L & J Equipment Co., Inc.

20 DECISIONS OF NATIONAL/,LABOR RELATIONS BOARD L & J Equipment Company, ,Inc. and Willow, Tree Coal Company and United Mine Workers of America L & J Equipment Company, Inc. and United Mine Workers of America. Cases 6=CA-15854 and 6-CA-16225 13 February 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 18 August 1983 Administrative Law Judge Robert M. Schwarzbart issued the attached deci- sion. Respondent L & J Equipment Company, Inc. (L & J), Respondent Willow Tree Coal Company (Willow Tree), the Charging Party, and the Gener- al Counsel filed exceptions and supporting briefs. L & J filed a reply brief to the General Counsel's and the Charging Party's exceptions. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The Respondents have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings L & J paid $20 to $25 a ton for coal purchased from Willow Tree, rather than $20 to $23 2 We have assessed the complaint in light of the animus finding in L & J Equipment Co, 272 NLRB No 104 (1984) (not reported in Board vol- umes) That decision does not alter our conclusion that L & J and Willow Tree are not alter egos or a single employer Given our dismissal of the complaint, we find it unnecessary to pass on L & J's motion to strike pleadings As noted by the judge, the Board in L & J Equipment Co, 266 NLRB No 29 (1983) (not reported in Board volumes) found that Respondent L & J Equipment violated Sec 8(a)(5) and (1) of the Act by, inter alia, re- fusing to bargain with the Union following the Union's certification Sub- sequent to the issuance of the judge's decision herein, the United States Court of Appeals for the Third Circuit denied enforcement to the Board's Order in that earlier case and remanded the case to the Board for further proceedings concerning certain of the objections in the underly- ing representation proceedings See 745 F 2d 224 (Sept 28, 1984) In view of our agreement with the judge's dismissal of the unfair labor prac- tice allegations herein, we find it unnecessary in this proceeding to reach the issue of whether Respondent L & J Equipment generally has an obli- gation to bargain with the Union as the exclusive representative of its employees DECISION STATEMENT OF THE CASE ROBERT M SCHWARZBART, Administrative Law Judge This case was heard in Pittsburgh, Pennsylvania, on May 16, 17, and 18, 1983, pursuant to charges' filed by United Mine Workers of America, the Union, and complaint, issued November 26, 1982.2 The complaint al- leges that L & J Equipment Company, Inc. (L & J)3 and Willow Tree Coal Company (Willow Tree) are alter egos, and, as such, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). Alterna- tively, if alter ego status is not found, it is alleged that L & J alone violated Section 8(a)(5) and (1) of the Act Re- spondents L & J and Willow Tree in their answer deny the commission of any unfair labor practices. Issues 1 Whether L & J and Willow Tree are alter egos 2. If so, whether the Respondents violated Section 8(a)(5) and (1) of the Act by unilaterally opening the Willow Tree jobsite a short distance from L & J's main jobsite without prior notice to and bargaining with the Union. 3. Whether the Respondents violated Section 8(a)(3) and (1) of the Act by discriminatorily hiring outside em- ployees to work at the Willow Tree Jobsite instead of re- calling bargaining unit employees on layoff from L & J at its main site for employment at Willow Tree. 4 Alternatively, if L & J and Willow Tree are not found to be alter egos, whether Respondent L & J vio- lated Section 8(a)(1) and (5) of the Act by unilaterally subcontracting operations previously performed at its jobsite to Willow Tree without prior notice to or bar- gaining with the Union All parties were given full opportunity to participate, to produce relevant evidence, to examine and cross-ex- amine witnesses, and to file briefs Briefs, filed by the General Counsel, the Union, and by L & J and Willow Tree, separately, have been carefully considered FINDINGS OF FACT 1. JURISDICTION AND THE RESPONDENTS' ALLEGED STATUS AS ALTER EGOS A. The Business of the Respondents L & J and Willow Tree are Pennsylvania corporations engaged in the surface mining of coal L & J's principal office and place of business is located in Masontown, Pennsylvania, while Willow Tree's sole facility is at Garads Fort , Pennsylvania. i The charge and first amended charge were filed on October 12 and November 24, 1982 , respectively 2 All dates hereinafter are within 1982 unless otherwise specified At the hearing, I approved an informal settlement agreement of the separately issued complaint in Case 6-CA-16225, consolidated herewith, involving alleged violations by L & J Equipment Company , Inc of Sec 8(a)(1) and (5) of the Act Accordingly , all future references herein will be to Case 6-CA-15854 274 NLRB No. 5 L & J 'EQUIPMENT CO. During the 12-month period ending October 31, 1982, L & J and Willow Tree, collectively, in the course and conduct of their operations, purchased and received goods, services, and materials valued in excess of $50,000 directly from points outside the Commonwealth of Penn- sylvania. On the foregoing conceded facts, the agreement of the parties, and as the Board has recently exercised ju- risdiction over L & J in recent earlier proceedings, cited below, I find that L & J and Willow Tree are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act B. Background As more fully set forth in L & J Equipment Co.,4 where the Board, in granting summary judgment, found that L & J violated Section 8(a)(1) and (5) of the Act both by refusing the Union's requests to bargain with re- spect to the present uiiit and to provide certain informa- tion concerning unit employees. As that decision notes, the Union was certified as bargaining representative in Case 6-RC-9124 on April 16, 1982, for employees in the following unit: All full-time and regular part-time employees em- ployed by [L & J] at its Hatfield [in Masontown], Pennsylvania, and satellite jobsites;5 excluding office clerical employees and guards, professional employees and supervisors as defined in the Act. On August 4, 1982, the Board denied L & J's request for review of the Acting Regional Director's supplemen- tal decision on its objections to the election and chal- lenged ballots, and affirmed the Union's status as certi- fied bargaining agent for the employees in the above bar- gaining unit. Since the issuance of the Board's decision granting summary judgment, no collective-bargaining agreement has been signed. Since the close of the hearing in the present matter, Administrative Law Judge Leonard N. Cohen issued his decision in L & J Equipment Co.,e where he found that L & J, in attempting to defeat the Union's organizing campaign at Hatfield, had violated Section 8(a)(1) of the Act in seven ways. He also found that four employees had been laid off in violation of Section 8(a)(3) of the Act. Contending that L & J and Willow Tree are alter egos, a point strongly contested by the Respondents, the General Counsel argues that the Respondents were obliged to bargain with the Union concerning the open- ing of the new jobsite at Willow Tree and to offer recall to employees on layoff from L & J's main strip mine.7 21 Alternatively, the General Counsel maintains that if L & J and Willow- Tree