Estrella Construction Co.

WILLIAM N. TAYLOR, INC. 1049 William N. Taylor, Incorporated; John R. Taylor and Dolores Taylor, a Partnership, d/b/a Es- trella Construction Company and Local Union No. 12, International Union of Operating Engi- neers. Case 31-CA-12477 May 24, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On November 7, 1983, Administrative Law Judge Roger B. Holmes issued the attached deci- sion. The Respondents filed exceptions and a sup- porting brief, and the General Counsel and the Charging Party filed reply briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, fmdings, 1 and conclusions2 as modified, to modify his remedy, and to adopt the recommended Order as modified. The facts are set forth at length in the judge's decision. The Respondent, William N. Taylor, In- corporated (Taylor, Inc.), is engaged in the con- struction business as an underground utility con- tractor. Since 1957 Taylor, Inc. has been a party to a series of collective-bargaining agreements with Local Union No. 12, International Union of Oper- ating Engineers (the Union), the latest of which was effective from July 1, 1980, to June 30, 1983. Taylor, Inc. was owned by William Taylor and his wife Katie Taylor, who became the sole owner when William died in 1982. Their son, John Taylor, became president of Taylor, Inc. in 1980, and in 1981 became its registered responsible man- aging officer. During this period John supervised all employees, both directly and through an onsite foreman, prepared bids, and ordered supplies. Katie also prepared bids, ordered supplies, and performed general office work, including bookkeeping and payroll responsibilities. In February 12823 John formed Respondent Es- trella Construction Company (Estrella). The part- 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 Thy 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 2 In the absence of exceptions, we adopt the judge's conclusion that the Respondents violated Sec 8(a)(1) by attempting to convince an em- ployee to abandon his union membership and by interrogating an employ- ee about his union activities. 3 All dates are m 1982 unless otherwise noted. nership was solely owned by John and his wife Dolores. On May 29 John and Dolores resigned as president and treasurer of Taylor, Inc. and from its board of directors. Katie replaced John as presi- dent, and though other family members assumed positions as officers and directors of Taylor, Inc. (including Renee Vellinga, John's daughter, as sec- retary-treasurer and a director), Katie was the only individual formally associated with Taylor, Inc.'s operation who took an active role in its manage- ment. In finding that Taylor, Inc. and Estrella were alter egos and a single employer, the judge relied on extensive evidence, which is fully set forth in his decision. For the reasons detailed in his deci- sion we agree with his finding. Estrella began as a going concern in the first week of June as a non- union company. Immediately before that period Taylor, Inc. had 12 employees. Nine of them left Taylor, Inc. to work for Estrella and constituted Estrella's sole employee complement at the time. Estrella did not adhere to Taylor, Inc.'s collective- bargaining agreement with the Union, but wages and working conditions were otherwise substantial- ly the same as they had been at Taylor, Inc. Es- trella performed the same underground utility work in the same geographical area using Taylor, Inc.'s equipment, which was initially provided without compensation. 4 Employees of both compa- nies reported to work at Taylor, Inc.'s yard. Es- trella paid nothing for the use of Taylor, Inc.'s yard. Katie provided uncompensated bookkeeping and other services for Estrella, and John remained involved in day-to-day supervision of Taylor, Inc.'s projects, including the hiring of Taylor, Inc. em- ployee Kent Day and criticism of his work. John performed these services without compensation from Taylor, Inc. When questions arose over the use of nonunion personnel by Taylor, Inc. in July 1982, it was John who consulted with the laborers' union over the situation. Operating capital flowed freely between the companies through a series of interest-free, unse- cured loans transacted as need arose and without repayment terms or late fees. It is readily evident that these exchanges, which occurred informally when one company had cash on hand and the other did not, were not at arm's length but resulted from centralized control that pervaded the oper- ations of both Respondents. In addition, we note 4 Although Estrella later compensated Taylor, Inc. for some of the equipment pursuant to an oral agreement between Katie and John, they did not enter into a written rental agreement until September 1, after the Union filed a charge with the Board Pursuant to the oral agreement, there were no records or receipts showing payment by Estrella to Taylor for the use of the equipment 288 NLRB No. 118 1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that Katie routinely authorized cash disbursements not only for Taylor, Inc., but also for Estrella. While Katie testified that she was in the process of training Renee Vellinga to handle such disburse- ments on behalf of Estrella, the record establishes that Katie continued to disburse funds for Estrella up until the time of the hearing nearly a year after she had begun training Renee Vellinga. As noted above, Renee Vellinga, daughter of John Taylor, was secretary-treasurer of, and on the board of di- rectors for Taylor, Inc. Although in form they re- mained separate entities, the Respondents were, in fact, an integrated business with common finances, management, labor relations, premises, equipment, and business purpose, providing exactly the same services in the same geographical area. According- ly, we agree with the judge that the Respondents constitute a single employer and their employees a single unit. The judge found that John's reason for forming Estrella was to be more competitive by evading Taylor, Inc.'s contractual obligations with the Union and, in particular, to be free from the con- straints of the Union's hiring hall. He credited the testimony of Respondents' witness, Jack Nelson, who learned from John that he intended to estab- lish Estrella as a "duplicate" or "parallel" company to compete in Taylor, Inc.'s job market. Under the circumstances, we have no difficulty concluding that Estrella was merely a technical change in op- eration or a disguised continuance of Taylor, Inc., and that the Respondents are alter egos. Accord- ingly, for this additional reason, we agree with the judge's finding that their employees constitute a single appropriate unit. 5 Having found that the Re- spondents are a single employer and alter egos, we conclude that Respondent Estrella was bound to Respondent Taylor, Inc.'s collective-bargaining agreement with the Union, but impose the contrac- tual obligation for the following reasons. The judge accepted the Respondents' admission that the Respondents were engaged in the con- struction industry as underground utility contrac- tors, and the record shows beyond question that this is so. We, therefore, find that the Respondents are engaged in the construction industry within the meaning of Section 8(f) of the Act. In John Deklewa & Sons, 282 NLRB 1375 (1987), the Board overruled R. J. Smith Construction Co., 191 NLRB 693 (1971), enf. denied sub nom. Oper- ating Engineers Local 150 v. NLRB, 480 F.2d 1186 (D.C. Cir. 1973), abandoned the conversion doc- trine and modified unit scope rules in 8(f) cases. 5 See, e g., Samuel Kase & Sous, 269 NLRB 424, 427-429 (1984) The Board decided to apply the following princi- ples (282 NLRB 1375): (1) a collective-bargaining agreement permit- ted by Section 8(1) shall be enforceable through the mechanisms of Section 8(a)(5) and Section 8(b)(3); (2) such agreements will not bar the processing of valid petitions filed pur- suant to Section 9(c) and Section 9(e); (3) in processing such petitions, the appropriate unit normally will be the single employer's employ- ees covered by the agreement; and (4) upon the expiration of such agreements, the signato- ry union will enjoy no presumption of majori- ty status, and either party may repudiate the 8(1) bargaining relationship. The Board also held at footnote 41: "Mie will re- quire the party asserting the existence of a 9(a) re- lationship to prove it." As the record in the instant case fails to demonstrate a 9(a) relationship, we find that Section 8(1) applies that Deklewa is con- trolling. 6 For the reasons set forth in Deklewa, we affirm the judge's finding that the Respondents, by failing to apply the 1980-1983 agreement to employees of Respondent Estrella, violated Section 8(a)(5) and (1) of the Act. In 1957 Taylor, Inc. signed an agreement incorporating the master labor agree- ment in effect between the Southern California Contractors Association and the Union, effectively delegating bargaining authority to the Association for successor agreements. At the time of the hear- ing, the most recent master labor agreement ex- pired by its terms on June 30, 1983. Although Deklewa permits a party to repudiate its 8(1) rela- tionship on the expiration of a bargaining agree- ment, there is no evidence that the Respondents ef- fectively repudiated their relationship or agreement with the Union 7 or timely withdrew bargaining au- thority from the Association. Accordingly, we leave to compliance the determination of whether the Respondents, as a single employer/alter egos, are bound to any subsequent or successor agree- ments under the principles of Deklewa. 6 The judge found that the Respondent failed to prove the relationship was an 8(1) relationship As mdicated, Deklewa explicitly decided the burden of proof was on the General Counsel, as the party asserting the 9(a) relationship, to establish the existence of a 9(a) relationship The General Counsel did not meet this burden in the instant case. There is no evidence that Taylor, Inc recognized the Union because of an affirma- tive showing of majority support, or that Taylor, Inc 's employees voted for representation by the Union. 7 We reject the Respondents' contention that because Estrella failed to honor the 1980-1983 agreement, the Respondents effectively repudiated it Respondent Taylor, Inc. did not repudiate the 1980-1983 agreement and continued to abide by its terms WILLIAM N. TAYLOR, INC. 1051 CONCLUSIONS OF LAW I. The Respondents are in the construction in- dustry and are 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 meaning of Section 2(5) of the Act. 3. Respondent William N. Taylor, Incorporated and Respondent John R. Taylor and Dolores Taylor, a partnership, d/b/a Estrella Construction Company are alter egos and a single employer. 4. All heavy equipment operators, mechanics, oilers, and grade checkers employed by the Re- spondents, excluding all office employees, manage- rial employees, guards, and supervisors as defined in the Act constitute an appropriate bargaining unit. 5. By failing and refusing to abide by its 1980- 1983 collective-bargaining agreement with the Union, the Respondents have violated Section 8(a)(5) and (1) of the Act. 6. By seeking to dissuade an employee from re- maining a union member and interrogating an em- ployee about his union activities, the Respondents violated Section 8(a)(1) of the Act. 7. The unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Raving found that the Respondents engaged in certain unfair labor practices, we shall order that they cease and desist and take certain affirmative action designed to effectuate the policies of the Act. We shall order the Respondents to make their employees whole, as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), for any losses they may have suffered as a result of the Respondents' failure to adhere to the 1980-1983 collective-bar- gaining agreement 8 with interest to be computed in the manner prescribed in New Horizons for the Re- tarded.9 8 As noted, we leave to compliance the issue of whether Respondents' contractual liability extends beyond the agreement's expiration date. g In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U SC § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). Because the provisions of employee benefit fund agreements are vari- able and complex, the Board does not provide at the adjudicatory stage of this-proceeding for the addition of interest at a fixed rate on unlawful- ly withheld fund payments. Therefore, any additional amounts owed with respect to the health and welfare fund and pension plan shall be deter- mined m accordance with the procedure set forth m Mertyweather Optical Co., 240 NLRB 1213, 1216 fn 7 (1979) ORDER The National Labor Relations Board orders that Respondent William N. Taylor, Incorporated, and Respondent John R. Taylor and Dolores Taylor, a partnership, d/b/a Estrella Construction Company, Lancaster, California, their officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to abide by their 1980- 1983 collective-bargaining agreement and any suc- cessor agreements with Local Union No. 12, Inter- national Union of Operating Engineers as the ex- clusive collective-bargaining representative of the Respondents' employees in the following appropri- ate unit: All heavy equipment operators, mechanics, oilers and grade checkers employed by the Re- spondents, excluding all office employees, managerial employees, guards and supervisors as defined in the Act. (b) Seeking to dissuade an employee from re- maining a union member and interrogating an em- ployee about his union activities. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Comply with the terms and conditions of the 1980-1983 collective-bargaining agreement, and any successor agreements, including wage rates, fringe benefit payments, hiring hall provisions, and union-security provisions. (b) Make whole employees covered by the 1980- 1983 contract and any successor contracts, in the manner set forth in the remedy, for any losses suf- fered as a result of the Respondents' failure to adhere to them (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at their Lancaster, California offices copies of the attached notice marked "Appen- dix." 1° Copies of the notice, on forms provided by g° If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Regional Director for Region 31, after being signed by the Respondents' authorized representa- tive, shall be posted by the Respondents immedi- ately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail and refuse to abide by the 1980-1983 collective-bargaining agreement, or any applicable successor agreements, with Local Union No. 12, International Union of Operating Engineers as the exclusive representative of our employees in the following appropriate unit: All heavy equipment operators, mechanics, oilers and grade checkers employed by us, ex- cluding all office employees, managerial em- ployees, guards and supervisors as defined in the Act. WE WILL NOT seek to dissuade our employees from remaining union members and interrogate them about their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make our employees whole for losses incurred, with interest, because of our failure to abide by the terms and conditions of the 1980-1983 collective-bargaining agreement or applicable suc- cessor agreements with the Union, including wages and fringe benefit payments, hiring hall provisions, and union-security provisions. WILLIAM N. TAYLOR, INCORPORAT- ED; JOHN R. TAYLOR AND DOLORES TAYLOR, A PARTNERSHIP, D/B/A Es- TRELLA CONSTRUCTION COMPANY Rachel D. Young, Esq., for the General Counsel. Peter Szabadi, Esq. (Acret & Perrochet), of Los Angeles, California, for the Respondents. Julius Reich and Anthony R. Segall, Esqs. (Reich, Ade11 & Crost), of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge. The unfair labor practice charge in this case was filed on Sep- tember 21, 1982, by Local Union No. 12, International Union of Operating Engineers. The General Counsel's complaint was issued on De- cember 9, 1982, against William N. Taylor, Incorporated, and John R. Taylor and Dolores Taylor, a partnership, doing business as Estrella Construction Company. The General Counsel alleges that the Respondents have en- gaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. In separate answers filed to the General Counsel's complaint, both Respond- ents denied that they had engaged in the alleged unfair labor practices, and both Respondents raised certain af- firmative defenses. The trial in this proceeding was held on May 10-13, 1983, and on June 7, 1983, at Los Angeles, California. The time for the filing of posttrial briefs was extended to July 25, 1983. FINDINGS OF FACT I. THE WITNESSES AND CREDIBILITY RESOLUTIONS Thirteen persons were called as witnesses at the trial of this proceeding. In alphabetical order by their last names, they are: Mickey Jay Adams, business representa- tive of the Charging Party Union; Thomas Ayers, em- ployed by Respondent Estrella; Charles J. Beck, civil en- gineer with Antelope Valley Engineering; James Lee Cox, business agent of Laborers Local 300; Kent Q. Day, former employee of Respondent Taylor; Howard Wesley Holcomb, former employee of Respondent Taylor; Mi- chael James McLain, former employee of Respondent Estrella; Gloria Meyer, secretary and auditor for the West Valley County Water District; Raymond Morris, apprenticeship coordinator for the Operating Engineers Training Trust; John Nelson, civil engineer with Ludwig Engineering; John Robert Taylor, one of the partners of Respondent Estrella; Katie S. Taylor, the president of Respondent Taylor; and Dan Vellinga, employed by Re- spondent Estrella. The findings of fact are based on some portions of the testimony given by each one of the witnesses who testi- fied during the trial proceedings. In addition, certain findings of fact will be based on documentary evidence. Literally, there are several hundred pages contained in the exhibits that were introduced during the course of the trial. The attorneys for the parties were able to reach agreement on certain stipulations of fact, which had