Malcolm Boring Co., Inc.

MALCOLM BORING CO., INC. 597 Malcolm Boring Co., Inc., B. C. Malcolm and Bruce ings,2 and conclusions3 of the Administrative Law C. Malcolm and Local 12, International Union Judge and to adopt his recommended Order. of Operating Engineers, AFL-CIO ORDER Off-Shore Drilling and Allied Workers Division of the National Maritime Union of America, AFL- Pursuant to Section 10(c) of the National Labor CIO and Local 12, International Union of Op- Relations Act, as amended, the National Labor Re- erating Engineers, AFL-CIO. Cases 31-CA- 9751 and 31-CB-3586 Thus, B. C. Malcolm is the name of the sole proprietorship under which Billy C. Malcolm does business, and he, along with his wife, owns all of D »mh r S 1981 tthe stock of Malcolm Boring. The record further reflects in this regard December 8, 18that Respondents maintain a common pool of employees who are each day assigned by Billy C. Malcolm to either field or shop work; and that DECISION AND ORDER when a particular employee is sent to the field to perform construction work, he is placed on the payroll of Malcolm Boring, but if assigned to BY MEMBERS FANNING, JENKINS, AND the yard to perform maintenance, repair, and fabrication work, he ap- pears on the payroll of B. C. Malcolm. Such assignments are made as the ZIMMERMAN need arises and are based upon the relative skill level of any particular employee. The record is thus indicative of Respondents' common owner- On June 2, 1981, Administrative Law Judge ship and management and central control of labor relations. Despite the Richard D. Taplitz issued the attached Decision in finding of single-employer status, the Administrative Law Judge correct- .1s. r . .r t i *ing _ty ly concluded that the employees of Malcolm Boring and the employees this proceeding. Thereafter, the Charging Party of B. C. Malcolm each constitute a separate unit, and also correctly relied and Operating Engineers Pension Trust, Operating upon the ambiguity of the relevant contract language as well as upon the Engineers Health and Welfare Fund, Operating practice of 3 years' duration of not applying the collective-bargaining agreement with Malcolm Boring to employees working on the B. C. Mal- Engineers Vacation-Holiday Savings Trust and Op- colm payroll. In so finding, and apparently seeking to further buttress his erating Engineers Training Trust, hereinafter the conclusion that separate units are appropriate herein, the Administrative Law Judge inaccurately characterized the nature of Respondents' busi- Intervenor, each filed exceptions and a supporting nesses and the manner in which they interact. Thus, in the context of his brief, and Respondents B. C. Malcolm and Mal- analysis with respect to unit scope, the Administrative Law Judge de- <com Boring Co., Inc., filed a brief in answer there- scribed the B. C. Malcolm business as being "substantially different" from colm Boring Co., Inc., filed a brief in answer there- othe Malcolm Boring business, and appeared to indicate that this differ- to. ence required each Company to recruit and hire individuals with certain Pursuant to the provisions of Section 3(b) of the skills of use only to one Company or the other. A perusal of the facts in support of the Administrative Law Judge's single-employer finding clear- National Labor Relations Act, as amended, the Na- ly shows his later characterizations of Respondents' businesses to be erro- tional Labor Relations Board has delegated its au- neous. Thus, B. C. Malcolm not only supplies the machinery with which Malcolm Boring performs construction work, but also keeps such equip- thority in this proceeding to a three-member panel. ment operational with an object of minimizing "down time" in the field. The Board has considered the record and the at- In addition, and equally important, is Respondents' utilization of a . common pool of employees to meet their staffing requirements, as well as tached Decision in light of the exceptions and the fact that these employees are often used interchangeably as field or briefs and has decided to affirm the rulings, find- yard personnel, likewise indicative of the commonality of Respondents' purposes. Finally, it should be noted that Malcolm Boring leases almost all of its equipment from B. C. Malcolm, and that the greatest percentage of B. C. Malcolm's leasing, repair, and fabrication business is with Mal- 'On September 4, 1980, the Regional Director for Region 31 granted colm Boring. To the extent that the Administrative Law Judge's analysis the motion to intervene filed by Operating Engineers Pension Trust, Op- with respect to unit scope detracts from his single-employer finding, we erating Engineers Health and Welfare Fund, Operating Engineers Vaca- do not rely thereon. However, as indicated above, this error does not tion-Holiday Savings Trust and Operating Engineers Training Trust. affect the result herein. For, we agree with the Administrative Law The Charging Party and the Intervenor have excepted to certain Judge's ultimate conclusion that, in light of the evidence as to the intent credibility findings made by the Administrative Law Judge. It is the of the parties, the employees of B. C. Malcolm are in a separate bargain- Board's established policy not to overrule an administrative law judge's ing unit from the employees of Malcolm Boring resolutions with respect to credibility unless the clear preponderance of Finally, since the record reflects that Billy C. Malcolm and his wife all of the relevant evidence convinces us that the resolutions are incor- own all the stock of Malcolm Boring, we need not reach the issue of rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 whether a "substantial" stock interest by them would likewise exclude F.2d 362 (3d Cir. 1951). We have carefully examined the record and find any of their children from the appropriate unit herein. See, generally, no basis for reversing his findings. Cerni Motor Sales, Inc., 201 NLRB 918 (1973). In finding Respondents Malcolm Boring and B. C. Malcolm a single In dismissing the complaint herein, Member Fanning finds it unneces- employer, the Administrative Law Judge found, and the record reflects, sary to rely on A-i Fire Protection, Inc.. and Corcoran Automatic Sprin- a substantial degree of functional integration between the operations of klers, Inc. 250 NLRB 217 (1980). the two Companies, including a high degree of employee interchange. I In the absence of exceptions, we adopt, pro forma, the dismissal of certain allegations that Respondents violated Sec. 8(a)(l) of the Act. 259 NLRB No. 81 MALCOLM BORING CO., INC. 597 Malcolm Boring Co., Inc., B. C. Malcolm and Bruce ings, 2 and conclusions3 of the Administrative Law C. Malcolm and Local 12, International Union Judge and to adopt his recommended Order. of Operating Engineers, AFL-CIO Off-Shore Drilling and Allied Workers Division of the National Maritime Union of America, AFL- Pursuant to Section 10(c) of the National Labor CIO and Local 12, International Union of Op- Relations Act, as amended, the National Labor Re- erating Engineers, AFL-CIO. Cases 31-CA- 9751 and 31-CB-3586 Thus, B. C. Malcolm is the name of the sole proprietorship under which Billy C. Malcolm does business, and he, along with his wife, owns all of D <»mh r S, 1081 the s t o c k of Malcolm Boring. The record further reflects in this regard December 8, 1981 that Respondents maintain a common pool of employees who are each day assigned by Billy C. Malcolm to either field or shop work; and that DECISION AND ORDER when a particular employee is sent to the field to perform construction work, he is placed on the payroll of Malcolm Boring, but if assigned to BY MEMBERS FANNING, JENKINS, AND the yard t o perform maintenance, repair, and fabrication work, he ap- pears on the payroll of B. C. Malcolm. Such assignments are made as the ZIMMERMAN need arises and are based upon the relative skill level of any particular employee. The record is thus indicative of Respondents' common owner- On June 2, 1981, Administrative Law Judge ship and management and central control of labor relations. Despite the Richard D. Taplitz issued the attached Decision in finding of single-employer status, the Administrative Law Judge correct- ... s ,roceeding. -,1. r.afte .. /- Charing _rty ly concluded that the employees of Malcolm Boring and the employees this proceeding. Thereafter, the Charging Party of B. C. Malcolm each constitute a separate unit, and also correctly relied and Operating Engineers Pension Trust, Operating upon the ambiguity of the relevant contract language as well as upon the Engineers Health and Welfare Fund, Operating prac'ice of 3 years' duration of not applying the collective-bargaining agreement with Malcolm Boring to employees working on the B. C. Mal- Engineers Vacation-Holiday Savings Trust and Op- colm payroll. In so finding, and apparently seeking to further buttress his erating Engineers Training Trust, hereinafter the conclusion that separate units are appropriate herein, the Administrative Law Judge inaccurately characterized the nature of Respondents' busi- Intervenor,' each filed exceptions and a supporting nesses and the manner in which they interact. Thus, in the context of his brief, and Respondents B. C. Malcolm and Mal- analysis with respect to unit scope, the Administrative Law Judge de- <olm Borin g * o., Inc., , iled a nj i-'r' »i answer the- scribed the B. C. Malcolm business as being "substantially different" from colm Boring Co., Inc., filed a brief in answer there- the Malcolm Boring business, and appeared to indicate that this differ- to. ence required each Company to recruit and hire individuals with certain Pursuant to the provisions of Section 3(b) of the skills of use only to one Company or the other. A perusal of the facts in support of the Administrative Law Judge's single-employer finding clear- National Labor Relations Act, as amended, the Na- ly shows his later characterizations of Respondents' businesses to be erro- tional Labor Relations Board has delegated its au- "neus. Thus, B. C. Malcolm not only supplies the machinery with which Malcolm Boring performs construction work, but also keeps such equip- thority in this proceeding to a three-member panel. men operational with an object of minimizing "down time" in the field. The Board has Considered the record and the at- In addition, and equally important, is Respondents' utilization of a common pool of employees to meet their staffing requirements, as well as tached Decision in light of the exceptions and the fact that these employees are often used interchangeably as field or briefs and has decided to affirm the rulings, find- yard personnel, likewise indicative of the commonality of Respondents' purposes. Finally, it should be noted that Malcolm Boring leases almost all of its equipment from B. C. Malcolm, and that the greatest percentage of B. C. Malcolm's leasing, repair, and fabrication business is with Mal- 'On September 4, 1980, the Regional Director for Region 31 granted colm Boring, To the extent that the Administrative Law Judge's analysis the motion to intervene filed by Operating Engineers Pension Trust, Op- with respect to unit scope detracts from his single-employer finding, we erating Engineers Health and Welfare Fund, Operating Engineers Vaca- do no rely thereon. However, as indicated above, this error does not tion-Holiday Savings Trust and Operating Engineers Training Trust. affect the result herein. For. we agree with the Administrative Law ' The Charging Party and the Intervenor have excepted to certain Judge's ultimate conclusion that, in light of the evidence as to the intent credibility findings made by the Administrative Law Judge. It is the of the parties, the employees of B. C. Malcolm are in a separate bargain- Board's established policy not to overrule an administrative law judge's ,ng unit from the employees of Malcolm Boring. resolutions with respect to credibility unless the clear preponderance of Finally, since the record reflects that Billy C. Malcolm and his wife all of the relevant evidence convinces us that the resolutions are incor- own all the stock or Malcolm Boring, we need not reach the issue of rect. Standard Dry Wall Products, Inc. 91 NLRB 544 (1950), enfd. 188 whether a "substantial" stock interest by them would likewise exclude F.2d 362 (3d Cir. 1951). We have carefully examined the record and find any of their children from the appropriate unit herein. See, generally, no basis for reversing his findings. Cerni Motor Sales, Inc., 201 NLRB 918 (1973). In finding Respondents Malcolm Boring and B. C. Malcolm a single In dismissing the complaint herein, Member Fanning rinds it unneces- employer, the Administrative Law Judge found, and the record reflects, sary to rely on A-] Fire Protection. Inc.. and Corcoran Automatic Sprin- a substantial degree of functional integration between the operations of klers Inc., 250 NLRB 217 (1980). the two Companies, including a high degree of employee interchange, I In the absence of exceptions. we adopt, pro forma, the dismissal of certain allegations that Respondents violated Sec. 8(a)(l) of the Act. 259 NLRB No. 81 MALCOLM BORING CO., INC. 597 Malcolm Boring Co., Inc., B. C. Malcolm and Bruce ings, 2 and conclusions3 of the Administrative Law C. Malcolm and Local 12, International Union Judge and to adopt his recommended Order. of Operating Engineers, AFL-CIO Off-Shore Drilling and Allied Workers Division of the National Maritime Union of America, AFL- Pursuant to Section 10(c) of the National Labor CIO and Local 12, International Union of Op- Relations Act, as amended, the National Labor Re- erating Engineers, AFL-CIO. Cases 31-CA- 9751 and 31-CB-3586 Thus, B. C. Malcolm is the name of the sole proprietorship under which Billy C. Malcolm does business, and he, along with his wife, owns all of D <»mh r S, 1081 the s t o c k of Malcolm Boring. The record further reflects in this regard December 8, 1981 that Respondents maintain a common pool of employees who are each day assigned by Billy C. Malcolm to either field or shop work; and that DECISION AND ORDER when a particular employee is sent to the field to perform construction work, he is placed on the payroll of Malcolm Boring, but if assigned to BY MEMBERS FANNING, JENKINS, AND the yard t o perform maintenance, repair, and fabrication work, he ap- pears on the payroll of B. C. Malcolm. Such assignments are made as the ZIMMERMAN need arises and are based upon the relative skill level of any particular employee. The record is thus indicative of Respondents' common owner- On June 2, 1981, Administrative Law Judge ship and management and central control of labor relations. Despite the Richard D. Taplitz issued the attached Decision in finding of single-employer status, the Administrative Law Judge correct- ... s ,roceeding. -,1. r.afte .. /- Charing _rty ly concluded that the employees of Malcolm Boring and the employees this proceeding. Thereafter, the Charging Party of B. C. Malcolm each constitute a separate unit, and also correctly relied and Operating Engineers Pension Trust, Operating upon the ambiguity of the relevant contract language as well as upon the Engineers Health and Welfare Fund, Operating prac'ice of 3 years' duration of not applying the collective-bargaining agreement with Malcolm Boring to employees working on the B. C. Mal- Engineers Vacation-Holiday Savings Trust and Op- colm payroll. In so finding, and apparently seeking to further buttress his erating Engineers Training Trust, hereinafter the conclusion that separate units are appropriate herein, the Administrative Law Judge inaccurately characterized the nature of Respondents' busi- Intervenor,' each filed exceptions and a supporting nesses and the manner in which they interact. Thus, in the context of his brief, and Respondents B. C. Malcolm and Mal- analysis with respect to unit scope, the Administrative Law Judge de- <olm Borin g * o., Inc., , iled a nj i-'r' »i answer the- scribed the B. C. Malcolm business as being "substantially different" from colm Boring Co., Inc., filed a brief in answer there- the Malcolm Boring business, and appeared to indicate that this differ- to. ence required each Company to recruit and hire individuals with certain Pursuant to the provisions of Section 3(b) of the skills of use only to one Company or the other. A perusal of the facts in support of the Administrative Law Judge's single-employer finding clear- National Labor Relations Act, as amended, the Na- ly shows his later characterizations of Respondents' businesses to be erro- tional Labor Relations Board has delegated its au- "neus. Thus, B. C. Malcolm not only supplies the machinery with which Malcolm Boring performs construction work, but also keeps such equip- thority in this proceeding to a three-member panel. men operational with an object of minimizing "down time" in the field. The Board has Considered the record and the at- In addition, and equally important, is Respondents' utilization of a common pool of employees to meet their staffing requirements, as well as tached Decision in light of the exceptions and the fact that these employees are often used interchangeably as field or briefs and has decided to affirm the rulings, find- yard personnel, likewise indicative of the commonality of Respondents' purposes. Finally, it should be noted that Malcolm Boring leases almost all of its equipment from B. C. Malcolm, and that the greatest percentage of B. C. Malcolm's leasing, repair, and fabrication business is with Mal- 'On September 4, 1980, the Regional Director for Region 31 granted colm Boring, To the extent that the Administrative Law Judge's analysis the motion to intervene filed by Operating Engineers Pension Trust, Op- with respect to unit scope detracts from his single-employer finding, we erating Engineers Health and Welfare Fund, Operating Engineers Vaca- do no rely thereon. However, as indicated above, this error does not tion-Holiday Savings Trust and Operating Engineers Training Trust. affect the result herein. For. we agree with the Administrative Law ' The Charging Party and the Intervenor have excepted to certain Judge's ultimate conclusion that, in light of the evidence as to the intent credibility findings made by the Administrative Law Judge. It is the of the parties, the employees of B. C. Malcolm are in a separate bargain- Board's established policy not to overrule an administrative law judge's ,ng unit from the employees of Malcolm Boring. resolutions with respect to credibility unless the clear preponderance of Finally, since the record reflects that Billy C. Malcolm and his wife all of the relevant evidence convinces us that the resolutions are incor- own all the stock or Malcolm Boring, we need not reach the issue of rect. Standard Dry Wall Products, Inc. 91 NLRB 544 (1950), enfd. 188 whether a "substantial" stock interest by them would likewise exclude F.2d 362 (3d Cir. 1951). We have carefully examined the record and find any of their children from the appropriate unit herein. See, generally, no basis for reversing his findings. Cerni Motor Sales, Inc., 201 NLRB 918 (1973). In finding Respondents Malcolm Boring and B. C. Malcolm a single In dismissing the complaint herein, Member Fanning rinds it unneces- employer, the Administrative Law Judge found, and the record reflects, sary to rely on A-] Fire Protection. Inc.. and Corcoran Automatic Sprin- a substantial degree of functional integration between the operations of klers Inc., 250 NLRB 217 (1980). the two Companies, including a high degree of employee interchange, I In the absence of exceptions. we adopt, pro forma, the dismissal of certain allegations that Respondents violated Sec. 8(a)(l) of the Act. 259 NLRB No. 81 MALCOLM BORING CO., INC. 597 Malcolm Boring Co., Inc., B. C. Malcolm and Bruce ings, 2 and conclusions3 of the Administrative Law C. Malcolm and Local 12, International Union Judge and to adopt his recommended Order. of Operating Engineers, AFL-CIO Off-Shore Drilling and Allied Workers Division of the National Maritime Union of America, AFL- Pursuant to Section 10(c) of the National Labor CIO and Local 12, International Union of Op- Relations Act, as amended, the National Labor Re- erating Engineers, AFL-CIO. Cases 31-CA- 9751 and 31-CB-3586 Thus, B. C. Malcolm is the name of the sole proprietorship under which Billy C. Malcolm does business, and he, along with his wife, owns all of D <»mh r S, 1081 the s t o c k of Malcolm Boring. The record further reflects in this regard December 8, 1981 that Respondents maintain a common pool of employees who are each day assigned by Billy C. Malcolm to either field or shop work; and that DECISION AND ORDER when a particular employee is sent to the field to perform construction work, he is placed on the payroll of Malcolm Boring, but if assigned to BY MEMBERS FANNING, JENKINS, AND the yard t o perform maintenance, repair, and fabrication work, he ap- pears on the payroll of B. C. Malcolm. Such assignments are made as the ZIMMERMAN need arises and are based upon the relative skill level of any particular employee. The record is thus indicative of Respondents' common owner- On June 2, 1981, Administrative Law Judge ship and management and central control of labor relations. Despite the Richard D. Taplitz issued the attached Decision in finding of single-employer status, the Administrative Law Judge correct- ... s ,roceeding. -,1. r.afte .. /- Charing _rty ly concluded that the employees of Malcolm Boring and the employees this proceeding. Thereafter, the Charging Party of B. C. Malcolm each constitute a separate unit, and also correctly relied and Operating Engineers Pension Trust, Operating upon the ambiguity of the relevant contract language as well as upon the Engineers Health and Welfare Fund, Operating prac'ice of 3 years' duration of not applying the collective-bargaining agreement with Malcolm Boring to employees working on the B. C. Mal- Engineers Vacation-Holiday Savings Trust and Op- colm payroll. In so finding, and apparently seeking to further buttress his erating Engineers Training Trust, hereinafter the conclusion that separate units are appropriate herein, the Administrative Law Judge inaccurately characterized the nature of Respondents' busi- Intervenor,' each filed exceptions and a supporting nesses and the manner in which they interact. Thus, in the context of his brief, and Respondents B. C. Malcolm and Mal- analysis with respect to unit scope, the Administrative Law Judge de- <olm Borin g * o., Inc., , iled a nj i-'r' »i answer the- scribed the B. C. Malcolm business as being "substantially different" from colm Boring Co., Inc., filed a brief in answer there- the Malcolm Boring business, and appeared to indicate that this differ- to. ence required each Company to recruit and hire individuals with certain Pursuant to the provisions of Section 3(b) of the skills of use only to one Company or the other. A perusal of the facts in support of the Administrative Law Judge's single-employer finding clear- National Labor Relations Act, as amended, the Na- ly shows his later characterizations of Respondents' businesses to be erro- tional Labor Relations Board has delegated its au- "neus. Thus, B. C. Malcolm not only supplies the machinery with which Malcolm Boring performs construction work, but also keeps such equip- thority in this proceeding to a three-member panel. men operational with an object of minimizing "down time" in the field. The Board has Considered the record and the at- In addition, and equally important, is Respondents' utilization of a common pool of employees to meet their staffing requirements, as well as tached Decision in light of the exceptions and the fact that these employees are often used interchangeably as field or briefs and has decided to affirm the rulings, find- yard personnel, likewise indicative of the commonality of Respondents' purposes. Finally, it should be noted that Malcolm Boring leases almost all of its equipment from B. C. Malcolm, and that the greatest percentage of B. C. Malcolm's leasing, repair, and fabrication business is with Mal- 'On September 4, 1980, the Regional Director for Region 31 granted colm Boring, To the extent that the Administrative Law Judge's analysis the motion to intervene filed by Operating Engineers Pension Trust, Op- with respect to unit scope detracts from his single-employer finding, we erating Engineers Health and Welfare Fund, Operating Engineers Vaca- do no rely thereon. However, as indicated above, this error does not tion-Holiday Savings Trust and Operating Engineers Training Trust. affect the result herein. For. we agree with the Administrative Law ' The Charging Party and the Intervenor have excepted to certain Judge's ultimate conclusion that, in light of the evidence as to the intent credibility findings made by the Administrative Law Judge. It is the of the parties, the employees of B. C. Malcolm are in a separate bargain- Board's established policy not to overrule an administrative law judge's ,ng unit from the employees of Malcolm Boring. resolutions with respect to credibility unless the clear preponderance of Finally, since the record reflects that Billy C. Malcolm and his wife all of the relevant evidence convinces us that the resolutions are incor- own all the stock or Malcolm Boring, we need not reach the issue of rect. Standard Dry Wall Products, Inc. 91 NLRB 544 (1950), enfd. 188 whether a "substantial" stock interest by them would likewise exclude F.2d 362 (3d Cir. 1951). We have carefully examined the record and find any of their children from the appropriate unit herein. See, generally, no basis for reversing his findings. Cerni Motor Sales. Inc., 201 NLRB 918 (1973). In finding Respondents Malcolm Boring and B. C. Malcolm a single In dismissing the complaint herein, Member Fanning rinds it unneces- employer, the Administrative Law Judge found, and the record reflects, sary to rely on A-] Fire Protection. Inc.. and Corcoran Automatic Sprin- a substantial degree of functional integration between the operations of klers Inc., 250 NLRB 217 (1980). the two Companies, including a high degree of employee interchange, I In the absence of exceptions. we adopt, pro forma, the dismissal of certain allegations that Respondents violated Sec. 8(a)(l) of the Act. 259 NLRB No. 81 MALCOLM BORING CO., INC. 597 Malcolm Boring Co., Inc., B. C. Malcolm and Bruce ings, 2 and conclusions3 of the Administrative Law C. Malcolm and Local 12, International Union Judge and to adopt his recommended Order. of Operating Engineers, AFL-CIO Off-Shore Drilling and Allied Workers Division of the National Maritime Union of America, AFL- Pursuant to Section 10(c) of the National Labor CIO and Local 12, International Union of Op- Relations Act, as amended, the National Labor Re- erating Engineers, AFL-CIO. Cases 31-CA- 9751 and 31-CB-3586 Thus, B. C. Malcolm is the name of the sole proprietorship under which Billy C. Malcolm does business, and he, along with his wife, owns all of D <»mh r S, 1081 the s t o c k of Malcolm Boring. The record further reflects in this regard December 8, 1981 that Respondents maintain a common pool of employees who are each day assigned by Billy C. Malcolm to either field or shop work; and that DECISION AND ORDER when a particular employee is sent to the field to perform construction work, he is placed on the payroll of Malcolm Boring, but if assigned to BY MEMBERS FANNING, JENKINS, AND the yard t o perform maintenance, repair, and fabrication work, he ap- pears on the payroll of B. C. Malcolm. Such assignments are made as the ZIMMERMAN need arises and are based upon the relative skill level of any particular employee. The record is thus indicative of Respondents' common owner- On June 2, 1981, Administrative Law Judge ship and management and central control of labor relations. Despite the Richard D. Taplitz issued the attached Decision in finding of single-employer status, the Administrative Law Judge correct- ... s ,roceeding. -,1. r.afte .. /- Charing _rty ly concluded that the employees of Malcolm Boring and the employees this proceeding. Thereafter, the Charging Party of B. C. Malcolm each constitute a separate unit, and also correctly relied and Operating Engineers Pension Trust, Operating upon the ambiguity of the relevant contract language as well as upon the Engineers Health and Welfare Fund, Operating prac'ice of 3 years' duration of not applying the collective-bargaining agreement with Malcolm Boring to employees working on the B. C. Mal- Engineers Vacation-Holiday Savings Trust and Op- colm payroll. In so finding, and apparently seeking to further buttress his erating Engineers Training Trust, hereinafter the conclusion that separate units are appropriate herein, the Administrative Law Judge inaccurately characterized the nature of Respondents' busi- Intervenor,' each filed exceptions and a supporting nesses and the manner in which they interact. Thus, in the context of his brief, and Respondents B. C. Malcolm and Mal- analysis with respect to unit scope, the Administrative Law Judge de- <olm Borin g * o., Inc., , iled a nj i-'r' »i answer the- scribed the B. C. Malcolm business as being "substantially different" from colm Boring Co., Inc., filed a brief in answer there- the Malcolm Boring business, and appeared to indicate that this differ- to. ence required each Company to recruit and hire individuals with certain Pursuant to the provisions of Section 3(b) of the skills of use only to one Company or the other. A perusal of the facts in support of the Administrative Law Judge's single-employer finding clear- National Labor Relations Act, as amended, the Na- ly shows his later characterizations of Respondents' businesses to be erro- tional Labor Relations Board has delegated its au- "neus. Thus, B. C. Malcolm not only supplies the machinery with which Malcolm Boring performs construction work, but also keeps such equip- thority in this proceeding to a three-member panel. men operational with an object of minimizing "down time" in the field. The Board has Considered the record and the at- In addition, and equally important, is Respondents' utilization of a common pool of employees to meet their staffing requirements, as well as tached Decision in light of the exceptions and the fact that these employees are often used interchangeably as field or briefs and has decided to affirm the rulings, find- yard personnel, likewise indicative of the commonality of Respondents' purposes. Finally, it should be noted that Malcolm Boring leases almost all of its equipment from B. C. Malcolm, and that the greatest percentage of B. C. Malcolm's leasing, repair, and fabrication business is with Mal- 'On September 4, 1980, the Regional Director for Region 31 granted colm Boring, To the extent that the Administrative Law Judge's analysis the motion to intervene filed by Operating Engineers Pension Trust, Op- with respect to unit scope detracts from his single-employer finding, we erating Engineers Health and Welfare Fund, Operating Engineers Vaca- do no rely thereon. However, as indicated above, this error does not tion-Holiday Savings Trust and Operating Engineers Training Trust. affect the result herein. For. we agree with the Administrative Law ' The Charging Party and the Intervenor have excepted to certain Judge's ultimate conclusion that, in light of the evidence as to the intent credibility findings made by the Administrative Law Judge. It is the of the parties, the employees of B. C. Malcolm are in a separate bargain- Board's established policy not to overrule an administrative law judge's ,ng unit from the employees of Malcolm Boring. resolutions with respect to credibility unless the clear preponderance of Finally, since the record reflects that Billy C. Malcolm and his wife all of the relevant evidence convinces us that the resolutions are incor- own all the stock or Malcolm Boring, we need not reach the issue of rect. Standard Dry Wall Products, Inc. 91 NLRB 544 (1950), enfd. 188 whether a "substantial" stock interest by them would likewise exclude F.2d 362 (3d Cir. 1951). We have carefully examined the record and find any of their children from the appropriate unit herein. See, generally, no basis for reversing his findings. Cerni Motor Sales. Inc., 201 NLRB 918 (1973). In finding Respondents Malcolm Boring and B. C. Malcolm a single In dismissing the complaint herein, Member Fanning rinds it unneces- employer, the Administrative Law Judge found, and the record reflects, sary to rely on A-] Fire Protection. Inc.. and Corcoran Automatic Sprin- a substantial degree of functional integration between the operations of klers Inc., 250 NLRB 217 (1980). the two Companies, including a high degree of employee interchange, I In the absence of exceptions. we adopt, pro forma, the dismissal of certain allegations that Respondents violated Sec. 8(a)(l) of the Act. 259 NLRB No. 81 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lations Board adopts as its Order the recommended All parties were given full opportunity to participate, Order of the Administrative Law Judge and to introduce relevant evidence, to examine and cross-ex- hereby orders that the complaint be, and it hereby amine witnesses, to argue orally, and to file briefs. Briefs is, dismissed in its entirety. that have been carefully considered were filed on behalf is, dimse nisetof the General Counsel, Malcolm Boring, B. C. Mal- DECISION colm, Bruce Malcolm, Inc., NMU, Local 12, and Operat- ing Engineers Trusts. STATEMENT OF THE CASE Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make RICHARD D. TAPLITZ, Administrative Law Judge: the following: This case was heard at Los Angeles, California, on Sep- tember 9, 10, 15, 16, 17, 18, 23, and 24 and November 12 FINDINGS OF FACT and 14, 1980. On February 6, 1981, I granted the motion of the National Maritime Union and reopened the hear- I. THE BUSINESS OF THE EMPLOYERS ing. By order dated February 24, I approved a stipula- Malcolm Boring, a California corporation, with an tion relating to the receipt in evidence of NMU's Exhibit office and principal place of business in Chino, Califor- I and closed the hearing. nia, is engaged as a contractor and subcontractor in hori- The charges in Cases 31-CA-9751 and 31-CB-3586 zontal boring in the construction industry. 2 The parties were filed on January 31, 1980, by Local 12, Internation- stipulated and I find that Malcolm Boring annually pur- al Union of Operating Engineers, AFL-CIO, herein chases and receives goods and services valued in excess called Local 12. An order consolidating those cases and of $50,000 directly from suppliers located outside Cali- a complaint issued on March 28, 1980. The complaint al- fornia. Malcolm Boring is an employer engaged in com- leges that Malcolm Boring Co., Inc. (herein called Mal- merce within the meaning of Section 2(6) and (7) of the colm Boring), B. C. Malcolm and Bruce C. Malcolm, all Act. of whom are alleged to be single employers, violated B. C. Malcolm is a sole proprietorship with an office Section 8(a)(l), (2), (3), and (5) of the National Labor and place of business in Chino, California, where it man- Relations Act, as amended. The complaint also alleges ufactures, maintains, and repairs equipment that it rents that Off-Shore Drilling and Allied Workers Division of and occasionally sells to various employers in the hori- the National Maritime Union of America, AFL-CIO zontal boring business including Malcolm Boring. The (herein called NMU), violated Section 8(b)(l)(A) and (2) parties stipulated and I find that B. C. Malcolm does of the Act. On September 4, 1980, the Regional Director more than $50,000 a year business with Malcolm Boring, for Region 31 of the Boand granted the motion to inter- which Company is engaged in interstate commerce on vene of Operating Engineers Pension Trust, Operating other than an indirect basis. B. C. Malcolm is an employ- Engineers Health and Welfare Fund, Operating Engi- er engaged in commerce within the meaning of Section neers Vacation-Holidays Savings Trust and Operating 2(6) and (7) of the Act. Engineers Training Trust (herein called the Operating Bruce Malcolm, Inc., was a sole proprietorship and Engineers Trusts). now is a corporation with an office and place of business in Chino, California. It is engaged in the business of hori- ISSUES zontal boring and pipe jacking.3 Its business records ~The primary issues are: .estsblish that, during the year immediately preceding is- The~ pnrimary issues are: suance of complaint, Bruce Malcolm, Inc., had sales in 1. Whether Malcolm Boring, B. C. Malcolm and excess of $50,000 to Malcolm Boring. Bruce Malcolm, Bruce Malcolm, Inc., constitute a single employer. Inc., is an employer engaged in commerce within the 2. Whether the bargaining unit in a collective-bargain- meaning of Section 2(6) and (7) of the Act. ing contract between Local 12 and Malcolm Boring is broad enough to cover the employees of B. C. Malcolm II. THE LABOR ORGANIZATIONS INVOLVED and Bruce Malcolm, Inc. and .Bruce Malco, I.n. Local 12 and NMU are and each is a labor organiza- 3. Whether that contract was an enforceable pre-hire tion within the meaning of Section 2(5) of the Act construction industry contract and whether the named employers violated Section 8(a)(5) of the Act by refusing 1Il. THE ALLEGED UNFAIR LABOR PRACTICES to honor said contract with regard to employees of B. C. Malcolm and Bruce Malcolm, Inc. A. Introduction 4. Whether those employers violated Section 8(a)(1), Billy Carlisle Malcolm, referred to herein as Billy C. (2), (3), and (5) and NMU violated Section 8(b)(1)(A) Malcolm, is a principal in two businesses. He is president and (2) of the Act when Bruce Malcolm, Inc., and NMU and, together with his wife, is owner of Malcolm Boring. entered into a collective-bargaining agreement. Malcolm Boring is engaged in the horizontal boring busi- 5. Whether those employers interrogated and threat- ness as a subcontractor for piping contractors and as a ened employees in violation of Section 8(a)(l) of the Act. 'Horizontal boring consists of the drilling of a hole under a highway, On April 25, 1980, Bruce C. Malcolm incorporated as Bruce C. Mal- railway, track, or similar installation so that casings, pipes, and the like colm. Inc. To avoid confusion with names, all references to the business can be installed without damaging the installation. will be Bruce Malcolm, Inc., and all references to the individual will be 3 Pipe jacking is a hand mining operation, while horizontal boring in- to Bruce Malcolm. volves the use of boring machinery. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lations Board adopts as its Order the recommended All parties were given full opportunity to participate, Order of the Administrative Law Judge and to introduce relevant evidence, to examine and cross-ex- hereby orders that the complaint be, and it hereby am in e witnesses, to argue orally, and to file briefs. Briefs is, dismissed in its entirety. that have been carefully considered were filed on behalf of the General Counsel, Malcolm Boring, B. C. Mal- DECISION colm, Bruce Malcolm, Inc., NMU, Local 12, and Operat- ing Engineers Trusts. STATEMENT OF THE CASE Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make RICHARD D. TAPLITZ, Administrative Law Judge: the following: This case was heard at Los Angeles, California, on Sep- tember 9, 10, 15, 16, 17, 18, 23, and 24 and November 12 FINDINGS OF FACT and 14, 1980. On February 6, 1981, I granted the motion of the National Maritime Union and reopened the hear- 1. TH E BUSINESS OF THE EMPLOYERS ing. By order dated February 24, I approved a stipula- Malcolm Boring, a California corporation, with an tion relating to the receipt in evidence of NMU's Exhibit office and principal place of business in Chino, Califor- 1 and closed the hearing. nia, is engaged as a contractor and subcontractor in hori- The charges in Cases 31-CA-9751 and 31-CB-3586 zontal boring in the construction industry.2 The parties were filed on January 31, 1980, by Local 12, Internation- stipulated and I find that Malcolm Boring annually pur- al Union of Operating Engineers, AFL-CIO, herein chases and receives goods and services valued in excess called Local 12. An order consolidating those cases and of $50,000 directly from suppliers located outside Cali- a complaint issued on March 28, 1980. The complaint al- fornia. Malcolm Boring is an employer engaged in com- leges that Malcolm Boring Co., Inc. (herein called Mal- merce within the meaning of Section 2(6) and (7) of the colm Boring), B. C. Malcolm and Bruce C. Malcolm,' all Act. of whom are alleged to be single employers, violated B. C. Malcolm is a sole proprietorship with an office Section 8(a)(l), (2), (3), and (5) of the National Labor and place of business in Chino, California, where it man- Relations Act, as amended. The complaint also alleges ufactures, maintains, and repairs equipment that it rents that Off-Shore Drilling and Allied Workers Division of and occasionally sells to various employers in the hori- the National Maritime Union of America, AFL-CIO zontal boring business including Malcolm Boring. The (herein called NMU), violated Section 8(b)(l)(A) and (2) parties stipulated and I find that B. C. Malcolm does of the Act. On September 4, 1980, the Regional Director more than $50,000 a year business with Malcolm Boring, for Region 31 of the Boand granted the motion to inter- which Company is engaged in interstate commerce on vene of Operating Engineers Pension Trust, Operating other than an indirect basis. B. C. Malcolm is an employ- Engineers Health and Welfare Fund, Operating Engi- er engaged in commerce within the meaning of Section neers Vacation-Holidays Savings Trust and Operating 2(6) and (7) of the Act. Engineers Training Trust (herein called the Operating Bruce Malcolm, Inc., was a sole proprietorship and Engineers Trusts). now is a corporation with an office and place of business in Chino, California. It is engaged in the business of hori- ISSUES zontal boring and pipe jacking.3 Its business records The primary issues are: estsblish that, during the year immediately preceding is- nc primary issues are: suance of complaint, Bruce Malcolm, Inc., had sales in 1. Whether Malcolm Boring, B. C. Malcolm and excess of $50,000 to Malcolm Boring. Bruce Malcolm, Bruce Malcolm, Inc., constitute a single employer. Inc., is an employer engaged in commerce within the 2. Whether the bargaining unit in a collective-bargain- meaning of Section 2(6) and (7) of the Act. ing contract between Local 12 and Malcolm Boring is broad enough to cover the employees of B. C. Malcolm 1n. THE LABOR ORGANIZATIONS INVOLVED and Bruce Malcolm, Inc., „ . „, , .. ,, and BruceMalcolm, Inc. .Local 12 and NMU are and each is a labor organiza- 3. Whether that contract was an enforceable pre-hire tion within the meaning of Section 2(5) of the Act. construction industry contract and whether the named employers violated Section 8(a)(5) of the Act by refusing 111. THE ALLEGED UNFAIR LABOR PRACTICES to honor said contract with regard to employees of B. C. Malcolm and Bruce Malcolm, Inc. A. Introduction 4. Whether those e m ployer s violated Section 8(a)(1), Billy Carlisle Malcolm, referred to herein as Billy C. (2), (3), and (5) and NMU violated Section 8(b)(1)(A) Malcolm, is a principal in two businesses. He is president and (2) of the Act when Bruce Malcolm, Inc., and NMU a t w h w is o Malcolm Boring. entered into a collective-bargaining agreement. Malcolm Boring is engaged in the horizontal boring busi- 5. Whether those employers interrogated and threat- ness as a subcontractor for piping contractors and as a ened employees in violation of Section 8(a)(l) of the Act. ' Horizontal boring consists of the drilling of a hole under a highway, 'On April 25. 1980, Bruce C. Malcolm incorporated as Bruce C. Mal- railway, track, or similar installation so that casings, pipes, and the like colm. Inc. To avoid confusion with names, all references to the business can be installed without damaging the installation. will be Bruce Malcolm, Inc., and all references to the individual will be 3 Pipe jacking is a hand mining operation, while horizontal boring in- to Bruce Malcolm,.volves the use of boring machinery. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lations Board adopts as its Order the recommended All parties were given full opportunity to participate, Order of the Administrative Law Judge and to introduce relevant evidence, to examine and cross-ex- hereby orders that the complaint be, and it hereby am in e witnesses, to argue orally, and to file briefs. Briefs is, dismissed in its entirety. that have been carefully considered were filed on behalf of the General Counsel, Malcolm Boring, B. C. Mal- DECISION colm, Bruce Malcolm, Inc., NMU, Local 12, and Operat- ing Engineers Trusts. STATEMENT OF THE CASE Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make RICHARD D. TAPLITZ, Administrative Law Judge: the following: This case was heard at Los Angeles, California, on Sep- tember 9, 10, 15, 16, 17, 18, 23, and 24 and November 12 FINDINGS OF FACT and 14, 1980. On February 6, 1981, I granted the motion of the National Maritime Union and reopened the hear- 1. TH E BUSINESS OF THE EMPLOYERS ing. By order dated February 24, I approved a stipula- Malcolm Boring, a California corporation, with an tion relating to the receipt in evidence of NMU's Exhibit office and principal place of business in Chino, Califor- 1 and closed the hearing. nia, is engaged as a contractor and subcontractor in hori- The charges in Cases 31-CA-9751 and 31-CB-3586 zontal boring in the construction industry.2 The parties were filed on January 31, 1980, by Local 12, Internation- stipulated and I find that Malcolm Boring annually pur- al Union of Operating Engineers, AFL-CIO, herein chases and receives goods and services valued in excess called Local 12. An order consolidating those cases and of $50,000 directly from suppliers located outside Cali- a complaint issued on March 28, 1980. The complaint al- fornia. Malcolm Boring is an employer engaged in com- leges that Malcolm Boring Co., Inc. (herein called Mal- merce within the meaning of Section 2(6) and (7) of the colm Boring), B. C. Malcolm and Bruce C. Malcolm,' all Act. of whom are alleged to be single employers, violated B. C. Malcolm is a sole proprietorship with an office Section 8(a)(l), (2), (3), and (5) of the National Labor and place of business in Chino, California, where it man- Relations Act, as amended. The complaint also alleges ufactures, maintains, and repairs equipment that it rents that Off-Shore Drilling and Allied Workers Division of and occasionally sells to various employers in the hori- the National Maritime Union of America, AFL-CIO zontal boring business including Malcolm Boring. The (herein called NMU), violated Section 8(b)(l)(A) and (2) parties stipulated and I find that B. C. Malcolm does of the Act. On September 4, 1980, the Regional Director more than $50,000 a year business with Malcolm Boring, for Region 31 of the Boand granted the motion to inter- which Company is engaged in interstate commerce on vene of Operating Engineers Pension Trust, Operating other than an indirect basis. B. C. Malcolm is an employ- Engineers Health and Welfare Fund, Operating Engi- er engaged in commerce within the meaning of Section neers Vacation-Holidays Savings Trust and Operating 2(6) and (7) of the Act. Engineers Training Trust (herein called the Operating Bruce Malcolm, Inc., was a sole proprietorship and Engineers Trusts). now is a corporation with an office and place of business in Chino, California. It is engaged in the business of hori- ISSUES zontal boring and pipe jacking.3 Its business records The primary issues are: estsblish that, during the year immediately preceding is- nc primary issues are: suance of complaint, Bruce Malcolm, Inc., had sales in 1. Whether Malcolm Boring, B. C. Malcolm and excess of $50,000 to Malcolm Boring. Bruce Malcolm, Bruce Malcolm, Inc., constitute a single employer. Inc., is an employer engaged in commerce within the 2. Whether the bargaining unit in a collective-bargain- meaning of Section 2(6) and (7) of the Act. ing contract between Local 12 and Malcolm Boring is broad enough to cover the employees of B. C. Malcolm 1n. THE LABOR ORGANIZATIONS INVOLVED and Bruce Malcolm, Inc., „ . „, , .. ,, and BruceMalcolm, Inc. .Local 12 and NMU are and each is a labor organiza- 3. Whether that contract was an enforceable pre-hire tion within the meaning of Section 2(5) of the Act. construction industry contract and whether the named employers violated Section 8(a)(5) of the Act by refusing 111. THE ALLEGED UNFAIR LABOR PRACTICES to honor said contract with regard to employees of B. C. Malcolm and Bruce Malcolm, Inc. A. Introduction 4. Whether those e m ployer s violated Section 8(a)(1), Billy Carlisle Malcolm, referred to herein as Billy C. (2), (3), and (5) and NMU violated Section 8(b)(1)(A) Malcolm, is a principal in two businesses. He is president and (2) of the Act when Bruce Malcolm, Inc., and NMU a t w h w is o Malcolm Boring. entered into a collective-bargaining agreement. Malcolm Boring is engaged in the horizontal boring busi- 5. Whether those employers interrogated and threat- ness as a subcontractor for piping contractors and as a ened employees in violation of Section 8(a)(l) of the Act. ' Horizontal boring consists of the drilling of a hole under a highway, 'On April 25, 1980, Bruce C. Malcolm incorporated as Bruce C. Mal- railway, track, or similar installation so that casings, pipes, and the like colm. Inc. To avoid confusion with names, all references to the business can be installed without damaging the installation. will be Bruce Malcolm, Inc., and all references to the individual will be 3 Pipe jacking is a hand mining operation, while horizontal boring in- to Bruce Malcolm,.volves the use of boring machinery. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lations Board adopts as its Order the recommended All parties were given full opportunity to participate, Order of the Administrative Law Judge and to introduce relevant evidence, to examine and cross-ex- hereby orders that the complaint be, and it hereby am in e witnesses, to argue orally, and to file briefs. Briefs is, dismissed in its entirety. that have been carefully considered were filed on behalf of the General Counsel, Malcolm Boring, B. C. Mal- DECISION colm, Bruce Malcolm, Inc., NMU, Local 12, and Operat- ing Engineers Trusts. STATEMENT OF THE CASE Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make RICHARD D. TAPLITZ, Administrative Law Judge: the following: This case was heard at Los Angeles, California, on Sep- tember 9, 10, 15, 16, 17, 18, 23, and 24 and November 12 FINDINGS OF FACT and 14, 1980. On February 6, 1981, I granted the motion of the National Maritime Union and reopened the hear- 1. TH E BUSINESS OF THE EMPLOYERS ing. By order dated February 24, I approved a stipula- Malcolm Boring, a California corporation, with an tion relating to the receipt in evidence of NMU's Exhibit office and principal place of business in Chino, Califor- 1 and closed the hearing. nia, is engaged as a contractor and subcontractor in hori- The charges in Cases 31-CA-9751 and 31-CB-3586 zontal boring in the construction industry.2 The parties were filed on January 31, 1980, by Local 12, Internation- stipulated and I find that Malcolm Boring annually pur- al Union of Operating Engineers, AFL-CIO, herein chases and receives goods and services valued in excess called Local 12. An order consolidating those cases and of $50,000 directly from suppliers located outside Cali- a complaint issued on March 28, 1980. The complaint al- fornia. Malcolm Boring is an employer engaged in com- leges that Malcolm Boring Co., Inc. (herein called Mal- merce within the meaning of Section 2(6) and (7) of the colm Boring), B. C. Malcolm and Bruce C. Malcolm,' all Act. of whom are alleged to be single employers, violated B. C. Malcolm is a sole proprietorship with an office Section 8(a)(l), (2), (3), and (5) of the National Labor and place of business in Chino, California, where it man- Relations Act, as amended. The complaint also alleges ufactures, maintains, and repairs equipment that it rents that Off-Shore Drilling and Allied Workers Division of and occasionally sells to various employers in the hori- the National Maritime Union of America, AFL-CIO zontal boring business including Malcolm Boring. The (herein called NMU), violated Section 8(b)(l)(A) and (2) parties stipulated and I find that B. C. Malcolm does of the Act. On September 4, 1980, the Regional Director more than $50,000 a year business with Malcolm Boring, for Region 31 of the Boand granted the motion to inter- which Company is engaged in interstate commerce on vene of Operating Engineers Pension Trust, Operating other than an indirect basis. B. C. Malcolm is an employ- Engineers Health and Welfare Fund, Operating Engi- er engaged in commerce within the meaning of Section neers Vacation-Holidays Savings Trust and Operating 2(6) and (7) of the Act. Engineers Training Trust (herein called the Operating Bruce Malcolm, Inc., was a sole proprietorship and Engineers Trusts). now is a corporation with an office and place of business in Chino, California. It is engaged in the business of hori- ISSUES zontal boring and pipe jacking.3 Its business records The primary issues are: estsblish that, during the year immediately preceding is- nc primary issues are: suance of complaint, Bruce Malcolm, Inc., had sales in 1. Whether Malcolm Boring, B. C. Malcolm and excess of $50,000 to Malcolm Boring. Bruce Malcolm, Bruce Malcolm, Inc., constitute a single employer. Inc., is an employer engaged in commerce within the 2. Whether the bargaining unit in a collective-bargain- meaning of Section 2(6) and (7) of the Act. ing contract between Local 12 and Malcolm Boring is broad enough to cover the employees of B. C. Malcolm 11. THE LABOR ORGANIZATIONS INVOLVED and Bruce Malcolm, Inc., „ . „, , .. ,, and BruceMalcolm, Inc. .Local 12 and NMU are and each is a labor organiza- 3. Whether that contract was an enforceable pre-hire tion within the meaning of Section 2(5) of the Act. construction industry contract and whether the named employers violated Section 8(a)(5) of the Act by refusing 111. THE ALLEGED UNFAIR LABOR PRACTICES to honor said contract with regard to employees of B. C. Malcolm and Bruce Malcolm, Inc. A. Introduction 4. Whether those e m ployer s violated Section 8(a)(1), Billy Carlisle Malcolm, referred to herein as Billy C. (2), (3), and (5) and NMU violated Section 8(b)(1)(A) Malcolm, is a principal in two businesses. He is president and (2) of the Act when Bruce Malcolm, Inc., and NMU a t w h w is o Malcolm Boring. entered into a collective-bargaining agreement. Malcolm Boring is engaged in the horizontal boring busi- 5. Whether those employers interrogated and threat- ness as a subcontractor for piping contractors and as a ened employees in violation of Section 8(a)(l) of the Act. ' Horizontal boring consists of the drilling of a hole under a highway, 'On April 25, 1980, Bruce C. Malcolm incorporated as Bruce C. Mal- railway, track, or similar installation so that casings, pipes, and the like colm. Inc. To avoid confusion with names, all references to the business can be installed without damaging the installation. will be Bruce Malcolm, Inc., and all references to the individual will be 3 Pipe jacking is a hand mining operation, while horizontal boring in- to Bruce Malcolm,.volves the use of boring machinery. MALCOLM BORING CO., INC. 599 contractor for utilities. The horizontal boring work is any event it has no employees who could be covered by done at the site of the construction and constitutes con- that bargaining unit. struction industry work. Since 1962, Malcolm Boring has Bruce Malcolm, Inc., entered into a collective-bargain- had a collective-bargaining agreement with Local 12. ing agreement with NMU. That agreement contained a That contract began as a pre-hire agreement and con- union-security clause. The General Counsel contends tained an 8-day union-security clause that is lawful in the that Bruce Malcolm, Inc., entered into that collective- construction industry. As is discussed in detail below, bargaining agreement with NMU at a time when it had a there is a substantial question as to the scope of the bar- duty to honor an outstanding agreement with Local 12 gaining unit covered by the contract. and that, by entering into the contract with NMU, Bruce Billy C. Malcolm is engaged in business as a sole pro- Malcolm, Inc., and the remainder of the single employer prietorship under the name B. C. Malcolm. B. C. Mal- violated Section 8(a)(1), (2), (3), and (5) of the Act, while colm manufactures, maintains, and repairs equipment that NMU violated Section 8(b)(l)(A) and (2) of the Act. it leases and sometimes sells to various employers in the B. The Relationship Between Malcolm Boring nd B horizontal boring business. B. C. Malcolm is a manufac- C Malcolm turer and supplier of machinery for the horizontal boring business. It is not in itself engaged primarily in the build- 1. Factual findings ing and construction industry. Malcolm Boring and B. C. Malcolm maintain separate a. Interrelation of operations payrolls. Some employees are on both payrolls. When There is a substantial degree of functional integration they work in the field on construction work, they are between the operations of B. C. Malcolm and Malcolm considered employees of Malcolm Boring and are paid Boring. Malcolm Boring performs horizontal boring and given fringe benefits in accordance with contract work on construction sites. The machinery used by Mal- terms. When the same employees works on the fabrica- colm Boring is supplied by B. C. Malcolm, who manu- tion, repair, or maintenance of machinery in B. C. Mal- factures, maintains, repairs, and leases out that equip- colm's shop, they are placed on the B. C. Malcolm pay- ment. Although B. C. Malcolm has other customers, roll and are paid 80 percent of the contract rate without most of its business is done with Malcolm Boring and any fringe benefits.' almost all of Malcolm Boring's equipment comes from B. The General Counsel contends that Malcolm Boring C. Malcolm. and B. C. Malcolm are part of a single employer, that There is a substantial amount of employee interchange the employees of both are part of a single bargaining unit between the two Companies. 5 Almost all of the boring encompassed by the contract between Malcolm Boring machine operators and skilled helpers who worked in the and Local 12, and that the Employers who constitute the field for Malcolm Boring have been assigned on various single employer have violated Section 8(a)(5) of the Act occasions to work in the shop for B. C. Malcolm. When by failing to honor the contract with regard to employ- the employee works in the field, he is carried on the ees of B. C. Malcolm. The Employers, on the other books of Malcolm Boring and receives pay and fringes hand, contend that they are not part of a single employ- based on Malcolm Boring's contract with Local 12. er, that the contract between Local 12 and Malcolm When the same employee is assigned to the yard for Boring covers only Malcolm Boring employees and that maintenance, repair, or other work, he is placed on B. C. there is no refusal to honor the contract. They also argue Malcolm's books and paid 80 percent of the contract rate that there is no obligation for the contract to be honored without any fringe benefits. in that it is a pre-hire construction industry contract and B. C. Malcolm and Malcolm Boring share the same no appropriate showing of majority status has been office, which is located at 5849 Shaefer Avenue, Chino, made. California. They also share the same yard, which is lo- In addition to having two companies Billy Malcolm cated near the office on property belonging to B. C. has three sons. Two of those sons have chosen to go into Malcolm. The office is adjacent to Billy C. Malcolm's the horizontal boring business. One son, William C. Mal- home. Malcolm Boring leases office and yard space from colm, does business under the name William Malcolm B. C. Malcolm. Construction, Inc. There is no contention that that com- B. C. Malcolm and Malcolm Boring keep separate pany is part of the single employer. Another son, Bruce books and separate bank accounts. They both use the Malcolm, does business under the name Bruce Malcolm, same bank. They share the services of an office secre- Inc. The General Counsel contends that Bruce Malcolm, tary, Hazel Zurich. B. C. Malcolm pays Zurich's salary Inc., is part of the single employer with Malcolm Boring week a month and Malcolm Boring pays the other 3 and B. C. Malcolm. The General Counsel's position is weeks. B. C. Malcolm and Malcolm Boring have tele- that the employees of Bruce Malcolm, Inc., are covered phone numbers that differ by one. by the collective- bargaining agreement between Mal- colm Boring and Local 12. Bruce Malcolm, Inc., con- This procedure was followed until January 1980. In December 1979, tends that it is not part of a single employer and that in Local 12 Business Representative Bob Dye told Billy Malcolm that the Union would strike and close Malcolm Boring down if Local 12 person- nel were not used for maintenance work. From that time on, B. C. Mal- 'The only exception to this appears to be the payment of certain colm has not manufactured any boring equipment. B. C. Malcolm has fringe benefits after a contested claim on behalf of W. C. Malcolm in shipped out heavy repair work to other concerns and has had minor 1975. William C. Malcolm is a son of the owners of Malcolm Boring and repair work done by employees of Malcolm Boring. B. C. Malcolm has as such could not be part of the bargaining unit. See fn. 17 below closed down its payroll. MALCOLM BORING CO., INC. 599 contractor for utilities. The horizontal boring work is any event it has no employees who could be covered by done at the site of the construction and constitutes con- that bargaining unit. struction industry work. Since 1962, Malcolm Boring has Bruce Malcolm, Inc., entered into a collective-bargain- had a collective-bargaining agreement with Local 12. ing agreement with NMU. That agreement contained a That contract began as a pre-hire agreement and con- union-security clause. The General Counsel contends tained an 8-day union-security clause that is lawful in the that Bruce Malcolm, Inc., entered into that collective- construction industry. As is discussed in detail below, bargaining agreement with NMU at a time when it had a there is a substantial question as to the scope of the bar- duty to honor an outstanding agreement with Local 12 gaining unit covered by the contract. and that, by entering into the contract with NMU, Bruce Billy C. Malcolm is engaged in business as a sole pro- Malcolm, Inc., and the remainder of the single employer prietorship under the name B. C. Malcolm. B. C. Mal- violated Section 8(a)(l), (2), (3), and (5) of the Act, while colm manufactures, maintains, and repairs equipment that NMU violated Section 8(b)(l)(A) and (2) of the Act. it leases and sometimes sells to various employers in the B. The Relationship Between Malcolm Boring and B. horizontal boring business. B. C. Malcolm is a manufac- C. Malcolm turer and supplier of machinery for the horizontal boring business. It is not in itself engaged primarily in the build- 1. Factual findings ing and construction industry. Malcolm Boring and B. C. Malcolm maintain separate a. Interrelation of operations payrolls. Some employees are on both payrolls. When There is a substantial degree of functional integration they work in the field on construction work, they are between the operations of B. C. Malcolm and Malcolm considered employees of Malcolm Boring and are paid Boring. Malcolm Boring performs horizontal boring and given fringe benefits in accordance with contract work on construction sites. The machinery used by Mal- terms. When the same employees works on the fabrica- colm Boring is supplied by B. C. Malcolm, who manu- tion, repair, or maintenance of machinery in B. C. Mal- factures, maintains, repairs, and leases out that equip- colm's shop, they are placed on the B. C. Malcolm pay- ment. Although B. C. Malcolm has other customers, roll and are paid 80 percent of the contract rate without most of its business is done with Malcolm Boring and any fringe benefits.' almost all of Malcolm Boring's equipment comes from B. The General Counsel contends that Malcolm Boring C. Malcolm. and B. C. Malcolm are part of a single employer, that There is a substantial amount of employee interchange the employees of both are part of a single bargaining unit between the two Companies.' Almost all of the boring encompassed by the contract between Malcolm Boring machine operators and skilled helpers who worked in the and Local 12, and that the Employers who constitute the field for Malcolm Boring have been assigned on various single employer have violated Section 8(a)(5) of the Act occasions to work in the shop for B. C. Malcolm. When by failing to honor the contract with regard to employ- the employee works in the field, he is carried on the ees of B. C. Malcolm. The Employers, on the other books of Malcolm Boring and receives pay and fringes hand, contend that they are not part of a single employ- based on Malcolm Boring's contract with Local 12. er, that the contract between Local 12 and Malcolm When the same employee is assigned to the yard for Boring covers only Malcolm Boring employees and that maintenance, repair, or other work, he is placed on B. C. there is no refusal to honor the contract. They also argue Malcolm's books and paid 80 percent of the contract rate that there is no obligation for the contract to be honored without any fringe benefits. in that it is a pre-hire construction industry contract and B. C. Malcolm and Malcolm Boring share the same no appropriate showing of majority status has been office, which is located at 5849 Shaefer Avenue, Chino, made. California. They also share the same yard, which is lo- In addition to having two companies Billy Malcolm cated near the office on property belonging to B. C. has three sons. Two of those sons have chosen to go into Malcolm. The office is adjacent to Billy C. Malcolm's the horizontal boring business. One son, William C. Mal- home. Malcolm Boring leases office and yard space from colm, does business under the name William Malcolm B. C. Malcolm. Construction, Inc. There is no contention that that com- B. C. Malcolm and Malcolm Boring keep separate pany is part of the single employer. Another son, Bruce books and separate bank accounts. They both use the Malcolm, does business under the name Bruce Malcolm, same bank. They share the services of an office secre- Inc. The General Counsel contends that Bruce Malcolm, tary, Hazel Zurich. B. C. Malcolm pays Zurich's salary 1 Inc., is part of the single employer with Malcolm Boring week a month and Malcolm Boring pays the other 3 and B. C. Malcolm. The General Counsel's position is weeks. B. C. Malcolm and Malcolm Boring have tele- that the employees of Bruce Malcolm, Inc., are covered phone numbers that differ by one. by the collective- bargaining agreement between Mal- colm Boring and Local 12. Bruce Malcolm, Inc., con- This procedure was followed until January 1980. In December 1979, tendsthatit isnot art f a sngleemplyer ad tht in Local 12 Business Representative Bob Dye told Billy Malcolm that the tends that it is not part of a single employer and that in Union would strike and close Malcolm Boring down if Local 12 person- nel were not used for maintenance work. From that time on, B. C. Mal- 'The only exception to this appears to be the payment of certain colm has not manufactured any boring equipment. B. C. Malcolm has fringe benefits after a contested claim on behalf of W. C. Malcolm in shipped out heavy repair work to other concerns and has had minor 1975. William C. Malcolm is a son of the owners of Malcolm Boring and repair work done by employees of Malcolm Boring. B. C. Malcolm has as such could not be part of the bargaining unit. See fn. 17 below,.closed down its payroll. MALCOLM BORING CO., INC. 599 contractor for utilities. The horizontal boring work is any event it has no employees who could be covered by done at the site of the construction and constitutes con- that bargaining unit. struction industry work. Since 1962, Malcolm Boring has Bruce Malcolm, Inc., entered into a collective-bargain- had a collective-bargaining agreement with Local 12. ing agreement with NMU. That agreement contained a That contract began as a pre-hire agreement and con- union-security clause. The General Counsel contends tained an 8-day union-security clause that is lawful in the that Bruce Malcolm, Inc., entered into that collective- construction industry. As is discussed in detail below, bargaining agreement with NMU at a time when it had a there is a substantial question as to the scope of the bar- duty to honor an outstanding agreement with Local 12 gaining unit covered by the contract. and that, by entering into the contract with NMU, Bruce Billy C. Malcolm is engaged in business as a sole pro- Malcolm, Inc., and the remainder of the single employer prietorship under the name B. C. Malcolm. B. C. Mal- violated Section 8(a)(l), (2), (3), and (5) of the Act, while colm manufactures, maintains, and repairs equipment that NMU violated Section 8(b)(l)(A) and (2) of the Act. it leases and sometimes sells to various employers in the B. The Relationship Between Malcolm Boring and B. horizontal boring business. B. C. Malcolm is a manufac- C. Malcolm turer and supplier of machinery for the horizontal boring business. It is not in itself engaged primarily in the build- 1. Factual findings ing and construction industry. Malcolm Boring and B. C. Malcolm maintain separate a. Interrelation of operations payrolls. Some employees are on both payrolls. When There is a substantial degree of functional integration they work in the field on construction work, they are between the operations of B. C. Malcolm and Malcolm considered employees of Malcolm Boring and are paid Boring. Malcolm Boring performs horizontal boring and given fringe benefits in accordance with contract work on construction sites. The machinery used by Mal- terms. When the same employees works on the fabrica- colm Boring is supplied by B. C. Malcolm, who manu- tion, repair, or maintenance of machinery in B. C. Mal- factures, maintains, repairs, and leases out that equip- colm's shop, they are placed on the B. C. Malcolm pay- ment. Although B. C. Malcolm has other customers, roll and are paid 80 percent of the contract rate without most of its business is done with Malcolm Boring and any fringe benefits.' almost all of Malcolm Boring's equipment comes from B. The General Counsel contends that Malcolm Boring C. Malcolm. and B. C. Malcolm are part of a single employer, that There is a substantial amount of employee interchange the employees of both are part of a single bargaining unit between the two Companies.' Almost all of the boring encompassed by the contract between Malcolm Boring machine operators and skilled helpers who worked in the and Local 12, and that the Employers who constitute the field for Malcolm Boring have been assigned on various single employer have violated Section 8(a)(5) of the Act occasions to work in the shop for B. C. Malcolm. When by failing to honor the contract with regard to employ- the employee works in the field, he is carried on the ees of B. C. Malcolm. The Employers, on the other books of Malcolm Boring and receives pay and fringes hand, contend that they are not part of a single employ- based on Malcolm Boring's contract with Local 12. er, that the contract between Local 12 and Malcolm When the same employee is assigned to the yard for Boring covers only Malcolm Boring employees and that maintenance, repair, or other work, he is placed on B. C. there is no refusal to honor the contract. They also argue Malcolm's books and paid 80 percent of the contract rate that there is no obligation for the contract to be honored without any fringe benefits. in that it is a pre-hire construction industry contract and B. C. Malcolm and Malcolm Boring share the same no appropriate showing of majority status has been office, which is located at 5849 Shaefer Avenue, Chino, made. California. They also share the same yard, which is lo- In addition to having two companies Billy Malcolm cated near the office on property belonging to B. C. has three sons. Two of those sons have chosen to go into Malcolm. The office is adjacent to Billy C. Malcolm's the horizontal boring business. One son, William C. Mal- home. Malcolm Boring leases office and yard space from colm, does business under the name William Malcolm B. C. Malcolm. Construction, Inc. There is no contention that that com- B. C. Malcolm and Malcolm Boring keep separate pany is part of the single employer. Another son, Bruce books and separate bank accounts. They both use the Malcolm, does business under the name Bruce Malcolm, same bank. They share the services of an office secre- Inc. The General Counsel contends that Bruce Malcolm, tary, Hazel Zurich. B. C. Malcolm pays Zurich's salary 1 Inc., is part of the single employer with Malcolm Boring week a month and Malcolm Boring pays the other 3 and B. C. Malcolm. The General Counsel's position is weeks. B. C. Malcolm and Malcolm Boring have tele- that the employees of Bruce Malcolm, Inc., are covered phone numbers that differ by one. by the collective- bargaining agreement between Mal- colm Boring and Local 12. Bruce Malcolm, Inc., con- This procedure was followed until January 1980. In December 1979, tendsthatit isnot art f a sngleemplyer ad tht in Local 12 Business Representative Bob Dye told Billy Malcolm that the tends that it is not part of a single employer and that in Union would strike and close Malcolm Boring down if Local 12 person- nel were not used for maintenance work. From that time on, B. C. Mal- 'The only exception to this appears to be the payment of certain colm has not manufactured any boring equipment. B. C. Malcolm has fringe benefits after a contested claim on behalf of W. C. Malcolm in shipped out heavy repair work to other concerns and has had minor 1975. William C. Malcolm is a son of the owners of Malcolm Boring and repair work done by employees of Malcolm Boring. B. C. Malcolm has as such could not be part of the bargaining unit. See fn. 17 below,.closed down its payroll. MALCOLM BORING CO., INC. 599 contractor for utilities. The horizontal boring work is any event it has no employees who could be covered by done at the site of the construction and constitutes con- that bargaining unit. struction industry work. Since 1962, Malcolm Boring has Bruce Malcolm, Inc., entered into a collective-bargain- had a collective-bargaining agreement with Local 12. ing agreement with NMU. That agreement contained a That contract began as a pre-hire agreement and con- union-security clause. The General Counsel contends tained an 8-day union-security clause that is lawful in the that Bruce Malcolm, Inc., entered into that collective- construction industry. As is discussed in detail below, bargaining agreement with NMU at a time when it had a there is a substantial question as to the scope of the bar- duty to honor an outstanding agreement with Local 12 gaining unit covered by the contract. and that, by entering into the contract with NMU, Bruce Billy C. Malcolm is engaged in business as a sole pro- Malcolm, Inc., and the remainder of the single employer prietorship under the name B. C. Malcolm. B. C. Mal- violated Section 8(a)(l), (2), (3), and (5) of the Act, while colm manufactures, maintains, and repairs equipment that NMU violated Section 8(b)(l)(A) and (2) of the Act. it leases and sometimes sells to various employers in the B. The Relationship Between Malcolm Boring and B. horizontal boring business. B. C. Malcolm is a manufac- C. Malcolm turer and supplier of machinery for the horizontal boring business. It is not in itself engaged primarily in the build- 1. Factual findings ing and construction industry. Malcolm Boring and B. C. Malcolm maintain separate a. Interrelation of operations payrolls. Some employees are on both payrolls. When There is a substantial degree of functional integration they work in the field on construction work, they are between the operations of B. C. Malcolm and Malcolm considered employees of Malcolm Boring and are paid Boring. Malcolm Boring performs horizontal boring and given fringe benefits in accordance with contract work on construction sites. The machinery used by Mal- terms. When the same employees works on the fabrica- colm Boring is supplied by B. C. Malcolm, who manu- tion, repair, or maintenance of machinery in B. C. Mal- factures, maintains, repairs, and leases out that equip- colm's shop, they are placed on the B. C. Malcolm pay- ment. Although B. C. Malcolm has other customers, roll and are paid 80 percent of the contract rate without most of its business is done with Malcolm Boring and any fringe benefits.' almost all of Malcolm Boring's equipment comes from B. The General Counsel contends that Malcolm Boring C. Malcolm. and B. C. Malcolm are part of a single employer, that There is a substantial amount of employee interchange the employees of both are part of a single bargaining unit between the two Companies.' Almost all of the boring encompassed by the contract between Malcolm Boring machine operators and skilled helpers who worked in the and Local 12, and that the Employers who constitute the field for Malcolm Boring have been assigned on various single employer have violated Section 8(a)(5) of the Act occasions to work in the shop for B. C. Malcolm. When by failing to honor the contract with regard to employ- the employee works in the field, he is carried on the ees of B. C. Malcolm. The Employers, on the other books of Malcolm Boring and receives pay and fringes hand, contend that they are not part of a single employ- based on Malcolm Boring's contract with Local 12. er, that the contract between Local 12 and Malcolm When the same employee is assigned to the yard for Boring covers only Malcolm Boring employees and that maintenance, repair, or other work, he is placed on B. C. there is no refusal to honor the contract. They also argue Malcolm's books and paid 80 percent of the contract rate that there is no obligation for the contract to be honored without any fringe benefits. in that it is a pre-hire construction industry contract and B. C. Malcolm and Malcolm Boring share the same no appropriate showing of majority status has been office, which is located at 5849 Shaefer Avenue, Chino, made. California. They also share the same yard, which is lo- In addition to having two companies Billy Malcolm cated near the office on property belonging to B. C. has three sons. Two of those sons have chosen to go into Malcolm. The office is adjacent to Billy C. Malcolm's the horizontal boring business. One son, William C. Mal- home. Malcolm Boring leases office and yard space from colm, does business under the name William Malcolm B. C. Malcolm. Construction, Inc. There is no contention that that com- B. C. Malcolm and Malcolm Boring keep separate pany is part of the single employer. Another son, Bruce books and separate bank accounts. They both use the Malcolm, does business under the name Bruce Malcolm, same bank. They share the services of an office secre- Inc. The General Counsel contends that Bruce Malcolm, tary, Hazel Zurich. B. C. Malcolm pays Zurich's salary 1 Inc., is part of the single employer with Malcolm Boring week a month and Malcolm Boring pays the other 3 and B. C. Malcolm. The General Counsel's position is weeks. B. C. Malcolm and Malcolm Boring have tele- that the employees of Bruce Malcolm, Inc., are covered phone numbers that differ by one. by the collective- bargaining agreement between Mal- colm Boring and Local 12. Bruce Malcolm, Inc., con- This procedure was followed until January 1980. In December 1979, tendsthatit isnot art f a sngleemplyer ad tht in Local 12 Business Representative Bob Dye told Billy Malcolm that the tends that it is not part of a single employer and that in Union would strike and close Malcolm Boring down if Local 12 person- nel were not used for maintenance work. From that time on, B. C. Mal- 'The only exception to this appears to be the payment of certain colm has not manufactured any boring equipment. B. C. Malcolm has fringe benefits after a contested claim on behalf of W. C. Malcolm in shipped out heavy repair work to other concerns and has had minor 1975. William C. Malcolm is a son of the owners of Malcolm Boring and repair work done by employees of Malcolm Boring. B. C. Malcolm has as such could not be part of the bargaining unit. See fn. 17 below,.closed down its payroll. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Common ownership and management tute a single employer: "The controlling criteria, set out and elaborated in Board decisions, are interrela- B. C. Malcolm is the name of the sole proprietorship tion of operations, common management, central- under which Billy C. Malcolm does business. Billy C. ized control of labor relations and common owner- Malcolm averred that, under the California community ship."' Though the Board and the courts have not property law, his wife owns half of the business. Billy C. always agreed on how to apply the standards enun- Malcolm and his wife own all of the stock of Malcolm ciated by the Supreme Court, the decision of the Boring. Court of Appeals for the District of Columbia in In addition to the common ownership of the two con- Local No. 627, International Union of Operating En- cerns, there is to a substantial degree a common manage- gineers, AFL-CIO [South Prairie Construction Com- ment. As sole proprietor, Billy C. Malcolm has sole con- pany and Peter Kiewit Sons' Co. v. N.L.R.B., 518 trol over the affairs of B. C. Malcolm. He decides to F.2d 1040 (1967), appears to be controlling. In that whom B. C. Malcolm will rent equipment and makes all case the court of appeals reversed the Decision of management decisions relating to B. C. Malcolm. As the Board in Peter Kiewit Sons' Co. and South Prairie president of Malcolm Boring, Billy C. Malcolm also Construction Co., 206 NLRB 562 (1973). Part of the makes management decisions with regard to that Compa- circuit court's decision was affirmed by the United ny. In addition to being president, he is on the board of States Supreme Court in South Prairie Construction directors. Although his wife and some of his children Co. v. Local No. 627 International Union of Operat- have at times been corporate officers and on the board of ing Engineers, AFL-CIO, 425 U.S. 800 (1976). The directors, Billy C. Malcolm is clearly in charge. In testi- Board had made two separate findings. The first fying about the history of his Companies, Billy C. Mal- was that two entities did not constitute a single em- colm averred that in 1962 his accountant advised him to ployer and the second was that each entity had a split his business into two parts so that the equipment separate appropriate bargaining unit for collective- would be owned personally and he could lease it to the bargaining purposes. The court of appeals disagreed corporation. He averred that he kept his business in two and found both a single employer and a single unit. parts because of tax and liability advantages. On appeal the Supreme Court affirmed that part of c. Centralized control of labor relations the court of appeals' decision which found that the two entities were a single employer and reversed Billy C. Malcolm makes all labor relations decisions and remanded to the court of appeals that part of for B. C. Malcolm. He is the one who does hiring and the decision which related to the unit question." As firing for that Company. When employees report for the Supreme Court has affirmed the circuit Court's work each day, Billy C. Malcolm is the one who decides decision with regard to the single employer, the lan- whether to assign them to fieldwork as employees of guage of the circuit court is of particular impor- Malcolm Boring or to shopwork as employees of B. C. tance. That circuit court held [518 F.2d at 1045-46]: Malcolm. If he assigns an employee to shopwork, he su- pervises the work of that employee. If he assigns the em- pervises the work of that employee. If he assigns the em- 16 See also Sakrete of Northern California, Inc., 140 NLRB 765 ployee to fieldwork, he retains ultimate authority over 16 ployee to fieldwork, he retains ultimate authority over (1963), enfd. 332 F.2d 902 (9th Cir. 1964) cert. denied 379 U.S. 961 that employee, but the employee is immediately super- (1965). vised by a foreman or superintendent on the job. In 1979, " On remand the Board issued a Supplemental Decision report- Carl Jarnagan was general superintendent and vice presi- ed at 231 NLRB 76 (1977) in which it noted that the Supreme dent of Malcolm Boring and it was he who supervised Court had affirmed the circuit court's finding that the two entities were a single employer. The Board reconsidered the single-unit crews in the field. At that time Jarnagan also hired em- question and concluded that, even though the entities were a single ployees for Malcolm Boring. In late 1979, Jarnagan re- employer, separate units were appropriate. signed as vice president and superintendent and he went back to foreman status. In regard to wages and hours Guidelinesfor "Single Employer" Status there is complete centralization of control over labor re- In Radio Union v. Broadcast Service of Mobile, lations. Billy C. Malcolm acknowledged in his testimony Inc., 380 U.S. 255 . . . (1965), the Supreme that except as limited by contract he is the one who sets Court, in a per curiam opinion affirming a "single wages and hours for both B. C. Malcolm and Malcolm employer" holding below, said: ~~~~~~~~~~~~~Boring. ~The controlling criteria, set out and elaborated 2. Analysis and conclusions in Board decisions, are interrelation of operations, common management, centralized control of In Blumenfeld Theatres Circuit, et al., 240 NLRB 206, labor relations and common ownership. 214 (1979), enfd. 626 F.2d 865 (9th Cir. 1980), the Board affirmed the decision of an administrative law judge in The court cited several NLRB decisions includ- which the tests for "single employer" were set forth as ing one affirmed in Sakrete of Northern California, follows: Inc. v. N.L.R.B., 332 F.2d 902 (9th Cir. 1964), cert. denied, 379 U.S. 961 . . . (1965). In Sakrete, In Radio & Television Broadcast Technicians Local the Ninth Circuit stated, at 907: Union 1264, IBEW v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965), the Supreme Court even if the substantial evidence shows interre- held that in determining whether enterprises consti- lationship of operations, centralized control of 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Common ownership and management tute a single employer: "The controlling criteria, set out and elaborated in Board decisions, are interrela- B. C. Malcolm is the name of the sole proprietorship t operations, common management, central- under which Billy C. Malcolm does business. Billy C. ized control of labor relations and common owner- Malcolm averred that, under the California community ship."" Though the Board and the courts have not property law, his wife owns half of the business. Billy C. a ae o ow to apply the standards enun- Malcolm and his wife own all of the stock of Malcolm c b t Sr C t d s o te Boring . Court of Appeals for the District of Columbia in In addition to the common ownership of the two con- Local No. 627, International Union of Operating En- cerns, there is to a substantial degree a common manage- gineers, AFL-CIO [South Prairie Construction Com- ment. As sole proprietor, Billy C. Malcolm has sole con- pany and Peter Kiewit Sons' Co.] v. N.L.R.B., 518 trol over the affairs of B. C. Malcolm. He decides to F.2d 1040 (1967), appears to be controlling. In that whom B. C. Malcolm will rent equipment and makes all case the court of appeals reversed the Decision of management decisions relating to B. C. Malcolm. As the Board in Peter Kiewit Sons' Co. and South Prairie president of Malcolm Boring, Billy C. Malcolm also Construction Co., 206 NLRB 562 (1973). Part of the makes management decisions with regard to that Compa- circuit court's decision was affirmed by the United ny. In addition to being president, he is on the board of states Supreme Court in South Prairie Construction directors. Although his wife and some of his children Co. v. Local No. 627. International Union of Operat- have at times been corporate officers and on the board of , Engineers, AFL-CIO, 425 U.S. 800 (1976). The directors, Billy C. Malcolm is clearly in charge. In testi- Board had made two separate findings. The first fying about the history of his Companies, Billy C. Mal- was that two entities did not constitute a single em- colm averred that in 1962 his accountant advised him to po a te second was that each entity had a split his business into two parts so that the equipment separate appropriate bargaining unit for collective- would be owned personally and he could lease it to the bargaining purposes. The court of appeals disagreed corporation. He averred that he kept his business in two and found both a single employer and a single unit. parts because of tax and liability advantages. On appeal the Supreme Court affirmed that part of c. Centralized control of labor relations t h e c o u r t o f appeals' dec is io n w h ic h fo u n d t h at t h e two entities were a single employer and reversed Billy C. Malcolm makes all labor relations decisions and remanded to the court of appeals that part of for B. C. Malcolm. He is the one who does hiring and the decision which related to the unit question." As firing for that Company. When employees report for the Supreme Court has affirmed the circuit Court's work each day, Billy C. Malcolm is the one who decides decision with regard to the single employer, the lan- whether to assign them to fieldwork as employees of guage of the circuit court is of particular impor- Malcolm Boring or to shopwork as employees of B. C. tance. That circuit court held [518 F.2d at 1045-46]: Malcolm. If he assigns an employee to shopwork, he su- pervises the work of that employee. If he assigns the em- ployee to fieldwork, he retains ultimate authority over ^^^ ^ S ^^ se ^oSkeeo otenCoiono n,1ONR ployee tofieldwor, he retins ultimte authoity over(1963), enid. 332 F.2d 902 (9th Cir. 1964) cert. denied 379 U.S. 961 that employee, but the employee is immediately super- (1965). vised by a foreman or superintendent on the job. In 1979, " On remand the Board issued a Supplemental Decision report- Carl Jarnagan was general superintendent and vice presi- e d at 23 1 NL R B 76 (19 7 7) in w hich it no ted th a t th e Supreme dent of Malcolm Boring and it was he who supervised Court had affirmed the circuit court's finding that the two entities dent of alcolm Bring an it was e who suervisedwere a single employer. The Board reconsidered the single-unit Crews in the field. At that time Jarnagan also hired em- question and concluded that, even though the entities were a single ployees for Malcolm Boring. In late 1979, Jarnagan re- employer, separate units were appropriate. signed as vice president and superintendent and he went back to foreman status. In regard to wages and hours Guidelines for "Single Employer" Status there is complete centralization of control over labor re- In Radio Union v. Broadcast Service of Mobile, lations. Billy C. Malcolm acknowledged in his testimony Inc., 380 U.S. 255 ... (1965), the Supreme that except as limited by contract he is the one who sets Court, in a per curiam opinion affirming a "single wages and hours for both B. C. Malcolm and Malcolm employer" holding below, said: The controlling criteria, set out and elaborated 2. Analysis and conclusions in Board decisions, are interrelation of operations, common management, centralized control of In Blumenfeld Theatres Circuit, et al., 240 NLRB 206, labor relations and common ownership. 214 (1979), enfd. 626 F.2d 865 (9th Cir. 1980), the Board affirmed the decision of an administrative law judge in The court cited several NLRB decisions includ- which the tests for "single employer" were set forth as ing one affirmed in Sakrete of Northern California, follows: Inc. v. N.L.R.B., 332 F.2d 902 (9th Cir. 1964), cert. denied, 379 U.S. 961 .. . (1965). In Sakrete, In Radio <$ Television Broadcast Technicians Local the Ninth Circuit stated, at 907: Union 1264, IBEW v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965), the Supreme Court even if the substantial evidence shows interre- held that in determining whether enterprises consti- lationship of operations, centralized control of 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Common ownership and management tute a single employer: "The controlling criteria, set out and elaborated in Board decisions, are interrela- B. C. Malcolm is the name of the sole proprietorship t operations, common management, central- under which Billy C. Malcolm does business. Billy C. ized control of labor relations and common owner- Malcolm averred that, under the California community ship."" Though the Board and the courts have not property law, his wife owns half of the business. Billy C. a ae o to apply the standards enun- Malcolm and his wife own all of the stock of Malcolm c b t Sr C t d s o te Boring . Court of Appeals for the District of Columbia in In addition to the common ownership of the two con- Local No. 627, International Union of Operating En- cerns, there is to a substantial degree a common manage- gineers, AFL-CIO [South Prairie Construction Com- ment. As sole proprietor, Billy C. Malcolm has sole con- pany and Peter Kiewit Sons' Co.] v. N.L.R.B., 518 trol over the affairs of B. C. Malcolm. He decides to F.2d 1040 (1967), appears to be controlling. In that whom B. C. Malcolm will rent equipment and makes all case the court of appeals reversed the Decision of management decisions relating to B. C. Malcolm. As the Board in Peter Kiewit Sons' Co. and South Prairie president of Malcolm Boring, Billy C. Malcolm also Construction Co., 206 NLRB 562 (1973). Part of the makes management decisions with regard to that Compa- circuit court's decision was affirmed by the United ny. In addition to being president, he is on the board of states Supreme Court in South Prairie Construction directors. Although his wife and some of his children Co. v. Local No. 627. International Union of Operat- have at times been corporate officers and on the board of , Engineers, AFL-CIO, 425 U.S. 800 (1976). The directors, Billy C. Malcolm is clearly in charge. In testi- Board had made two separate findings. The first fying about the history of his Companies, Billy C. Mal- was that two entities did not constitute a single em- colm averred that in 1962 his accountant advised him to po a te second was that each entity had a split his business into two parts so that the equipment separate appropriate bargaining unit for collective- would be owned personally and he could lease it to the bargaining purposes. The court of appeals disagreed corporation. He averred that he kept his business in two and found both a single employer and a single unit. parts because of tax and liability advantages. On appeal the Supreme Court affirmed that part of c. Centralized control of labor relations t h e c o u r t o f appeals' dec is io n w h ic h fo u n d t h at t h e two entities were a single employer and reversed Billy C. Malcolm makes all labor relations decisions and remanded to the court of appeals that part of for B. C. Malcolm. He is the one who does hiring and the decision which related to the unit question." As firing for that Company. When employees report for the Supreme Court has affirmed the circuit Court's work each day, Billy C. Malcolm is the one who decides decision with regard to the single employer, the lan- whether to assign them to fieldwork as employees of guage of the circuit court is of particular impor- Malcolm Boring or to shopwork as employees of B. C. tance. That circuit court held [518 F.2d at 1045-46]: Malcolm. If he assigns an employee to shopwork, he su- pervises the work of that employee. If he assigns the em- ployee to fieldwork, he retains ultimate authority over ^^^ ^ S ^^ se ^oSkeeo otenCoiono n,1ONR ployee tofieldwor, he retins ultimte authoity over(1963), enid. 332 F.2d 902 (9th Cir. 1964) cert. denied 379 U.S. 961 that employee, but the employee is immediately super- (1965). vised by a foreman or superintendent on the job. In 1979, " On remand the Board issued a Supplemental Decision report- Carl Jarnagan was general superintendent and vice presi- e d at 23 1 NL R B 76 (19 7 7) in w hich it no ted th a t th e Supreme dent of Malcolm Boring and it was he who supervised Court had affirmed the circuit court's finding that the two entities dent of alcolm Bring an it was e who suervisedwere a single employer. The Board reconsidered the single-unit Crews in the field. At that time Jarnagan also hired em- question and concluded that, even though the entities were a single ployees for Malcolm Boring. In late 1979, Jarnagan re- employer, separate units were appropriate. signed as vice president and superintendent and he went back to foreman status. In regard to wages and hours Guidelines for "Single Employer" Status there is complete centralization of control over labor re- In Radio Union v. Broadcast Service of Mobile, lations. Billy C. Malcolm acknowledged in his testimony Inc., 380 U.S. 255 ... (1965), the Supreme that except as limited by contract he is the one who sets Court, in a per curiam opinion affirming a "single wages and hours for both B. C. Malcolm and Malcolm employer" holding below, said: The controlling criteria, set out and elaborated 2. Analysis and conclusions in Board decisions, are interrelation of operations, common management, centralized control of In Blumenfeld Theatres Circuit, et al., 240 NLRB 206, labor relations and common ownership. 214 (1979), enfd. 626 F.2d 865 (9th Cir. 1980), the Board affirmed the decision of an administrative law judge in The court cited several NLRB decisions includ- which the tests for "single employer" were set forth as ing one affirmed in Sakrete of Northern California, follows: Inc. v. N.L.R.B., 332 F.2d 902 (9th Cir. 1964), cert. denied, 379 U.S. 961 .. . (1965). In Sakrete, In Radio <$ Television Broadcast Technicians Local the Ninth Circuit stated, at 907: Union 1264, IBEW v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965), the Supreme Court even if the substantial evidence shows interre- held that in determining whether enterprises consti- lationship of operations, centralized control of 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Common ownership and management tute a single employer: "The controlling criteria, set out and elaborated in Board decisions, are interrela- B. C. Malcolm is the name of the sole proprietorship t operations, common management, central- under which Billy C. Malcolm does business. Billy C. ized control of labor relations and common owner- Malcolm averred that, under the California community ship."" Though the Board and the courts have not property law, his wife owns half of the business. Billy C. a ae o to apply the standards enun- Malcolm and his wife own all of the stock of Malcolm c b t Sr C t d s o te Boring . Court of Appeals for the District of Columbia in In addition to the common ownership of the two con- Local No. 627, International Union of Operating En- cerns, there is to a substantial degree a common manage- gineers, AFL-CIO [South Prairie Construction Com- ment. As sole proprietor, Billy C. Malcolm has sole con- pany and Peter Kiewit Sons' Co.] v. N.L.R.B., 518 trol over the affairs of B. C. Malcolm. He decides to F.2d 1040 (1967), appears to be controlling. In that whom B. C. Malcolm will rent equipment and makes all case the court of appeals reversed the Decision of management decisions relating to B. C. Malcolm. As the Board in Peter Kiewit Sons' Co. and South Prairie president of Malcolm Boring, Billy C. Malcolm also Construction Co., 206 NLRB 562 (1973). Part of the makes management decisions with regard to that Compa- circuit court's decision was affirmed by the United ny. In addition to being president, he is on the board of states Supreme Court in South Prairie Construction directors. Although his wife and some of his children Co. v. Local No. 627. International Union of Operat- have at times been corporate officers and on the board of , Engineers, AFL-CIO, 425 U.S. 800 (1976). The directors, Billy C. Malcolm is clearly in charge. In testi- Board had made two separate findings. The first fying about the history of his Companies, Billy C. Mal- was that two entities did not constitute a single em- colm averred that in 1962 his accountant advised him to po ad te second was that each entity had a split his business into two parts so that the equipment separate appropriate bargaining unit for collective- would be owned personally and he could lease it to the bargaining purposes. The court of appeals disagreed corporation. He averred that he kept his business in two and found both a single employer and a single unit. parts because of tax and liability advantages. On appeal the Supreme Court affirmed that part of c. Centralized control of labor relations t h e c o u r t o f appeals' dec is io n w h ic h fo u n d t h at t h e two entities were a single employer and reversed Billy C. Malcolm makes all labor relations decisions and remanded to the court of appeals that part of for B. C. Malcolm. He is the one who does hiring and the decision which related to the unit question." As firing for that Company. When employees report for the Supreme Court has affirmed the circuit Court's work each day, Billy C. Malcolm is the one who decides decision with regard to the single employer, the lan- whether to assign them to fieldwork as employees of guage of the circuit court is of particular impor- Malcolm Boring or to shopwork as employees of B. C. tance. That circuit court held [518 F.2d at 1045-46]: Malcolm. If he assigns an employee to shopwork, he su- pervises the work of that employee. If he assigns the em- ployee to fieldwork, he retains ultimate authority over ^^^ ^ S ^^ se ^oSkeeo otenCoiono n,1ONR ployee tofieldwor, he retins ultimte authoity over(1963), enid. 332 F.2d 902 (9th Cir. 1964) cert. denied 379 U.S. 961 that employee, but the employee is immediately super- (1965). vised by a foreman or superintendent on the job. In 1979, " On remand the Board issued a Supplemental Decision report- Carl Jarnagan was general superintendent and vice presi- e d at 23 1 NL R B 76 (19 7 7) in w hich it no ted th a t th e Supreme dent of Malcolm Boring and it was he who supervised Court had affirmed the circuit court's finding that the two entities dent of alcolm Bring an it was e who suervisedwere a single employer. The Board reconsidered the single-unit Crews in the field. At that time Jarnagan also hired em- question and concluded that, even though the entities were a single ployees for Malcolm Boring. In late 1979, Jarnagan re- employer, separate units were appropriate. signed as vice president and superintendent and he went back to foreman status. In regard to wages and hours Guidelines for "Single Employer" Status there is complete centralization of control over labor re- In Radio Union v. Broadcast Service of Mobile, lations. Billy C. Malcolm acknowledged in his testimony Inc., 380 U.S. 255 ... (1965), the Supreme that except as limited by contract he is the one who sets Court, in a per curiam opinion affirming a "single wages and hours for both B. C. Malcolm and Malcolm employer" holding below, said: The controlling criteria, set out and elaborated 2. Analysis and conclusions in Board decisions, are interrelation of operations, common management, centralized control of In Blumenfeld Theatres Circuit, et al., 240 NLRB 206, labor relations and common ownership. 214 (1979), enfd. 626 F.2d 865 (9th Cir. 1980), the Board affirmed the decision of an administrative law judge in The court cited several NLRB decisions includ- which the tests for "single employer" were set forth as ing one affirmed in Sakrete of Northern California, follows: Inc. v. N.L.R.B., 332 F.2d 902 (9th Cir. 1964), cert. denied, 379 U.S. 961 .. . (1965). In Sakrete, In Radio <$ Television Broadcast Technicians Local the Ninth Circuit stated, at 907: Union 1264, IBEW v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965), the Supreme Court even if the substantial evidence shows interre- held that in determining whether enterprises consti- lationship of operations, centralized control of MALCOLM BORING CO., INC. 601 labor relations, or common management only at As set forth above, Malcolm Boring and B. C. Mal- the executive or top level, we do not agree that colm have interrelated operations, common management, this precludes application of the "single employ- centralized control of labor relations, and commom own- er" concept. ership. They meet all of the criteria set forth by the Su- preme Court for finding a single employer. Where sur- It pointed out that these three criteria "deal not rounding circumstances warrant it, the finding of single with power and authority, as such, but with its employer can be made even when all of the "controlling exercise," and that such criteria, "on any level, criteria" are not present. In the instant case all of the are considerations in addition to the factor of controlling criteria are present and there are no sur- common ownership or financial control."8 rounding circumstances that would interfere with the Although the Supreme Court in Radio Union, finding that Malcolm Boring and B. C. Malcolm do con- supra, commented that the record in that case stitute a single employer. I find that they are a single em- was more than adequate to show that all of the ployer. It does not follow, however, that the employees four "controlling criteria" were present, it does of Malcolm Boring and B. C. Malcolm are all part of a not appear that all four criteria must be present. single bargaining unit or that they are all covered by In one of the NLRB cases cited, Canton, Carp's, Malcolm Boring's collective- bargaining agreement with Inc., 125 NLRB 483 (1959), the Board observed Local 12. The unit issue is discussed in section D below. that it had on several occasions made a finding of a single employer status in the absence of a C. The Relationship Between Bruce Malcolm, Inc., common labor relations policy, and even when it and the Single Employer had been affirmatively shown that each of two corporations held to be a single employer estab- I. Factual findings lished its own labor relations policy. In another of the NLRB cases cited, V.I.P. Radio, Inc., 128 a. Interrelations of operations NLRB 113 (1960), the Board found that there Bruce Malcolm, Inc., and Malcolm Boring are both was little or no employee interchange; but 90 engaged in the horizontal boring business. The primary percent stock ownership of the second corpora- interrelation between Bruce Malcolm, Inc., and Malcolm tion, the same officers and directors, and central- ized control of "general labor policy" and oper- Boring relates to subcontracting. Malcolm Boring is a ations resulted in a "single employer" holding. In long established enterprise and Bruce Malcolm, Inc. still another cited NLRB case, Overton Markets, went into business during the last week of September Inc., 142 NLRB 615 (1963), the Board noted, at 1979. During the initial phases of Bruce Malcolm, Inc.'s 619, that the circumstances were not "character- operation, all of its work was subcontracted from Mal- istic of the arm's length relationship found among colm Boring. At that time Malcolm Boring had a sub- unintegrated companies."9 Its conclusion that stantial amount of overflow work that it could not per- there was a "single employer" for purposes of the form, as did many other established employers in the Act rested on consideration of "all the circum- horizontal boring business. Some of that overflow work stances" of the case. Malcolm Boring subcontracted to Bruce Malcolm, Inc. From the foregoing, we conclude that "single Gradually Bruce Malcolm, Inc., began accepting subcon- employer" status, for purposes of the National tracts from different contractors. From September 1979 Labor Relations Act, depends upon all the cir- through August 1980 Malcolm Boring subcontracted ap- cumstances of the case, that not all of the "con- proximately 5 percent of its total work to Bruce Mal- trolling criteria" specified by the Supreme Court colm, Inc. During the same time, those subcontracts need be present; that, in addition to the criterion amounted to approximately 30 percent of all the work of commom ownership or financial control, the that Bruce Malcolm, Inc., performed. other criteria, whether or not they are present at Some of Bruce Malcolm, Inc.'s employees worked for the top level of management, are "controlling" Malcolm Boring before they went to work for Bruce indicia of the actual exercise of the power of Malcolm, Inc. However, with two very limited excep- common ownership or financial control and that tions none of them worked for Malcolm Boring at the the standard for evaluating such exercise of same time that they did work for Bruce Malcolm, Inc. power is whether, as a matter of substance, there One exception applied to Larry Cochell, who was em- is the "arm's length relationship found among un- ployed by Malcolm Boring. Cochell was a friend of integrated companies." Bruce Malcolm's and on a few occasions he helped Bruce Malcolm with repair work on off-hours and on a In a later decision, N.L.R.B. v. Welcome-American Fertiliz- Saturday. The other exception applied to a part-time sec- er Co., 443 F.2d 19, 21 (9th Cir. 1971), the Ninth Circuit, citing retary who worked for Bruce Malcolm, Inc., I or 2 days Sakrete, said that no one of the four criteria is controlling. a week after January 1980. She was also a part time ' The "arm's length" test makes meaningful the Board's ref- clerical employee for Malcolm Boring Those were iso- erence in Canton. Carp's. Inc., supra at 484, to "realities of com- mercial organization." It was applied by this court in American Fed. of Television & Radio Artists v. N.L.R.B., 149 U.S. App. 6 Bruce Malcolm also does some pipe jacking work. Malcolm Boring D.C. 272. 462 F2d 887 (1972). does not engage in that type of business. MALCOLM BORING CO., INC. 601 labor relations, or common management only at As set forth above, Malcolm Boring and B. C. Mal- the executive or top level, we do not agree that colm have interrelated operations, common management, this precludes application of the "single employ- centralized control of labor relations, and commom own- er" concept. ership. They meet all of the criteria set forth by the Su- preme Court for finding a single employer. Where sur- It pointed out that these three criteria "deal not rounding circumstances warrant it, the finding of single with power and authority, as such, but with its employer can be made even when all of the "controlling exercise," and that such criteria, "on any level, criteria" are not present. In the instant case all of the are considerations in addition to the factor of controlling criteria are present and there are no sur- common ownership or financial control." 8 rounding circumstances that would interfere with the Although the Supreme Court in Radio Union, finding that Malcolm Boring and B. C. Malcolm do con- supra, commented that the record in that case stitute a single employer. I find that they are a single em- was more than adequate to show that all of the ployer. It does not follow, however, that the employees four "controlling criteria" were present, it does of Malcolm Boring and B. C. Malcolm are all part of a not appear that all four criteria must be present. single bargaining unit or that they are all covered by In one of the NLRB cases cited, Canton, Carp's, Malcolm Boring's collective- bargaining agreement with Inc., 125 NLRB 483 (1959), the Board observed Local 12. The unit issue is discussed in section D below. that it had on several occasions made a finding of a single employer status in the absence of a C. The Relationship Between Bruce Malcolm, Inc., common labor relations policy, and even when it and the Single Employer had been affirmatively shown that each of two corporations held to be a single employer estab- 1. Factual findings lished its own labor relations policy. In another of the NLRB cases cited, VI.P. Radio, Inc., 128 a. Interrelations of operations NLRB 113 (1960), the Board found that there Bruce Malcolm, Inc., and Malcolm Boring are both was little or no employee interchange; but 90 engaged in the horizontal boring business." The primary percent stock ownership of the second corpora- interrelation between Bruce Malcolm, Inc., and Malcolm tion, the same officers and directors, and central- B n g r e la t es to suce Malcolm Boring isca ized control of "general labor policy" and oper- Blong r e la t e s t o subcontracting. Malcolm Boring is a ations resulted in a "single employer" holding. In wS established enterprise and Bruce Malcolm, Inc.. still another cited NLRB case, Overton Markets, w en t into b^'ness during the last week of September Inc., 142 NLRB 615 (1963), the Board noted, at 19 7 9. During the initial phases of Bruce Malcolm, Inc.'s 619, that the circumstances were not "character- operation, all of its work was subcontracted from Mal- istic of the arm's length relationship found among c ol m Boring. At that time Malcolm Boring had a sub- unintegrated companies."' Its conclusion that stantial amount of overflow work that it could not per- there was a "single employer" for purposes of the form, as did many other established employers in the Act rested on consideration of "all the circum- horizontal boring business. Some of that overflow work stances" of the case. Malcolm Boring subcontracted to Bruce Malcolm, Inc. From the foregoing, we conclude that "single Gradually Bruce Malcolm, Inc., began accepting subcon- employer" status, for purposes of the National tracts from different contractors. From September 1979 Labor Relations Act, depends upon all the cir- through August 1980 Malcolm Boring subcontracted ap- cumstances of the case, that not all of the "con- proximately 5 percent of its total work to Bruce Mal- trolling criteria" specified by the Supreme Court colm, Inc. During the same time, those subcontracts need be present; that, in addition to the criterion amounted to approximately 30 percent of all the work of commom ownership or financial control, the that Bruce Malcolm, Inc., performed. other criteria, whether or not they are present at Some of Bruce Malcolm, Inc.'s employees worked for the top level of management, are "controlling" Malcolm Boring before they went to work for Bruce indicia of the actual exercise of the power of Malcolm, Inc. However, with two very limited excep- common ownership or financial control and that tions none of them worked for Malcolm Boring at the the standard for evaluating such exercise of same time that they did work for Bruce Malcolm, Inc. power is whether, as a matter of substance, there One exception applied to Larry Cochell, who was em- is the "arm's length relationship found among un- ployed by Malcolm Boring. Cochell was a friend of integrated companies." Bruce Malcolm's and on a few occasions he helped Bruce Malcolm with repair work on off-hours and on a * In a later decision. N.L.R.B. v. Welcome-American Fertiliz- Saturday. The other exception applied to a part-time sec- er Co., 443 F.2d 19, 21 (9th Cir. 1971), the Ninth Circuit, citing retary who worked for Bruce Malcolm, Inc., 1 or 2 days Sakreie, said that no one of the four criteria is controlling. a week after January 1980. She was also a part time ' The "arm's length" test makes meaningful the Board's ref- ceia mlyefrMlcl oig hs eeio erence in Canton. Carp's Inc., supra at 484, to 'realiesofo c cal employee for Malcolm Boring. Those were iso- mercial organization." It was applied by this court in American Fed. of Television & Radio Artists v. N.L.R.B., 149 U.S. App. 6 Bruce Malcolm also does some pipe jacking work. Malcolm Boring D.C. 272. 462 F.2d 887 (1972). does not engage in that type of business. MALCOLM BORING CO., INC. 601 labor relations, or common management only at As set forth above, Malcolm Boring and B. C. Mal- the executive or top level, we do not agree that colm have interrelated operations, common management, this precludes application of the "single employ- centralized control of labor relations, and commom own- er" concept. ership. They meet all of the criteria set forth by the Su- preme Court for finding a single employer. Where sur- It pointed out that these three criteria "deal not rounding circumstances warrant it, the finding of single with power and authority, as such, but with its employer can be made even when all of the "controlling exercise," and that such criteria, "on any level, criteria" are not present. In the instant case all of the are considerations in addition to the factor of controlling criteria are present and there are no sur- common ownership or financial control." 