Edenwald Construction Co., Inc. And Belt Contracting Co., Inc.

EDENWALD CONSTRUCTION CO 297 Edenwald Construction Co., Inc . and Belt Contract- ing Co., Inc. and Attmore Walton. Case 29- CA-12779 May 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 6, 1988, Administrative Law Judge Harold B. Lawrence issued the attached decision. The Respondents, Edenwald Construction Co., Inc. (Edenwald) and Belt Contracting Co. Inc. (Belt), filed exceptions and a supporting brief, and the General Counsel filed exceptions and a sup- porting brief and an answering brief in response to the Respondents' exceptions to 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, 2 and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondents, Eden- wald and Belt, are an integrated business enterprise and constitute a single employer, and that their em- ployees constitute a single appropriate unit. He thus concluded that the Respondents violated Sec- tion 8(a)(5) and (1) of the Act by failing and refus- ing to provide the employees of Belt with the wages and benefits contained in Edenwald's collec- tive-bargaining agreement with Operating Engi- neers Local 15C (Local 15C), covering certain Edenwald employees. We agree with the judge, for the reasons stated in his decision, that the Respondents constitute a single employer. However, we disagree with his finding that the Respondents unlawfully failed to apply the terms of the bargaining agreement to the Belt employees because we find inadequate support for his conclusion that the Belt employees do not constitute a separate appropriate unit. A finding of single employer status, as the judge recognized, does not in itself mean that the em- ployees of both entities composing the single em- 1 As correctly observed by the Respondents in their brief, the judge erred in finding that the motion to correct the transcript was made solely by the General Counsel The motion was jointly made by the General Counsel and the Respondents 2 The Respondents have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings ployer will be included in a single bargaining unit covered by a collective-bargaining contract signed by only one of the nominally separate employers. As stated in Land Equipment, 248 NLRB 685, 688 (1980): [A single employer] finding, though rele- vant, is not conclusively determinative as to whether an employerwide unit is appropriate since the criteria for finding a single employer are different from those for determining the appropriatenesses of the unit. South Prairie Construction Co. v. Local 627, International Union of Operating Engineers, AFL-CIO, 425 U.S. 800 (1976); Frank Naccarato, a Sole Pro- prietor, d/b/a Naccarato Construction Company, et al., 233 NLRB 1394 (1977). In determining the scope of the unit, the pri- mary concern is the community of interest of the employees involved. The relevant factors to be considered are bargaining history, the functional integration of operations, the differ- ences in the types of work and the skills of employees, the extent of centralization of man- agement and supervision, particularly as to labor relations and control of day-to-day oper- ations, and the extent of interchange and con- tact between the groups of employees. Naccar- ato Construction Company, supra; Peter Kiewit Sons' Co. and South Prairie Construction Co., 231 NLRB 76 (1977). Edenwald is a general contractor involved, inter alia, in heavy construction, and has had a long bar- gaining relationship with Local 15C. Belt, which began operations in 1983, has had no bargaining re- lationship with Local 15C at any time. Local 15C has made no appearance in this proceeding, and there is no indication on this record that Local 15C currently seeks or has ever sought to represent the Belt employees. The most recent collective-bargaining agreement covering Edenwald's Local 15C-represented em- ployees was negotiated in late 1984, more than, a full year after Belt began operations. Edenwald's bargaining agreement with Local 15C, negotiated by the General Contractors Association of New York, has a broad description of the scope of the bargaining unit covered by the contract, including all employees who repair and maintain "contractor machinery."3 That bargaining agreement defines the bargaining unit as follows (a) All employees who repair, service, assemble, maintain and re- build all types of contractor machinery including the welding there- of, the handling, storing, pick-up and delivery of parts contingent to the work and equipment covered by the agreement with the Union and the driving maintenance vehicles in the performance of their Continued 294 NLRB No. 22 298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD As the judge found, Edenwald's employees cov- ered by the bargaining agreement include mechan- ics and welders, who work both in the field and at Edenwald's premises. The evidence shows that the mechanics repair heavy equipment, and they gener- ally possess special expertise in regard to engines, transmissions, or electrical work. An Edenwald