the beneficial effect of focusing the scope of the litigation on those other issues of fact on which there was disagree- WILLIAM N. TAYLOR, INC. 1053 meat. Additional findings of fact will be based on those stipulations by the parties. In determining which portions of the testimony of the witnesses were credible, accurate, and reliable, I have given consideration to several factors. The demeanor of the witnesses on the stand has been one factor. Of course, that observation includes not only the witnesses' demeanor during direct examination, but also their de- meanor during the probing cross-examination by the ex- perienced attorneys in this case. Not surprisingly, some witnesses were more certain of their recollection of some events than they were of other matters, and their certain- ty, or hesitation, has been another factor to be consid- ered. The occupation of the witnesses has been another factor in the sense that some witnesses were identified with the interests of one of the parties to the proceeding, and, therefore, may have an interest in the outcome of the litigation. Consideration also has been given whether the record reflects a basis for the witnesses' knowledge concerning the facts about which the witnesses testified at the trial. I have also given consideration to the con- sistency, or the inconsistency, of portions of the wit- nesses' testimony, and the probability of the witnesses' versions in light of other testimony, documentary evi- dence, stipulations, or undisputed facts. In addition to the foregoing criteria and in assessing the credibility of Adams' account, I have also given con- sideration to the matters brought out on the record re- garding Adams' earlier affidavit given to an NLRB agent; Adams' earlier notes, and a deposition he gave. (See Tr. 37-39; 43-44; 53-59; 64-68; 105-113; 117-125, and R. Estrella Exhs. 445-447.) Haying considered the foregoing, and the criteria mentioned in the paragraph above, I have relied on portions of Adams' account, except regarding the content of a conversation between Adams and Dan Vellinga. Those two witnesses gave sig- nificantly different versions of the content and the cir- cumstances of a conversation between them. Because of the fact that Adams was assigned to his present position on July 1, 1982, I concluded that Adams was correct in placing the date of their conversation some time in July 1982, rather than in June 1982, as Dan Vellinga stated at the trial. I conclude, however, that Dan Vellinga was correct in placing the location of the conversation as having taken place at the West Valley Water District jobsite rather than at the K-Mart jobsite in Mojave. (The West Valley jobsite is sometimes referred to as the Holi- day Valley jobsite. References to the Green Valley job- site at the trial pertain to still another jobsite.) Concern- ing the foregoing, I noted that Day did not recall seeing Dan Vellinga at the K-Mart jobsite at any time, and I noted that Cox spoke with Dan Vellinga at the Holiday Valley jobsite. Thus, it seems to be more probable that the conversation between Adams and Dan Vellinga took place at the West Valley jobsite (Holiday Valley jobsite). Of course, I have also considered the fact that Adams did not know Dan Vellinga at that time. Thus, it is possi- ble that a person other than Dan Vellinga could have in- troduced himself to Adams as being Dan Vellinga. Be- cause Adams did not know Dan Vellinga, he would not have been able to discern wheiher the person was giving his correct name. Rather than speculate on what might have occurred, I will accept Dan Vellinga's version as to the location of the conversation. I conclude that Adams spoke with someone on that occasion at the K-Mart job- site in Mojave, but that someone was not Dan Vellinga. Regarding the contents of the conversation, Dan Vel- linga's version appears to be more probable. In Dan Vel- linga's version, Adams is the one who poses the question of how John Taylor could get away with swapping em- ployees back and forth between Respondent Estrella and Respondent Taylor. In Adams' version, Dan Vellinga is the one who asks that question. Considering Dan Vellin- ga's relationship as the son-in-law of John Taylor, and his position as a foreman of Respondent Estrella at that point in time, it seems less likely that Dan Vellinga would be the one to raise that question about his father- in-law, who had recently hired him to work as a foreman for Respondent Estrella. Thus, the findings of fact re- garding that conversation will be based on Dan Vellin- ga's version. Regarding Ayers' account, I concluded that Ayers' version of his conversation with John Taylor in June 1982 at transcript 913 was more convincing than his later version at transcript 918-919 where he changed his testi- mony. Note that at transcript 913 Ayers stated, regarding that conversation with John Taylor: "Just that it was going to be Estrella Construction Company, and it would be a non-union company, and would I like to join it? I said, I had no—it didn't make any difference to me, because I wasn't in the union at the time anyway." Con- trast that account with the version at transcript 918-919 to the effect that John Taylor did not tell him Respond- ent Estrella was going to be a nonunion company, but instead, it was something that Ayers assumed, and some- thing that later on "got back to me as hearsay." With the criteria mentioned in the earlier paragraph in mind, I concluded that the first version, rather than the second, was credible. Regarding Day's testimony, I have weighed the fact that his recollection had to be refreshed on several occa- sions. (See, for example, the discussions among the attor- neys and me at Tr. 215-220, 225-227, and 229-230.) Of course, the passage of time between the occurrence of the events about which Day testified and the time he gave his testimony on May 10, 1983, at the trial is a factor that also was considered. Notwithstanding his in- ability to recall certain conversations without having his recollection refreshed on the witness stand, I concluded that Day was not fabricating his account of these events and, instead, that Day was relating the events, as best as he could do so by the time of the trial, in a truthful manner. Day candidly acknowledged during cross-exam- ination that he previously had had a drinking problem, which earlier had resulted in his being terminated from employment with Respondent Taylor on a number of different occasions over the past 8 to 10 years. The rea- sons given by the Employer for the terminations of Day were his failure to show up for work and his being unde- pendable. In Day's opinion, his drinking problem had ended about 2 years prior to the time he testified at the trial. 1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Regarding McLain, it was brought out at the trial that he had never been a member of the Charging Party Union. McLain, however, had spoken with Union Repre- sentative Adams prior to the time that McLain testified about his joining the Union. McLain stated at transcript 762: "He said that it looks like in June they could prob- ably break me in or I could possibly go out as an appren- ticeship program." Nevertheless, McLain testified that Adams had not made a definite promise to him. Also considered concerning McLain's account is that he had quit working for Respondent Estrella prior to the time he testified. McLain explained at the trial that he did so because of a new requirement of Respondent Estrella that he drive from his residence to and from the jobsite. McLain was of the opinion that it was not economical for him to do so. Regarding the testimony of Meyer, I have considered the accounts given by Nelson and by John Taylor. Meyer, however, was more convincing in her version based on the criteria mentioned earlier, and her testimo- ny found support in the minutes that she took of the meeting of the board of directors of the West Valley County Water District on July 22, 1982. See the Board's decision in Buffalo Neighborhood Housing Services, 267 NLRB 514 fn. 1 (1983), in which minutes of a board of directors meeting were found to be admissible. Regarding the testimony of Katie S. Taylor, it should be noted that she appeared to be a very knowledgeable witness regarding the matters about which she testified. If she did not have knowledge of the matter posed in the questions to her, or if she did not recall an event by the time of the trial, she was candid in so stating. For the purposes of clarity, the first name of Katie S. Taylor and John Robert Taylor will be given, along with their sur- name. The term "Respondent Taylor" will be used to refer to the Company, William N. Taylor, Incorporated. "Respondent Estrella" will be the term used to make ref- erence to the other Company. Regarding the account given by John Taylor, I have also considered the fact that he had to correct portions of his testimony regarding the amount of, and the source of, his capital investment in Respondent Estrella. (See Tr. 483; 510-511; 629-631; and 775-776.) John Taylor, however, explained at the trial that he had looked at Re- spondent Estrella's records after he had testified on May 12, 1983, and he corrected his earlier testimony the next day. (See Tr. 781-787.) The records he examined then were introduced into evidence as Charging Party's Ex- hibit 3. (See Tr. 794.) In addition, John Taylor acknowl- edged that in his pretrial affidavit given to an NLRB agent he had stated that there was no capital investment made in Respondent Estrella. He explained at the trial that he was referring to equipment when he had given his affidavit. (See Tr. 510-511.) The Chevrolet vehicle was not in Respondent Estrella's name, but, instead, it was in John Taylor's name. He acknowledged, "It was in my name but I am Estrella so it is one and the same." (See Tr. 511.) He did not, however, consider the vehicle to be equipment. (See Tr. 512.) In addition to the forego- ing, I have also considered John Taylor's responses re- garding the other matters covered in his pretrial affidavit about which he was questioned at the trial. (See Tr. 514- 519 and 680-681.) Considering the foregoing and the cri- teria mentioned previously, I have accepted portions of John Taylor's account in making the findings of fact, but not the entire account. In fairness, it-should be noted that his testimony covered many subjects; his testimony spans many more pages of the transcript than any other wit- ness at the trial, and his testimony was not given all at one time, but instead it was necessarily interrupted by other events during the course of the trial proceedings. Regarding the testimony given by Dan Vellinga, I have considered the fact that he is the son-in-law of John Taylor. He is married to the daughter of John and Dolo- res Taylor. Her name is Renee Vellinga. The Vellingas were married on February 13, 1982. Certain fmdings of fact will be based on portions of his account. Although Renee Vellinga did not testify at the trial, other persons gave testimony regarding her duties and her employ- ment, first by Respondent Taylor, and then by Respond- ent Estrella. For the purpose of clarity, the first name of Dan Vellinga and Renee Vellinga will be given along with their surname. It does not appear to be necessary to make additional comments regarding each one of the other individual witnesses. As indicated above, the criteria mentioned previously has furnished guidance in considering the ac- counts given by all the witnesses and in determining the portions of their accounts on which to base the findings of fact. Regarding the acceptance of some, but not all, of the testimony of a witness, see the Board's decision in Krispy Kreme Doughnut Coip., 245 NLRB 1053 (1979). Although all the evidence has been considered, the find- ings of fact to be set forth will be limited to the credited evidence in this proceeding. See the Board's decision in ABC Specialty Foods, 234 NLRB 475 fn. 2 (1978). II. THE LABOR ORGANIZATION INVOLVED The status of the Charging Party Union as a labor or- ganization within the meaning of Section 2(5) of the Act is not in issue in this case. Such status was admitted to be true by both Respondent Taylor and Respondent Estrella in the pleadings. (See G.C. Exhs. 1(c), (e), and (0.) III. THE EVENTS COMMENCING PRIOR TO JUNE 1, 1982 Among the facts that were stipulated to by the parties are those that are reflected in the following paragraphs from Joint Exhibit 1, and which pertain to certain events regarding Respondent Taylor prior to June 1, 1982: 1.William N. Taylor, Inc. was formed on Febru- ary 27, 1957. 2. William N. Taylor, Inc. is a California corpo- ration in good standing. 3. On March 12, 1957, the following individuals were elected to the Board of Directors of William N. Taylor, Inc.: William N. Taylor Katie S. Taylor Newell John Gardner WILLIAM N. TAYLOR, INC. 1055 4. On March 12, 1957, William N. Taylor was elected President, Katie S. Taylor, Vice President and Treasurer and Newell John Gardner, Secretary. 5. On March 25, 1957, 250 shares of the Class A Voting Common shares of William N. Taylor, Inc. were issued to William N. Taylor and 250 shares of the Class A Voting Common shares of William N. Taylor were issued to Katie S. Taylor. (i. On a later date, during the calendar year of 1957, 5 shares of the Class A Voting Common shares of William N. Taylor, Inc. were issued to William N. Taylor and 5 shares of the Class A Voting Common shares of William N. Taylor, Inc. were issued to Katie S. Taylor. 7. To date, no additional shares of the Class A Voting Common shares of William N. Taylor, Inc. have been issued than those described above to (Stipulations 5 and 6) William N. Taylor and Katie S. Taylor. 8. On March 25, 1957, 250 shares of Class B Non-voting Common shares of William N. Taylor, Inc. were issued to William NT. Taylor and 250 shares of the Class B Non-voting Common shares of William N. Taylor, Inc. were issued to Katie S. Taylor. 9. On June 1, 1957, 5 shares of the class B Non- voting Common shares of William N. Taylor, Inc. were issued to William N. Taylor and 5 shares of the Class B Non-voting Common shares of William N. Taylor, Inc. were issued to Katie S. Taylor. 10.To date, no additional shares of the Class B Non-voting Common shares of William N. Taylor, Inc. have been issued to those described above to William N. Taylor and Katie S. Taylor. 11. At the meeting of the Board of Directors of William N. Taylor, Inc. conducted on July 1, 1973, the following members of the Board of Directors of William N. Taylor, Inc. were elected: William N. Taylor Katie S. Taylor John R. Taylor 12. At the above meeting, (Stipulation 11) Wil- liam N. Taylor was elected President, Katie S. Taylor, Vice President and Secretary, and John R. Taylor, Vice President and Dolores E. Taylor, Treasurer of the corporation. 13. At a meeting of the Board of Directors of June 24, 1980, the following individuals were elect- ed as officers of the corporation: John R. Taylor, President William N. Taylor, Vice President Katie S. Taylor, Vice President/Secretary Dolores E. Taylor, Treasurer 14. At the meeting of the Board of Directors of William N. Taylor, Inc. conducted on May 29, 1982, John R. Taylor and Dolores E. Taylor ten- dered their resignations in writing as members of the Board of Directors of William N. Taylor, Inc. and of their offices as President and Treasurer, re- spectively. Said resignations took effect on May 29, 1982. 15. The Board of Directors of William N. Taylor, Inc. accepted said resignations and elected to replace said individuals by Sandra S. Easter as Vice President and Renee L. Vellinga, Secre- tary/Treasurer. Said individuals also filled the Board of Directors positions left vacant by the res- ignation of Dolores Taylor and John Taylor, re- spectively. 16. Neither John R. Taylor nor Dolores E. Taylor ever owned any shares (of whatever class) of the corporation William N. Taylor, Inc. 17. Since the death of William N. Taylor, on February 18, 1982, the sole shareholder of William N. Taylor, Inc. has been Katie S. Taylor. 18.The offices of William N. Taylor, Inc., since the creation of the corporation, have been located at 42110 21st Street West, Lancaster, California 93534. . . . . 20. The contracting firm William N. Taylor, Inc. has been engaged from its creation in the business of general engineering contracting in the Southern California area. 21. William N. Taylor, Inc. has a current State License No. 169992 in the following classes: C-12 (earthwork and paving), C.,34 (pipeline) and Class A (general engineering). 22. John R. Taylor became the registered respon- sible managing officer of William N. Taylor, Inc. on January 1, 1981, after William N. Taylor became se- riously ill. 23. Since May 29, 1982 neither Dolores E. Taylor nor John R. Taylor has served as an officer for William N. Taylor, Inc. 39. That on or about June 14, 1957, William N. Taylor on behalf of William N. Taylor, Inc. execut- ed a short-form agreement with Local Union 12, International Union of Operating Engineers incor- porating the terms and conditions, with certain ex- ceptions of the Master Labor Agreement, then in effect, between Local 12 and the Southern Califor- nia General Contractors Associations. 40. That since June 14, 1957 to the present, there has been a Master Labor Agreement between the Contractors Association and Local Union 12, Inter- national Union of Operating Engineers. The most current of such agreement is effective from July 1, 1980 to June 30, 1983. Copies of the collective-bargaining agreements re- ferred to in paragraphs 39 and 40 of Joint Exhibit 1 were introduced into evidence as General Counsel's Exhibits 2 and 3. Among the facts that the parties stipulated to at the trial are those reflected in the following paragraphs from Joint Exhibit 1 that pertain to events involving Respond- ent Estrella prior to June 1, 1982: 28. John Taylor, on November 11, 1980, as JRT Construction Company, obtained a Contractors State License, No. 395236, Class A. 1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 29. On February 16, 1982, the Department of Consumer Affairs, Contractors' State License Board for the State of California approved the change of name of JRT Construction Company to Estrella Construction Company. 