8 rounding circumstances that would interfere with the Although the Supreme Court in Radio Union, finding that Malcolm Boring and B. C. Malcolm do con- supra, commented that the record in that case stitute a single employer. I find that they are a single em- was more than adequate to show that all of the ployer. It does not follow, however, that the employees four "controlling criteria" were present, it does of Malcolm Boring and B. C. Malcolm are all part of a not appear that all four criteria must be present. single bargaining unit or that they are all covered by In one of the NLRB cases cited, Canton, Carp's, Malcolm Boring's collective- bargaining agreement with Inc., 125 NLRB 483 (1959), the Board observed Local 12. The unit issue is discussed in section D below. that it had on several occasions made a finding of a single employer status in the absence of a C. The Relationship Between Bruce Malcolm, Inc., common labor relations policy, and even when it and the Single Employer had been affirmatively shown that each of two corporations held to be a single employer estab- 1. Factual findings lished its own labor relations policy. In another of the NLRB cases cited, VI.P. Radio, Inc., 128 a. Interrelations of operations NLRB 113 (1960), the Board found that there Bruce Malcolm, Inc., and Malcolm Boring are both was little or no employee interchange; but 90 engaged in the horizontal boring business." The primary percent stock ownership of the second corpora- interrelation between Bruce Malcolm, Inc., and Malcolm tion, the same officers and directors, and central- Boring rebete n suce Malcolm Boring isca ized control of "general labor policy" and oper- Blong r e la t e s t o subcontracting. Malcolm Boring is a ations resulted in a "single employer" holding. In wS established enterprise and Bruce Malcolm, Inc.. still another cited NLRB case, Overton Markets, w e n t l n t o busmess during the last week of September Inc., 142 NLRB 615 (1963), the Board noted, at 19 7 9. During the initial phases of Bruce Malcolm, Inc.'s 619, that the circumstances were not "character- operation, all of its work was subcontracted from Mal- istic of the arm's length relationship found among c ol m Boring. At that time Malcolm Boring had a sub- unintegrated companies."' Its conclusion that stantial amount of overflow work that it could not per- there was a "single employer" for purposes of the form, as did many other established employers in the Act rested on consideration of "all the circum- horizontal boring business. Some of that overflow work stances" of the case. Malcolm Boring subcontracted to Bruce Malcolm, Inc. From the foregoing, we conclude that "single Gradually Bruce Malcolm, Inc., began accepting subcon- employer" status, for purposes of the National tracts from different contractors. From September 1979 Labor Relations Act, depends upon all the cir- through August 1980 Malcolm Boring subcontracted ap- cumstances of the case, that not all of the "con- proximately 5 percent of its total work to Bruce Mal- trolling criteria" specified by the Supreme Court colm, Inc. During the same time, those subcontracts need be present; that, in addition to the criterion amounted to approximately 30 percent of all the work of commom ownership or financial control, the that Bruce Malcolm, Inc., performed. other criteria, whether or not they are present at Some of Bruce Malcolm, Inc.'s employees worked for the top level of management, are "controlling" Malcolm Boring before they went to work for Bruce indicia of the actual exercise of the power of Malcolm, Inc. However, with two very limited excep- common ownership or financial control and that tions none of them worked for Malcolm Boring at the the standard for evaluating such exercise of same time that they did work for Bruce Malcolm, Inc. power is whether, as a matter of substance, there One exception applied to Larry Cochell, who was em- is the "arm's length relationship found among un- ployed by Malcolm Boring. Cochell was a friend of integrated companies." Bruce Malcolm's and on a few occasions he helped Bruce Malcolm with repair work on off-hours and on a * In a later decision. N.L.R.B. v. Welcome-American Fertiliz- Saturday. The other exception applied to a part-time sec- er Co., 443 F.2d 19, 21 (9th Cir. 1971), the Ninth Circuit, citing retary who worked for Bruce Malcolm, Inc., 1 or 2 days Sakreie, said that no one of the four criteria is controlling. a week after January 1980. She was also a part time ' The "arm's length" test makes meaningful the Board's ref- ceia mlyefrMlcl oig hs eeio erence in Canton. Carp's Inc., supra at 484, to 'realiesofo c cal employee for Malcolm Boring. Those were iso- mercial organization." It was applied by this court in American Fed. of Television & Radio Artists v. N.L.R.B., 149 U.S. App. 6 Bruce Malcolm also does some pipe jacking work. Malcolm Boring D.C. 272. 462 F.2d 887 (1972). does not engage in that type of business. MALCOLM BORING CO., INC. 601 labor relations, or common management only at As set forth above, Malcolm Boring and B. C. Mal- the executive or top level, we do not agree that colm have interrelated operations, common management, this precludes application of the "single employ- centralized control of labor relations, and commom own- er" concept. ership. They meet all of the criteria set forth by the Su- preme Court for finding a single employer. Where sur- It pointed out that these three criteria "deal not rounding circumstances warrant it, the finding of single with power and authority, as such, but with its employer can be made even when all of the "controlling exercise," and that such criteria, "on any level, criteria" are not present. In the instant case all of the are considerations in addition to the factor of controlling criteria are present and there are no sur- common ownership or financial control." 8 rounding circumstances that would interfere with the Although the Supreme Court in Radio Union, finding that Malcolm Boring and B. C. Malcolm do con- supra, commented that the record in that case stitute a single employer. I find that they are a single em- was more than adequate to show that all of the ployer. It does not follow, however, that the employees four "controlling criteria" were present, it does of Malcolm Boring and B. C. Malcolm are all part of a not appear that all four criteria must be present. single bargaining unit or that they are all covered by In one of the NLRB cases cited, Canton, Carp's, Malcolm Boring's collective- bargaining agreement with Inc., 125 NLRB 483 (1959), the Board observed Local 12. The unit issue is discussed in section D below. that it had on several occasions made a finding of a single employer status in the absence of a C. The Relationship Between Bruce Malcolm, Inc., common labor relations policy, and even when it and the Single Employer had been affirmatively shown that each of two corporations held to be a single employer estab- 1. Factual findings lished its own labor relations policy. In another of the NLRB cases cited, VI.P. Radio, Inc., 128 a. Interrelations of operations NLRB 113 (1960), the Board found that there Bruce Malcolm, Inc., and Malcolm Boring are both was little or no employee interchange; but 90 engaged in the horizontal boring business." The primary percent stock ownership of the second corpora- interrelation between Bruce Malcolm, Inc., and Malcolm tion, the same officers and directors, and central- Boring rebete n suce Malcolm Boring isca ized control of "general labor policy" and oper- Blong r e la t e s t o subcontracting. Malcolm Boring is a ations resulted in a "single employer" holding. In wS established enterprise and Bruce Malcolm, Inc.. still another cited NLRB case, Overton Markets, w e n t into business during the last week of September Inc., 142 NLRB 615 (1963), the Board noted, at 19 7 9. During the initial phases of Bruce Malcolm, Inc.'s 619, that the circumstances were not "character- operation, all of its work was subcontracted from Mal- istic of the arm's length relationship found among c ol m Boring. At that time Malcolm Boring had a sub- unintegrated companies."' Its conclusion that stantial amount of overflow work that it could not per- there was a "single employer" for purposes of the form, as did many other established employers in the Act rested on consideration of "all the circum- horizontal boring business. Some of that overflow work stances" of the case. Malcolm Boring subcontracted to Bruce Malcolm, Inc. From the foregoing, we conclude that "single Gradually Bruce Malcolm, Inc., began accepting subcon- employer" status, for purposes of the National tracts from different contractors. From September 1979 Labor Relations Act, depends upon all the cir- through August 1980 Malcolm Boring subcontracted ap- cumstances of the case, that not all of the "con- proximately 5 percent of its total work to Bruce Mal- trolling criteria" specified by the Supreme Court colm, Inc. During the same time, those subcontracts need be present; that, in addition to the criterion amounted to approximately 30 percent of all the work of commom ownership or financial control, the that Bruce Malcolm, Inc., performed. other criteria, whether or not they are present at Some of Bruce Malcolm, Inc.'s employees worked for the top level of management, are "controlling" Malcolm Boring before they went to work for Bruce indicia of the actual exercise of the power of Malcolm, Inc. However, with two very limited excep- common ownership or financial control and that tions none of them worked for Malcolm Boring at the the standard for evaluating such exercise of same time that they did work for Bruce Malcolm, Inc. power is whether, as a matter of substance, there One exception applied to Larry Cochell, who was em- is the "arm's length relationship found among un- ployed by Malcolm Boring. Cochell was a friend of integrated companies." Bruce Malcolm's and on a few occasions he helped Bruce Malcolm with repair work on off-hours and on a * In a later decision. N.L.R.B. v. Welcome-American Fertiliz- Saturday. The other exception applied to a part-time sec- er Co., 443 F.2d 19, 21 (9th Cir. 1971), the Ninth Circuit, citing retary who worked for Bruce Malcolm, Inc., 1 or 2 days Sakreie, said that no one of the four criteria is controlling. a week after January 1980. She was also a part time ' The "arm's length" test makes meaningful the Board's ref- ceia mlyefrMlcl oig hs eeio erence in Canton. Carp's Inc., supra at 484, to 'realiesofo c cal employee for Malcolm Boring. Those were iso- mercial organization." It was applied by this court in American Fed. of Television & Radio Artists v. N.L.R.B., 149 U.S. App. 6 Bruce Malcolm also does some pipe jacking work. Malcolm Boring D.C. 272. 462 F.2d 887 (1972). does not engage in that type of business. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lated situations and did not amoumt to a meaningful in- b. Common management terchange of employees. 7 At one time Bruce Malcolm worked for Malcolm Bruce Malcolm, Inc., owns most of the equipment that Boring as a boring machine operator. He was also direc- it uses. Before Bruce Malcolm, Inc., went into business, However Bruce Malcolm leased to Malcolm some equipment that t an v p i o M B Hwv Bruce Malcolm leased to Malcolm some equipment that before going into business for himself, he quit his job at it owned. Boring. However, that lease was canceled Malcolm Boring and resigned as a director and vice before the new business was started. There was some president. loaning and interchange of equipment among various em- Bill C. Malcolm manaes the oerations of Malcolm ployers in the horizontal boring business, but there is nog Malcolm Bruce Malcolm manages the showing that there was more of that between Bruce Mal- showing that there was more of that between Bruce Mal- operations of Bruce Malcolm, Inc., and has no control colm, Inc., and Malcolm Boring than there was between g Malcolm. over the affairs of Malcolm Boring or B. C. Malcolm. other employers in that industry." Bruce Malcolm, Inc., Billy C. Malcolm has no control over the affairs of did come to the Malcolm Boring yard on various occa- Bruce Malcolm Inc. except to the extent that is implicit sions to pick up casings. On those occasions Malcolm in the relationship between a contractor and a subcon- Boring was supplying the casing for his subcontractor, tractor Bruce Malcolm, Inc. Other subcontractors who accepted management In sum, I find that there is no common management subcontracts from Malcolm Boring used a similar proce- between Malcolm, Inc, and Malcolm Boring or B. dure. On one occasion, Bruce Malcolm, Inc., performed C. Malcolm. some work on his own equipment while he was in Mal- colm Boring's yard. That was an isolated incident and c. Centralized control of labor relations occurred because Malcolm Boring had the extra room needed for that type of work. As set forth above, except as he is limited by his col- Bruce Malcolm, Inc., maintains its own office, is locat- lective bargaining agreement with Local 12, Billy C. ed about 3 miles away from the offices of Malcolm Malcolm has sole control over wages, hours, and labor Boring and B. C. Malcolm, and maintains its own yard, relation matters for Malcolm Boring and B. C. Malcolm. located 7 or 8 miles from the Malcolm Boring and B. C. Bruce Malcolm neither has nor exercises any authority in Malcolm yard. Bruce Malcolm, Inc., maintains its own that regard. books and has a telephone number that is different from Bruce Malcolm is the only supervisor of Bruce Mal- that of Malcolm Boring and B. C. Malcolm. Malcolm colm, Inc. He has sole power to hire and fire employees Boring, Inc., does not have its own contractor's license, and, in general, is in sole charge of the business including but it is in the process of applying for one. It has never labor relations. Billy C. Malcolm has no authority over used the contractor's license of Malcolm Boring or B. C. labor relations policies for Bruce Malcolm, Inc.' Malcolm. Bruce Malcolm, Inc., has a collective-bargaining I find that there is no interrelation of operations be- agreement with NMU. The General Counsel contends tween Malcolm Boring and Bruce Malcolm, Inc., except that Billy C. Malcolm was responsible for the execution to the extent that Malcolm Boring subcontracts some of of that contract and to that extent controlled the labor its work to Bruce Malcolm, Inc. However, the evidence policies of Bruce Malcolm, Inc. The evidence does not does not establish that the contractor-subcontractor rela- support the General Counsel's contention. Sometime in tionship is other than an arm's-length transaction. the summer of 1979, Billy C. Malcolm received a phone call from an ex-employee named Bob Seabury, who was 7Cochell testified that he was paid in cash and that Billy C. Malcolm organizing for NMU. Seabury asked whether Billy C. told Bruce not to pay him by means other than cash. Bruce Malcolm Malcolm could give him the names of some nonunion averred that it was Cochell who asked to be paid in cash and both he and contractors. Seabury also said that he was not interested Billy C. Malcolm denied that Billy C. Malcolm said anything about the in means of payment for Cochell. Both Billy C. Malcolm and Bruce Mal- organizing anyone who currently had a contract. Billy colm impressed me as being candid witnesses with good memories. Co- C. Malcolm gave Seabury the names of a number of con- chell's demeanor was less impressive and a number of internal inconsis- tractors including Bruce Malcolm. At that time Bruce tencies within his testimony and with regard to previous statements indi- Malcolm had already resigned from Malcolm Boring and cated that his memory was less than completely reliable. Where his testi- mony conflicts with that of Billy C. Malcolm and Bruce Malcolm, I equipment credit the Malcolms. began his business. The equipment was being built in a On one occasion a crew from Malcolm Boring took over work that had been performed by a crew from Bruce Malcolm, Inc. In that situa- Bruce Malcolm terminated his employment with Malcom Boring on lion, the prime contractor, Irish Construction Company, was put under or about August 1, 1979. At that same time he resigned as officer and pressure from Local 12 to remove Bruce Malcolm, Inc.'s nonunion em- director, although that resignation was not reduced to a written docu- ployees from the job. Irish Construction called Malcolm Boring with the ment until December 1, 1979. Bruce Malcolm is still listed as an individu- result that Malcolm Boring removed its subcontractor, Bruce Malcolm, al who is authorized to draw checks on a small cash account for Mal- Inc., from the job and completed the work with its own employees. That colm Boring. However, Bruce Malcolm credibly testified that he was left constituted a removal of a subcontractor rather than an interchange of on that account as a matter of inadvertence, that he had forgotten about employees. it, and that he did not draw checks on it. Bruce Malcolm acknowledges * Cochell testified that, in October 1979, he used a crane belonging to in his testimony that, in an affidavit he gave to the Board, he stated that Bruce Malcolm, Inc., while he was working for Malcolm Boring and his father bid jobs for him. He credibly testified that his affidavit was that, on various occasions, he saw Malcolm Boring's markings on trucks poorly worded, that his father did not actively bid jobs for him, and that used by Bruce Malcolm, Inc. However, I do not believe Cochell was re- when his father had overflow work that had been bid on, his father re- liable with regard to dates. Bruce Malcolm creditably testified that his quested him to take the job. lease of equipment to Malcolm Boring ended before he went into busi-. " As found above, the testimony of Cochell to the effect that Billy C. ness and that after he went into business his equipment had its own mark. Malcolm directed Bruce Malcolm to pay cash for Cochell's services has ings. not been credited. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lated situations and did not amoumt to a meaningful in- b. Common management terchange of employees. 7I At one time Bruce Malcolm worked for Malcolm Bruce Malcolm, Inc., owns most of the equipment that Boring as a boring machine operator. He was also direc- it uses. Before Bruce Malcolm, Inc., went into business, t a vc p of M However, Bruce Malcolm leased to Malcolm some equipment that before going into business for himself, he quit his job at it owned. Boring. However, that lease was canceled Malcolm Boring and resigned as a director and vice before the new business was started. There was some president ' loaning and interchange of equipment among various em- Billy C. Malcolm manages the operations of Malcolm ployers in the horizontal boring business, but there is no Boring and B. C. Malcolm. Bruce Malcolm manages the showing that there was more of that between Bruce Mal- operations of Bruce Malcolm, Inc., and has no control colm, Inc., and Malcolm Boring than there was between o th a of g o g C Malcolm. other employers in that industry." Bruce Malcolm, Inc., Billy C. Malcolm has no control over the affairs of did come to the Malcolm Boring yard on various occa- Bruce Malcolm, Inc., except to the extent that is implicit sions to pick up casings. On those occasions Malcolm in the relationship between a contractor and a subcon- Boring was supplying the casing for his subcontractor, tractor. Bruce Malcolm, Inc. Other subcontractors who accepted I , I r t t i n mmon management subcontracts from Malcolm Boring used a similar proce- between Bruce Malcolm, Inc., and Malcolm Boring or B. dure. On one occasion, Bruce Malcolm, Inc., performed C. Malcolm. some work on his own equipment while he was in Mal- colm Boring's yard. That was an isolated incident and c. Centralized control of labor relations occurred because Malcolm Boring had the extra room needed for that type of work. A s se t fo r t h above, except as he is limited by his col- Bruce Malcolm, Inc., maintains its own office, is locat- lective bargaining agreement with Local 12, Billy C. ed about 3 miles away from the offices of Malcolm Malcolm has sole control over wages, hours, and labor Boring and B. C. Malcolm, and maintains its own yard, relation matters for Malcolm Boring and B. C. Malcolm. located 7 or 8 miles from the Malcolm Boring and B. C. Bruce Malcolm neither has nor exercises any authority in Malcolm yard. Bruce Malcolm, Inc., maintains its own that regard. books and has a telephone number that is different from Bruce Malcolm is the only supervisor of Bruce Mal- that of Malcolm Boring and B. C. Malcolm. Malcolm colm, Inc. He has sole power to hire and fire employees Boring, Inc., does not have its own contractor's license, and, in general, is in sole charge of the business including but it is in the process of applying for one. It has never labor relations. Billy C. Malcolm has no authority over used the contractor's license of Malcolm Boring or B. C. labor relations policies for Bruce Malcolm, Inc." 0 Malcolm. Bruce Malcolm, Inc., has a collective-bargaining I find that there is no interrelation of operations be- agreement with NMU. The General Counsel contends tween Malcolm Boring and Bruce Malcolm, Inc., except that Billy C. Malcolm was responsible for the execution to the extent that Malcolm Boring subcontracts some of of that contract and to that extent controlled the labor its work to Bruce Malcolm, Inc. However, the evidence policies of Bruce Malcolm, Inc. The evidence does not does not establish that the contractor-subcontractor rela- support the General Counsel's contention. Sometime in tionship is other than an arm's-length transaction. the summer of 1979, Billy C. Malcolm received a phone call from an ex-employee named Bob Seabury, who was Cochell testified that he was paid in cash and that Billy c. Malcolm organizing for NMU. Seabury asked whether Billy C. told Bruce not to pay him by means other than cash. Bruce Malcolm Malcolm could give him the names of some nonunion averred that it was Cochell who asked to be paid in cash and both he and contractors. Seabury also said that he was not interested Billy C. Malcolm denied that Billy C. Malcolm said anything about the i raiigayn h urnl a otat il means of paymentfroe. B Cr"g a one who currently had a contract. Billy colm impressed me as being candid witnesses with good memories. Co-. C. Malcolm gave Seabury the names of a number of con- chell's demeanor was less impressive and a number of internal inconsis-_ tractors including Bruce Malcolm. At that time Bruce tencies within his testimony and with regard to previous statements indi- Malcolm had already resigned from Malcolm Boring and cated that his memory was less than completely reliable. Where his testi- a uli sm qpen h e od e e e mony conflicts with that of Billy C. Malcolm and Bruce Malcolm, Ihe credit the Malcolms. began his business. The equipment was being built in a On one occasion a crew from Malcolm Boring took over work that had been performed by a crew from Bruce Malcolm, Inc. In that situa- Bruce Malcolm terminated his employment with Malcom Boring on lion, the prime contractor, Irish Construction Company, was put under or about August 1, 1979. Al that same time he resigned as officer and pressure from Local 12 to remove Bruce Malcolm, Inc.'s nonunion em-. director, although that resignation was not reduced to a written docu- ployees from the job. Irish Construction called Malcolm Boring with the ,ment until December 1, 1979. Bruce Malcolm is still listed as an individu- result that Malcolm Boring removed its subcontractor, Bruce Malcolm, al who is authorized to draw checks on a small cash account for Mal- Inc., from the job and completed the work with its own employees. That colm Boring. However, Bruce Malcolm credibly testified that he was left constituted a removal of a subcontractor rather than an interchange of on that account as a matter of inadvertence, that he had forgotten about employees. it, and that he did not draw checks on it. Bruce Malcolm acknowledges I Cochell testified that, in October 1979, he used a crane belonging to in his testimony that, in an affidavit he gave to the Board, he stated that Bruce Malcolm, Inc., while he was working for Malcolm Boring and his father bid jobs for him. He credibly testified that his affdavit was that, on various occasions, he saw Malcolm Boring's markings on trucks poorly worded, that his father did not actively bid jobs for him, and that used by Bruce Malcolm, Inc. However, I do not believe Cochell was re- when his father had overflow work that had been bid on, his father re- liable with regard to dates. Bruce Malcolm creditably testified that his quested him to take the job. lease of equipment to Malcolm Boring ended before he went into busi- to A, found above, the testimony of Cochell to the effect that Billy C. ness and that after he went into business his equipment had its own mark-. Malcolm directed Bruce Malcolm to pay cash for Cochell's services has ings. not been credited. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lated situations and did not amoumt to a meaningful in- b. Common management terchange of employees. 7I At one time Bruce Malcolm worked for Malcolm Bruce Malcolm, Inc., owns most of the equipment that Boring as a boring machine operator. He was also direc- it uses. Before Bruce Malcolm, Inc., went into business, a v p i o M c g . However, Bruce Malcolm leased to Malcolm some equipment that before going into business for himself, he quit his job at it owned. Boring. However, that lease was canceled Malcolm Boring and resigned as a director and vice before the new business was started. There was some president ' loaning and interchange of equipment among various em- Billy C. Malcolm manages the operations of Malcolm ployers in the horizontal boring business, but there is no Boring and B. C. Malcolm. Bruce Malcolm manages the showing that there was more of that between Bruce Mal- operations of Bruce Malcolm, Inc., and has no control colm, Inc., and Malcolm Boring than there was between o th a of g o g C Malcolm. other employers in that industry." Bruce Malcolm, Inc., Billy C. Malcolm has no control over the affairs of did come to the Malcolm Boring yard on various occa- Bruce Malcolm, Inc., except to the extent that is implicit sions to pick up casings. On those occasions Malcolm in the relationship between a contractor and a subcon- Boring was supplying the casing for his subcontractor, tractor. Bruce Malcolm, Inc. Other subcontractors who accepted I , I r hat there is no common management subcontracts from Malcolm Boring used a similar proce- between Bruce Malcolm, Inc., and Malcolm Boring or B. dure. On one occasion, Bruce Malcolm, Inc., performed C. Malcolm. some work on his own equipment while he was in Mal- colm Boring's yard. That was an isolated incident and c. Centralized control of labor relations occurred because Malcolm Boring had the extra room needed for that type of work. A s se t fo r t h above, except as he is limited by his col- Bruce Malcolm, Inc., maintains its own office, is locat- lective bargaining agreement with Local 12, Billy C. ed about 3 miles away from the offices of Malcolm Malcolm has sole control over wages, hours, and labor Boring and B. C. Malcolm, and maintains its own yard, relation matters for Malcolm Boring and B. C. Malcolm. located 7 or 8 miles from the Malcolm Boring and B. C. Bruce Malcolm neither has nor exercises any authority in Malcolm yard. Bruce Malcolm, Inc., maintains its own that regard. books and has a telephone number that is different from Bruce Malcolm is the only supervisor of Bruce Mal- that of Malcolm Boring and B. C. Malcolm. Malcolm colm, Inc. He has sole power to hire and fire employees Boring, Inc., does not have its own contractor's license, and, in general, is in sole charge of the business including but it is in the process of applying for one. It has never labor relations. Billy C. Malcolm has no authority over used the contractor's license of Malcolm Boring or B. C. labor relations policies for Bruce Malcolm, Inc." 0 Malcolm. Bruce Malcolm, Inc., has a collective-bargaining I find that there is no interrelation of operations be- agreement with NMU. The General Counsel contends tween Malcolm Boring and Bruce Malcolm, Inc., except that Billy C. Malcolm was responsible for the execution to the extent that Malcolm Boring subcontracts some of of that contract and to that extent controlled the labor its work to Bruce Malcolm, Inc. However, the evidence policies of Bruce Malcolm, Inc. The evidence does not does not establish that the contractor-subcontractor rela- support the General Counsel's contention. Sometime in tionship is other than an arm's-length transaction. the summer of 1979, Billy C. Malcolm received a phone call from an ex-employee named Bob Seabury, who was Cochell testified that he was paid in cash and that Billy c. Malcolm organizing for NMU. Seabury asked whether Billy C. told Bruce not to pay him by means other than cash. Bruce Malcolm Malcolm could give him the names of some nonunion averred that it was Cochell who asked to be paid in cash and both he and contractors. Seabury also said that he was not interested Billy C. Malcolm denied that Billy C. Malcolm said anything about the i raiigayn h urnl a otat il means of paymentfroe. B Cr"g a one who currently had a contract. Billy colm impressed me as being candid witnesses with good memories. Co-. C. Malcolm gave Seabury the names of a number of con- chell's demeanor was less impressive and a number of internal inconsis-_ tractors including Bruce Malcolm. At that time Bruce tencies within his testimony and with regard to previous statements indi- Malcolm had already resigned from Malcolm Boring and cated that his memory was less than completely reliable. Where his testi- a uli sm qpen h e od e e e mony conflicts with that of Billy C. Malcolm and Bruce Malcolm, Ihe credit the Malcolms. began his business. The equipment was being built in a On one occasion a crew from Malcolm Boring took over work that had been performed by a crew from Bruce Malcolm, Inc. In that situa- Bruce Malcolm terminated his employment with Malcom Boring on lion, the prime contractor, Irish Construction Company, was put under or about August 1, 1979. Al that same time he resigned as officer and pressure from Local 12 to remove Bruce Malcolm, Inc.'s nonunion em-. director, although that resignation was not reduced to a written docu- ployees from the job. Irish Construction called Malcolm Boring with the ,ment until December 1, 1979. Bruce Malcolm is still listed as an individu- result that Malcolm Boring removed its subcontractor, Bruce Malcolm, al who is authorized to draw checks on a small cash account for Mal- Inc., from the job and completed the work with its own employees. That colm Boring. However, Bruce Malcolm credibly testified that he was left constituted a removal of a subcontractor rather than an interchange of on that account as a matter of inadvertence, that he had forgotten about employees. it, and that he did not draw checks on it. Bruce Malcolm acknowledges I Cochell testified that, in October 1979, he used a crane belonging to in his testimony that, in an affidavit he gave to the Board, he stated that Bruce Malcolm, Inc., while he was working for Malcolm Boring and his father bid jobs for him. He credibly testified that his affdavit was that, on various occasions, he saw Malcolm Boring's markings on trucks poorly worded, that his father did not actively bid jobs for him, and that used by Bruce Malcolm, Inc. However, I do not believe Cochell was re- when his father had overflow work that had been bid on, his father re- liable with regard to dates. Bruce Malcolm creditably testified that his quested him to take the job. lease of equipment to Malcolm Boring ended before he went into busi- to A, found above, the testimony of Cochell to the effect that Billy C. ness and that after he went into business his equipment had its own mark-. Malcolm directed Bruce Malcolm to pay cash for Cochell's services has ings. not been credited. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lated situations and did not amoumt to a meaningful in- b. Common management terchange of employees. 7I At one time Bruce Malcolm worked for Malcolm Bruce Malcolm, Inc., owns most of the equipment that Boring as a boring machine operator. He was also direc- it uses. Before Bruce Malcolm, Inc., went into business, a v p i o M c g . However, Bruce Malcolm leased to Malcolm some equipment that before going into business for himself, he quit his job at it owned. Boring. However, that lease was canceled Malcolm Boring and resigned as a director and vice before the new business was started. There was some president ' loaning and interchange of equipment among various em- Billy C. Malcolm manages the operations of Malcolm ployers in the horizontal boring business, but there is no Boring and B. C. Malcolm. Bruce Malcolm manages the showing that there was more of that between Bruce Mal- operations of Bruce Malcolm, Inc., and has no control colm, Inc., and Malcolm Boring than there was between o th a of g o g C Malcolm. other employers in that industry." Bruce Malcolm, Inc., Billy C. Malcolm has no control over the affairs of did come to the Malcolm Boring yard on various occa- Bruce Malcolm, Inc., except to the extent that is implicit sions to pick up casings. On those occasions Malcolm in the relationship between a contractor and a subcon- Boring was supplying the casing for his subcontractor, tractor. Bruce Malcolm, Inc. Other subcontractors who accepted I , I r hat there is no common management subcontracts from Malcolm Boring used a similar proce- between Bruce Malcolm, Inc., and Malcolm Boring or B. dure. On one occasion, Bruce Malcolm, Inc., performed C. Malcolm. some work on his own equipment while he was in Mal- colm Boring's yard. That was an isolated incident and c. Centralized control of labor relations occurred because Malcolm Boring had the extra room needed for that type of work. A s se t fo r t h above, except as he is limited by his col- Bruce Malcolm, Inc., maintains its own office, is locat- lective bargaining agreement with Local 12, Billy C. ed about 3 miles away from the offices of Malcolm Malcolm has sole control over wages, hours, and labor Boring and B. C. Malcolm, and maintains its own yard, relation matters for Malcolm Boring and B. C. Malcolm. located 7 or 8 miles from the Malcolm Boring and B. C. Bruce Malcolm neither has nor exercises any authority in Malcolm yard. Bruce Malcolm, Inc., maintains its own that regard. books and has a telephone number that is different from Bruce Malcolm is the only supervisor of Bruce Mal- that of Malcolm Boring and B. C. Malcolm. Malcolm colm, Inc. He has sole power to hire and fire employees Boring, Inc., does not have its own contractor's license, and, in general, is in sole charge of the business including but it is in the process of applying for one. It has never labor relations. Billy C. Malcolm has no authority over used the contractor's license of Malcolm Boring or B. C. labor relations policies for Bruce Malcolm, Inc." 0 Malcolm. Bruce Malcolm, Inc., has a collective-bargaining I find that there is no interrelation of operations be- agreement with NMU. The General Counsel contends tween Malcolm Boring and Bruce Malcolm, Inc., except that Billy C. Malcolm was responsible for the execution to the extent that Malcolm Boring subcontracts some of of that contract and to that extent controlled the labor its work to Bruce Malcolm, Inc. However, the evidence policies of Bruce Malcolm, Inc. The evidence does not does not establish that the contractor-subcontractor rela- support the General Counsel's contention. Sometime in tionship is other than an arm's-length transaction. the summer of 1979, Billy C. Malcolm received a phone call from an ex-employee named Bob Seabury, who was Cochell testified that he was paid in cash and that Billy c. Malcolm organizing for NMU. Seabury asked whether Billy C. told Bruce not to pay him by means other than cash. Bruce Malcolm Malcolm could give him the names of some nonunion averred that it was Cochell who asked to be paid in cash and both he and contractors. Seabury also said that he was not interested Billy C. Malcolm denied that Billy C. Malcolm said anything about the i raiigayn h urnl a otat il means of paymentfroe. B Cr"g a one who currently had a contract. Billy colm impressed me as being candid witnesses with good memories. Co-. C. Malcolm gave Seabury the names of a number of con- chell's demeanor was less impressive and a number of internal inconsis-_ tractors including Bruce Malcolm. At that time Bruce tencies within his testimony and with regard to previous statements indi- Malcolm had already resigned from Malcolm Boring and cated that his memory was less than completely reliable. Where his testi- a uli sm qpen h e od e e e mony conflicts with that of Billy C. Malcolm and Bruce Malcolm, Ihe credit the Malcolms. began his business. The equipment was being built in a On one occasion a crew from Malcolm Boring took over work that had been performed by a crew from Bruce Malcolm, Inc. In that situa- Bruce Malcolm terminated his employment with Malcom Boring on lion, the prime contractor, Irish Construction Company, was put under or about August 1, 1979. Al that same time he resigned as officer and pressure from Local 12 to remove Bruce Malcolm, Inc.'s nonunion em-. director, although that resignation was not reduced to a written docu- ployees from the job. Irish Construction called Malcolm Boring with the ,ment until December 1, 1979. Bruce Malcolm is still listed as an individu- result that Malcolm Boring removed its subcontractor, Bruce Malcolm, al who is authorized to draw checks on a small cash account for Mal- Inc., from the job and completed the work with its own employees. That colm Boring. However, Bruce Malcolm credibly testified that he was left constituted a removal of a subcontractor rather than an interchange of on that account as a matter of inadvertence, that he had forgotten about employees. it, and that he did not draw checks on it. Bruce Malcolm acknowledges I Cochell testified that, in October 1979, he used a crane belonging to in his testimony that, in an affidavit he gave to the Board, he stated that Bruce Malcolm, Inc., while he was working for Malcolm Boring and his father bid jobs for him. He credibly testified that his affdavit was that, on various occasions, he saw Malcolm Boring's markings on trucks poorly worded, that his father did not actively bid jobs for him, and that used by Bruce Malcolm, Inc. However, I do not believe Cochell was re- when his father had overflow work that had been bid on, his father re- liable with regard to dates. Bruce Malcolm creditably testified that his quested him to take the job. lease of equipment to Malcolm Boring ended before he went into busi- to A, found above, the testimony of Cochell to the effect that Billy C. ness and that after he went into business his equipment had its own mark-. Malcolm directed Bruce Malcolm to pay cash for Cochell's services has ings. not been credited. MALCOLM BORING CO., INC. 603 location other than that of Malcolm Boring or B. C. agement, no centralization of labor relations, and no Malcolm. Sometime thereafter Billy C. Malcolm had a common ownership between Bruce Malcolm, Inc., and meeting at his house in which Seabury spoke to a either Malcolm Boring or B. C. Malcolm. There is a number of the contractors including Bruce Malcolm, Inc. family relationship and there is an arm's length contrac- Bruce Malcolm asked for suggestions from a number of tor-subcontractor relationship, but neither of those rela- people including his brother, his father, and Ralph tionships can form the basis for a finding of single em- Ayalla of A-I Boring Company. Ayalla was a business ployer. I find that Bruce Malcolm, Inc., is a separate em- acquaintance and competitor of Billy C. Malcolm and ployer and is not a single employer with Malcolm Billy C. Malcolm had asked him to give Bruce Malcolm Boring or B. C. Malcolm. suggestions. On September 21, 1979, Bruce Malcolm met In order to find that Bruce Malcolm, Inc., and NMU with Seabury and negotiated and executed a collective- violated the Act as alleged in the complaint, it is neccs- bargaining agreement. The contract was effective by its sary as a condition precedent to find that the Bruce Mal- terms from September 21, 1979, to September 20, 1980. colm, Inc., is a single employer with Malcolm Boring. David Frederick, an employee of Malcolm Boring, tes- The refusal- to-bargain allegation is predicated on the tified that, in late August or early September 1979, Billy proposition that Bruce Malcolm, Inc., had a bargaining C. Malcolm told him that he (Malcolm) had negotiated a obligation and a collective-bargaining contract with contract for Bruce Malcolm with NMU, that Bruce Mal- Local 12 because it was a single employer with Malcolm colm was going to try that union, and that B. C. Mal- Boring who did have such an obligation and contract. colm was considering signing with NMU or having his There is no allegation or proof that Bruce Malcolm, Inc., sons or other partners trying out the NMU if it worked as a separate employer had an obligation to bargain or with Bruce. Billy C. Malcolm denied that the conversa- honor a contract with Local 12. As the single-employer tion even took place. He denied that he told Frederick theory has not been established, the 8(a)5) refusal-to-bar- that he (Malcolm) had negotiated a contract for Bruce gain allegation against Bruce Malcolm, Inc., must be dis- Malcolm and he denied that he in fact negotiated such a missed. The allegations that Bruce Malcolm, Inc., violat- contract. As set forth above, I believe that Billy C. Mal- ed Section 8(a)(1), (2), and (3) and that NMU violated colm was a candid and credible witness. Frederick on Section 8(b)(l)(A) and (2) of the Act are predicated on the other hand, was not always candid. In a deposition the theory that Bruce Malcolm, Inc., and NMU entered he stated that in early summer of 1979, Bruce Malcolm into a collective bargaining agreement containing a told him that he (Bruce) intended to go into