Bryant, Al, Inc., Harrisburg Drywall and Construction Corporation, and Al Bryant Associates, Inc.

I)DECISI()NS ()F NATI()NAI. LABOR REi.ATIONS BOARD Al Bryant, Inc., Harrisburg Drywall and Construc- tion Corporation, and Al Bryant Associates, Inc. and United Brotherhood of Carpenters and Joiners of America, Carpenters' District Coun- cil of Western Pennsylvania, AFL-CIO and Keystone District Council of the United Broth- erhood of Carpenters and Joiners of America, AFL-CIO. Cases 6-CA-12800, 6-CA-13716, and 6-CA-13914 February 11, 1982 DECISION AND ORDER BY MIMBlElRS FANNING, JI NKINS, ANI) ZIMMIRNMAN On July 27, 1981, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, Respondents filed ex- ceptions and a supporting brief and Keystone Dis- trict Council of the United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO , filed ex- ceptions and a brief in opposition to exceptions filed by Respondents. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings," and conclusions2 of the Administrative Law ' Respondents exceptl to he Admiiistratlie l .as Judge's I)ecision as being tainted with bias. hostility and prejudice We find these allegations to be without merit. While we hbelieve some of the statenmelnts made hy the Administrative l as Judge at the hearing may hase been ill-chosen, upon our full reie w c of the rec ord aind the Decision of lie \Admiistra- live Law Judge, we perceive no evidence that he prejudged the case, made prejudicial rulings, or demonstrated bias. hostility. anid prejudice to wards Respondents' counsel We further find nlo evidence of partiality lU the Administrative Laws Judge's examination of Respolndcents'' s itnesses or his analysis and discussioin of the evidence Given this ruling, v:e denl Responldents' request fior the Board to listen to the tapes of this proceed- ing. At fit. 2 of his Decisiont, the Admministrativ e LI.ia Judge adrmoniished Respondents' counsel for mliving the Adminisrativce L.aw Judge to rescue himself ill their post-hearing brief rather tha n before the "appro- priate reviewing authority." 'he Admitistrative l.asw Judge erred. Sec 102.37 of the Board's Rules and Regulations requires the party requesting an administrative law judge to disqualify himself to do so before the ad- ministrative lasw judge files his decision Further. Sec 102 41 of the Board's Rules anid Regulations provides that all objection tti the coniduct of the hearing may be included in the reciord Respondents have excepted to certair credibility findings mllide by the Administrative Laa w Judge It is the Board's stlablished policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all iof the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry I, Wall Produlv. Inc., 91 NLRB 544 (1950), enfd 1I8 F.2d 362 (.d (Cir 1951} We have carefully examined the recor d aiid fitd nio basis for rev ersing his findings ' We agree with the Administrative ILas Judge's f iding that ABI and Harrisburg Drywall are single employers under the Act We further agree that the employees of AtIl and i Harrisburg Drywall constitute anl appropriate unit However. we dio so solely because these employcees share a s ufficient cotmmunity iif interest based on tle follow ingg findings: The firms provide suhcontracting services of art identical nature im a ,cg- 260 NLRB No. 10 Judge and to adopt his recommended Order,3 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respond- ents, Al Bryant, Inc., Harrisburg Drywall and Con- struction Corporation, and Al Bryant Associates, Inc., Harrisburg, Pennsylvania, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: nellt of the collsiruticoen Ilidustirs the eniplo>ees perform similar work and possess cniiommon skills; the n;lnagcnent. supervision. and conlrol of labor relations of the eilplsoyees is cenitralized; anld there is a high inci- declll of temporary iunterch;lnge oif emiplo ees between the two firms W gre agrce ilth tic Adlillsirati e Law Judge that deferral to the arbi- trator's award which was introduced into evidence is inappropriate in the insltat case. In so doinig, we find that the arbitrator expressly declined to resolve the statulory issue before us Thus. ill his decision the arbitrator expressly stited that the "hbasic question befoire the Arbitrator is whether Harrishurg Dry wall is a 'subsidiary' or 'subsidiary building construclion cotmpanll' i Al Bryant, Inc. " wihinl the intendment o(f the c tntractl ile specilicall) staled that his role was limited to interpreting the ternis rif the agreeileti and did "n'ot extend to enforcing the provisions of the I abor Management Relations Act" 1'he arbitrator tlien found that the NIl R and court cases cited to him by the Uniotn were not enlightening as Io the definiionl of a "suhsidiars" and thus he relied oin dictionary definitions Based onl the tenor of the arbitrator's entire decision, it is clear he did tot cotsider the statutory issue It is also clear that the arbi- Irator did not have the same evidence before him as in the instant case. I-or example, he had neither the employment rosters of Harrisburg lDrywall nlor any information that Bryant signed bids for Harrisburg l)ryv all htavsitig l und for thlie abo've reasons that deferral is unwarranted, we finld it unnecessary to pass or rely onl the Administrative Law Judge's dis- cuissionr and coincluhiion that the arbitratlir', decision was repugnant to the policies of the Act -' In "TIhe Remedy" sectionl of his Decision. the Administratixe Law Judge recomltm ended that Respondents be ordered to, apply their collec- tie-h;brgaining agreeiment with Unlited ltrotbherhood of Carpenters aind Joiners tof America. Carpenters' l)istrict Council of Western Pennsylvsa- ia. AF-CI()O (W estern) "retroactiely wllhotult time limit . "How- ever. our niormal remedy foir violatlions of this nature is limited to the IO(b) period. We see no reason to extend the remedy beyond that period im this case Accordingly, we shall oirder Respondents to apply their col- lective-h;bargaining agreenentt vilth Weslern retroactive to April 3, 1979, the beginning of the 1(0h) period The lie AdministratiCe I.aw Judge also recommended that Respondents be ordered to reinmburse the trust funds provided for im the collective-bar- gaining agreementts and to retait conlribuionis it failed to make un behalf of unit employees of Harrisburg Drywall and Al Bryant Associates "with interest " Because the provisions tuf employee benefit fund agreements are variable anid complex, the I Board does not provide at the adjudicatory stage otf a proceeding for the additioni of interest at a fixed rate on unlaw- fully witheld fund payments We leave to the compliance stage the quesiunti whether Respondents must pay any additional amounts into the beliefit funds in order to satisfy our "make-whole" remedy These addi- tiotnal atltount s may be determined, depending upon the circumstances of each I case, by referenrce to prowvisions in the documents governing the funds at issue and, where there are nio governing provisions, to evidence .of aiin loss directlt attributable io the unlawful withholding action, which might include the loss of return on investmett (if the portion of funlds ithheld. additional administrativ e costs. etc., but not collateral losses M.erKwulther Optical Cornmpr n v. 2401 N .R B 1213 (1979) 128 AL BRYANT, INC., ET AL. 1. Substitute the following for paragraphs 2(a), (c), and (d): "(a) Recognize United Brotherhood of Carpen- ters and Joiners of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO, as the exclusive representative of the employees of Harrisburg Drywall and Construction Corporation in the aforesaid unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and apply the terms of the appropriate collective-bargaining agreement ne- gotiated by CPSA and said labor organization ret- roactive to April 3, 1979." "(c) Jointly and severally make the employees within said unit of Harrisburg Drywall and Con- struction Corporation and Al Bryant Associates, Inc., who are represented by Keystone District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, whole for any loss of earnings or other compensation they may have been denied since March 19, 1979, by the re- fusal to apply the terms of the collective-bargaining agreement to them, and reimburse the appropriate trust funds provided therein for those contributions which it has failed to make on behalf of said em- ployees, in the manner set forth in the section of this Decision entitled 'The Remedy,' as modified." "(d) Jointly and severally make the employees within said unit of Harrisburg Drywall and Con- struction Corporation, who are represented by United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO, whole for any loss of earnings or other compensation they may have been denied since April 3, 1979, by the refusal to apply the terms of the collective-bargaining agree- ment to them, and reimburse the appropriate trust funds provided therein for those contributions which it has failed to make on behalf of said em- ployees in the manner set forth in the section of this Decision entitled 'The Remedy,' as modified." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NorTicE To EMPIOYN Fi s POSTED BY ORDI)R OIF TH1l: NATIONAl LABOR RiI ATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL. NOT refuse to bargain with United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO, as the ex- clusive representative of our employees in the appropriate unit described below by refusing to recognize and to apply the terms of the ap- plicable collective-bargaining agreement with said labor organization to employees of Harris- burg Drywall and Construction Corporation. The appropriate unit is: All journeyman carpenters, layout men, and apprentices employed within the geographic jurisdiction of United Brotherhood of Car- penters and Joiners of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO, by employer members designa- ting CPSA as their collective-bargaining representative (including Al Bryant, Inc., Harrisburg Drywall and Construction Cor- poration, and Al Bryant Associates, Inc.), but excluding all other craftsmen, guards and supervisors as defined in the Act. WI. Wllt[. NOT refuse to bargain collectively with Keystone District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive repre- sentative of our employees in the appropriate unit described below by refusing to recognize and to apply the collective-bargaining agree- ment with said labor organization to employ- ees of Harrisburg Drywall and Construction Corporation and Al Bryant Associates, Inc. The appropriate collective-bargaining unit is: All journeyman carpenters, layout men, and apprentices employed within the geographic jurisdiction of Keystone District Council of United Brotherhood of Carpenters and Join- ers of America, AFL-CIO, by employer- members designating the Central Pennsylva- nia Subcontractors Association as their bar- gaining representative (including Al Bryant, Inc., Harrisburg Drywall and Construction Corporation. Al Bryant Associates, Inc.), 129 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but excluding all other craftsmen, guards and supervisors as defined in the Act. WE WIL.L NOI in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. Wt: wilI. recognize United Brotherhood of Carpenters and Joiners of America, Carpen- ters' District Council of Western Pennsylvania, AFL-CIO, as the exclusive representative of the employees of Harrisburg Drywall and Construction Corporation in the appropriate collective-bargaining unit described above with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and WE- Wll.t. apply the col- lective-bargaining agreement with said labor organization to those employees of Harrisburg Drywall and Construction Company, retroac- tively to April 3, 1979. WtE wi.ti recognize Keystone District Council of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the ex- clusive representative of the employees of Harrisburg Drywall and Construction Corpo- ration and Al Bryant Associates, Inc., in the appropriate unit described above, with respect to rates of pay, wages, hours of employment. and other terms and conditions of employ- ment, and WI Will. apply the collective-bar- gaining agreement with said labor organization to such employees of Harrisburg Drywall and Construction Corporation and Al Bryant Asso- ciates, Inc., retroactively to March 19, 1979. Wi. Wil. .jointly and severally make our employees within said unit of Harrisburg Drywall and Construction Corporation and Al Bryant Associates, Inc., who are represented by Keystone District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, whole for any loss of earnings or other compensation they may have been denied since March 19, 1979, by the re- fusal to apply the terms of the collective-bar- gaining agreement to them, and reimburse the appropriate trust funds provided therein for those contributions which we have failed to make on behalf of said employees. WI WL.i. jointly and severally make our employees within said unit of Harrisburg Drywall and Construction Corporation, who are represented by United Brotherhood of Carpenters and Joiners of America, Carpen- ters' District Council of Western Pennsylvania, AFL-CIO, whole for any loss of earnings or other compensation they may have been denied since April 3, 1979, by the refusal to apply the terms of the collective-bargaining agreement to them, and reimburse the appro- priate trust funds provided therein for those contributions which we have failed to make on behalf of said employees. AtI BRYANT, INC., HARRISBURG DRYWAL L AND CONSTRUCTION COR- PORATION AND Al. BRYANT, Asso- CIATES, INC. DECISION STATEMENT OF THE CASE JOEL A. HARMA'Z, Administrative Law Judge: This proceeding was heard by me in Harrisburg, Pennsylva- nia, on December 10, 11, and 12, 1980, and January 28 and 29, 1981, upon an initial unfair labor practice charge filed on August 10, 1979, in Case 6-CA-19417, and fur- ther charges, resulting in separate complaints, alleging that Respondents violated Section 8(a)(1) and (5) of the Act by refusing to recognize the Charging Parties and to apply the terms of the latter's subsisting collective-bar- gaining agreements to employees of Harrisburg Drywall and Al Bryant Associates.' In its answers, Respondents denied that any unfair labor practices were committed, and set forth certain affirmative defenses. Following the close of the hearing, briefs were filed on behalf of Re- spondents,2 the General Counsel, and the Charging Par- ties. Upon the entire record in this proceeding,:' including my observation of the witnesses while testifying and their demeanor, and after consideration of the post-hear- ing briefs, it is hereby found as follows: FINI)IN(;S OF FACIS I. JURISi)ICTIO N Al Bryant, Inc., Harrisburg Drywall and Construction Corporation, and Al Bryant Associates, Inc., are Penn- lhte originlll complaint in Case 6-CA 128(X) issued on May 30, 1980, "as amended on September 26, l980, and w.as again amended on Nolvem- her 24, 1980 Ihe original complaint in Case 6 CA 13716 was issued unlder Case 4 CA 10437 on April 30, 1980, and. after transfer to Region h iof Ihc National I .lhor Relatilonls Itoard, was amended on September 26. 1980) anlld jotilld swith Case t CA 13914 in a seco nd amended complaint. lhich issued on NovLtiher 21. 1980) The above proceedings were con- solidated h' ;lan initial order dated August 20. 1980. and a further order consollidating cases issued on November 21. 1980 ' Respondents. on December 10, 1980, at the close of the first day of the heariig, charged me with assuming the role of an adv;ocate and con- ducling myself in a manner manifesting a lack of impartiality At that tinme, and again ih respionse to a "Motion toi Recuse." which was made at the outsel of the cotllinued heairing on December 11 1980. I responded on the recsord It the accusationls and charges made by co-counsel for Re- spoindents ITh le lfresaid motion was denied Respondents' piost-hearing brief ti me inclhides soime 15 pages iterating its position that I denied Re- sptIrdetrils a fair and impartial hearinig Curiousit) is aroused that such a lact s uld he adopted, and sIlch mailltlers addressed Iio me directly at a time , heli I was con,uiderniig the nmerits. rather than the more appropriate and relevalnt course of deferring such matters to the appropriate review- ig t rr the rripd ayd c 'Certain errors im the transcripl are hereby noted and corrected. 