30. Estrella Construction Company, a general partnership, is operated by John R. Taylor and Do- lores E. Taylor, as General partners. John Taylor is the son of William N. Taylor and Katie S. Taylor. Dolores Taylor is the wife of John Taylor. Estrella is the maiden name of Dolores Taylor. Renee Vellinga is the daughter of John Taylor and Dolores Taylor, and she is the granddaughter of Katie Taylor. Sandra S. Easter is the daughter of William N. Taylor and Katie S. Taylor. She had been residing in Colorado, but she returned to California on the day before Katie Taylor testified at the trial on May 11, 1983. Easter does not have any involvement in the day-to-day operations of Respondent Taylor, but she became the vice president of Respondent Taylor and a member of the board of di- rectors of Respondent Taylor on May 29, 1982. (See Tr. 281 and par. 15 of Jt. Exh 1, quoted above.) Insofar as the allegations pertaining to interstate com- merce are concerned, Respondent Taylor admitted the allegations of paragraphs 2(a) and (b) of the General Counsel's complaint. Therefore, I find that the business operations of Respondent Taylor meet the Board's indi- rect outflow jurisdictional standard. (See G.C. Exhs. 1(c) and (e).) Respondent Estrella answered, in part, the alle- gations of paragraph 3 of the General Counsel's com- plaint by stating "admit that they as Estrella engaged in commerce within the meaning of Section 2(6) and (7) of the Act." (See G.C. Exh. l(fl) Each Respondent, respec- tively, admitted that it was engaged in the construction industry as an underground utility contractor with its office and principal place of business located in Lancas- ter, California. Katie Taylor, personally since 1947, has owned the 2- 1/2 acre yard where the employees of Respondent Taylor report to work in the mornings before they leave for the construction jobsites. The yard is also used for the storage of equipment that belongs to Respondent Taylor. There is a gasoline pump and a diesel fuel pump located in the yard. Katie Taylor also owns a house ad- joining the yard. She lives there, and Respondent Taylor has its business office in her house. Respondent Taylor does not pay rent to Katie Taylor, but instead, Respond- ent Taylor pays the property taxes. The yard is located at 20th and M Streets in Lancaster. Respondent Taylor has employed persons in the job classifications of operating engineer and laborer. During the year 1982, Respondent Taylor has requested the re- ferral of employees from the Charging Party Union pur- suant to the contract between Respondent Taylor and the Union. (See Tr. 326.) Also during the year 1982, Re- spondent Taylor has made trust fund payments and filed reports with the Union pursuant to the contract between Respondent Taylor and the Union. Those reports include the names of the employees of Respondent Taylor who are covered by the union contracts. Respondent Taylor has continued to file such reports during the year 1983. Insofar as John Taylor knew, there has never been an election among the employees of Respondent Taylor wherein the employees selected the Charging Pasty Union as their representative. (See Tr. 819.) For the 5 years prior to June 1982, Respondent Taylor's type of business was about 80 percent public works projects for governmental agencies and about 20 percent was work for private enterprise companies. Regarding the public works jobs, John Taylor said the Davis-Bacon Act was applicable to Respondent Taylor's employees, who earned the prevailing wage rates. In 1975 business was slow for Respondent Taylor. John Taylor said at transcript 998, "we were down to just myself and maybe one other employee on a rental basis. So the work volume was very negligible." As a result, in 1975 and 1976, Respondent Taylor rented its equipment and its operator on an hourly basis to other companies, including the Southern California Gas Com- pany, General Telephone Company, and Southern Cali- fornia Edison Company. Only rarely did Respondent Taylor rent its equipment without its own operator. The rate was a subject of negotiations. John Taylor said at transcript 1000, "In other words, they would more or less tell you what they were willing to pay. If you didn't like it, you didn't work for them." Business conditions thereafter did improve for Re- spondent Taylor. John Taylor gave his opinion at tran- script 1002, "It grew. I would say, between where we were in '75, in that area, until the time that I resigned, the company probably doubled in dollar volume." John Taylor, however, said the volume of business of Re- spondent Taylor slowly declined from January through June 1982. In his view, the reason was "our prices were too high." (See Tr. 1002.) His basis for that opinion was that Respondent Taylor was not being awarded the bids for the work it sought during the year's period from June 1981 through June 1982. As he pointed out at tran- script 1003 regarding the bidding process, "It didn't do any good to be second." In his opinion, the amount of the production of employees was the true variable in de- _ termining the amount of a bid. Regarding the duties of Katie Taylor, she has been ac- tively involved for years in the management of Respond- ent Taylor, and even more so, after her husband became ill in 1975. Katie Taylor has prepared bids for jobs based on the plans and specifications submitted; prepared the payroll; performed bookkeeping work; wrote checks; signed contracts; and ordered office supplies for Re- spondent Taylor. Regarding the duties of John Taylor prior to June 1, 1982, for Respondent Taylor, Katie Taylor said at tran- script 299, "He supervised all the employees, the fore- man, and he also made bids." John Taylor also visited the jobsites of Respondent Taylor; dispatched employees to those jobsites from Respondent Taylor's yard; gave instructions regarding the work; and ordered materials. John Taylor said at transcript 479 that he "basically co- ordinated the work that was to be done and helped pre- pare bids, helped collect money, whatever it took to keep the company going." WILLIAM N. TAYLOR, INC. 1057 Regarding the duties of Holcomb as a foreman for Re- spondent Taylor, Holcomb reported directly to John Taylor and received his instructions from John Taylor regarding the work to be done. Holcomb also said at transcript 159, "Once we arrived at the jobsite and I was informed as to what I was to do concerning that project, yes I did run the job at the site." Holcomb had worked for Respondent Taylor for a total of about 7 years. He first worked as a heavy equipment operator, and then he was a foreman for the last 3 or 4 years of his employ- ment until he voluntarily quit work about June 2, 1982. Holcomb had been a member of the Charging Party Union for about 5 years at the time he testified at the trial. Nelson, a civil engineer with Ludwig Engineering, was the one who handled the design of the Holiday Valley project for the West Valley County Water Dis- trict. During late March or early April 1982, Nelson started advertising for bids from contractors. Later on, Nelson acted as the construction inspector at the jobsite. Sometime in early April 1982, Nelson held a prebid conference at the jobsite. About 5 or 6 construction firms were represented by the 12 or 15 people who at- tended the conference. Nelson recalled at the trial that John Taylor was present at the conference, and that it was the first time that Nelson had met him In Nelson's opinion, John Taylor "asked some intelligent questions" at the prebid conference. (See Tr. 525.) At this time, John Taylor was still the president of Re- spondent Taylor. He spoke with various subcontractors during the prebid stage. He had dealt with a majority of them previously on behalf of Respondent Taylor, and he did not mention Respondent Estrella's name to them. He also telephoned Beverly "Corky" Brissette at the PIA Holt Agency regarding obtaining a bond to submit with the bid. He had dealt with her previously on behalf of Respondent Taylor and, at the trial, he did not recall whether he mentioned Respondent Fstrella's name to her in that telephone call. (See Tr. 644.) John Taylor, how- ever, said at transcript 649, "I asked her if she, at some point in time, would be willing to bond me or my own company, what I would have to do to accomplish that." Katie Taylor assisted in the "take-off' process in prep- aration of the Holiday Valley bid during the prebid stage. (See Tr. 648.) On April 21, 1982, when John Taylor picked up the bond from Brissette, he noticed that the bond was in the name of Respondent Taylor and the Stevens Company as a joint venture. The Stevens Company is a general con- tractor, and it has engaged two or three times in the past in joint ventures with Respondent Taylor. The Stevens Company and Respondent Taylor hold a joint venture li- cense. The reason for the inclusion of the Stevens Com- pany name on the bond was for "increased bonding ca- pacity." (See Tr. 657.) Respondent Estrella has never had a joint venture license with the Stevens Company. According to John Taylor, he mentioned to Brissette that the bond should have been made out to Respondent Estrella. According to John Taylor, "she said, it is too late to change it." (See Tr. 655.) The bids were to be submitted at 2 p.m. that same day, so John Taylor sub- mitted the bid in the same name as the bond. (See R. Es- trella's Exh. 34.) Nelson recalled that John Taylor was present at the bid opening on April 21, 1982, but he did not recall any mention by John Taylor at that time that the name on the bid or the bond was in error. The bid, submitted under the name of Respondent Taylor and the Stevens Company, was the low bid. Around May 1, 1982, a public hearing was held for the property owners of the proposed assessment district. Nelson said that ownership of the construction companies was not discussed at the public hearing. Nelson said that the project passed with- out any protest. IV. THE EVENTS COMMENCING IN JUNE 1982 The parties entered into the following stipulations re- garding Respondent Estrella in addition to those previ- ously mentioned. The numbers alongside the stipulations are those reflected in Joint Exhibit 1. 31. The Fictitious Business Name Certificate for John Robert Taylor and Dolores Taylor, doing business as Estrella Construction Company was filed on June 2, 1982. . . . 35. Estrella Construction Company is a general engineering contractor engaged in such work in the Southern California area. 36. The office of Estrella Construction Company is located at 2044 West Avenue L-12, Lancasters, California 93534. The office of Respondent Estrella referred to above is located in the house where John Taylor lives. His house is on an adjoining one-half acre lot to Katie Taylor's house where the office of Respondent Taylor is located. The two houses are about 600 feet apart. As of June 1, 1982, the capital investment by John Taylor in Respondent Estrella was $5000. The source of those funds was Katie Taylor who, either personally or by drawing on Respondent Taylor's account, made a loan of that amount to John Taylor. (See Tr. 775-776 and 786.) There was no promissory note executed or anything else in writing. Nothing was negotiated about interest payments or terms of payment of the loan by John Taylor. (See Tr. 780.) John Taylor subsequently paid the amount of the loan to Katie Taylor after Re- spondent Estrella received some cash from the perform- ance of work on jobs during August and September 1982. John Taylor described at the trial a verbal agreement that had existed between himself and Katie, Taylor re- garding operating capital and cash flow problems. He said at transcript 776, "That, if she became short of money, rather than going to the bank, and I had some, that I would loan it to her and vice versa." A second loan in the amount of $6000 was made to Respondent Estrella by Katie Taylor for operating ex- penses on July 31, 1982. (See Tr. 796-797 and C.P. Exh. 3.) Another loan was in the amount of $2,531.30 on August 31, 1982, and still another loan was in the amount of $10,000 on October 31, 1982. Regarding all of 1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD those loans, there were no particular terms, and payment was to be made whenever Respondent Estrella could do so. (See Tr. 797.) By the end of March 1983, all but $31.30 had been repaid. The ledger shows payments by Respondent Estrella of $11,000, $500, $2000, and $10,000. (See the column headed "charges" on the "notes pay- able" sheet in C.P. Exh 3) Loans in the amounts of $35,445, $10,000, $17,000, and $25,000 have been made by Respondent Estrella to Re- spondent Taylor. (See the "notes receivable" sheet in C.P. Exh. 3.) Those loans were made because Respond- ent Taylor had cash flow problems. (See Tr. 778.) No promissory notes were executed. No interest or repay- ment terms were negotiated. (See Tr. 781.) All except the last loan had been repaid by Respondent Taylor to Respondent Estrella. As of March 31, 1983, Respondent Taylor owed Respondent Estrella the amount of $25,000. (See Tr. 801.) John Taylor also made a loan to Respondent Estrella in the amount of $80,300, although, in his view, it was an investment of funds instead of a loan. The source of those funds was a loan obtained by John Taylor with his house as security. John Taylor said at transcript 778, re- garding Respondent Estrella's books, "It shows as a loan from me to Estrella Construction." John Taylor said that he formed Respondent Estrella because, "I wanted to form my own company and go out on my own and be more competitive with the com- petition that was in the valley." (See Tr. 519.) John Taylor later elaborated on his answer at transcript 619, "The competitors in the Antelope Valley area were all non-union contractors and for me to compete with them I had to form a company that could offer the same serv- ices that they offered." When he was asked, "In other words, you had to start a non-union company; is that correct," he responded, "That is correct." (See Tr. 619.) John Taylor also acknowledged that a part of his moti- vation in forming Respondent Estrella was to be free from the constraint of the Union's hiring hall in deter- mining who John Taylor was to hire. (See Tr. 1077.) Whether he considered Respondent Taylor to be a competitor of Respondent Estrella in bidding for jobs, John Taylor stated at transcript 1075, "I guess, theoreti- cally, they would be, yes. I don't remember them bid- ding on any jobs that I bid on." On or about June 4, 1982, John Taylor told Holcomb outside the office door that he was not happy with the profits being made by Respondent Taylor. John Taylor also told Holcomb that John Taylor and Katie Taylor were putting money into Respondent Taylor, but they were not receiving an adequate return from their invest- ment. According to Holcomb, John Taylor also told him "that he was thinking of starting a non-union company." (See Tr. 131.) In another conversation in June 1982 between John Taylor and Holcomb, Holcomb said that John Taylor told him "that I wouldn't be concerned with this non- Union company until this Well 41 job was over." (See Tr. 132.) Holcomb further stated that John Taylor told him that there were crews already working under Re- spondent Estrella, and that Holcomb's crew was the only one that was a union crew operating under Respondent Taylor. Holcomb later recalled at transcript 187, "In the best of my recollection, he informed me that he was starting a non-union company, and the men could work for that non-union company if they wished." Holcomb informed the employees of Respondent Taylor in accord- ance with what John Taylor had told him. All the persons who were initially employed by Re- spondent Estrella during the first week of its operation in June 1982 had previously been employed by Respondent Taylor. That includes both John Taylor and office em- ployee Renee Vellinga, along with the other employees. (See C.P. Exh 2 and Tr. 822-824.) Subsequently, Re- spondent Estrella has employed persons who have never worked for Respondent Taylor. (See Tr. 854-856.) No employee has been, carried on the payroll of both Re- spondent Estrella and Respondent Taylor at the same time. The employees of Respondent Estrella reported to work in the mornings to the same yard as the employees of Respondent Taylor. They left from the yard, with their tools and equipment, to the jobsites. That practice continued until a few weeks prior to the trial proceed- ings in this case. At first, there was some confusion. John Taylor stated at transcript 635, "there were some people that in the first two or three days of the changeover were on Taylor's payroll but they ended up on an Es- trella job for maybe a couple of hours or so until it was straightened out. You don't belong here, get over on your own work. But they were never paid by Estrella. They were Taylor employees." Dan Vellinga began working for Respondent Taylor in August 1979 as a laborer. While he was employed by Respondent Taylor, he joined Laborers Union Local 300. In the first part of June 1982, there was a conversation between John Taylor and Dan Vellinga wherein John Taylor said he was forming another company, and he asked if Dan Vellinga would like to be hired. According to Dan Vellinga, John Taylor also told him, "He said that you would be working for a non-union company. So it's up to you whether you quit the union or not." (See Tr. 947 and note Dan Vellinga's corrections to his prior answer.) John Taylor also told Dan Vellinga that he would receive the same wages that he had been getting, and that John Taylor would obtain his own insurance for health and welfare. Dan Vellinga also said at transcript 936, "I said that I would. As far as I am concerned, the union wasn't doing me any good." At the trial, Dan Vel- linga explained that he previously had wanted to become an operating engineer, but he had been told that his chances were pretty slim and that