are not found to be alter egos, then L & J alone has violated Section 8(a)(1) and (5) of the Act by unilaterally subcontracting work performed by bargaining unit employees at Hatfield to Willow Tree. C. Willow Tree's Alleged Status as L & J's Alter Ego 1. The facts Willow Tree's status must be considered in the context of the overall business operations of the Filiaggi family, proprietors of approximately 3000 acres of land located in Fayette and Greene counties, Pennsylvania. The family's commercial principals are James and Lawrence Filiaggi, brothers, who serve as president and secretary-treasurer, respectively, and as sole directors of both L & J and Filiaggi Holding Company, which owns all L & J stock. The stock of Filiaggi Holding, in turn, is held in equal shares by James and Lawrence Filiaggi. James Filiaggi is the chief operating officer of L & J and is most active in its affairs. L & J, which is principally engaged in the contour, surface, or strip mining of coal, does not hold leases or permits from the Pennsylvania Bureau of Mining and Reclamation, Department of Environmental Resources (DER) which regulates mining activities, as it is char- tered as an equipment company. However, since L & J's founding, it has engaged in strip mining through the use of its employees and equipment by way of a series of family-held satellite companies that have mining permits and realty leaseholds. These include: Lawrence Coal Company: The stock of Lawrence Coal is owned entirely by Lawrence Filiaggi, president. Josephine Ozanich, employed as L & J's bookkeeper, is secretary-treasurer. They are the sole directors and offi- cers. Filiaggi Coal Company: A sole proprietorship wholly owned by James Filiaggi. Marion Coal Company: All Marion Coal stock is owned by James Filiaggi, the Company's only director Currently, Nancy Coffman, James Filiaggi 's sister, is president and Elizabeth Burns, a former L & J employee, is secretary-treasurer.8 Sang Coal Company Wholly owned by its president, James Filiaggi, Sang Coal ceased all operations before January 1, 1981. L & J's largest and principal mining site is at Hatfield in Masontown, Pennsylvania,9 also known as the Hartley site, i ° where it operates under a permit from Lawrence Coal. i i 4 266 NLRB No 29 L & J's appeal of this decision is pending before a US Court of Appeals 5 As will be detailed below, L & J, under permits owned by various closely held satellite corporations, is engaged in coal strip mining at sev- eral sites within Greene and Fayette counties L & J's largest jobsite is at Hatfield in Masontown and the smaller jobsites are termed satellites 6 JD-(ATL)-50-83 (7/7/83) Judge Cohen's decision is presently pend- ing before the Board At the time, 10 bargaining unit employees were on layoff from L & J's Hatfield site, but 5 to 10 miles from the like operation started at Willow Tree The unilateral opening of the Willow Tree site without notice or bargaining and the hire of two employees from outside the bar- gaining unit , according to the General Counsel, were violative of Sec 8(a)(5) and (1) The Respondents are further charged with having violat- ed Sec 8(a)(3) and (1) of the Act by discriminatorily hiring outside em- ployees instead of laid-off Hatfield employees at Willow Tree 8 Before July 1982, Richard Filiaggi, then L & J supervisory foreman and now a principal of Willow Tree, was president of Marion Coal 9 All mining locations referred to herein are in the Commonwealth of Pennsylvania 10 The Hartley strip is named for Charles Hartley, the land's owner and mining rights lessor Hartley, as will be indicated below, was associ- ated with the Filiaggts in other real estate ventures Hartley also owns the land where the Willow Tree jobsite is located 11 All the jobsites worked by L & J are in the Commonwealth of Pennsylvania 22 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Under another permit from Filiaggi.Coal, L & J mines the Khedive site situated 1 to 2 miles from the Hatfield mine. By permit from Lawrence Coal, L & J mines sites at Dunbar, Normalville, and Kennedy, all of which are located 30 to 40 miles from Hatfield. Marion Coal holds a permit to mine a site at Bridgeville in Alleghany County, 50 to 60 miles from Hatfield . However, the permit under which L & J mines in Bridgeville is from Big Break Mining Company, which is not owned or op- erated by members of the Filiaggi family. L & J also op- erates at Fort Martin, 12 to 15 miles from Hatfield, under a contract to haul and dispose of fly ash . No mining is done at the Fort Martin location. L & J's Hatfield site adjoins the West Penn Power Company Hatfield Power Station L & J has a contract with West Penn to deliver 30,000 tons of coal per month to its Hatfield Power Station. To meet this agreement, L & J uses coal which it mines at its Hatfield site, at its above-described satellite locations , and which it pur- chases from smaller mine operators in the area . The coal to be used under the West Penn contract is delivered to L & J's Hatfield site where, regardless of source, it is commingled, weighed, dumped in a crusher, or else piled . The coal is mixed to obtain the specifications re- quired under the contract and then delivered to West Penn's premises One of L & J's coal suppliers whose output is used in its arrangement with West Penn is Willow Tree, the asserted alter ego Willow Tree was incorporated as a strip mining ven- ture on June 5, 1981. Its stock is owned half by Richard Filiaggi and half by Deborah Krzysiak, who, respective- ly, are the president, secretary-treasurer, and sole direc- tors. There are no other officers. Richard Filiaggi, age 26, is the son of Lawrence Filiaggi and Krzysiak , slightly older, is the daughter of James Filiaggi. Richard Filiaggi is in charge of the day-to-day operations of Willow Tree while Krzysiak maintains the Company's books and records. Willow Tree holds a drainage permit from DER12 to mine at a jobsite at Garads Fort, 5 to 10 miles from the main L & J Hatfield location Specifically, Willow Tree's Garads Fort permit extends to both a 66-acre tract of land owned by Charles Hartley and to an adjacent second land tract of approximately the same size as the Hartley property, owned by James and Lawrence Fi- liaggi in undivided one quarter shares each, and by Charles Hartley and his sister, Wanda Lee Vandenberg, as joint tenants of the remaining undivided half. Howev- er, Willow Tree holds a lease to mine only the Hartley property, for which it pays a royalty of 75 cents per ton. While it has not mined the Filiaggi-Hartley-Vandenberg tract,13 and holds no lease to those premises , Willow Tree has been permitted to construct a sediment pond 13 A mine drainage permit allows the holder to drain treated water used on its site into streams and waterways Willow Tree could not have lawfully operated without such a permit 13 The same persons who own the Hartley-Filiaggi-Vandenberg prop- erty also own an adjoining parcel of land consisting of approximately 580 acres, which they hold in the same interest ratios and a ,treatment pond on, the Filiaggi-Hartley -Vanden- berg tract. 14- When Willow Tree began operations, Richard Filiaggi was a foreman with L & J at its Hatfield site and a su- pervisor within the meaning of Section 2(11) of the Act. Filiaggi, who holds a bachelor of science degree in mining operations , had begun to work part time for L & J during the summer of 1978, becoming a full-time gener- al equipment operator there in 1979. In 1980, he became a foreman. 