130 Al. BRYANT, INC., ET AL sylvania corporations, engaged in construction of ceil- ings, floors, and drywall, with their principal office and place of business located at 2311 Hummingbird Lane, Harrisburg, Pennsylvania. It is alleged by the General Counsel that the foregoing, at all times material, have been affiliated business enterprises with common officers, ownership, directors, management, and supervision; have formulated and administered a common labor policy af- fecting employees of said operations; have shared common premises and facilities: have provided services for and interchanged personnel with each other;' and that, as such, they "constitute a single integrated business enterprise and a single employer within the meaning of the Act." At the hearing it was stipulated that, in the course and conduct of said operations, services valued in excess of $50,000 were performed by Harrisburg Drywall in 1979, a representative period, for the Commonwealth of Penn- sylvania. It further was stipulated that Respondents an- nually purchase goods and services exceeding 550,000 in and from sources beyond the Commonwealth of Penn- sylvania. The jurisdictional issue, as it affects Respondents, being predicated solely on facts pertaining to Harrisburg Drywall, depends vitally on the alleged single employer status of all three firms. That issue is also critical to the refusal to bargain allegations pertaining to Harrisburg Drywall and Al Bryant Associates. The latter, having been treated in subsequent sections of this Decision. and it having been concluded that consistent with the allega- tions in the relevant complaints, that these three firms constitute a single integrated enterprise and a single em- ployer for purposes of the Act, I find that Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. Iltl I ABOR OR(i.\NIZA IIONS INVOI.VEI) The complaints allege, the parties stipulated, and I find that United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Penn- sylvania, AFL-CIO, herein called Western, and Key- stone District Council of the United Brotherhood of Car- penters and Joiners of America, AFL-CIO, herein called Keystone, are labor organizations within the meaning of Section 2(5) of the Act. 111. TiHi 1 All.GIi) UNFIAIR I AFOR 'RAC I ICIS A. Preliminary Statement This consolidated proceeding once again raises ques- tions concerning the propriety under the Act of so-called double breasted operations in the construction industry, whereby distinct legal entities with common proprietary and managerial attributes function separately, with one utilized exclusively on a union basis and the other, or others, nonunion. The central figure in this inquiry is Albert Bryant, who, apparently for a number of years, has been a factor in the drywall, ceiling, and flooring in- dustry in Pennsylvania. The General Counsel claims that Al Bryant. Incorporated, herein referred to as ABI, a sCC (i (' [ 1\h (ll) firm owned wholly by Bryant and his wife, was party to collective-bargaining agreements covering "carpenters," negotiated between the Central Pennsylvania Subcon- tractors Association, herein called CPSA, and Keystone and Western, respectively. ABI was, at all times materi- al, a contractor engaged in the construction of ceilings and floors and the hanging of drywall, and functioned as a "union contractor" paying union scale and fringes and honoring the terms of applicable collective-bargaining agreements with Keystone and Western. On behalf of the General Counsel, it is further asserted that Bryant uti- lized separate corporations, namely, Harrisburg Drywall Construction Corporation, herein call Harrisburg Drywall, and, commencing on January I, 1980. Al Bryant Associates, Inc., herein called ABA, to bid on and perform identical construction work on a nonunion or open-shop basis. It is claimed that ABA and Harris- burg Drywall, together with ABI, constitute a single in- tegrated enterprise with ABI, that all three were, there- fore, through ABI's membership in CPSA and the lat- ter's authority to negotiate on behalf of ABI, bound to CPSA's contracts with Keystone and Western. Respondents, by way of defense, raise a myriad of pro- cedural and substantive issues. It is asserted that, inas- much as Keystone and Western both acquired knowl- edge that Harrisburg Drywall and ABA were function- ing on a nonunion basis more than 6 months prior to the filing of any unfair labor practice charge, the complaints issued on their behalf were time-barred by virtue of Sec- tion 10(b) of the Act. Furthermore, in connection with the claims registered on behalf of Keystone, Respondents point to the fact that the issue of whether Harrisburg Drywall was bound to any agreement with that labor or- ganization was submitted to arbitration in 1979, with a hearing held before Arbitrator James M. Harkless, on July 6 and 7, 1979, wherein the Union's grievance in quest of such determination was denied. On behalf of Re- spondents, it is asserted that said award is entitled to binding force pursuant to the Spielberg doctrine.; With respect to the merits, Respondents deny that ABI was ever bound as a signatory or party to any agreement reached between CPSA and Keystone and Western. It is further asserted, again in the alternative, that ABI, Harrisburg Drywall, and ABA were independ- ent firms having independent existence and lacking in any interrelationship which would confer single employ- er or alter ego status so as to permit enforcement of the National Labor Relations Act in a manner which would deem them responsible for any agreements reached by ABI. B. Background ABI was formed in 1967 by Albert Bryant. Since its inception, Albert Bryant has owned 90 percent of its stock. and his wife, Marjorie, the remaining 10 percent. At times material, that firm maintained its principal of- fices at 2311 Hummingbird Lane, Harrisburg, Pennsylva- nia, and functioned as a union contractor engaged in the .SP //cr t ufall/a ctur, ng (r, (' ,,pup.v, I 2 NI.RB IO 10 ( 1955 ) 131 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hanging of drywall, the insulation of ceilings, and the laying of floors. Insofar as the instant record discloses, the relationship between ABI and the Carpenters' Union dated back to 1972 when an agreement was signed, at the request of Al Bryant, with the International Brotherhood of Carpen- ters. That document provided as follows: Agreement AGREEMENT between AL BRYANT INC. herein referred to as the Company, and the United Brotherhood of Carpenters and Joiners of America. The Company agrees to recognize the jurisdic- tional claims of the United Brotherhood of Carpen- ters and Joiners of America, to work the hours, pay the wages and fringe benefits and observe the lawful working conditions (including lawful union shop agreements) established or agreed upon by the United Brotherhood of Carpenters and Joiners of America and the recognized agency of the locality in which any work of the Company is being done, with respect to journeymen carpenters employed by the Company. No change is to be made in the hours, wages and other conditions established or agreed upon in any locality. The Company will not subcontract any work within the jurisdiction of the United Brotherhood of Carpenters and Joiners of America which is to be performed at the job site except to a contractor who holds an agreement with the United Brother- hood of Carpenters and Joiners of America or one of its subordinate bodies, or who agrees in Nwriting, prior to or at the time of the execution of his sub- contract, to be bound by the terms of this Agree- ment. In consideration of the foregoing the United Brotherhood of Carpenters and Joiners of America agrees to furnish competent journeymen selected for reference to jobs upon a non-discriminatory basis, such furnishing to be made upon request of the Company and with the Company retaining the right to reject or accept the applicants for employ- ment. The United Brotherhood of Carpenters and Join- ers of America agrees that the District Council or Local Unions having jurisdiction in the respective areas of the performance of work will maintain ap- propriate non-discriminatory facilities for the regis- tration and referral of persons possessing the skills required for the performance of work by the Com- pany. The Company agrees to use said facilities in filling job vacancies on all projects. In the event that no such facilities are maintained or that the facility maintained is unable to fill requi- sitions for employees within a 48-hour period, the Company may employ applicants directly at the job site on a non-discriminatory basis. In such event the Company will notify the union of the names and classifications and the dates of such hirings. There shall be no strike or lockout pending any dispute being investigated and all peaceable means taken to bring about a settlement. The Company will post in places where notices to employees and applicants for employment are customarily posted all of the provisions relating to the above hiring arrangements. Company: Al Bryant, United Brotherhood of Inc. Carpenters and Joiners of America By [s] By [s] Albert I. Bryant President General President Prior thereto, a sole proprietorship, Harrisburg Drywall & Construction, was operated in the same field by an individual, Geno Premici. The latter, through his firm, had been engaged in drywall insulation and finish- ing on a nonunion basis. At some point, Premici sought Bryant's assistance with his financial problems. In conse- quence, in 1971, Harrisburg Drywall was incorporated, w ith Bryant retaining control as majority stockholder, and Premici becoming president and remaining the prin- cipal functionary of the business. Premuci's association with the new corporation lasted only about a year, and in 1972 his stock was redeemed by Harrisburg Drywall and Al Bryant retained ownership of all outstanding shares. Commencing in 1972, ABI, which had leased space at 2311 Hummingbird Lane from Al Bryant and his wife, subleased space to Harrisburg Drywall. 6 Later, Al Bryant, apparently, designated Charles May to be president of Harrisburg Drywall in November 1975. Bryant became vice president of that firm and its secre- tary. Harrisburg Drywall at no time signed any agree- ment or authorized any entity to negotiate with the Car- penters Union or its affiliates on behalf of its employees. Harrisburg Drywall engaged in the same construction activity as ABI but operated on a nonunion, open-shop basis. In addition to the International agreement, consider- able evidence was adduced reflecting on ABI's obliga- tions pursuant to agreements negotiated by CPSA with Western and Keystone, respectively. Apparently, in 1974, another employer association, Keystone Building Contractors Association, herein called KBCA, jointly with CPSA, negotiated a collective-bargaining agree- ment with Keystone for a term running from May 1, 1974, through April 30, 1977.7 Prior to expiration, that agreement was supplemented on April 18, 1977, by agreement betwieen Keystone and CPSA and extended for a term from May 1, 1977, through April 30, 1982.8 ABI was a member of CPSA. and Al Bryant was at the time of the hearing, and for many years before, a direc- tor of that association. Indeed, when the 1977 supple- ment was negotiated, Al Bryant was both the president and the sole spokesman and negotiator for CPSA and it ' As thure wa, no rirlten leasc hbclren ABI and liarrisburg Drywall, Iblis lpparcnllt) \:.is ptlrsu.llll to ecrhal und'rstarndlng S'cc (i C Ix h 4 Scc (iC I xh 5 132 AL. FIRYANI, [NC., ET AL was Bryant who executed that document onl behalf of CPSA. Notwithstanding Al Bryant's involvement in the 1977 negotiations it is contended that ABI was at no time bound by the results of multiemployer negotiations for "carpenters. " ' Like Keystone, Western had also negotiated a series of contracts with CPSA. In the 1975 negotiations, Nancy Linn Shaffer was the chief spokesman for CPSA. She furnished Western with a list of employers for w hom CPSA was authorized to negotiate. That list included ABI. " ) Three years later, and 1 year after Bryant negoti- ated the 1977 supplement with Keystone, Western, in 1978, commenced contract renewal negotiations with CPSA. Orin Remsnyder was the chief spokesman for CPSA. At the outset of said negotiations, Western re- quested and Remsnyder provided a list of contracting employers. Once more, the list included ABI. ' While the 1977 Keystone supplement and the 1978 agreement with Western were in effect, ABI adhered to the terms thereof when operating within the geographic jurisdiction of each of these respective labor organiza- tions. Harrisburg Drywall operated nonunion and failed to honor said agreements. Beginning in 1977, Keystone began to receive com- plaints from carpenters employed by Harrisburg Drvwall concerning their retention at less than union scale. How- ever, no legal recourse wvas sought until March 19, 1979, when Keystone filed a grievance against ABI under the basic agreement, seeking to bhid Harrisburg Drywall to the terms of the subsisting agreement. Arbitrator Hark- less issued his award on October 29, 1979, denying Key- stone's grievance. While the proceeding before the arbitrator was pend- ing, unfair labor practice charges were filed on August 10, 1979, by Keystone in Case 4-CA-10417,' 2 charging ABI with 8(a)(1), (3), and (5) violations for utilizing a nonunion subsidiary and refusing to recognize the Union as representative of the employees employed by Harris- burg Drywall. On October 3, 1979, in Case 6-CA-12800, similar charges were filed by Western in connection with Harrisburg Drywall's performance of a job in Venango County, Pennsylvania. During the pendency of these charges, but prior to the issuance of complaints thereon, a third corporation, ABA, was formed. This time Al Bryant relinquished ownership control. Thus, ABA was capitalized on the basis of Bryant's contribution of all of the outstanding stock of Harrisburg Drywall, and the contribution of 9 The enabling rules of CPSA were notl introduced However. parole testimony was offered to the effect that employer-members of Ct'SA are not bound to collective-hargaining agreements negotiated b' said associ- ation absent prior. written authorization to that effecl. Apparenlls he- cause of differences between the strict carpentry craft and the work of "floor layers," a separate agreement is negotiated by CPSA for "flloor layers." The dispute in this case centeers oi members of the c.lrpenlry craft rather than floor layers AHI conzedes that CPSA .as authorized to bargain on its behalf with respect to the floor layers. and thai it was bound to CPSA's contract covering them ABI denies that it had effctled such an authorization with respec to the "carpenters." '0 See GC Exh 25 I See GC Exh 496 12 By action of the General Counsel on August 15, 198(, Case 4 CA 10417 was transferred to Region 6 of the National L.abor Rclations Board and redesignated Case 6-CA-1371h S20,000 cash by Jean Hoffman and Larry McClain.'3 Al Bryant's interest in ABA was that of a 30-percent share- holder. Hie held the offices of vice president in charge of sales and treasurer. Hoffman and McClain each retain 35 percent of the remaining outstanding shares. ABA beginning in 1980. like ABI and Harrisburg Drywall, operated as a contractor engaged in the con- struction of ceilings and floors and the hanging of drywall. As was true of Harrisburg Drywall, ABA func- tioned exclusively on an open shop nonunion basis and did not adhere to the CPSA bargaining agreements. Thereafter, on October 6, 1980. an unfair labor prac- tice charge implicating ABA was filed by Keystone in Case 6 CA-13914. The charges, as amended, alleged, inter alia, that ABI, ABA, and Harrisburg Drywall re- fused to bargain with Keystone as representative selected and designated by an employee majority. C. Concluding Findings 1. The 10(b) issue The threshold question is whether the 10(b) defense was raised by Respondents in a timely fashion. Respond- ents failed to affirmatively raise the 10(b) defense in its various answers. It, nevertheless. sought dismissal on that ground prior to the conclusion of the General Counsel's case. Based thereoni at that time, the General Counsel and the Charging Parties were apprised by me that they would be afforded latitude in meeting that defense during the hearing. Accordingly, any possible prejudice in consequence of belated injection of the 10(b) issue was removed, and I ruled that the defense was viable and a proper subject for litigation. 