the waiting list was too long. John Taylor ago told Dan Vellinga that he would be a foreman and, according to Vellinga, "He said that I would be doing the same job that I was before, when I worked for William N. Taylor." (See Tr. 937.) Later in June 1982, and without any hiatus between his employment by Respondent Taylor and his employ- ment by Respondent Estrella, Dan Vellinga became a foreman for Respondent Estrella. Subsequently, he became a job superintendent for Respondent Estrella, which was the position he held at the time he testified at WILLIAM N. TAYLOR, INC. 1059 the, trial. As a job superintendent, Dan Vellinga was given the authority to hire and to fire employees of Re- spondent Estrella. In June 1982, Dan Vellinga ceased being a member of the Laborers Union. He believed that his health and wel- fare benefits had continued for about 6 months thereafter because Respondent Taylor had already made the pay- ment for those benefits. Dan Vellinga received the same wages as he had received when he worked for Respond- ent Taylor. He also began receiving vacation pay credits as shown on his paycheck stubs. Introduced into evidence as Respondent Estrella's Ex- hibit 42 was a copy of that Company's payroll record for Dan Vellinga. Under the heading "Date Employed," the document shows "10-18-79." The earliest payroll infor- mation on I hat document of Respondent Estrella is for June 7, 1982. After Dan Vellinga was hired by Respondent Estrella in June 1982, he continued to live in a trailer at the yard of Respondent Taylor. He had lived there for about a year while he was employed by Respondent Taylor. Dan Vellinga has not paid any rent to Respondent Taylor for staying there. Ayers became an employee of Respondent Estrella in June 1982. Prior to that time, Ayers had been an em- ployee of Respondent Taylor for about a year. He had worked for Respondent Taylor as a laborer and as an op- erating engineer. He unsuccessfully attempted to join the Operating Engineers Union while he was working for Respondent Taylor. However, benefits were paid for Ayers by Respondent Taylor to the Operating Engmeers trust fund. When Ayers reported to the yard of Respondent Taylor one morning in June 1982, he had expected to continue working for Respondent Taylor. (See Tr. 920.) John Taylor, however, informed Ayers that he was forming another company, and the name of the other company was Estrella. (See Tr. 906.) According to Ayers, John Taylor also told him that "it would be a non-union company." (See Tr. 913.) John Taylor also told Ayers that he would be making more money. (See Tr. 922.) John Taylor asked Ayers if he wanted to work for the other company, and Ayers replied yes, because it made no difference to him since he was not in the Union at the time anyway. Ayers immediately went to work that same day as a foreman for Respondent Estrella. Ayers was still employed by Respondent Estrella at the time of the trial, but he was running equipment at the Pinion Hills jobsite under Job Superintendent Dan Vel- linga. (See Tr. 908.) After Ayers left his employment that morning in June 1982 and went to work for Respondent Estrella, he has not worked for Respondent Taylor or received any pay from Respondent Taylor. As far as he knew, employees of Respondent Taylor did not work at the jobsites where Ayers worked for Respondent Estrella. Ayers reported to work for Respondent Estrella at the same yard he had gone to as an employee of Respondent Taylor. Also, his working hours basically have been the same. Ayers has received his paychecks as an employee of Respondent Estrella from John Taylor or Renee Vellinga at Re- spondent Taylor's office. A few Months before, however, he testified that Ayers began to receive his paychecks at the jobsite rather than at Respondent Taylor's office. (See Tr. 930.) One of Ayers' duties after he began working for Re- spondent Estrella was to place Respondent Estrella's signs on vehicles. That was the only new work rule that was told to Ayers after he became an employee of Re- spondent Estrella. (See Tr. 926.) Ayers also stated at transcript 910, "Well, we had the magnetic signs. And we had to put them on the door. Sometimes we'd have a problem with the wind blowing them off. And some of the trucks didn't have any at all. So, before we went to the job, we had to have the signs on there, or nothing." Ayers further said that some of the equipment had no identification on it, but if the equipment did have identifi- cation, he made sure that a magnetic sign with Respond- ent Estrella's name was placed on it. Once a job was begun, the equipment was left at the jobsite until the job was completed. Introduced into evidence as Respondent Estrella's Ex- hibit 38 was a copy of that Company's payroll record for Ayers. Under the heading "Date Employed," the docu- ment shows "9-8-80." The earliest payroll information on that document is for June 7, 1982. John Eberling had been working for Respondent Taylor when he went to work as an employee of Re- spondent Estrella in June 1982. About 3 or 4 weeks later, Katie Taylor offered Eberling the job of foreman be- cause Holcomb had quit. E,berling returned to work for Respondent Taylor in July 1982 as a foreman. Tony Espinoza had been an employee of Respondent Taylor, but he injured his leg while playing baseball one weekend. He was off from work for almost 2 months. John Taylor said at transcript 671, "Then he came to me and asked if he could go to work for me." John Taylor then hired Espinoza to work for Respondent Estrella. Espinoza was still working , for Respondent Estrella at the time of the trial. Regarding vacation pay, John Taylor explained at the trial that Respondent Estrella sets aside vacation pay for its employees and lets the amounts accumulate for a 1- year period of time before paying out the vacation money to employees. Thus, the vacation pay for employ- ees of Respondent Estrella first began to accumulate in June 1982 for those who were employed at that time. The exception to paying out the money prior to June 1983 occurred when an employee quit work or was laid off. In such cases, the policy was to pay the vacation money when the employee was given his final check. Regarding medical insurance, Respondent Estrella ob- tained such coverage for its employees with the New York Life Insurance Company about the same time that Respondent Estrella began its operations in June 1982. At the time of the trial proceedings, Respondent Estrella was also in the process of establishing a pension plan for its employees with the New York Life Insurance Com- pany. During the first part of June 1982, Katie Taylor set up the books for Respondent Estrella, and she continued training her granddaughter, Renee Vellinga, to perform bookkeeping duties. Katie Taylor was still training Renee 1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Vellinga at the time that Katie Taylor testified at the trial on May 11, 1983. She stated at transcript 305, "I su- pervise her." The training primarily takes place in Re- spondent Taylor's office. Katie Taylor said regarding Renee Vellinga at transcript 305, "She is in most every day." The paychecks for employees of Respondent Taylor are prepared by Katie Taylor and distributed to employ- ees at Respondent Taylor's office. Payday is on Monday. The paychecks for employees of Respondent Estrella are prepared by Renee Vellinga under the supervision of Katie Taylor. Those paychecks were distributed on Mondays at Respondent Taylor's office at that time, until a few months before the trial. (See Tr. 358-359.) The telephone for Respondent Estrella can be an- swered in the office of Respondent Taylor, and the tele- phone for Respondent Taylor can be answered on an ex- tension telephone in John Taylor's home, where the office of Respondent Estrella is located. (See Tr. 316- 317.) Respondent Estrella does not pay anything to Re- spondent Taylor for the use of Respondent Taylor's office concerning work for Respondent Estrella. (See Tr. 366.) Respondent Estrella does not pay Respondent Taylor anything for Respondent Estrella's use of the yard to store equipment or to have the employees of Re- spondent Estrella gather there. (See Tr. 365.) During June 1982, John Taylor visited two jobsites of Respondent Taylor. They were the Well 41 jobsite on 90th Street and also the 116th Street jobsite. John Taylor estimated that he visited the 90th Street jobsite three or four times after June 1, 1982, and that he visited the 116th Street jobsite twice. Work at the 116th Street job- site had not begun prior to June 1, 1982, and, therefore, his first visits to that jobsite occurred after he had re- signed his position with Respondent Taylor. (See Tr. 637.) Respondent Taylor did not pay John Taylor any- thing for his visits to Respondent Taylor's jobsites after June 1, 1982. John Taylor said at the trial that his visits were made pursuant to an agreement he had made with Katie Taylor. He stated at transcript 641, "I told her since I was familiar with those two jobs that I would help her if she had any problems on them because I was familiar with them." During his visits to the jobsites of Respondent Taylor after June 1, 1982, John Taylor had conversations with people who worked there. He stated at transcript 664, "Yes, if they had any problems and asked me. For instance on Well 41 the subcontractor that built the water tank put it in backwards and it was dis- covered just about the time that I left so I was trying to iron that out." After Respondent Estrella began operations, it estab- lished accounts with the Stoddard Company and H. C. Lawsen as suppliers of materials. The Stoddard Compa- ny supplies the major portion of the materials used by Respondent Estrella. Respondent Estrella does not have an account at Lancaster Plumbing. Introduced into evidence as Respondent Estrella's Ex- hibits 52 and 53 were copies of General Indemnity Agreements that John Taylor had executed on June 12, 1982, in order to obtain bonding capacity for Respondent Estrella. In addition, John Taylor submitted a personal financial statement to the PIA Holt Agency. From June 1 to July 12, 1982, Respondent Estrella used certain equipment belonging to Respondent Taylor. However, Respondent Estrella did not pay anything for the use of Respondent Taylor's equipment during that time period. (See Tr. 345-347 and 633.) Regarding the work done by Respondent Estrella during that period, John Taylor said at transcript 686 that Respondent Es- trella installed, "A few scattered fire hydrants and small one day jobs, two day jobs, things like that, and then we did some preparation work for the West Valley job." The preparation work was surveying and checking out the plans for the West Valley job. V. THE EVENTS COMMENCING IN JULY 1982 Beginning on July 15, 1982, Respondent Taylor began to charge Respondent Estrella for the use of Respondent Taylor's equipment. There was no written agreement at that time. Katie Taylor said at transcript 331, "We had an understanding." According to her, the rental rates were based on charts distributed by various rental agen- cies. Many of those charts included an operator of the equipment, so the rates charged Respondent Estrella were discounted in the amount of the wages and benefits of an operator. That was done because Respondent Es- trella was using Respondent Taylor's equipment without an operator from Respondent Taylor. A separate charge was not made at that time for gasoline and diesel fuel, but later on in September 1982, Respondent Taylor did bill Respondent Estrella for the use of Respondent Tay- lor's fuel. In determining the amount of money for Respondent Taylor to charge Respondent Estrella for the use of the equipment, Katie Taylor said at transcript 341, "I re- ferred to payroll to bill." While the payroll did not re- flect what equipment was used, Katie Taylor said at transcript 341, "The payroll didn't reflect that, but I knew what equipment was used on that job, just knew it." She did not keep any written records of precisely what equipment was being used at that time. Concerning his duties as a business agent of Laborers Local 300, James Lee Cox visited, on July 8, 1982, a job- site located in the vicinity of 90th Street East and Avenue J. That was also known as the Well 41 jobsite. Cox spoke with three persons that day at the jobsite. He identified two of those persons as Holcomb and John Eberling, and he did not know the identity of the third person. Cox observed a sign on a boom truck at the jobsite. The sign had the name "Estrella" on it and a license nuiriber. Eberling walked over to Cox; said that sign was not supposed to be there; removed the magnetic signs from both of the doors of the truck; and threw them inside the cab of the truck. Cox also noticed that there was a flatbed truck on the jobsite with the name "Taylor" on it. According to Cox, Holcomb told him that either John Taylor or Respondent Taylor was forming "a non-union outfit," and that Cox should check out the Holiday Valley jobsite. (See Tr. 418.) According to Cox, Hol- WILLIAM N. TAYLOR, INC. 1061 comb said, "We got a job out there that is going to be done non-union." (See Tr. 418.) At the trial, Cox said an audit had been conducted of Respondent Taylor by the Laborers Southern California trust, and that Respondent Taylor had been found to be delinquent in the amount of about $27,000, but that amount had been paid in full by the time of the trial. Cox acknowledged that he had not filed a grievance under the collective-bargaining agreement against Respondent Taylor, nor had he filed an unfair labor practice charge. On July 14, 1982, Cox once again visited the 90th Street jobsite. According to Cox, during that visit Hol- comb informed Cox "that they had started the Estrella job out at the Holiday Valley job, which was on 255th and Avenue B or A." (See Tr. 397.) As a result of that information, Cox got back in his car and drove to the Holiday Valley jobsite. He arrived there around 10 or 10:30 a.m. on July 14, 1981 Cox spoke with Dan Vellinga at the Holiday Valley jobsite that morning. Dan Vellinga told Cox that he was working for Respondent Estrella and, according to Cox, Dan Vellinga told him "it was none of my business." (See Tr. 428.) Cox asked to see Dan Vellinga's union card, and he also checked to see if the other employees there had union cards. Cox discovered that all the per- sons there, except for Dan Vellinga, were not union members. Cox then requested that Dan Vellinga remove the nonunion employees from the jobsite. Dan Vellinga then contacted Katie Taylor by radio. Cox overheard Katie Taylor inform Dan Vellinga that John Taylor was on his way to the jobsite. Cox next talked with John Nelson, a civil engineer with Ludwig Engineering, and he asked Nelson who had the contract. Nelson told Cox that the contract had been taken out by William Taylor and Stevens Company. Introduced into evidence as General Counsel's Exhibit 7 were 11 color photographs that Cox had taken on July 14, 1982, at the Holiday Valley jobsite. According to Cox, the vehicle depicted in his photograph with a sign of Respondent Estrella on the door was the only vehicle with a Respondent Estrella sign on the Holiday Valley jobsite on that occasion. The other vehicles depicted in the photographs had a Respondent Taylor sign on the door. On the arrival of John Taylor at the jobsite on that oc- casion, Cox told him that there were nonunion personnel on the jobsite. Cox said that Respondent Taylor was in violation of the labor agreement, and Cox requested that John Taylor remove the men from the jobsite. Accord- ing to Cox, John Taylor told him, "Well, I have subbed it out to Estrella." (See Tr. 399.) Cox replied that he would file against Respondent Taylor because he could not subcontract to a nonsignatory contractor under the terms of the collective-bargaining agreement with Labor- ers Local 300. According to Cox, John Taylor "just re- peated again that he could sub out to anybody that he wanted to." (See Tr. 399.) Cox said that he and John Taylor had what Cox characterized as being "a heated discussion," during which John Taylor "called me a leech and threatened to bury me." (See Tr. 410 and 439.) Following his conversation with John Taylor at the Holiday Valley jobsite, Cox got into his car and drove to the Stevens Company office. Cox spoke with Harold Ste- vens and inquired whether he was aware that Stevens was engaged in a joint venture with Respondent Taylor. Stevens replied that he was not aware of the job, but that his bonding company had contacted him 3 or 4 months earlier and asked if Stevens wanted to go on the bond with Respondent Taylor. Stevens agreed to do so because Stevens had made a profit in the past in a joint venture with Respondent Taylor. Cox took the position with Stevens that Stevens could be held responsible and that Stevens was liable because Stevens' name was on the contract with the Water District; that nonunion people were working at the jobsite; and that the work had been subcontracted to Respondent Estrella, which Cox urged was in violation of the Laborers collective- bargaining agreement. While Cox was present, Stevens attempted to contact John Taylor by telephone, but John Taylor was not in his office at that time. Stevens then telephoned his bonding company, which notified Stevens that his company had entered into a joint venture bond with Respondent Taylor. According to Cox, "Harold Stevens assured me that he would get the situation taken care of or pull his bonding out of the jobsite." (See Tr. 412.) A couple of days after Cox's visit to the Holiday Valley jobsite, Adams telephoned Cox and asked what he had found out. Cox told Adams that the job was a joint venture between Respondent Taylor and Stevens Company, and that Cox had talked with Stevens and Stevens was "either going to get Estrella and the non- union people off the job or pull the bond." (See Tr. 446.) C,ox did not recall whether he told Adams about his taking the photographs that were introduced into evi- dence at the trial as General Counsel's Exhibit 7. Adams expressed his opinion to Cox that Respondent