15 Although Willow Tree was incorporated in early June 1981, and began earth-moving operations at its jobsite with one employee, Estle Lee, on July 26, 1982,16 Rich- ard Filiaggi continued on L & J's payroll as a foreman until mid-November 1982, while he devoted increasing amounts of time to Willow Tree. During this period when his responsibilities to L & J and Willow Tree were apportioned , he drew separate prorated salaries from both corporations in amounts which reflected the use of his time. As Richard Filiaggi's involvement with Willow Tree increased so did his earnings from that Company, while his L & J pay decreased. Accordingly, before the week ending August 28, 1982, Richard Filiaggi was paid $600 a week by L & J. From the weeks ending August 28 through October 30, he was paid $400 per week and from the weeks ending October 30 through November 13, he received weekly payments of $200. Since Novem- ber 13, Richard Filiaggi has had no salary from L & J. Concurrently, from the weeks ending July 31 through October 30, Richard Filiaggi drew $200 per week from Willow Tree. This weekly sum increased to $400 from weeks ending October 30 through November 13; and to $600 from weeks ending November 13 through Decem- ber 25 . Since December 25, Richard Filiaggi has been paid solely by Willow Tree Deborah Krzysiak has received a monthly salary from Willow Tree since January 1983. There is no evidence that she ever had worked for L & J. On November 15, 1982, Richard Filiaggi hired a second employee, David Moodry, to work with Lee on the Willow Tree site. Moodry had not been previously associated with L & J 17 At Willow Tree's peak, Lee and Moodry were the only two employees whose job categories would have put them in the relevant bargaining unit at that jobsite L & J, since January 1982, has had a work force of ap- proximately 50 unit employees. Filiaggi Holding, Law- rence Coal , Filiaggi Coal, Marion Coal, and Sang Coal have no employees. From February 18, 1983, to the time of the hearing, Willow Tree has been inactive and its employees laid off. 14 Willow Tree's lease with Hartley was signed on June 1, 4 days before Willow Tree 's date of incorporation Earlier, on March 13, 1981, Willow Tree, as required by law, had published in a local newspaper notice of its intent to apply for a mine drainage permit at this location 15 For about 1 year starting after his college graduation, Filiaggi ac- quired further experience by working for a coal company not connected to his family, after which he returned to L & J 16 Richard Filiaggi had hired Lee on July 24, 1982 " Although Estle Lee had worked for James Filiaggi's father's coal mine years before , he had not been employed by L & J in the current period `1 s' At n ""„ L '&" J,1EQUIPMENT ICO ' I, ' 23 This shutdown was caused by an injunction-, issued by a state court at the request of the Greene Township super- visor The injunction prevents Willow Tree from hauling coal from its jobsite over the township road Viable Coal Company, a coal mining concern unrelated to the Filiag- gi's, located almost adjacent to Willow Tree's site, which also uses the township road to haul its coal, likewise originally had been enjoined by the court's order. How- ever, Viable Coal had resumed hauling after entering into an agreement with the township by which it agreed to repair the relevant township roads damaged by the heavy trucks used in hauling its coal. Willow Tree re- mains enjoined from the use of the roads until it reaches agreement with Viable for future road maintenance and for allocation of repair expenses already incurred by Viable. Willow Tree, at the time of the hearing, was re- sisting such an agreement with Viable, preferring instead to reach an accord with Greene Township. According to Richard Filiaggi, Viable, which hauled much more coal over the roads than did Willow Tree, was insisting that Willow Tree pay a disproportionate amount. As related by Richard Filiaggi, his company has been holding firm in this dispute because during an earlier agreement with Viable Coal, where each had agreed to pay half the cost of road repairs, Viable Coal, with its greater traffic, had done much more damage to the road This had resulted in disproportionately high road repair costs to Willow Tree, which it did not want continued. At the time of the hearing, the injunction was still in effect and Willow Tree's operations remained at a halt. Willow Tree received its startup funding when Rich- ard Filiaggi established a $50,000 line of credit with L & J under terms which provided for repayment of principal in equal installments over 5 years, with a 12-percent in- terest on the outstanding balance By the time of the hearing, Richard Filiaggi had drawn $20,000 of this credit line. The first payment was scheduled for July 1, 1983, a date after the close of the hearing, and no repay- ment of any part of this obligation had been made while the record was still open Willow Tree arranged a letter of credit, dated Septem- ber 6, 1982, from the Pittsburgh National Bank to be guaranteed by Richard Filiaggi and Deborah and Donald Krzysiak, with liens and mortgages filed against real estate owned by them. No money has been drawn pursu- ant to this line of credit. Richard Filiaggi and Deborah Krzysiak each personal- ly also have borrowed the sum of $65,699.85 from L & J with interest at the below market rate of 8-percent per annum for the purchase of land to be held as an invest- ment These indebtednesses are evidenced by identical judgment notes, dated November 19, 1982, calling for equal monthly installment payments of $600 starting Jan- uary 10, 1983. Both Richard Filiaggi and Deborah Krzy- siak have made the required payments by deductions from their respective Willow Tree salaries The land pur- chased with these two loans is very favorably situated and is held by Richard Filiaggi and Krzysiak, personally, not by Willow Tree There is no intent to use this parcel for coal mining. As Willow Tree was getting started, in addition to ini- tial financing, it received various other forms of assist- ance,from I? &,Land,'James Filiaggi. Josephine Ozanich, L & J's bookkeeper and an officer of Lawrence Coal, set up Willow Tree's bookkeeping system for which she was paid $25. In, deciding to mine this jobsite, Willow Tree was per- mitted without charge to examine the results of certain drilling tests done there by L & J in the mid or late 1970s. These tests showed the location, depth, and qual- ity of the underlying coal, and indicated potential mining difficulties as might be caused by rockiness of the soil James Filiaggi testified that perhaps four test holes had been drilled at a maximum cost to L & J of $500. Other items on Willow Tree's premises also came from L & J. These included a storage trailer used to keep tools, and smaller equipment, given by L & J at Richard Filiaggi's request.18 James Filiaggi described the trailer given to Willow Tree as "scrap" with a value of $0-300 Willow Tree also received its water pump free from L & J, an item which remains unused on Willow Tree's premises since Willow Tree's operations have been halted. James Filiaggi