4 The General Counsel and the Charging Parties seek reconsideration of this ruling. However, contrary to their view, those asserting the 10(b) defense assume no obliga- tion that it be pleaded affirmatively. It is sufficient that the matter be raised in a timely fashion. See, e.g., Vitronic Division of Penn Corporation, 239 NLRB 45 (1978). In this instance, the matter was raised at a time and under conditions which permitted litigation of the matter with- out prejudice to the parties, and without undo prolonga- tion of the proceeding. The ruling made in this regard at the hearing is reaffirmed. Section 10(b) of the Act precludes the maintenance of a complaint upon conduct occurring "more than six months prior to the filing of the charge." Harrisburg '' Hofti'nln and NliC lain at Ihe time were key employees of ABI In additon(ll. offman was an officcr and director of hboth ABI and Harrli- burg Dr s) all Ha;ling ruled in Respondents' favor in this regard. Respondenls later nlied to anlend its ans. ers It this effect I ruled that sucah action ",as unrnecessary. as a mailer of subtance., in view of the ruling set forth in the above texl and allso improper in the circumstances Respondents also contended Ihat under the Federal Rules of Civil Procedure. pleadings ma) be amenided to lonfrirnm with respect t o issues tried "hs express irr implied conlcnsti of the parties "In this respect. Respoidenrl, rel sor the factl hat il as idesnce supporling the lO(h) defense as, elicited wilh- out ihbjcillton by either the General Counisel or the Charging Parties, this consliitules "implied consent." Alihough the issue need nol be reached. I find ti( nmerit i tlhis view' I an not :onvsinled Ihal the facts In questilln were Irllrtdulied uendcr cot1dilolls conr5.1sllng knosledge. appreclatlitl. uidelrstanding, or suspicion. that th5e mighl be selced on later tio support the I(th) hi tfelise 1 33 DECISIONS ()F NA I IONAL I A()OR RE ATIONS BO()ARI) Drywall plainly was engaged in operations well in ad- vance of the 10(b) period. However, the onus was on Respondents to demonstrate that the Charging Parties were aware that ABI was engaging in actionable con- duct through Harrisburg Drywall more than 6 months before the filing of the charges herein. In this connec- tion, undenied evidence establishes that Harrisburg Drywall was operating nonunion and that Keystone was aware Western suspected this fact more than 6 months before filing the charges that formed the predicate for this proceeding. Thus, with respect to Keystone the ini- tial charge herein was filed on August 10, 1979. Robert Getz, the secretary-treasurer of Keystone, testified in the arbitration proceeding on July 6, 1979, that in 1977 a union member, Ortega, complained about wages he was receiving from Harrisburg Drywall and that Bryant was operating an open shop.' 5 Getz acknowledged that this was confirmed through his investigation in January 1979 of health and welfare records reflecting contributions of union members that he knew to be working full time under Bryant's aegis but were not receiving full-time credits. He further testified that, on questioning the members as to the amount of hours they were working, he learned that they had been working part time for Hiar- risburg Drywall. "' With respect to Western, the initial unfair labor prac- tice charge was filed on October 3, 1979. Insofar as this record discloses, Western acquired knowledge of Harris- burg Drywall in connection with a subcontract awarded by the State of Pennsylvania to that firm on the Polk Center located in Venango County, Pennsylvania, a site within the geographic jurisdiction of the latter. Respond- ents point to the testimony of George Garfield, a busi- ness representative of Western, in this connection. Gar- field testified that he noticed from a "Dodge Report" ' 7 that Harrisburg Drywall had the job at Polk. He tele- phoned the number appearing and the person answering the phone identified himself as Al Bryant. Bryant w\vas asked if he would need union personnel on the job, and replied that he would not, because he was doing the job under Harrisburg Drywall. Garfield indicated that the job should be performed under Western's contract with CPSA. According to Garfield, Bryant did not "seem to agree." According to Garfield, it was not until June 1979, and subsequent to this conversation, that work on the Polk Center job actually commenced. On cross-ex- amination, Garfield placed the telephone conversation with Bryant as preceding visits to the jobsite which oc- curred approximately in January 1979. Garfield's testimony must be considered together with that of Robert Argentine, Western's executive manager. 's In addition to' the foregoing, Richard W. Maril, a business agent for Keystone, testified before the arbitrator on July h. 1979, that he first learned that Bryant 'was operating two shops when Ortega regisiered his complaint in 1977 l" George Gulliver, the son-in-law of Getz, testified that he was hired by ABI in August 1978 and further confirmed that on Noveniber 19. 1978, after receiving his first paycheck from Harrisburg Drywall. he it- formed Getz that he had worked for Harrisburg Drywall. and that. Ironm this discussion, it was evident that Getz already k;lew; that Harrishurg Drywall was nonunion " The "Dodge Report" is a publication. identifying cont ractors aInd subcontractors on contracts let in the construction indusiry. Argentine testified that Garfield reported that the Polk job was being performed by Al Bryant doing business as Harrisburg Drywall. Because Argentine was informed by Garfield that "he hadn't been able to do much with him" toward the end of May, on or about May 23, 1979, he spoke with Bryant on the telephone. Argentine advised that he expected him to honor the contract at Polk Center and was informed that Bryant had let the job to Harrisburg Drywall. Argentine expressed that this was in violation of the contract, and threatened to "push it to any extreme . . . to see that our contract was enforced." When Argentine observed that the prevailing rate had to be paid on the job anyway, and appealed that it be per- formed consistent with the contract. Bryant allegedly re- sponded, "I'll get back to you." Bryant never again con- tacted Argentine, who prior to the filing of the charges made several unsuccessful attempts to reach Bryant. With respect to Western, the evidence does not sub- stantiate that the latter was apprised of actionable unfair labor practice until within the 10(b) period. The 10(b) cutoff date with respect to this the Charging Party was April 3, 1979. The record does not permit a firm finding that Harrisburg Drywall commenced work at the Polk job as of that date. Obviously, no arguable unfair labor practice would inure until such time as Harrisburg Drywall conmenced operations under employment terms distinct from those in the CPSA contract with Western. The declaration by Bryant of his intention to perform that job on a nonunion basis was not an actionable unfair labor practice and hence did not activate the 6-month limitation. '" Furthermore, the indication by Bryant in the May telephone conversation with Argentine that he would get back to him, at a very minimum, conveyed to Western the possibility that there would be further con- sideration of its demand with respect to the Polk job. In sum, it is concluded that Respondent has failed to meet its burden of proving that Charging Party Western was put on notice of any unfair labor practices committed by ABI through Harrisburg Drywall on or before April 3, 1979. Unlike the situation with Western, however, it is clear that Harrisburg Drywall had performed on a nonunion basis within the geographic jurisdiction of Keystone and that Keystone representatives were aware, thereof, more than 6 months prior to the filing of its unfair labor prac- tice charge. In the face of the foregoing, the General Counsel contends that Section 10(b), nonetheless, does not constitute a substantial defense, inasmuch as the vio- lation was a continuing one, and the facts within Key- stone's knowledge did not constitute clear and unequivo- cal notice inasmuch as Keystone was not aware of all the elements establishing that Harrisburg Drywall and ABI constituted a single employer, and indeed had been misled with respect to such matters by Al Bryant him- self. It is also noted that Bryant testified that after Ortega had complained to Keystone he received a visit from Keystone Representatives Martz and Getz. What tran- spired on that occasion was related by Bryant as follows: * Ste, e g ( iiy Roo/fing (Co. 222 Nl RBi 7h86 . f (1976), and Cahfiir- ta . htIi/ i/Pruivl iunl Ptl' '( hio', 227 NI. Ri 1657 fri 1 (1977) 134 Al IBRYANT, INC. El Al All right, they came to my office and said that they had a complaint from a Mr. Ortega that he wras paid less than scale by Harrisburg Drywall. I explained to them that I had nothing to do with Harrisburg Drywall, they said well, you own it, and I said yes, I do own it but I don't run it, I have nothing to do with it. They ended up the discussion with me saying okay he [Ortega] has nothing to complain about if he was working for an open shop company, then he has no valid claim that he was paid less than union scale, because Harrisburg Drywsall is not affiliated and went back and as they told me they were going to tell him that he was not entitled to any additional funds and that there was no complaint against Al Bryant, Incorporated but would I please do \what I could as the owner of Harrisburg Drywall to see that it did not use union-members of the union on their work. This representation by Bryant, if true, would tend strongly to exonerate Harrisburg Drywall from any bar- gaining obligation under the Act or any unfair labor practices in continuing to operate nonunion. "The Board has pointed out that common ownership, by itself is not sufficient . . [to establish single employer status]." See United Constructor s and Goodwi in Construction Company, 233 NLRB 904 (1977). Furthermore, as shall be seen, Bryant had far more to do with the operations of Harris- burg Drywall than his own testimony indicates that he conveyed to union officials in connection with the Ortega matter. Furthermore, the evidence does not dis- close that more accurate information regarding Bryant's involvement came into the hands of Keystone prior to the 10(b) cutoff date. Relevant to the question presented is the Board's statement in Don Burgess Construction Cor- poration d/b/a Burgess and Donald Burgess and Verlon Hendrix d/b/a V & B Builders. 227 NLRB 765, 766 (1977), to the effect that: It has long been recognized that when a party "has been injured by fraud and 'remains in igno- rance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered...."' On balance, however, I am not convinced that such an extension is warranted here. Prior to the 10(b) cutoff date, Keystone was mindful that its members had been employed by Harrisburg Drywall; that Harrisburg Drywall had performed work covered by the CPSA contract; that Harrisburg Drywall had not adhered to the terms of that contract, and that Al Bryant owned Harrisburg Drywall. Those facts were in no way influ- enced by any representation made by Bryant, and objec- tively viewed would strongly have suggested possible il- legality in Harrisburg Drywall's operations. '9 Anomaly 'I No precedent is called to my attention requiring the offended panrt to be aware of all faciual elements suhstantiating an unfair labor practice before the I(tb) period begins to run All that is required is that the "act" giving rise to unlawful conduct he known To require more .would reduce 10(h) to the meaningless Seldom dtoes all aggriesed part) com- prehend what is and s hat is not determnnati e of a cause Furthermore. would result if Section 10(b) were interpreted as tolling the limitation on the basis of an exculpatory statement by the perpetrator of unfair labor practices. For example, in virtually a discriminatory discharge cases, the employer represents to the discriminatee that the discipline im- posed was for a legitimate reason. The fact that this is later shown to be pretextual and false could not possibly serve to neutralize Section 10(b) without eliminating completely the 6-month limitation in most discharge cases. The representation attributed to Bryant is no more egregious, and I find that it did not rise to the level of fraud which would warrant rejection of the 10(b) de- fense. Nonetheless, the inquiry does not end here, for the General Counsel contends in the alternative that the ab- negation of obligations by an employer or labor organi- zation under a collective-bargaining agreement consti- tutes a continuing violation for purposes of Section IO(b). Under this approach. though statutory relief will not extend beyond the 10(b) cutoff date, the fact that initial repudiation of the agreement occurred prior thereto does not absolve a respondent from the unfair labor practices which inure from its continuing failure within the 10(b) period, on demand, to execute or formally abide by such agreement. See, e.g., Torrington Construction Companyv. Inc., 235 NLRB 1540, fn. 2 (1978). In the instant case, by letter dated March 19, 1979, Keystone, through its attor- ney, informed Bryant that Harrisburg Drywall was cov- ered by the applicable agreement, and that it was obligat- ed to adhere to the terms thereof. 20 By virtue thereof, and Bryant's failure to satisfy, the demand, I find that the alleged violations, to the extent predicated upon events on and after March 19. 1979, were within the 1O(b) period and are actionable in this proceeding. 2. ABI's obligation under CPSA agreements The crucial predicate for the allegations in the instant complaints is that ABI was contractually bound to CPSA agreements with Western and Keystone. Re- spondents deny this to have been the case and if that view is valid no violations would inure even if ABI, Harrisburg Drywall, and ABA constituted a single, inte- grated employer within the meaning of the Act. As indicated, Keystone and Western both enjoy a bar- gaining history on a multiemployer basis with employers who negotiate through CPSA as their agent for such purposes. With respect to Keystone, CPSA executes sep- arate agreements for "carpenters" and other members of the carpenters' union who are engaged in the apparently less skilled "floor layer" classification. As to Keystone, Al Bryant conceded that he authorized CPSA to bargain on behalf of ABI with respect to soft floor layers, but not the "carpenters" on whose behalf this proceeding is being maintained. Bryant went on to testify that although AHI is a "union contractor," functioning within the geo- experiencc shows that dispositi'e elements of an unfair labor practice ,ften first emerge at the hearing Absent clear precedent. In such circum- stanceLs ain otlher' lse meritolri 'us assertion of I)(b) shall not be oserrid- dcl bhc:ause critical clemcnis oif unla ful conduct are unknown to the movring part) :" See (, ( Exh 9 135 DECISIONS O() NATIONAL L.ABOR RELATIONS 1()ARD graphic jurisdiction of Keystone and Western, ABI had never become bound to either labor organization's con- tract with CPSA covering "carpenters." Undisputed, believable evidence establishes that CPSA is an organization which includes as members subcon- tractors in the construction industry as well as others who are not engaged directly in construction work but who have interests in that industry. The responsibilities of CPSA include, but are not limited to, negotiating col- lective-bargaining agreements with various crafts repre- sented by building trade unions. Although undocument- ed, I find that CPSA's negotiations with various labor organizations were binding only upon those of its em- ployer-members who had afforded prior, written authori- zation of their intention to be bound. Although ABI, at least since 1972, had been a member of CPSA, Bryant claims that he at no time executed such an authorization with respect to the carpentry craft as represented by either Keystone or Western. For the reasons set forth below, I discredit Bryant's testimony in this regard. Bryant admitted that ABI was a proper party to and bound by CPSA's negotiations with respect to soft floor layers. Though he acknowledged that ABI utilized both soft floor layers, and "carpenters," and indeed used the same individuals to perform both types of work, paying the rates under the appropriate CPSA contract as the work of these individuals shifted between the jurisdic- tional coverage of the agreements, no explanation was offered as to why ABI would have authorized CPSA as to one but not the other. More critical, however, is Bryant's admitted role in the affairs of CPSA as they related to Keystone. At the time of the hearing, Bryant was a director of CPSA and had occupied that position "a couple of years." He was president of CPSA when CPSA on April 18, 1977, ex- ecuted a memorandum agreement with Keystone, renew- ing the terms of an existing contract to April 30, 1982. Al Bryant was not only spokesman for CPSA at the time, but alone negotiated the agreement binding upon certain CPSA employer-members. Thus, Bryant, in his testimony in this proceeding, portrays himself as having used his position within CPSA to negotiate an agreement binding upon organized competitors, but not his own firm. Prior to the execution of that document, Bryant, by letter dated April 15, 1977, wrote Robert Getz, secre- tary-treasurer of Keystone, pertaining to those negotia- tions, requesting a minor change, which was justified in Bryant's own words, as follows: Bob, as I explained, we as subcontractors can not sign an agreement stipulating that we will perform "all the work" in view of the fact that we have no control over the distribution of all the work. We can, however, agree to perform and/or subcontract that work which we obtained, which is all the work we actually control. If this meets with your approval, please call me and we will arrange to sit down and execute the new agreement. 