Estrella was the same as Respondent Taylor, and Cox agreed with that opinion. Adams also asked Cox about Dan Vel- linga. Cox replied that Dan Vellinga was a member of Laborers Local 300; that he was in good standing; and that Dan Vellinga had 1 more month before his status ran out. Also, a couple of days after Cox's visit to the Holiday Valley jobsite, Cox again spoke with Nelson who, ac- cording to Cox, "told me that William N. Taylor was trying to get it switched over to Estrella." (See Tr. 437.) About a week after his visit to the Holiday Valley job- site, John Taylor telephoned Cox and asked him to come by his office. According to Cox, John Taylor told him he wanted to talk with him "about the attitude problem we had out on Estrella's job. He wanted to apologize." (See Tr. 438.) Cox met in Respondent Taylor's office with John Taylor, Katie Taylor, and Renee Vellinga. Cox testified at transcript 440, "He wanted me to leave Estrella alone, or leave that particular job alone. And I told him I would, as long as he would keep his non- union people away from Taylor and as long as the con- tract was switched to Estrella." At the trial, Cox said he had told John Taylor the foregoing at the direction of the Southern California Trust for Laborers, but Cox did not reveal that fact to John Taylor at the time of their 1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conversation "because we were in the process of audit- ing their books at the time." (See Tr. 440.) A short time later, Cox discovered that a nonunion employee named Tony Hall was employed at a job of Respondent Taylor in Quartz Hill. Cox telephoned John Taylor regarding Hall and, according to Cox, "he as- sured me the man would be removed." (See Tr. 441.) According to Cox, Hall at that time had not yet gone to work for Respondent Estrella. Cox explained at tran- script 442, "At that time, Tony Hall told me that he was going to go to work for Estrella, that John was keeping him busy at this time." On July 1, 1982, Mickey Adams was assigned as a business representative to the Lancaster, California office of the International Union of Operating Engineers. The geographical area covered by the Union's Lancaster office includes the northern part of Los Angeles County; the eastern part of Kern County; and all of Indio County and Mono County. On July 14, 1982, Adams visited a jobsite in Mojave, California, where a K-Mart shopping center was being built. Adams spoke with the general contractor, who in- formed him of the names of the subcontractors on the project. One of the subcontractors was identified as being Respondent Taylor. Adams then spoke with a person who was operating a backhoe, and Adams learned that the person was a labor- er and not a member of the Charging Party Union. Adams next asked who the foreman was, and the person identified himself as being the foreman for Respondent Taylor. Adams said, "I asked him to correct the viola- tion, and they called the dispatch hall later that morning and requested him in." (See Tr. 17.) The person who was requested by name to be dispatched by the Charging Party Union to work for Respondent Taylor was Kent Day. (See Tr. 31-32.) The next day Adams returned to the K-Mart jobsite. Jack Forrest, a retired operating engineer, rode in the car with Adams, but Forrest did not go onto the jobsite. (See Tr. 69-71.) Kent Day, a member of the Charging Party Union, was working as the backhoe operator on that occasion. Adams spoke with Day for a minute, and then Adams again spoke with the person who had identi- fied himself as the foreman of Respondent Taylor. That person told Adams that the violation had been corrected. Adams then asked him if they had any other jobs. Adams testified, in part, at transcript 18, "He told me that they had a job in Holiday Valley. . . ." Adams then left the K-Mart jobsite and proceeded to the Holiday jobsite. At the Holiday Valley jobsite, Adams spoke with some employees, but he did not recall their names at the time of the trial. Adams did recall speaking with John Nelson. Adams asked Nelson to whom the contract was awarded, and Nelson told him to Respondent Taylor. Adams said at transcript 19, "He informed me that Wil- liam N. Taylor had subcontracted to Estrella." Adams noticed that the magnetic signs on the sides of the pickup trucks at the jobsite had "Estrella Construction" on them. In July 1982, Dan Vellinga was working as a foreman for Respondent Estrella at the Holiday Valley jobsite. At that location, he had a conversation with Adams, who introduced himself to Dan Vellinga at that time. Adams asked if there were any union operators on the job. Dan Vellinga stated at transcript 940, "And I said, no, we are a non-union company." Adams inquired as to the name of the contractor who was working on the job, and Dan Vellinga told him that it was Respondent Estrella. Dan Vellinga said at transcript 940-941, "He asked me how can John get away with swapping his employees back and forth. And I said he doesn't." (See also his testimony on this subject at Tr. 951.) According to Dan Vellinga, employees of Respondent Taylor did not perform work on the West Valley Water District job at Holiday Valley. He also said that magnet- ic signs identifying Respondent Estrella were placed on the doors of vehicles, and that any signs that were blown off were replaced. On July 20, 1982, Adams and Apprenticeship Coordi- nator Raymond Morris went to the Holiday Valley job- site. During that visit, Adams again spoke with Nelson. Adams asked to see the contract. Nelson showed it to him. Adams noticed that the contract was let to William N. Taylor, Inc. and Stevens Company as a joint venture. Introduced into evidence as General Counsel's Exhibit 4 were five color photographs that were taken by Ray- mond Morris on July 20, 1982, at the Holiday Valley jobsite. Three of those photographs show Respondent E,strella's name on the sides of trucks. In July 1982, Kent Day had three conversations with John Taylor before he returned to work for Respondent Taylor on July 15, 1982. Day had worked for Respond- ent Taylor on previous occasions over the past 8 or 10 years. The reason that Day approached John Taylor was that Day was being laid off from work at Lancaster Ford. Day had not performed any operating engineer's work at Lancaster Ford, nor had he done such work in his earlier job for his father. Day was inactive in the Charging Party Union at the time. Day did not ask for a job in his first conversation with John Taylor in July 1982. About 3 or 4 days before July 15, 1982, Day went to Respondent Taylor's yard, where he spoke with John Taylor. Day stated at transcript 203, "I told him I'd heard that Howard had left, and I asked him if he needed an operator." John Taylor responded that he did not have an operator. (The second negative in L. 3 at Tr. 204 appears to be an error in transcription in reflect- ing "he didn't need one." That appears to be so in light of the fact that Respondent Taylor employed Day 3 or 4 days later.) Day also recalled at transcript 224, "He said he was going to start a non-union company. He said he was going to have to fade William N. Taylor out. And asked me if I'd want to go to work for Estrella." Day added at transcript 225, "He told me that the benefits and things would be just about like the union. He'd have insurance coverage for me and all that . . . William N. Taylor was having troubles, and he was going to start the Estrella company so that he could bid non-union and keep up with the rest of the contractors. And get some work in." After his recollection had been refreshed a second time, Day also recalled at transcript 230, "He WILLIAM N. TAYLOR, INC. 1063 asked if I wanted to go to work for Estrella, get out of the union." Day told John Taylor that he did not want to work for Respondent Estrella. (See Tr. 258-259.) On the day before he resumed working for Respond- ent Taylor, Day also went to Respondent Taylor's office, where he filled out a tax withholding form. John Taylor and Katie Taylor were present in the office at that time. John Taylor told Day to come to work the next day. Day also had a conversation with Union Representa- five Adams that day when he obtained a referral slip at the union hiring hall. Day informed Adams that he was going to go to work for Respondent Taylor. (See Tr. 245.) According to Day, Respondent Taylor had tele- phoned the union hall and specifically requested that he be referred. (See Tr. 260.) On the following day, Day reported to work for Re- spondent Taylor at Respondent Taylor's yard. Accord- ing to Day, John Taylor was in the yard in the mornings during the period of Day's employment from June - 15, 1982, until mid-September 1982, when he voluntarily ended his employment with Respondent Taylor. During that period of time, John Taylor gave some instructions directly to Day regarding his work for Respondent Taylor. In addition, Day observed that John Taylor spoke with Foreman John Eberling. In July 1982, Eberl- ing had become the foreman for Respondent Taylor. He still held that position at the time of the trial. Eberling was the one who gave instructions to Day at the jobsites. In the early part of July 1982, Michael James McLain had a conversation with John Taylor. McLain asked if John Taylor was hiring, and he replied that he might be doing so in the future. John Taylor also told McLain that if he was hired, he would probably go to the West Valley or Holiday Valley job. According to McLain, "He just told me that he was going to go to Estrella; that he couldn't afford to compete with the union people and he was going to try to get out of the union." (See Tr. 749.) In a subsequent conversation between John Taylor and McLain, John Taylor again told McLain that, if he went to work, he would be in the West Valley. John Taylor further told McLain that he would start out at $8 an hour, and that John Taylor would make it worthwhile for McLain thereafter. McLain replied that he really did not want to go to work for $8 an hour. They then came to an agreement whereby McLain would be given a $1- an-hour raise after his first week, and then they would see what happened in the future. John Taylor told McLain that he was going to start everybody at the same wage rate. McLain began working for Respondent Estrella in July 1982 at $8 an hour, plus insurance coverage and va- cation pay. He continued to work for that Company until May 9, 1983. McLain ran a trencher and a backhoe. At first, he reported to Dan Vellinga, and later on he re- ported to Ayers. McLain began his employment with Respondent Estrella by working at the Holiday Valley jobsite. After 1 week, McLain received $9 an hour, and 4 or 5 weeks later, McLain received $17.31 an hour, which he continued to receive thereafter. At a later time, McLain also received a check for retroactive pa', which meant that his pay from the beginning of his employment was brought up to $17.31 an hour. (See Tr. 754-755.) McLain received a paycheck from Respondent Es- trella every Monday evening. He said it was given to him "at Mrs. Taylor's house, the office." (See Tr. 742.) On a couple of occasions, he received his paycheck from Renee Vellinga, but most of the time he got his pay- check from Katie Taylor. On the one or two occasions that McLain telephoned the office regarding insurance matters, he spoke with Katie Taylor. While McLain was employed by Respondent Estrella, he reported to work in the mornings at the yard, also used by employees of Respondent Taylor. According to McLain, all the equipment used by Respondent Estrella came out of that yard. After a project was begun, the equipment usually was left at the jobsite, except for the trucks. Sometime after the contract had been awarded by the West Valley Water District to Respondent Taylor and the Stevens Company, John Taylor sought to have the contract changed to Respondent Estrella. He first spoke with Nelson of Ludwig Engineering regarding that matter. John Taylor said at transcript 497, "I told him that there had been a mistake made in the issuance of the bond originally when we bid on it and that the job should be in the name of Estrella and the initial contact with Mr. Nelson was to determine what would be the best way to remedy the error." During cross-examination by the attorney for the Charging Party, Nelson testified at transcript 573-575 regarding his conversation with John Taylor: Q. . . . did you ask Mr. Taylor anything about Estrella in that conversation? A. I am sore I would ask why he wanted to change it over, Q. You did ask him A. I am sure I would ask. Q. And what did he say? A. That he wanted to set up, you know, where they would have a union and a non-union so they would have actually a duplicate company because at the time bids were going pretty doggone cheap so it was the only way he could compete. Q. Okay, so he did mention that the new compa- ny, Estrella, was going to be non-union? A. I believe so, yes. Q. Okay. And did he mention that Taylor, Inc. was signatory to one or more union contracts? A. I don't recall him mentioning that but I natu- rally would have assumed that since the union rep- resentatives were out there. Q. Mr. Taylor said something, did he not, to the effect that he was starting a non-union company in order to be more competitive? A. At the time, and I don't know whether he was referring to starting it, but yes, he mentioned some- thing about having a parallel company and at the time there just weren't too many jobs going to it. Everybody was bidding super-cheap. 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. So people were bidding super-cheap; that is what Mr. Taylor told you? A. He didn't say that. That is what'I know. The bids were cheap bids, very good bids, from our standpoint anyway, the owner' s standpoint. As indicated previously, Gloria Meyer is the secretary and auditor for the West Valley County Water District. She attended a regular monthly meeting of the board of directors of that water district, which was held on July 22, 1982. Meyer recalled at the trial that John Nelson of Ludwig Engineering told the board of directors at the meeting on July 22, 1982, that "there had been some sort of confusion or mix up and that the contract should have been in the Estrella Construction Company rather than Taylor-Stevens." (See Tr. 467.) Members of the board of directors inquired whether "there were going to be any problems labor-wise." (See Tr. 467.) Nelson assured them that everything had been taken care of that the contract had been made out incorrectly; and that the contract should have been in Estrella's name. Nelson said the cost figures for the contract would be the same. Meyer also recalled that Nelson told the board of direc- tors regarding the two companies, "They were both owned by the same man." (See Tr. 468.) Meyer further testified during cross-examination, "I can't remember what he said verbatim, but yes, I would say that Mr. Nelson did say yes, that Mr. Taylor had two compa- nies." (See Tr. 475.) Meyer also said that an attorney for the water district was present at the meeting, and he in- dicated that it sounded okay to him She said that the board of directors approved the change in the contract to Respondent Estrella's name, but no documents were submitted that evening at the meeting regarding the change in the names on the contract. Among the duties of Meyer as the secretary and audi- tor for the West Valley County Water District is the task of taking the minutes of meetings of the board of di- rectors. Introduced into evidence as General Counsel's Exhibit 5 was a copy of the minutes for the meeting held on July 22, 1982. In part, those minutes state: Construction contract name change. Mr. Nelson explained that there had been an error by the Bond- ing Company in the contract to Taylor. It should have been Estrella. The companies are owned by the same person, but it was the non-union firm that was to be under Bonding. A new surety bond had been made and approval had been received. Direc- tor Hunter moved, seconded by Director Brown to approve the change. Carried unanimously. Introduced into evidence as General Counsel's Exhibit 6 was a copy of the contract between the West Valley County Water District and Respondent Estrella. The document indicates that it was signed by John Taylor on July 22, 1982, and by William R. Barnes, as chairman of the board of directors of the water district, on August 26, 1982. Meyer gave her opinion at the trial that there was no significance in the delay in the signing of the contract on behalf of the water district until the next monthly meeting of the board of directors. She based that opinion on the fact that Nelson could not locate a copy of the document at the meeting on July 22, 1982. VI. THE EVENTS COMMENCING IN AUGUST 1982 Around the first of August 1982, or possibly the latter part of July 1982, Adams met Holcomb at the B-1 bomber project. During one of his conversations with Holcomb, Adams learned that Holcomb previously had worked as a foreman for Respondent Taylor. Adams tes- tified at transcript 75, "He said that William N. Taylor had started a non-union company, Estrella Construction, and that he was a foreman, and that John Taylor had told him to tell his three laborers that they could remain in the employ of Estrella if they dropped their union membership, and that he could do the same. He said that he informed the employees of that, and then left the em- ployment of William N. Taylor—that he wasn't going to work non-union." At the trial, Holcomb expressed his belief that Adams had misunderstood the conversation between Holcomb and Adams as to what John Taylor had told Holcomb. (See Tr. 177-180.) According to Holcomb, John Taylor did not instruct him to give the laborers an ultimatum that they had to discontinue their membership in the La- borers Union and go to work for Respondent Estrella, or go to work somewhere else. Holcomb said that John Taylor asked him to inform the laborers that Respondent Estrella was being created and, if they wanted to do so, they could go to work for that Company. Holcomb also said at transcript 187, "To the best