mechanic, in addition to the above repair duties, also drives a fuel truck to the worksites in order to maintain fuel supplies. The welders do "heavy welding," i.e., work involving the fabrication or maintenance of extremely heavy pieces, such as caterpillars, bulldozers, and heavy-duty hydraulic excavators. Edenwald employees are supervised by Working Foreman Manuel Ortiz, who also deter- mines the repairs to be made to equipment, and who does some of the more intricate work. George Paletta, related by marriage to Eden- wald's owners, and one of the two Belt owners, also performs "consulting" work for Edenwald. Although the record indicates that Paletta is famil- iar with Edenwald's operations, the record does not indicate his exact responsibilities for that Com- pany. The judge found that both Paletta and Ortiz confer on a daily basis in order to plan the work to be performed by the employees of Edenwald and Belt. Belt began operations in 1983 for the purpose of repairing and maintaining equipment owned by Edenwald,4 and Edenwald provided the start-up capital for Belt. The record contains little specific information about Belt's activities during the first 2-1/2 years of its existence, but it appears that Belt's operations have been essentially unchanged from its inception. Belt employees generally repair and maintain small tools and equipment, including vans, trucks, and automobiles. For instance, Belt employees repair small tools, saws, and pumps and perform light mechanical work on small equipment and vehicles, e.g., hose changing, tire changing, and minor maintenance . Belt also has two employ- ees who work as a parts man and a yard man, re- spectively. Part of the work performed by Belt employees involves welding. Although the testimony estab- lished that a Belt employee did welding on buckets from Edenwald's heavy equipment, he did so only after the buckets were removed from the equip- ment. Based on Charging Party Walton's testimo- duties, the driving of fuel, oil and grease trucks used to fuel and service contractors' equipment (b) All employees who operate, only at the [employer's] premises, hoisting devices, such as overhead cranes, yard derricks, portable cranes, forklifts and similar equipment, all in accordance with prior jurisdictional precedents 4 The record does not detail how this maintenance work was per- formed prior to Belt's formation The record, however, does indicate that such work is occasionally performed by outside companies ny, which was characterized as "sketchy," the judge found that both Edenwald and Belt employ- ees performed the same light work in connection with repairs and maintenance.5 The judge also found that some of the Edenwald welders are certi- fied to do certain types of work not performed by Belt employees and that some complicated repairs are made solely by Edenwald mechanics. Paletta testified that he ran the day-to-day operations for Belt, but the judge found that Ortiz' involvement with Belt employees was considerable and that they worked under his supervision. The judge ob- served that Ortiz screened all applicants for em- ployment with Belt. In view of the above and for the reasons dis- cussed below, we find that the General Counsel has not shown that the Belt employees fail to con- stitute a separate appropriate unit. To the contrary, we find that the Belt employees enjoy a separate community of interest from the Edenwald employ- ees. We disagree with the judge's conclusion that the evidence of overlap between the work of the Edenwald employees and Belt employees is suffi- cient to negate any distinction between the core functions of these two groups of employees. Clear- ly, the principal assignment of the Edenwald em- ployees was to perform the more complicated work, and that of the Belt employees was to per- form the repair and maintenance work on the smaller pieces of tools and equipment. Employee Walton's limited testimony-which relied solely on his own experience and which the judge criticized as being "extremely vague"-has limited probative values for establishing the overall nature of the overlap, especially where Walton acknowledged that he performed only occasional work at con- struction sites after August 1985, more than a year before he filed the charge in this case. Indeed, that testimony suffers in comparison with the evidence indicating that the central work performed by these two groups of employees is distinct and that the level or nature of the skills involved is distin- guishable. . Finally, we disagree with the judge' s statement that Local 15C's failure to request the inclusion of the Belt employees in the Edenwald bargaining unit is not probative on any of the issues in this case, given the settled principle that bargaining his- 5 In agreeing with the judge's finding that there is some overlap in the work assignments of Belt employees and Edenwald employees, we do not rely, as he did, on the Respondents' stipulating that the equipment and maintenance and repair services for Edenwald were and are