21 2' See GC. Exh 6. In all, the first person plural was used seven limes by Bryant in this passage Following execution of the agreement, Orin Rems- nyder, the executive director of CPSA, by letter dated May 12, 1977, informed Keystone of the employer-mem- bers bound both to the "carpenter" and "floor layer" agreements. 2'' Al Bryant, Inc., was listed in both catego- ries. Bryant acknowledged having received a copy of this letter. The Remsnyder letter is of course highly material to Respondents' denial of any contractual commitment with respect to the "carpenter" agreement. Suspicion was hardly allayed by Bryant's reaction when he was asked to identify this document at the hearing. At that time the following colloquy took place: Q. (By Mr. Franckiewicz) I'm showing you what's been marked General Counsel's Exhibit 7, would you tell us what that is please? This is a letter which Orin Remsnyder of C.P.S.A., sent to Mr. Getz, with a copy to you, is that correct? MR. BlCKI. EY: Objection to the form of the ques- tion, it presupposes a true statement. THi WIINESS: I have no record. Q. (By Mr. Franckiewicz) This a copy you re- ceived of a letter signed by Mr. Remsnyder is that correct? MR. BECKI.I Y: Objection to the form of the ques- tion. Jul)t;, HARMA[rz: Why don't you ask him to identify it. Q. (By Mr. Franckiewicz) What is this? A. It appears to be a letter from Mr. Remsnyder to Mr. Getz, listing those people that are in signed agreement for the Carpenters and the Soft Floor Layers. Q. Okay, and you will notice the carbon copy to Al Bryant at the bottom? A. I notice it, but I have no record of having re- ceived it. Q. All right, at the arbitration proceeding, did you testify about this letter? A. I didn't, no. Q. Let me see if I can refresh your memory. As a matter of- JUDG)I. HARMAITZ: Let him show you the tran- script. THI WiiNESS: Yeah, okay. Q. (By Mr. Franckiewicz) Now, on General Counsel's exhibit 7, you will notice that I have scratched out Union exhibit 3, this was Union ex- hibit 3 at the arbitration? A. Right. Q. And you were asked- MR. BE CKE Y: Would you tell us please, what your are referring to? MR. FRANCKIEWICZ: Page 58. '2 See G, C Exh 7 136h AL BRYANT, INC., ET AL. Q. (By Mr. Franckiewicz) You were asked if you got a copy of that letter marked Union exhibit 3, that shows a cc at the bottom? A. Yes. Q. And you testified yes? A. Right. MR. BECKII ': He's doing it again, sir, let the witness read on with the testimony. MR. FRANCKIE WICZ: I'm willing to go on with the rest of the page, I will read it from the record. MR. BECKiI Y: Yes, please do that this time. MR. FRANCKIH 5ICZ: All right, and the witness was then asked, "You did receive a copy of that?" A. I assume so. Q. (Continuing) Do you notice Al Bryant's name listed? A. Yes, I do. Q. On both Soft Floor and for Carpenters'. A. Yes. Q. Did you ever object to that?' A. Yes. Q. When' A. To Mr. Remsnyder, .shen I received the letter. Any further that you want me to go' I think I've covered it all. MR. BI:CKI 1': I think we could have it xeroxed, and the rest of it put in. MR. FR/,NCKII-WICZ: Well, it's already in. I offer General Counsel's exhibit 7. JuI)(;li HARM1AIZ: You couldn't have been mis- taken that you had objected to the name of your firm appearing on that letter'' THE WlrNiESS: No, that I couldn't have been mis- taken. JUDGI HARMAtZ: Okay, and it was the fact that your firm was listed in that letter, that made you object' THI. WITNtuSS: That's correct, sir. JUi)(;i HARMATZ: So you must have received a copy of that letter? THE Wit-NESS: Well, that's why. as the conversa- tion started, I started to say something that I re- membered a discussion about it, but then I didn't know whether I was going to be talking about the wrong thing, very frankly. JUI)(,. H ARMA IZ: Now. with the refreshing of your recollection,- TItl W'ITNESS: Yes, sir JUI)GE HARMATrz: You are positive that you re- ceived a copy? THE Wl NI SS: I'm positive I received it JUDGE HXaRMATZ: What is marked as General Counsel's 7? THIE WITNESS: Yes, sir. Julx)(, H\RMNAIZ: Okay, so be it As indicated in the above extract from the transcript, Bryant claimed that when he received a copy of Rems- nyder's letter, he immediately protested, not to Key- stone, but to Remsnyder. Bryant further testified that Remsnyder was instructed to notify the Union that CPSA lacked authority to bargain for ABI and that Remsnyder assured Bryant that he would do so. In assessing the credulity of this explanation it is of in- terest that Bryant himself had been involved in the pro- cess of responding to Keystone's requests for the very in- formation that was contained in the Remsnyder letter. Thus, by letter dated April 18, 1977, Bryant wrote Key- stone as follows: Attached is a signed copy of the new Agreement between CPSA and the Keystone District Council of Carpenters. As you know, CPSA is signing on behalf of those employers who have given us bar- gaining rights. Since I do not have a copy of the bargaining rights in my office, I will send you a list of the contractors and a photocopy of the bargain- ing rights as soon as Orin Remsnyder returns from the convention in California (next week). cc: CPSA Office Bryant obviously chose not to inform Keystone of the status of ABI at that time. Remsnyder, in an attempt to corroborate Bryant, testi- fied that at the time he prepared his subsequent May 12 letter he was very new on the job. and did not under- stand the nature of Keystone's "repeated" requests for a listing of CPSA members bound to the new agreement. He claims not to have really known how to respond to Keystone. Remsnyder claimed to have obtained this in- formation, not from Bryant, the president of CPSA, who himself had testified that he alone negotiated the con- tract, 2a but from Marlin Slough, a director and member of CPSA. 2' Remsn)der further testified that having forwarded a copy of the May 16 letter to Bryant he received a tele- phone call from the latter. Bryant assertedly informed "that he had not given CPSA his bargaining authoriza- tion at that time. " '2 whereupon. Remsnyder claimed to have searched CPSA's files and found no bargaining au- thorization from Bryant. Beyond that, Remsnyder initial- Iy testified that he "thought" that Bryant asked him to inform the Union of this fact, and that he "thought" that he did contract Getz as directed. "' A2 A Inidicllted. ,i cops of HrsNanl, April I8 letter to Kesilocll coi- cerning 'such a hi'llng lsua sent Io "CPSA office " See G C Fxh s 2 Rmenrlder tesiflied Ithal the 1977 negotiations "sere cr nducild ton hehalf iof Ci'SA hb Chiet Ncgoliator Marlin Slough Ils tcstrinionn in this regardil .'rlilitis s ilh tlrain, s ownrl acknots ledgerent Ihall he ahone nego- tniied ihe 1'17 agrecmtien ulth KeNsltorn Slough did not tcll i I did nol hehiec Rcrllsmldcr .ilnd regard it ;i, snomnicha extraoirdinar, Ihal he xtould conrlt i ll preparing Ihe list s.ith ansnte otlhr than Hrsant him- sclf. ' ho is prslcnllt Io CPSA ahlone had negotiated Ihe agreement and %xi[ho h1 lld "ritie lti 1I tUIon thaii uhIbIIssr i1n of this scrs list 0 oull he de- Ierrcd uiltil RnllsMisdcrs' return :; Rtcmsnlsdr testi'ied Ihat, though h d had t emplosed hs ClI'SA 1IICe Juill 197h. ire haid lotl kilomml prrcxsousl infrirnltiotl thalt hbargaining ,iltlhori/illlliis 5crc required hclorc it' cntilploer-retihcr could he hou1dl t0 1 I} IsirIi ,1' ,It C i'SA tglott.llions 5 5 il s riotls labohr otrg.all/ a- iiiit 2 ,e i/ l I it11 ed cscl haxling rccciscd LicI h flol rmatiollnr from arll so)ureC I crtdl (itl o.etr Retmlstidcr IIn this regiard Rcnnsllder did nei1 Impress is his irtg ind pl iideillt ro lJlctlOrl i ofti t stl ITiittter. 'lld ilI ciri c ciiit he \,\ rtgirdcd ,1s il lrtltlr ble kls11-tr s 137 DECISIONS O()F NAII()NAl LABOR REI.ATIONS BOARD A further fact casting doubt on the veracity of Rems- nyder in this respect emerges from Respondents' claim that CPSA had not been authorized by ABI to bargain with respect to "carpenters" with any labor organization, including Western. Unexplained is the fact that Rems- nyder, who would have me believe that he made a criti- cal error in 1977 by including A131I in the list of employ- ers bound to the Keystone negotiations, apparently re- peated that mistake in 1978, when a similar list Wias de- livered by Remsnyder to Western in connection with CPSA's negotiation with that labor organization. Again ABI was listed as among the contractors having author- ized CPSA to bind them with respect to a contract cov- ering carpenters.27 Unlike what transpired a year earlier, Remsnyder affords no explanation as to why ABI w\as included on the 1978 listing. or whether not he cleared this matter with Al Bryant before doing so. With respect to Western, the denial by Bryant that ABI had duly authorized Cl'SA to bind itself is totally lacking in corroboration. According to the uncontradict- ed testiniony of Robert Argentine, Western's executive manager, CPSA first negotiated on behalf of its employ- er-members w ith W'estern in 1972. Subsequent negotia- tions in 1975 and 1978 produced renewal agreements with the most recent expiring in 1981. Nancy l.inn Shaffer was the chief spokesman for CPSA in 1975. At the request of Western in 1975, Shaffer provided a list of the contractors represented by CPSA at the time. ABI was listed among the "employers who have granted bar- gaining authorizations to CPSA for the 2() county Dis- trict Council Carpenters of Western Pennlsylvania Agree- ment. " 2' During the 1978 negotiations, Orin Remisnyder was the chief spokesman on behalf of CPSA In the course of negotiations, a list of the contracting firms rep- resented by CIPSA 'was requested by Western anid pro- vided by CPSA. ABI ,was included on that list. '" No claim was registered herein that ABI was includled on the 1975 and 1978 listings erroneously.: " Nor is there esi- dence that A131 had ever notified CP'SA or Western that it had not designated CPSA to bargain in its behalf swsith that labor organization. ' 2See (i C t lh 26n See (i C(' I x 2h See ( C t ihi 2t5 "' In the circumstancel,e I fild the crlics ol (iCt ixhl 25 aillld 2(1 I be hirlnding on Respoideitsi Uncolltra ictcd ' dviidlCe e(ahlihic thali CPSA delivered the listitlg il qucstioln Ito Argentinle in the colrse ioi Ctl'SA's iegiotiatioills ilh Wctecrnl iI 1975 anid 1'78 \'ithi rchpect tI the 1978 negoltiatioi s, Remmider' oi mi tctilnlolny ci nriirr tliihal il lf thi t time. hie \would hal, h been a;lware o the sigrfificaTice of liting anll cmploser that had failed t auithorize CP tSA to hargain on it, hbehalt' I Firtihrimie. Reims nd' r sis a' ailahlu Io t c tofil 1l all circuilar lc,, beciotldilg thie authentlliily il (it I xih. 2{ A cilcilnlst antii l ihal i tlslim , ,shichl 1t ior- robonrativ,. throiugh irellcrl. e, or the acciuracs Iherenl i IllrlhLrrlilr, r i', C(PSA rlitolilates agrticlllriei hirldlilg 1i11()i eLurploiicrs eCt'ClIIing pl pir isritten authorvation% as a regular panrt of it otperatilinls. (nie light rilghi- fully ainume thlat (i C Exh. 26 lould its origil il hbusi ne records C gki- larly maintained hy C'PSA il ulpporl of Illiall funcltio St' ' I c R ol i-vid . Rule 803 8(h " It will be rccallcd thai Recnllydcr tietificd Ihalt ic Illtltiiisd kchs,ltne Itlat Alt hald lltl autihorized Ct'SA to hbargalill olil Iit heialf I hougligL tim, teslirnony wlas lnol behlieed. it is I tel d ltha Rcnllrsidcr d lill iii t tv i lil' that anrt such c(llmTlTllm atlil lu W as c :Cr iort ardeil Iin arrl rCpriCci il i iC iii' 'AC',i rni While I reject as unbelievable the testimony of Bryant and Remsnyder to the effect that CPSA held no written authorization to bind ABI to negotiated bargaining agreements with Keystone and Western pertaining to conditions of work of "carpenters," the assertion that ABI was bound to such agreements is maintainable on other grounds as well. Thus, under settled Board author- ity. an employer may be deemed bound by results of multiemployer negotiations, even though express authori- zation of bargaining authority be withheld, and the em- ployer had not signed the contract, if the employer's conduct manifested an intention to be bound." 