of my recollection, I told Mr. Adams that Mr. Taylor had informed me he was starting a non-union company, and that the , men could either work for Estrella Company, or go work somewhere else." In August 1982, Katie Taylor telephoned Adams, and she asked if he could take a member in the Charging Party Union for her. Adams thought at the trial that the person's name was Dan Vellinga, but he was not certain, and he had no present recollection at the time of the trial. Adams explained to Katie Taylor that he could not take the person into the Union, but the person could sign the C list, and after the persons on the A list and the B list were dispatched, he would be eligible for dispatch. Sometime in August 1982, Adams visited a jobsite where Respondent Taylor was working on 116th Street, in the vicinity of Pear Blossom. He spoke with a fore- man of Respondent Taylor there about correcting a con- tract violation and having an operating engineer dis- patched to operate the equipment. Kent Day was then dispatched by the Union to do that work. Day told Adams that an NLRB agent had come out to question John Taylor. Day told Adams that John Taylor was upset with Day, and that John Taylor thought Day had been talking to the NLRB agent and to the Union. Adams also visited a jobsite on 90th Street East, where Respondent Taylor was working. Adams acknowledged at the trial that he saw no employees of Respondent Es- trella, nor any equipment with Respondent Estrella's name on it, at either the 90th Street or 116th Street job- sites at the time of his visits. Adams also acknowledged WILLIAM N. TAYLOR, INC. 1065 at the trial that the same was true regarding a jobsite he visited later at Cerrocasco College. Introduced into evidence as Respondent Estrella's Ex- hibit 29 was a copy of a letter dated August 17, 1982, from Respondent Estrella on its letterhead stationery to R. M. McCullough. The letter was written by Katie Taylor, but she believed that she and John Taylor had discussed it, although she did not recall whether he saw the letter before she sent it. Katie Taylor has some of Respondent Estrella's stationery in Respondent Taylor's office. The letter makes reference to a bid that had been sent to McCullough on March 8, 1982, under the name of Re- spondent Taylor. The letter also states, in part, "As dis- cussed with John, the contract is to be in the name of Estrella Construction Company." Underneath Respond- ent Estrella's typewritten name is Katie Taylor's signa- ture and typewritten name. According to Katie Taylor, the work mentioned in the letter is different from the job for the West Valley County Water District. The customer had asked Re- spondent Taylor to make a bid for the work. Katie Taylor prepared a bid, and the contract was awarded to Respondent Taylor. Subsequently, Katie Taylor asked John Taylor to have Respondent Estrella perform the work. She said at the trial that she did so because the customer was in a hurry to get the work done, and Re- spondent Taylor did not have the personnel to perform the work. At the trial, she acknowledged that Respond- ent Taylor did not attempt to obtain additional workers through the Union's hiring hall for that job. She said at transcript 374, "It was a small job and it wasn't worth- while." At the time Respondent Taylor had one crew, but they were working on another job. The document indicates that the total amount of the bid was $12,750. (See R. Estrella's Exh. 29 and Tr. 392.) One day in late August 1982, Day was in Respondent Taylor's yard. As indicated earlier, Day was an employ- ee of Respondent Taylor and not an employee of Re- spondent Estrella. John Taylor approached Day on that occasion and inquired why, on the previous workday, he had been sitting in the shade under a truck. Day told John Taylor that his work had been completed, and there had not been any work for the bacldioe or the crane. According to Day, John Taylor told him some- thing to the effect that there was a lot of work to be done, and Day could be helping to do it. Day also said at transcript 213, "He said he couldn't afford to pay me operator's wages for doing nothing." A couple of days later, John Taylor spoke with Day again in the yard area. Day stated at transcript 214, "I think he was just saying I should get up and work with the rest of them." Among the facts regarding Respondent Taylor on which the parties were able to stipulate were those set forth in paragraphs 25 and 26 of Joint Exhibit 1, which are applicable to this time period: 25. On August 24, 1982, William N. Taylor, Inc. submitted an application for the replacement of John R. Taylor as registered responsible managing officer of William N. Taylor, Inc. by the corpora- tion's president Katie S. Taylor. (General Counsel reserves the right to examine Mrs. Taylor regarding application and its contents.) 26, On August 24, 1982, an application was sub- mitted by Katie S. Taylor to the State Contractor's License Board for approval of her as licensed re- sponsible officer. VII. THE EVENTS COMMENCING IN SEPTEMBER 1982 Among the facts to which the parties stipulated were those in paragraphs 27, 32, 33, and 34 of Joint Exhibit 1, which are applicable to this time period. 27. Katie S. Taylor, President of William N. Taylor, Inc. since September 9, 1982, has been the registered responsible managing officer of William N. Taylor, Inc. for the State Contractor's Licenses in Classes C-12, C-34 and Class A. 32. The Articles of Incorporation for Estrella Construction Company, Inc. was filed and en- dorsed, Identification No. 1122539, by the Office of the Secretary of State for the State of California on September 13, 1982. 33.Estrella Construction Company, Inc. is a Cali- fornia corporation in good standing with the Office of the Secretary of State of the State of California. 34.On September 30, 1982, John Robert Taylor was elected as President and Dolores Taylor was elected as Secretary, Treasurer and Chief Financial Officer for Estrella Construction Company, Inc. During the first part of September 1982, John Taylor and Day had a brief conversation in the yard area. Day stated at transcript 221, "Well, he'd ask me that if I wasn't going to work along with the rest of the guys, that I could go pick up my check." Day thought about that and then replied, "Well, I'll stay here for awhile." (See Tr. 221-222.) John Taylor and Day had still another conversation one afternoon in the yard area. John Taylor asked Day what he was trying to do. Day replied that he did not know what John Taylor was talking about. Day further said at transcript 223, "He asked me if I'd been going to the union. And I told him I hadn't. And he said some- body had been taking pictures of the Estrella trucks with John Eberling in them." Introduced into evidence as Respondent Taylor's Ex- hibit 398 was a copy of a written agreement dated Sep- tember 1, 1982, between Respondent Taylor and Re- spondent Estrella. The agreement specifies the monthly rental rate for certain equipment and vehicles, and that gasoline and diesel fuel will be charged for on a monthly basis. Katie Taylor said that the rental agreement was negotiated between herself and John Taylor. The flat monthly rental rates were the same ones as under their verbal agreement, but the written agreement provided for the separate and additional billing for gasoline and diesel fuel. In addition to the equipment described in Respondent Taylor's Exhibit 398, Respondent Estrella has also rented other equipment belonging to Respondent Taylor. Those 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD additional items include other pickup trucks, generators, and air compressors. It is a common situation for Re- spondent Estrella to rent such equipment which is not listed on Respondent Taylor's Exhibit 398. (See Tr. 351- 352.) Those items that are not listed on the written agreement between Respondent Taylor and Respondent Estrella are rented pursuant to oral agreements reached between Katie Taylor and John Taylor. For example, Respondent Taylor's Exhibit 402 shows that a compres- sor was rented by Respondent Estrella from Respondent Taylor for $750 a month for the period from September 11 to October 11, 1982. Katie Taylor had prepared that invoice largely from her memory of where the equip- ment was during that time period. According to Katie Taylor, charts from rental compa- nies were the basis for arriving at the $750-a-month figure. She acknowledged at the trial that Respondent Taylor receives new rental charts from time to time, and that sometimes the rental rates increase and sometimes decrease. However, the rental rates agreed on between Respondent Taylor and Respondent Estrella have not changed since the initial oral agreement was reached in mid-1982. (See Tr. 354.) Respondent Taylor's Exhibit 402 also shows that Re- spondent Taylor retroactively billed Respondent Estrella for gasoline and diesel fuel usage for a 3-month period in the amounts of $4,711.99 and $863.08, respectively. Katie Taylor stated at transcript 357, "I just reviewed our records and decided it should be done." After reviewing Respondent Taylor's cost records, Katie Taylor request- ed of John Taylor that Respondent Estrella pay for such fuel already used. The figures for gasoline and diesel fuel are based on an average of fuel consumption for various pieces of equipment as reflected on a chart which Katie Taylor prepared based on her general knowledge. (See Tr. 357-358.) At the trial, John Taylor acknowledged that he was aware that the Charging Party Union had filed an unfair labor practice charge prior to the time in September 1982 that the written rental agreement was executed. (See Tr. 803-806 and 812-813, and C.P. Exh. 7.) VIII. OTHER EVENTS Introduced into evidence as Charging Party's Exhibit 1 were copies of the monthly cash disbursements journal of Respondent Estrella from June 1982 through March 1983. All of the handwriting was made by Katie Taylor. At the time that she testified at the trial on May 13, 1983, Katie Taylor said that the cash disbursements jour- nal of Respondent Estrella had been her responsibility, but she was beginning to have Renee Vellinga write checks at that time. Katie Taylor said that she works in the office of Re- spondent Taylor, but not in the office of Respondent Es- trella. She explained regarding Renee Vellinga at tran- script 874, "She usually brings them over to me when she wants some counseling or there has to be something done." Katie Taylor acknowledged that there were certain periodic bills of Respondent Estrella that she paid auto- matically without consulting with John Taylor. At other times John Taylor has told Renee Vellinga that certain bills were to be paid. Katie Taylor explained at transcript 875, "then she'll bring it to me because she's not in the habit of writing checks." Regarding John Taylor's visits to Respondent Taylor's office since June 1, 1982, Katie Taylor said at transcript 875, "he probably checks in there every day at some time or other." Charging Party's Exhibit 1 for January 1983 shows a cash disbursement in the amount of $52,000 from Re- spondent Estrella to Respondent Taylor. Katie Taylor explained the breakdown as $31,192.74 for accounts pay- able; $17,000 paid to Respondent Taylor on a loan; $3,098.26 paid to Respondent Taylor for rental of equip- ment; and $709 for automobile insurance. Regarding the insurance payment, she said at transcript 876, "Because on the jeep that John Taylor leased, that was run through the books of William N. Taylor at first, and then it was transferred out because it had no part of William N. Taylor." She also said at transcript 878, "The $3098 that was paid by [Respondent] Taylor on this jeep that should have been paid by John [Taylor]." She also said that Respondent Taylor and Respondent Estrella used the same insurance agency for certain things. The payments by Respondent Estrella to Respondent Taylor on accounts payable on the loan and leases were not made regularly every month. Katie Taylor said at transcript 878, "When his cash flow warranted payments, why he instructed me to pay the bills." An entry on Charging Party's Exhibit 1 for December 1982 shows a payment of $1500 by Respondent Estrella to Katie Taylor. At the trial, Katie Taylor explained that she indirectly had paid certain legal fees on behalf of Re- spondent Taylor to the attorney who represented both Respondent Taylor and Respondent Estrella in this pro- ceeding. The amount reflected in the cash disbursements journal was to reimburse Katie Taylor for Respondent Estrella's share of the legal fees. Entries on Charging Party's Exhibit 1 for August 1982 show a cash disbursement by Respondent Estrella to Re- spondent Taylor in the amount of $62,000. Katie Taylor. said that $11,000 of that amount was payment by Re- spondent Estrella to Respondent Taylor for a loan; $35,445 of the amount was a loan made by Respondent Estrella to Respondent Taylor; and $15,555 of that amount was a payment by Respondent Estrella to Re- spondent Taylor for the rental of equipment. Introduced into evidence as Charging Party's Exhibit 2 were copies of the time and payroll records of Re- spondent Estrella from June 6, 1982, through March 27, 1983. The handwriting on those documents was made by Renee Vellinga, except for the documents dated Decem- ber 26, 1982; January 2, 1983; part of January 16, 1983; January 30, 1983; February 6, 1983; February 13, 1983; and March 6, 1983. Katie Taylor explained that Renee Vellinga was on vacation during Christmas, so Katie Taylor prepared those two payrolls. Regarding the Janu- ary 16, 1983 payroll, Katie Taylor said at transcript 867, "The only explanation I can give is she must have been late that morning." As a result, Katie Taylor began the preparation of the payroll and Renee Vellinga completed it after she arrived at Respondent Taylor's office. Re- garding the preparation of the January 30 and February WILLIAM N. TAYLOR, INC. 1067 6, 1983 payroll for Respondent Estrella, Katie Taylor be- lieved that Renee Vellinga was on vacation in Arizona at that time. Katie Taylor said at transcript 868, "Yes, I did because I was supervising her anyway, and it had to be done." Katie Taylor acknowledged at the trial that she was not compensated in any way by Respondent Estrella for her work. Regarding her preparation of the payroll for February 13, 1983, Katie Taylor did not recall when Renee Vel- linga had returned from her vacation, but she was certain that Renee Vellinga had returned by the time Katie Taylor prepared the March 6, 1983 payroll. Katie Taylor said at transcript 870, "The only explanation I can give is that for some reason she was—she didn't come to work that day or something and the payroll had to go out." Introduced into evidence as Charging Party's Exhibit 3 were copies of the general ledger for Respondent Es- trella. Katie Taylor said that she did the posting into the general ledger for Respondent Estrella up to March 1983, when she told Renee Vellinga, "Now it's time that you started doing this." (See Tr. 871.) At the time that Katie Taylor testified at the trial on May 13, 1983, the ledger for April 1983 had not been closed. Introduced into evidence as Charging Party's Exhibit 5 were copies of the time and payroll records of Re- spondent Taylor from July 3, 1982, through March 27, 1983. Katie Taylor's handwriting appears on the docu- ments, except for May 16 and 30 and June 6, 1982, when Renee Vellinga's handwriting appears on the time and payroll records of Respondent Taylor. Katie Taylor said that Renee Vellinga was on the payroll of Respondent Taylor for about 1 month up to May 30, 1982. She ac- knowledged that Renee Vellinga had prepared the pay- roll of Respondent Taylor for June 6, 1982, while Renee Vellinga was employed by Respondent Estrella. Katie Taylor said at transcript 873, "That is true, but she needed the experience in payroll." Katie Taylor ac- knowledged that Respondent Taylor did not compensate Renee Vellinga for her preparation of Respondent Tay- lor's June 6, 1982 payroll. About 5 or 6 months before May 1983, Dan Vellinga began to keep records regarding the use of Respondent Taylor's equipment by Respondent Estrella. Dan Vel- linga turned that information over on a weekly basis to John Taylor, who gave the information to Katie Taylor to compute the amount of the rental charges. Charles J. Beck has been a civil engineer with Ante- lope Valley Engineering for about the past 10 years. Prior to that time Beck had worked for several different contractors and as a bridge engineer for the State of California. In the course of his engineering work for An- telope Valley Engineering, Beck has designed water sys- tems,and sewer systems for private developers of subdi- visions and water lines for the County of Los Angeles. During the preplanning phase of some projects, Beck has sought technical advice from many experienced contrac- tors as to the most practical or the most economical way to design an interconnection into an existing water system. One of those contractors that Beck has consulted periodically over the past 10 years is Respondent Taylor. Beck had spoken by telephone with William N. Taylor, Katie Taylor, and John Taylor. However, his contacts with Katie Taylor primarily have occurred since the death of her husband. As to the number of times he had talked with Katie Taylor since the death of her husband, Beck said, "I would say that we would ask a question on the average of one every two or three weeks." (See Tr. 988.) In his opinion, Beck received satisfactory answers that assisted him in preparing his plans for developers, and that indicated to him that Katie Taylor had "techni- cal and practical" knowledge of how the construction was supposed to be done. (See Tr. 986.) During cross- examination, Beck recalled that Katie Taylor did not always give him an immediate answer. He said, "I'm sure she has said, she didn't know the answer off the bat, that she would check." (See Tr. 989.) On such an occasion, Beck did not know whether the subsequent answer he received came from the personal knowledge of Katie Taylor or from someone with