explained that his company owns much equipment which is left at various locations. If Richard Filiaggi required the pump for an extended period when L & J did not, it could remain on Willow Tree's property, subject to L & J's right to reclaim it, as needed. No records were kept on the use of the water pump as James Filiaggi had confidence that' his nephew would advise if the pump was being used so-that Willow Tree might be billed for wear and tear. Willow Tree acquired a fuel storage tank from James Filiaggi, as well. In response to an inquiry concerning same by Richard Filiaggi, James Filiaggi suggested that one might be available at a farm in the area. When James Filiaggi earlier had purchased a trailer from the farm's owner, the fuel storage tank had been included at no extra cost to L & J. Accordingly, as requested by Rich- ard Filiaggi of his uncle, L & J employees picked up the tank at the farm and brought it to L & J's Hatfield prem- ises. From there, Willow Tree transported the tank to its own jobsite. As noted, Willow Tree made no payment for either the tank or for its transportation. All major equipment used by Willow Tree in its mining operations was obtained from L &'J. L & J and Willow Tree entered into separate written lease agree- ments covering five pieces of such equipment Willow Tree also acquired two additional items of major mining equipment from L & J without written leases. Equipment covered by the written leases included a Caterpillar D-9 bulldozer, leased July 19, 1982, at a monthly rental of $10,000; a Case 680 backhoe, leased August 27, 1982, at a $40 hourly rental; a Caterpillar 9$0 highlift #87, leased September 13, 1982, at a monthly rental of $7500; a 637 pan #32,19 leased October 11, 1982, at a monthly fee of $800; and a 922 loader leased the same day as the pan at a rental of $500 per month 18 By contrast, the trailer on L & J's Hatfield premises was used as an office where that Company's books and records were kept Willow Tree's business records were stored in Krzysiak's home 11 A pan is a motorized device which scrapes up earth as it moves over the ground, collecting it in a portion of the vehicle 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In 1982, Willow Tree used and paid, for,the above- leased equipment as follows: Months Bulldozer Backhoe H,80ift Pan Loader (Ud•Pd) (Ud Pd) (Ud Pd) (Ud Pd) (Pd) Aug (U). 26 - - - - days (281 hrs) - - - - (P) - - - - $10,000 Sept (U) 10 90 hrs 5 days - - days (100 hrs ) (50 hrs) - - (P) $10,000 $3600 $7500 - - Oct (U): 3 - 20 days - - days (200 hrs) Nov (U)• 5 - 13 days - - days (53 hrs) (130 hrs ) (P)' $10,000 - $7500 $8000 - Dec. (U) • 8 - 11 days I day - days plus (80 hrs ) ( 110 hrs.) 2 half days (P)' $10,000 - $7500 $8000 Jan '83 (U): 2 - 11 days 4 days days + 2 half - (110 hrs.) (40 hrs.) days In addition to the above five items of equipment cov- ered by written leases, Willow Tree, since November, also leased from L & J two additional pieces of equip- ment not covered by written agreement These were an- other D-9 bulldozer and a 992-C highlift. The second bulldozer was used 9 days in November (68 hours), 14 days in December, and 10 days in January 1983.20 No lease payments were made by Willow Tree for the second bulldozer, which it ultimately purchased for $40,000 from L & J in January 1983. Willow Tree re- ceived a $10,000 credit toward this price from the De- cember lease payment made for the first bulldozer. The 992-C highlift, which was used by Willow Tree 1 day in November, 7 days in December and 13 days in January 1983, also was purchased by Willow Tree in January for $5000 without mandatory prior lease pay- ments. The $8000 October rental payment made by Willow Tree for the use of the pan was credited toward the overall $45,000 purchase prices for the bulldozer and highlift. James Filiaggi had agreed to grant Richard Fi- liaggi's request for such a credit, as the pan, although on Willow Tree's premises throughout, had been used only during 1 full day and parts of 2 days in December 21 20 The first bulldozer obtained by Willow Tree was lighter than the second, did not have a ripper, and had a smaller blade Accordingly, the first machine was used for forming ponds, ditches, and backfield work, but not for strip mining The second bulldozer will replace the first after a period of concurrent use 21 The Respondents contend that under industry practice payment is made for leased equipment only to the extent that the equipment actually The $27,000 balance due on the bulldozer and highlift above the combined $18,000 credit was paid in January 1983. However, no lease payments have been made with respect to any of the other above-described pieces of equipment since December 1982, although it all has re- mained on Willow Tree's premises with the two items of purchased equipment.22 Richard Filiaggi explained that as he was not moving any coal or using the equipment because of the injunction against Willow Tree, James Fi- liaggi had agreed to his request that payments on the leased equipment be delayed until Willow Tree's oper- ations resume. No interest increase was assessed by L & J because of the period of nonpayment for the idled equipment since December 1982.23 The truck used at no charge by Willow Tree is owned by National Ford, a dealership belonging to Richard's father Lawrence Filiaggi, coprincipal of L & J and Fi- liaggi Holding. Other members of the Filiaggi family, whether or not connected with the family's businesses, also have free use of National Ford's vehicles. While Willow Tree was in its initial phases, when Richard Filiaggi was employed by L & J, he used L & J's address and telephone number for Willow Tree However, this practice was discontinued in July 1982 when Willow Tree began operations. Richard Filiaggi then established a separate Willow Tree mailing address and began to use his home telephone number for Willow Tree's affairs. As noted, Willow Tree's business records are stored in Krzysiak's home, where she maintains them. Although Richard Filiaggi denies ever having held out his company as being a part of L & J, there originally was a melding of insurance coverage whereby Willow Tree was jointly included under certain policies obtained by L & J on behalf of itself and the above- named satel- lite companies. The certificate of insurance, dated Sep- tember 3, 1981, filed with DER by Willow Tree on De- cember 10, 1981, in support of its application for a sur- face mining operator's license, shows that Willow Tree was covered by policies for general liability and automo- bile liability, and by a policy written by another carrier for excess liability. The three policies, which also cov- ered Lawrence Coal, Filiaggi Coal, and Marion Coal, originally were effective from May 15, 1981, to May 18, 1982. Thereafter, Willow Tree was insured by another policy, effective May 18, 1982, to May 18, 1983, issued is used Accordingly, Richard Filiaggi asserts that the October $8000 payment for the pan was made in error He did not explain the later like payments for the pan 2 2 James Filiaggi testified that L & J is not primarily in the business of leasing its equipment, preferring to use it to do road construction work when the cyclical coal industry is slow When the coal market improves, its equipment is returned to stripping coal However, L & J