business for union-security clause at a time when Bruce Malcolm, himself. In his testimony at the hearing, Frederick denied Inc., had an obligation to bargain and honor a collective- any recollection of the conversation. He also testified bargaining agreement with Local 12. As Bruce Malcolm, that it first came to his attention in October 1979 that he Inc., did not have any such obligation toward Local 12, was not getting paid union scale for his work in the there is no showing that its contract with NMU was un- yard. By that time he had been working both in the field lawful." It follows that the 8(a)(1), (2), and (3) violations and the yard for a substantial period of time and it is dif- alleged against Bruce Malcolm, Inc., and the 8(b)(l)(A) ficult to believe that he was so unaware of his pay. As and (2) violation alleged against NMU must be dismissed. between Frederick and Billy C. Malcolm, I credit Billy D. The Scope ofhe Bargining nit C. Malcolm. In sum, I find that there was no centralized control of 1. The collective-bargaining contract and the labor relations between Bruce Malcolm, Inc., and Mal- practices thereunder colm Boring or B. C. Malcolm. Malcolm Boring was incorporated on July 31, 1961. d. Common ownership At that time and through the mid-1970's, Malcolm Bor- ing's work was limited to drilling bore holes and it em- As set forth above, Billy C. Malcolm and his wife own ployed only two classes of employees. One was the oper- Malcolm Boring and B. C. Malcolm. Bruce Malcolm has ator who ran the machinery and the other was a helper no financial interest in those concerns. Bruce Malcolm who assisted the operator. Also in the early days of its and his wife are the sole owners of Bruce Malcolm, Inc. operation, Malcolm Boring owned only a small amount Billy C. Malcolm and his wife have no financial interest of equipment and mostly small tools. Sometime in 1962, in Bruce Malcolm, Inc. In sum, there is no common on the advice of his accountant, Billy C. Malcolm split ownership, nor are there common officers, directors, or the business into two parts. He owned the equipment property. personally and leased it to the corporation. On March 1, 1962, Malcolm Boring entered into a 2. Analysis and conclusions short-form agreement with Local 12 under which they The principles of law set forth above in section B,2, agreed to be bound by the terms of the applicable mul- must be applied to the instant situation. The evidence es- tiemployer agreement and to any renewals and exten- tablishes that there is interrelation of operations, common sions thereof unless written notice was given 60 days management, common centralized labor relations, and prior to the termination of the applicable agreement. At common ownership between Malcolm Boring and B. C. the bottom of the short-term agreement were a number Malcolm. The conclusion follows that they are a single Malcolm. The conclusion follows that they are a single " It is noted that Bruce Malcolm, Inc., is an employer engaged primar- employer. The evidence is just as clear, however, that ily in the building and construction industry and that, therefore, the pre- there is no interrelation of operations, no common man- hire agreement is not in itself unlawful MALCOLM BORING CO., INC. 603 location other than that of Malcolm Boring or B. C. agement, no centralization of labor relations, and no Malcolm. Sometime thereafter Billy C. Malcolm had a common ownership between Bruce Malcolm, Inc., and meeting at his house in which Seabury spoke to a either Malcolm Boring or B. C. Malcolm. There is a number of the contractors including Bruce Malcolm, Inc. family relationship and there is an arm's length contrac- Bruce Malcolm asked for suggestions from a number of tor-subcontractor relationship, but neither of those rela- people including his brother, his father, and Ralph tionships can form the basis for a finding of single em- Ayalla of A-1 Boring Company. Ayalla was a business ployer. I find that Bruce Malcolm, Inc., is a separate em- acquaintance and competitor of Billy C. Malcolm and ployer and is not a single employer with Malcolm Billy C. Malcolm had asked him to give Bruce Malcolm Boring or B. C. Malcolm. suggestions. On September 21, 1979, Bruce Malcolm met In order to find that Bruce Malcolm, Inc., and NMU with Seabury and negotiated and executed a collective- violated the Act as alleged in the complaint, it is neccs- bargaining agreement. The contract was effective by its sary as a condition precedent to find that the Bruce Mal- terms from September 21, 1979, to September 20, 1980. colm, Inc., is a single employer with Malcolm Boring. David Frederick, an employee of Malcolm Boring, tes- The refusal- to-bargain allegation is predicated on the tified that, in late August or early September 1979, Billy proposition that Bruce Malcolm, Inc., had a bargaining C. Malcolm told him that he (Malcolm) had negotiated a obligation and a collective-bargaining contract with contract for Bruce Malcolm with NMU, that Bruce Mal- Local 12 because it was a single employer with Malcolm colm was going to try that union, and that B. C. Mal- Boring who did have such an obligation and contract. colm was considering signing with NMU or having his There is no allegation or proof that Bruce Malcolm, Inc., sons or other partners trying out the NMU if it worked as a separate employer had an obligation to bargain or with Bruce. Billy C. Malcolm denied that the conversa- hono' a contract with Local 12. As the single-employer tion even took place. He denied that he told Frederick theory has not been established, the 8(a)(5) refusal-to-bar- that he (Malcolm) had negotiated a contract for Bruce gain allegation against Bruce Malcolm, Inc., must be dis- Malcolm and he denied that he in fact negotiated such a miss e d . The allegations that Bruce Malcolm, Inc., violat- contract. As set forth above, I believe that Billy C. Mal- e d Section 8(a)(l), (2), and (3) and that NMU violated colm was a candid and credible witness. Frederick on Se c t ion 8(b)(l)(A) and (2) of the Act are predicated on the other hand, was not always candid. In a deposition th e theory that Bruce Malcolm, Inc., and NMU entered he stated that in early summer of 1979, Bruce Malcolm in to a collective bargaining agreement containing a told him that he (Bruce) intended to go into business for union-security clause at a time when Bruce Malcolm, himself. In his testimony at the hearing, Frederick denied I n c., had an obligation to bargain and honor a collective- any recollection of the conversation. He also testified bargaining agreement with Local 12. As Bruce Malcolm, that it first came to his attention in October 1979 that he I n c ., d id not have any such obligation toward Local 12, was not getting paid union scale for his work in the t h e r e is n o s h o w ing that its contract with NMU was un- yard. By that time he had been working both in the field law f u l. I I t fo ll o w s t ha t t h e 8( aX 1), ( 2 ), a n d ( 3) violat io ns and the yard for a substantial period of time and it is dif- alleged against Bruce Malcolm, Inc., and the 8(b)(l)(A) ficult to believe that he was so unaware of his pay. As an d (2) violation alleged against NMU must be dismissed. between Frederick and Billy C. Malcolm, I credit Billy D. The Scope ofthe Bargaining Unit C. Malcolm. In sum, I find that there was no centralized control of 1. The collective-bargaining contract and the labor relations between Bruce Malcolm, Inc., and Mal- practices thereunder colm Boring or B. C. Malcolm.. , _. .. ,,, -, Malcolm Boring was incorporated on July 31, 1961. d. Common ownership A t t h a t t im e and through the mid-1970's, Malcolm Bor- ing's work was limited to drilling bore holes and it em- As set forth above, Billy C. Malcolm and his wife own ployed only two classes of employees. One was the oper- Malcolm Boring and B. C. Malcolm. Bruce Malcolm has ator who ran the machinery and the other was a helper no financial interest in those concerns. Bruce Malcolm who assisted the operator. Also in the early days of its and his wife are the sole owners of Bruce Malcolm, Inc. operation, Malcolm Boring owned only a small amount Billy C. Malcolm and his wife have no financial interest of equipment and mostly small tools. Sometime in 1962, in Bruce Malcolm, Inc. In sum, there is no common on the advice of his accountant, Billy C. Malcolm split ownership, nor are there common officers, directors, or the business into two parts. He owned the equipment property. personally and leased it to the corporation. On March 1, 1962, Malcolm Boring entered into a 2. Analysis and conclusions short-form agreement with Local 12 under which they The principles of law set forth above in section B,2, agreed to be bound by the terms of the applicable mul- must be applied to the instant situation. The evidence es- tiemployer agreement and to any renewals and exten- tablishes that there is interrelation of operations, common sio n s th e r eo f un l ess written notice was given 60 days management, common centralized labor relations, and prior t o t h e termination of the applicable agreement. At common ownership between Malcolm Boring and B. C. the bottom of the short-term agreement were a number Malcolm. The conclusion follows that they are a single---- Malcolm. The conclsoflwstt t he, , y are a, single " It is noted that Bruce Malcolm, Inc., is an employer engaged primar- employer. The evidence is just as clear, however, that ,ily in the building and construction industry and that, therefore, the pre- there is no interrelation of operations, no common man- hire agreement is not in itself unlawful MALCOLM BORING CO., INC. 603 location other than that of Malcolm Boring or B. C. agement, no centralization of labor relations, and no Malcolm. Sometime thereafter Billy C. Malcolm had a common ownership between Bruce Malcolm, Inc., and meeting at his house in which Seabury spoke to a either Malcolm Boring or B. C. Malcolm. There is a number of the contractors including Bruce Malcolm, Inc. family relationship and there is an arm's length contrac- Bruce Malcolm asked for suggestions from a number of tor-subcontractor relationship, but neither of those rela- people including his brother, his father, and Ralph tionships can form the basis for a finding of single em- Ayalla of A-1 Boring Company. Ayalla was a business ployer. I find that Bruce Malcolm, Inc., is a separate em- acquaintance and competitor of Billy C. Malcolm and ployer and is not a single employer with Malcolm Billy C. Malcolm had asked him to give Bruce Malcolm Boring or B. C. Malcolm. suggestions. On September 21, 1979, Bruce Malcolm met In order to find that Bruce Malcolm, Inc., and NMU with Seabury and negotiated and executed a collective- violated the Act as alleged in the complaint, it is neccs- bargaining agreement. The contract was effective by its sary as a condition precedent to find that the Bruce Mal- terms from September 21, 1979, to September 20, 1980. colm, Inc., is a single employer with Malcolm Boring. David Frederick, an employee of Malcolm Boring, tes- The refusal- to-bargain allegation is predicated on the tified that, in late August or early September 1979, Billy proposition that Bruce Malcolm, Inc., had a bargaining C. Malcolm told him that he (Malcolm) had negotiated a obligation and a collective-bargaining contract with contract for Bruce Malcolm with NMU, that Bruce Mal- Local 12 because it was a single employer with Malcolm colm was going to try that union, and that B. C. Mal- Boring who did have such an obligation and contract. colm was considering signing with NMU or having his There is no allegation or proof that Bruce Malcolm, Inc., sons or other partners trying out the NMU if it worked as a separate employer had an obligation to bargain or with Bruce. Billy C. Malcolm denied that the conversa- hono' a contract with Local 12. As the single-employer tion even took place. He denied that he told Frederick theory has not been established, the 8(a)(5) refusal-to-bar- that he (Malcolm) had negotiated a contract for Bruce gain allegation against Bruce Malcolm, Inc., must be dis- Malcolm and he denied that he in fact negotiated such a miss e d . The allegations that Bruce Malcolm, Inc., violat- contract. As set forth above, I believe that Billy C. Mal- e d Section 8(a)(l), (2), and (3) and that NMU violated colm was a candid and credible witness. Frederick on Se c t ion 8(b)(l)(A) and (2) of the Act are predicated on the other hand, was not always candid. In a deposition th e theory that Bruce Malcolm, Inc., and NMU entered he stated that in early summer of 1979, Bruce Malcolm in to a collective bargaining agreement containing a told him that he (Bruce) intended to go into business for union-security clause at a time when Bruce Malcolm, himself. In his testimony at the hearing, Frederick denied I n c., had an obligation to bargain and honor a collective- any recollection of the conversation. He also testified bargaining agreement with Local 12. As Bruce Malcolm, that it first came to his attention in October 1979 that he I n c ., d id not have any such obligation toward Local 12, was not getting paid union scale for his work in the t h e r e is n o s h o w ing that its contract with NMU was un- yard. By that time he had been working both in the field law f u l. I I t fo ll o w s t ha t t h e 8( aX 1), ( 2 ), a n d ( 3) violat io ns and the yard for a substantial period of time and it is dif- alleged against Bruce Malcolm, Inc., and the 8(b)(l)(A) ficult to believe that he was so unaware of his pay. As an d (2) violation alleged against NMU must be dismissed. between Frederick and Billy C. Malcolm, I credit Billy D. The Scope ofthe Bargaining Unit C. Malcolm. In sum, I find that there was no centralized control of 1. The collective-bargaining contract and the labor relations between Bruce Malcolm, Inc., and Mal- practices thereunder colm Boring or B. C. Malcolm.. , _. .. ,,, -, Malcolm Boring was incorporated on July 31, 1961. d. Common ownership A t that t im e and through the mid-1970's, Malcolm Bor- ing's work was limited to drilling bore holes and it em- As set forth above, Billy C. Malcolm and his wife own ployed only two classes of employees. One was the oper- Malcolm Boring and B. C. Malcolm. Bruce Malcolm has ator who ran the machinery and the other was a helper no financial interest in those concerns. Bruce Malcolm who assisted the operator. Also in the early days of its and his wife are the sole owners of Bruce Malcolm, Inc. operation, Malcolm Boring owned only a small amount Billy C. Malcolm and his wife have no financial interest of equipment and mostly small tools. Sometime in 1962, in Bruce Malcolm, Inc. In sum, there is no common on the advice of his accountant, Billy C. Malcolm split ownership, nor are there common officers, directors, or the business into two parts. He owned the equipment property. personally and leased it to the corporation. On March 1, 1962, Malcolm Boring entered into a 2. Analysis and conclusions short-form agreement with Local 12 under which they The principles of law set forth above in section B,2, agreed to be bound by the terms of the applicable mul- must be applied to the instant situation. The evidence es- tiemployer agreement and to any renewals and exten- tablishes that there is interrelation of operations, common sio n s th e r eo f un l ess written notice was given 60 days management, common centralized labor relations, and prior t o t h e termination of the applicable agreement. At common ownership between Malcolm Boring and B. C. the bottom of the short-term agreement were a number Malcolm. The conclusion follows that they are a single---- Malcolm. The conclsoflwstt t he, , y are a, single " It is noted that Bruce Malcolm, Inc., is an employer engaged primar- employer. The evidence is just as clear, however, that ,ily in the building and construction industry and that, therefore, the pre- there is no interrelation of operations, no common man- hire agreement is not in itself unlawful MALCOLM BORING CO., INC. 603 location other than that of Malcolm Boring or B. C. agement, no centralization of labor relations, and no Malcolm. Sometime thereafter Billy C. Malcolm had a common ownership between Bruce Malcolm, Inc., and meeting at his house in which Seabury spoke to a either Malcolm Boring or B. C. Malcolm. There is a number of the contractors including Bruce Malcolm, Inc. family relationship and there is an arm's length contrac- Bruce Malcolm asked for suggestions from a number of tor-subcontractor relationship, but neither of those rela- people including his brother, his father, and Ralph tionships can form the basis for a finding of single em- Ayalla of A-1 Boring Company. Ayalla was a business ployer. I find that Bruce Malcolm, Inc., is a separate em- acquaintance and competitor of Billy C. Malcolm and ployer and is not a single employer with Malcolm Billy C. Malcolm had asked him to give Bruce Malcolm Boring or B. C. Malcolm. suggestions. On September 21, 1979, Bruce Malcolm met In order to find that Bruce Malcolm, Inc., and NMU with Seabury and negotiated and executed a collective- violated the Act as alleged in the complaint, it is neccs- bargaining agreement. The contract was effective by its sary as a condition precedent to find that the Bruce Mal- terms from September 21, 1979, to September 20, 1980. colm, Inc., is a single employer with Malcolm Boring. David Frederick, an employee of Malcolm Boring, tes- The refusal- to-bargain allegation is predicated on the tified that, in late August or early September 1979, Billy proposition that Bruce Malcolm, Inc., had a bargaining C. Malcolm told him that he (Malcolm) had negotiated a obligation and a collective-bargaining contract with contract for Bruce Malcolm with NMU, that Bruce Mal- Local 12 because it was a single employer with Malcolm colm was going to try that union, and that B. C. Mal- Boring who did have such an obligation and contract. colm was considering signing with NMU or having his There is no allegation or proof that Bruce Malcolm, Inc., sons or other partners trying out the NMU if it worked as a separate employer had an obligation to bargain or with Bruce. Billy C. Malcolm denied that the conversa- hono' a contract with Local 12. As the single-employer tion even took place. He denied that he told Frederick theory has not been established, the 8(a)(5) refusal-to-bar- that he (Malcolm) had negotiated a contract for Bruce gain allegation against Bruce Malcolm, Inc., must be dis- Malcolm and he denied that he in fact negotiated such a missed. The allegations that Bruce Malcolm, Inc., violat- contract. As set forth above, I believe that Billy C. Mal- e d Section 8(a)(l), (2), and (3) and that NMU violated colm was a candid and credible witness. Frederick on Se c t ion 8(b)(l)(A) and (2) of the Act are predicated on the other hand, was not always candid. In a deposition the theory that Bruce Malcolm, Inc., and NMU entered he stated that in early summer of 1979, Bruce Malcolm in to a collective bargaining agreement containing a told him that he (Bruce) intended to go into business for union-security clause at a time when Bruce Malcolm, himself. In his testimony at the hearing, Frederick denied I n c., had an obligation to bargain and honor a collective- any recollection of the conversation. He also testified bargaining agreement with Local 12. As Bruce Malcolm, that it first came to his attention in October 1979 that he I nc ., d id n o t have any such obligation toward Local 12, was not getting paid union scale for his work in the t h e r e is n o s h o w ing that its contract with NMU was un- yard. By that time he had been working both in the field lawful. I It follows that the 8(aX1), (2), and (3) violations and the yard for a substantial period of time and it is dif- alleged against Bruce Malcolm, Inc., and the 8(b)(l)(A) ficult to believe that he was so unaware of his pay. As an d (2) violation alleged against NMU must be dismissed. between Frederick and Billy C. Malcolm, I credit Billy D. The Scope ofthe Bargaining Unit C. Malcolm. In sum, I find that there was no centralized control of 1. The collective-bargaining contract and the labor relations between Bruce Malcolm, Inc., and Mal- practices thereunder colm Boring or B. C. Malcolm.. , _. .. ,,, -, Malcolm Boring was incorporated on July 31, 1961. d. Common ownership A t that time and through the mid-1970's, Malcolm Bor- ing's work was limited to drilling bore holes and it em- As set forth above, Billy C. Malcolm and his wife own ployed only two classes of employees. One was the oper- Malcolm Boring and B. C. Malcolm. Bruce Malcolm has ator who ran the machinery and the other was a helper no financial interest in those concerns. Bruce Malcolm who assisted the operator. Also in the early days of its and his wife are the sole owners of Bruce Malcolm, Inc. operation, Malcolm Boring owned only a small amount Billy C. Malcolm and his wife have no financial interest of equipment and mostly small tools. Sometime in 1962, in Bruce Malcolm, Inc. In sum, there is no common on the advice of his accountant, Billy C. Malcolm split ownership, nor are there common officers, directors, or the business into two parts. He owned the equipment property. personally and leased it to the corporation. On March 1, 1962, Malcolm Boring entered into a 2. Analysis and conclusions short-form agreement with Local 12 under which they The principles of law set forth above in section B,2, agreed to be bound by the terms of the applicable mul- must be applied to the instant situation. The evidence es- tiemployer agreement and to any renewals and exten- tablishes that there is interrelation of operations, common sio n s th e r eo f un l ess written notice was given 60 days management, common centralized labor relations, and prior t o t h e termination of the applicable agreement. At common ownership between Malcolm Boring and B. C. the bottom of the short-term agreement were a number Malcolm. The conclusion follows that they are a single---- Malcolm. The conclsoflwstt t he, , y are a, single " It is noted that Bruce Malcolm, Inc., is an employer engaged primar- employer. The evidence is just as clear, however, that ,ily in the building and construction industry and that, therefore, the pre- there is no interrelation of operations, no common man- hire agreement is not in itself unlawful 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of boxes indicating what type of agreement was intend- The next master labor agreement was from July 1, ed. The box next to "construction" was checked. The 1965, to July 1, 1969. Malcolm Boring was bound by box next to "shop" was left blank. The master labor that agreement under the terms of the short-form agree- agreement to which the parties bound themselves was ment that it signed in 1962. The work covered by that the Southern California General Contractors and Local contract was substantially the same as that covered in 12 agreement which ran from June 15, 1962, to June 1, the previous contract. It specifically mentioned work in 1965. A covering letter from the Union, as well as the the contractors' yards and shops, which was performed language of the contract, made it clear that the contract on equipment operated by employees covered by the covered the Los Angeles, but not the San Diego, area. agreement. During the term of that contract, B. C. Mal- The master labor agreement was between a number of colm still did not have a yard and employees on the pay- different contractor associations and Local 12. By its roll. Malcolm Boring continued to "put people in the terms, it covered all work within the geographical area Union" when they reached a certain degree of proficien- of the contract falling within the recognized jurisdiction cy at which time they were paid contract rates and bene- of Local 12. The coverage clause of the contract stated fits. that it would cover not only a great number of specified The situation remained substantially unchanged until types of work, but also "work in the contractors' yards, the master labor agreement of July 1, 1974, to July 1, and shops which is performed on equipment operated by 1977.15 employees covered by this Agreement." Although Billy Malcolm Boring was bound by that master labor C. Malcolm owned the equipment and B. C. Malcolm agreement through its execution of the 1962 short-form was in existence, B. C. Malcolm did not have any pay- agreement. At that time, Malcolm Boring had not yet roll. No payroll was set up for B. C. Malcolm until 1976. given any notice of cancellation. The new master agree- ment had some changes with regard to the unit, but it When Malcolm Boring signed the short-form agree- continued to include work in the contrators' yards and ment in 1962, none of its employees was a member of shops Local 12. Within a week after the signing two employees During the terms of the new contract, Malcolm Bor- Joined the years MUni colm Boring hadconsion.'erable l - ing's business was expanded. Before that time, Malcolm Over the years Malcolm Boring had considerable diffi- Boring restricted its work to the drilling of the bore culty in obtaining skilled workmen through the Union's holes. During this period the work expanded to include hiring hall. As a result Malcolm Boring hired unskilled the digging of pits from which the bores were made, the employees and trained them. Under the practice that de- putting of pipes in the holes, and various filling oper- veloped the unskilled employees were not entitled to join ations. Malcolm Boring began to use more unskilled the Union and were not covered by the union contract. labor than it previously had. While there had only been The general practice was for Malcolm Boring to train two classes of employees (operators and operators' help- the inexperienced men for about 2 years. When an em- ers) there was added a third classification of unskilled la- ployee reached certain degree of proficiency, Billy C. borers. As a result, sometime in 1977 Local 12 insisted Malcolm went to Local 12 and sought to have the Union that Malcolm Boring sign a contract with the Laborers accept the employee into membership.' 3 When an em- Union. Malcolm Boring signed such a contract. Some ployee became sufficiently skilled, he was brought into problems were presented because many classifications the Union and became eligible for the wages and benefits overlapped in both the laborers and Local 12 contracts. set forth in the contract. Billy C. Malcolm credibly testi- Prior to the Laborers contract Malcolm Boring hired un- flied that his experience was that, from 1962 until 1977 or skilled men who remained nonunion until they were 78, the Union only took skilled operators into member- qualified, at which time they would be taken into Local ship and that he had to practically fight on a number of 12 and treated as operators under the union scale. After occasions in order to get the Union to take someone into Malcolm Boring signed the Laborers contract, it recruit- membership. At the point that an employee joined the ed employees from the Laborers Union. 6 When those Union, he was considered a skilled helper and as such employees became sufficiently trained, they were made was entitled to coverage by the contract." operators and switched to Local 12. Basically there were three classes of employees. The first was the unskilled " The record is unclear as to how many employees Malcolm Boring worker, who was primarily hired for muscle power. The had at that time. At one point in this testimony, Billy C. Malcolm averred that those were the only two employees he had. Shortly thereaf- second was the semiskilled helper, who assisted the oper- ter, he averred that he usually had four or five employees during the ator, and the third was the skilled operator. The Labor- early part of his operations. Still later he averred that he did not remem- ers union claimed jurisdiction over the unskilled worker, ber exactly how many employees he had at the time he signed the Local Local 12 claimed jurisdiction over the operators, and 12 contract but, normally at that period, he had two boring machines and both Unions had arguable claims for jurisdiction over the each machine took two employees to run it. He averred that to the best of his recollection he had four men working at that time, but he did not helpers. remember how skilled or unskilled two of them were. Before January 1976 the repair and maintenance work 's David Frederick credibly testified that at a certain point in his em- on equipment used by Malcolm Boring was performed ployment Billy C. Malcolm asked him whether he would like to join the on a more or less hit-and-miss basis. Some of it was Union and, when he said that he would, Billy C. Malcolm took care of it and he became a member. farmed out to other employers and some of it was done 1" On one occasion Local 12 demanded that there be a certain number of operating engineers on a job and insisted that two men who were per- "5 That was the next contract that was put into evidence. forming laborers' work at that time join Local 12. Two of the men did 16 In addition to hiring employees from the Laborers Union, Malcolm join Local 12. Boring also hired some nonunion employees at particular jobsites. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of boxes indicating what type of agreement was intend- The next master labor agreement was from July 1, ed. The box next to "construction" was checked. The 1965, to July 1, 1969, Malcolm Boring was bound by box next to "shop" was left blank. The master labor that agreement under the terms of the short-form agree- agreement to which the parties bound themselves was ment that it signed in 1962. The work covered by that the Southern California General Contractors and Local contract was substantially the same as that covered in 12 agreement which ran from June 15, 1962, to June 1, the previous contract. It specifically mentioned work in 1965. A covering letter from the Union, as well as the the contractors' yards and shops, which was performed language of the contract, made it clear that the contract on equipment operated by employees covered by the covered the Los Angeles, but not the San Diego, area. agreement. During the term of that contract, B. C. Mal- The master labor agreement was between a number of colm still did not have a yard and employees on the pay- different contractor associations and Local 12. By its roll. Malcolm Boring continued to "put people in the terms, it covered all work within the geographical area Union" when they reached a certain degree of proficien- of the contract falling within the recognized jurisdiction cy at which time they were paid contract rates and bene- of Local 12. The coverage clause of the contract stated fits. that it would cover not only a great number of specified The situation remained substantially unchanged until types of work, but also "work in the contractors' yards, the master labor agreement of July 1, 1974, to July 1, and shops which is performed on equipment operated by 1977.15 employees covered by this Agreement." Although Billy Malcolm Boring was bound by that master labor C. Malcolm owned the equipment and B. C. Malcolm agreement through its execution of the 1962 short-form was in existence, B. C. Malcolm did not have any pay- agreement. At that time, Malcolm Boring had not yet roll. No payroll was set up for B. C. Malcolm until 1976 given any notice of cancellation. The new master agree- WhenMalclm Bringsiged te shrt-frm 76.e ment had some changes with regard to the unit, but it Whet n Malcolm Boring signed the short-form agree- continued to include work in the contractors' yards and mentin 162, oneof is emloyes ws a embe of shops. Local 12. Within a week after the signing two employees joined the Union. 12 ~~~~During the terms of the new contract, Malcolm Bor- Overtheyeas Mlcom Bringhadconideabl difl- ing's business was expanded. Before that time, Malcolm Overtheyeas Mlcom Bringhadconideabl difi- Boring restricted its work to the drilling of the bore culty in obtaining skilled workmen through the Union's holes. During this period the work expanded to include hiring hall. As a result Malcolm Boring hired unskilled the digging of pits from which the bores were made, the employees and trained them. Under the practice that de- putting of pipes in the holes, and various filling oper- veloped the unskilled employees were not entitled to join ations. Malcolm Boring began to use more unskilled the Union and were not covered by the union contract. labor than it previously had. While there had only been The general practice was for Malcolm Boring to train two classes of employees (operators and operators' help- the inexperienced men for about 2 years. When an em- ers) there was added a third classification of unskilled la- ployee reached certain degree of proficiency, Billy C. borers. As a result, sometime in 1977 Local 12 insisted Malcolm went to Local 12 and sought to have the Union that Malcolm Boring sign a contract with the Laborers accept the employee into membership. 13 When an em- Union. Malcolm Boring signed such a contract. Some ployee became sufficiently skilled, he was brought into problems were presented because many classifications the Union and became eligible for the wages and benefits overlapped in both the laborers and Local 12 contracts. set forth in the contract. Billy C. Malcolm credibly testi- Prior to the Laborers contract Malcolm Boring hired un- fied that his experience was that, from 1962 until 1977 or skilled men who remained nonunion until they were 78, the Union only took skilled operators into member- qualified, at which time they would be taken into Local ship and that he had to practically fight on a number of 12 and treated as operators under the union scale. After occasions in order to get the Union to take someone into Malcolm Boring signed the Laborers contract, it recruit- membership. At the point that an employee joined the ed employees from the Laborers Union.", When those Union, he was considered a skilled helper and as such employees became sufficiently trained, they were made was entitled to coverage by the contract." operators and switched to Local 12. Basically there were three classes of employees. The first was the unskilled 1The record is unclear as to how many employees Malcolm Boring worker, who was primarily hired for muscle power. The had at that time. At one point in this testimony, Billy C. Malcolm eo w t smkil hpr h aitd e e- averred that those were the only two employees he had. Shortly thereaf- seodwsteemkildhprhoaitdteoe- ter, he averred that he usually had four or rive employees during the ator, a~nd the third was the skilled operator. The Labor- early part of his operations. Still later he averred that he did not remem- ers union claimed jurisdiction over the unskilled worker, ber exactly how many employees he had at the time he signed the Local Local 12 claimed jurisdiction over the operators, and 12 contract but, normally at that period, he had two boring machines and both Unions had arguable claims for jurisdiction over the each machine took two employees to run it. He averred that to the best of his recollection he had four men working at that time, but he did not helpers. remember how skilled or unskilled two of them were. Before January 1976 the repair and maintenance work 'SDavid Frederick credibly testified that at a certain point in his em on equipment used by Malcolm Boring was performed ployment Billy C. Malcolm asked him whether he would like to join the on a more or less hit-and-miss basis. Some of it was Union and, when he said that he would, Billy C. Malcolm took care of it and he became a member. farmed out to other employers and some of it was done 11 On one occasion Local 12 demanded that there be a certain number of operating engineers on a job and insisted that two men who were per- 16That was the next contract that was put into evidence. forming laborers' work at that time join Local 12. Two of the men did 16In addition to hiring employees from the Laborers Union, Malcolm join Local 12. Boring also hired some nonunion employees at particular jobsites. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of boxes indicating what type of agreement was intend- The next master labor agreement was from July 1, ed. The box next to "construction" was checked. The 1965, to July 1, 1969, Malcolm Boring was bound by box next to "shop" was left blank. The master labor that agreement under the terms of the short-form agree- agreement to which the parties bound themselves was ment that it signed in 1962. The work covered by that the Southern California General Contractors and Local contract was substantially the same as that covered in 12 agreement which ran from June 15, 1962, to June 1, the previous contract. It specifically mentioned work in 1965. A covering letter from the Union, as well as the the contractors' yards and shops, which was performed language of the contract, made it clear that the contract on equipment operated by employees covered by the covered the Los Angeles, but not the San Diego, area. agreement. During the term of that contract, B. C. Mal- The master labor agreement was between a number of colm still did not have a yard and employees on the pay- different contractor associations and Local 12. By its roll. Malcolm Boring continued to "put people in the terms, it covered all work within the geographical area Union" when they reached a certain degree of proficien- of the contract falling within the recognized jurisdiction cy at which time they were paid contract rates and bene- of Local 12. The coverage clause of the contract stated fits. that it would cover not only a great number of specified The situation remained substantially unchanged until types of work, but also "work in the contractors' yards, the master labor agreement of July 1, 1974, to July 1, and shops which is performed on equipment operated by 1977.15 employees covered by this Agreement." Although Billy Malcolm Boring was bound by that master labor C. Malcolm owned the equipment and B. C. Malcolm agreement through its execution of the 1962 short-form was in existence, B. C. Malcolm did not have any pay- agreement. At that time, Malcolm Boring had not yet roll. No payroll was set up for B. C. Malcolm until 1976 given any notice of cancellation. The new master agree- WhenMalclm Bringsiged te shrt-frm 76.e ment had some changes with regard to the unit, but it Whet n Malcolm Boring signed the short-form agree- continued to include work in the contractors' yards and mentin 162, oneof is emloyes ws a embe of shops. Local 12. Within a week after the signing two employees joined the Union. 12 ~~~~During the terms of the new contract, Malcolm Bor- Overtheyeas Mlcom Bringhadconideabl difl- ing's business was expanded. Before that time, Malcolm Overtheyeas Mlcom Bringhadconideabl difi- Boring restricted its work to the drilling of the bore culty in obtaining skilled workmen through the Union's holes. During this period the work expanded to include hiring hall. As a result Malcolm Boring hired unskilled the digging of pits from which the bores were made, the employees and trained them. Under the practice that de- putting of pipes in the holes, and various filling oper- veloped the unskilled employees were not entitled to join ations. Malcolm Boring began to use more unskilled the Union and were not covered by the union contract. labor than it previously had. While there had only been The general practice was for Malcolm Boring to train two classes of employees (operators and operators' help- the inexperienced men for about 2 years. When an em- ers) there was added a third classification of unskilled la- ployee reached certain degree of proficiency, Billy C. borers. As a result, sometime in 1977 Local 12 insisted Malcolm went to Local 12 and sought to have the Union that Malcolm Boring sign a contract with the Laborers accept the employee into membership. 