2 The in- stant cause presents a strong context for application of that principle. Al Bryant. the president of ABI, who to- gether with his wife owned all stock of the firm, consid- ered AHI to he a "union contractor." While asserting that his status was voluntary and not based on contrac- tual commitment, he concedes that ABI's operations ,,ere marked in their entirety by adherence to the terms of contracts negotiated by CPSA including the payment of required fringe benefits and observance of union-secu- rity and dues-checkoff proxisions. In addition to his adherence to the terms of those agreements, Bryant, beginning il 1976, attended and even hosted joint labor management meetings through which members of CPSA sought relief from their ad- verse competitive position with nonunion subcontractors Furthermore, pursuant to separate contracts negotiated by CPSA with seven craft unions in the building trades, including the Carpenters union, a trust fund was estab- lished, which was jointly administered by labor-manage- ment representatives. At least since March 1, 1977, Al Bryant has been a trustee of said fringe programs and hence presumably was in a position to influence the ad- ministration of benefits of craftsmen covered by the CIPSA agreements including "carpenters." Finally, as in- dicated. Bryant's positions as director, president, and ne- gotiator on behalf of CPSA would unmistakably convey that he \\ias situated identically to ABI competitors that had duly effected bargaining authorizations to CPSA. As Bry ant colcceded that hlie had not informed Western or Ke ystone that ABI was not bound to the agreements ne- gotiated with those labor organizations by CPSA, and other testimony as to the existence of such notification has been rejected, I find additionally that ABI through the conduct of its principal owtner and functionary Bryvant manifested an unequivocal intentionl to be bound to CP'SA contracts s ith Western and Keystone to the point of raising an eslopple against denial of that fact. "An employer who, through a course of conduct or oth- erwise, signifies thwat it has authorized the group to act in its behalf will be bound by that apparent creation of au- thority." Josucphl MeDanil, anr Idividual Proprie(torship d/h/ta CFuqon Co/lors Contractors;, 226 NI RB 851, 853 ( 1)76h) I lhat is precisely sh hal occurred here.: :' Stt, g. /Int ulrjri t i:/ncr . / , 242 Nt RH 73) (I 17i ) Jl.itaed 1111 ithe l reggniie, I1 Is IillLCeCsaIrs tO paus upinlite ti' lgall tCOil- CeiiteI1CCs 1ti \'it ' CICC uilllllUI of ihe IllClllliollal a rl c tll itC 1972 See (i £ L615 1 4 \ lh4 W th repecl hl Rty-3lldt,1 11 % r It'lcc. l 1o Scc 8(J'). It is Inotcd thIt . xihil .11 1 ,TIii nploisr ou1iln 3ij LITTIC iit Cilnl ClCAlnc nbhigailtil u1i1d. cr lt.h til a igrLIttllt111 . Iunll Cii'- iLit it'1i' 1o inn n1 liniini ii l III iIC' I ' ( oi'tillrn'd 138 AL BRYANT, INC., ET AL. 3. The single employer issue; the Keystone arbitration No claim is registered in the instant proceeding that ABI, as a separate entity, failed to adhere to the terms of the CPSA agreements. The gravamen of the complaints is addressed to the operations of Harrisburg Drywall and ABA, which admittedly operated on a nonunion basis, but which according to the consolidated complaints con- stituted a single employer with ABI and hence are bound to the contractual obligations of the latter. Harrisburg Drywall evolved from a sole proprietor- ship operated under that name by one Geno Premici. In 1971, at Premici's request, Bryant invested in Harrisburg Drywall, after the firm was incorporated and Bryant was permitted to retain controlling ownership. In late 1972, Premici's stock was purchased by the Corporation, Pre- mici parted company, and Bryant became sole owner of the outstanding corporate shares. At all times since the incorporation of Harrisburg Drywall, it was headquartered at the Hummingbird Lane facility, also utilized by ABI. Said facility is owned by Al Bryant and his wife. Until December 31, 1979, those premises were leased to ABI. Since 1972, ABI has sub- leased space to Harrisburg Drywall. However, this was apparently accomplished orally for there is no written lease memorializing the terms thereof. During the years of its operations it appears that the only assets of a corporeal nature retained by Harrisburg Drywall were a single, 1974 vintage van, and some office equipment inherited from Premici's firm. In other re- spects, Harrisburg Drywall utilized on and offsite con- struction equipment, including trucks, hoists, forklifts, and saws owned by ABI. Office equipment owned by ABI was also utilized in connection with operations of Harrisburg Drywall. Harrisburg Drywall had no ware- house, engineering, sales, or clerical force, but individ- uals employed by ABI served the former's needs in these areas. All utility costs, including gasoline, electricity, and telephones, incurred by Harrisburg Drywall and ABI were paid by ABI. No written agreements existed evidencing the "hous- ing" arrangement as between ABI and Harrisburg Drywall or the former's provision of equipment. adminis- trative support, and expenditures for overhead costs. Compensation of ABI in these areas was pursuant to an accounting system devised by the accountant, selected by Al Bryant, on behalf of both conpanies to allocate costs as between the two firms. Thus, at the end of annual accounting periods, such costs were shared by ABI and Harrisburg Drywall in proportion to the gross volume of business done by each. This arrangement was a successor agreement. or where. since execution. the U[nion had acquired majority status among the employees No e' idcnce exists w'arranting a finding that the CPSA agreemenls it question v"ere 8(f cotilract',. nor does it appear thai. if they were, ABI's responsihilily pursuant theretl was unenfiorceable See wlliamsr Enterproisc. Inc.. 212 NLRH tIt8l 1974) 4uthi,rizd 4ir Crondti)ttliitni (o, 236 NL.RH I13 I. 134 (1978 Furlhermorc, the collective-bargaining agreements negoliated hetleenl CPSA anlld Wet- ern and Keystone define the unit In a manrler con'i'elit with hailt gener- ally is recognized as appropriate in scop e in huilding and coillstrillionll industry No facts have beein presented rebuttilng the presLumpltiln Iha;l Western and Key'stone continued toi represenl at maiirilti of ',aid clilpIlii - ecs at all timrs material herein hardly indicative of "arms length" dealing. While the pooling of administrative and clerical resources may be accomplished in other areas by indisputably separate en- tities, I reject any notion that in such cases the costs of such services are deferred and not borne with a degree of immediacy. Here, ABI bore all expenses for a 12- month period, a burden tantamount to an interest-free, extension of credit to Harrisburg Drywall. Along the same line, Bryant testified that there was no established rental charge for ABI's equipment. As the latter entails a nonrecurrent. capital expenditure, this charge off would Inot be suitable to allocation in the same manner as items whose cost accumulates continuously with use. Bryant explained that ABI was compensated as to equipment by allocation of depreciation as between the firms. As a gen- eral proposition, annual depreciation on capital assets would be something less than fair rental value. The foregoing portrays Harrisburg Drywall as a oper- ational shell with no independent administrative capacity and little in the way of capital assets. As shall be seen below, this was complemented by integration of ABI re- sources upon the operations of Harrisburg Drywall at every lceel, from management to craftsmen who per- formed on the jobsite. From the standpoint of management, the nominal head of Harrisburg Drywall was Charles May. Bryant in 1975 selected May to "run" Harrisburg Drywall." May was a craftsman, whose employment as a "carpenter" dated back to 1959. According to Bryant, he together with May jointly decided to operate Harrisburg Drywall as a nonunion company. :'; May engaged substantially in providing field supersi- sion at various jobsites and worked from time to time with his own tools on jobs. From direct observation, and his testimony, May impressed me as more at home in that capacity than as a manager. For example. May could not identify the accountant of Harrisburg Drywall, did not know who purchased office supplies for that firm, did not know whether Bryant dealt with Harris- burg Drywall customers, and had no comprehension of the overtime system applied to the latter's employers. May acknowledged that he had nothing to do with the financial end of Harrisburg Drywall and hence did not know whether ABI and Harrisburg Drywall loaned money to each other. Since May declared that he had no role in the financial end of Harrisburg Drywall, obvious- ly this area ,was subject to exclusive control of ABI func- lionaries. 3, rhe record doen notl ti.c lose, that Harrisbhurg DrNs'all uas opcr- ational during Ihe period hel'ueel the 1I72 departure of P'rcnllct and 1)75 ithe p,i ssilit, of dormanllc of that firm was suggesled h) Hranl't threat in 1 '76 or 1'7 at the "Cornmpete Meetings" tol Ilill. ilnhither firm ti perform on a IhIIDnInI(Ii hasis d'I di( nol bCheliI, thai MaN had ans role In Ihis decison Ih here. ,hl- oul', \ l. olo d hil'lc hc.Il nrI il eed It rcacli' ate or utili/e larr-l1hurg t)lu\ all tfr anI' other pi trpos I II i, plinly ilferrahlc icll this rcord thati the "OpCll r hop" IaIo t irkI v a, tihe slIt r.i on lor thl lfirI', existc'I Cc her i l n '.o idCln.C thAI thliat firm eer opeltalted in nlls other markct ' la',i\ RIllt R liS ; h ,ll. 1 ccrliit'd public iccO ciliii ,Llllt 1,LC iuccomIillnig firm pro\t iLe icotliitlig i 'c rNlCCS to Respoilldcit,. vtcliliCCl that ai getllril entr it (,it I xhl Is ( c IintCilaltc tehat In 117 111 Al tharged IIarrlshti'g Sil()l. Ir "i lan'ii l igcn lltc i 1x.i\cs Se. ( i 1C lNih Sthl Rocllhthalnl IC - ( .'it: llll'i 139 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD Apart from my doubts as to whether May exercised authority on behalf of Harrisburg Drywall beyond that of a supervisor, with power to hire, fire, and supervise jobs, it is clear that he had no separate identity with Har- risburg Drywall. Thus, Charles May is shown as a direct payroll employeee of ABI, in 1977 for in excess of 1,400 hours,:" in 1978 for some 80 hours, and in 1979 for some 170 hours. It is fair to assume that during these periods May had been engaged by ABI to perform field supervi- sion on the latter's jobs. Uncontradicted evidence estab- lishes that May, while serving in that capacity, engaged in hiring on behalf of ABI.` In addition, it was his re- sponsibility to assure that those jobs were completed properly and to instruct employees to that end. May also kept the time records of ABI employees on such jobs. Because Harrisburg Drywall had little in the way of administrative resources, and perhaps, since May often worked in the field for both firms. its administrative and managerial functions were performed by ABI personnel. Larry McClain, who at no time was on the payroll of Harrisburg Drywall, but an employee of ABI, admittedly performed work for Harrisburg Drywall. His tasks in this regard included coordination of phases of the Harris- burg Drywall operations, the preparation of job esti- mates, submitting bids, and purchasing in connection with that firm's jobs. In addition, carpenters employed by Harrisburg Drywall would communicate with McClain and receive instructions as to whether and where they were to work the next day. Bryant was also involved to a considerable extent in the affairs of Harrisburg Drywall. While admitting that he controlled the fiscal affairs of Harrisburg Drywall, Bryant denied involvement with either office or field personnel. As to fiscal matters, Bryant selected Harris- burg Drywall's accountant, the bank it uses, and periodi- cally reviewed, together with Jean Hoffman. also an em- ployee of ABI. Harrisburg Drywall's accounts receivable to assure against discrepancies. He also admittedly on a frequent basis negotiated and signed contracts on behalf of Harrisburg Drywall, and executed lien waivers on behalf of that firm. 3' Bryant has signed the paychecks issued to Harrisburg Drywall employees. "' In connection with the Polk Center job, a job performed by Harrisburg Drywall during 1979 and 1980, Al Bryant signed the bid4 ' and was the contact man because, as he explains it, the size of the job, and the fact that May was out work- ing other jobs, rendered it necessary that Bryant serve in that capacity. Bryant's denial that he had any involvement in hiring on behalf of Harrisburg Drywall was refuted by specific testimony, which otherwise was left to stand uncontra- dicted to the effect that Bryant, together with McClain, interviewed and hired a former ABI employee for Har- tifled that the amount of Ihis fee ,l as detcrmintid hby tile clien No oxi- dence exists on this record as to the hbasis for Ihis charge as agaillsl Ilr- risburg D)rywall " See G C Exh 3b(gg- 14) ': See the testimon) y of George (ulliver See G C Exh 13 '° Normally it is Ihe function of Jcall Hloffman. an AMll enlphl'c. to sign the paychecks of Harrisburg D)ryAa l l personnel. In hter ahsctlcc,. Bryant performs Ihis functitln "See GC Exh 15 risburg Drywall,4 2 and that on another occasion Bryant met with a number of ABI carpenters, advising them that union work was insufficient to keep them busy, while offering them work with Harrisburg Drywall. 43 Other testimony indicates that Bryant entertained griev- ances of Harrisburg Drywall's employees. Thus, George Gulliver, while employed by Harrisburg Drywall, re- quested a raise of Bryant, which he received under cir- cumstances, permitting inference that Bryant had ap- proved the increase. It also appears that a grievance con- cerning travel pay was addressed to Bryant by Gulliver while on Harrisburg Drywall's payroll. Bryant said he would check with McClain. Later Gulliver received travel pay. McClain denied that he hired for Harrisburg Drywall, testifying that May had done so. However, in a brief filed on behalf of Al Bryant, Inc., in the arbitration pro- ceeding, over the signatures of Thomas A. Beckley and James P. Collins, Esqs., the following appears: ". . . Larry McClain . . . did and does the hiring for Harris- burg Drywall." '" Further, according to testimony afford- ed by Bryant, under oath in the arbitration proceeding, Larry McClain did the hiring for Harrisburg Drywall.4 " As heretofore indicated, McClain was also involved in a layoff of Harrisburg Drywall employees, and advised employees where and when to report for work. While the foregoing amply attests to the intervention of ABI in the labor relations of Harrisburg Drywall, the integration of the two entities is further evidenced by the frequent and seemingly at-random interchange of crafts- men as between Harrisburg Drywall and ABI. In several instances, carpenters would work for both firms during the same workweek This occurred in excess of 50 times in 1979, on 30 times in 1978, and in excess of 80 times in 1977. On at least two occasions, the same employee worked for both firms in a single day. Carpenter Gulli- ver testified that the only way he could tell which firm he was working for was the designation on the payroll check.'" The lack of separate identity of the respective work forces of Harrisburg Drywall and ABI is indicated by the fact that in 1977 10 of the 14 employees on the payroll of Harrisburg Drywall had also worked for ABI; in 1978, 8 Harrisburg Drywall employees had worked for ABI; while in 1979, 6 Harrisburg Drywall employees had also appeared on the payroll of ABI. Harrisburg Drywall as a nonunion subcontractor does not normally bid on the same jobs as ABI. However, on at least two projects, Harrisburg Drywall was replaced ,2 Se. tle sttllloll) of Rot lllnld N1iers " Sc tile I.,ontlltiHi of ()ls,.Oar Ac.li Not, als, thliat Da'id Seace tehi- lied that iBr. tiltl offered hiltl .ork on a nonunllllnioll lo in Reading i 1977. wllhich Seace decliled. 'See Ci C I xh 21(h) p 4 ' Se Rcsp I -xh lal) p 28 Se ialso the tcstinmlly Oif t)onald MNIcr I tie ahlxc dliscrtepanc ls ia ln,, g a numbnher if facttors shich hlardl ill- spired onllfidclle of' Re sp ollidcll,' i iltnesscs ", I tro Curlier testified that iil In conIICCtioll ilh the (ite m Btlildlng job hie n'is emploe d bh Alt, hut later. ulthout notice. transferred to the pa,,roll of Ilarrihurg I)r;,all ; a fcl he dlhcoLered only after hi, pay- check rellected thalt he Ois orklllg for the latter it a I lo, er rale of p'y, /itoitte[ Citpeii'l'. Richard (.riitintn testifted It a similar experienet onl tlhc SltIC jhsitc 140 Al. BRYANI', INC. ET Al by ABI.4 7 According to Bryant, on at least one of these jobs, Harrisburg Drywall "subcontracted" to ABI be- cause it took the job on misinformation that it was an open shop, when in fact it ,vas a union job. When union contractors protested the presence of Harrisburg Drywall, the job was completed by ABI. Under established Board policy, the test of whether two separate entities are to be regarded for purposes of the Act as a single employer turns upon the relationship of the two firms in terms of common ownership, common management, interrelation of operations, and common control of labor relations. ' I am convinced that, upon analysis of the credible facts of record herein in the light of those standards, Harrisburg Drywall and ABI may not be regarded as separate employing entities. Both firms were subject to common ow nership, with Bryant owning all outstanding stock in one, 90 percent of the other, with the remaining 10 percent held by his wife. Both firms performed the same services, in the same market, with the only distinction being that Harris- burg Drywall operated on an open-shop basis, while ABI functioned under auspices of collective-bargaining agree- ments with the Charging Parties. However, Harrisburg Drywall's existence operationally was almost entirely de- pendent upon facilities. equipment, administrative, engi- neering, sales, and clerical support available through ABI. The absence of written leases or agreements, and the expense allocation system, as heretofore indicated, warrants the conclusion that the two firms did not deal with each other on an "arms length" basis. Considering the nature of its assets, and its dependency upon ABI for basic support in virtually every aspect of its affairs, the instant record portrays Harrisburg Drywall as possessed of no greater autonomy than is necessarily entrusted to crews completing particular jobs. While Albert Bryant was a dominant factor with respect to all aspects of ABI, he controlled the fiscal affairs of Harrisburg Drywall. His imprint was also felt upon Harrisburg Drywall's labor relations, through involvement in the hiring proc- ess and condonation, if not authorization, of the utiliza- tion of ABI personnel to handle Harrisburg Drywall's payroll, to interview and hire employees of that firm, and to assign work to the latter. Furthermore, temporary interchange of rank-and-file and supervisory personnel within the two firms was so substantial as to suggest that it was a function of management convenience, more in the nature of assignment and transfer within a common labor pool, than termination and rehire by separate em- ploying entities. I am convinced that it was Albert Bryant, who, in 1976, during the course of the compete meetings, threatened to utilize Harrisburg Drywall to compete against union contractors to have been the driv- ing force behind activation of that firm for that purpose. Considering my impression of Charles May as a crafts- man and foreman, more at home on a jobsite than in an office, together with his limited comprehension of major " )n the Acciavali jobsite. TIhomas Fick was simply transferred from the Harrisburg Drywall payroll to Ihal of ABI, when the latter replaced ihe former on Ihat job " Radio & filevision Brodcaust 7chnicians .Loal/ Union 1264. Inlrnu- tional Brotherhood of Electrical Worirs, .41.