custom- arily performed by either Edenwald or Belt employees This stipulation indicates no more than that specific repair work was performed by either an Edenwald employee or a Belt employee, but not necessarily by both EDENWALD CONSTRUCTION CO tory is a relevant factor in assessing employee com- munity of interest. In this regard, there is no claim or evidence that Local 15C was unaware of Belt's existence or its function, or the nature of the work performed by its employees. Thus, it is significant that Belt was in existence for 2-1/2 years prior to the institution of the present proceeding, and that at no time did Local 15C, the union that represents Edenwald's employees, seek to represent the Belt employees. Such separate bargaining history, which resulted in the Belt employees not being covered by the bargaining agreement,6 strongly supports the Respondents' claim that the Belt em- ployees possess a separate community of interest. We find, therefore, that the separate bargaining history for Edenwald's employees to the exclusion of Belt's employees, coupled with the differences in skills and types of work performed by the two groups of employees, are determinative of the unit issues presented in this case. These factors clearly outweigh the evidence that Belt employees per- formed repair and maintenance services necessary for Edenwald's operations and had a significant degree of contact with Edenwald employees and that Ortiz and Paletta worked in close cooperation in order to coordinate the work of the Edenwald and the Belt employees. Accordingly, we find that the General Counsel has failed to establish that the Belt employees do not separately constitute an ap- propriate unit. We further find that it would be im- proper to impose on the employees of Belt the col- lective-bargaining agreement executed by Eden- wald and Local 15C and that the Respondents have not violated Section 8(a)(5) and (1) by failing to do so.7 We shall therefore dismiss the complaint in its entirety. 6 We find that the judge's reliance on the broad nature of the contrac- tual language regarding the description of the collective-bargaining unit is misplaced It does not follow that , simply because the two companies constitute a single employer , the contractual unit description pertaining to the employees of one of the companies a priori establishes that the un- represented employees of the other company are, or should be, included in the contractual unit because their job classifications seem to comport with those set forth in the contractual unit The determination whether they may or may not constitute an appropriate (separate) unit depends on their community of interest and the relevant factors that we have noted above In this regard , the contractual unit description is a factor to be considered but only to see if the job descriptions or classifications of the unrepresented employees , in comparison with those pertaining to the rep- resented employees , are similar ' Although we have decided this case without speaking in terms of whether the Belt employees could be accreted to the Edenwald unit, our finding that the Belt employees have a separate community of interest would effectively foreclose any accretion See Melbet Jewelry Co, 180 NLRB 107, 109 (1969) We also note that the judge erred in finding that the Edenwald employees outnumbered the Belt employees The record includes a document establishing that during the period between June 1986 and July 1987, Edenwald 's complement of unit employees (exclud- ing Ortiz) ranged from 7 to 9 and Belt 's employee complement ranged from 8 to 15 At no time during this period did the unionized Edenwald unit employees outnumber the unrepresented Belt employees ORDER The complaint is dismissed. 299 Kevin R. Kitchen, Esq., for the General Counsel. Joan L. Paley, Esq. (Berman, Paley, Goldstein & Berman), of New York, New York, for the Respondents. DECISION STATEMENT OF THE CASE HAROLD B. LAWRENCE, Administrative Law Judge. This case was heard by me at Brooklyn, New York, on 4 and 5 November 1987.1 The complaint, based on a charge filed by Attmore Walton, an individual, alleges violation of Section 8(a)(1) and (5) of the National-Labor Relations Act (the Act) by reason of the refusal of the Respondents, Edenwald Construction Co., Inc. (Eden- wald) and Belt Contracting Co., Inc. (Belt) to pay to Belt employees the same wages and benefits received by Edenwald employees under that Company's collective- bargaining agreement with International Union of Oper- ating Engineers, Local 15C, AFL-CIO (the Union). The complaint alleges that the two companies constitute an integrated business enterprise and a single employer. In separate answers interposed on their behalf by the same attorney, the two Respondents deny that they area single employer and deny that Belt employees are being unlawfully depraved of rights under the collective-bar- gaining ageement. The parties were afforded full opportunity to be heard; to call, examine, and cross-examine witnesses; and to in- troduce relevant evidence. Posthearing briefs have been filed by the General Counsel and by counsel for the Re- spondents. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed, I make the following FINDINGS OF FACT 1. JURISDICTION Edenwald's answer admitted that Edenwald is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act, while Belt's answer denied that Belt was such an employer. Edenwald, how- ever, can be presumed to know its own status, and facts stipulated at the hearing and recited in the next section make it clear that jurisdiction over Edenwald exists. As appears hereinafter, I find that the two companies are in- tegrated business enterprises which constitute a single employer, and thus jurisdiction exists over both of them. Sakrete of Northern California, 137 NLRB 1220 (1962) Moreover, Respondents' counsel admitted pertinent juris- dictional allegations in her opening statement . Accord- ingly, I find that at all times material here, the Respond- ents were and are engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Both an- i The motion of the General Counsel to correct errors in the transcript is granted and the transcript is deemed amended in accordance with the terms of the motion 300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD swers admit, and I accordingly find, that the Union was and is a labor organization within the meaning of Section 2(5) of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICE A. The Business of Respondent's and the Work of Their Employees The following facts were stipulated by counsel.2 Eden- wald and Belt are New York corporations. Both operate out of offices located in Whitestone, Queens, New York. Edenwald received, in the year preceding issuance of the complaint, materials and machine parts from points out- side of New York State having a value in excess of $50,000, and performed services valued in excess of $50,000 for various enterprises located in New York State which were directly engaged in interstate com- merce and met the Board standard for the assertion of jurisdiction exclusive of indirect inflow or indirect out- flow. .Belt, at all times, was engaged in, providing equipment maintenance services and related services exclusively to Edenwald, and during the year preceding issuance of the complaint performed services valued in excess, of $50,000. Edenwald is directly engaged in interstate com- merce and meets the Board standard for the assertion of jurisdiction, exclusive of indirect inflow or indirect out- flow. Edenwald is a general contractor involved in heavy construction and sewer and road work, mostly under contracts with municipal agencies. Its work volume is necessarily seasonal. It is party to a collective-bargaining agreement which had been negotiated with the Union by the General Contractors Association of New York, Inc. to which it had given its assent. It defines the appropri- ate bargaining unit as follows: (a) All employees who repair, service, assemble, maintain and rebuild all types of contractor machin- ery including the welding thereof, the handling, storing, pick-up and delivery of parts contingent to the work and equipment covered by the agreement with the Union and the driving of maintenance ve- hicles in the performance of their duties, the driving of fuel, oil and grease trucks used to fuel and serv- ice contractors' equipment. (b) All employees who operate, only at Respond- ents' premises, hoisting devices, such as overhead cranes, yard derricks, portable cranes, forklifts and similar equipment, all in accordance with prior ju- risdictional precedents Edenwald's unit employees varied in number at vari- ous periods of the year, averaging 18 with a mean of 38. The average number of Belt employees was 7 with a 2 The matters narrated in this decision without evidentiary comment are those facts found by me on the basis of admissions in the answers, data contained in the exhibits, stipulations between or concessions by counsel, undisputed or uncontradicted testimony, and, in instances where conflicts in the testimony did not warrant discussion, the testimony which I have credited mean of 12. (The available figures were for the year from 21 June 1986 through 11 July 1987.) The Respondents contend that Belt supplies a service to Edenwald consisting of repair and maintenance of the small vans, trucks, and automobiles, utilized at the Eden- wald jobsites, while Edenwald itself is engaged in the construction business. Thus, there is no integrated oper- ation at major levels and the employees of Belt either do not perform the same kind of work as the Edenwald em- ployees, or they do it on a lighter scale. There is overlap only in the essential nature of some of the work, but in reality, it is claimed, it was different because the union personnel were engaged in operation and repair of ex- tremely heavy equipment while the nonunion personnel were limited to lighter types of equipment. The testimony established that Edenwald' s union mem- bers included mechanics, whose function was to repair heavy