whom she had consulted Sometime during 1982, Beck became aware of the ex- istence of Respondent Estrella. Beck's recollection was that John Taylor had told him that he owned Estrella Construction Company, but Beck had no personal knowledge of the ownership of Respondent Estrella or Respondent Taylor. Based on the fact that Respondent Estrella had been the contractor on the contracts, Beck said there was general knowledge in the Lancaster area of the existence of Respondent Estrella. Beck is the president of the local chapter of the Building Industry Association of California, and he believed that Respond- ent Estrella was a member of that association. At some point in time, Respondent Estrella replaced the magnetic signs with that Company's name on it with signs that stuck or adhered to the truck doors. McLain explained that the magnetic signs had sometimes been blown off the truck doors. McLain received instructions that the signs with Respondent Estrella's name were to be placed on the trucks. In March 1983, Adams visited a jobsite where Re- spondent Taylor was working. It is known as the Ridge- crest job at Cerrocasco College. The Charging Party Union was picketing another contractor at that location. Adams asked a foreman of Respondent Taylor to correct a contract violation and have an operating engineer dis- patched to operate the equipment there. Adams said Re- spondent Taylor then utilized an owner-operator. At the trial, Adams acknowledged that he had never contacted either Respondent Taylor or Respondent Es- trella regarding the operations of Respondent Estrella and the particular jobsites where Respondent Estrella was working. He also acknowledged that he had not re- quested that a meeting be held between him and Re- spondent Estrella or Respondent Taylor. Around March 1983, McLain picked up supplies for Respondent Estrella at Lancaster Plumbing on two or three occasions. Foreman Ayers is the one who told McLain to pick up the supplies there. When McLain picked up the supplies, he asked for a receipt for Re- spondent Estrella. He was told that they did not have a charge account under Respondent Estrella's name, but it was under Respondent Taylor's name. (See Tr. 769.) McLain said that the company name on the receipt for supplies was "William Taylor." (See Tr. 744.) McLain 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also picked up supplies for Respondent Estrella at Acme Rents in Northridge and at Stoddard Company, but he did not know what company name was used. About 5 weeks prior to the time that Dan Vellinga tes- tified at the trial on June 7, 1983, either John Taylor or Renee Vellinga began bringing the paychecks for em- ployees of Respondent Estrella to the Pinion Hill jobsite. (Pinion Hill was sometimes referred to at the trial as the Phelan jobsite.) Dan Vellinga said that the new practice was because the employees of Respondent Estrella re- ported to ma:irk in their own vehicles to that jobsite, which is 27 miles from the office of Respondent Estrella. (See Tr. 960.) Until the middle of May 1983, Dan Vellinga had not hired any employees of Respondent Estrella. According to Dan Vellinga, John Taylor had done the hiring and the firing of employees of Respondent Estrella up to that time. A few days prior to the time that he testified at the trial on May 13, 1983, McLain, who was employed by Respondent Estrella, telephoned the office. Renee Vel- linga answered the telephone, and McLain asked her about his vacation benefits. According to McLain, "She said to call back when Mrs. Taylor was in or to call back the following day and she'd find out for me." (See Tr. 748.) McLain said Renee , Vellinga told him she would find out from Katie Taylor. Subsequently, Katie Taylor informed McLain that he could collect his vaca- tion benefits on June 15, 1983. Since June 1, 1982, Respondent Taylor has had jobs at 90th Street East and Avenue J, which is also referred to as Well 41 at some points in the trial; a job at 116th Street Fast; a job for K-Mart in Mojave; installation of a water main on Redwood Avenue for Staterfield; installa- tion of fire hydrants, a job in the amount of $123,000 to $125,000 at the Whiteman Airport for Southwest Paving; and a plumbing job at Big Valley. Katie Taylor said at the trial that Respondent Taylor had been assured of a job in the amount of $52,000 by Ashland Construction Company at Edwards, but work had not yet begun be- cause the base work of another contractor had not been fmished. Katie Taylor acknowledged at the trial at transcript 283, "I didn't make a general practice of going out to the jobsite itself." For example, regarding the Kmart jobsite, she said at transcript 283, "I think I was up there once." Regarding the 116th Street jobsite, she said at transcript 283, "I don't believe I was ever out there." She did not recall the time she had visited the 90th Street jobsite. Katie Taylor did not visit the Whiteman Airport jobsite in Pacoima in the San Fernando Valley. She said that John Eberling was the on-site supervisor there. At her request, Eberling obtained all the operators who worked on that jobsite for Respondent Taylor from the Charging Party Union's hiring hall At the time that Katie Taylor testified at the trial on May 13, 1983, there were only two employees of Re- spondent Taylor. Since June 1, 1982, Respondent Taylor has never had more than six employees at any one time. During the first half of 1982, it had been fairly common for Respondent Taylor to have more than six employees. She acknowledged that the business of Respondent Taylor has been declining since the first half of 1982, but Respondent Taylor also had suffered an earlier operating loss in 1981. She commented at transcript 895, "It goes on and on." Respondent Taylor, however, had bid on future jobs at the time of the trial, and there was still some work remaining on jobs that had been previously started. She attributed the situation to the usual fluctua- tion in the construction business, and the fact that Re- spondent Taylor had submitted higher bids on some jobs than its nonunion competitors. In contrast to the decline in Respondent Taylor's volume of business since June 1982, Respondent Estrel- la's volume of business has grown to be larger than that of Respondent Taylor. Katie Taylor said at transcript 894, "Because they've gotten some large contracts." During the majority of the time since June 1982, Re- spondent Estrella has had more employees than Re- spondent Taylor. At the time of the trial, Katie Taylor did not recall that Respondent Taylor had ever bid on a job that Re- spondent Estrella bid on, but she said at transcript 884, "We're both in the same line of business, so I'd say we were competitors." She said that Respondent Taylor, within a few weeks before she testified at the trial on May 13, 1983, successfully bid on "non-union jobs." (See Tr. 885.) At the time of the trial proceedings, Dan Vellinga was a superintendent for Respondent Estrella. Tom Ayers and Tony Espinoza were foremen of Respondent Estrella and under the supervision of Dan Vellinga. Espinoza was promoted from laborer to foreman on the first day of the trial proceedings. (See Tr. 818.) Since June 1, 1982, John Taylor has not hired or fired any employees of Respondent Taylor, nor has he sus- pended employees of Respondent Taylor since that time. Since June 1, 1982, John Taylor has not submitted any bids on behalf of Respondent Taylor. Similarly, Katie Taylor has not submitted any bids on behalf of Respond- ent Estrella since that time, and no one acting on behalf of Respondent Taylor has hired or fired any employees of Respondent Estrella. As far as John Taylor knew, no foreman or other person employed by Respondent Taylor has given any orders or supervised any employ- ees of Respondent Estrella. John Taylor has never received any request from the Charging Party Union that they wanted to represent the employees of Respondent Estrella. No employees of Re- spondent Estrella ever told John Taylor that they wanted to join the Charging Party Union or that they wanted the Charging Party Union to represent them. John Taylor has never contacted the Charging Party Union or the Laborers Union as a source of employees for Respondent Estrella. Respondent Estrella has not made any payment to the Operating Engineers trust fund. Estrella Construction Company, Incorporated, has been licensed, but Respondent Estrella, the partnership, is still engaged in business. (See Tr. 828-829 and R. Es- trella's Exh 22.) Estrella Construction Company, Incor- porated, is wholly owned by John Taylor and Dolores Taylor, who are also the partners in Respondent Estrella. WILLIAM N. TAYLOR, INC. 1069 IX. CONCLUSIONS In Bacchus Wine Cooperative, 251 NLRB 1552 (1980), Administrative Law Judge Jay R. Pollack stated at 1554: In determining whether BWI and the Coop con- stitute a single employer the controlling criteria are: (1) interrelation of operations; (2) common manage- ment (3) centralized control of labor relations; and (4) common ownership. 1V.L.R.B. v. Don Burgess Construction Corp., 596 F.2d 378 (9th Cir. 1979); Radio and Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255 (1965); Sakrete of Northern California, Inc., 137 NLRB 1220 (1962), enfd. 332 F.2d 902 (9th Cir. 1964), cert. denied 379 U.S. 961 (1965). The Board has stressed the first three factors, as well as the present of control of labor relations. Sakrete, supra, 332 F.2d at 905, fn. 4. However, no one of the fac- tors is controlling, nor need all of the "controlling criteria" be present. Don Burgess, supra at 384; N.L.R.R v. Welcome-America Fertilizer Company, 443 F.2d 19, 21 (9th Cir. 1971). Single employer status, for purposes of the Act, depends upon all of the circumstances of the case and is characterized as an absence of an "arm's length relationship found among unintegrated companies." Blumenfeld Thea- tres Circuit, a partnership; Blumenfeld Enterprises, a Division of Cinerama, Inc., Roxie Oakland Theatre, a partnership, 240 NLRB 206, 214-217 (1979), citing Local No. 627, International Union of Operating En- gineers, AFL—CIO (South Prairie Construction Com- pany and Peter Kiewit Sons' Company) v. N.L.R.B., 518 F.2d 1040 (D.C. Cir. 1975), affd. in pertinent part 425 U.S. 800 (1976). The &mid has pointed out that there are a number of factors to be considered in determining the issue of whether one employer is an alter ego of another employ- er, and that no one factor is the sine qua non of such status in a Board proceeding. In its decision in Fugazy Continental Corp., 265 NLRB 1301 (1982), the Board held the following: In determining whether Ganser's Auto Service is the alter ego of Fugazy, we must consider a number of factors, no one of which, taken alone, is the sine qua non of alter ego status. 5 Among these factors are: common management and ownership; 6 common business purpose, nature of operations, and supervision; 7 common premises and equipments common customers i.e., whether the employers con- stitute "the same business in the same market"; s as well as the nature and extent of the negotiations and formalities surrounding the transaction." We must also consider whether the purpose behind the cre- ation of the alleged alter ego was legitimate or, whether, instead, its purpose was to evade responsi- bilities under the Act." 5 N.L.R.B. v. Tricor Products, Inc., 636 F.2d 266, 269 (10th Cit. 1980), affg. 239 NLRB 65 (1978), Crawford Door Sales Company, Inc. 226 NLRB 114 (1976). 6 Radio and Television Broadcast Technicians Local Union 1264 v Broadcast Service of Mobile, Inc , 380 U.S. 255, 256 (1965). 7 Crawford Door Sales, supra; Farmingdale Iron Works, Inc., 249 NLRB 98, 106 (1980). 8 Davis Industries, Inc. 232 NLRB 946 (1977); J. M. Tanaka Construction, Inc., 249 NLRB 238 (1980); SFS Painting & Drywall, Inc., 249 NLRB 111 (1980). 9 International Harvester Co and Muller International Trucks, Inc., 247 NLRB 791 (1980); Crawford Door Sales, supra. 1° Flits Chief Inc., 230 NLRB 1112 (1975); Scott Printing Corp., 237 NLRB 593 (1978). 11 Southport Co. v. IST.L.R.B., 315 U S. 100, 106 (1942); Regal Knitwear Co. V. 1V.L.R1i, 324 U.S. 9, 14 (1944). See also House of Koscot Development Corp. v. American Line Cosmetics, Inc., 468 F 2d 64, 66 (5th Cir. 1972), wherein the court stated the traditional alter ego rule that it would "pierce the corporate veil" when "nec- essary to prevent injustice" The Board has reiterated the "substantially identical" test regarding considering the factors where alter ego status is in issue. In its decision in Denzil S. Alkire, 259 NLRB 1323, 1324 (1982), the Board held: The legal principles to be applied in determining whether two factually separate employers are in fact alter egos are well settled. Although each case must turn on its own facts, we generally have found alter ego status where the two enterprises have "substantially identical" management, business pur- pose, operation, equipment, customers, and supervi- sion, as well as ownership.3 3 Crawford Door Sales Company, Inc., 226 NLRB 1144 (1976). Also see Big Bear Supermarkets #3, 239 NLRB 179 (1978), Edward J. White, Inc., and its alter ego, Repairs, Inc., 237 NLRB 1020 (1978); Ramos Iron Works, Inc., and Rasol Engineering, 234 NLRB 896 (1978); Co-Ed Garment Company and as Alter Ego-Delta Manu- facturing Corporation, 231 NLRI3 848 (1977). As revealed in the cases cited above there are some si- milarities, as well as some differences, in the criteria per- taining to the issue of single employer status and the issue of alter ego status. Both issues are presented in this case. Some of the facts applicable to the issue of single employer status are also applicable to the issue of alter ego status. In order to avoid repetition, I will give my conclusions concurrently, while realizing that some crite- ria apply to the former issue; some apply to the latter issue; and some apply to both issues, as indicated in the cases cited above. In addition, I will attempt to avoid un- necessary repetition of the numerous findings of fact that have already been set forth in this decision. All of those have been considered in reaching the following conclu- sions. Regarding the criteria of business purpose, I conclude that both Respondent Taylor and Respondent Estrella are engaged in the same type of business. Both are un- derground utility contractors in the Lancaster area. (See secs. 3 and 4.) Theoretically, Respondent Taylor and Re- spondent Estrella are competitors, but, in actuality, they have not bid on the same jobs. (See sec. 4.) Regarding the criteria of customers, they are available to serve the customers in the same geographical area. There is at least one instance in which Respondent Taylor had suc- cessfully bid on certain work for a customer, but then Respondent Taylor gave the work to Respondent Es- trella because the customer was in a hurry to have the 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work done, and Respondent Taylor was employing only one crew at that time and that crew was working on an- other project. (See sec. 6.) Among other things, that event shows that Respondent Estrella was capable of performing the same type of work for the same type of customer as Respondent Taylor. Regarding the criteria of ownership, the evidence shows that the two companies are owned by different persons, although the persons are all in the Taylor family. Katie Taylor is the sole owner of Respondent Taylor, and John Taylor and Dolores Taylor are the partners and owners of Respondent Estrella. They are the son and daughter-in-law of Katie Taylor. (See secs. 3-4.) Regarding the criteria of management, I conclude that the evidence shows that Katie Taylor is active in the management and business operations of Respondent Taylor. She does the important task of preparing bids for work, and she appears to be very knowledgeable of that complicated process. In addition, she performs the book- keeping duties for Respondent Taylor and, primarily, has done the bookkeeping for Respondent Estrella while she trains and supervises Renee Vellinga in that work. The evidence shows that John Taylor is active in the man- agement and operations of Respondent Estrella. I con- clude that Katie Taylor and John Taylor possess the actual and ultimate control over all the business policies and practices of Respondent Taylor and Respondent Es- trella, respectively. Regarding the criteria of control over labor relations, I conclude that Katie Taylor has such control concerning Respondent Taylor, but within the parameters of the collective-bargaining agreement and such laws as the Davis-Bacon Act. John Taylor ex- ercises control over the employment policies and prac- tices of Respondent Estrella, and he has control of labor relations matters within the parameters of such laws as the Davis-Bacon Act. (See secs. 4-8.) Regarding the criteria of supervision, I conclude that the evidence shows that both Respondent Taylor and Respondent Estrella have their own on-site supervisors who are directly involved in supervising the day-to-day work of employees. There is evidence of John Taylor's involvement in the hiring of Day to work for Respond- ent Taylor in July 1982. The subsequent conversations between John Taylor and Day regarding Day's job per- formance also reveal John Taylor's involvement in su- pervisory concerns regarding an employee of Respond- ent Taylor. (See secs. 5-7.) Regarding the criteria of the interrelation of oper- ations, I conclude that the evidence establishes there is a substantial and significant interrelationship between Re- spondent Taylor and Respondent Estrella. That conclu- sion is particularly based on the flow of money between the two companies, under circumstances that are indica- tive of a less-than-arm's-length financial practice; the per- formance of services free of charge by employees of one company for the other, and the furnishing of things of value free of charge by one company for the other. (See secs. 3-8.) As an example of the foregoing financial prac- tices between the two companies, it will be recalled that a verbal agreement has existed between John Taylor and Katie