-CIO. et aul. Rnaudcat Servicre ofMohil. Inc, 38l0 U.S 255 (19h5) aspects of Harrisburg Drywall's operations, I am con- vilced on the basis of inference and plain record fact that labor relations policy of the latter was dominated by ABI personnel, including Albert Bryant. Based on the foregoing, I find that Respondents ABI and Harrisburg Drywall constitute a single employer and that Harrisburg Drywall was the alter ego of ABI.49 It is also concluded on the instant record that the em- ployees of Harrisburg Drywall constitute a natural acre- tion or share a sufficient community of interest with em- ployees of ABI to render the former's employees a part of the appropriate unit in which ABI's employees had been historically represented. As has already been made clear, both firms hold themselves out to provide subcon- tracting services of an identical nature in a segment of the construction industry. Considering the functional in- tegration of the operations, the similarity of the work performed and common skills of the employees, the extent of centralized management and supervision, the high incidence of temporary interchange, as well as cen- tralized control of labor relations including the hiring and assignment of employees between jobs and firms, I find that a unit consisting of the "carpenters" employed by ABI and Harrisburg Drywall at all times material constituted a single appropriate grouping and part of the overall multiemployer unit within the meaning of Section 9(b) of the Act."5 Having found that ABI was at all times material bound through CPSA, to the latter's agreement with Western, I find that by refusing, upon request, to extend that agree- ment, on request, to employees engaged on projects dis- charged by Harrisburg Drywall within Western's geo- graphic jurisdiction, Respondents' Harrisburg Drywall and ABI violated Sections 8(d) and 8(a)(5) and (1) of the Act., I I have also found that ABI was similarly committed with respect to collective-bargaining agreements between CPSA and Keystone. Though the single employer find- ing extends with equal force to the operations of Harris- burg Drywall waged within the geographic jurisdiction of Keystone, Respondents urge the 1979 arbitration award5 2 as a bar to any relief as to the unit represented by Keystone. "' See, e g. Edward J. Whiie. Inc.. and its alter ego. Repairs. Inc. 237 NLRI 1020. 1025 (1978) Thai case, in my opinion, furnishes a closer analogue to the facts at hand than the fact pattern on which the Board reached a contrary result in the earlier case of United C,,ltructor, and Goodwin Construction Company, 233 NLRB 904 (1977) In any e'ent, the more recent Decision in Ediard J White, Inc, in the e.ent of conflict would control as the more recent pronouncement on the issue See also Local .'o. 62'7 International Union of Operating Engineers. 4FL CIO (South Prairie Sons' Construction Company and Peter Kiew.it d Sons' Com- pant) 518 F 2d 1040 (D.C. Cir 1975). affd in material part 425 U S 800 (1976) so Cf Peter Kiewit and Son' Co and South Pacific Construction Co., 231 NLRB 76(1977) " Credible esidence establishes that on various dates between January and MaNt 1979. representatives of Western urged Bryant to perform Har- risburg Drvwall's contract on the Polk Center job in accordance with Western's agreement with CPSA The refusal to bargain became apparent when Harrisburg Drywall commenced work on that project on an open- shop basis in June 1979 ,2 Contrary to Respondents. participation in the 1979 arbitration does not suffice to establish that it fully met its statutory obligations to bargain in good fi th That factor is irrelevant to the silations with which Re- spondentlts are charged specifically il this proceeding 141 DECISIONS ()F NA'I()NAL LABOR RELATIONS BO()ARD In this respect, it is argued on behalf of Respondents that the rights asserted in this proceeding by and on behalf of Keystone were submitted by the latter to bind- ing arbitration and the award rendered by the arbitrator denying Keystone's grievance should be deemed conclu- sive under Board authority. In this connection, a close question is presented in connection with the doctrine enunciated by the Board in Spielberg Manufaciuring Company, 112 NLRB 1080 (1955), and its progeny. By virtue of Spielberg. the Board indicated that it would yield to the arbitral process and afford binding weight to the results thereof, if said proceeding appeared to have been fair and regular, if all parties had agreed to be bound thereby, and if the decision of the arbitrator was not "clearly" repugnant to the purposes and policies of the Act. In subsequently elaborating on these standards, the Board articulated a further requirement to the effect that it would not give binding force to an award unless the arbitrator had considered and decided the unfair labor practice issue."3 While a number of factors are viewed as relevant to the inquiry herein, first to be con- sidered is whether the arbitrator considered and decided the unfair labor practice issue and, second, if he did so, whether the result he reached was repugnant to statutory policies. 4 With the foregoing in mind, it is noted that the under- lying grievance was originally defined by Keystone's at- torney in a letter dated March 19, 1979, and his opening statement at the arbitration hearing as exclusively found- ed upon contract." However, in its brief to the arbitra- tor, Keystone went beyond its contractual contention that Harrisburg Drywall, as a subsidiary of ABI, was bound to the CPSA agreement, but argued that, even if the arbitrator were to reject this view, he was impelled to follow precedent of the National Labor Relations Board, and conclude on the basis of the evidence before him that ABI and Harrisburg Drywall were a single em- ployer and hence that as a matter of Federal law the contract was binding upon Harrisburg Drywall. This al- ternative view was amplified by a thorough recitation of authorities, and concluded with the admonition that "the arbitrator should rule on the statutory issue as well as the contractual one."5 6 "3 See, e g., Raytheon Company, 140) NLRB 883 (1963) 5' Keystone conltends that the Spielberg criteria were no1t met because ABI took positions before the arbitrator signifying that it had no inten- lion to be hound by the results of arbitration. While it is true that ABI adopted a stance that it was not contractually bound to CPSA bargaining agreements, issue was joined on this matter, and there is nothing to signi- fy that ABI had not submitted to the arbitrator's jurisdiction to render 1 final and binding determination in that respect. Contrary to Keystone. this defense to the grievance was not the equivalent of a repudiatiion of the arbitrator's authority to issue a final and binding award "s See G C Exh. 9 Among the contractual provisions cited was the following as contained in the memorandum agreement negotiated arid signed by Albert Bryant on behalf of CPSA, for a term of May 1, 1977, to April 30, 1982: 6. The employers, during the life of this agreement, will not establish or operate any subsidiary building construction company unless such company performs and or subcontracts all work within the craft and geographic jurisdiction of the Union pursuant to the terms of this contract The obligations of paragraph 5 shall apply to such a subsid- iary company. This paragraph 6 shall be null and void in the event the Union fails in the obligations under paragraph 1. 2, and 3 "' See G. C Exh 21(a), pp 8-24. Whether the arbitrator carried forth on Keystone's demand is not entirely clear. In denying the grievance in his award of October 29, 1979, the arbitrator stated as follows: . . .[t]he Arbitrator is not persuaded by the evi- dence that the Company has violated the 1974-1977 Agreement or 1977-1982 Supplemental Agreement. The Union presented no evidence of a joint venture between Al Bryant, Inc. and Harrisburg Drywall and Construction Corporation. Therefore, the basic question before the Arbitrator is whether Harris- burg Drywall is a "subsidiary" or "subsidiary build- ing construction company" of Al Bryant, Inc. under Article V, Section 6 of the Agreement or Para- graph C.6 of the Supplement. In the Arbitrator's view, his role is limited to interpreting these terms of the Agreement, and it does not extend to enforc- ing the provisions of the Labor Management Rela- tions Act. To be sure, it may be appropriate to look to the federal law as an aid to this interpretation. In this context, the Arbitrator has carefully considered the National Labor Relations Board and Court cases which the Union has cited where two or more Companies or corporations have been treated as a "single employer" for the purposes of determining whether the National Labor Relations Board will assert jurisdiction over them. Here, the parties have not defined what should be considered to be a "subsidiary." Webster's New World Dictionary (College Edition) defines a "sub- sidiary" in part as: a company controlled by another company which owns most of its shares . . . Black's Law Dictionary, Fourth Edition (revised) 1968 states: Subsidiary Corporation. One in which another corporation owns at least a majority of the shares and thus has control.... In this situation, there is no evidence that Al Bryant, Inc. owns any shares of Harrisburg Drywall. Therefore, it would not ordinarily be con- sidered a subsidiary of Al Bryant, Inc. in the usual sense of that term. It is true that Mr. Al Bryant owns most of the shares of both companies, but technically his ownership as an individual would not be sufficient for Harrisburg Drywall to be con- sidered a subsidiary of Al Bryant, Inc. Moreover, there is absolutely no evidence that Mr. Bryant ac- quired Harrisburg Drywall, or operates it, as a sub- terfuge to divert business which would otherwise be available to Al Bryant, Inc. to a non-union oper- ation. To the contrary, the record shows that Har- risburg Drywall was an existing company; that Bryant was asked to assist it financially; and that he did so by forming it into a corporation in which he had 51% control. Although there is a suggestion in the record that the Companies share some equip- 142 Al. BRYANT, INC. ET AI ment and office staff, it appears that they operate in- dependently from one another; that there is no com- mingling of funds or common supervision of "field" employees. For the reasons given, therefore, the Ar- bitrator is unable to conclude that the Company has violated the Agreement as the Union contends. In view of this conclusion, the Arbitrator finds it un- necessary to rule on the other contentions of the parties. DECISION For the reasons stated above, the grievance is denied. October 29., 1979 [s] James M. Harkless Arbitrator Consistent with the contention of the General Counsel, the above is susceptible to interpretation that the arbitra- tor declined to pass upon the statutory issue, ruling only that he was "unable to conclude that the Company has violated the agreement as the Union contends." The question of whether Harrisburg Drywall was a "subsidi- ary" within the intendment of the contract differs from the statutory single employer issue and disposition of the former would not necessarily require full treatment and consideration of the latter. The Board's most recent pro- nouncement concerning the assignment of proof respon- sibility in this area was set forth in Suburban Motor Freight, Inc., 247 NLRB 146, 147 (1980), 57 wherein it stated as follows: The Board can no longer adhere to a doctrine which forces employees in an arbitration proceed- ing to seek simultaneous vindication of private con- tractual rights and public statutory rights, or risk waiving the latter. Accordingly, we hereby express- ly overrule Electronic Reproduction and return to the standard for deferral which existed prior to that decision. In specific terms, we will no longer honor the results of an arbitration proceeding under Spiel- berg unless the unfair labor practice issue before the Board was both presented to and considered by the arbitrator. In accord with the rule formerly stated in Airco Industrial Gases, we will give no deference to an arbitration award which bears no indication that the arbitrator ruled on the statutory issue of discrimination in determining the propriety of an employer's disciplinary actions. In like accord with the corollary rule stated in Yourga Trucking, we shall impose on the party seeking Board deferral to an arbitration award the burden to prove that the issue of discrimination was litigated before the arbi- trator. In Atlantic Steel Company, 245 NLRB 814, 815 (1979), the Board articulated that latitude would be extended to those urging arbitral bars, stating as follows: "7 See also The Motor Convo, Inc., 252 NL.RB 1253 (1980) In Ratheon Conpany, " . .. the Board added the re- quirement to Spielberg that, in order for the Board to defer, the arbitrator must have considered the unfair labor practice in his decision. Since that time, there has been little discussion by the Board as to what this requirement means. Must the arbitrator actually discuss the unfair labor practice, or is it suf- ficient that he or she considered all of the evidence relevant to the unfair labor practice in determining whether the discharge was lawful under the con- tract? A review of the decisions shows that, while it may be preferable for the arbitrator to pass on the unfair labor practice directly, the Board generally has not required that he or she do so. Rather, it is necessary only that the arbitrator has considered all of the evidence relevant to the unfair labor practice in reaching his or her decision. In this instance, the arbitrator's statement that his author- ity "does not extend to enforcing the provisions of the Labor Management Relations Act," beclouds his entire award. In addition, serious questions exist as to whether the statutory issue arose in the context of an evidentiary presentation enabling full and fair consideration of the statutory issue in the arbitral forum. The single employer issue generally entails assessment of a number of factors, many of which are beyond common knowledge but re- posed peculiarly within that of the employer. Illustrative thereof is the following statement made by Mr. Beckley, counsel for Respondents, before Arbitrator Harkless: The only evidence he [Keystone's attorney] can put in as to the Harrisburg Drywall and Al Bryant, Inc. would be coming from a witness employed by and knowledgeable of those corporations."9 Consistent therewith, before the arbitrator, Keystone had subpenaed a number of documents relative to operations of ABI and Harrisburg Drywall. Respondents moved to quash that subpena,60 and pursuant thereto strong sugges- tion appears that important information regarding Harris- burg Drywall, including a listing of its employees, was never produced for consideration by the arbitrator. Whether legitimately maintained, the withholding of evi- dence highly material to the unfair labor practice issue casts considerable doubt upon whether any resolution of that issue was made on a fairly constituted record. A question also exists as to whether the award, if in- corporating a disposition of the statutory issue, was suffi- ciently consonant with statutory policy to warrant defer- ral. The General Counsel in contending that the arbitra- tor's award was repugnant to the Act6' relies chiefly s" 140 NL RB 833 (1963). enforcement denied 326 F2d 471 (Ist Cir 1964) "*Rep l xh l(h), p 91 *, See Rep Exh lha), pp 8-11. 