equipment, and who generally possessed some spe- cial expertise in regard to engines, transmissions , or elec- trical work; a welder who, according to George Paletta, the secretary-treasurer of Belt, did "heavy welding"; a mechanic who traveled in the field fixing breakdowns of heavy construction equipment; a welder who worked both in the yard and in the field, and who, according to Paletta, did "complicated work" in both places; and a second traveling mechanic who went out 6 days a week on a fuel truck to maintain fuel supplies, and who did repair work both in the yard and in the field. Paletta de- fined "heavy welding" as work which involved the fabri- cation or maintenance of extremely heavy pieces such as the caterpillars, bulldozers, and heavy-duty hydraulic ex- cavators. Thus, Edenwald's employees included both me- chanics and welders, who worked both in the field and at Edenwald's premises and performed construction work and repairs on their own equipment Walton's testimony comparing the type of work per- formed by the employees of the two companies was sketchy, but in the main indicated similarity between the work done by Belt employees and that performed by a considerable number of Edenwald employees. Walton was a welder. As a welder, he worked alongside union welders and alongside employees of both Edenwald and Belt. He did welding work at the shop and at construc- tion sites. The fact that his testimony was imprecise and he was unable to furnish details of time, place, and iden- tity of coworkers does not alter the essential thrust of his testimony that employees of both companies did essen- tially similar work. Paletta's testimony tended to confirm this. He claimed that certain welders performed more in- tricate work and were required to be licensed in order to be allowed to work at certain sites and on derricks, cranes, and gas mains, but he conceded that welders were not required to be certified for much of Edenwald's work. This put Walton, who was not certified at the time he was hired, on the same plane as some of Eden- wald's unionized welders. Respondents contended that the business of Belt was limited to supplying repair and maintenance service for the small vans, trucks, and automobiles used by Eden- wald in the contraction business. Paletta testified to the work functions of persons on the Belt payroll, all of EDENWALD CONSTRUCTION CO. 301 whom were nonunion . As names were presented to him, he described their duties: welders; repairer of small tools, saws, pumps (no welding involved); tire-changing and light mechanical work on small equipment and small trucks; automotive mechanic on small trucks and other items; parts man; yard man; hose-changing and minor maintenance-type repairs, as on tires . He observed that the men who did truck and automotive repairs had back- grounds with car and used truck dealers or gas stations and that when they did repairs on heavy equipment, such as buckets, it was only after the buckets were taken off the equipment . When asked to be more specific about what a worker actually did when he was performing a "mechanical function," Paletta stated that he would "change sparkplugs, he would take the partner saws apart, pumps apart . . . pull the gaskets. Whatever was wrong with the small power-tool-type equipment, which is basically the saws and the pumps, et cetera." It was stipulated that equipment maintenance and repair services for Edenwald were and are customarily performed by either Edenwald or Belt employees and are occasionally performed by outside companies. The interchangeability is apparent, some Edenwald employ- ees performing the same light work that Belt employees did in connection with repairs and maintenance and Belt employees performing Edenwald work, both in and out of the premises. Walton testified that he worked side by side with Edenwald employees, in the field and in the shop. It was his understanding that they were unionized because they told him so, although they never explicitly mentioned Local 15C; he inferred that that was their union because there was no other union in the shop. He testified that at the time he was hired Ortiz tested him and put him to work in the shop for the first 2 weeks. Thereafter, until the first week in August 1985, he worked in the field, returned to work in the shop in 1986, and from then until the end of his employment on 2 October 1986 he was sent into the field from time to time. Though, on cross-examination, Walton was ex- tremely vague with respect to when and where he worked outside the shop, his testimony in that regard was not controverted. The evidence adduced at the hearing warrants the conclusion that Belt employees perform the same kind of work as a number of the Edenwald employees. While the latter perform some types of work in the construc- tion industry which Belt employees do not perform, they, and the Belt employees, perform work in the cate- gory described in the definition of the appropriate bar- gaining unit contained in the collective-bargaining agree- ment that