also has leased equipment to many others besides Willow Tree, including West Penn Power, a particularly good customer in this respect , to Mononga- hela Power , and to Lynn-Mar, a manufacturing concern This equipment is leased with and without L & J - employed operators 23 In addition to the forebearance of lease payments since December 1982 and the crediting of former lease payments to the purchase prices of the second bulldozer and highlift, L & J further subsidized Willow Tree in this area by not charging for the use of the second bulldozer and high- lift during the months before those items were purchased, when they were under unwritten lease to Willow Tree '1>IA(,i) rr(A, L & Ji EQUIPMENT CO., `t' "- 25 jointly to L & J, Sang Coal, Lawrence {Coal, Filiaggi Coal, Marion Coal, and, Filiaggi Holding,' providing com- prehensive general liability protection, and which includ- ed additional multicoverage for business and automobile related liabilities Richard Filiaggi testified that when, in September 1982, he discovered Willow Tree's joint coverage under insurance policies also applicable to L & J and related firms he corrected this error by removing Willow Tree. Richard Filiaggi related that there had been a partial in- surance coverage overlap in that Willow Tree had had its own general liability insurance, in its own name, since the preceding June. James,Filiaggi, in turn, testified that it had been he who had corrected this error by removing Willow Tree as he did not want to pay someone else's bills L & J had not paid larger premiums for the time when Willow Tree was also covered under its policies as that company had not yet started its business operations. When Willow Tree applied to DER for its necessary mine drainage permit, it was required to post a bond with the State to assure that the land would be reclaimed when mining there was completed To meet this require- ment, Willow Tree's application was accompanied by a surety bond in the amount of $164,000, dated October 13, 1981. This had been issued by a surety company after L & J and James and Lillian Rogers and Laurel Indus- tries, Inc 24 signed a general coindemnity agreement to protect the surety's position in the event of default. The record is clear that the necessary surety bond would not have been issued had L & J and the others not entered into the coindemnification agreement.25 Richard Filiaggi testified he exercises complete oper- ational control over Willow Tree, with no interference from James Filiaggi Accordingly, it was Richard Fi- haggi who hired and assigned work to both 'of Willow Tree's employees, personally deciding every operational aspect of that company' s business There has been no employee interchange between Willow Tree and L & J, except that in August 1982 when a bulldozer leased from L & J became stuck in the mud and a crew from L & J was dispatched to extricate it. Willow Tree was not billed for this service which took crew and equipment 4 hours to perform Additionally, on 2 half days in February 1983, a drill- ing operator and rig from L & J was used to do drilling on Willow Tree's jobsite Although Willow Tree was billed for this service, the bill had not been paid at the time of the hearing Differences in employment terms also have been em- phasized Willow Tree employees were paid a straight hourly rate of $12. They received no vacation or holiday pay and no health insurance Willow Tree's employees 24 James Rogers is president of Laurel Industries, a construction and maintenance contracting concern, and Lillian Rogers is his wife 25 The coindemnification agreement was signed on the Filiaggi side not only by L & J, but by Filiaggi Holding and by all the above-named satellite companies Accordingly, Richard Filiaggi signed not only as president of Willow Tree, the beneficiary concern, but also on behalf of Marion Coal, technically one of the indemnifiers, of which he was then the president Richard Filiaggi explained that as Willow Tree had not had a past bonding record, there had been nothing to base his indemnity request on and it had been necessary to request that his uncle support his application, to which James Filiaggi had agreed also received)no,.pe"nsion or profit-sharing plan, and uni- forms were not provided. By comparison, L'& J, which had no collective-bargaining agreement, pays its heavy equipment operators between $10 to $11 an hour, pro- vides a group insurance plan, a profit-sharing plan, and holiday and vacation pay, and contributes half the cost of uniforms. Summarizing other operating differences, Willow Tree and L &'J file separate Federal and state tax returns, have separate Federal identification numbers, and keep their respective books at different locations 26 The two concerns each have their own bank accounts and, since September 1982, their own insurance coverage. Both firms use the same insurance broker. While L & J, as noted, ' provides health insurance for its employees, Willow Tree does not, and Richard Filiaggi has a health insurance policy in his own name Donald Brotherton27 testified that in June or July 1981 he was approached on L & J's Hatfield jobsite, where then employed, by Richard Filiaggi, then a super- visor there. Fihaggi told Brotherton that "they" were going to start up a new strip at Willow Tree near Garads Fort, and were going to take a bulldozer, a highlift, and a couple of trucks over there very soon. Fihaggi contin- ued that Jim Carolla28 probably would be going there on the highlift, and asked if Brotherton would go on the bulldozer. Brotherton replied that he would not mind the new location because it would be closer to home and he would not have to travel as far Brotherton related that although he had expressed an interest in going to the proposed new location as being closer to his home, the topic was not again mentioned. The General Counsel and Union, construing the refer- ences to "they" attributed to Richard Filiaggi as meaning L & J, argue that it had been L & J's intent from the start to operate the Willow Tree site and had changed this intent to create Willow Tree as the operating con- cern only with the start of the Union's campaign in August 1981. These parties assert that Richard Filiaggi, as an L & J supervisor, had set out to further L & J's purpose by recruiting that Company's personnel to help launch the Willow Tree strip Richard Fihaggi denied that such a conversation with Brotherton ever occurred and the Respondent pointed to certain matters testified to by Brotherton which did not appear in his pretrial affidavit. Accordingly, Brotherton, in his affidavit, had made no reference to Carolla, the movement of equipment to the new location, or that the new site would be located near Garards Fort. Nonethe- less, Brotherton reaffirmed his testimony on these mat- ters, explaining that the affidavit had been taken hurried- ly at the end of the day. Brotherton's testimony, limited in its scope, is credited. Unlike Richard Filiaggi, he was a comparatively disinterested witness who appeared cer- 26 As noted, the two Companies had the same address and telephone number until July 1982, but have had separate addresses and phone num- bers ever since. 