494 Resp. Exh l(hb). pp 78 58. 105, 143, and 146 "l Keyslone urge, that the asrard he disregarded since a representation issue is involved of ihe type solely within the prosince of the Board Ihcre is no merit in this siew The single employer issue is the premise for an 8(d) 'iolaiion, v hich would if substantialed call Into pla, Board remedies to enforce said contract as against Harrisburg Drywall The merits of Ihat issue and the remedy only langentially hear on and faii to relate directly to a question concerning represeitalltion 143 DE.CISIONS OF NA1I()NAL LABO3R RELAIONS H()OARD upon the view that upon proper assessment of the var- ious factors recognized by the Board as relevant to the single employer determination, "it becomes apparent that the companies do comprise a single employer and part of the same bargaining unit." 62 Thus, it is argued that be- cause the arbitrator reached the wrong result his award should be dishonored. Under precedent, the question of what is meant by repugnant to the policies of the Act in- volves a qualitative case-by- case assessment of just how much error wuill be permitted before an award is reject- ed. Recent Board majorities have suggested that, absent "indisputable factual error,''": the Board will not dishon- or awards because factually discrepant." 4 Furthermore, legal conclusions embodied in such awards have been en- dorsed where they evidenced "reasonable" determina- tions of statutory issues even though the Board, on con- sidering the merits, might have applied the laws different- ly,fiS or where the arbitrator's reasoning did "no substan- tial violence" to Board policy." The "single employer" issue in this proceeding raises the spectre of an employer's evasion of collective-bar- gaining obligations through the utilization of deceptive corporate forms. Thus critical policy interests are in- volved affecting the balance of competitive interests in the market served by Respondents together with those of employees denied contractual benefits. Close scrutiny of arbitral decisions in such a context seems necessary to vindicate statutory policy. For example, an employee's outright repudiation of key sections of a collective-bar- gaining agreement has led the Board to decline to defer to arbitration, on the follow ing reasoning: The jurisdiction granted us under the Act clearly encompasses not only the authority but the obliga- tion to protect the statutory process of collective bargaining against conduct so centrally disruptive to one of its principal functions-the establishment and maintenance of a viable agreement on wages . 62 1he General Counsel cites Local F reight Drivers l.ocal 'so 208. Inter- national Brotherhood of leuamsters. C£hualfjurs. IWarehousetmenl and Ilelpers of Ameriua, and Line, Drivers Local No. 224, Internatuional Brotherhood of, 7ieamstlers. Chautffeurs. Warehhousemen and llelpers of 4nmeric a (Borrego Freight Lines. Inc.), 219 NLRB 821 (1975) In that case, the Adminisral- tive Law Judge had refused to honor an award of a joint board. finding that two emploeycrs were one and the same, both on grounds that one employer had nrot received notice of the procecdings, arid further on the basis of her findings that the employers were separate entities. tt wAccr, the value of that ruling is diminished by the fact that a Board majori(t ultimately disnmissed the case on the merits, and, having done so, reduced the Spielberg issue to the academic ,3 See Pincus Brothers. Inc--Muarsxell, 237 NLRB I063 (1978) (Merm- bers Jenkins, Murphy, and Truesdale). 64 See, e g , 4rmerian BaAeries Co. Inr:. 249 NLRB 1249 (1980) (Mern- bers Penello and ITruesdale, with Member Jenkins dissenting), and ihe Kansas Cityv Star Company, 236 NLRB 866 (1978) (Members Peciello and Murphy, with Member Truesdale concurring: Chairman I'Fanninlg and Member Jenkins dissenting) 6' See Arnold Junior Feinton, Inc., 240 NLRB 202 (1979) (Chairmanll Fanning and Members Jenkins atid Penello) 7The .,sociated Press, 199 NLRB 1110, 1114 (1972) (Chairman Miller arid Members Kellledy arid Penello). 66 See Pacific Southwest Airlines. Inc. 242 NLRB 1169 (1979) (Members Penello and 1Truesdale, with Chairman Fanning dissenting). 6' Oak Cliff-Golman Baking Company, 207 NLRB 1063. 1064 (1973) Although the Board there was involved with a question of prcarbilrationl deferral pursuant tor Collyer Insulated Wire, .4 Gull and I(estern Systlrns In sum, I find that the award of Arbitrator Harkless is entitled to no weight in the instant proceeding. In so finding, I rely on no single standard under Spielberg, but rather a combination including: (I) strong indication that the arbitrator expressly declined to resolve the statutory issue, (2) serious question as to whether positions taken by Respondents at the arbitration hearing barred full and fair evidentiary consideration of that issue, and (3) the fact that the arbitrator, if he had resolved the statutory issue, did so in a critical area of statutory policy, while reaching a result at odds with a proper application of the law on a fully developed record. For the above reasons, it is found that ABI and Harrisburg Drywall constitute a "single employer" within the meaning of the Act, that both were bound to CPSA's agreements with Western anid Keystone, and that Respondents violated Sections 8(d) and 8(a)(1) and (5) of the Act by Harrisburg Drywall's failure to adhere to the terms thereof. Remaining for consideration are the like allegations in Cases 6-CA-13716 and 6-CA-13914, with respect to ABA, a third corporation established after initial unfair labor practice charges were filed herein naming ABI and Harrisburg Drywall. ABA commenced operations as a new corporation on January 1, 1980. Prior thereto, the original charge in Case 6-CA-10417 (formerly 4-CA- 10417) was filed on August 10, 1979, by Keystone and charges had been filed by Western in Case 6-CA-12800 on October 3, 1979. Bryant testified that the new corporation came into ex- istence in November 1979. The directors of ABA were Al Bryant, Larry McClain, and Jean Hoffman. Larry McClain became its president, Al Bryant, vice president in charge of sales, and Jean Hoffman, vice president in charge of administration. These positions have been held since January 1, 1980. Bryant also is the treasurer and Jean Hoffman, the secretary. Stock ownership in ABA was held as follows: McClain Hoffman Al Bryant 35 percent 35 percent 30 percent ABA functioned as a subcontractor or contractor af- fording the same services as provided by Harrisburg Drywall and ABI. Like Harrisburg Drywall, it operated on an open-shop basis. Al Bryant testified as to the genesis of ABA. He relat- ed that in the fall of 1979 for both personal reasons and because of the unfair labor practice charges and lawsuits filed against him by Keystone, he decided to reduce his involvement in the industry by phasing out Harrisburg Drywall, and reducing ABI's work. He claimed that McClain and Hoffman, as long term, key employees, were informed of his intentions in approximately Septem- ber 1979. At that time, Bryant informed Hoffman and McClain that he was giving them advance notice, so that they would have full opportunity to obtain new employ- Co., 192 N.RB 837 (1971), he abovec mailer is of rele.ance insofar a' it reflects upon the slatulory significance if the issue involved here 144 AL BRYANT. INC., ET AL ment. 6s Shortly thereafter, according to Bryant, McClain and Hoffman asked if they could purchase Harrisburg Drywall. Bryant claimed to have discouraged this, indi- cating that he "didn't think that was a very good idea because Harrisburg Drywall was in the middle of a series of labor problems at that point." Later, McClain and Hoffman, as Bryant related, returned, requesting his as- sistance in enabling them to start their own business as long as Bryant was getting out. This led to a series of meetings, out of which evolved the creation of ABA.69 ABA was capitalized on the basis of cash contributions from McClain and Hoffman of $20,000 each. 7 Bryant contributed all the outstanding stock of Harrisburg Drywall, the net worth of which at the time was $40,000. Thus, Bryant invested an amount equal to one- half of the capitalization of ABA, but received only 30 percent of that firm's stock. With respect to compensation, Al Bryant, pursuant to a 10-year "consulting agreement" with ABA, is to be paid by ABA, at least for the first 2 years, the sum of $40,000 annually. McClain, the president of ABA, could not recall with certainty the amount of his salary. He es- timated that it was in the neighborhood of $20,000. When questioned as to Hoffman's salary with ABA, here again, McClain was unsure, but entimated that it was be- tween $15,000 and $16,000. With the establishment of ABA. it appears that various administrative and warehouse employees, formerly on the payroll of ABI, became employees of ABA. Thus, the ABI payroll record for the week ending December 26, 1979, lists the following: Larry V. McClain Albert I. Bryant R. Victor Hendrickson Jean E.F. Hoffman Wayne T. Lutz. Jr. Andrea R. Mumma Ronald L. Hinkelman Frank Krautheim Catherine Sebacius7t It is noted that Hendrickson and Lutz were salesmen. Mumma and Sebacius were clericals. Hinkelman was an engineer and draftsman. Krautheim was a warehouse- man. I' Charlie May, the president If Harrisburg Drywall, ".as not included in these conversations, because, according to Bryant, he "as confronled with serious personal problems at the time 69 McClain testified that in September or October 1979, Al Brant In- formed himself and Hoffman that he was going to reduce the work at ABI, sloswing down to a level where Bryant and a secretary could handle all the work Bryant went on to explain that he would no longer need the services of McClain and Hoffman and that they should make suitable ar- rangements to obtain olher employment. Hoffman did not testify iO The record indicates that the $20,(X)0 cash payment was not made bh Hoffman until March 26, 1980, (See Resp. Exh 10.) In addition, becaus, of the delay in this payment. Hoffman paid ABA on the same dale the sum of $460 32 in interest McClain made his contribution ion the hasis of five separate payments two were made on December 4. 1979, for a total of $1,000 The balance was paid off otn January 2, 1980 ($4.(XX)). Januar) 7. 1980 (S5,000). and February 25, 198() ($11000). It does not appear that McClain made any interest pa',ment, to ABA Awith respect to the dcc- ferred portion of his contribution See (C ti h 12 cc At the same time the payroll journal for ABA for the period ending January 9, 1980, listed the following: Albert Bryant R. Victor Hendrickson Jean E.F. Hoffman Frank A. Krautheim Wayne T. Lutz, Jr. Larry V. McClain Andrea R. Mumma Catherine R. Sebacius 7" Thus, unlike the relationship between Harrisburg Drywall and ABI, upon the inception of ABA, ABI no longer retained independent capability in the sales, cleri- cal, and administrative areas, but said functions were now harbored by ABA. Under the new arrangement, ABI, at the end of the regular accounting periods, com- pensated ABA on the basis of the same pro rata charge based on the relative gross income of each firm. utilized as between ABI and Harrisburg Drywall. 73 Nevertheless, the same employees performed the clerical, sales, and warehouse functions for ABA and ABI. Apparently, ABI, in 1980, no longer paid for tele- phone service, gasoline, and utilities. The responsibility for such payments presumably was assumed by ABA. with the same charge-back procedures utilized to secure ABl's share of such overhead items. As heretofore indi- cated, under said allocation system, the balance due was not paid until each June. Accordingly, a form of interest- free credit was involved. Looking at the clericals, for ex- ample, prior to the actual allocation, said employees were on the payroll of one company which financed their employment for an entire year before compensation was afforded by the other sharing their use. With respect to tools and equipment, a document dated April 1. 1980, signed by Al Bryant on behalf of ABI and addressed to Al Bryant Associates, Inc., recited as follows: This is to confirm our willingness to continue rental of the office furniture and office equipment (includ- ing the computer), to you at a monthly rent of $1,000 through March 31, 1981. [Emphasis sup- plied.] It will be your responsibility to pay for all mainte- nance, services, and supplies. At the end of the rental period, the equipment should be in first class operating condition less normal wear and tear. Another written agreement between ABI and ABA pro- vided for the lease of scaffolding at the rate of $300 monthly. Beyond that no provision existed in writing with respect to the rental of vehicles, tools, or equipment as between the two firms. Se See C t xh 2 9(a). Froml the pasrioll records it appears that ABA did nilt em plos field personrnel until the useek ending Fehruar 20. 198() [l)urilr g lhat irek Ilinkelmall wsas added to the ABA pasroll See Ci I Xh 2'(g) ;' Ais ua true beltwcei ABI and Harrisburg I)rnvall. no urilltn agreeitmeni t cl std c 'idtrii. llng the chargse-ba-k priedilre betl'w.een ABA ailld A11j 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It does not appear that occupancy by ABA of the Hummingbird Lane facility was pursuant to written lease. As of January 1, 1980, Al Bryant and wife changed the basis for rental that previously existed. Thus, ABA was to pay Al Bryant and wife $2,000 monthly, and the rent paid by ABI in the past was re- duced by some $1,250 a month. In this latter connection, it is noteworthy that ABA did not actually make rental payments for January, February, and March 1980 until June 10 of that year. See Respondent's Exhibits 8 and 9. It does not appear that interest was charged with respect thereto. It is also significant that the rental check in question named ABI as the payee, rather than Al Bryant personally. Like its administrative staff, ABA drew substantially from its predecessors in developing management and on- the-job capability. Charles May who had performed field supervision on jobs for both Harrisburg Drywall and ABI continued to perform in that capacity on behalf of ABA, and was the sole employee who regularly fur- nished field supervision on behalf of ABA. Bryant and Hoffman continued to sign checks on behalf of ABA as had been the practice with ABI and Harrisburg Drywall.74 McClain continued to provide the same serv- ices for ABA as he did for ABI and Harrisburg Drywall. Obviously, since ABA continued in the same business as Harrisburg Drywall and ABI, it utilized the same crafts and skills as the latter. Thus, the former warehousemen employed by ABI became the warehousemen at Asso- ciates. They continued to do warehouse work for ABI, though no longer on the payroll of that Company. With respect to the carpenters, Bryant and McClain met with office personnel and carpenters employed by ABI and Harrisburg Drywall to inform them of the for- mation of ABA. At that time, employment was offered with the new firm by McClain. 75 McClain testified that almost all the ABI personnel were retained by ABA. The payroll records in evidence indicate that field em- ployees were first employed by ABA during the payroll period ending February 13, 1980.7`; All seven within this initial group had been on the payroll of Harrisburg Drywall in each prior payroll period in 1980.7 7 Of this group, four worked for ABI in 1979 and all appear on the Harrisburg Drywall payroll for that year. All in all, the 1980 payrolls of ABA show a total of 21 employees apparently in nonsupervisory field categories. Of this group, only eight had no employment history with ABI or Harrisburg Drywall. 7 " It is noted in this regard that Bryant eveln signed checks compensat- ing himself under the si,-called consultant agreement with ABA 5 See the testimony of Donald Myers, who had previously worked for ABI and Harrisburg Drywall, and was among those that accepted em- ployment with ABA 7' See GC Exh 29(f) 77See G C. Exhs 31(a). (b), (c), (d), and (e) 7" The names of the eight new hires and the initial payroll period ti which they first appear are as fillows Gerald Clemsiiti Roy Shana Feller Johnl Anlhoiy May 28, 1980 June 25, 1980 June 25, 198(1 Gary Eugene Cupp August 13, 198( With respect to ABI's somewhat abbreviated 1980 op- erations, only four field personnel were utilized during that period. According to my analysis, the total man- hours expended by ABI in 1980 were 377.5. Of those, only 8 hours were worked by employees not on the 1980 payroll of ABA. It is concluded that ABA was the aller ego of Al Bryant, ABI, and Harrisburg Drywall. It was formed with knowledge of the labor difficulties and unfair labor practice charges confronting ABI and Harrisburg Drywall, and continued with an identical business pur- pose and objective. Administrative, managerial, sales, en- gineering, warehousing, and clerical employees were simply removed from the payroll of one firm I day and appeared on the payroll of the other the next. For the first 5 months of its existence, ABA drew exclusively from the Harrisburg Drywall blue collar work force. Like Harrisburg Drywall, it utilized the equipment of ABI and shared administrative and clerical support with that firm. I am also convinced that management of ABA continued to function as it had with respect to ABI and Harrisburg Drywall. McClain who, though president of ABA, could not recall his own salary, or that of Hoff- man, and other details concerning the operation of ABA, is deemed to have continued with ABA, as he had before in the operational duties of assigning employees to job- sites, preparing bids and estimates, and engaging general- ly in troubleshooting of an operational nature as he had for Harrisburg Drywall and ABI. Control of the clericals remained the responsibility of Hoffman. Charles May continued to provide field supervision for ABA as he had with respect to ABI and Harrisburg Drywall. The functions of Hendrickson, the engineer, as well as sales- men presumably continued as previously while they were on the payroll of ABI. With respect to Al Bryant, himself, who was considered by me on many counts to be an unreliable witness, I am convinced that he contin- ued to function as the principal source of ABA policy and executive authority utilizing his contacts and exper- tise in all areas of the drywall industry to justify his $40,000 annual salary, a sum which apparently exceeded that earned by both Hoffman and McClain.79 Bryant ad- Dennis B. Shade Luke K Kine Jay Fred Mark August 13. 1980 September 10. 1980 September 17. 1980 Samuel Variley September 24. 1980 I iI 18(0. according to the payrolls in evidence. ABI was reduced to slightly above inactive status. The demands upon Bryant personally as a result of those operations would only have been minimal. Although Bryant was ABA's 'ice president in charge of sales, that firm retained ABI's two salesmen to discharge that function Despite the foregoing, Bryant admittedly spent 3 to 5 days at the facility occupied by ABI and ABA Most suspect were his denials of knowledge as to certain oper- ational aspects of ABA. This included an implicit denial of: (1) where A1tA obtained its employees. (2) in what capacity ABA employed Frank Krautheim or how the latter got on the payroll of ABA. (3) who pur- chased supplies for ABA, and (4) who instructed clericals of ABA to work on behalf of either ABA or ABI. Bryant also denied knowledge as toi whether records were kept as to the amount of time that ABI trucks were used by ABA, did not know whether ABA carpenters were hourly paid. and could not identify who prepared bids on behalf of ABA or whether ABA completed work left incomplete by Harrisburg Drywall as ofr January I. 19)N I am cons inced that Al Bryant was far more active in the affairs of AIA. at every level, including its inception, than he would have tme beliese 146 AL BRYANT. INC. ET AL mittedly continued to sign checks for ABA as well as contracts on behalf of that entity. Based on the foregoing, including Bryant's own ex- pressed reasons for the demise of Harrisburg Drywall and the reduction of ABI's volume, and as Hoffman and McClain were fully aware of the unfair labor practice charges pending against Harrisburg Drywall and ABI at the time of their apparent investments in ABA, I find that the reshuffled capitalization of ABA did not suffice to disassociate ABA from its prececessor firms nor to preclude an inference on the substantial evidence pre- sented that it was merely a "disguised continuance" or alter ego through which contractual obligations to Key- stone and Western and putative statutory remedies were to be avoided. "0 Accordingly, I find that Respondents violated Sections 8(d) and 8(a)(5) and (1) of the Act by ABA's failure to honor the CPSA contract when per- forming with the geographic jurisdiction of Keystone. CONCIUSIONS 01 LAW 1. Al Bryant, Inc., Harrisburg Drywall and Construc- tion Corporation, and Al Bryant Associates, Inc., togeth- er constitute a single employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Al Bryant Associates, Inc., is the alter ego of and a disguised continuance of Al Bryant, Inc., and Harrisburg Drywall and Construction Corporation. 3. United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Penn- sylvania, AFL-CIO, and Keystone District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 4. (a) All journeymen, layout men, and apprentices employed within the geographic jurisdiction of Keystone District Council of the United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO, by employer- members designating CPSA as their collective-bargaining representative (including Al Bryant, Inc., Harrisburg Drywall and Construction Corporation, and Al Bryant Associates, Inc.), but excluding other craftsmen, guards and supervisors as defined in the Act, constitute an ap- propriate collective-bargaining unit within the meaning of Section 9(b) of the Act. (b) All journeymen carpenters, layout men, and ap- prentices employed within the geographic jurisdiction of Carpenters' District Council of Western Pennsylvania of the United Brotherhood of Carpenters and Joiners of America by employer-members designating CPSA as their bargaining representative (including Al Bryant, Inc., Harrisburg Drywall and Construction Corporation, and Al Bryant Associates, Inc.), but excluding all other craftsmen, guards and supervisors as defined in the Act, constitute an appropriate unit within the meaning of Sec- tion 9(b) of the Act. 5. (a) Keystone District Council of the United Broth- erhood of Carpenters and Joiners of America. AFL- "O , 'L.R.B k Triumph ( uring Ce'ntr, 571 F 2d 4h2. 468 (1'h Cir 1978), enfg 222 NI.RB h27 (I171ith) S.outrhport P'troh'um (Comlpunv ' L. R. .B., 315 U S (X), 16 ('42); HIoward Johnson Co(. /io , Dcrozlr Local Joint Ex..cutIve Board IHotel & Re'taurant Emnplilvc & Blartnder's Internatrondo l mont. -7tl.-(l . 417 1 S 24'1 25s1. ni 5 (1974) CIO, is now, and at all times material herein has been, the exclusive bargaining representative of all the employ- ees described in paragraph 4(a) above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. (b) United Brotherhood of Carpenters and Joiners of America, Carpenters' District Counci}"of Western Penn- sylvania, AFL-CIO, is now, and at all times material herein has been, the exclusive bargaining representative of all the employees defined in paragraph 4(b) above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. Respondents have violated Section 8(a)(5) of the Act by refusing to recognize Keystone as the representa- tive of the employees in the unit described above in para- graph 4(a) and by, since March 19, 1979, refusing to abide by the terms of the collective-bargaining agree- ment negotiated on their behalf by CPSA with respect to said employees on the payroll of Harrisburg Drywall and by, since January 1, 1980, refusing to abide by the terms of said contract with respect to said employees on the payroll of Al Bryant Associates, Inc. 7. Respondents violated Section 8(a)(5) and (1) of the Act by, since June 2, 1979, failing and refusing to recog- nize Western as representative of employees in the unit described above in paragraph 4(b) and by failing and re- fusing to apply the terms of the contract negotiated on their behalf by CPSA to said employees on the payroll of Harrisburg Drywall and Construction Corporation. 8. The aforesaid unfair labor practices have an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. Tti.: Ri mtii1) Having found that Respondents have engaged in cer- tain unfair labor practices within the meaning of Sections 8(d) and 8(a)(1) and (5) of the Act, it shall be recom- mended that they cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been concluded that the appropriate bargain- ing units include employees of Al Bryant, Inc., Harris- burg Drywall and Construction Corporation, and Al Bryant Associates, Inc., and that said Respondents com- mencing at various times refused to bargain collectively with the Unions by refusing recognition and to apply the collective-bargaining agreement to their employees in the appropriate unit: Respondents shall be ordered to recog- nize Western and Keystone and to apply the appropriate collective-bargaining agreement negotiated by CPSA to its employees retroactive to March 19, 1979, in the case of Keystone, and retroactively without time limit in the case of Western and jointly and severally make unit em- ployees of Harrisburg Drywall and Al Bryant Associates whole for any loss of earnings or other compensation they may have suffered by the unlawful refusal to apply the appropriate collective-bargaining agreement to them and to reimburse the trust funds provided for in the col- lective bargaining and to remit contributions it has failed to make on behalf of the unit employees of Harrisburg Drywall and Al Bryaint Associates, thereunder, swith in- 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terest as authorized by Florida Steel Corporation, 230 NLRB 651 (1977).s Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER8 2 The Respondents, Al Bryant, Inc., Harrisburg Drywall and Construction Corporation, and Al Bryant Associates, Inc., Harrisburg, Pennsylvania, their officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Broth- erhood of Carpenters and Joiners of America, Carpen- ters' District Council of Western Pennsylvania, AFL- CIO, as the exclusive representative of employees in an appropriate unit described below, by refusing to recog- nize and to apply the collective-bargaining agreement with said labor organization to the unit employees of Harrisburg Drywsall and Construction Corporation. The appropriate unit is: All journeymen, carpenters, layout men and appren- tices employed in the geographic jurisdiction of United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO, by employer-members designating CPSA as their collective-bargaining representative (including Al Bryant, Inc., Harris- burg Drywall and Construction Corporation, and Al Bryant Associates, Inc.), but excluding other craftsmen, guards and supervisors as defined in the Act. (b) Refusing to bargain collectively with Keystone District Council of the United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO, by refusing to recognize and apply the terms of the governing collec- tive-bargaining agreement to the employees of Harris- burg Drywall and Construction Corporation and Al Bryant Associates, Inc., in the appropriate unit. Said unit is: All journeymen, carpenters, layout men, and car- penter apprentices employed in the geographic ju- risdiction of Keystone District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, by employer-members desig- nating CPSA as their collective-bargaining repre- sentative (including Al Bryant, Inc., Harrisburg Drywall and Construction Corporation, and Al Bryant Associates, Inc.), but excluding all other craftsmen, guards and supervisors as defined in the Act. " Ifis Plumbhing & Iharitig Co., 138 NI RH 71t (1962) "2 In tit event no exceptions are filed as provided by Sec. 102 46 of Ihe Rules and Regulations of the National L abor Relali onl Bloard, Ihe findings conclusions, and recommnended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations he adopted by the iloard and become its findings, conclusions, and Order, and all objhiections thereto shall he deemed ,..aised for all purposes (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Recognize United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO, as the exclusive repre- sentative of the employees of Harrisburg Drywall and Construction Corporation in the aforesaid unit with re- spect to rates of pay, wages, hours of employment, and other terms and conditions of employment and apply the terms of the appropriate collective-bargaining agreement negotiated by CPSA and said labor organization retroac- tively. (b) Recognize Keystone District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of the em- ployees of Harrisburg Drywall and Construction Corpo- ration and Al Bryant Associates, Inc., in the aforesaid unit with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of employment and apply the collective-bargaining agreement with said labor organization to said employees, retroactive to March 19, 1979. (c) Jointly and severally make the employees within said unit of Harrisburg Drywall and Construction Cor- poration and Al Bryant Associates, Inc., who are repre- sented by Keystone District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, whole for any loss of earnings or other com- pensation they may have been denied since March 19, 1979, by the refusal to apply the terms of the collective- bargaining agreement to them, and reimburse the appro- priate trust funds provided therein for those contribu- tions which it has failed to make on behalf of said em- ployees, in the manner set forth in the section of this De- cision entitled "The Remedy." (d) Jointly and severally make the employees within said unit of Harrisburg Drywall and Construction Cor- poration, who are represented by United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO, whole for any loss of earnings or other compensation they may have been denied by the refusal to apply the terms of the collective-bargaining agreement to them, and reimburse the appropriate trust funds provided therein for those contributions which it has failed to make on behalf of said employees in the manner set forth in the section of this Decision entitled "The Remedy." (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze and determine the amount of backpay due under the terms of this Order. (f) Post at its Harrisburg, Pennsylvania, facility, copies of the attached notice marked "Appendix."83 Copies of :' In the e'ient that Ihis Order is enforced by a Judgment of a United Slates Court of Appeals, the , ords in ihe notice reading "Posted by (con ttuiled 148 Al. BRYANT. INC. FI Al said notice. on forms provided by the Regional Director for Region 6. after being duly signed by Respondents' authorized representatives, shall be posted immediately upon receipt thereof, and be maintained bh them for 6() consecutive days thereafter. in conspicuous places. in- ()Ordr of the Nali:llil I [ abr RCellaion.,t illrd" .hall r.il "'ot,im " 'ulllt - 111 to ; Juldgmnwlt1 olf Ihe !lltljd Slat Ie, Courl oft , ppea, Jillh)rtilt l 3111 ()rder ilf le Naiwtkill, l I. hor Rtt tlttn,, tioa ltl eluding all places w-here notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondents to insure that said notices are not altered, de- laced. or covered by any other material. (g) Notify the Regional Director for Region 6, in xwrit- ing. \ilthin 2() days from the date of this Order. v hal steps Respondents have taken to conlpls herew ith. 149