covers "All employees who repair, service, as- semble, maintain and rebuilt all types of contractor ma- chinery including the welding thereof." (Emphasis sup- plied.) It includes employees who are engaged in the "handling, storing, pickup and delivery of parts contin- gent to the work and equipment covered by the agree- ment with the Union." It is therefore immaterial that some of the Edenwald welders are certified to do certain types of work which are not performed by Belt employees or that some com- plicated repairs are made only by Edenwald personnel. There appears to have been plenty of lighter work to go around; and it was done by employees of both Belt and Edenwald. Significantly, the collective-bargaining agree- ment draws no distinction but relates to repairs on all types of equipment. Paletta's testimony, carefully draw- ing a picture of heavy work by Edenwald employees and light work by Belt employees, counts for naught in the light of the description of the unit to which Edenwald agreed.3 I find, therefore, that the Belt employees perform the same kind of work performed by certain of Edenwald's unionized employees and perform work of the type de- scribed in the definition of the appropriate bargaining unit contained in the collective-bargaining agreement which was in force between Edenwald and the Union at the pertinent times in this case. B. The Interrelationships of the Respondents The Respondent Companies are owned and operated by four closely related persons. George Follini is presi- dent and his brother, Charles Follini, is secretary-treasur- er of Edenwald. They are Edenwald's sole stockholders and directors. Robert Follmi, their nephew, is president, and George Paletta„ son-in-law of George Follini, is sec- retary-treasurer of Belt. They are the sole stockholders and directors of that corporation. Paletta is deeply involved in and conversant with the affairs of Edenwald. He testified unhesitatingly with regard to its payroll, its employees, and its operations. He testified that he performs "consulting" work for Edenwald relating to its equipment and service require- ments. He started to say that he received a salary for that work, but corrected himself and stated that he re- ceives a check and not a salary. No one who was admit- tedly affiliated with Edenwald appeared at the hearing; the testimony on behalf of both Respondents came almost entirely from Paletta. Besides Paletta's detailed testimony regarding Eden- wald's payroll records and employees, he testified with regard to the status of Manuel Ortiz. Ortiz was an Eden- wald employee and Edenwald's answer admitted that he was a supervisor of Edenwald's employees within the meaning of Section 2(11) of the Act. He was a working foreman, a Class A mechanic, and a member of the Union. The existence of crossover management was ob- vious, with both Paletta and Ortiz involved in all aspects of the work of both companies. The authority of Ortiz over the employees of Edenwald and the Edenwald shop was described by Paletta: "He directs the employees' op- eration in the shop, he determines the repairs to the equipment and he will do some of the work himself on the intricate matters." Consultation between Paletta and Ortiz is intensive. They confer everyday. They set up work for the follow- ing day. Paletta seemed to make no distinction between planning for Edenwald work and planning for Belt work. He testified that he and Ortiz "will set up what has to be done. He will follow up and oversee . . . and s Testimony by Robert Follini, Belt's president, and Paletta, Belt's sec- retary-teasurer, that they were never asked by Local 15C to include Belt employees in the Edenwald bargaining unit, is not probative on any of the issues of this case 302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD report to me . . . how the situations are going " "Situa- tions" is a word that more appropriately refers to con- struction jobs than minor repairs The reports he re- ceived from Ortiz covered the work of both companies, involving the equipment under repair and the "progress of the shop in general" and they discussed "areas . . . to be done": Q. Does Mr. Ortiz have any input on the work that's to be done? A. He can make suggestions . I will know where the necessary areas are to be done. Q. And you say he reports to you. A. Yes. Q. What does he report to you? A. He reports the progress of whatever equip- ment is being repaired, he reports on any new inno- vations that might be coming out that I might be in- terested in and he reports on the progress of the shop in general. Q. And Mr. Ortiz also supervises Edenwald em- ployees as well, does he not? A. Yes, he does. It is impossible to tell where their concern with one company ends and their concern with the other begins, which is not surprising in view of the enormous amount of evidence of common management and control, even to the extent of representation by one attorney at the hearing. Antonio Fiorenza is controller of both compa- nies and filed corporate banking resolutions