in Con- (d) Make whole employees for any losses of pay or clusion of Law 3, above. benefits which would have accrued to them on and after (b) Failing and refusing to apply to all employees in May 7, 1979, under the current collective-bargaining the aforesaid bargaining unit all terms and conditions of agreement but for the failure to apply the terms and con- the current collective-bargaining agreement, absent the ditions of that agreement to all employees employed in express written consent of Local 54 of the United Slate, the aforesaid contractual bargaining unit on and after Tile & Composition Roofers, Damp and Waterproof that date. Workers Association, AFL-CIO. (e) Preserve and, upon request, make available to the (c) Refusing to bargain collectively by refusing, upon Board or its agents, for examination and copying, all request, to supply relevant information needed by Local payroll records, social security payment records, time- 54 of the United Slate, Tile & Composition Roofers, cards, personnel records and reports, and all other re- Damp and Waterproof Workers Association, AFL-CIO, cords necessary to analyze the amount of backpay due to represent the employees in the aforesaid bargaining under the terms of this Order. unit. (f) Post at their Seattle, Washington, facility copies of (d) Refusing to provide Local 54 of the United Slate, the attached notice marked "Appendix."" Copies of said Tile & Composition Roofers, Damp and Waterproof notice, on forms provided by the Regional Director for Workers Association, AFL-CIO, to represent the em- Region 19, after being duly signed by their authorized ployees in the aforesaid bargaining unit. representative, shall be posted by Respondents immedi- (e) In any other manner interfering with, restraining, ately upon receipt thereof, and be maintained by them or coercing employees in the exercise of any right guar- for 60 consecutive days thereafter, in conspicuous places, anteed them by Section 7 of the Act. including all places where notices to employees are cus- 2. Take the following affirmative action which is nec- tomarily posted. Reasonable steps shall be taken by essary to effectuate the purposes of the Act: Better Building Supply Co., and Evergreen Roofing, (a) Upon request bargain collectively with Local 54 of Inc., to insure that said notices are not altered, defaced, the United Slate, Tile & Composition Roofers, Damp or covered by any other material. and Waterproof Workers Association, AFL-CIO, as the (g) Notify the Regional Director for Region 19, in exclusive bargaining representative of all employees em- writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 1o 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 " In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in 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." 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 10 ployed in the bargaining unit heretofore found appropri- The Respondents, Better Building Supply Corp., and ate in Conclusion of Law 3, above. The Respondents, Better Building Supply Corp.. and (b) Apply the terms and conditions of the current col- Evergreen Roofing, Inc., Seattle, Washington, their offi- lective-bargaining agreement to all employees employed cers, agents, successors, and assigns, shall: in the aforesaid contractual bargaining unit. 1. Cease and desist from: (c) provide Local 54 of the United Slate, Tile & Com- (a) Refusing to bargain collectively with Local 54 of position Roofers, Damp and Waterproof Workers Asso- the United Slate, Tile & Composition Roofers, Damp ciation, AFL-CIO, with any and all requested informa- and Waterproof Workers Association, AFL-CIO, as the tion that is relevant and necessary to the collective-bar- exclusive bargaining representative of all employees in gaining process. the bargaining unit heretofore found appropriate in Con- (d) Make whole employees for any losses of pay or elusion of Law 3, above. benefits which would have accrued to them on and after (b) Failing and refusing to apply to all employees in May 7, 1979, under the current collective-bargaining the aforesaid bargaining unit all terms and conditions of agreement but for the failure to apply the terms and con- the current collective-bargaining agreement, absent the ditions of that agreement to all employees employed in express written consent of Local 54 of the United Slate, the aforesaid contractual bargaining unit on and after Tile & Composition Roofers, Damp and Waterproof that date. Workers Association, AFL-CIO. (e) Preserve and, upon request, make available to the (c) Refusing to bargain collectively by refusing, upon Board or its agents, for examination and copying, all request, to supply relevant information needed by Local payroll records, social security payment records, time- 54 of the United Slate, Tile & Composition Roofers, cards, personnel records and