13 When an em- Union. Malcolm Boring signed such a contract. Some ployee became sufficiently skilled, he was brought into problems were presented because many classifications the Union and became eligible for the wages and benefits overlapped in both the laborers and Local 12 contracts. set forth in the contract. Billy C. Malcolm credibly testi- Prior to the Laborers contract Malcolm Boring hired un- fied that his experience was that, from 1962 until 1977 or skilled men who remained nonunion until they were 78, the Union only took skilled operators into member- qualified, at which time they would be taken into Local ship and that he had to practically fight on a number of 12 and treated as operators under the union scale. After occasions in order to get the Union to take someone into Malcolm Boring signed the Laborers contract, it recruit- membership. At the point that an employee joined the ed employees from the Laborers Union.", When those Union, he was considered a skilled helper and as such employees became sufficiently trained, they were made was entitled to coverage by the contract." operators and switched to Local 12. Basically there were three classes of employees. The first was the unskilled 1The record is unclear as to how many employees Malcolm Boring worker, who was primarily hired for muscle power. The had at that time. At one point in this testimony, Billy C. Malcolm eo w t smkil hpr h aitd e e- averred that those were the only two employees he had. Shortly thereaf- seodwsteemkildhprhoaitdteoe- ter, he averred that he usually had four or rive employees during the ator, a~nd the third was the skilled operator. The Labor- early part of his operations. Still later he averred that he did not remem- ers union claimed jurisdiction over the unskilled worker, ber exactly how many employees he had at the time he signed the Local Local 12 claimed jurisdiction over the operators, and 12 contract but, normally at that period, he had two boring machines and both Unions had arguable claims for jurisdiction over the each machine took two employees to run it. He averred that to the best of his recollection he had four men working at that time, but he did not helpers. remember how skilled or unskilled two of them were. Before January 1976 the repair and maintenance work 'SDavid Frederick credibly testified that at a certain point in his em on equipment used by Malcolm Boring was performed ployment Billy C. Malcolm asked him whether he would like to join the on a more or less hit-and-miss basis. Some of it was Union and, when he said that he would, Billy C. Malcolm took care of it and he became a member. farmed out to other employers and some of it was done 11 On one occasion Local 12 demanded that there be a certain number of operating engineers on a job and insisted that two men who were per- 16That was the next contract that was put into evidence. forming laborers' work at that time join Local 12. Two of the men did 16In addition to hiring employees from the Laborers Union, Malcolm join Local 12. Boring also hired some nonunion employees at particular jobsites. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of boxes indicating what type of agreement was intend- The next master labor agreement was from July 1, ed. The box next to "construction" was checked. The 1965, to July 1, 1969, Malcolm Boring was bound by box next to "shop" was left blank. The master labor that agreement under the terms of the short-form agree- agreement to which the parties bound themselves was ment that it signed in 1962. The work covered by that the Southern California General Contractors and Local contract was substantially the same as that covered in 12 agreement which ran from June 15, 1962, to June 1, the previous contract. It specifically mentioned work in 1965. A covering letter from the Union, as well as the the contractors' yards and shops, which was performed language of the contract, made it clear that the contract on equipment operated by employees covered by the covered the Los Angeles, but not the San Diego, area. agreement. During the term of that contract, B. C. Mal- The master labor agreement was between a number of colm still did not have a yard and employees on the pay- different contractor associations and Local 12. By its roll. Malcolm Boring continued to "put people in the terms, it covered all work within the geographical area Union" when they reached a certain degree of proficien- of the contract falling within the recognized jurisdiction cy at which time they were paid contract rates and bene- of Local 12. The coverage clause of the contract stated fits. that it would cover not only a great number of specified The situation remained substantially unchanged until types of work, but also "work in the contractors' yards, the master labor agreement of July 1, 1974, to July 1, and shops which is performed on equipment operated by 1977.15 employees covered by this Agreement." Although Billy Malcolm Boring was bound by that master labor C. Malcolm owned the equipment and B. C. Malcolm agreement through its execution of the 1962 short-form was in existence, B. C. Malcolm did not have any pay- agreement. At that time, Malcolm Boring had not yet roll. No payroll was set up for B. C. Malcolm until 1976 given any notice of cancellation. The new master agree- WhenMalclm Bringsiged te shrt-frm 76.e ment had some changes with regard to the unit, but it Whet n Malcolm Boring signed the short-form agree- continued to include work in the contractors' yards and mentin 162, oneof is emloyes ws a embe of shops. Local 12. Within a week after the signing two employees joined the Union. 12 ~~~~During the terms of the new contract, Malcolm Bor- Overtheyeas Mlcom Bringhadconideabl difl- ing's business was expanded. Before that time, Malcolm Overtheyeas Mlcom Bringhadconideabl difi- Boring restricted its work to the drilling of the bore culty in obtaining skilled workmen through the Union's holes. During this period the work expanded to include hiring hall. As a result Malcolm Boring hired unskilled the digging of pits from which the bores were made, the employees and trained them. Under the practice that de- putting of pipes in the holes, and various filling oper- veloped the unskilled employees were not entitled to join ations. Malcolm Boring began to use more unskilled the Union and were not covered by the union contract. labor than it previously had. While there had only been The general practice was for Malcolm Boring to train two classes of employees (operators and operators' help- the inexperienced men for about 2 years. When an em- ers) there was added a third classification of unskilled la- ployee reached certain degree of proficiency, Billy C. borers. As a result, sometime in 1977 Local 12 insisted Malcolm went to Local 12 and sought to have the Union that Malcolm Boring sign a contract with the Laborers accept the employee into membership. 13 When an em- Union. Malcolm Boring signed such a contract. Some ployee became sufficiently skilled, he was brought into problems were presented because many classifications the Union and became eligible for the wages and benefits overlapped in both the laborers and Local 12 contracts. set forth in the contract. Billy C. Malcolm credibly testi- Prior to the Laborers contract Malcolm Boring hired un- fied that his experience was that, from 1962 until 1977 or skilled men who remained nonunion until they were 78, the Union only took skilled operators into member- qualified, at which time they would be taken into Local ship and that he had to practically fight on a number of 12 and treated as operators under the union scale. After occasions in order to get the Union to take someone into Malcolm Boring signed the Laborers contract, it recruit- membership. At the point that an employee joined the ed employees from the Laborers Union.", When those Union, he was considered a skilled helper and as such employees became sufficiently trained, they were made was entitled to coverage by the contract." operators and switched to Local 12. Basically there were three classes of employees. The first was the unskilled 1The record is unclear as to how many employees Malcolm Boring worker, who was primarily hired for muscle power. The had at that time. At one point in this testimony, Billy C. Malcolm eo w t smkil hpr h aitd e e- averred that those were the only two employees he had. Shortly thereaf- seodwsteemkildhprhoaitdteoe- ter, he averred that he usually had four or rive employees during the ator, a~nd the third was the skilled operator. The Labor- early part of his operations. Still later he averred that he did not remem- ers union claimed jurisdiction over the unskilled worker, ber exactly how many employees he had at the time he signed the Local Local 12 claimed jurisdiction over the operators, and 12 contract but, normally at that period, he had two boring machines and both Unions had arguable claims for jurisdiction over the each machine took two employees to run it. He averred that to the best of his recollection he had four men working at that time, but he did not helpers. remember how skilled or unskilled two of them were. Before January 1976 the repair and maintenance work 'SDavid Frederick credibly testified that at a certain point in his em on equipment used by Malcolm Boring was performed ployment Billy C. Malcolm asked him whether he would like to join the on a more or less hit-and-miss basis. Some of it was Union and, when he said that he would, Billy C. Malcolm took care of it and he became a member. farmed out to other employers and some of it was done 11 On one occasion Local 12 demanded that there be a certain number of operating engineers on a job and insisted that two men who were per- 16That was the next contract that was put into evidence. forming laborers' work at that time join Local 12. Two of the men did 16In addition to hiring employees from the Laborers Union, Malcolm join Local 12. Boring also hired some nonunion employees at particular jobsites. MALCOLM BORING CO., INC. 605 by members of the Malcolm family. 17 In some cases, em- this agreement." Article I,B,5, stated, "This agreement ployees were hired and put on the payroll. Most of the shall cover and apply to all work falling within the rec- work was done by Ralph Ayalla, who had his own ognized jurisdiction of the Unions signatory to this welding shop and billed Malcolm Boring for the work. agreement." There followed three subparagraphs de- The situation changed in 1976 when B. C. Malcolm set scribing the work covered. Subparagraph (a) provided: up its own payroll. At that time, Billy C. Malcolm in- , tended to try to sell some of his boring equipment and to a engineering construction, including the con- take his sons in as partners. His plans did not work for a struction in i in oeent number of reasons including the fact that his sons wantedstruc of, in e r in art to go into business on their own. From then on, B. C.or odifiation thereo including any structure or Malcolm had employees of its own, who worked at theoperations which are incidental thereto, the assem- B. C. Malcolm shop. The work those employees per- bly, operation, maintenance and repair of all equip- B. C. Malcolm shop. The work those employees per- formed was substantially different from the work per-ment, vehcles andother facilities cluding formed by the employees of Malcolm Boring. Malcolm wthout limitation the following types of classes of Boring employees worked on construction work in thework field. The skills required ranged from those of ditchdig- ubparagraphs (b) and (c) set forth a large listing of dif- gers to those of skilled boring machine operators. The Subparagraps of construction industry work." Subpara- work performed by employees of B. C. Malcolm was r done in the shop and ranged from the tidying up of the graph 6 covered: place and the washing of equipment to skilled mechanic's All work erformed in the contractors warehouses, work. The B. C. Malcolm business was also substantially shops or yards which has been particularly pro- different from the Malcolm Boring business. Malcolm vded or set up to handle work in connection with a Boring performed construction work. B. C. Malcolm fab- job or project covered by the terms of ths agree- ricated, maintained, repaired, and leased out constructionment. equipment. The equipment was leased to a number of equipment. The equipment was leased to a number of The language of that section appears to indicate that the contractors in addition to Malcolm Boring. It is contended that, because Malcolm Boring had preceding section, insofar as it covered fabrication, main- tenance, and repair, was limited to such work on the job- signed the short-form agreement in 1962 and had not no- te. Subparagraph 6 was limited t o sch work on the so tified the Union to the contrary, it became bound by the uprrph went eond tht nd master labor agreement of July 1, 1977, to June 15, shopwork. However, it would not cover the shopwork 1980. ' However, the new master labor agreement for in question in this case. Here the B. C. Malcolm shop was not set up to handle work in connection with a par- Southern California substantially changed the bargaining was not set u to handle work in connection with a par- unit from that which had appeared in prior contracts. ticular job or project. However, the new contract did While the prior contracts had been between employers have an appendix that was entitled "Operating Engineers and Local 12, the new master labor agreement was be- Craft, Special Working Rules and Wage Scales. That tween employers and a number of different unions, only appendix contained a clause which stated that, i addi- one of which was Local 12. Various Carpenter unions, tion to the basic agreement coverage, the agreement Laborer unions, and Teamster unions were also lumped would include work in the contractors' yards and shops. together in the contract. Article II,A, provided that the B. C. Malcolm and Malcolm Boring claimed that that employers recognized the unions as "the sole and exclu- clause did not apply to them because the original 1962 sive collective bargaining representatives of all employ- short-form agreement between Malcolm Boring and ees and persons employed to perform work covered by Local 12, which was the underpinning of the subsequent agreements was solely a construction contract and not a " Some of the work was done by the sons of the owners of Malcolm shop contract as indicated by the check in the box next Boring who, because of their relationship to the owner of the business, to construction and blank left after the box for shop. could not be considered employees in an appropriate bargaining unit. Local 12 contends that the effect of checking the box Children of persons holding a substantial stock interest in a closely held next to the shop agreement was to allow the company to corporation must be excluded from bargaining units of that corporate em- ployer. Foam Rubber City #2 of Florida. Inc. doing business as SCANDIA, vary certain starting times and overtime rates in the shop 167 NLRB 623 (1967). as provided by section W of the appendix to the con- " The Southern California master agreement does not include San tract. However, it is difficult to see how the 1962 short- Diego County. On September 27, 1978, Malcolm Boring signed a short- form agreement could have anticipated the language in form agreement with Local 12 covering the San Diego area. The box for the 1977 contract. It is more reasonable to assume that "Master Construction Agreement" was checked; the box for "Master the short form agreement meant just what it said, Shop Agreement" was not. It was actually signed in San Diego County. while Malcolm Boring was doing some work there. The short-form construction was covered and shop was not. At the very agreement specifically states on the bottom,"San Diego Horizontal Earth least, the language is ambiguous and it is necessary to ex- Boring." The full agreement to which the short-form agreement refers amine the practices of the parties to understand what specifically limits the coverage of the contract to San Diego County. Therefore, it can have no application to B. C. Malcolm, who does no they meant by t. work in that county. However, the only contract alleged in the complaint is the one that was entered into September 27, 1978, which would be the '9 The contract provided that, when the employer was making work San Diego contract. In fact, the General Counsel's contentions are keyed assignments, he would assign work in accordance with existing intercraft to the 1962 short-form agreement which covers the area where B. C. agreements between the Unions and that, where there was no such agree- Malcolm works rather than the September 27, 1978, short-form agree- ment, then past practice or prevailing practice in the locality would ment which only covers the San Diego area. apply. MALCOLM BORING CO., INC. 605 by members of the Malcolm family." In some cases, em- this agreement." Article I,B,5, stated, "This agreement ployees were hired and put on the payroll. Most of the shall cover and apply to all work falling within the rec- work was done by Ralph Ayalla, who had his own ognized jurisdiction of the Unions signatory to this welding shop and billed Malcolm Boring for the work. agreement." There followed three subparagraphs de- The situation changed in 1976 when B. C. Malcolm set scribing the work covered. Subparagraph (a) provided: up its own payroll. At that time, Billy C. Malcolm in- It sa c w o b tended to try to sell some of his boring equipment and toa engineering construction, including the con- take his sons in as partners. His plans did not work for a s o in w o i p o number of reasons including the fact that his sons wantedstructifn of, in clud in srpremen to go into business on their own. From then on, B. C. o r atiosatich are incidental stocthe or Malcolm had employees of its own, who worked at theoperation, maich eancend rereof all equip- B. C. Malcolm shop. The work those employees per-met vehicles and oepa.r . alluing formed was substantially different from the work per- wi th l mitan the falilgtyes o cludeno formed by the employees of Malcolm Boring. Malcolm w l t h o u t imitation the following types of classes of Boring employees worked on construction work in the field. The skills required ranged from those of ditchdig- Subparagraphs (b) and (c) set forth a large listing of dif- gers to those of skilled boring machine operators. The ferent types of construction industry work." Subpara- work performed by employees of B. C. Malcolm was ga 6 e done in the shop and ranged from the tidying up of the All w e i t cnrts wroe place and the washing of equipment to skilled mechanic'ssAp w o r k Performed in the contractors warehouses, work. The B. C. Malcolm business was also substantially vided o r set u w h t ch h as b een particularly pro- different from the Malcolm Boring business. Malcolm v l d e d °r set up to handle work in connection with a Boring performed construction work. B. C. Malcolm fab- jo b °r Project covered by the terms of this agree- ricated, maintained, repaired, and leased out constructionmem. equipment. The equipment was leased to a number of ^ ^^^ equipent.The quipent as lasedto anumbr of The language of that section appears to indicate that the contractors in addition to Malcolm Boring.,.--. . , .* iri Itiscontractorseinadedi that, Malcause Malor . Bd Preceding section, insofar as it covered fabrication, main- It i conende tha, beauseMalclm Bringhad tenance, and repair, was limited to such work on the job- signed the short-form agreement in 1962 and had not no- t e .Subpragr, was beyond that and overe some tified the Union to the contrary, it became bound by the sh Sparga 6 it wond not and the some master labor agreement of July 1, 1977, to June 15, shopwork. However, it would not cover the shopwork 1980. * However, the new master labor agreement for in questio n in t his c as e .H e r e t h e B . C. M alc o lm shop 1980111Howeerthe ew astr laor greeentfor was not set up to handle work in connection with a par- Southern California substantially changed the bargaining wticular s jo or p o ject. wor, t necontra did unit from that which had appeared in prior contracts. h t a c la n jab or project. Howevern the new contract did While the prior contracts had been between employers h a v e an appendix that was entitled Operating Engineers and Local 12, the new master labor agreement was be- Craft, Special Working Rules and Wage Scales.t That tween employers and a number of different unions, onlyappendix contained a clause which stated that, in addi- one of which was Local 12. Various Carpenter unions, tion t o t h e basic agreement coverage, the agreement Laborer unions, and Teamster unions were also lumped w o u ld include work in the contractors' yards and shops. together in the contract. Article IIA, provided that the B. C. Malcolm and Malcolm Boring claimed that that employers recognized the unions as "the sole and exclu- cl au s e did not apply to them because the original 1962 sive collective bargaining representatives of all employ- short-form agreement between Malcolm Boring and ees and persons employed to perform work covered by L o c al 12 , w h ic h w as t h e underpinning of the subsequent agreements was solely a construction contract and not a " Some of the work was done by the sons of the owners of Malcolm shop contract as indicated by the check in the box next Boring who, because of their relationship to the owner of the business, to construction and blank left after the box for shop. could not be considered employees in an appropriate bargaining unit. Local 12 contends that the effect of checking the box Children of persons holding a substantial stock interest in a closely held next to the shop agreement was to allow the company to corporation must be excluded from bargaining units of that corporate em- ployer. Foam Rubber City #2 of Florida. inc. doing business as SCANDIA, vary certain starting times and overtime rates in the shop 167 NLRB 623 (1967). as provided by section W of the appendix to the con- " The Southern California master agreement does not include San tract. However, it is difficult to see how the 1962 short- Diego County. On September 27, 1978, Malcolm Boring signed a short- form agreement could have anticipated the language in form agreement with Local 12 covering the San Diego area. The box for the 1977 contract. It is more reasonable to assume that "Master Construction Agreement" was checked; the box for "Master tesotfr gemn en utwa tsita Shop Agreement" was no. It was actually signed in San Diego County. the short form agreement mean just what i said, that while Malcolm Boring was doing some work there. The short-form construction was covered and shop Was not. At the very agreement specifically states on the bottom,"San Diego Horizontal Earth least, the language is ambiguous and it is necessary to ex- Boring." The full agreement to which the short-form agreement refers amine the practices of the parties to understand what specifically limits the coverage of the contract to San Diego County. -- th i Therefore, it can have no application to B. C. Malcolm, who does no tey meant by It, work in that county. However, the only contract alleged in the complaint is the one that was entered into September 27, 1978, which would be the The contract provided that, when the employer was making work San Diego contract. In fact, the General Counsel's contentions are keyed assignments, he would assign work in accordance with existing intercrafl to the 1962 short-form agreement which covers the area where B. C. agreements between the Unions and that, where there was no such agree- Malcolm works rather than the September 27, 1978, short-form agree- ment, then past practice or prevailing practice in the locality would ment which only covers the San Diego area. apply. MALCOLM BORING CO., INC. 605 by members of the Malcolm family." In some cases, em- this agreement." Article I,B,5, stated, "This agreement ployees were hired and put on the payroll. Most of the shall cover and apply to all work falling within the rec- work was done by Ralph Ayalla, who had his own ognized jurisdiction of the Unions signatory to this welding shop and billed Malcolm Boring for the work. agreement." There followed three subparagraphs de- The situation changed in 1976 when B. C. Malcolm set scribing the work covered. Subparagraph (a) provided: up its own payroll. At that time, Billy C. Malcolm in- It sa c w o b tended to try to sell some of his boring equipment and toa engineering construction, including the con- take his sons in as partners. His plans did not work for a s o in w o i p o number of reasons including the fact that his sons wantedstructifn of, in cludin srpremen to go into business on their own. From then on, B. C. o r atiosatich are incidental stocthe or Malcolm had employees of its own, who worked at theoperation, maich eancend rereof all equip- B. C. Malcolm shop. The work those employees per-met vehicles and oepa.r . alluing formed was substantially different from the work per- wi th l mit a n t he f ol l on t yes o claseso formed by the employees of Malcolm Boring. Malcolm w l t h o u t imitation the following types of classes of Boring employees worked on construction work in the field. The skills required ranged from those of ditchdig- Subparagraphs (b) and (c) set forth a large listing of dif- gers to those of skilled boring machine operators. The ferent types of construction industry work." Subpara- work performed by employees of B. C. Malcolm was ga 6 e done in the shop and ranged from the tidying up of the All w e i t cnrts wroe place and the washing of equipment to skilled mechanic'ssAp w o r k Performed in the contractors warehouses, work. The B. C. Malcolm business was also substantiallyv sh o p s o r set u w h t ch h as b een particularly pro- different from the Malcolm Boring business. Malcolm v l d e d °r set up to handle work in connection with a Boring performed construction work. B. C. Malcolm fab-job °r Project covered by the terms of this agree- ricated, maintained, repaired, and leased out constructionmem. equipment. The equipment was leased to a number of ^ ^^^ equipent.The quipent as lasedto anumbr of The language of that section appears to indicate that the contractors in addition to Malcolm Boring.,.--. ., .* iri Itiscontractorseinadedi that, Malcause Malor . Bd Preceding section, insofar as it covered fabrication, main- It i conende tha, beauseMalclm Bringhad tenance, and repair, was limited to such work on the job- signed the short-form agreement in 1962 and had not no- t e .Subpragr, was beyond that and overe some tified the Union to the contrary, it became bound by the shSparga 6 it wond not and the some master labor agreement of July 1, 1977, to June 15, shopwork. However, it would not cover the shopwork 1980. * However, the new master labor agreement for in questio n in t his c as e .H e r e t h e B . C. M alc o lm s ho p 1980111Howeerthe ew astr laor greeentfor was not set up to handle work in connection with a par- Southern California substantially changed the bargaining wticular s jo or p o ject. wor, t necontra did unit from that which had appeared in prior contracts. h t a c la n jab or project. Howevern the new contract did While the prior contracts had been between employers h a v e an appendix that was entitled Operating Engineers and Local 12, the new master labor agreement was be- Craft, Special Working Rules and Wage Scales.t That tween employers and a number of different unions, onlyappendix contained a clause which stated that, in addi- one of which was Local 12. Various Carpenter unions, tion t o t h e basic agreement coverage, the agreement Laborer unions, and Teamster unions were also lumped w o u ld include work in the contractors' yards and shops. together in the contract. Article IIA, provided that the B. C. Malcolm and Malcolm Boring claimed that that employers recognized the unions as "the sole and exclu- cl au s e did not apply to them because the original 1962 sive collective bargaining representatives of all employ- short-form agreement between Malcolm Boring and ees and persons employed to perform work covered by L o c al 12 , w h ic h w as t h e underpinning of the subsequent agreements was solely a construction contract and not a " Some of the work was done by the sons of the owners of Malcolm shop contract as indicated by the check in the box next Boring who, because of their relationship to the owner of the business, to construction and blank left after the box for shop. could not be considered employees in an appropriate bargaining unit. Local 12 contends that the effect of checking the box Children of persons holding a substantial stock interest in a closely held next to the shop agreement was to allow the company to corporation must be excluded from bargaining units of that corporate em- ployer. Foam Rubber City #2 of Florida. inc. doing business as SCANDIA, vary certain starting times and overtime rates in the shop 167 NLRB 623 (1967). as provided by section W of the appendix to the con- " The Southern California master agreement does not include San tract. However, it is difficult to see how the 1962 short- Diego County. On September 27, 1978, Malcolm Boring signed a short- form agreement could have anticipated the language in form agreement with Local 12 covering the San Diego area. The box for the 1977 contract. It is more reasonable to assume that "Master Construction Agreement" was checked; the box for "Master tesotfr gemn en utwa tsita Shop Agreement" was no. It was actually signed in San Diego County. the short form agreement mean just what i said, that while Malcolm Boring was doing some work there. The short-form construction was covered and shop Was not. At the very agreement specifically states on the bottom,"San Diego Horizontal Earth least, the language is ambiguous and it is necessary to ex- Boring." The full agreement to which the short-form agreement refers amine the practices of the parties to understand what specifically limits the coverage of the contract to San Diego County. -- th i Therefore, it can have no application to B. C. Malcolm, who does no tey meant by It, work in that county. However, the only contract alleged in the complaint is the one that was entered into September 27, 1978, which would be the The contract provided that, when the employer was making work San Diego contract. In fact, the General Counsel's contentions are keyed assignments, he would assign work in accordance with existing intercrafl to the 1962 short-form agreement which covers the area where B. C. agreements between the Unions and that, where there was no such agree- Malcolm works rather than the September 27, 1978, short-form agree- ment, then past practice or prevailing practice in the locality would ment which only covers the San Diego area. apply. MALCOLM BORING CO., INC. 605 by members of the Malcolm family." In some cases, em- this agreement." Article I,B,5, stated, "This agreement ployees were hired and put on the payroll. Most of the shall cover and apply to all work falling within the rec- work was done by Ralph Ayalla, who had his own ognized jurisdiction of the Unions signatory to this welding shop and billed Malcolm Boring for the work. agreement." There followed three subparagraphs de- The situation changed in 1976 when B. C. Malcolm set scribing the work covered. Subparagraph (a) provided: up its own payroll. At that time, Billy C. Malcolm in- It sa c w o b tended to try to sell some of his boring equipment and toa engineering construction, including the con- take his sons in as partners. His plans did not work for a s o in w o i p o number of reasons including the fact that his sons wantedstructifn of, in cludin srpremen to go into business on their own. From then on, B. C. o r atiosatich are incidental stocthe or Malcolm had employees of its own, who worked at theoperation, maich eancend rereof all equip- B. C. Malcolm shop. The work those employees per-met vehicles and oepa.r . alluing formed was substantially different from the work per- wi th l mit a n t he f ol l on t yes o claseso formed by the employees of Malcolm Boring. Malcolm w l t h o u t imitation the following types of classes of Boring employees worked on construction work in the field. The skills required ranged from those of ditchdig- Subparagraphs (b) and (c) set forth a large listing of dif- gers to those of skilled boring machine operators. The ferent types of construction industry work." Subpara- work performed by employees of B. C. Malcolm was ga 6 e done in the shop and ranged from the tidying up of the All w e i t cnrts wroe place and the washing of equipment to skilled mechanic'ssAp w o r k Performed in the contractors warehouses, work. The B. C. Malcolm business was also substantiallyv sh o p s or set u w h t c h h as b een particularly pro- different from the Malcolm Boring business. Malcolm v l d e d °r set up to handle work in connection with a Boring performed construction work. B. C. Malcolm fab-job °r Project covered by the terms of this agree- ricated, maintained, repaired, and leased out constructionmem. equipment. The equipment was leased to a number of ^ ^^ ^ equipent.The quipent as lasedto anumbr of The language of that section appears to indicate that the contractors in addition to Malcolm Boring.,.--. ., .* iri Itiscontractorseinadedi that, Malcause Malor . Bd Preceding section, insofar as it covered fabrication, main- It i conende tha, beauseMalclm Bringhad tenance, and repair, was limited to such work on the job- signed the short-form agreement in 1962 and had not no- t e .Subpragr, was beyond that and overe some tified the Union to the contrary, it became bound by the shSparga 6 it wond not and the some master labor agreement of July 1, 1977, to June 15, shopwork. However, it would not cover the shopwork 1980. * However, the new master labor agreement for in questio n in t his c as e .H e r e t h e B . C. M alc o lm s ho p 1980111Howeerthe ew astr laor greeentfor was not set up to handle work in connection with a par- Southern California substantially changed the bargaining wticular s jo or p o ject. wor, t necontra did unit from that which had appeared in prior contracts. h t a c la n jab or project. Howevern the new contract did While the prior contracts had been between employers h a v e an appendix that was entitled Operating Engineers and Local 12, the new master labor agreement was be- Craft, Special Working Rules and Wage Scales.t That tween employers and a number of different unions, onlyappendix contained a clause which stated that, in addi- one of which was Local 12. Various Carpenter unions, tion t o t h e basic agreement coverage, the agreement Laborer unions, and Teamster unions were also lumped w o u ld include work in the contractors' yards and shops. together in the contract. Article IIA, provided that the B. C. Malcolm and Malcolm Boring claimed that that employers recognized the unions as "the sole and exclu- cl au s e did not apply to them because the original 1962 sive collective bargaining representatives of all employ- short-form agreement between Malcolm Boring and ees and persons employed to perform work covered by L o c al 12 , w h ic h w as t h e underpinning of the subsequent agreements was solely a construction contract and not a " Some of the work was done by the sons of the owners of Malcolm shop contract as indicated by the check in the box next Boring who, because of their relationship to the owner of the business, to construction and blank left after the box for shop. could not be considered employees in an appropriate bargaining unit. Local 12 contends that the effect of checking the box Children of persons holding a substantial stock interest in a closely held next to the shop agreement was to allow the company to corporation must be excluded from bargaining units of that corporate em- ployer. Foam Rubber City #2 of Florida. inc. doing business as SCANDIA, vary certain starting times and overtime rates in the shop 167 NLRB 623 (1967). as provided by section W of the appendix to the con- " The Southern California master agreement does not include San tract. However, it is difficult to see how the 1962 short- Diego County. On September 27, 1978, Malcolm Boring signed a short- form agreement could have anticipated the language in form agreement with Local 12 covering the San Diego area. The box for the 1977 contract. It is more reasonable to assume that "Master Construction Agreement" was checked; the box for "Master tesotfr gemn en utwa tsita Shop Agreement" was no. It was actually signed in San Diego County. the short form agreement mean just what i said, that while Malcolm Boring was doing some work there. The short-form construction was covered and shop Was not. At the very agreement specifically states on the bottom,"San Diego Horizontal Earth least, the language is ambiguous and it is necessary to ex- Boring." The full agreement to which the short-form agreement refers amine the practices of the parties to understand what specifically limits the coverage of the contract to San Diego County. -- th i Therefore, it can have no application to B. C. Malcolm, who does no tey meant by It, work in that county. However, the only contract alleged in the complaint is the one that was entered into September 27, 1978, which would be the The contract provided that, when the employer was making work San Diego contract. In fact, the General Counsel's contentions are keyed assignments, he would assign work in accordance with existing intercrafl to the 1962 short-form agreement which covers the area where B. C. agreements between the Unions and that, where there was no such agree- Malcolm works rather than the September 27, 1978, short-form agree- ment, then past practice or prevailing practice in the locality would ment which only covers the San Diego area. apply. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As set forth above, the practice that developed over both the San Diego and the Southern California agree- the years was for Malcolm Boring to apply the contract ments to be effective on the applicable termination dates only to those employees who reached a certain level of of those contracts. In that letter Malcolm Boring offered skill as operators. Such employees joined Local 12 and to negotiate and asked that a meeting be scheduled. By became eligible for contract benefits at the same time. letter dated March 24, 1980, Local 12 acknowledged re- Until the incidents in question in this case, Local 12 does ceipt of Malcolm Boring's letter canceling the contract. not appear to have demanded contract coverage for Local 12 referred to Malcolm Boring's letter as "Letter lesser skilled employees. Nor is there any indication that of cancellation of your Short Form Agreement for Con- the Union insisted on enforcement of the union-security struction." Local 12 notified Malcolm Boring that its clause for those employees. Until the incidents in ques- agreement was tied to the terms of the master agreement tion in this case, there is no indication that either Local which did not terminate until July 1, 1980, for Southern 12 or Malcolm Boring made any effort to apply the con- California and June 15, 1980, for San Diego. Local 12's tract to B. C. Malcolm shop employees. The first situa- letter also stated that Local 12 would hold Malcolm Bor- tion in which the question arose was about June 21 or ing's letter until the conclusion of the term of the master 23, 1979. At that time, Bruce Malcolm was still an offi- agreements and, at that time, Local 12 would contact cial of Malcolm Boring. He was working on a Malcolm Malcolm Boring for the purpose of collective bargaining. Boring job in Anaheim, California, when Local 12 Busi- On December 31, 1980, the attorneys for Local 12 ness Agent Novak spoke to him. Novak said that he had wrote to the attorneys for Malcolm Boring a letter 2 a grievance from an employee named Newton about a which stated in part: difference in wages that was paid in the yard and in the field. Bruce Malcolm told Novak that 80 percent of the Because Local 12 no longhe represents a majority of field wages were paid while an employee was in theMalcolm's employees, it has decided to disclaim n- yard and there were no fringes paid, but that the em- terest n bargaining for these employees. Therefore, ployee kept working steadily when it rained and whenMalcolm Boring shall be considered a nonsignatory work was slow. Novak replied by saying that it was not employer and shall be treated accordingly. T a bad deal. i >-r - 1 i2. Analysis and conclusions In mid-October 1979, David Frederick made a com- plaint about his pay to Local 12 Business Representative Malcolm Boring and B. C. Malcolm constitute a single Robert Dye. Frederick was one of the employees who employer. However, that does not answer the question did fieldwork on the Malcolm Boring payroll at full con- whether the two parts of the single employer had single tract rates and also did shopwork on the B. C. Malcolm or separate bargaining units. As the Board held in Peter payroll at 80 percent of contract rate without fringe Kiewit Sons' Co. and South Prairie Construction Co., 231 benefits. Frederick explained the situation to Dye. In De- NLRB 76, 77 (1977), enfd. 595 F.2d 844 (D.C. Cir. cember 1979, Dye went to the Malcolm Boring office 1979): and discussed the matter with Billy C. Malcolm. Billy C. Malcolm explained the structure of B. C. Malcolm and In determining whether a single employer exists we Malcolm Boring and in effect confirmed what Frederick are concerned with the common ownership, struc- had told Dye previously. Dye took the position that the ture, and integrated control of the separate corpora- contract covered shopwork and Billy C. Malcolm took tions; in determining the scope of the unit, we are the position that it did not.20 That dispute led to this liti- concerned with the community of interests of the gation. employees involved. By letter dated January 28, 1980, Malcolm Boring no- Section 9 of the Act gives the Board considerable tified the Union that it desired to bargain separately for a discretion in determining appropriate units. Section new agreement at the expiration of the contract in 1980. 9(b) of the Act empowers the Board to "decide in The letter also asked for a copy of the current contract each case whether, in order to assure to employees for Southern California and for the Union's position with the fullest freedom in exercising the rights guaran- regard to what was timely notice of termination. By teed by this Act, the unit appropriate for the pur- letter dated January 30, 1980, Malcolm Boring notified poses of collective bargaining shall be the employer the engineering contractors association that the associ- unit, craft unit, plant unit, or subdivision thereof ation did not have authority to represent the company in .. ." The mandate of that section "to assure to collective bargaining. By letter dated February 22, 1980, employees the fullest freedom" indicates that our Malcolm Boring notified Local 12 of the termination of pmy o s the degree o o o interest primary concern is the degree of common interests of the employees involved. The ultimate unit deter- 0 Dye testified that, during this conversation, Billy C. Malcolm told ofthe employees involved. The ultimate unit deter- him that he was going to go out of business and was going to lease his mination is thus resolved by weighing all the factors equipment to his son Bruce. However, Gannon, another union repre- relevant to the community of interests of the em- sentative who was at the meeting, made contemporaneous notes in which ployees. Where, as here, we are concerned with he quoted Billy C. Malcolm as saying that he would be going out of busi- more than one operation of a single employer, the ness and leasing his equipment to a son other than Bruce. I believe that Dye was confused with regard to the names of the sons. Dye testified that Billy C. Malcolm told him that Bruce Malcolm was an officer of ° On the stipulation of the parties the letter was received as evidence Malcolm Boring. Billy C. Malcolm averred that he did not tell Dye that as a late-file exhibit and was marked NMU Exh. 1. The stipulation went Bruce Malcolm was an officer but he might have told him that Thomas to the question of authenticity and all parties reserved their rights to Malcolm was. At that time Bruce Malcolm had his own business. I be- argue or challenge in their briefs the relevancy or any other matters re- lieve that Dye was again confused with regard to the names, lating to that exhibit. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As set forth above, the practice that developed over both the San Diego and the Southern California agree- the years was for Malcolm Boring to apply the contract ments to be effective on the applicable termination dates only to those employees who reached a certain level of of those contracts. In that letter Malcolm Boring offered skill as operators. Such employees joined Local 12 and to negotiate and asked that a meeting be scheduled. By became eligible for contract benefits at the same time. letter dated March 24, 1980, Local 12 acknowledged re- Until the incidents in question in this case, Local 12 does ceipt of Malcolm Boring's letter canceling the contract. not appear to have demanded contract coverage for Local 12 referred to Malcolm Boring's letter as "Letter lesser skilled employees. Nor is there any indication that of cancellation of your Short Form Agreement for Con- the Union insisted on enforcement of the union-security struction." Local 12 notified Malcolm Boring that its clause for those employees. Until the incidents in ques- agreement was tied to the terms of the master agreement tion in this case, there is no indication that either Local which did not terminate until July 1, 1980, for Southern 12 or Malcolm Boring made any effort to apply the con- California and June 15, 1980, for San Diego. Local 12's tract to B. C. Malcolm shop employees. The first situa- letter also stated that Local 12 would hold Malcolm Bor- tion in which the question arose was about June 21 or ing's letter until the conclusion of the term of the master 23, 1979. At that time, Bruce Malcolm was still an offi- agreements and, at that time, Local 12 would contact cial of Malcolm Boring. He was working on a Malcolm Malcolm Boring for the purpose of collective bargaining. Boring job in Anaheim, California, when Local 12 Busi- On December 31, 1980, the attorneys for Local 12 ness Agent Novak spoke to him. Novak said that he had wrote to the attorneys for Malcolm Boring a letter" a grievance from an employee named Newton about a which stated in part: difference in wages that was paid in the yard and in the B L 12 n .. m field. Bruce Malcolm told Novak that 80 percent of theM B ec au se L oc al o2 "° it hs" represents a majority of field wages were paid while an employee was in theiMalcolm s employees, it has decided to disclaim . r - yard and there were no fringes paid, but that the em- t er es tl n bargaining for these employees. Therefore, ployee kept working steadily when it rained and whenMalcolm Boring shall be considered a nonsignatory work was slow. Novak replied by saying that it was not employer and shall be treated accordingly. BT e a baddeal." i- <r>-rr> i-. *-1 i- -i 2. Analysis and conclusions In mid-October 1979, David Frederick made a com- plaint about his pay to Local 12 Business Representative Malcolm Boring and B. C. Malcolm constitute a single Robert Dye. Frederick was one of the employees who employer. However, that does not answer the question did fieldwork on the Malcolm Boring payroll at full con- whether the two parts of the single employer had single tract rates and also did shopwork on the B. C. Malcolm or separate bargaining units. As the Board held in Peter payroll at 80 percent of contract rate without fringe Kiewit Sons' Co. and South Prairie Construction Co., 231 benefits. Frederick explained the situation to Dye. In De- NLRB 76, 77 (1977), enfd. 595 F.2d 844 (D.C. Cir. cember 1979, Dye went to the Malcolm Boring office 1979): and discussed the matter with Billy C. Malcolm. Billy C. Malcolm explained the structure of B. C. Malcolm and In determining whether a single employer exists we Malcolm Boring and in effect confirmed what Frederick are concerned with the common ownership, struc- had told Dye previously. Dye took the position that the ture, and integrated control of the separate corpora- contract covered shopwork and Billy C. Malcolm took tions; in determining the scope of the unit, we are the position that it did not. 20 That dispute led to this liti- concerned with the community of interests of the gation. employees involved. By letter dated January 28, 1980, Malcolm Boring no- Section 9 of the Act gives the Board considerable tified the Union that it desired to bargain separately for a discretion in determining appropriate units. Section new agreement at the expiration of the contract in 1980. 9(b) of the Act empowers the Board to "decide in The letter also asked for a copy of the current contract each case whether, in order to assure to employees for Southern California and for the Union's position with the fullest freedom in exercising the rights guaran- regard to what was timely notice of termination. By teed by this Act, the unit appropriate for the pur- letter dated January 30, 1980, Malcolm Boring notified poses of collective bargaining shall be the employer the engineering contractors association that the associ- unit, craft unit, plant unit, or subdivision thereof ation did not have authority to represent the company in e mandate of that section "to assure to collective bargaining. By letter dated February 22, 1980employees the fullest freedom" indicates that our Malcolm Boring notified Local 12 of the termination ofploy th f f ic that our primary concern is the degree of common interests ~~~---~ , i. . . * „.„ /,.,,, „~of the employees involved. The ultimate unit deter- M Dye testified that, during this conversation, Billy C. Malcolm told . e ivle. T .t. ui dtr him that he was going to go out of business and was going to lease his mination is thus resolved by weighing all the factors equipment to his son Bruce. However, Gannon, another union repre- relevant to the community of interests of the em- sentative who was at the meeting, made contemporaneous notes in which ployees. Where, as here, we are concerned with he quoted Billy C. Malcolm as saying that he would be going out of busi- more than one operation of a single employer, the ness and leasing his equipment to a son other than Bruce. I believe that Dye was confused with regard to the names of the sons. Dye testified that Billy C. Malcolm told him that Bruce Malcolm was an officer of On" t h e stipulation of the parties the letter was received as evidence Malcolm Boring. Billy C. Malcolm averred that he did not tell Dye that as a late-file exhibit and was marked NMU Exh. 1. The stipulation went Bruce Malcolm was an officer but he might have told him that Thomas to th e question of authenticity and all parties reserved their rights to Malcolm was. At that time Bruce Malcolm had his own business. 1 be- argue or challenge in their briefs the relevancy or any other matters re- lieve that Dye was again confused with regard to the names, lating to that exhibit. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As set forth above, the practice that developed over both the San Diego and the Southern California agree- the years was for Malcolm Boring to apply the contract ments to be effective on the applicable termination dates only to those employees who reached a certain level of of those contracts. In that letter Malcolm Boring offered skill as operators. Such employees joined Local 12 and to negotiate and asked that a meeting be scheduled. By became eligible for contract benefits at the same time. letter dated March 24, 1980, Local 12 acknowledged re- Until the incidents in question in this case, Local 12 does ceipt of Malcolm Boring's letter canceling the contract. not appear to have demanded contract coverage for Local 12 referred to Malcolm Boring's letter as "Letter lesser skilled employees. Nor is there any indication that of cancellation of your Short Form Agreement for Con- the Union insisted on enforcement of the union-security struction." Local 12 notified Malcolm Boring that its clause for those employees. Until the incidents in ques- agreement was tied to the terms of the master agreement tion in this case, there is no indication that either Local which did not terminate until July 1, 1980, for Southern 12 or Malcolm Boring made any effort to apply the con- California and June 15, 1980, for San Diego. Local 12's tract to B. C. Malcolm shop employees. The first situa- letter also stated that Local 12 would hold Malcolm Bor- tion in which the question arose was about June 21 or ing's letter until the conclusion of the term of the master 23, 1979. At that time, Bruce Malcolm was still an offi- agreements and, at that time, Local 12 would contact cial of Malcolm Boring. He was working on a Malcolm Malcolm Boring for the purpose of collective bargaining. Boring job in Anaheim, California, when Local 12 Busi- On December 31, 1980, the attorneys for Local 12 ness Agent Novak spoke to him. Novak said that he had wrote to the attorneys for Malcolm Boring a letter" a grievance from an employee named Newton about a which stated in part: difference in wages that was paid in the yard and in the B L 12 n .. m field. Bruce Malcolm told Novak that 80 percent of theM B ec au se L oc al o2 "° it hs" represents a majority of field wages were paid while an employee was in theiMalcolm s employees, it has decided to disclaim . r - yard and there were no fringes paid, but that the em- t er es tl n bargaining for these employees. Therefore, ployee kept working steadily when it rained and whenMalcolm Boring shall be considered a nonsignatory work was slow. Novak replied by saying that it was not employer and shall be treated accordingly. BT e a baddeal." i- <r>-rr> i-. *-1 i- -i 2. Analysis and conclusions In mid-October 1979, David Frederick made a com- plaint about his pay to Local 12 Business Representative Malcolm Boring and B. C. Malcolm constitute a single Robert Dye. Frederick was one of the employees who employer. However, that does not answer the question did fieldwork on the Malcolm Boring payroll at full con- whether the two parts of the single employer had single tract rates and also did shopwork on the B. C. Malcolm or separate bargaining units. As the Board held in Peter payroll at 80 percent of contract rate without fringe Kiewit Sons' Co. and South Prairie Construction Co., 231 benefits. Frederick explained the situation to Dye. In De- NLRB 76, 77 (1977), enfd. 595 F.2d 844 (D.C. Cir. cember 1979, Dye went to the Malcolm Boring office 1979): and discussed the matter with Billy C. Malcolm. Billy C. Malcolm explained the structure of B. C. Malcolm and In determining whether a single employer exists we Malcolm Boring and in effect confirmed what Frederick are concerned with the common ownership, struc- had told Dye previously. Dye took the position that the ture, and integrated control of the separate corpora- contract covered shopwork and Billy C. Malcolm took tions; in determining the scope of the unit, we are the position that it did not. 20 That dispute led to this liti- concerned with the community of interests of the gation. employees involved. By letter dated January 28, 1980, Malcolm Boring no- Section 9 of the Act gives the Board considerable tified the Union that it desired to bargain separately for a discretion in determining appropriate units. Section new agreement at the expiration of the contract in 1980. 9(b) of the Act empowers the Board to "decide in The letter also asked for a copy of the current contract each case whether, in order to assure to employees for Southern California and for the Union's position with the fullest freedom in exercising the rights guaran- regard to what was timely notice of termination. By teed by this Act, the unit appropriate for the pur- letter dated January 30, 1980, Malcolm Boring notified poses of collective bargaining shall be the employer the engineering contractors association that the associ- unit, craft unit, plant unit, or subdivision thereof ation did not have authority to represent the company in e mandate of that section "to assure to collective bargaining. By letter dated February 22, 1980employees the fullest freedom" indicates that our Malcolm Boring notified Local 12 of the termination ofploy th f f ic that our primary concern is the degree of common interests ~~~---~ , i. . . * „.„ /,.,,, „~of the employees involved. The ultimate unit deter- M Dye testified that, during this conversation, Billy C. Malcolm told . e ivle. T .t. ui dtr him that he was going to go out of business and was going to lease his mination is thus resolved by weighing all the factors equipment to his son Bruce. However, Gannon, another union repre- relevant to the community of interests of the em- sentative who was at the meeting, made contemporaneous notes in which ployees. Where, as here, we are concerned with he quoted Billy C. Malcolm as saying that he would be going out of busi- more than one operation of a single employer, the ness and leasing his equipment to a son other than Bruce. I believe that Dye was confused with regard to the names of the sons. Dye testified that Billy C. Malcolm told him that Bruce Malcolm was an officer of On" t h e stipulation of the parties the letter was received as evidence Malcolm Boring. Billy C. Malcolm averred that he did not tell Dye that as a late-file exhibit and was marked NMU Exh. 1. The stipulation went Bruce Malcolm was an officer but he might have told him that Thomas to th e question of authenticity and all parties reserved their rights to Malcolm was. At that time Bruce Malcolm had his own business. 1 be- argue or challenge in their briefs the relevancy or any other matters re- lieve that Dye was again confused with regard to the names, lating to that exhibit. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As set forth above, the practice that developed over both the San Diego and the Southern California agree- the years was for Malcolm Boring to apply the contract ments to be effective on the applicable termination dates only to those employees who reached a certain level of of those contracts. In that letter Malcolm Boring offered skill as operators. Such employees joined Local 12 and to negotiate and asked that a meeting be scheduled. By became eligible for contract benefits at the same time. letter dated March 24, 1980, Local 12 acknowledged re- Until the incidents in question in this case, Local 12 does ceipt of Malcolm Boring's letter canceling the contract. not appear to have demanded contract coverage for Local 12 referred to Malcolm Boring's letter as "Letter lesser skilled employees. Nor is there any indication that of cancellation of your Short Form Agreement for Con- the Union insisted on enforcement of the union-security struction." Local 12 notified Malcolm Boring that its clause for those employees. Until the incidents in ques- agreement was tied to the terms of the master agreement tion in this case, there is no indication that either Local which did not terminate until July 1, 1980, for Southern 12 or Malcolm Boring made any effort to apply the con- California and June 15, 1980, for San Diego. Local 12's tract to B. C. Malcolm shop employees. The first situa- letter also stated that Local 12 would hold Malcolm Bor- tion in which the question arose was about June 21 or ing's letter until the conclusion of the term of the master 23, 1979. At that time, Bruce Malcolm was still an offi- agreements and, at that time, Local 12 would contact cial of Malcolm Boring. He was working on a Malcolm Malcolm Boring for the purpose of collective bargaining. Boring job in Anaheim, California, when Local 12 Busi- On December 31, 1980, the attorneys for Local 12 ness Agent Novak spoke to him. Novak said that he had wrote to the attorneys for Malcolm Boring a letter" a grievance from an employee named Newton about a which stated in part: difference in wages that was paid in the yard and in the B L 12 n .. m field. Bruce Malcolm told Novak that 80 percent of theM B ec au se L oc al o2 "° it hs" represents a majority of field wages were paid while an employee was in theiMalcolm s employees, it has decided to disclaim . r - yard and there were no fringes paid, but that the em- t er es tl n bargaining for these employees. Therefore, ployee kept working steadily when it rained and whenMalcolm Boring shall be considered a nonsignatory work was slow. Novak replied by saying that it was not employer and shall be treated accordingly. BT e a baddeal." i- <r>-rr> i-. *-1 i- -i 2. Analysis and conclusions In mid-October 1979, David Frederick made a com- plaint about his pay to Local 12 Business Representative Malcolm Boring and B. C. Malcolm constitute a single Robert Dye. Frederick was one of the employees who employer. However, that does not answer the question did fieldwork on the Malcolm Boring payroll at full con- whether the two parts of the single employer had single tract rates and also did shopwork on the B. C. Malcolm or separate bargaining units. As the Board held in Peter payroll at 80 percent of contract rate without fringe Kiewit Sons' Co. and South Prairie Construction Co., 231 benefits. Frederick explained the situation to Dye. In De- NLRB 76, 77 (1977), enfd. 595 F.2d 844 (D.C. Cir. cember 1979, Dye went to the Malcolm Boring office 1979): and discussed the matter with Billy C. Malcolm. Billy C. Malcolm explained the structure of B. C. Malcolm and In determining whether a single employer exists we Malcolm Boring and in effect confirmed what Frederick are concerned with the common ownership, struc- had told Dye previously. Dye took the position that the ture, and integrated control of the separate corpora- contract covered shopwork and Billy C. Malcolm took tions; in determining the scope of the unit, we are the position that it did not. 20 That dispute led to this liti- concerned with the community of interests of the gation. employees involved. By letter dated January 28, 1980, Malcolm Boring no- Section 9 of the Act gives the Board considerable tified the Union that it desired to bargain separately for a discretion in determining appropriate units. Section new agreement at the expiration of the contract in 1980. 9(b) of the Act empowers the Board to "decide in The letter also asked for a copy of the current contract each case whether, in order to assure to employees for Southern California and for the Union's position with the fullest freedom in exercising the rights guaran- regard to what was timely notice of termination. By teed by this Act, the unit appropriate for the pur- letter dated January 30, 1980, Malcolm Boring notified poses of collective bargaining shall be the employer the engineering contractors association that the associ- unit, craft unit, plant unit, or subdivision thereof ation did not have authority to represent the company in e mandate of that section "to assure to collective bargaining. By letter dated February 22, 1980employees the fullest freedom" indicates that our Malcolm Boring notified Local 12 of the termination ofploy th f f ic that our primary concern is the degree of common interests ~~~---~ , i. . . * „.„ /,.,,, „~of the employees involved. The ultimate unit deter- M Dye testified that, during this conversation, Billy C. Malcolm told . e ivle. T .t. ui dtr him that he was going to go out of business and was going to lease his mination is thus resolved by weighing all the factors equipment to his son Bruce. However, Gannon, another union repre- relevant to the community of interests of the em- sentative who was at the meeting, made contemporaneous notes in which ployees. Where, as here, we are concerned with he quoted Billy C. Malcolm as saying that he would be going out of busi- more than one operation of a single employer, the ness and leasing his equipment to a son other than Bruce. I believe that Dye was confused with regard to the names of the sons. Dye testified that Billy C. Malcolm told him that Bruce Malcolm was an officer of On" t h e stipulation of the parties the letter was received as evidence Malcolm Boring. Billy C. Malcolm averred that he did not tell Dye that as a late-file exhibit and was marked NMU Exh. 1. The stipulation went Bruce Malcolm was an officer but he might have told him that Thomas to th e question of authenticity and all parties reserved their rights to Malcolm was. At that time Bruce Malcolm had his own business. 1 be- argue or challenge in their briefs the relevancy or any other matters re- lieve that Dye was again confused with regard to the names, lating to that exhibit. MALCOLM BORING CO., INC. 607 following factors are particularly relevant; the bar- Moreover, it is basic Board policy to accept the volun- gaining history; the functional integration of oper- tary agreement of the parties as to the scope of the unit. ations; the differences in the types of work and the As the Board held in A-i Fire Protection, Inc., and Corco- skills of employees; the extent of centralization of ran Automatic Sprinklers, Inc., 250 NLRB 217, 220 management and supervision, particularly in regard (1980): to labor relations, hiring, discipline, and control of day-to-day operations; and the extent of interchange In resolving disputes over the scope of a bargain- and contact between the groups of employees. ing unit, the Board's starting point consistently had been its policy of accepting voluntary agreements The facts with regard to those criteria are set forth in between parties on unit scope, whether made as detail in the discussion of the single-employer issue part of a voluntary recognition agreement or en- above and will not be repeated here. However, other tered into in a Stipulation for Certification Upon considerations of particular importance must be men- Consent Election. In light of this policy, the tioned. The skills needed by the employees of B. C. Mal- Board's analysis of such a dispute includes an exam- colm are substantially different from those of the em- ination of the agreed-upon unit and an examination ployees of Malcolm Boring. That is so because the work of the circumstances surrounding the alleged agree- of the two Companies is of a very different nature. Mal- ment on unit scope to determine whether it in fact colm Boring is wholly engaged in a construction busi- reflects the intent of the parties and constitutes a ness. The skills required of the employees are those of voluntary agreement. construction workers on the construction site. B. C. Mal- colm fabricates, maintains, repairs, and leases equipment In that case, the Board found that the two parts of a to construction firms. Its employees need skills appropri- single employer had separate bargaining units in a ate to those tasks and the work is performed in the shop. "double-breasted operation," where one of the parts per- Malcolm Boring is a construction industry employer and formed nonunion construction work and the other per- B. C. Malcolm is not. B. C. Malcolm is not simply a formed union construction work. minor adjunct of Malcolm Boring. It is a substantial busi- In determining what the agreement was with regard to ness in its own right22 and leases equipment to a number the scope of the unit, it is necessary to consider both the of other construction firms in addition to Malcolm contract and the practice of the parties. In the instant Boring. Malcolm Boring signed a short-form agreement case, there is a serious question whether there even is a with Local 12 in 1962 and it is alleged that, through that contract. In 1962 Malcolm Boring signed a short-form short-form agreement, it is bound by the Southern Cali- agreement with Local 12. It bound itself to an agreement fornia Master Labor Agreement of July 1, 1977, to July with that union and with no other. The Southern Cali- 15, 1980. That master labor agreement is a construction fornia Master Labor Agreement of 1977-80, which is the industry agreement and it contains an 8-day union-secu- key contract in this case, has an entirely different bar- rity clause that is lawful when applied to "an employer gaining unit from the one agreed to by Malcolm Boring engaged primarily in the building and construction indus- in 1962. The 1977-80 Southern California Master Labor try."23 It is unlawful when applied to an employer who Agreement is an agreement between employers and a is not engaged primarily in the building and construction number of different unions including Carpenters, Labor- industry.2 4 The original contract between Malcolm Teamsters. Even assuming that the Local 12 Boring and Local 12 was a pre-hire agreement which in- a mnt an e se ro part of the master labor agreement can be severed from corporated a union-security clause. That also could be ., . , the remainder of the agreement in such a way as to be lawful only where the employer was primarily in the t r i building and construction industry. The Southern Cali- binding on Malcolm Boring, there are serious ambiguities fornia Master Agreement of 1977-80 contains clauses with regard to the scope of the unit. The 1977-80 master fornia Master Agreement of 1977-80 contains clauses limiting the right of employers to subcontract onsite con- abo r dd no t co n ta i t h e b asic u n it descp- tion language that had appeared in prior agreements con- struction work to other employers. Those clauses could cerninguage that had aeaed i ors' yards and shos not have any meaning with regard to B. C. Malcolm cerning coverage of the contractors' yards and shops. who does no onsite work. If the employees of B. C. Similar language was used in the 1977-80 agreement but who does no .nsite.work .25.If the employees of B..C. it was included in an appendix related to special working Malcolm are lumped into the Malcolm Boring bargaining i was included in an apendix related to special working unit and covered by the master labor agreement, the rules for the operating engineer craft. There is serious nonconstruction employees of B. C. Malcolm would not doubt as to whether the parties ever intended that shop nonconstruction employees of B. C. Malcolm would not only be bound by a pre-hire contract where the majority employees as opposed to construction employees should representation status could arguably be attributed to the be covered in light of the fact that the short-form agree- union-security clause, but would also be subject to the ment signed by Malcolm Boring in 1962 had the box for requirement that they join Local 12 on the eighth day construction checked but not the box for shop. In view after their employment, of all these ambiguities it is particularly important to afterthe~____ ir__ employment.look to the practice of the parties. " From July 1979 through June 1980 B. C. Malcolm's volume of busi- Malcolm Boring traditionally hired unskilled employ- ness from rental and sales of equipment was approximately $228,780. ees. When those employees obtained a sufficient degree From August 1979 through July 1980 Malcolm Boring's volume of busi- of skill, they were permitted to join Local 12 and to ness from construction industry work was approximately $i,283,165 enjoy coverage by the contract. That practice was fol- Sec. 8(f) of the Act. "Sec. 8(aX3) of the Act. lowed openly over the years. The evidence does not es- Sec. 8(e) of the Act. tablish that the practice was a result of deception or mis- MALCOLM BORING CO., INC. 607 following factors are particularly relevant; the bar- Moreover, it is basic Board policy to accept the volun- gaining history; the functional integration of oper- tary agreement of the parties as to the scope of the unit. ations; the differences in the types of work and the As the Board held in A-] Fire Protection, Inc., and Corco- skills of employees; the extent of centralization of ran Automatic Sprinklers, Inc., 250 NLRB 217, 220 management and supervision, particularly in regard (1980): to labor relations, hiring, discipline, and control of day-to-day operations; and the extent of interchange In resolving disputes over the scope of a bargain- and contact between the groups of employees. ing unit, the Board's starting point consistently had been its policy of accepting voluntary agreements The facts with regard to those criteria are set forth in between parties on unit scope, whether made as detail in the discussion of the single-employer issue part of a voluntary recognition agreement or en- above and will not be repeated here. However, other tered into in a Stipulation for Certification Upon considerations of particular importance must be men- Consent Election. In light of this policy, the tioned. The skills needed by the employees of B. C. Mal- Board's analysis of such a dispute includes an exam- colm are substantially different from those of the em- ination of the agreed-upon unit and an examination ployees of Malcolm Boring. That is so because the work of the circumstances surrounding the alleged agree- of the two Companies is of a very different nature. Mal- ment on unit scope to determine whether it in fact colm Boring is wholly engaged in a construction busi- reflects the intent of the parties and constitutes a ness. The skills required of the employees are those of voluntary agreement. construction workers on the construction site. B. C. Mal- colm fabricates, maintains, repairs, and leases equipment In that case, the Board found that the two parts of a to construction firms. Its employees need skills appropri- single employer had separate bargaining units in a ate to those tasks and the work is performed in the shop. "double-breasted operation," where one of the parts per- Malcolm Boring is a construction industry employer and formed nonunion construction work and the other per- B. C. Malcolm is not. B. C. Malcolm is not simply a formed union construction work. minor adjunct of Malcolm Boring. It is a substantial busi- In determining what the agreement was with regard to ness in its own right 22 and leases equipment to a number the scope of the unit, it is necessary to consider both the of other construction firms in addition to Malcolm contract and the practice of the parties. In the instant Boring. Malcolm Boring signed a short-form agreement case, there is a serious question whether there even is a with Local 12 in 1962 and it is alleged that, through that contract. In 1962 Malcolm Boring signed a short-form short-form agreement, it is bound by the Southern Cali- agreement with Local 12. It bound itself to an agreement fornia Master L ab o r A g r ee m en t o f J u l y 1, 19 7 7, t o July with that union and with no other. The Southern Cali- 15, 1980. That master labor agreement is a construction fornia Master Labor Agreement of 1977-80, which is the industry agreement and it contains an 8-day union-secu- key contract in this case, has an entirely different bar- rity clause that is lawful when applied to "an employer gaining unit from the one agreed to by Malcolm Boring engaged primarily in the building and construction indus- i, 1962. The 1977-80 Southern California Master Labor try."" It is unlawful when applied to an employer who Agreement is an agreement between employers and a is not engaged primarily in the building and construction nu er of different unions including Carpenters, Labor- industry.24 The original contract between Malcolm ers, and Teamsters. Even assuming that the Local 12 Boring and Local 12 was a pre-hire agreement which in- p of t agreement can be severed from corporated a union-security clause. That also could be . , * , , , ., ' , . ., . ,~~the remainder of the agreement in such a way as to be lawful only where the employer was primarily in the th n o t remn in s a w a building and construction industry. The Southern Cali- binding on Malcolm Boring, there are serious ambiguities forna Ma\ster Agreement of 1977-80 ontains clauses wit h regard to the scope of the unit. The 1977-80 master formia Master Agreement of 1977-80 contains clauses , j**i i* * limiting the right of employers to subcontract onsite con- labo r agreement did no t c o n t ain in t h e b asic u n it descrip- tion language that had appeared in prior agreements con- struction work to other employers. Those clauses could tce n cvrgo t h e nt prcor ardsmentshon- not have any meaning with regard to B. C. Malcolm Scernmlg coverage of the contractors yards and shops. who does no onsite work.'2 If the employees of B. C. Sit la r lan g u ag e w as u s ed in t h e, ap et 80 ag r e em e n t c b u t Malcolm are lumped into the Malcolm Boring bargaining rl w asf n c l u d edo n an gppengdn r el at ed to special working unit and covered by the master labor agreement, the d r ul es f o r th e op e r at pt en g s n eer c r a f t. T h e r e ts ser ho u s nonconstruction employees of B. C. Malcolm would not d o u bt as t o w h et h e r t h e pcon ev er u n t en d ed sat shop only be bound by a pre-hire contract where the majority employees as opposed to construction employees should representation status could arguably be attributed to the m b e c o v er e d m light of the fact that the short-form agree- union-security clause, but would also be subject to the cm en t ructi o M al c o l ke d "S m l 9 62 had the box for requirement that they join Local 12 on the eighth day construction checked but not the box for shop. In view after their employment. 