27 Brotherton was employed by L & J as a bulldozer operator from February 1976 until his layoff in December 1981 26 James Carolla has been employed by L & J since at least January 1981 26 DECISIONS OF NATIONAL14L ABOR RELATIONS BOARD tarn of his statement as given at,the' heating- While his affidavit might have been more comprehensive the defi- ciencies are' not major In relating the asserted conversa- tion to the possibility of an opportunity to work closer to his home, Brotherton had self-interest which could have credibly impressed the incident in his memory. L & J, with its above-noted contract to supply West Penn Power, and Gallatin Fuels, Inc., are the two princi- pal commercial coal purchasers in Greene and Fayette counties Between them, they have bought all coal pro- duced by Willow Tree during its active period. Accord- ingly, from November 3, 1982, through March 10, 1983, L & J, paying from $20 to $23 per ton, depending on quality, purchased five shipments from Willow Tree. Al- though Gallatin Fuels paid $28 a ton, only two ship- ments were sold to them by Willow Tree for a total pur- chase price equal to approximately 5.5 percent of what Willow Tree received from L & J. L & J, as stated, also obtained coal from its satellite sites, as follows: In 1981, L & J, at its Hatfield site, took 58 percent of the coal produced at the Normalville srte29 and all coal produced there in 1982. In 1981 and 1982, L & J at Hatfield, received 79 and 73 percent, respectively, of the coal produced at the Dunbar strip. Coal not taken by L & J from those locations in 1981 and 1982 went to Keystone Coal Sales, a coal broker. In 1981, L & J acquired only 17 percent of the coal produced at the Bridgeville site,30 but, in the following year, it took 96.5 percent. The quantities that did not go to L & J during those years went to a variety of compa- nies, generally in small percentages, except that, in 1981, one outside purchaser received 44 percent of the Bridge- ville output The record also shows that since January 1, 1982, L & J purchased coal from 18 companies other than Willow Tree, mostly in multiple shipments from each of the vari- ous suppliers, except that five of these vendors sold only one shipment apiece. Prices paid to each of these suppli- ers for total amounts of coal received ranged from a min- imum of $336.75 to a maximum of $354,122.14. L & J's role as a major coal purchaser in its geograph- ic area is not disputed. 3 i James Filiaggi explained that in meeting L & J's supply contract with West Penn Power, he buys coal from Willow Tree and other small opera- tors because it is cheaper to buy than to mine L & J's own coal, and by so purchasing, he can keep his own re- serves intact Accordingly, Willow Tree's coal was bought to be resold to West Penn Power together with coal from other operators. The General Counsel finds evidence of an alter ego or single employer status in that on March 25, 1983, Rich- ard Filiaggi and Willow Tree employee Estle Lee at- tended a periodic DER-conducted32 safety training ses- sion required by the U.S. Mine Safety and Health Ad- ministration (MSHA), and held at the request of Law- rence Coal There, Richard Filiaggi signed the mandato- ry attendance sheet listing himself as a Lawrence Coal foreman and Lee signed as a highlift operator for that company. All others who signed the attendance sheets for that session were employees of L & J at its Hatfield strip, but were listed as Lawrence Coal employees. How- ever, the required certificates of training completed and signed by each attending individual during the training session show that Richard Filiggi and Lee had indicated on that document that they were employees of Willow Tree and had entered an employer 's identification number different from that of Lawrence Coal. Richard Murphy, director of Deep Mine Safety, DER, whose department had custody of the records of the March 1983 safety training session in question , testified that it is not unusual for employees of different compa- nies to join in a single training session . Notification of training certificates, sent out in advance of training ses- sions, when completed, show who will be present, the employers involved and their respective identification numbers. According to Murphy, DER had been incor- rectly notified that the only employer to be involved in that training session was Lawrence Coal, when Willow Tree's identification number also should have been given. Murphy related that this later was corrected on the re- quired certificate of training , completed by all who at- tended, which showed that Willow Tree's representa- tives had signed with the proper identification.33 Except for the conflict relating to Brotherton 's testi- mony concerning an early invitation to work at the Garads Fort strip, the evidence concerning arrangements between L & J and Willow Tree is essentially stipulated, except that the Respondents have offered explanatory evidence of instances where L & J has provided and re- ceived similar courtesies and services for and from other companies in the area where the principals were unrelat- ed to the Filiaggi family. Accordingly, although the General Counsel was able to establish that L & J had coindemnified Willow Tree when that Company was applying for a land reclamation bond as part of its bid for a drainage permit to enable it to engage in strip mining, James Filiaggi testified that L & J also earlier had indemnified Laurel Industries, Inc., whose owners were unrelated to the Filiaggis, but who had joined L & J in supporting Willow Tree's bond. James Filraggr also testified that while it may be common to receive payment for the use of drilling test results such as those Willow Tree had obtained from L & J, or to share the tests with other operators , among a certain group no money is exchanged . At his Normal- 29 Coal is produced at the Normalville and Dunbar sites under permits from Lawrence Coal 30 Marion Coal holds the permit to mine the Bridgeville strip 31 Ronald Chico, owner of Carbonaro Coal Co, testified that in 1982 his company sold between 70 and 90 percent of its coal to L & J The remainder of Carbonaro's production went to Gallatin Fuels Chico relat- ed that he and the other small operations in the area similarly situated are largely dependent on L & J and Gallatin Fuels as outlets Chico conced- ed that if he could not sell coal to L & J or find another buyer, he prob- ably would have to go out of business 3z Although administered by the State Department of Environmental Resources, these training sessions are required by the Federal Govern- ment and attendance is closely monitored The L & J employees who at- tended the session listed themselves as employees of Lawrence Coal, under whose permit they were working 33 Murphy's testimony that employees from various companies may participate in joint training sessions was corroborated by Chico of Car- bonaro Coal, who averred that he and his staff had been invited to par- ticipate in the March 1983 training session, but had declined i rl , r . L & J EQUIPMENT CO , ville site, Filiaggi had used ',the drilling records of the Marcelino Coal Company. as a courtesy, and, L & J had shared its drilling tests with others, as well. Future pay- ment for this type of information has been ended as, under new DER regulations, drilling records now can be obtained as public information. James Filiaggi also sought to counter the evidence concerning the equipment provided to Willow