reports, and all other re- Damp and Waterproof Workers Association, AFL-CIO, cords necessary to analyze the amount of backpay due to represent the employees in the aforesaid bargaining under the terms of this Order. unit. (f) Post at their Seattle, Washington, facility copies of (d) Refusing to provide Local 54 of the United Slate, the attached notice marked "Appendix."" Copies of said Tile & Composition Roofers, Damp and Waterproof notice, on forms provided by the Regional Director for Workers Association, AFL-CIO, to represent the em- Region 19, after being duly signed by their authorized ployees in the aforesaid bargaining unit. representative, shall be posted by Respondents immedi- (e) In any other manner interfering with, restraining, ately upon receipt thereof, and be maintained by them or coercing employees in the exercise of any right guar- for 60 consecutive days thereafter, in conspicuous places, anteed them by Section 7 of the Act. including all places where notices to employees are cus- 2. Take the following affirmative action which is nec- tomarily posted. Reasonable steps shall be taken by essary to effectuate the purposes of the Act: B e t t e r Building Supply Co., and Evergreen Roofing, (a) Upon request bargain collectively with Local 54 of I n c ., t o in su r e t h a t sa i d n o t i c e s a r e no t a lt e r e d , defaced, the United Slate, Tile & Composition Roofers, Damp o r covered by any other material. and Waterproof Workers Association, AFL-CIO, as the (g) N o t ify t h e Regional Director for Region 19, in exclusive bargaining representative of all employees em- writing, w it h i n 2 0 d a ys f r o m t h e d a t e o f t h i s O r d e r , w h a t steps have been taken to comply herewith. 10 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 In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in 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." 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 10 ployed in the bargaining unit heretofore found appropri- The Respondents, Better Building Supply Corp., and ate in Conclusion of Law 3, above. The Respondents, Better Building Supply Corp.. and (b) Apply the terms and conditions of the current col- Evergreen Roofing, Inc., Seattle, Washington, their offi- lective-bargaining agreement to all employees employed cers, agents, successors, and assigns, shall: in the aforesaid contractual bargaining unit. 1. Cease and desist from: (c) provide Local 54 of the United Slate, Tile & Com- (a) Refusing to bargain collectively with Local 54 of position Roofers, Damp and Waterproof Workers Asso- the United Slate, Tile & Composition Roofers, Damp ciation, AFL-CIO, with any and all requested informa- and Waterproof Workers Association, AFL-CIO, as the tion that is relevant and necessary to the collective-bar- exclusive bargaining representative of all employees in gaining process. the bargaining unit heretofore found appropriate in Con- (d) Make whole employees for any losses of pay or elusion of Law 3, above. benefits which would have accrued to them on and after (b) Failing and refusing to apply to all employees in May 7, 1979, under the current collective-bargaining the aforesaid bargaining unit all terms and conditions of agreement but for the failure to apply the terms and con- the current collective-bargaining agreement, absent the ditions of that agreement to all employees employed in express written consent of Local 54 of the United Slate, the aforesaid contractual bargaining unit on and after Tile & Composition Roofers, Damp and Waterproof that date. Workers Association, AFL-CIO. (e) Preserve and, upon request, make available to the (c) Refusing to bargain collectively by refusing, upon Board or its agents, for examination and copying, all request, to supply relevant information needed by Local payroll records, social security payment records, time- 54 of the United Slate, Tile & Composition Roofers, cards, personnel records and reports, and all other re- Damp and Waterproof Workers Association, AFL-CIO, cords necessary to analyze the amount of backpay due to represent the employees in the aforesaid bargaining under the terms of this Order. unit. (f) Post at their Seattle, Washington, facility copies of (d) Refusing to provide Local 54 of the United Slate, the attached notice marked "Appendix."" Copies of said Tile & Composition Roofers, Damp and Waterproof notice, on forms provided by the Regional Director for Workers Association, AFL-CIO, to represent the em- Region 19, after being duly signed by their authorized ployees in the aforesaid bargaining unit. representative, shall be posted by Respondents immedi- (e) In any other manner interfering with, restraining, ately upon receipt thereof, and be maintained by them or coercing employees in the exercise of any right guar- for 60 consecutive days thereafter, in conspicuous places, anteed them