with Chemi- cal Bank for Edenwald and with Chase Manhattan Bank for Belt He is a signatory for checks of both corpora- tions. The two companies share space in premises leased by Edenwald, but Belt is not a party to any lease and pays no rent at all. Edenwald purchases all supplies for both companies . Belt makes no purchases and owns no equipment Employees of both companies change into their work clothes in the same locker room . They all wear work uniforms distributed by Ortiz which bear the name of Edenwald . Such accounting, payroll, auditing, and legal services as Belt may require are furnished through Edenwald. Edenwald is Belt's sole customer and its only source of revenue. It was founded by Edenwald, which provided its startup capital . Under these circum- stances, it is of little significance that Belt renders bills to Edenwald which Edenwald pays by check, and that Belt pays its own payroll and insurance expenses . The tie-in is so complete that Belt 's business volume varies in direct proportion to the seasonal activity of Edenwald and Belt lays off employees during Edenwald 's slow periods. Walton testified that he never saw Belt 's name on any- thing but his paycheck stubs. It was easy for him to be confused as to the identity of his employer in view of the similar type of work being done by employees of the two companies and the omnipresent supervision of Ortiz. Paletta contended that Walton could not have been confused about whom he worked for because he inter- viewed him for the job after Ortiz recommended him and they discussed pay rate and duties. Walton insisted that only Ortiz interviewed him and that he did not speak to Paletta until 60 days later when he wanted to get a pay raise and was told by his coworkers that Pa- letta was the man he had to talk to. I credit Walton's tes- timony. Though Paletta asserted that he ran the day-to- day operations of Belt and that there were no other su- pervisors employed by Belt, his testimony also showed that Ortiz' involvement with Belt's affairs is considerable. Paletta naturally has the final word on hiring, but Ortiz interviews prospective employees for him and ascertains their knowlege and experience. Paletta testified he re- ceives Ortiz' recommendations and did not claim to have ever rejected or reinterviewed any of the applicants rec- ommended by Ortiz. Walton's testimony presents difficulties . His assertion that he believed he was working for Edenwald because, among other things, he did not examine his paychecks during the first 8 or 10 months of his employment is hard to believe. His testimony regarding when and where he worked off the Edenwald premises is vague He knew only first names or nicknames of coworkers. He had to concede, despite his initial testimony , that after August 1985 he worked in the field only occasionally . But his demeanor was credible and the rest of his testimony amply supported the General Counsel's contentions. His basic story, that he worked alongside union employees doing similar work both on and off the Edenwald prem- ises, remains unrebutted and for the most part not even denied by Paletta. Much of Paletta's testimony simply confirmed and am- plified the other evidence in the record that Respondents were an integrated business enterprise and a single em- ployer. The employees work in a common workplace or at the same worksites, side by side. The similarity or identity of their work functions is significant in extent, and where it differs it does so because some Edenwald employees who perform the same work have a higher degree of experience or expertise and therefore handle more complicated work or because they are employees who are primarily involved in Edenwald's construction work. Employees are interchanged between the two companies to the extent that their nominal employment by one or the other of the companies does not restrict the manner of their assignment . They all work under the supervision of Manuel Ortiz, a working foreman on the Edenwald payroll who is concededly a supervisor within the meaning of Section 2(11) of the Act. Ortiz works closely with and reports daily to Paletta and has an im- portant function in screening job applicants for both, Belt and Edenwald. There certainly is no arm's-length relationship between the companies. Belt was started up with capital provided by Edenwald to provide specific services for Edenwald, and has no other customer . Its equipment and administra- tive needs are met by Edenwald . One person is control- ler of both companies. Belt derives its entire income from Edenwald Close family ties bind the principals of the two companies . There truly exists in this situation "such actual or active common control, as distinguished from merely a potential, as to denote an appreciable inte- gration of operations and management policies." See Teamsters Local 639, 158 NLRB 1281 , 1286 (1966). Accordingly, I find that Edenwald and Belt are a single employer of the Belt employees. EDENWALD CONSTRUCTION CO 303 C. Conclusions I have found that the