Tree by pointing out that L & J also has loaned equipment to and has borrowed equipment from other coal operators, indi- cating specific firms with which it has participated in such exchanges. As noted, L & J also has leased its equipment,34 with or without operators, to a variety of companies named above, and James Filiaggi provided specific instances where his Company has drilled for firms other than Willow Tree and even where drilling services were mu- tually exchanged without charge. James Filiaggi related with respect to the equipment furnished to Willow Tree, that the cost to L & J of the trailer was negligible and the fuel tank had been free The water pump was one of many pieces of equipment that L & J owned but did not need at the time 2. Discussion and conclusions Administrative Law Judge Ries in his Board-approved decision in Bryar Construction Co,35 held that: In determining whether two or more businesses are sufficiently integrated so that they may be fairly treated, for jurisdictional and other purposes, as a single enterprise, the Board looks to four principal factors: (1) common management, (2) centralized control of labor relations, (3) interrelation of oper- ations, and (4) common ownership or financial con- trol. Radio and Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc', 380 U.S 255, 256 (1965); Sakrete of Northern Cali- fornia, Inc. v. N.L.R.B., 332 F.2d 902, 905, fn. 4 (9th Cir. 1964). "The Board has determined that no single criterion is controlling, although it considers the first three, which evidence operational integra- tion, more critical than the fourth, common owner- ship." N.L.R.B. v Triumph Curing Center and M.F. Lee d/b/a Lee's Sewing Company, Inc., 571 F.2d 462, 468 (9th Cir 1978), enfg. 222 NLRB 627 (1976). Of the above-emphasized first three criteria relating to operational intergration, particular emphasis has been placed on centralized control of labor relations.36 While each case must be resolved on its own facts, alter ego status generally has been found where the two enter- prises have "substantially identical" management, busi- 34 James Filiaggi testified that, even at the time of the hearing, he was in the process of arranging to lease L & J equipment to a coal operator named Fike and to buy the coal produced by him 35 240 NLRB 102, 103-104 (1979) 3s Friederich Truck Service, 259 NLRB 1294, 1300 (1982), Stoll Indus- tries, 223 NLRB 51, 53-54 (1976), enfd 551 F 2d 301 (2d Cir 1977), Gerace Construction, 193 NLRB 645 (1971) 27 ness purpose, operation,equipment, customers, and su- pervision, as well as ownership 37 L & J and Willow Tree do not have common owner- ship. The stock of L & J is controlled by Lawrence and James Filiaggi through their equal ownership of the shares of L & J's parent concern, Filiaggi Holding. Willow Tree, at all times, has been owned in equal shares by Richard Filiaggi and Deborah Krzysiak, as sole officers and directors. Richard Filiaggi and Deborah Krzysiak never have owned a financial interest in L & J or Filiaggi Holding Similarly, no one but them has held an ownership or official position in Willow Tree. There has been no common supervision. James and Lawrence Filiaggi never have been officers or sharehold- ers of Willow Tree nor have they exercised supervisory authority there. Although before July 1982, Richard Fi- liaggi had been president of Marion Coal, an L & J satel- lite company, and had served as a foreman at L & J's Hatfield site, he resigned from this position in mid-No- vember 1982 to work full time at Willow Tree. During a transition period, Richard Filiaggi worked as supervisor at both L & J and Willow Tree, but did not fill these positions as part of a single employment . Rather, he was paid separately by each corporation for the time respec- tively spent. Initially, Richard Filiaggi was paid more by L & J which claimed most of his worktime. As his in- volvement with Willow, Tree grew, he gradually was paid less by L & J and more by Willow Tree until he permanently resigned from L & J, to be thereafter com- pensated only by Willow Tree.38 There is no evidence that Krzysiak ever had worked for L & J. The employees of L & J were separately hired and as- signed by James Filiaggi, while the two employees em- ployed by Willow Tree were hired and assigned entirely by Richard Filiaggi. The independently determined terms and conditions of employment at Willow Tree, where no vacations or other benefits were provided, were very, different from those at L & J where the em- ployees enjoyed health insurance, paid vacations and holidays, and profit sharing. There was no employee interchange between Willow Tree and L & J, although Willow Tree benefited from certain specific services entailing use of L & J employees and equipment. However, these instances, which consist- ed of L & J's assistance for 4 hours in extricating a bull- dozer from the mud, partial transportation by L & J em- ployees of a fuel storage pump intended for Willow Tree, and Willow Tree's use, during two half days, of a drilling rig and operator from L & J, were few and iso- lated. There is no showing that L & J employees, at any 37 Upshur Engineering Enterprises, 259 NLRB 1323, 1324 (1982), Nabco Corp, 266 NLRB 687 (1983), Crawford Door Sales Co, 226 NLRB 1144 (1976), Ramos Iron Works, 234 NLRB 896 (1978) 3e See United Constructors & Goodwin Co, 233 NLRB 904, 913 (1977) Contrary to the General Counsel, the weight of the evidence also clearly shows that the temporary listing of Richard Filiaggi and Willow Tree employee Estle Lee as a foreman and employee, respectively, of Law- rence Coal at the March 1983 safety training session was an error, imme- diately corrected Joint training sessions, participated in by personnel from more than one mining concern , are common occurrences and there is no evidence that any individual exercised common supervisory author- ity over both corporations, except as explicated above 28 DECISIONS OF NATIONA'I•C"LABOR RELATIONS BOARD time, had become involved in the' routine work per- formed at Willow Tree, or that the reverse had oc- curred. The General Counsel and the Union seek to blur the operational distinctiveness of these enterprises and to es- tablish common financial control, absent factual common ownership, by the quantum of evidence presented of ma- terial assistance and favored treatment afforded to Willow Tree by L & J in its establishment and subse- quent operations The below market rate credit, debt forgiveness and forebearance, and other benefits extended to Willow Tree by L & J, including Willow Tree's startup money and flexible equipment leasing purchasing terms, have been set forth in great detail above and need not be re- peated here. Noting, however, that where Willow Tree did arrange its own $50,000 credit line, in September 1982, with the Pittsburgh National Bank under terms which provided that any loan issued thereunder would be secured by real estate owned by Richard Filiaggi and Krzysiak, it is quite arguable that the respective $65,699.85 unsecured loans made 2 months later by L & J to Richard and Deborah at the below market annual interest rate of 8 percent, used to buy land, was intended to ensure that when the time came, they would have real estate sufficient to pledge-and then some. In summary, Willow Tree benefited in its formative