by Section 7 of the Act. including all places where notices to employees are cus- 2. Take the following affirmative action which is nec- tomarily posted. Reasonable steps shall be taken by essary to effectuate the purposes of the Act: B e t t e r Building Supply Co., and Evergreen Roofing, (a) Upon request bargain collectively with Local 54 of I n c ., t o in su r e t h a t sa i d n o t i c e s a r e no t a lt e r e d , defaced, the United Slate, Tile & Composition Roofers, Damp o r covered by any other material. and Waterproof Workers Association, AFL-CIO, as the (g) N o t ify t h e Regional Director for Region 19, in exclusive bargaining representative of all employees em- writing, w it h i n 2 0 days f r o m the date of this Order, what steps have been taken to comply herewith. 10 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 In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in 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." 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 10 ployed in the bargaining unit heretofore found appropri- The Respondents, Better Building Supply Corp., and ate in Conclusion of Law 3, above. The Respondents, Better Building Supply Corp.. and (b) Apply the terms and conditions of the current col- Evergreen Roofing, Inc., Seattle, Washington, their offi- lective-bargaining agreement to all employees employed cers, agents, successors, and assigns, shall: in the aforesaid contractual bargaining unit. 1. Cease and desist from: (c) provide Local 54 of the United Slate, Tile & Com- (a) Refusing to bargain collectively with Local 54 of position Roofers, Damp and Waterproof Workers Asso- the United Slate, Tile & Composition Roofers, Damp ciation, AFL-CIO, with any and all requested informa- and Waterproof Workers Association, AFL-CIO, as the tion that is relevant and necessary to the collective-bar- exclusive bargaining representative of all employees in gaining process. the bargaining unit heretofore found appropriate in Con- (d) Make whole employees for any losses of pay or elusion of Law 3, above. benefits which would have accrued to them on and after (b) Failing and refusing to apply to all employees in May 7, 1979, under the current collective-bargaining the aforesaid bargaining unit all terms and conditions of agreement but for the failure to apply the terms and con- the current collective-bargaining agreement, absent the ditions of that agreement to all employees employed in express written consent of Local 54 of the United Slate, the aforesaid contractual bargaining unit on and after Tile & Composition Roofers, Damp and Waterproof that date. Workers Association, AFL-CIO. (e) Preserve and, upon request, make available to the (c) Refusing to bargain collectively by refusing, upon Board or its agents, for examination and copying, all request, to supply relevant information needed by Local payroll records, social security payment records, time- 54 of the United Slate, Tile & Composition Roofers, cards, personnel records and reports, and all other re- Damp and Waterproof Workers Association, AFL-CIO, cords necessary to analyze the amount of backpay due to represent the employees in the aforesaid bargaining under the terms of this Order. unit. (f) Post at their Seattle, Washington, facility copies of (d) Refusing to provide Local 54 of the United Slate, the attached notice marked "Appendix."" Copies of said Tile & Composition Roofers, Damp and Waterproof notice, on forms provided by the Regional Director for Workers Association, AFL-CIO, to represent the em- Region 19, after being duly signed by their authorized ployees in the aforesaid bargaining unit. representative, shall be posted by Respondents immedi- (e) In any other manner interfering with, restraining, ately upon receipt thereof, and be maintained by them or coercing employees in the exercise of any right guar- for 60 consecutive days thereafter, in conspicuous places, anteed them by Section 7 of the Act. including all places where notices to employees are cus- 2. Take the following affirmative action which is nec- tomarily posted. Reasonable steps shall be taken by essary to effectuate the purposes of the Act: Better Building Supply Co., and Evergreen Roofing, (a) Upon request bargain collectively with Local 54 of I n c ., t o in su r e t h a t said n o tic e s a r e n o t altered, defaced, the United Slate, Tile & Composition Roofers, Damp o r covered by any other material. and Waterproof Workers Association, AFL-CIO, as the (g) N o t ify th e Regional Director for Region 19, in exclusive bargaining representative of all employees em- writing, w it h i n 2 0 days from the date of this Order, what steps have been taken to comply herewith. 10 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 In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in 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."