0 1f all these ambiguities it is particularly important to aft er th eir e mploy m ent. loo k to the practice of the parties. " From July 1979 through June 1980 B. C. Malcolm's volume of busi- Malcolm Boring traditionally hired unskilled employ- ness from rental and sales of equipment was approximately $228,780. ees. When those employees obtained a sufficient degree From August 1979 through July 1980 Malcolm Boring's volume of busi- of skill, they were permitted to join Local 12 and to nessfrom th c ntrcuctin i d u str y work w as ap p ro ximate ly S1,283,165 enjoy coverage by the contract. That practice was fol- "Sec. 8(aX3) of the Act.,lowed openly over the years. The evidence does not es- "Sec. 8(e) of the Act. tablish that the practice was a result of deception or mis- MALCOLM BORING CO., INC. 607 following factors are particularly relevant; the bar- Moreover, it is basic Board policy to accept the volun- gaining history; the functional integration of oper- tary agreement of the parties as to the scope of the unit. ations; the differences in the types of work and the As the Board held in A-] Fire Protection, Inc., and Corco- skills of employees; the extent of centralization of ran Automatic Sprinklers, Inc., 250 NLRB 217, 220 management and supervision, particularly in regard (1980): to labor relations, hiring, discipline, and control of day-to-day operations; and the extent of interchange In resolving disputes over the scope of a bargain- and contact between the groups of employees. ing unit, the Board's starting point consistently had been its policy of accepting voluntary agreements The facts with regard to those criteria are set forth in between parties on unit scope, whether made as detail in the discussion of the single-employer issue part of a voluntary recognition agreement or en- above and will not be repeated here. However, other tered into in a Stipulation for Certification Upon considerations of particular importance must be men- Consent Election. In light of this policy, the tioned. The skills needed by the employees of B. C. Mal- Board's analysis of such a dispute includes an exam- colm are substantially different from those of the em- ination of the agreed-upon unit and an examination ployees of Malcolm Boring. That is so because the work of the circumstances surrounding the alleged agree- of the two Companies is of a very different nature. Mal- ment on unit scope to determine whether it in fact colm Boring is wholly engaged in a construction busi- reflects the intent of the parties and constitutes a ness. The skills required of the employees are those of voluntary agreement. construction workers on the construction site. B. C. Mal- colm fabricates, maintains, repairs, and leases equipment In that case, the Board found that the two parts of a to construction firms. Its employees need skills appropri- single employer had separate bargaining units in a ate to those tasks and the work is performed in the shop. "double-breasted operation," where one of the parts per- Malcolm Boring is a construction industry employer and formed nonunion construction work and the other per- B. C. Malcolm is not. B. C. Malcolm is not simply a formed union construction work. minor adjunct of Malcolm Boring. It is a substantial busi- In determining what the agreement was with regard to ness in its own right 22 and leases equipment to a number the scope of the unit, it is necessary to consider both the of other construction firms in addition to Malcolm contract and the practice of the parties. In the instant Boring. Malcolm Boring signed a short-form agreement case, there is a serious question whether there even is a with Local 12 in 1962 and it is alleged that, through that contract. In 1962 Malcolm Boring signed a short-form short-form agreement, it is bound by the Southern Cali- agreement with Local 12. It bound itself to an agreement fornia Master L ab o r A g r ee m en t o f J u l y 1, 19 7 7, t o July with that union and with no other. The Southern Cali- 15, 1980. That master labor agreement is a construction fornia Master Labor Agreement of 1977-80, which is the industry agreement and it contains an 8-day union-secu- key contract in this case, has an entirely different bar- rity clause that is lawful when applied to "an employer gaining unit from the one agreed to by Malcolm Boring engaged primarily in the building and construction indus- i, 1962. The 1977-80 Southern California Master Labor try."" It is unlawful when applied to an employer who Agreement is an agreement between employers and a is not engaged primarily in the building and construction nu er of different unions including Carpenters, Labor- industry.24 The original contract between Malcolm ers, and Teamsters. Even assuming that the Local 12 Boring and Local 12 was a pre-hire agreement which in- p of t agreement can be severed from corporated a union-security clause. That also could be . , * , , , ., ' , . ., . ,~~the remainder of the agreement in such a way as to be lawful only where the employer was primarily in the th n o t remn in s a w a building and construction industry. The Southern Cali- binding on Malcolm Boring, there are serious ambiguities forna Ma\ster Agreement of 1977-80 ontains clauses wit h regard to the scope of the unit. The 1977-80 master formia Master Agreement of 1977-80 contains clauses , j* ii_ * limiting the right of employers to subcontract onsite con- labo r agreement did no t c o n t ain in t h e b asic u n it descrip- tion language that had appeared in prior agreements con- struction work to other employers. Those clauses could tce n cvrgo t h e nt prcor ardsmentshon- not have any meaning with regard to B. C. Malcolm Scernmlg coverage of the contractors yards and shops. who does no onsite work.'2 If the employees of B. C. Sit la r ^^ w as u se d i n t h e, 19 77 -80 agreement but Malcolm are lumped into the Malcolm Boring bargaining rl w asf n c l u d edo n an gppengdn r el at ed to special working unit and covered by the master labor agreement, the d r ul es f o r th e op e r at pt en g s n eer c r a f t. T h e r e ts ser ho u s nonconstruction employees of B. C. Malcolm would not d o u bt as t o w h et h e r t h e pcons ev er u n t en d ed sat shop only be bound by a pre-hire contract where the majority employees as opposed to construction employees should representation status could arguably be attributed to the m b e covered in light of the fact that the short-form agree- union-security clause, but would also be subject to the cm en t ructi o M al c o l ke d "S m l 9 62 had the box for requirement that they join Local 12 on the eighth day construction checked but not the box for shop. In view after their employment. 0 1f all these ambiguities it is particularly important to aft er th eir e mploy m ent. loo k to the practice of the parties. " From July 1979 through June 1980 B. C. Malcolm's volume of busi- Malcolm Boring traditionally hired unskilled employ- ness from rental and sales of equipment was approximately $228,780. ees. When those employees obtained a sufficient degree From August 1979 through July 1980 Malcolm Boring's volume of busi- of skill, they were permitted to join Local 12 and to nessfrom th c ntrcuctin i dustr y work w as appro ximately S1,283,165 enjoy coverage by the contract. That practice was fol- "Sec. 8(aX3) of the Act.,lowed openly over the years. The evidence does not es- "Sec. 8(e) of the Act. tablish that the practice was a result of deception or mis- MALCOLM BORING CO., INC. 607 following factors are particularly relevant; the bar- Moreover, it is basic Board policy to accept the volun- gaining history; the functional integration of oper- tary agreement of the parties as to the scope of the unit. ations; the differences in the types of work and the As the Board held in A-] Fire Protection, Inc., and Corco- skills of employees; the extent of centralization of ran Automatic Sprinklers, Inc., 250 NLRB 217, 220 management and supervision, particularly in regard (1980): to labor relations, hiring, discipline, and control of day-to-day operations; and the extent of interchange In resolving disputes over the scope of a bargain- and contact between the groups of employees. ing unit, the Board's starting point consistently had been its policy of accepting voluntary agreements The facts with regard to those criteria are set forth in between parties on unit scope, whether made as detail in the discussion of the single-employer issue part of a voluntary recognition agreement or en- above and will not be repeated here. However, other tered into in a Stipulation for Certification Upon considerations of particular importance must be men- Consent Election. In light of this policy, the tioned. The skills needed by the employees of B. C. Mal- Board's analysis of such a dispute includes an exam- colm are substantially different from those of the em- ination of the agreed-upon unit and an examination ployees of Malcolm Boring. That is so because the work of the circumstances surrounding the alleged agree- of the two Companies is of a very different nature. Mal- ment on unit scope to determine whether it in fact colm Boring is wholly engaged in a construction busi- reflects the intent of the parties and constitutes a ness. The skills required of the employees are those of voluntary agreement. construction workers on the construction site. B. C. Mal- colm fabricates, maintains, repairs, and leases equipment In that case, the Board found that the two parts of a to construction firms. Its employees need skills appropri- single employer had separate bargaining units in a ate to those tasks and the work is performed in the shop. "double-breasted operation," where one of the parts per- Malcolm Boring is a construction industry employer and formed nonunion construction work and the other per- B. C. Malcolm is not. B. C. Malcolm is not simply a formed union construction work. minor adjunct of Malcolm Boring. It is a substantial busi- In determining what the agreement was with regard to ness in its own right 22 and leases equipment to a number the scope of the unit, it is necessary to consider both the of other construction firms in addition to Malcolm contract and the practice of the parties. In the instant Boring. Malcolm Boring signed a short-form agreement case, there is a serious question whether there even is a with Local 12 in 1962 and it is alleged that, through that contract. In 1962 Malcolm Boring signed a short-form short-form agreement, it is bound by the Southern Cali- agreement with Local 12. It bound itself to an agreement fornia Master L ab o r A g r ee m en t o f July 1, 19 7 7, t o July with that union and with no other. The Southern Cali- 15, 1980. That master labor agreement is a construction fornia Master Labor Agreement of 1977-80, which is the industry agreement and it contains an 8-day union-secu- key contract in this case, has an entirely different bar- rity clause that is lawful when applied to "an employer gaining unit from the one agreed to by Malcolm Boring engaged primarily in the building and construction indus- i, 1962. The 1977-80 Southern California Master Labor try."" It is unlawful when applied to an employer who Agreement is an agreement between employers and a is not engaged primarily in the building and construction nu er of different unions including Carpenters, Labor- industry.24 The original contract between Malcolm ers, and Teamsters. Even assuming that the Local 12 Boring and Local 12 was a pre-hire agreement which in- p of t agreement can be severed from corporated a union-security clause. That also could be . , * , , , ., ' , . ., . ,~~the remainder of the agreement in such a way as to be lawful only where the employer was primarily in the th n o t remn in s a w a building and construction industry. The Southern Cali- binding on Malcolm Boring, there are serious ambiguities forna Ma\ster Agreement of 1977-80 ontains clauses wit h regard to the scope of the unit. The 1977-80 master formia Master Agreement of 1977-80 contains clauses , j* ii_ * limiting the right of employers to subcontract onsite con- labo r agreement d id no t c o n t ain in the basic unit descrip- tion language that had appeared in prior agreements con- struction work to other employers. Those clauses could tce n cover a g e of t h e nt prcor ardsmentshon- not have any meaning with regard to B. C. Malcolm Scernmlg coverage of the contractors yards and shops. who does no onsite work.'2 If the employees of B. C. Sit la r ^^ w as u s ed i n t h e, 19 77 -80 rado ement but Malcolm are lumped into the Malcolm Boring bargaining rl w asfrtluded in an appendix related to special working unit and covered by the master labor agreement, the d r ul es f o r th e op e r at pt en g s n eer c r a f t. T h e r e ts ser ho u s nonconstruction employees of B. C. Malcolm would not d o u bt as t o w h et h e r t h e pcons ev er u n t en d ed sat shop only be bound by a pre-hire contract where the majority employees as opposed to construction employees should representation status could arguably be attributed to the m b e covered in light of the fact that the short-form agree- union-security clause, but would also be subject to the cm en tsrt ned bu M al c o l t Bonng in 1962 had the box for requirement that they join Local 12 on the eighth day construction checked but not the box for shop. In view after their employment. 0 1f all tb ese: ambiguities it is particularly important to aft er th eir e mploy m ent. loo k to the practice of the parties. " From July 1979 through June 1980 B. C. Malcolm's volume of busi- Malcolm Boring traditionally hired unskilled employ- ness from rental and sales of equipment was approximately $228,780. ees. When those employees obtained a sufficient degree From August 1979 through July 1980 Malcolm Boring's volume of busi- of skill, they were permitted to join Local 12 and to nessfrom th c ntrcuctin i d u str y work w as ap p ro ximate ly S1,283,165 enjoy coverage by the contract. That practice was fol- "Sec. 8(aX3) of the Act.,lowed openly over the years. The evidence does not es- "Sec. 8(e) of the Act. tablish that the practice was a result of deception or mis- 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation by Malcolm Boring. On occasions Mal- boys and start a pipe business." Billy C. Malcolm testi- colm Boring had to argue with Local 12 before Local 12 fled that he never told Cochell that he would close would accept the fact that employees had sufficient skills down his boring business. As between Billy C. Malcolm to be allowed to join the Union. An argument could be and Cochell, I credit Billy C. Malcolm.28 made that Local 12 considered the contract to be a mem- Paragraph 12 of the complaint alleges that in or about bers-only agreement that did not apply to nonmembers. October 1979 Billy C. Malcolm interrogated an employ- Looking at the situation more favorably from Local 12's ee at the Chino facility regarding his union sympathies point of view, Local 12 required employees to have a and membership. Larry Cochell testified that, in the certain degree of skill before joining the Union and, latter part of September or early October 1979, Billy C. when they had attained that degree of skill, they also Malcolm spoke to him in the shop and asked him what were eligible for coverage under the contract. In any his thoughts were on the NMU. He averred that Billy C. event, the practice was for the contract to cover skilled Malcolm mentioned some of the benefits of the NMU. construction employees of Malcolm Boring. B. C. Mal- Although I have some doubts as to Cochell's credibility, colm shop employees were never covered. In sum, I do Billy C. Malcolm did not testify with regard to that con- not believe that the General Counsel has established that versation and I credit Cochell. However, in the entire the voluntary agreement of the parties, as construed in context of the situations, as set forth above, I do not be- the light of their practices, included shop employees in lieve that that one isolated question interfered with, re- the scope of the unit. strained, or coerced Cochell or any other employee in Under all these circumstances, I find that the ethe employ- exercise of his rights guaranteed by Section 7 of the ees of B. C. Malcolm are in a separate bargaining unit c . from the employees of Malcolm Boring and that any Paragraph 13 of the complaint alleges that in or about contract that Malcolm Boring had with Local 12 did not October 1979 Bruce C. Malcolm interrogated an employ- contract that Malcolm Boring had with Local 12 did not ee at the Chino facility regarding his union sympathies apply to the employees of B. C. Malcolm. In light of that ee at the Chino facility regarding his union sympathies and membership. Cochell testified that, about the first of finding, I recommend that the allegation that Malcolm a . C t t a t f October 1979, Bruce C. Malcolm asked him what his Boring and B. C. Malcolm refused to bargain with Local October 1979, Bruce C. Malcolm asked him what his thoughts were about the NMU and told him that he had 12 in violation of Section 8(a)(5) of the Act be dis- thoughts were about the NMU and told him that he had missed. 26 signed a contract with that Union. As found above, Bruce C. Malcolm was not a single employer with Mal- E. The 8(a)(1) Allegations colm Boring or B. C. Malcolm. At that time Bruce C. Malcolm had his own business and Cochell was not his Paragraph 11 of the complaint alleges that in or about employee. Bruce C. Malcolm and Cochell had been October 1979 Billy C. Malcolm violated Section 8(a)(l) friends and it appeared that Bruce C. Malcolm was of the Act by stating to employees at the Chino facility merely asking Cochell's advice concerning his new busi- "that he intended to end his construction boring business, ness. I do not believe that Bruce C. Malcolm's question in order to discourage activity on behalf of or in support in any manner interfered with, restrained, or coerced Co- of the IUOE." David Frederick testified that, in August chell or any other employee in the exercise of rights or September 1979, Billy C. Malcolm told him that he guaranteed by Section 7 of the Act. I shall recommend had negotiated a contract for Bruce Malcolm with that all of the 8(a)(l) allegations in the complaint be dis- NMU, that Bruce was going to try that Union, and that missed. B. C. Malcolm was considering signing with that Union. As set forth above, Billy Malcolm denied that that con- CONCLUSIONS OF LAW versation took place and I have credited Billy C. Mal- 1. Malcolm Boring, B. C. Malcolm and Bruce Mal- colm. Larry Cochell testified that, in June 1979, Billy C. colm, Inc., are, and each is, an employer engaged in Malcolm told him that Malcolm Boring would be closing commerce within the meaning of Section 2(6) and (7) of down in January 1980. Cochell also testified that in late the Act. September or October 1979 Billy C. Malcolm told him 2. Local 12 and NMU are and each is a labor organi- that he was going to turn the boring business over to the zation within the meaning of Section 2(5) of the Act. 3. The General Counsel has not established by a pre- "2 As the United States Supreme Court held in N.L.R.B. v. Local ponderance of the credible evidence that Malcolm Union No. 103. International Association of Bridge, Structural & Ornamen- Boring, B. C. Malcolm, Bruce Malcolm, Inc., or NMU tal Iron Workers, AFL-CIO [Higdon Construction Co.l, 434 U.S. 335, 345 (1978): "The employer's duty to bargain and honor [an 8(f)] contract is violated the Act as alleged in the complaint. contingent on the union's attaining majority support at the various con- Upon the foregoing findings of fact, conclusions of struction sites." The Board has held that that duty also applies where a law, and upon the entire record in this case, and pursu- union attains majority status in a bargaining unit consisting of a perma- ant to Section 10(c) of the Act, I hereby issue the fol- nent stable work force which moves from jobsite to jobsite. Precision Striping, Inc., 245 NLRB 169 (1979), enforcement denied 642 F.2d 1144 lowing recommended: (9th Cir. 1981). The General Counsel contends that the Union did secure majority status in such a permanent stable work force. As to part of that 27 It is noted that Local 12 Business Agent Dye did not contact Mal- argument, the General Counsel lumped together the construction and colm Boring concerning its claim that shop employees were covered by nonconstruction employees, deleted from the unit employees who had Ihe contract until December 1979. not worked a certain number of days within a given period, and counted 28 Even if Cochell were credited, it would be clear that the alleged as part of the bargaining unit workers who were the sons of the owner. threat had nothing to do with Local 12's claim that the contract covered However, in view of the conclusions reached above, there is no need to shop employees. The threat allegedly occurred in October 1979 and decide the question of majority status. Local 12's claim was made in December 1979. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation by Malcolm Boring. On occasions Mal- boys and start a pipe business." Billy C. Malcolm testi- colm Boring had to argue with Local 12 before Local 12 fled that he never told Cochell that he would close would accept the fact that employees had sufficient skills down his boring business. As between Billy C. Malcolm to be allowed to join the Union. An argument could be and Cochell, I credit Billy C. Malcolm.2 8 made that Local 12 considered the contract to be a mem- Paragraph 12 of the complaint alleges that in or about bers-only agreement that did not apply to nonmembers. October 1979 Billy C. Malcolm interrogated an employ- Looking at the situation more favorably from Local 12's ee at the Chino facility regarding his union sympathies point of view, Local 12 required employees to have a and membership. Larry Cochell testified that, in the certain degree of skill before joining the Union and, latter part of September or early October 1979, Billy C. when they had attained that degree of skill, they also Malcolm spoke to him in the shop and asked him what were eligible for coverage under the contract. In any his thoughts were on the NMU. He averred that Billy C. event, the practice was for the contract to cover skilled Malcolm mentioned some of the benefits of the NMU. construction employees of Malcolm Boring. B. C. Mal- Although I have some doubts as to Cochell's credibility, colm shop employees were never covered. In sum, I do Billy C. Malcolm did not testify with regard to that con- not believe that the General Counsel has established that versation and I credit Cochell. However, in the entire the voluntary agreement of the parties, as construed in context of the situations, as set forth above, I do not be- the light of their practices, included shop employees in li e v e th a t t h a t o n e iso l a t e d question interfered with, re- the scope of the unit. strained, or coerced Cochell or any other employee in Under all these circumstances, I find that the employ- t he e x e r c ise o f h is rights guaranteed by Section 7 of the ees of B. C. Malcolm are in a separate bargaining unit c t. from the employees of Malcolm Boring and that any _ P a ragrap h 13 of the complaint alleges that in or about contract that Malcolm Boring had with Local 12 did not O c t o b er 19 7 9 B r u c e C M al c o l m interrogated an employ- , . , , , n~ „, , , ,,. ,. c., ee at the Chino facility regarding his union sympathies apply to the employees of B. C. Malcolm. In light of that ee at t Ci faclit r d h ui sypthe vvnding, I recommend that the allegation ta. Malcolm .and membership. Cochell testified that, about the first of finding, I recommend that the allegation that Malcolm „. in iii iir i r „ . "' „ „ „ , , , , .". .„ , October 1979, Bruce C. Malcolm asked him what his Boring and B. C. Malcolm refused to bargain with Local O o 1 B . Malcol a him wha his ,„ . ° , . „„ . „, ,-. , . . , thoughts were about the NMU and told him that he had 12 in violation of Section 8(a)(5) of the Act be dis- t w a the NM a tl h ta h had missed. 26signed a contract with that Union. As found above, Bruce C. Malcolm was not a single employer with Mal- E. The 8(a)(l) Allegations c o l m Boring o r B . C. Malcolm. At that time Bruce C. Malcolm had his own business and Cochell was not his Paragraph 11 of the complaint alleges that in or about employee. Bruce C. Malcolm and Cochell had been October 1979 Billy C. Malcolm violated Section 8(a)(l) friends and it appeared that Bruce C. Malcolm was of the Act by stating to employees at the Chino facility merely asking Cochell's advice concerning his new busi- "that he intended to end his construction boring business, ness. I do not believe that Bruce C. Malcolm's question in order to discourage activity on behalf of or in support in any manner interfered with, restrained, or coerced Co- of the IUOE." David Frederick testified that, in August chell or any other employee in the exercise of rights or September 1979, Billy C. Malcolm told him that he guaranteed by Section 7 of the Act. I shall recommend had negotiated a contract for Bruce Malcolm with that all of the 8(a)(l) allegations in the complaint be dis- NMU, that Bruce was going to try that Union, and that missed. B. C. Malcolm was considering signing with that Union. As set forth above, Billy Malcolm denied that that con- CONCLUSIONS OF LAW versation took place and I have credited Billy C. Mal- 1. Malcolm Boring, B. C. Malcolm and Bruce Mal- colm. Larry Cochell testified that, in June 1979, Billy C. colm, Inc., are, and each is, an employer engaged in Malcolm told him that Malcolm Boring would be closing commerce within the meaning of Section 2(6) and (7) of down in January 1980. Cochell also testified that in late the Act. September or October 1979 Billy C. Malcolm told him 2. Local 12 and NMU are and each is a labor organi- that he was going to turn the boring business over to the zation within the meaning of Section 2(5) of the Act. 3. The General Counsel has not established by a pre- 2" As the United States Supreme Court held in N.L.R.B. v. Local ponderance of the credible evidence that Malcolm Union No. 103, International Association ofBridge, Structural & Omamen- Boring, B. C. Malcolm, Bruce Malcolm, Inc., or NMU ,al Iron Workers, AFL-CIO [Higdon Construction Co.), 434 U.S. 335, 345 (1978): "The employer's duty to bargain and honor [an 8(f)] contract is violated the Act as alleged in the Complaint. contingent on the union's attaining majority support at the various con-_ Upon the foregoing findings of fact, conclusions of struction sites." The Board has held that that duty also applies where a law, and Upon the entire record in this case, and pursu- union attains majority status in a bargaining unit consisting of a perma- ant to Section 10(c) of the Act, I hereby issue the fol- nent stable work force which moves from jobsite to jobsite. Precision Striping, Inc., 245 NLRB 169 (1979), enforcement denied 642 F.2d 1144 lowing recommended: (9th Cir. 1981). The General Counsel contends that the Union did secure majority status in such a permanent stable work force. As to part of that " It is noted that Local 12 Business Agent Dye did not contact Mal- argument. the General Counsel lumped together the construction and colm Boring concerning its claim that shop employees were covered by nonconstruction employees, deleted from the unit employees who had Ihe contract until December 1979. not worked a certain number of days within a given period, and counted "1 Even if Cochell were credited, it would be clear that the alleged as part of the bargaining unit workers who were the sons of the owner,. threat had nothing to do with Local 12's claim that the contract covered However, in view of the conclusions reached above, there is no need to shop employees. The threat allegedly occurred in October 1979 and decide the question of majority status. Local 12's claim was made in December 1979. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation by Malcolm Boring. On occasions Mal- boys and start a pipe business." Billy C. Malcolm testi- colm Boring had to argue with Local 12 before Local 12 fled that he never told Cochell that he would close would accept the fact that employees had sufficient skills down his boring business. As between Billy C. Malcolm to be allowed to join the Union. An argument could be and Cochell, I credit Billy C. Malcolm.2 8 made that Local 12 considered the contract to be a mem- Paragraph 12 of the complaint alleges that in or about bers-only agreement that did not apply to nonmembers. October 1979 Billy C. Malcolm interrogated an employ- Looking at the situation more favorably from Local 12's ee at the Chino facility regarding his union sympathies point of view, Local 12 required employees to have a and membership. Larry Cochell testified that, in the certain degree of skill before joining the Union and, latter part of September or early October 1979, Billy C. when they had attained that degree of skill, they also Malcolm spoke to him in the shop and asked him what were eligible for coverage under the contract. In any his thoughts were on the NMU. He averred that Billy C. event, the practice was for the contract to cover skilled Malcolm mentioned some of the benefits of the NMU. construction employees of Malcolm Boring. B. C. Mal- Although I have some doubts as to Cochell's credibility, colm shop employees were never covered. In sum, I do Billy C. Malcolm did not testify with regard to that con- not believe that the General Counsel has established that versation and I credit Cochell. However, in the entire the voluntary agreement of the parties, as construed in context of the situations, as set forth above, I do not be- the light of their practices, included shop employees in lieve that that one isolated question interfered with, re- the scope of the unit. strained, or coerced Cochell or any other employee in Under all these circumstances, I find that the employ- t he e x e r c ise o f h is rights guaranteed by Section 7 of the ees of B. C. Malcolm are in a separate bargaining unit c t. from the employees of Malcolm Boring and that any _ P a ragrap h 13 of the complaint alleges that in or about contract that Malcolm Boring had with Local 12 did not O c t o b er 19 7 9 B r u c e C M al c o l m interrogated an employ- , . , , , n~ „, , , ,,. ,. c., ee at the Chino facility regarding his union sympathies apply to the employees of B. C. Malcolm. In light of that ee at t Ci faclit r d h ui sypthe vvnding, I recommend that the allegation ta. Malcolm .and membership. Cochell testified that, about the first of finding, I recommend that the allegation that Malcolm „. in iii iir i r „ . "' „ „ „ , , , , .". .„ , October 1979, Bruce C. Malcolm asked him what his Boring and B. C. Malcolm refused to bargain with Local O o 1 B . Malcol a him wha his ,„ . ° , . „„ . „, ,-. , . . , thoughts were about the NMU and told him that he had 12 in violation of Section 8(a)(5) of the Act be dis- t w a the NM a tl h ta h had missed. 26signed a contract with that Union. As found above, Bruce C. Malcolm was not a single employer with Mal- E. The 8(a)(l) Allegations c o l m Boring o r B . C. Malcolm. At that time Bruce C. Malcolm had his own business and Cochell was not his Paragraph 11 of the complaint alleges that in or about employee. Bruce C. Malcolm and Cochell had been October 1979 Billy C. Malcolm violated Section 8(a)(l) friends and it appeared that Bruce C. Malcolm was of the Act by stating to employees at the Chino facility merely asking Cochell's advice concerning his new busi- "that he intended to end his construction boring business, ness. I do not believe that Bruce C. Malcolm's question in order to discourage activity on behalf of or in support in any manner interfered with, restrained, or coerced Co- of the IUOE." David Frederick testified that, in August chell or any other employee in the exercise of rights or September 1979, Billy C. Malcolm told him that he guaranteed by Section 7 of the Act. I shall recommend had negotiated a contract for Bruce Malcolm with that all of the 8(a)(l) allegations in the complaint be dis- NMU, that Bruce was going to try that Union, and that missed. B. C. Malcolm was considering signing with that Union. As set forth above, Billy Malcolm denied that that con- CONCLUSIONS OF LAW versation took place and I have credited Billy C. Mal- 1. Malcolm Boring, B. C. Malcolm and Bruce Mal- colm. Larry Cochell testified that, in June 1979, Billy C. colm, Inc., are, and each is, an employer engaged in Malcolm told him that Malcolm Boring would be closing commerce within the meaning of Section 2(6) and (7) of down in January 1980. Cochell also testified that in late the Act. September or October 1979 Billy C. Malcolm told him 2. Local 12 and NMU are and each is a labor organi- that he was going to turn the boring business over to the zation within the meaning of Section 2(5) of the Act. 3. The General Counsel has not established by a pre- 2" As the United States Supreme Court held in N.L.R.B. v. Local ponderance of the credible evidence that Malcolm Union No. 103, International Association of Bridge, Structural & Omamen- Boring, B. C. Malcolm, Bruce Malcolm, Inc., or NMU ,al Iron Workers, AFL-CIO [Higdon Construction Co.), 434 U.S. 335, 345 (1978): "The employer's duty to bargain and honor [an 8(f)] contract is violated the Act as alleged in the Complaint. contingent on the union's attaining majority support at the various con-_ Upon the foregoing findings of fact, conclusions of struction sites." The Board has held that that duty also applies where a law, and Upon the entire record in this case, and pursu- union attains majority status in a bargaining unit consisting of a perma- ant to Section 10(c) of the Act, I hereby issue the fol- nent stable work force which moves from jobsite to jobsite. Precision Striping, Inc., 245 NLRB 169 (1979), enforcement denied 642 F.2d 1144 lowing recommended: (9th Cir. 1981). The General Counsel contends that the Union did secure majority status in such a permanent stable work force. As to part of that " It is noted that Local 12 Business Agent Dye did not contact Mal- argument. the General Counsel lumped together the construction and colm Boring concerning its claim that shop employees were covered by nonconstruction employees, deleted from the unit employees who had Ihe contract until December 1979. not worked a certain number of days within a given period, and counted "1 Even if Cochell were credited, it would be clear that the alleged as part of the bargaining unit workers who were the sons of the owner,. threat had nothing to do with Local 12's claim that the contract covered However, in view of the conclusions reached above, there is no need to shop employees. The threat allegedly occurred in October 1979 and decide the question of majority status. Local 12's claim was made in December 1979. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representation by Malcolm Boring. On occasions Mal- boys and start a pipe business." Billy C. Malcolm testi- colm Boring had to argue with Local 12 before Local 12 fled that he never told Cochell that he would close would accept the fact that employees had sufficient skills down his boring business. As between Billy C. Malcolm to be allowed to join the Union. An argument could be and Cochell, I credit Billy C. Malcolm.2 8 made that Local 12 considered the contract to be a mem- Paragraph 12 of the complaint alleges that in or about bers-only agreement that did not apply to nonmembers. October 1979 Billy C. Malcolm interrogated an employ- Looking at the situation more favorably from Local 12's ee at the Chino facility regarding his union sympathies point of view, Local 12 required employees to have a and membership. Larry Cochell testified that, in the certain degree of skill before joining the Union and, latter part of September or early October 1979, Billy C. when they had attained that degree of skill, they also Malcolm spoke to him in the shop and asked him what were eligible for coverage under the contract. In any his thoughts were on the NMU. He averred that Billy C. event, the practice was for the contract to cover skilled Malcolm mentioned some of the benefits of the NMU. construction employees of Malcolm Boring. B. C. Mal- Although I have some doubts as to Cochell's credibility, colm shop employees were never covered. In sum, I do Billy C. Malcolm did not testify with regard to that con- not believe that the General Counsel has established that versation and I credit Cochell. However, in the entire the voluntary agreement of the parties, as construed in context of the situations, as set forth above, I do not be- the light of their practices, included shop employees in lieve that that one isolated question interfered with, re- the scope of the unit. strained, or coerced Cochell or any other employee in Under all these circumstances, I find that the employ- t he e x e r c ise o f h is rights guaranteed by Section 7 of the ees of B. C. Malcolm are in a separate bargaining unit c t. from the employees of Malcolm Boring and that any _ P a ragrap h 13 of the complaint alleges that in or about contract that Malcolm Boring had with Local 12 did not O c t o b er 19 7 9 B r u c e C M al c o l m interrogated an employ- , . , , , n~ „, , , ,,. ,. c., ee at the Chino facility regarding his union sympathies apply to the employees of B. C. Malcolm. In light of that ee at t Ci faclit r d h ui sypthe vvnding3 I recommend that the allegation ta. Malcolm .and membership. Cochell testified that, about the first of finding, I recommend that the allegation that Malcolm „. in iii iir i r „ . "' „ „ „ , , , , .". .„ , October 1979, Bruce C. Malcolm asked him what his Boring and B. C. Malcolm refused to bargain with Local O o 1 B . Malcol a him wha his ,„ . ° , . „„ . „, ,-. , . . , thoughts were about the NMU and told him that he had 12 in violation of Section 8(a)(5) of the Act be dis- t w a the NM a tl h ta h had missed. 26signed a contract with that Union. As found above, Bruce C. Malcolm was not a single employer with Mal- E. The 8(a)(l) Allegations c o l m Boring o r B . C. Malcolm. At that time Bruce C. Malcolm had his own business and Cochell was not his Paragraph 11 of the complaint alleges that in or about employee. Bruce C. Malcolm and Cochell had been October 1979 Billy C. Malcolm violated Section 8(a)(l) friends and it appeared that Bruce C. Malcolm was of the Act by stating to employees at the Chino facility merely asking Cochell's advice concerning his new busi- "that he intended to end his construction boring business, ness. I do not believe that Bruce C. Malcolm's question in order to discourage activity on behalf of or in support in any manner interfered with, restrained, or coerced Co- of the IUOE." David Frederick testified that, in August chell or any other employee in the exercise of rights or September 1979, Billy C. Malcolm told him that he guaranteed by Section 7 of the Act. I shall recommend had negotiated a contract for Bruce Malcolm with that all of the 8(a)(l) allegations in the complaint be dis- NMU, that Bruce was going to try that Union, and that missed. B. C. Malcolm was considering signing with that Union. As set forth above, Billy Malcolm denied that that con- CONCLUSIONS OF LAW versation took place and I have credited Billy C. Mal- 1. Malcolm Boring, B. C. Malcolm and Bruce Mal- colm. Larry Cochell testified that, in June 1979, Billy C. colm, Inc., are, and each is, an employer engaged in Malcolm told him that Malcolm Boring would be closing commerce within the meaning of Section 2(6) and (7) of down in January 1980. Cochell also testified that in late the Act. September or October 1979 Billy C. Malcolm told him 2. Local 12 and NMU are and each is a labor organi- that he was going to turn the boring business over to the zation within the meaning of Section 2(5) of the Act. 3. The General Counsel has not established by a pre- 2" As the United States Supreme Court held in N.L.R.B. v. Local ponderance of the credible evidence that Malcolm Union No. 103, International Association of Bridge, Structural & Omamen- Boring, B. C. Malcolm, Bruce Malcolm, Inc., or NMU ,al Iron Workers, AFL-CIO [Higdon Construction Co.), 434 U.S. 335, 345 (1978): "The employer's duty to bargain and honor [an 8(f)] contract is violated the Act as alleged in the Complaint. contingent on the union's attaining majority support at the various con-_ Upon the foregoing findings of fact, conclusions of struction sites." The Board has held that that duty also applies where a law, and Upon the entire record in this case, and pursu- union attains majority status in a bargaining unit consisting of a perma- ant to Section 10(c) of the Act, I hereby issue the fol- nent stable work force which moves from jobsite to jobsite. Precision Striping, Inc., 245 NLRB 169 (1979), enforcement denied 642 F.2d 1144 lowing recommended: (9th Cir. 1981). The General Counsel contends that the Union did secure majority status in such a permanent stable work force. As to part of that " It is noted that Local 12 Business Agent Dye did not contact Mal- argument. the General Counsel lumped together the construction and colm Boring concerning its claim that shop employees were covered by nonconstruction employees, deleted from the unit employees who had Ihe contract until December 1979. not worked a certain number of days within a given period, and counted "1 Even if Cochell were credited, it would be clear that the alleged as part of the bargaining unit workers who were the sons of the owner,. threat had nothing to do with Local 12's claim that the contract covered However, in view of the conclusions reached above, there is no need to shop employees. The threat allegedly occurred in October 1979 and decide the question of majority status. Local 12's claim was made in December 1979. MALCOLM BORING CO., INC. 609 ORDER 29 The complaint is dismissed in its entirety. " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.