Taylor with regard to operating capital and cash flow problems. The agreement is for one company to make loans to the other company when such moneys are needed, and when the other company has such funds available. Those loans have been made interest free from one company to another. No promissory notes have been executed or other security given. No terms of repayment of the loan have been established. As a result, the evi- dence shows that a substantial amount of money flowed back and forth between the two companies in the form of interest-free, unsecured loans with no repayment terms. The source of the initial capital investment in Re- spondent Estrella was a $5000 loan to John Taylor from Katie Taylor, either personally or from Respondent Tay- lor's account. That first loan was made as described above. The bid for the first job performed by Respond- ent Estrella was a bid that had been prepared by John Taylor when he was the president of Respotdent Taylor. Katie Taylor had assisted in the preparation of that bid. Respondent Estrella did not compensate Respondent Taylor for the time and work involved in preparing the bid on which Respondent Estrella ultimately performed the work. John Taylor visited jobsites of Respondent Taylor after he formed Respondent Estrella, but John Taylor made those visits without compensation. Katie Taylor did a substantial amount of bookkeeping work for months for Respondent Estrella without any compensa- tion. Renee Vellinga did some bookkeeping work for Re- spondent Taylor, without compensation, after she had left the employ of Respondent Taylor. Respondent Estrella utilized the same yard as Re- spondent Taylor did for employees to assemble prior to going to the jobsites. Respondent Estrella used the yard for many months without compensation to Katie Taylor, who owns the yard area. Respondent Taylor has paid the property taxes in exchange for its use of that yard. From the first of June 1982 to July 15, 1982, Respondent Estrella used certain equipment belonging to Respondent Taylor, but Respondent Estrella did not compensate Re- spondent Taylor for the use of the equipment during that time period. From July 15 to September 1982, Respond- ent Estrella and Respondent Taylor had only a verbal agreement regarding the rental of Respondent Taylor's equipment to Respondent Estrella. The rental computa- tions rested on memory and recollection of where the equipment was used and for how long. In September 1982, a written agreement was executed between the two companies regarding the rental of certain equipment, and a retroactive charge was made for fuel consumed earlier by Respondent Estrella. Even after the written rental agreement was executed, however, some equipment was rented by Respondent Taylor to Respondent Estrella on a verbal agreement basis. For many months, records were not maintained regarding the rental of equipment, but, instead, memory and recollection were relied on as the basis for computing the amounts owed by Respond- ent Estrella to Respondent Taylor. (See secs. 4, 5, 7, and 8.) Regarding the criteria of equipment, it has been noted above that Respondent Estrella rented a substantial amount of equipment on an ongoing basis from Respond- WILLIAM N. TAYLOR, INC. 1071 ent Taylor. Thus, employees of the two companies have operated the same equipment at different times. In that connection, the similarity of the work performed has al- ready been noted. It will also be recalled that, initially, all the employees of Respondent Estrella were former employees of Respondent Taylor at the time that Re- spondent Estrella began operations. Thus, the skills of the employees, at least in the beginning, were the same. (See sec. 4 regarding the initial complement of employ- ees of Respondent Estrella, and see secs. 4, 5, 7, and 8 regarding the rental of equipment by Respondent Es- trella.) Regarding the reasons that John Taylor established Respondent Estrella, those reasons are stated in conver- sations that John Taylor had with other persons, as well as his own testimony at the trial. (See secs. 4 and 5.) I conclude that John Taylor's reasons, based on evidence referred to above, were to form a nonunion company which, in his view, would be able to compete more ef- fectively with other nonunion companies in the Antelope Valley area, and to be free from using the Union's hiring hall in hiring employees. Among the cases cited by the Respondents is the Board's decision in United Constructors, 233 NLRB 904 (1977). After rereading that decision, I conclude that there are a number of similarities between United Con- structors and the present case. There are also important differences, however, and the primary differences are the flow of money back and forth between Respondent Taylor and Respondent Estrella under the circumstances noted above, and the financial practices of the two Re- spondents in this case, as noted previously. After considering the conclusions reached above re- garding the criteria mentioned, I further conclude that a preponderance of the evidence establishes that Respond- ent Taylor and Respondent Estrella are a single employ- er; that they are alter egos, and that they have engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act as alleged in paragraph 11 of the General Counsel's complaint in this proceeding. I have given consideration to the affirmative defenses urged by both Respondents in their answers to the com- plaint. The affirmative defense regarding the contention that Respondent Taylor and Respondent Estrella are "separate and independent employers" has already been discussed above. Both Respondents urge that the Gener- al Counsel's complaint failed "to state a claim such as to constitute an allegation of a violation of the National Labor Relations Act, as amended." After reviewing the pleadings once again, I conclude that the allegations in the General Counsel's complaint in this case meet the re- quirements of Section 102.15 of the Board's Rules and Regulations regarding the contents of a complaint. In part, Section 102.15 provides: "The complaint shall con- tain (1) a clear and concise statement of the facts upon which assertion of jurisdiction by the Board is predicat- ed, and (2) a clear and concise description of the acts which are claimed to constitute unfair labor practices, in- cluding, where known, the approximate dates and places of such acts and the names of respondent's agents or other representatives by whom committed." Both Respondents urge that the allegations of the Gen- eral Counsel's complaint are barred by the provisions of Section 10(b) of the Act. After reviewing the documents contained in General Counsel's Exhibit 1, I conclude that the unfair labor practice charge was filed by the Union on September 21, 1982, and served on the Respondents on or about September 22, 1982. The earliest unfair labor practice allegation in the General Counsel's complaint is the one set forth in paragraph 12(a) of the complaint. The date in that allegation is "on or about July 11, 1982." The time allegation in paragraph 11 of the Gener- al Counsel's complaint is "commencing on or about July 15, 1982." The time allegation in paragraph 12(b) of the General Counsel's complaint is "on or about September 10, 1982." After considering the foregoing, I conclude that the allegations of unfair labor practices fall within the period of time within 6 months prior to the filing and services of the unfair labor practice charge. Accordingly, I conclude that those allegations are not barred by Sec- tion 10(b) of the Act. Respondent Taylor urges as an affirmative defense that its employees who perform operating engineers' work do not constitute an appropriate collective-bargaining unit, and both Respondents urge that the employees of each one constitute a separate bargaining unit. As to the ap- propriateness of a craft unit in the building and construe tion industry, the Board has found appropriate, as a craft unit, employees who operate heavy equipment. See, for example, the Board's decision in Del-Mont Construction Co., 150 NLRB 85 (1964). In this connection, I also note the long collective-bargaining history between Respond- ent Taylor and the Union in the unit in question, which goes all the way back to 1957. In its decision in Naccarato Construction Co., 233 NLRB 1394 fn. 2 (1977), the Board stated, in part: [w]e note that, under the Supreme Court's opinion in South Prairie Construction Co. v. Local No. 627, International Union of Operating Engineers, AFL-. CIO, et al., 425 U.S. 800 (1976), the fact that several entities constitute a single employer is not disposi- tive of the ultimate issue of whether each is bound to the collective-bargaining agreements of the others. Rather, the test is whether, given a single- employer fmding, the employees of the separate companies constitute the appropriate unit or wheth- er the employees of each of the individual compa- nies constitute distinct and separate units. The crite- ria for finding a single employer are different from those for determining the appropriateness of the unit. Peter Kiewit Sons' Co. and South Prairie Con- struction Co., 231 NLRB 76 (1977). In the present case the operations of the three companies and the work of their employees are so intertwined as to render an employerwide unit the appropriate unit and to preclude the finding of separate appropriate units. In its decision in Peter Kiewit Sons' Co., referred to above, the Board stated, in part, at page 77: 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The ultimate unit determination is thus resolved by weighing all the factors relevant to the commu- nity of interests of the employees. Where, as here, we are concerned with more than one operation of a single employer, the following factors are particu- larly relevant" the bargaining history; the function- al integration of operations; the differences in the types of work and the skills of employees; the extent of centralization of management and supervi- sion, particularly in regard to labor relations, hiring, discipline, and control of day-to-day operations; and the extent of interchange and contact between the groups of employees. 7 Although Kiewit and South Prairie are not, in the traditional sense, separate plants, the factors used to determine whether a mul- uplant or a single-plant unit is appropriate are relevant here. With the foregoing criteria in mind, I have considered the long history of collective bargaining; the functional integration of the operations of Respondent Taylor and Respondent Estrella, with particular notice of the flow of money between the two companies and the financial practices of the two companies; the similarity in the type of work performed by both Respondents and the similar- ity of skills of employees; the centralization of manage- ment in Katie Taylor and John Taylor and their ultimate control over the operations and policies of the Compa- nies, and the fact that employees of Respondent Taylor and employees of Respondent Estrella had contact for many months when they reported for work each day in the same yard area. I conclude that a single unit of the employees who perform operating engineers' work is ap- propriate here. See also the Board's decision in Edward J. White, Inc., 237 NLRB 1020 (1978). As its sixth affirmative defense, Respondent Taylor urged that the Union failed to achieve majority status among the employees of Respondent Taylor, and, there- fore, the agreement between Respondent Taylor and the Union "is of no force and effect." In their posttrial brief, Respondents urge that the contract between Respondent Taylor and the Union was the type of agreement permis- sible under Section 8(0 of the Act, and that there was no proof by the General Counsel of the Union's majority status. In considering this affirmative defense, I conclude that the evidence does not establish that the collective- bargaining relationship between Respondent Taylor and the Union was the type of prehire agreement permissible under Section 8(0. In this connection, note paragraphs 39 and 40 of Joint Exhibit 1, which are set forth in sec- tion 3 of this decision. Those paragraphs from Joint Ex- hibit 1 do not establish that the contracts were 8(1) agreements. I am not unmindful of John Taylor's testi- mony that there has never been an election among the employees of Respondent Taylor in which they selected the Union to represent them, but an election is not the only way in which a union's majority status may be es- tablished. Thus, since the evidence did not show that the collective-bargaining relationship between Respondent Taylor and the Charging Party Union was an 8(1) rela- tionship, I conclude that the affirmative defense has not been established. If the evidence had established that an 8(1) relationship had existed between Respondent Taylor and the Union, and, if the evidence established that such a contract had been repudiated by Respondent Taylor, then the question would have arisen regarding whether the Charging Party Union had ever achieved majority status among the employees, and whether that 8(f) rela- tionship had ever ripened into a 9(a) relationship. For ex- ample, see the Board's decisions in Hageman Under- ground Construction, 253 NLRB 60 (1980), and Giordano Construction Co., 256 NLRB 47 (1981). Having reached the foregoing conclusions regarding the allegations of unfair labor practices pertaining to a refusal to bargain, I turn now to the allegations of con- duct independently violative of Section 8(a)(1) of the Act. Those allegations are set forth in paragraphs 12(a) and (b) of the General Counsel's complaint. Based on the findings of fact set forth in section 5 of this decision, I conclude that the evidence supports the General Counsel's allegation in paragraph 12(a) of his complaint. In that connection, I have considered the con- versation between John Taylor and Day, which took place on or about July 11, 1982. The context of the con- versation was an employment interview. John Taylor in- formed Day that he was starting a nonunion company, and John Taylor described the benefits that would be given without the presence of a union. According to Day, John Taylor "asked me if I wanted to go to work for Estrella, get out of the union." In those circum- stances, I conclude that the evidence supports the Gener- al Counsel's allegation, particularly when it is considered in the context of an employment interview. The fact that Day was not dissuaded is not determinative because an objective test is to be used. The Board held in Florida Steel Corp., 224 NLRB 45 (1976), "the test is whether the supervisor's conduct reasonably tended to interfere with the free exercise of the employee's rights under the Act." Based on the fmdings of fact set forth in section 7 of this decision, I conclude that the evidence establishes the allegation in paragraph 12(b) of the General Counsel's complaint. The conversation in issue was one between John Taylor and Day, which took place in September 1982. According to Day, John Taylor "asked me if I'd been going to the union. And I told him I hadn't. And he said somebody had been taking pictures of the Es- trella trucks with John Eberling in them." The circum- stances of that conversation should be considered in light of the fact that the Charging Party Union had filed an unfair labor practice charge against the Respondents at that time; there had been visits to jobsites by union rep- resentatives, both from the Charging Party Union and the Laborers Local 300; and photographs had been taken at the jobsites on two occasions. In its decision in Service Master All Cleaning Services, 267 NLRB 875 (1983), the Board held: "The test to determine a violation of Section 8(a)(1) of the Act by interrogating an employee about his or her union sympathies is whether, under all the cir- cumstances, the interrogation reasonably tends to restrain or interfere with employees in the exercise of their statu- tory rights." Especially considering the circumstances that had preceded the questioning of Day by John Taylor, I conclude that the evidence establishes the alle- WILLIAM N. TAYLOR, INC. 1073 gations in paragraph 12(b) of the General Counsel's com- plaint. CONCLUSIONS OF LAW 1. Respondent Taylor and Respondent Estrella are alter egos, and they constitute a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party Union is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material, the Charging Party Union has been the exclusive collective-bargaining representative of the employees of the Respondents in the following de- scribed appropriate bargaining unit: All heavy equipment operators, mechanics, oilers and grade checkers; excluding all office employees, managerial employees, guards and supervisors as de- fined in the Act. 4. The Respondents have engaged in unfair labor prac- tices within the meaning of Section 8(a)(I) of the Act by seeking to dissuade an employee from remaining a union member and by interrogating an employee about his union activities. 5.The Respondents have engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (5) of the Act by refusing to bargain collectively with the Charg- ing Party Union in the unit described above in that the Respondents have failed and refused to honor the terms of the collective-bargaining agreement with the Union: (1) by making unilateral changes in wage rates; (2) by failing to make fringe benefit payments; (3) by failing to use the hiring hall; and (4) by failing to terminate em- ployees who do not become members of the Union within 8 days after employment commences. 6. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Because I have found that the Respondents have en- gaged in certain unfair labor practices within the mean- ing of Section 8(a)(1) and (5) of the Act, I will recom- mend to the Board that the Respondents be ordered to cease and desist from engaging in such unfair labor prac- tices. I will also recommend to the Board that the Re- spondents be ordered to take certain affirmative action in order to effectuate the policies of the Act. [Recommended Order omitted from publication.]