period from the use of L & J's office facilities from family land connections; from L & J's coindemnification agreement to support its land reclamation bond, from the extensive credit arrangements above described; from the generously flexible lease/purchase relationship on heavy equipment and from other operating items furnished gratis; from association with L & J or its satellite compa- nies when Willow Tree applied for its mining license, and in other ways. L & J also was the principal purchas- er of Willow Tree's coal.39 I would agree with the General Counsel that, from the sum of its financial and material assistance, L & J has as- sumed much of the risk of Willow Tree's venture, with the result that L & J is positioned, as is any large credi- tor, to exercise the indirect influence over Willow Tree's policies. For example, it 'seems unlikely that without L & J's cooperation, in the face of the injunction, Willow Tree could have long continued its dispute with Greene Township over the use of the township road. This, how- ever, is not the 'same as direct managerial control Among the factors used to evaluate alter ego status, common ownership or common financial control, while targeted if not established here, are considered less im- portant than the criteria reflecting operational integra- tion. 99 Although the General Counsel found mtegrational significance in the fact that Willow Tree sold so much more of its coal to L & J than to the other major area purchaser, Gallatin Fuels, when Gallatin Fuels paid $3 to $8 per ton more, this is not conclusive as there was no showing of Gallatin Fuels' general qualitative or quantitative requirements Noting that L & J also purchases the bulk or entire coal output of many other small mining companies in the area, which also might otherwise have sold to Gallatin Fuels, it is not clear that Gallatin provided as large or as ready a market for area producers as did L & J In these circumstances,' I find that although L & J and Willow Tree had basically the same business purpose, and, through generously administered lease agreements, used some of the same equipment, they were maintained as two totally independent corporations with respect to their operations and control of labor relations. There were no common officers, directors, shareholders or su- pervisors and there was no employee interchange. After the summer of 1982, in every aspect but financial obliga- tion the two companies were physically and administra- tively apart James Filiaggi controlled operations, admin- istration, and labor relations for L & J, while Richard Fi- liaggi did the same for Willow Tree.40 The situation here is not unlike Friederich Truck Serv- ice,41 and Pinter Bros., Inc ,42 where alter ego status was not found although, in each case, the principals of one corporation alleged as an alter ego were the children of the owners of the other asserted corporate alter ego. In Pinter, as here, the trucking concern owned by the sons, without penalty, fell well behind in its payments to the parent's company for the lease of all its rolling stock and for other leased items. Informality also was present in the lease arrangements in Pinter as no formal truck rental agreement was entered into until 5 months after the start of the lease period. While, as in Key Coal Co.,43 cited by the General Counsel, differentiating factors such as separate bank ac- counts, separate workmen's compensation and unemploy- ment numbers, separately filed tax returns, different in- surance policies, and even different terms and conditions of employment of respective employees, need not pre- clude a finding that separately incorporated companies are a single employer, in Key Coal, supra, and in the other cases cited by the General Counsel and Union where alter ego or single employer status was found, control of operations and of labor relations, the direct decision-making authority, were centralized far more than here.44 Although the General Counsel, by indicat- ing the very considerable financial benefits extended to Willow Tree and its principals by L & J, has created a suspicion of financial control, if not common ownership, this is not tantamount to proof In any event, on the above-cited authority, in determining the existence of alter ego or single employer status, the factors relating to 4° Even if L & J, in the summer of 1981, had planned to operate on its own what later became Willow Tree's site, as the General Counsel seeks to establish through Brotherton, this never occurred In addition, all evi- dence of animus argued by the General Counsel in support of its alter ego assertion is contained in Administrative Law Judge Cohen's decision That matter is pending before the Board, and is not available to substanti- ate that L & J created Willow Tree to operate the Willow Tree jobsite for unlawful reasons The degree of separateness found here made would, in any event, minimize the impact on Willow Tree of any finding of animus on the part of L & J 41 259 NLRB 1294, 1300-1 (1982) 42 263 NLRB 723 (1982) 43 240 NLRB 1013, 1018-19 (1979) 44 In dictum at 263 NLRB at 740 fn 54, supra, Administrative Law Judge Biblowitz in his Board-approved decision in Pinter Bros, Inc, while not reaching the issue, raised the question of whether a finding of alter ego can be made simply because a father wished to grant certain favors to his children that he did not afford others In the context of the overt criteria established for determining alter ego status, the answer would appear to be in the negative FE A: )t' - i' r L,& J EQUIPMENT, CO., operational integration, which: were not established here, are paramount. ,! On the basis of the above, I find that L & J and Willow Tree are two separate and independent corpora- tions and are not alter egos or a single employer. There- fore, as there was no removal of L & J unit work to Willow Tree, there is no basis for finding, as alleged in the complaint, that the Respondents had refused to bar- gain or had acted discriminatorily by Willow Tree's fail- ure or refusal- to employ any of the 10 bargaining unit employees previously laid off by L & J from its Hatfield jobsite. As there also is no evidence to support the General Counsel's alternate theory that, should alter ego status not be found, L & J had unlawfully refused to bargain with the Union by unilaterally subcontracting to Willow Tree work previously performed by its bargaining unit employees at Hatfield, I find that the complaint allega- tions that the Respondents had violated Section 8( a)(1), (3), and (5) and, alternatively, that L & J had violated Section 8(a)(1) and (5) of the Act should be dismissed. I find that the Union is a labor organization within the meaning of Section 2(5) of the Act On these findings of fact and the entire record, I issue the following recommended 29 ,I 7I ,CONCLUSIONS OF LAW 1 Respondent L & J and Respondent Willow Tree are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3 Respondent L & J and Respondent Willow Tree are not alter egos or a single employer and have not engaged in the unfair labor practices alleged in the complaint in this proceeding. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed45 ORDER It is ordered that the complaint be dismissed in its en- tirety. 45 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses