Bufco Corp

BUFCO CORP 1015 Bufco Corp and International Brotherhood of Elec tncal Workers, AFL-CIO, Local 16 Corbett Electric Company, Inc and International Brotherhood of Electrical Workers, AFL-CIO, Local 16 Cases 25-CA-15547 25-CA-15111 and 25-CA-15570 November 30 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On May 4, 1984, Administrative Law Judge Nancy M Sherman issued the attached decision The Respondents filed exceptions and a supporting brief and the General Counsel resubmitted the brief filed with the judge in support of the judge s decision 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 findings i and conclusions only to the extent consistent with this Decision and Order Respondent Corbett Electric is an Indiana corpo ration engaged as an electrical contractor in the construction industry for many years It has been wholly owned by Bill W Corbett since its incep tion In 1973, Corbett by President Bill W Cor bett executed two IBEW form Letters of Assent A designating the Evansville Division, Southern Indiana Chapter National Electrical Contractors Association (NECA) as its collective bargaining representative and thereby became bound to the inside agreement (covering commercial electrical work) and the residential agreement between NECA and Charging Party Local 16 The form for the inside agreement listed the Employer as Cor bett Electric Co, and the residential agreement form listed the firm as Corbett Electric Co A Di vision of Bufco Corp Bufco was incorporated in 1970 and until 1977 was engaged primarily in construction and devel opment of single family and some multifamily housing Corbett Electric had its own employees and records and inter alia did all the electrical work for buildings constructed by Bufco After 1977, when Bufco stopped building houses and i The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings became inactive Corbett Electric continued as an electrical contractor for other firms Prior to 1983 Bufco had never employed electricians and Bufco itself never had a collective bargaining relationship with the Union Until the events at issue here Bill Corbett was the president of Bufco (as well as Corbett Electric) and owned all of its shares (as well as all of Cor bett Electric s shares) Bill s son Mark Corbett was an officer of Bufco from at least 1980, and was vice president of Corbett Electric for 3 or 4 years prior to June 30 1982 In letters to the Evansville NECA Chapter and the Union dated June 28 and July 2 1982, respec tively Respondent Corbett notified them that it was terminating membership in NECA severing participation in the multiemployer bargaining group, and canceling the letters of assent for both the inside and residential labor agreements At the time Corbett s letters were sent the NECA Chap ter and the Union were parties to a contract cover ing residential electrical work effective from Oc tober 1 1981 through September 30 1983 The same parties had also reached agreement and placed in effect an Inside contract effective by its terms from June 10 1982 through March 31 1985 Thereafter at some point between August 1982 and January 1 1983 Bill Corbett transferred the majority of the stock in Bufco (which had been in active for several years) to Mark Corbett (a minori ty interest was transferred to Bill Corbett s wife) In January 1983 Bufco for the first time began per forming electrical contracting work The parties stipulated that the individuals employed by Bufco in January were Mark Corbett Larry Bish and Thomas Strupp, all of whom had been employed by Corbett Electric in December 1982 After the end of 1982 the only person on Corbett Electric s payroll was Bill Corbett He testified that he re signed from Bufco because he felt he had to unload some problems and that he could not see continuing in the electrical business in the capac ity that he had in the past He also testified that he wrote to NECA and the Union because there was no way he could function under a labor agree ment and not perform any work himself Bill Corbett further testified that he gave Bufco to his son Mark rather than giving him Corbett Electric because of the involvement with the Union and that Mark didn t want Corbett Electric The judge found Respondent Bufco to be an alter ego of, and a single employer with Respond ent Corbett Electric and that the reactivation of Bufco was for avoiding the collective bargaining agreements that Corbett was obligated to enforce 291 NLRB No 136 1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD She also found that the Board has jurisdiction over Respondents Corbett and Bufco by virtue of Cor bett s membership in the multiemployer association and that the appropriate units under both the inside and residential collective bargaining agreements with the Union consisted of all employees em ployed by all members of the association perform ing work under the respective agreements The judge further found that the Union enjoyed 9(a) status as the bargaining representative through the conversion and merger doctrines and that the bar gaining agreements were not terminable at will be cause both of them were succeeding agreements We have decided to affirm the judge in part and reverse in part for the reasons set forth below After the judge s decision the Board decided in John Deklewa & Sons 2 to abandon the conver lion and merger doctrines relied on by the judge as they were applied to collective bargaining agreements/relationships permitted under Section 8(f) of the Act 3 In so doing the Board held that, in light of the legislative history of Section 8(f) and the prevailing practice in the construction industry, the party to an 8(f) relationship who asserts the ex istence of a collective bargaining relationship under Section 9(a) has the burden of proving the exist ence of that relationship through either (1) a Board conducted representation election or (2) a union s express demand for and an employer s grant of recognition based on a clear showing of support for the union among a majority of the em ployees in an appropriate unit However the Board also held in Deklewa that a union signatory to an agreement permitted by Section 8(f) acquires limit ed status as a representative under Section 9(a) to the extent that the 8(f) agreement may not be uni laterally repudiated during its term and may be en forced during its term under the provisions of Sec tion 8(a)(5) and Section 8(b)(3) The Board further held in Deklewa that in deter mining an appropriate unit for election purposes the Board will no longer distinguish between per manent and stable and project by project work forces and that single employer units will normally be appropriate The merger doctrine was rejected in 8(f) cases because it can operate to bind a single employer and employees to full 9(a) status without providing employees the opportunity to express a representational preference because Section 8(f) 2 282 NLRB 1375 (1987) 9 Under the conversion doctrine a collective bargaining relationship/ agreement permitted under Sec 8 (f) could convert into one cognizable under Sec 9(a) simply on the basis of a showing that during a relevant period the union enjoyed the support of a majority of the employers employees in an appropriate unit Under the merger doctrine the em ployer and the union could merge employees into a multiemployer unit eliminates majority status as a prerequisite for sign ing a contract The Board clearly stated however that it did not imply that multiemployer associa tions and bargaining could no longer be deemed appropriate in the construction industry Thus for the reasons set out in greater detail in Deklewa supra the Board decided to apply the following principles in 8(1) cases (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 employers 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 Further the Board has specifically rejected the proposition relied on by the judge that Section 8(f) applies only to the situation in which parties enter into an initial contract and not to succeeding contracts and has overruled those cases that estab lashed that proposition Brannan Sand & Gravel Co 289 NLRB 977 980 fn 12 (1988) 4 Accordingly we turn to consideration of the facts in light of Deklewa First we adopt the judges finding that the Board properly has jurisdiction in this proceeding based on Respondent Corbett s membership in the NECA chapter multiemployer bargaining group 5 We also adopt the judges findings which she premised in large part on her credibility determina tions that Bufco is the alter ego of Corbett Elec tnc that the two companies constitute a single em ployer and that the Board also has jurisdiction over Bufco 6 Next applying the principles of 4 Member Higgins agrees with the conclusion stated in fn 12 of the Boards decision in Brannan that R J Smith Construction Co 191 NLRB 693 (1971) overruled the proposition set forth in Eastern Wash ington Builders 162 NLRB 476 ( 1966) and subsequent cases that Sec 8(f) applies only to the situation in which parties are entering into an mm teal contract He does not however express an opinion on the Board s application in Brannan of the holdings of Deklewa to pre-1959 bargaining relationships because that issue has not been raised in this case See Stack Electric 290 NLRB 575 576 (1988) s In agreeing with the judge s finding that Bufco is the alter ego of Corbett and that it was reactivated to enable Corbett to avoid its collec tive bargaining agreements with the Union we do not rely on the j udge s comments concerning lack of formal education of Mark Corbett or that he had not run his own business prior to 1983 The record shows that Mark Corbett had become a journeyman electrician through the Union s apprenticeship program had been in the trade for 11 years had been a supervisor at Corbett and an officer in both Corbett Electric and Bufco In adopting the judge s findings however we note particularly as did Continued BUFCO CORP Deklewa and Brannan we find it clear that the col lective bargaining relationship between Respondent Corbett and the Union was entered into without regard to whether the Union had the support of a majority of the employees The record shows that the Respondents employees at no time designated the Union as their collective bargaining represents tive by means of a Board conducted election nor is there any contention that the Union requested or was granted recognition based on a showing of ma Monty support We therefore find that there has been no showing that the agreements between Re spondent and the Union were anything other than relationships governed by Section 8(f) and that the appropriate units remained those of Respondent's employees Under the first principle of Deklewa the collec tive bargaining agreements in effect here although governed by Section 8(f) are nevertheless normally enforceable through the mechanisms of Sections 8(a)(5) and 8(b)(3) under the strictly limited 9(a) status that the Union enjoys during the term of that agreement absent some exception not present here 8 Hence Respondent Corbett and its alter ego Bufco were not privileged to repudiate or fail to comply with the inside agreement with the Union effective June 10 1982 through March 31 1985 or the residential agreement with the Union effective October 1 1981 until September 30 1983 during the term of those agreements 9 Accordingly we find that Respondent Corbett Electric violated Section 8(a)(5) and (1) of the Act by repudiating and thereafter refusing to abide by its collective bargaining agreements with the Union since about July 2 1982 that Corbett Electnc/ Bufco Corp similarly violated the Act beginning about January 1 1983 and by transferring electn cal work from Corbett to Bufco in order to avoid Corbett s obligations under the collective bargain ing agreements then in effect 10 the judge that Bill Corbett testified that he decided Corbett would become inactive about December and that that decision probably co incided with his problems with the Union (the original charge was filed on December 9 1982) Bufco began its new operations as an electrical contractor on January 1 1983 with its only personnel having been on Corbett s payroll in December Bill Corbett began soliciting business for Bufco and on the Crane Naval Depot job that he thereafter performed as Corbett Electric he used Bufco employees Further in January Bufco began using Corbett s tools trucks and equipment under an oral agree ment for an amount that Mark Corbett testified was more or less kept open Bill Corbett testified that Mark could use the equipment for nothing At the time of the hearing Bufco and Corbett Electric were using the space previously used by Corbett r Stack, supra at 577 Deklewa supra 8 Deklewa supra, Cf Stack Electric supra at 577-578 (no obligation to bargain or enforce contract for single person unit) 9 Reliable Electric Co 286 NLRB 834 fn 15 (1987) io The judge found that the transfer of work from Corbett to Bufco also violated Sec 8(a)(3) We find it unnecessary to pass on this finding because it would not in any way affect the remedy or Order THE REMEDY 1017 Having 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 whole as prescribed in Ogle Protection Services, 183 NLRB 682 (1970) and Kraft Plumbing 252 NLRB 890 (1980) 11 employees for any losses they may have suffered as a result of the Respondents failure to adhere to the inside and residential agreements then in effect from about January 1 1983, until their expiration 12 with interest as computed in the manner prescribed in New Horizons for the Retard ed 13 ORDER The National Labor Relations Board orders that the Respondents Corbett Electnc Co and Bufco Corp Evansville, Indiana their officers agents successors, and assigns shall 1 Cease and desist from (a) Withdrawing recognition during the term of a collective bargaining agreement from Internation al Brotherhood of Electrical Workers AFL-CIO Local 16, as the exclusive collective bargaining representative of the Respondents employees cov ered by the agreement (b) Refusing to adhere to or transferring work to avoid the 1981-1983 residential and 1982-1985 it The judge ordered a quarterly computed backpay remedy As we find that Bufco is the alter ego of Corbett that the two entities constitute a single employer and that the appropriate units include the employees of both companies covered by the inclusionary language of the residential and inside agreements with the Union we conclude that the appropnate remedy is to require Respondent to apply the contracts retroactively and to make its employees whole for any losses they may have suffered as a result of Respondents failure to apply the contracts When as here the amounts due employees result from a Respondents repudiation and fail ure to apply the terms of a collective bargaining agreement and does not involve cessation of employment status or interim earnings a quarterly computation is unnecessary and unwarranted is As noted above the original charge in this proceeding Case 25- CA-15111 was filed against Respondent Corbett Electnc on December 9 1982 Thereafter the parties in February 1983 entered into a settlement agreement under which Respondent Corbett made whole its employees by making the appropriate fund contributions The General Counsel con cedes that Corbett made all those payments that had not been made for 1982 and Bufco began operating as an electrical contractor about Janu ary 1983 13 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 US C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) Because the provisions of employee benefit fund agreements are van able and complex the Board does not provide at the adjudicatory stage of the proceeding for the addition of interest at a fixed rate on unlawfully withheld fund payments Therefore any additional amount owed regard ing fringe benefit and pension funds shall be determined in accordance with Merryweather Optical Co 240 NLRB 1213 1216 fn 7 (1979) 1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD inside collective bargaining agreements with the Union until their September 30 1983 and March 31 1985 expiration dates (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) Make whole employees covered by the rest dential and inside agreements in the manner set forth in the remedy for any losses they may have suffered as a result of the Respondents failure to adhere to the contracts until they expired on Sep ember 30 1983 and March 31 1985 (b) 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 (c) Post at its Evansville Indiana office copies of the attached notice marked Appendix 14 Copies of the notice on forms provided by the Regional Director for Region 25 after being signed by the Respondents authorized representative shall be posted by the Respondent immediately upon re ceipt and maintained for 60 consecutive days in conspicuous places including all places where no tices to employees are customarily posted Reason able steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (d) Sign and return to the Regional Director suf ficient copies of the attached notice marked Ap pendix for posting by International Brotherhood of Electrical Workers AFL-CIO Local 16 if will ing in conspicuous places where notices to em ployees and members are customarily posted (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply MEMBER JOHANSEN concurring I fully agree with my colleagues in the result' and in application of the principles of Deklewa 282 NLRB 1375 (1987) Additionally I note that re cently in Brannan Sand & Gravel Co 289 NLRB 977 (1988) the Board unanimously rejected conten tions that construction industry collective bargain ing relationships originating before the enactment 14 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 of Section 8(f) should be treated in the same manner as relationships in industries not covered by Section 8(f), and held that the Board will find full 9(a) Status with respect to all construction in dustry bargaining relationships only if the signatory Union has been certified following a Board election or has been recognized on the basis of an affirma tive showing of majority support Id at 979 (and see discussion at 980) Thus as the Board reiterat ed in Brannan the legislative history fully set forth in Deklewa demonstrates that prior to the 1959 amendments the established practice in the con struction industry of employers recognizing and en tering into coilective bargaining agreements with unions even before any employees were hired had become so widespread that Congress deemed it necessary to add Section 8(f) to the Act because the Board s application of Section 8(a)(2) to the in dustry was resulting in substantial instability in the industry by the invalidation of established industry practices Brannan supra at 979-980 citing Deklewa, supra, at 1380 Further in rejecting the argument that there should be another way to es tablish 9(a) status in the construction industry the Board noted that its decision in R J Smith Con struction Co 191 NLRB 693 (1971) had implicitly overruled the proposition set forth in Eastern Washington Builders 162 NLRB 476 (1966) that Section 8(f) applies only to the situation in which parties enter into an initial contract and not to suc ceeding contracts Thus the Board in Brannan ex pressly overruled that case as well as Williams En terprises 212 NLRB 880 (1974) and Dallas Building Trades Council 164 NLRB 983 (1967) relied on by the judge in this case 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 repudiate the October 1 1981- September 30, 1983 residential and the June 10 1982-March 31 1985 inside collective bargaining agreements between our Company and Internation al Brotherhood of Electrical Workers AFL-CIO Local 16 during the terms of those agreements 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 BUFCO CORP 1019 WE WILL make whole with interest the unit employees who have incurred losses of wages and benefits becaase of our failure to abide by the terms and conditions of the collective bargaining agreements between our Company and the Union until the residential agreements expiration on Sep tember 30 1983 and the inside agreements expira tion on March 31 1985 The appropriate unit is Our employees who perform work which is described in and covered by the October 1, 1981 Residential Wiring Agreements and those employees who perform work which is described in and covered by the June 10 1982 Inside Electrical Construction Agreement, each such agreement being between the South em Indiana Chapter of the National Electrical Contractors Association and Local Union No 16 of the International Brotherhood of Electn cal Workers WE WILL pay to the appropriate funds the health and welfare pension apprentice training, and other contributions required to be paid by the collective bargaining agreement or agreements to which we have been bound BUFCO CORP AND CORBETT ELEC TRIC COMPANY, INC Walter Steele Esq for the General Counsel Cecil Davenport Esq of Louisville Kentucky for the Respondents DECISION STATEMENT OF THE CASE 1 NANCY M SHERMAN Administrative Law Judge These consolidated cases were heard before me in Ev ansville Indiana on October 31 and November 1 1983 The charge in Case 25-CA-15111 was filed on Decem ber 9 1982 by International Brotherhood of Electrical Workers Local 16 (the Union) against Corbett Electric Company Inc (Corbett Electric) The charge in Case 25-CA-15547 was filed by the Union on May 25 1983 against Bufco Corp (Bufco) The charge in Case 25- CA-15570 was filed by the Union on June 3 1983 against Corbett Electric The original complaint was issued on July 8 1983 and amended on September 6 and October 24 1983 The complaint in its final form alleges inter alia that Corbett Electric and Bufco are alter egos and a single employer within the meaning of the Act The complaint further alleges that at all times material Corbett Electric and (by virtues of the alleged alter ego status) Bufco have been employer members of Evansville Division Southern Indiana Chapter NECA Inc (the Associa tion) The complaint goes on to allege that after the As sociation and the Union had executed two collective bar gaining agreements covering two separate appropriate multiemployer units each of which units included em ployees of Corbett Electric and other employers Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) was violated since about July 2 1982 when Corbett Electric submitted an untimely revocation of its member ship in the Association and advised the Union that Cor bett Electric was canceling its assent to both bargaining agreements withdrew its recognition of the Union as the exclusive bargaining representative of the employees in both units and without the Union s agreement to such conduct and without affording prior notice and bargain ing opportunity to the Union discontinued contractually required payments to various benefit plans and changed employees cortractually required wage rates The com plaint further alleges that Section 8(a)(5) and (1) of the Act was violated when Corbett Electric through Bufco refused since early 1981 [sic] to abide by the two bar gaining agreements between the Union and Association (including fringe benefits payments ) and in early 1983 withdrew recognition from the Union Also the com plaint alleges that Section 8(a)(3) (5 ) and (1) of the Act was violated when Corbett Electric unilaterally decided to transfer its work performed by the unit employees in both units to Bufco for the purpose of avoiding obliga tions under those agreements and without the Union s consent or affording the Union opportunity to bargain over the transfer On the entire record including the demeanor of the witnesses and after due consideration of a brief filed on behalf of Bufco and Corbett Electric and a brief filed on behalf of counsel for the General Counsel I make the fol lowing I _ FINDINGS OF FACT I JURISDICTION Corbett Electric is an Indiana corporation with an office in Evansville Indiana At all material times until at least July 2 1982 Corbett Electric was engaged in the electrical contracting business was a member of the As sociation had authorized the Association to bargain on Corbett Electric s behalf and employed employees who were covered by multiemployer collective bargaining agreements between the Association and the Union Bufco is an Indiana corporation with its principal office and place of business in Evansville Indiana where it is engaged in the business of providing and performing general construction and electrical contracting and relat ed services I The Association is an employer within the meaning of Section 2(2) (6) and (7) of the Act One of its members is Swanson Nunn Electric Corporation Swanson Nunn received goods in excess of $50 000 from sources directly outside Indiana during the year preceding October 31 1983 and is an employer within the meaning of Section 2(2) (6) and (7) of the Act Whether Corbett Electric and Bufco are engaged in commerce within the meaning of the Act is related to the merits of some of the unfair labor practice allega tions and will be determined concerning such allega tions 1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II THE ALLEGED UNFAIR LABOR PRACTICES A Corbett Electric s Bargaining History Before 1982 The Union represents two kinds of electricians- inside electricians and residential electricians Inside electricians perform heavy commercial industrial and construction type electrical work on such structures as schools factories restaurants and office buildings and also perform work on outside lighting street lighting and stoplights Residential electricians work on single family residences and on apartment buildings whose height does not exceed three stones About 1960 Bill W Corbett began to operate an elec trial contracting business as an individual proprietor About 1963 he joined the Association Before June 1973 Bill Corbett signed as president of Corbett Electric Co a document entitled Letter of Assent A and reads in part as follows In signing this letter of assent the undersigned firm does hereby authorize [the Association] as its col lective bargaining representative for all matters con tained in or pertaining to the current approved Inside labor agreement between the [Association] and [the Union] This authorization in compliance with the current approved labor agreement shall become effective on the 1st day of June 1973 It shall remain in effect until terminated by the under signed giving written notice to the [Association] and the [Union] at least one hundred fifty (150) days prior to the then current anniversary date of the aforementioned approved labor agreement On an undisclosed date before October 1 1973 Bill Corbett signed as president of Corbett Electric Co a di vision of Bufco Corp a document identical to the June 1973 document except that the word Residential ap pears instead of the word Inside and the effective date of the current approved agreement is specified as Oc tober 1 1973 Both documents were also signed by the Union s then business manager Bufco was incorporated in 1970 Until 1977 it was pn manly engaged in single family and multifamily housing and development Between 1973 and 1977 Bill Corbett operated Corbett Electric as a division of Bufco Corbett Electric had its own employees and records but priman ly did all the electrical work for buildings that Bufco constructed In 1977 Bill Corbett incorporated his electrical con tracting business as Corbett Electric Company Bill Cor bett has at all times been that corporations sole stock holder At the time of the hearing on October 31 to No vember 1 1983 Bill Corbett was Corbett Electric s president and his daughter Rebecca Miller was its sec retary treasurer Until at least June 30 1982 and for 3 or 4 years prior Corbett Electric s vice president was Mark Corbett who is Bill s son and Rebecca Miller s brother Until at least July 1982 Corbett Electric continued to operate the business in the same manner as it had been operated as a sole proprietorship However because in 1977 Bufco stopped constructing houses Corbett Elec tnc thereafter performed electrical work for firms other than Bufco After Corbett Electric Company had been incorporat ed no new letter of assent was signed so far as the record shows However Bill Corbett testified in October 1983 that Corbett Electric had been a member of the Association for about 20 years-that is for a period both before and after the 1977 incorporation The parties stip ulated that for 10 years prior to May 31 1982 Corbett Electric Company was a party through its membership in the Association to a series of collective bargaining agreements covering inside employees and another series of collective bargaining agreements covering residential employees Bill Corbett testified that from 1973 through June 1982 it was basically true that he agreed to be bound by the Associations contracts with the Union and abided by their terms The parties stipulated in sub stance that as to inside employees and residential em ployees respectively a unit consisting of all such em ployees employed by employer members of the Associa tion including Corbett Electric was appropriate for the purposes of collective bargaining within the meaning of Section 8(a) of the Act for at least the 10 years up until July 2 1982 i On December 11 1981 the Association and the Union executed as to residential electricians in the employ of certain Association members a collective bargaining agreement effective by its terms from October 1 1981 until at least September 30 1983 and from year to year thereafter absent written notice by either party within 90 days prior to the anniversary date of any year of a desire to terminate the agreement As previously noted the parties stipulated that through the Association Cor bett Electric Company was a party to this contract until at least the end of May 1982 On a date not shown by the record the Association and the Union executed a collective bargaining agreement covering inside employ ees of certain Association members This agreement ex pired at the end of May 1982 As previously noted the parties stipulated that Corbett Electric was a party to this contract B Events that Led to Corbett Electric s Purported Cancellation of Both Contracts and Withdrawal of Recognition from the Union About February 1982 the Association and the Union began negotiations for a new inside contract to replace the contract that was to expire about the end of May 1982 The Associations bargaining committee initially in cluded Bill Corbett who resigned from the committee in May 1982 because he was temporarily out of the State and did not have enough time to discharge his duties on the committee The Union s bargaining representatives were appointed by the union president who is elected by the membership On June 8 or 9 1982 the Association and the Union reached an oral agreement to renew the expiring agree ' The actual stipulation was couched in terms of the complaint which in turn is couched in terms of the units set forth in the respective con tracts See Conclusions of Law 3 and 4 infra BUFCO CORP ment with certain agreed on changes to be effective June 10 1982 The new agreement was ratified by the union membership on June 10 All union members who worked under a bargaining agreement that covered inside electricians were eligible to vote whether they worked for an Association member who was part of the multiemployer unit About 300 members attended the ratification meeting and about 200 of them cast ballots favoring ratification of the 1982-1985 inside contract The proportion of eligible members who participated in the vote is unclear in the record 2 The record fails to show how many Corbett Electric employees were eligi ble to vote or how many (if any) voted The Associa tion s members were informed of the new economic terms of the agreement in time for them to be reflected in the paychecks issued to the employees on June 18 1982 for the payroll week ending June 11 1982 A formal complete bargaining agreement to be effective through March 31 1985 was executed on June 10 1982 On or before June 28 1982 Bill Corbett received a copy of this contract After reading it he decided that for economic reasons he could not live up to it By letter dated June 28 1982 from Bill Corbett to Associa tion Manager William N Cooper Corbett Electric stated This is to inform you as of June 30 1982 our intent to terminate our membership in the Association By letter from Bill Corbett to Union Business Manager Malvin E Hoover Sr dated July 2 1982 Corbett Elec tric stated You are herewith informed I have terminated my membership in the [Association] effective June 30 1982 The purpose of termination my trade associa tion membership is to sever my participation in the multi employer bargaining unit of the [Association] This letter will also serve to notify you of my in terest and desire to cancel my letter of assents des ignated A for the both the inside and residential labor agreements between Corbett Electric Compa ny Inc and [the Union] effectively [sic] immediate ly In a reply letter dated July 20 1982 with a courtesy copy to Cooper Hoover stated In your letter you refer to your terminating your membership in the [Association] This is a decision that has no bearing on the re maining relationship with the Union As to your desire to conceal your Letters A of Assent due to the untimeliness of your request it is not acceptable Late that same month Hoover asked Bill Corbett by telephone his intentions about making fringe benefit pay 2 Union Business Agent Hoover testified that the number of employees who work for Association members varies from 350 to 500 and the number who work for non Association members who contract with the Union vanes between 10 and 300 It is unclear whether his figures en compassed only inside electricians or both inside and residential electn cians I am inclined to think that his figures encompassed both groups Nor is it clear whether union members on the out of work list were eligible to vote 1021 ments continuing to be a member of the Association and continuing to be a signatory to the Union s agree ment Bill Corbett said that he had no employees at Cor bett Electric and did not intend ever to have any em ployees of Corbett Electric He further said that he could not Buy a job under the union contract because the wages were getting too high and he could not com pete C Corbett Electric s Failure to Honor the Bargaining Agreements Between the Union and the Association After sending Hoover the July 2 1982 letter purport edly canceling the letters of assent Corbett Electric dis honored both the 1981-1983 residential contract and the 1981-1985 inside contract More specifically Corbett Electric did not make the dues deductions called for by the checkoff clauses in each contract and failed regard ing some employees to pay the wage scales contractually called for Moreover during the remaining months of 1982 Corbett Electric without consulting the Union failed to make contributions to the various funds as re quired by both of these contracts such as the pension health and welfare insurance and vacation funds D The Settlement Agreement Executed by Corbett Electric in Case 25-CA-15111 As previously noted on December 9 1982 the Union (through Business Agent Hoover) filed against Corbett Electric a charge docketed as Case 25-CA-15111 The charge alleged inter alia that Corbett Electric had vio lated Section 8(a)(1) and (5) of the Act by refusing to follow the bargaining agreement and by unlawfully at tempting to terminate it Thereafter Corbett Electric and the Union executed an informal settlement agreement that was approved by the Regional Director on Febru ary 25 1983 In this agreement Corbett Electric under took inter alia to give effect to both bargaining agree ments to bargain with the Union to make employees whole for any loss of wages or other benefits they may have suffered in consequence of Corbett Electric s refus al to honor these agreements and to make certain pay ments including (and perhaps consisting of) payments into the contractually established funds The agreement contains the clause By entering into this Settlement Agreement the Charged Party does not admit that it has engaged in any violation of the Act Corbett Electric in fact made certain payments as called for by this agree ment After January 1 1983 Corbett Electric filed blank re ports with the contractually established funds About February 1983 Union Representative Hoover found out that Bill Corbett had not made any contributions to the foregoing funds for the month of January 1983 When Hoover asked Bill Corbett about the matter he replied that there would be no more contributions to the funds that the well had run dry and that the Union had got all it was going to get Since the payroll period ending February 6 1983 and at least until November 1983 Bill Corbett has been the only person listed on Corbett Elec tric s payroll 1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD E The Resuscitation of Bufco Bufco was incorporated in 1970 3 As previously noted until 1977 it engaged in single family and multifamily housing and development Thereafter Bufco was dor mant until at least August 1 1982 Before 1983 Bufco employed no electricians Bufco as such never had a bar gaining relationship with the Union Between 1970 and at least August 1 1982 Bill Corbett was Bufco s president was on its board of directors and owned all of its 100 shares For a period that began no later than July 2 1980 and continued at least until August 1 1982 the other officers consisted of Bill Cor bett s son Mark Corbett and his daughter Rebecca Miller who is Mark Corbett s sister 4 As of August 1 1982 Bufco had no assets no bank account and no ac counts receivable Bill Corbett credibly testified to the belief that as of that date the corporation had no salable value Bill Corbett testified that in the latter part of 1982 his son Mark Corbett expressed a desire to go into buss ness for himself Bill Corbett went on to testify that the two discussed the matter for 4 to 6 months and Bill then offered to give Bufco to Mark if he wanted it Bill Corbett testified and Bufco s corporate minutes recite that on August 1 1982 he endorsed 49 shares of his stock to his wife Lucinda Corbett and the remaining 51 shares to Mark Bill s son from an earlier marriage No payment was made for this stock The corporate minutes further recite that on that same day Bill Corbett resigned as president and director The corporate min uses go on to recite that on that day Mark and Lucinda named themselves as directors and as directors named Mark as president and treasurer and Lucinda as vice president and secretary Mark testified that he did not become president of Bufco until January 1 1983 Bufco s corporate minutes also state that on August 1 1981 Bill W Corbett opened a discussion con cernmg his desire to rid himself of the worries of [Bufco] and to devote himself solely to the conduct of his electrical business The said Bill W Corbett advised Mark A Corbett and Lucinda A Corbett that he was suffering a health problem which seemed to stem from his financial problems and Mark A Corbett and Lucinda A Corbett con curred in his opinion that if he devoted himself to Corbett Electric Company doing much of the physical labor of Corbett Electric Compary him self that his health condition would probably im prove Bill Corbett testified that in June and July 1982 he purportedly withdrew from the Association and purport edly canceled the bargaining agreements because Corbett Electric had been losing money for so many years the agreements (or at least the inside agreement) forbade Bill 3Its original corporate name was Bufco Corp On an undisclosed date before December 1 1980 its name was changed to Bufco Con struction Co In January 1983 steps were initiated to change its name back to Bufco Corp the name that apppears in the pleadings 4 During the first part of this period her surname was Austin Corbett to perform any work with his hands 5 and he be lieved that if he got out of the Union and started work ing with his hands he could start making a living again When asked why he resigned from Bufco s presidency he replied It was an inactive corporation I felt I had to unload some problems I couldn t see continuing in an electrical business in the capacity that I had in the past I developed possible ulcers last winter [the winter of 1982-1983] This was preceding that but I of fered to [Mark] the availability of this existing corpora tion If he wanted to be in the electrical business he was welcome to use this corporation Bill Corbett went on to testify Q Well why didn t you give him Corbett? A Why didn t I give him Corbett? Because of the involvement with the local unions Q So you gave- A He didn t want Corbett Q So you gave him Bufco to avoid the problems with the Union A Not for me I didn t avoid them He is a big boy and he can make his own decisions and he had no interest in Corbett Electric Company and the in vovlement that I was in Q But you gave him Bufco as opposed to Cor bett A I made it available to him And if he wants to be a union contractor he can be a union contractor Mark Corbett testified that he was sure that the only reason his father resigned from Bufco s presidency was that Mark wanted to go into business and this was a way for him to get into business Bufco s corporate minutes recite that on October 28 1982 Bill Corbett attended a meeting of Bufco s board of directors-that is his wife and his son Mark-during which they discussed a contract to lease to Bufco all vehicles tools and equipment including office equipment now owned by Corbett Electric Company Inc Corbett Electric Company Inc to have priviledge us [sic] of all said equipment to complete uncompleted con tracts during 1983 after which time all items are the ex clusive control [sic] of Bufco per contract agree ment Corbett Electric to submit to Bufco a contract agreement within 30 days Thereafter Bill and Mark Corbett executed such a lease in consideration of 2% of [Bufco s] gross sales for fiscal year 1983 for 1 year with three 1 year options 6 The written lease (pre pared by Bill Corbett) recites that the parties have here unto set their hands and seals the day and year first above written The date on the document is November 5 1982 However the lease was not in fact executed until several weeks before the hearing which was held The 1982-1983 inside agreement provides (art III sec 3 02) No member of any firm signatory to this agreement shall himself perform any manual electrical work Bill Corbett testified that he did not know whether the residential agreement contained such a provision (it does not) but that this was not the major part of Corbett Electric s work 6 The lease contains no specific provision for determining the amounts due after the fiscal year 1983 BUFCO CORP 1023 on October 31 and November 1 1983 7 Mark Corbett testified that at the end of 1982 Corbett Electric (through Bill Corbett) and Bufco (through Mark Cor bett) reached an oral agreement that I was to use trucks tools anything to perform my business for an amount which was more or less left open Mark fur ther testified on November 1 1983 that the leased equip meat was worth $20000 that his father had not given him a list of this agreement and that no payments had ever been made under the oral agreement It s set up for an end of the year Bill Corbett testified that Mark Cor bett could use my equipment for nothing F The 1983 Operations of Bufco and Corbett Electric Bill Corbett credibly testified that Bufco never per formed any electrical work before January 1983 when (according to Mark Corbett) Bufco began operations Bill Corbett further credibly testified in October and No vember 1983 that Bufco was now doing the same type of work that Corbett Electric did and that employees of Bufco essentially perform the same type of work as did the employees under Corbett Electric Bill Corbett fur ther credibly testified that after the end of 1982 he solic ited electrical work for Bufco and tried to induce Cor bett Electric s former customers to have their work per formed by Bufco Under the business name Marbeck Development Com pany Bill Corbett owns an office complex at 2305 North Kentucky in Evansville Indiana that houses a number of different business tenants Among the businesses that occupy these facilities are Marbeck Corbett Electric and Bufco Corbett Electric has always used this address Bufco has used the North Kentucky address as its corpo rate address since its 1970 incorporation but so far as the record shows did not occupy any significant amount of floor space between 1977 and at the earliest August 1982 At the time of the fall 1983 hearing Bufco was renting from Marbeck the same floor space that Corbett Electric had rented from Marbeck until August 1 1982 at the earliest At the time of the fall 1983 hearing Bufco and Corbett Electric were sharing the space that had been rented by Corbett Electric from Marbeck before 1983 and were sharing the office and contracting equip meat owned and used by Corbett Electric before 1983 Corbett Electric as such had no telephone number Bill Corbett transferred to Bufco the telephone number that before 1983 had been used by Corbett Electric Bufco paid the utilities for Corbett Electric and Marbeck Before 1983 all of Corbett Electric s clerical work had been performed by Lucinda Corbett (Bill Corbett s wife and Mark Corbett s stepmother) Rebecca Miller (Bill Corbett s daughter and Mark Corbett s sister) and Larry Bish After 1982 these same individuals performed all the clerical work for Corbett Electric Bufco and Mar beck 8 During 1982 Corbett Electric s supervisors were Bill and Mark Corbett Mark Corbett explained that the lease had not been signed earlier be cause our books were with our lawyers 9 Bill Corbett testified that none of these three firms ever paid Lucinda Bill Corbett Mark Corbett and Thomas Strupp (also referred to in the record as Scrupp and Scruggs) were on Corbett Electric s last 1982 payroll Bill Corbett testi feed that from January 1 to about March 1983 he spent 95 percent of his time working for Bufco Mark Corbett and Strupp were employed by Bufco beginning January 1 1983 All three of them worked as electricians for Bufco in 1983 There is no unequivocal evidence that anyone else ever worked for Bufco as an electrician 9 Mark Corbett was born in December 1954 He has no academic education beyond the high school level After leaving high school he was an apprentice electrician for 4 years and then became a journeyman When working for Corbett Electric he acted as a supervisor Before his 1983 association with Bufco Mark Corbett had never run his own business As previously noted Bill Corbett testified that be tween January and March 1983 he spent about 95 per cent of his time working for Bufco He credibly testified that he had managed Corbett Electric for about 23 years that beginning no later than January 1983 he counseled Mark Corbett about job related matters he is my son and we have a close relation and that when Mark asked him to help on a job he worked on that job if he could Mark Corbett testified that Bill Corbett was more or less a foreman on Bufco s Cabucca Restaurant job (also referred to in the record as the Carry out job) Union Representatives Hoover and Richard Neukam both credibly testified that in late July 1983 they saw Bill Corbett laying out electrical work for another worker on that job Because of the foregoing testimony the probabilities of the case and demeanor consider ations I do not credit Bill Corbett s and Mark Corbett s testimony that Mark Corbett is Bufco s only supervisor Rather I find that on occasion Bill Corbett also acted as Bufco s supervisor Further to' the extent inconsistent with this finding I do not accept Bill Corbett s testimony that Mark does not consult with him about how jobs should be performed Mark Corbett testified that he hires employees without consulting his father or anyone else Three of Bufco s employees-electrician Strupp estimator Bish and truck driver Clifford Russell-worked for Corbett Electric in 1982 for a period that included its last 1982 payroll period Because of the probabilities of the case and for demeanor reasons I accept Bill Corbett s testimony that although he never hired any employees for Bufco he and Mark Corbett possibly discussed whether to hire some of Bufco s employees although they did not spe cifically discuss each hire 1 Mark Corbett testified that he decides on employee wages without consulting anyone else He had never set wage rates for Corbett Electric For demeanor reasons and because of the probabilities of the case I accept Bill Corbett s testimony that he might be a sounding board about wage scales r Mark Corbett testified that he would deal without consulting with anyone else with problems between the Corbett for her work Rebecca Miller was also unpaid at least by Cor 9 Mark Corbett testified that aboutk four named Bufco employees belt Electric might perform electrical work 1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees and management Mark Corbett had never handled grievances for Corbett Electric There is no evi dence that any grievances ever in fact arose between Bufco employees and management Bill Corbett testified on October 31 to November 1 1983 that Corbett Electric was not currently bidding procuring or going into any forms of business in the electrical field and was not going to do so in the future He went on to testify that after the collection of ac counts receivable payment of taxes and auditing every thing out Corbett Electric would become inactive Ac cording to Bill Corbett his decision that Corbett Electric would become inactive was made in December 1982 and probably coincided with Bill Corbett s problems with the Union Before 1983 Corbett Electric s estimating work was done by employee Bish and its bidding was done by Bill Corbett Bish was on Corbett Electric s last 1982 payroll In December 1982 he resigned from Corbett Electric s employ He was hired by Bufco effective January 1 1983 10 After being added to Bufco s payroll Bish per formed the same kind of estimating work he performed for Corbett Electric Bish maintains an estimators log which regarding each bid shows (among other things) to whom the bid was submitted a description of the work the amount bid and the successful contractor As received into evidence this log lists bids due at various times between December 27 and 28 1982 (while Bish was still on Corbett Electric s payroll) and October 28 1983 This log lists bids on about 190 jobs Of these bids at least six were submitted by Corbett Electric with re spect to jobs where the bids were due on various dates between January 5 and April 8 1983 The log states that of all the bids recorded in the log about 40 were low bids Two of these low bids were submitted by Corbett Electnc Corbett Electric was awarded these two jobs one of which was still incomplete as of October 1 1983 The log numbers the bid jobs consecutively and does not show which bids were submitted by Bufco and which were submitted by Corbett Electric i 1 Corbett Electric s own records for bids due after February 8 1983 are cor related to the job numbers in Bish s log Mark Corbett told Bish to give Bill Corbett any numbers that he wanted to prepare bids to be submitted by Corbett Elec tnc Bish did so and Bill Corbett submitted Corbett Electric s bids on the basis of the numbers supplied by Bish Mark Corbett submitted Bufco s bids which were also prepared on the basis of numbers supplied by Bish Corbett Electric and Bufco never bid on or were award ed the same job As previously noted after the end of 1982 the only person on Corbett Electric s payroll was Bill Corbett In performing the two jobs (the Crane Naval Depot job and the Butler County high school job) which Corbett Elec tric was awarded in 1983 12 Bill Corbett used the two 10 Mark Corbett testified that on January l 1983 he conducted a preemployment interview with Bish but that the interview did not last very long 11 For unexplained reasons the first assigned job number is 83-119 The subsequent jobs are numbered 83-120 83-121 and so forth 12 The Crane Naval Depot bid was due to January 1983 the Butler County bid was due in February 1983 The record fails to show when electricians (Mark Corbett and Tom Strupp) who had appeared on Corbett Electric s payroll at the end of 1982 When working on these jobs Mark Corbett and Strupp were on the payroll of Bufco which billed Cor bett Electric for their services Corbett Electric worked on these jobs pretty well continuously between March 1983 and October 1983 In April 1983 Union Business Agent Hoover asked Bill Corbett whether he was going to make contributions to the various funds concerning employees on the Crane Naval Depot job Bill Corbett replied no Hoover asked him if he had hired any em ployees on that job He replied that he had hired a couple of guys to finish concrete for him in relation to some electrical work he was doing there Hoover asked if Bill Corbett did not think that Mark Corbett (a union member until some time in 1982) should rejoin the Union Bill Corbett emphatically said that this would never happen He further said that Corbett was no longer in business would not be hiring people from the Union Hoover asked Bill Corbett whether Mark Corbett was working on a lounge construction job variously re ferred to in the record as the Back Alley Bar job the Esquire Lounge job and the Scrumps Back Alley Bar job Bill replied yes but stated that Mark was not an em ployee of Corbett Electric Hoover asked who Mark s employer was Bill did not reply The electrical contractor on the Back Alley Bar job with a $35 000 contract was Bufco the lounge owner had never done any business with Corbett Electric That same month Hoover telephoned Glen Miller who owned the corporation for which the lounge was being built Hoover asked Miller whether he owned the Back Alley bar He said yes Hoover asked whether Corbett was doing any electrical work out there Miller said that he was Hoover said that he had labor charges filed against Corbett Electric Bill Corbett was not living up to the settlement agreement and Hoover might file ad ditional labor charges against Corbett Hoover asked for any assistance that Miller could give him to in our terms straighten the work out or whatever Miller said that Hoovers problem was with Corbett and no con cern of Millers 13 On May 31 1983 Union Assistant Business Representative William A Diehl went to the Back Alley Bar jobsite He encountered Mark Corbett who was unloading lighting fixtures from a panel truck whose marking had been removed with something that had left a scar Diehl remarked to Mark Corbett It looks like Corbett has got this job Mark Corbett re plied that he was not working for Corbett anymore Diehl asked him if he was employed by Bufco Mark said yes Mark further said that Corbett Electric no longer had any employees and that all electrical work was being performed by Bufco Diehl said that there was difficulty that there was an NLRB settlement with Cor bett Electric and that Diehl hoped we could get our problems resolved and once again have Corbett living Corbett Electric submitted its successful bids Bish s log lists the Butler County job after nine jobs by and three awarded to Bufco 13 Hoover s uncontradicted testimony about his conversation with Miller was not received to show the truth of Miller s representations about Corbett BUFCO CORP ' 1025 by the agreement That same or the following day Diehl dialed the telephone number that he had previously used to reach Corbett Electric Company and that had previ ously been answered Corbett Electric A female voice answered the telephone Bufco Corbett On various occasions between January 1980 and Sep tember 1982 Corbett Electric performed various jobs for Busier Enterprises which operates a number of retail outlets Corbett Electric contracted directly with Busier for these jobs billed Busier for them directly and was paid directly by Busier Donald Finch who at all rele vant times has been Busier s vice president and general manager has been personally acquainted with Bill Cor bett for 30 years On an undisclosed date in or before February 1983 Finch telephoned Bill Corbett and asked him for an estimate on a job referred to in the record as the I 64 motel wiring job Finch eventually reached an oral agreement with Bill Corbett for the performance of this job which was physically performed in February 1983 by Bill and (perhaps) Mark Corbett On May 19 1983 Bufco sent a bill to Busier for this job totaling about $5800 On June 16 1983 Busier wrote a check in this amount to Corbett Electric which cashed the check On an undisclosed date between May 25 and 31 1983 Bill and (perhaps) Mark Corbett physically performed a job for Busier at Washington Greenriver Road On June 14 1983 Bufco billed Busier $89 for this job On June 23 1983 Busier wrote a check for this amount to Cor bett Electric which cashed the check So far as the record shows Bufco never complained to Busier as to either job that Bufco had not been paid Bufco was set up on Busier s computer in August 1983 Bufco per formed various jobs for Busier in July and August 1983 billed Busier and was paid by it with checks payable to Bufco In early July 1983 when visiting the Cabucca Restau rant job Assistant Union Business Agent Neukam was advised by the foreman on the job Bob Hazelip that Busier was going to own the restaurant that Corbett Electric had done all of Busier s electrical work for a number of years and that Corbett Electric was going to do the electrical work on the Cabucca job 14 Neukam said that the Union was having difficulty with Corbett and that he didn t seem to be using our people any more Neukam asked what Busier representative he should get in touch with about the situation Hazelip re ferred Neukam to Busier Vice President Finch Neukam then returned to the union office and reported Hazelip s remarks to Union Business Representative Hoover During a telephone conversation with Finch on the following day Hoover asked whether Busier was build ing the Cabucca restaurant Finch said yes Hoover asked whether Corbett Electric was doing the job Finch said that it was and that it had done his work for 15 years Finch said that Corbett Electric was a union con tractor and asked what the problem was Hoover said that Corbett had withdrawn or was trying to withdraw from the Union that he was not paying fringe benefits and that he did not consider himself a union contractor 14 Neukam s testimony about what Hazelip told him was not received to show the truth of what Hazelip said Finch said that if Hoover had"a problem it was with Corbett and not Busier 15 Later that day Hoover dialed the number that until about a month earlier he had used to reach Corbett Electric and that had previously been answered Corbett Electric A male answered Bufco Corbett and identi feed himself as Larry Bish Hoover asked to speak to Bill Corbett Bish said that Bill had just left In response to questions by Hoover Bish said that Bufco was doing the Cabucca Restaurant job and that Bish had estimated the job for Bufco 16 Later that month Hoover and Neukam visited the Ca bucca jobsite Parked at the jobsite was a white van loaded with electrical material and tools No company name was on the van itself but a ladder on top of it read Corbett Electric Bill Corbett was laying out electrical work for another worker Neukam asked Bill Corbett who was doing the job He replied that it was being per formed by Bufco 17 Later that day the Union put up a picket line against Corbett at the Cabucca project In consequence of the picket line Finch asked Bill Corbett to leave the project due to the fact that [Busier] had a trade agreement signed with the laborers and with the carpenters Finch had made the arrangements for the electrical work on this job with Bill Corbett orally and testified that as long as I ve known Bill Corbett it really didn t matter to me whether-who was doing the work After Bill Cor bett left the job the electrical work was performed by a member of the Association Hartic Electric Corbett Electric and Bufco bank at separate banks Be tween July 20 and September 27 1983 Bufco wrote checks to Corbett Electric totaling more than $6200 Bufco s president treasurer and 51 percent shareholder Mark Corbett testified on November 1 1983 that this money was sent out by Lucinda Corbett (Mark s step mother Bill s wife and Bufco s vice president secretary and 49 percent shareholder) that he did not know whether he was consulted about these payments and that he did not know what they were for In May and June 1983 Corbett Electric issued checks to Bufco total ing more than $7000 Bill Corbett Corbett Electric s president and sole stockholder testified that he did not know what any of this money was for In January 1983 Corbett Electric issued checks totaling $3000 to Bill Cor bett Bufco account Bill testified that he did not know 15 Hoover s uncontradicted testimony about their conversation was not received to establish the truth of Finch s representations to Hoover Finch testified that he did not recall this conversation but that it could have occurred 16 My findings in this paragraph are based on Hoover s uncontradicted testimony which was not received to show the truth of Bish s representa tions to Hoover I am unclear whether counsel for Corbett Electnc and Bufco questioned the sufficiency of Hoover s testimony to establish that Bish was the speaker Whether he was the speaker has little materiality to the issue 11 My findings in this paragraph are based on Hoover s and Neukam s uncontradicted testimony No objection was advanced to Neukam s testi mony that Bill Corbett said that job was being performed by Bufco Al though a timely objection was advanced to similar testimony by Hoover such a statement by Corbett Electric s president is receivable for its truth regarding Corbett Electric at least See Rule 801(d)(2) of the Federal Rules of Evidence Whether it is similarly receivable against Bufco is dis cussed infra, part II H I 1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD what this money was for and that it would not be safe to say that this money went to the Bufco account Bill Corbett testified that his wife (a Bufco officer who owns 49 percent of its stock) handles Corbett Electric s money on her own and regarding money transfers I trust her judgment Anything she wants to do is fine with me Concerning money transfers to Bufco Bill Corbett testified that Mark Corbett (owner of 51 percent of Bufco s stock) is my son and if he needs some money 111 loan it to him And if I need money I imagine that he 11 loan it to me Bill Corbett further testified that nei ther corporation has ever lent money to the other or acted as a guarantor on a loan to the other The record fails to show Bill Corbett s salary if any from Corbett Electric prior to 1983 Between January 1 and July 3 1983 Corbett Electric paid him a salary of $660 a week Between July 3 and October 16 1983 Bill Corbett continued to receive $660 a week (except that he received $659 50 for the week ending September 18) but these payments were sometimes made by Corbett Elec tnc alone were sometimes made by Bufco alone and were sometimes divided between them 18 Bill Corbett testified that dunng 1983 he worked mostly for Bufco until March and mostly for Corbett Electric thereafter Before he so testified and before counsel stipulated to the foregoing figures on the basis of Bufco s and Corbett Electric s records Bill Corbett testified that he believed Bufco paid him by the hour but money isn t always a factor in a family relation that he did not know what his hourly rate was that he gave his paycheck from Bufco to his wife (Bufco s vice president secretary and bookkeeper) without looking at it that he worked for Bufco between 5 and 80 hours a week whenever the need arises and that he was interested in making Mark s operation successful whether Bill made any money or not The record fails to show what dividends if any were paid by Corbett Electric or Bufco at any time It is undisputed that Bufco has never recognized the Union has never honored the Association contracts and has failed to make the wage payments and fringe benefit payments set forth in those contracts The Union has never made any effort to organize Butco s electricians as such G The Setting Aside of Corbett Electric s Settlement Agreement in Case 25-CA-15111 On July 8 1983 the Regional Director for Region 25 issued under a caption naming Corbett Electric but not Bufco and with the docket number of the first charge (Case 25-CA-15111 naming Corbett Electric only) filed herein a Notice of Withdrawal and Vacation of Settle ment Agreement and Determination to Reinstitute Formal Proceedings This Notice stated in part The parties are hereby notified that because of the Re spondents [sic] noncompliance with the terms of the Set tlement Agreement in the above captioned case and its 18 During 1 week of this period he was paid $660 from Bufco alone during 2 weeks he was paid $660 from Corbett Electric alone His pay ments from Corbett Electric otherwise vaned between $222 75 and $643 50 His payments from Bufco otherwise vaned between $437 25 and $1650 [sic] failure to perform all its [sic] obligations thereunder the approval of said agreement is hereby withdrawn and said Agreement is set aside H Analysis and Conclusions I Whether the settlement agreement executed by Corbett Electric has been breached whether Corbett Electric and Bufco occupy alter ego or single employer status As previously noted on February 25 1983 the Re gional Director approved a settlement agreement execut ed by Corbett Electric and the Union No unfair labor practices can be found based on conduct prior to this set Clement agreement unless there has been a failure to comply with that agreement Interstate Paper Supply Co 251 NLRB 1423 1424-1425 fn 9 ( 1980) 19 With the pos sible exception noted infra fn 29 the General Counsel does not appear to contend that Corbett Electric as such failed to comply with the settlement agreement Rather the General Counsel contends in effect that because the settlement agreement executed by Corbett Electric re quired it to honor the collective bargaining contracts Bufco s admitted failure to do so breached the settlement agreement because Bufco allegedly occupies alter ego or single employer status with respect to Corbett Electric I agree with the General Counsels alter ego conten icon In determining whether Bufco is the alter ego of Corbett Electric the Board must consider a number of factors no one of which taken alone is the sina qua non of alter ego status Among these factors are common management and ownership common business purpose nature of op eration and supervision common premises and equipment common customers i e whether the employers constitute the same business in the same market as well as the nature of the negotiations and formalities surrounding the transaction We must also consider whether the purpose behind the creation of the alleged alter ego was legitimate or whether instead its purpose was to evade responsi bilities under the Act Fugazy Continental Corp 265 NLRB No 165 slip op 4 footnotes omitted (De cember 16 1982) enforced 115 LRRM 2471 (8th Cir 1984) See also Advance Electric 268 NLRB 1001 (1984) NLRB v Campbell Harris Electric 719 F 2d 292 (8th Cir 1983) All Kind Quilting 266 NLRB 1186 fn 4 (1983) R M Tanaka 249 NLRB 238 (1980) enfd 675 F 2d 1029 (9th Cir 1982) 19 This is obviously true regarding Corbett Electric the named party to the settlement agreement The General Counsel s contention that Bufco occupies single-employer or alter ego status concerning Corbett Electric would be inconsistent with any contention by him that the settle ment agreement could not affect Bufco The Regional Director having set the settlement aside no contention is made that any failure to comply with the settlement agreement constituted an unfair labor practice in and of itself Cf NLRB Y All Brand Printing Corp 594 F 2d 926 (2d Cir 1979) BUFCO CORP In the instant case the General Counsels alter ego contention is supported by every single one of these fac tors Although it is true that Bill Corbett is Corbett Elec tric s sole stockholder and that Bufco s stock is owned by Mark Corbett and Lucinda Corbett ownership by the same family constitutes substantially identical owner ship for determining alter ego status Advance Electric supra at 1003 In any event Bufco s stock was admitted ly worthless when Bill Corbett gave it to his wife and son as a gift Further Bufco had uncontrolled access to much if indeed not all of the capital assets that underlay the value of Corbett Electric s own stock More specifi cally Bill Corbett testified that Mark Corbett could use all Corbett Electric s equipment for nothing and that Lucinda Corbett could transfer funds from Corbett Elec tric s account to Bufco s account whenever and for any reason she wanted Moreover the record shows that the Bufco operation was set up for avoiding the collective bargaining agree ments that the settlement agreement obligated Corbett Electric to honor and whose dishonor by Corbett Elec tric to save labor costs constitutes the gravamen of the complaint Thus Bill Corbett testified that he gave Mark Corbett Bufco rather than Corbett Electric Because of the involvement with the local unions Bill Corbett fur ther testified that his decision that Corbett Electric would become inactive was made in December 1982 (the initial charge was filed on December 9) and probably coincided with Bill Corbett s problems with the Union Moreover Mark Corbett testified that he became Bufco s president on January 1 1983 and Bill Corbett testified that he did not offer to give Bufco to Mark until 4 to 6 months after the latter part of 1982 Further Mark Corbett testified that an oral agreement that Bufco would use Corbett Electric s equipment was reached at the end of 1982 The foregoing credible testimony by Bill and Mark Corbett and demeanor considerations lead me to conclude that Bufco s corporate minutes (signed by Mark and Lucinda Corbett) are inaccurate in stating that the signatories received their stock and became Bufco s officers as early as August 1 1982 that Bill Corbett was untruthful in testifying that he gave Bufco s stock to Mark and Lucinda as early as August 1 1982 and that the November 5 1982 date on the Bufco/Corbett Electric equipment lease which was not executed until about September 1983 has no relation to the date when it was decided that Bufco would use Cor bett Electric s equipment Furthermore because Bufco had admittedly been dormant for several years before August 1 1982 the health reasons recited in the minutes and in Bill Corbett s testimony for resigning Bufco s presidency make no sense at all if attached to a resigna tion as early as August 1 and limited to Bufco response bilities alone However the minutes and Bill Corbett s testimony do make some sense (although I do not credit them) if attached to a decision toward the end of 1982 to cease doing an electrical business as Corbett Electric and to set up an electrical business as Bufco The foregoing efforts to conceal the close temporal relationship be tween the alleged decision to cease doing business as Corbett Electric and the decision to start doing business as Bufco lead me to infer that such decisions were not 1027 made for normal business reasons and add further weight to my conclusion that Bufco s electrical business was set up for evading any obligations that Corbett Elec tric might have under the collective bargaining agree ments and as claimed by the Union s December 9 1982 charge This conclusion is further buttressed by Bill Cor bett s efforts to conceal Corbett Electric s 1983 business activities his use of Bufco personnel to perform Corbett Electric s jobs in 1983 and his efforts to induce Corbett Electric s former customers to give their business to Bufco Because Bufco occupies alter ego status regarding Corbett Electric the out of court statements by Bill Cor bett Corbett Electric s president bind Bufco as well as Corbett Electric A fortiori I find that Bufco and Corbett Electric occupy single employer status Such a finding is suffi cient of course to establish that their operations are to be considered as one for purposes of determining wheth er their operations meet the Board s jurisdictional stand ards Sakrete Inc 137 NLRB 1220 (1962) 140 NLRB 765 (1963) enfd 332 F 2d 902 (9th Cir 1964) cert denied 379 U S 961 (1965) I do not otherwise consider whether the results would be affected by a finding that the two corporations constitute a single employer but not alter egos See Victor Valley Heating & Air Condition ing 267 NLRB 1292 (1983) All Kind Quilting supra Holiday Inn of Benton 237 NLRB 1042 (1978) modified 617 F 2d 1264 (7th Cir 1980) Carpenters Local 1846 v Pratt Farnsworth Inc 690 F 2d 489 504-509 (5th Cir 1982) 2 Whether Section 8(a)(5) and (1) of the Act was violated through Corbett Electric a Factual basis for Corbett Electric s 8(f) defense Laying to one side the fact that Corbett Electric is an employer in the construction industry Corbett Electric plainly violated Section 8(a)(5) and (1) of the Act by dis honoring the two collective bargaining agreements be tween the Union and the Association during their effec tive terms and after they had been executed Bonanno Linen Service v NLRB 454 US 404 (1982) NLRB v Iron Workers Local 103 (Higdon Contracting) 434 U S 335 343 ( 1978) Moreover and still laying to one side the construction industry factor Corbett Electric further violated Section 8(a)(5) and (1) by concomitantly pur porting to withdraw from the Association Teamsters Local 378 (Capital Chevrolet) 243 NLRB 1086 (1979) re manded 672 F 2d 741 (9th Cir 1982) decision on remand 266 NLRB 685 (1983) Bill Corbett testified that he sent the withdrawal letter because he had been losing money for 5 years he believed that he could begin to show a profit if he could work with his hands and the inside contract forbade him to do so Plainly such consider ations are msuffi,-ient to warrant dishonoring the con tracts during their effective period and after their execu tion Oak Cliff Golman Baking Co 202 NLRB 614 (1973) 207 NLRB 1063 (1973) enfd 505 F 2d 1302 (5th Cir 1974) cert denied 423 U S 826 (1975) Indeed I am doubtful whether such consideration would have consti 1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tuted a legal defense to a withdrawal that was tendered before a contract had been agreed to but after the date by which timely withdrawals from multiemployer bar gaining must ordinarily be effected Tulsa Sheet Metal Works 149 NLRB 1487 1500-1501 (1964) enfd 367 F 2d 55 (10th Cir 1966) Corbett Electric produced no documentary evidence at all that it ever lost money and no specific evidence to show that it could reasonably expect to lose money if it honored the two bargaining agreements Moreover the 1981-1983 residential con tract did not forbid Bill Corbett to work with his hands the prohibition in the inside contract had also been in cluded in the prior contract Bill Corbett had been on the Association negotiating committee until less than 6 weeks before the final 1982-1985 contract was agreed to he testified that he became aware while so serving that the prohibition would be included in that contract and he did not renounce the contracts until more than 2 weeks after the execution and effective date of the inside contract and 10 months after the effective date of the residential contract Corbett Electric s brief contends however that Sec tion 8(f) operates as a defense to its otherwise unlawful action regarding the contracts and Association member ship Regarding this contention the at least arguably rel evant evidence shows as follows The Union began to represent Corbett Electric s em ployees about 1963 10 years before Bill Corbett as a sole proprietorship doing business as Corbett Electric signed the 1973 letters of assent to becoming a part of the Association unit At no time after the business was incorporated in 1977 were any signed authorization cards secured from Corbett Electric s employees During the period between 1973 and July 2 1982 not all of Corbett Electric s employees were dues paying members of the Union However Bill Corbett s testimony that it was basically true that he abided by the union contracts until mid 1982 leads me to infer that he abided by the contractual union security agreements which all con tained a 30 day grace period Union membership by Cor bett Electric s employees is further shown by the fact that Corbett Electric remitted checked off dues to the Union until July 1982 when it renounced the bargaining agreements Regarding inside electricians the Association and the Union have had a bargaining relationship since 1947 As to residential electricians the Association and the Union have had a bargaining relationship since at least 1968 Corbett Electric and all the Associations approximately 17 or 18 permanent members are contractors associated in the electrical work involved in the construction of buildings The work force of each of the contractors fluctuates with the contractors workload Of each con tractors work force at peak periods one sixth to one fourth of the electricians work for that contractor year round and the rest are hired when called for by the workload Over the 10 years preceding November 1 1983 the respective work force of the three largest As sociation members (which did not include Corbett Elec tric) fluctuated from a high of about 130 to a low of about 50 The percentage fluctuation of most other em ployers work force was much lower (see infra at fn 20) Corbett Electnc however employed between about 22 and about 6 electricians of whom 4 or 5 constituted a stable force who generally stayed with Corbett Elec tnc 20 For at least 10 years before October 1983 bargaining agreements between the Union and the Association con tained clauses that required employer members of the Association to hire employees through the Union s refer ral service if the Union could provide employees Prior to 1982 Corbett Electric pursuant to such clauses used the Union as a hiring hall to obtain Corbett Electric s employees The record does not contain copies of the hiring hall clauses in the Association contracts that were in effect before the effective dates of the contracts in effect in July 1982 At least at the time of the October November 1983 hearing before me as to inside and rest dential electricians all the Union s contracts with non members of the Association were the same as the Union s contracts with the Association The 1982-1985 inside agreement gives first preference in referral to jour neymen inside wiremen who are residents of the geo graphical area constituting the normal construction labor market 21 and who have been employed for a period of at least 1 year in the last 4 years under a collective bar gaining agreement between the parties to this agree ment 22 Second preference is given to other journey men inside wiremen with 4 years experience in the trade third preference is given to applicants who have 2 or more years experience in the trade are residents of the geographical area constituting the normal construc tion labor market (see supra at fn 21) and have been employed for at least 6 months in the last 3 years of the trade under a collective bargaining agreement between the parties to this Agreement (see supra at fn 22) and fourth preference is given to applicants who have worked at the trade for more than 1 year With excep tions not material here applicants are to be referred within each group in order of the dates when they regis tered their availability for employment An applicant who has registered on the out of work list must renew his application every 30 days or his name will be re moved from the list When the Union s inability to refer applicants has caused an employer to hire applicants out side the referral procedure such employees must be re placed as soon as applicants are available under the refer ral procedure 23 The Union is required to select and 20 My findings in the last three sentences are based on credible parts of the testimony of Union Representative Hoover and Bill Corbett As to the work force of employers other than Corbett Electric I regard Hoover as more knowledgeable than Bill Corbett because of the Union s operation of the hiring hall used by all employees However as to Cor bett Electric s operations I regard Bill Corbett as more knowledgeable and more likely to remember than Hoover 21 This is defined as 13 named counties in Indiana one named county in Illinois plus the commuting distance adjacent thereto and is to in clude the area defined by the Secretary of Labor to be the appropriate prevailing wage area under the Davis Bacon Act to which the Agree ment applies 22 It is unclear from the terms of the contract whether such creditable employment could include employment by an employer who is a party to the contract but not in the multiemployer unit 23 The employer is supposed to notify the Union when an employee is hired off the street Normally however the Union is not so notified and Continued BUFCO CORP 1029 refer applicants for employment without discrimination against such applicants by reason of membership or non membership in the Union and such selection and referral shall not be affected in any way by rules regulations By laws Constitutional provisions or any other aspect or obligation of Union membership policies or require ments The foregoing hiring hall provisions are inappli cable to apprentices who are hired through a joint ap prenticeship and training committee on which the Asso ciation and the Union are equally represented The Com mittee has full authority to transfer apprentices from one job or Employer to another The 1981-1983 residential agreement contains rather similar hiring hall provisions including a no discrimina tion undertaking by the Union However the residential agreement contains no requirement that an employer re place employees properly hired outside the referral pro cedure 24 The priority groups are defined as (1) journey men residential wiremen with 2 or more years expen ence in the trade who are residents of the geographical area constituting the normal construction labor market and have been employed for at least 1 of the last 2 years under a collective bargaining agreement between the parties of this agreement (see supra at fns 21-22) (2) other journeymen residential wiremen with 2 or more years experience in the trade and (3) other applicants with 2 or more years experience in the trade Both of these agreements and all the agreements be tween the Union and the Association since at least 1973 include union shop provisions with a 30-day grace period for nonmembers The record contains very little evi dence that these provisions were in fact enforced I infer that they were because of the probabilities of the case Bill Corbett s testimony that he abided by these agree ments until mid 1982 Hoover s testimony that it was merely possible that over a period of time Corbett Electric had had nonmembers on its payroll and the col loquy on pages 251-254 of the transcript (largely direct ed to arrangements for admitting to membership appren tices and off the street employees) which indicates an as sumption by both Hoover and counsel for Bufco and Corbett Electric that nonmembers were ordinarily re quired to join the Union Nor does the record directly show whether regarding employment within the multi employer unit nonmembers periods of employment with various member employers were aggregated to deter mine whether the 30-day grace period had run Cf May fair Coat & Suit Co 140 NLRB 1333 (1963) I infer that they were because of the probabilities of the case and the evidence that a particular employees tour of duty with a particular employer is often less than 30 days 25 Hoover (the Union s business manager since 1975 ) could not recall ever receiving such a notification from Bill Corbett Hoover testified on No- vember 1 1983 that Corbett had hired employees off the street in years past not lately 24 Association Manager Coopers testimony suggests however that this may have been done in practice zs Thus under both contracts an employee goes to the bottom of the out-of work list on being laid off from a job where he has worked more than 40 hours Moreover as previously noted the size of every in dividual contracting employers work force fluctuates substantially The Union s internal rules limit members right to obtain jobs on their own 26 The Union will not refer any applicants to an employer with which the Union has no collective bargaining agreement As previously noted re garding inside and residential electricians all the Union s bargaining agreements (including the hiring hall clauses) are the same as the Association agreements The number of employees working out of the union hiring hall for members of the multiemployer unit vanes between 350 and 500 The number of employees working out of the hiring hall for employers who are not in the multiem ployer unit vanes between 10 and 300 See supra at fn 2 No Board election has ever been conducted among the employees of any of the employer members of the Asso ciation b Legal analysis The record shows that the two multiemployer con tracts that Corbett Electric sought to disavow in mid term were each the most recent of a series of contracts to which Corbett Electric (through the Association) had been bound for at least 10 years as part of a multiem ployer unit In the most recent Board pronouncement that I have been able to find regarding this issue 27 the Board said (Al Bryant Inc 260 NLRB 128 138-139 fn 33 (1982) enfd 711 F 2d 543 (3d Cir 1983) cert denied 464 US 1039 (1984)) With respect to [Respondent employers ] refer ences to Sec 8(f) it is noted that while an employ er would assume no enforceable obligation under such an agreement that consequence does not obtain in the case of a successor agreement or where since execution the Union had acquired ma jonty status among the employees No evidence exists warranting a finding that the [employers as sociation] agreements in question were 8(f) con tracts nor does it appear that if they were [the] re sponsibility [of the Respondent employer member] pursuant thereto was unenforceable See Williams Enterprises Inc 212 NLRB 880 (1974) [enfd 519 F 2d 1401 (4th Cir 1975)] Authorized Air Condition ing Co 236 NLRB 131 134 (1978) [enfd 606 F 2d 899 (9th Cir 1979) cert denied 445 US 950 (1980)] In Williams Enterprises the Board said at 885 The Board has held that an 8(f) contract carries with it no irrebuttable presumption of representative status and that therefore in the absence of specific proof of the Union s majority representation an em ployer may validly cancel an 8(f) contract during its term R J Smith Construction Co 191 NLRB 693 Ye However a member who has been laid off by a particular employer is permitted to return to work with that employer if the member has not signed the out of work list during his layoff 21 The General Counsel s rather sketchy posthearing brief only touches this issue and cites only Wayne Electric 226 NLRB 409 (1976) a pre Higdon case although company counsel cited Higdon during the hearing In Higdon however the Supreme Court substantially followed the Board s prior 8(t) interpretations 1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD [1971] reversed and remanded sub nom Local 150 International Union of Operating Engineers AFL- CIO v NLRB 480 F 2d 1186 (C A D C 1973) 8 However there are exceptions to that general principle Thus the doctrine is applicable only to initial 8(f) agreements and not the succeeding con tracts Bricklayers and Masons International Union Local No 3 (Eastern Washington Builders) 162 NLRB 476 477-479 [(1966) enfd 405 F 2d 469 (9th Cir 1968)] Dallas Building and Construction Trades Council (Dallas County Construction Employers As sociation) 164 NLRB 938 943 [(1967) enfd 396 F 2d 677 (D C Cir 1968)] 9 In the instant case as has been seen the 1972 contract was not an initial 18(f) agreement It was not therefore terminable at will Secondly the doctrine is not applicable where there is independent proof of a union s majority as here Such proof has been found in compliance with a valid union security clause in the contract Thus the Board has held with judicial approval that where the members of the appropriate u'ut were members of the contracting union by reason of compliance with a union security clause in the 8(f) contract the union s majority status continued and the employer was obligated to continue to recog nize and deal with it David F Irvin and James B McKelvy partners d/b/a The Irvin McKelvy Compa ny 194 NLRB 52 [1971] set aside 475 F 2d 1265 (C A 3 1973) 10 In the instant case as we have seen the contract contained a valid union security clause projects to take any unilateral action with respect to wages hours or conditions of employment or to withdraw recognition and confer it on another union [Footnote omitted l However other Board decision that postdate the Su preme Court s Higdon decision (although they precede Bryant) have adopted a somewhat different approach Thus in Carmichael Construction Co 258 NLRB 226 (1981) enfd 728 F 2d 1137 (8th Cir 1984) the Board ex pressly disavowed the administrative law judge s state ment (in which he cited inter alia Williams supra 212 NLRB at 885) that the execution of the succeeding con tracts makes Section 8(f) irrelevant and therefore raise the presumption that the Union was the majority repre sentative of the unit employees Rather in finding that the respondent construction industry employers violated Section 8(a)(5) by withdrawing recognition from the union the Board noted the absence or record evidence that either the initial or any of the subsequent agreements was a prehire agreement under Section 8(f) the absence of record evidence that the union did not enjoy majority support prior to the execution of the initial agreement or at any time subsequent thereto and the employers state ment that their withdrawal or recognition was based on the belief that the union had ceased to represent a ma jority In G M Masonry Co 245 NLRB 267 (1979) the Board adopted (with exceptions not material at this point) an administrative law judge s decision that reject ed the contention that Section 8(f) is applicable only to initial contracts Regarding Eastern Washington Builders supra 162 NLRB 476 and Dallas County Construction supra 164 NLRB 938 (both relied on in Williams and through Williams in Bryant) the judge s decision stated at 271 8 Cf Oilfield Maintenance Co Inc 142 NLRB 1384 1387 [1963) where the Board held an employer bound by an 8(f) con tract until its termination date 9 In the Dallas Building Trades case the Board said Even if we assume arguendo that the agreements in question here were of a type that would in other circumstances be un lawful but for the provisions of Section 8(f) it does not follow that successive renewals of such agreements would be subject to the second proviso to Section 8(f) The Associations con tracts with local labo organizations here were not initial agree ments but the latest fruits of continuing bargaining relationships dating back as far as 1948 As we recently pointed out in Brick layers & Masons International Union Local No 3 (Eastern Wash ington Builders) the legislative history of Section 8(f) re%eals that the Congress envisioned its prehire provisions as applying only to the situation where the parties were attempting to es tablish a bargaining relationship for the first time In the Brick layers case we held that the duty to bargain in good faith not applicable to initial negotiations for an 8(f) contract was en forceable during negotiations for a renewal A parallel situation obtains here Under normal contract bar rules therefore no question concerning representation could have been raised in this case during the period of the agreements material herein See also Mishara Construction Company 171 NLRB 471 [1968] and Island Construction Co Inc 135 NLRB 13 [1962] io Thus the Board said in the Irvin case at p 53 Although we have held that an 8(f) contract standing alone creates no presumption of majority status in the instant case it is conceded that all of Respondent s unit employees were mem bens of District 50 by virtue of compliance with the union secu rity clause in the contract Therefore District 50 was still the representative of employees working on projects which carried over after March 31 where District 50 had majority status and Respondent was thus obligated to negotiate with District 50 over the employees on these projects It was not free at those The Board did not in either case focus on the question of the majority status of the unions in volved vis a vis the bargaining units in question While it is true that in each case the Board suggest ed that the provisions of Section 8(f) were not ad dressed to the types of successive bargaining rela tionships therein involved it also appears that the Board assumed that the unions were the majority representatives in each unit based on the evidence reflecting an unbroken history of successive collec tive bargaining agreements which had been succes lively honored Under such circumstances a majori ty of employees covered by a given union con tract will ordinarily be members of the union in volved by the employers routine resort to the union s hiring hall and routine application of the union security clause if for no other reasons Ac cordingly I do not read those cases as creating a jural presumption of the type urged by the General Counsel herein Under the limited criteria suggested in Bryant the bar gaining agreements in effect in late June 1982 were not terminable at will because both of them were succeeding agreements 28 Accordingly beginning about July 1982 28 Although the Respondent corporations brief suggests otherwise the Higdon contract was not a succeeding agreement in the sense used in Continued BUFCO CORP 1031 Corbett violated Section 8(a)(5) and (1) by dishonoring these agreements withdrawing from the`Association and withdrawing recognition from the Union The same result is called for by the approach pointed to in Carmi chael Construction and G M Masonry supra Thus there is no evidence that the Union was not the 9(a) represent ative of a majority of the employees in the respective multiemployer units in 1947 and 1968 when the Union and the Association executed their initial contracts cov enng such units Nor is there any evidence that the Union was not such a representative at any time thereaf ter including the 1973 dates when Bill Corbett executed the letters of assent and the periods before the execution of the 1981-1983 and 1982-1985 contracts Further there is no evidence that the Union did not enjoy majority support among Bill Corbett s employees when such let ters of assent were signed Indeed Corbett Electric has never claimed that its June 1982 action in withdrawing recognition and disavowing the contracts was based on any belief that the Union did not represent a majority of Association employees or Corbett Electric employees Rather Bill Corbett testified that he took such action be cause he did not believe that Corbett Electric could op erate profitably while adhering to the terms of these agreements Except for Corbett Electric s conduct after its purported withdrawal from the Association the Asso ciation members had honored these bargaining agree ments so far as the record shows throughout their re spective terms Moreover the employees in both multi employer units had been subject for at least lG years to union shop and exclusive hiring clauses and to the oper ation of a hiring hall that referred employees to only em ployers that had contracts with the Union At least the hiring hall clauses included in the 1982-1985 inside agreement and the 1981-1983 residential agreement were so drawn as to create a relatively stable labor pool from which Association members hired unit employees The foregoing evidence establishes that as to the two multi employer units (both of them including Corbett Elec tric s employees) admittedly appropriate until Corbett Elecric s purported withdrawal from the Association the Union had achieved 9(a) status long before the execution of the 1981-1983 residential agreement and has retained that status at all times thereafter Because of my finding that the Union occupied 9(a) status regarding the contract units at the time that the two Association agreements were executed the rationale of Dee Cee Floor Covering 232 NLRB 421 (1977) is irrel evant G M Masonry supra 245 NLRB 267 at fn 1 of the Board s decision Likewise irrelevant is the court s opinion in Irvin McKelvy supra 475 F 2d at 1268-1270 because both of these agreements are term agreements and not project agreements Williams and Bryant In Higdon the parties prior agreement executed under Sec 8(f) had expired 7 months before the execution of the dishon ored contract and the union never claimed to represent a majority of Higdon s employees See the Board s decision 216 NLRB 45 (1975) and the court of appeals opinion 535 F 2d 87 88-89 (D C Cir 1976) Cf G M Masonry supra 245 NLRB at 271-272 involving a 1 year hiatus DAngelo & Khan Inc 248 NLRB 396 (1980) 3 Whether Section 8(a)(5) and (1) of the Act was violated through Bufco Because Bufco was the alter ego of Corbett Electric it may be doubted whether the 8(a)(5) allegations of the complaint would be subject to the defense as to employ ees on Bufco s payroll that the contract units had become inappropriate to the extent that they included such employees See Pratt Farnsworth supra 690 F 2d at 507-509 Advance Electric supra Nelson Electric 241 NLRB 545 552-553 (1979) enfd 638 F 2d 965 (6th Cir 1981) but see Ben s Construction Co 267 NLRB 1118 (1983) In any event I find that the appropriate units in elude Bufco s employees Regarding the period before Corbett Electric s purported resignation from the Asso ciation the appropriate units admittedly included Corbett Electric s employees Bufco s employees performed the same kind of work as had Corbett Electric s employees using the same equipment at the same location and con tinued to be supervised by Mark and Bill Corbett As had been the practice under Corbett Electric the inside electrical work continued to be performed ordinarily by different employees from those who performed the rest dential work Accordingly I find that Bufco and Corbett Electric violated Section 8(a)(5) and (1) of the Act when Bufco admittedly failed at all times after beginning operations about January 1983 to recognize the Union or abide by the contracts including without limitation making the contractually required fringe benefit payments There is no evidence that Bufco as such ever refused to recognize the Union or abide by the contracts as alleged in Section 9(a) and (b) of the complaint This is immaterial howev er because Corbett Electric did so refuse 4 The alleged unlawful transfer of work As previously found Corbett Electric violated Section 8(a)(5) and (1) by withdrawing recognition from the Union and dishonoring the bargaining agreements Fur ther Bufco is Corbett Electric s alter ego and was estab lished for giving a semblance of legitimacy to the oper ation of the business on a nonunion basis The record shows that Corbett Electric s 1983 jobs were performed through employees on Bufco s payroll that Corbett Electric paid Bufco for their services and that the wages and fringe benefits of employees on Bufco s payroll were not those called for by the bargaining agreements I infer that such work was transferred to Bufco to avoid Cor bett Electric s obligations under the bargaining agree ments and that therefore such conduct constituted vio lations by Corbett Electric and Bufco of Section 8(a)(1) and (3) of the Act Moreover I find that such transfers also violated Section 8(a)(5) because they were effected without giving the Union notice or an opportunity to bargain about them and without obtaining the Union s consent Farmingdale Iron Works 249 NLRB 98 107-108 (1980) enfd 661 F 2d 910 (2d Cir 1981) Wintz Motor Fright 265 NLRB 922 (1982) 29 29 The General Counsel does not appear to contend that Corbett Elec tnc s transfer of this work would violate Sec 8(a)(5) even assuming that Continued 1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III ULTIMATE CONCLUSIONS REGARDING JURISDICTION An employer is engaged in commerce within the meaning of the Act if it is a member of an association that bargains for its members on a multiemployer basis and that if that association includes a member who is en gaged in commerce within the meaning of the Act NLRB v O Keeffe Electric Co 391 F 2d 589 (9th Cir 1968) Nelson Electric supra 241 NLRB at 550-155 Such an employer meets the Board s jurisdictional stand ards if the associations members in the aggregate engage in operations that meet the Board s jurisdictional standards for a single employer Insulation Contractors of Southern California 110 NLRB 638 (1954) It has been found that Corbett Electric and (by reason of alter ego status with Corbett Electric) Bufco has been a member of the Association and bound by its collec tive bargaining agreements with the Union at all maten a] times on and after June 28 1982 when the unfair labor practices began The parties stipulated to facts that establish that between October 31 1982 and the date of the hearing another member of the Association Swan son Nunn was engaged in commerce within the meaning of the Act and made out of state purchases of sufficient magnitude to meet the Board s jurisdictional standards The record is silent as to Swanson Nunn s operations be tween June 28 and October 31 1982 However I regard the record evidence as warranting a finding that Corbett Electnc/Bufco is subject to the Board s statutory ,funs diction and meets the Board s jurisdictional standards I note the absence of any evidence or claim that Swanson Nunn made interstate purchases at a lower rate in July- October 1982 than during the 12 months following and that the unfair labor practices continued at least through October 1983 See Langlade Veneer Products Corp 118 NLRB 985 986 (1957) Montex Drilling Co 122 NLRB 139 (1958) Calera Mining Co 97 NLRB 950 951-952 (1962) H J Barton 78 NLRB 431 432 (1948) CONCLUSIONS OF LAW 1 Corbett Electric and Bufco are alter egos constitute a single employer and as such are engaged in com merce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 The following unit is appropriate for collective bar gaining purposes within the meaning of Section 9(b) of the Act The following employees of the employer members of the Association including Corbett Electric and Bufco All journeymen wiremen apprentice wire men and foremen encompassed within the unit de scribed in the collective bargaining agreement be tween the Union and the Association effective be tween June 10 1982 and March 31 1985 Bufco were not an alter ego Cf Fireboard Corp v NLRB 379 U S 203 (1964) Otis Elevator Co 269 NLRB 891 (1984) Both bargaining agree ments forbid subcontracting of on site work to nonunion firms 4 The following unit has been appropriate for collec tive bargaining purposes within the meaning of Section 9(b) of the Act until at least September 30 1983 and at all times thereafter unless and until Corbett Elecnc/ Bufco shall have given proper notice to terminate mem bership in the Association and then to the expiration of any then current agreement covering such employees The following employees of the employer members of the Association including Corbett Electric and Bufco All journeymen wiremen foremen and trainees encompassed within the collective bargain ing agreement between the Association and the Union effective between October 1 1981 and Sep tember 30 1983 5 At all times material the Union by virtue of Sec tion 9(a) of the Act has been and is the exclusive bar gaining representative of the employees in the unit de scribed above in Conclusions of Law 3 for the purpose of collective bargaining concerning rates of pay wages hours of employment and other terms and conditions of employment 6 The Union by virtue of Section 9(a) of the Act has been the exclusive bargaining representative of the em ployees in the unit described above in Conclusion of Law 4 for the purpose of collective bargaining concern ing rates of pay wages hours of employment and other terms and conditions of employment at all material times until September 30 1983 and at all times thereafter unless and until Corbett Electric/Bufco shall have given proper notice to terminate membership in the Associa tion and then to the expiration of any then current agree ment covering such employees 7 Corbett Electric/Bufco through Corbett Electric has violated Section 8(a)(5) and (1) of the Act by submit ting about June 10 1982 a purported revocation of Cor bett Electric s membership in the Association by notify ing the Union about July 2 1982 that Corbett Electric was canceling its assent to the two collective bargaining agreements between the Union and the Association by refusing since about July 2 1982 to abide by such agree ments by withdrawing recognition of the Union about July 2 1982 as the exclusive collective bargaining repre sentative of the employees in the units described in Con clusions of Law 3 and 4 by discontinuing about July 2 1982 contractually required payments to benefit plans on behalf of employees in such units and by changing such employees contractually specified wage rates without prior notice to the Union without having afforded the Union an opportunity to bargain regarding such matters and without the Union s having agreed to such conduct 8 Beginning about January 1 1983 Corbett Elec tnc/Bufco through Bufco has violated Section 8(a)(5) and (1) of the Act by failing to recognize the Union as the exclusive bargaining representative of the units de scribed in Conclusions of Law 3 and 4 and abide by the two collective bargaining agreements between the Asso ciation and the Union including the obligation to make contractually required benefit payments 9 Corbett Electric/Bufco has violated Section 8(a)(3) (5) and (1) of the Act by transferring electrical work BUFCO CORP from Corbett Electric to Bufco to avoid obligations under the two collective bargaining agreements between the Association and the Union without giving the Union notice or an opportunity to bargain over the transfer and without the Union s consent 10 The unfair labor practices described in Conclusions of Law 7 8 and 9 affect commerce within the meaning of the Act THE REMEDY Having found that Corbett Electric/Bufco has en gaged in certain unfair labor practices I shall recom mend that such corporations be required to cease and desist therefrom and from like or related conduct Affirmatively Corbett Electnc/Bufco will be required to recognize and bargain with the Union as the repre sentative of all Corbett Electric/Bufco employees in the two appropriate units to give retroactive effect to the 1981-1983 and 1982-1985 Association union agreements covering these units and to give retroactive and pro spective effect to any subsequent Association union agreements covering these units unless and until Corbett Electric/Bufco shall have given proper notice to termi nate membership in the Association and then to the expi ration of such agreements See Nelson Electric supra 241 NLRB at 553 General Printing Co 263 NLRB 591 (1982) t Also Corbett Electnc/Bufco will be required to make employees whole for any losses sustained by them by reason of the failure to honor the terms and conditions of the, collective bargaining agreements less any payments made under the settlement In addition Corbett Elec tric/Bufco will be required to reimburse the Union for any dues that were not deducted from the paychecks of employees who had executed checkoff authorizations 4 .. t 1033 and transmitted to the Union as required by the collec tive bargaining agreements which must be honored under this Order insofar as the Union has not obtained such dues directly from employees Ortiz Funeral Home Corp 250 NLRB 730 731 (1980) enfd 651 F 2d 136 (2d Cir 1981) cert denied 455 U S 946 (1982) Loss of wages is to be calculated in the manner prescribed in F W Woolworth Co 90 NLRB 289 (1950) Interest on all the payments to be specified in this paragraph is to be paid as prescribed in Florida Steel Corp 231 NLRB 651 (1977) see generally Isis Plumbing Co 138 NLRB 716 (1962) In addition Corbett Electnc/Bufco will be required to make whole the various fringe benefit funds for any con tributions required to be paid under the terms of the col lective bargaining agreements less any payments already made under the settlement The amount of contributions is to be determined in accordance with Merryweather Op tical Co 240 NLRB 1213 1216 fn 7 (1979) In addition Corbett Electric/Bufco will be required to post appropriate notices Because some of the benefici aries of the Order may be employees who will never work for Corbett Electric/Bufco but who work out of the Union s hiring hall and would have been referred to jobs with Corbett Electric/Bufco if the bargaining agree ments had been honored Corbett Electric/Bufco will be required to furnish signed copies of the notice to the Re gional Director for posting by the Union if it is willing at all locations where notices to employees who work out of the hiring hall are customarily posted 30 [Recommended Order omitted from publication ] 30 I note that the bargaining agreements which forbid discrimination against nonmembers in referral require the Union to post the referral procedures on the bulletin board in its offices