Respondents are an integrated business enterprise and constitute the single employer of certain unionized Edenwald employees and of employees of Belt who perform similar work functions. The appro- priate bargaining unit defined in the collective-bargaining agreement between Edenwald and the Union includes employees performing those work functions. The Re- spondents moved at the hearing to dismiss the complaint on the ground that single employer status had not been established and that, even if it had been, the incorpora- tion of the Belt employees into the bargaining unit would have been an unlawful accretion since they would have been deprived of their right to vote on representation. Decision on the motion was reserved until decision on the overall record. The accretion argument deserves comment, for my conclusion that Respondents constitute a single employer does not necessarily mean that all em- ployees belong in the same bargaining unit. The circum- stances must determine whether one or separate units are appropriate. See supplemental decision in Peter Kiewit Sons' Co, 231 NLRB 76 (1977). In the circumstances of this case, the motion must be denied. The bargaining unit description covers employees who repair and maintain "contractor machinery, including the welding thereof." Paletta described the work of the Belt employees as involving the repair of automobiles, vans, and buckets (after they were detached from the heavy equipment). No real accretion issue exists , for the reasons that the Belt employees would not more naturally form a sepa- rate unit in the context of the existing work situation. This case simply amounts to a question of whether they are properly includable in an existing bargaining unit which is defined to include the very type of work func- tion they are performing. It requires an affirmative answer. The evidence adduced as to the respective num- bers of Edenwald and Belt employees is therefore not germane to this discussion (It works to the advantage of inclusion in any event, for the Edenwald employees out- numbered the Belt employees.) The Respondents are simply ignoring the facts of this case in their reliance on cases such as Wackenhut Corp., 226 NLRB 1085 (1976), and Servair, Inc., 252 NLRB 670 (1980), in which the work situations were such that the groups of employees involved could constitute appropriate units on their own. Reliance is similarly misplaced in NLRB v. Stevens Chrys- ler-Plymouth, 773 F.2d 468 (2d Cir 1985), for in that case the court expressly pointed out that not only were there significant differences in employment conditions and su- pervision of two groups of automotive service employees of a single employer, but one group had been conscious- ly excluded from a prior election held among employees of the other group by express agreement. (Mere failure of the Union here to demand the inclusion of the Belt employees in the unit is not the same as a deliberate, ex- press agreement excluding a group of employees.) Accordingly, Respondents have violated Section 8(a)(1) and (5) of the Act. Appalachian Construction, 235 NLRB 685 (1978). CONCLUSIONS OF LAW 1. Edenwald Construction Co., Inc. and Belt Contract- ing Co., Inc. constitute a single employer for jurisdic- tional purposes and are now and have been at all times material engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union of Operating Engineers, Local 15C, AFL-CIO is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondents violated Section 8(a)(1) and (5) of the Act by failing and refusing to provide the employees of Respondent Belt Contracting Co, Inc. with the wage rates or the benefits contained in the collective-bargain- ing agreement effective from 9 October 1984 through 8 October 1987 to which the Union and the General Con- tractors Association of New York, Inc. were signatories and to which it had assented. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act REMEDY Having found that the Respondents have engaged in certain unfair labor practice, I find it necessary to order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondents, jointly and severally, shall be required to make Attmore Walton, and any other emloyee on the payroll of Belt who has received less than contract rates of pay, whole for earnings losses suffered by reason of Respondents' failure to pay wages and benefits at the rate called for in the contract from and after 19 June 1986, with interest, as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987) 4 In his posthearing brief, counsel for the General Coun- sel has requested a visitatorial clause authorizing the Board, for compliance purposes, to obtain discovery from the Respondents under the Federal Rules of Civil Procedure, subject to supervision of the United States court of appeals enforcing the Order However, nothing in his lengthy argument in support of the request relates specifically to the conditions or the circumstances of this case. Instead , it urges such inclusion on the basis of gen- eral utility while counsel concedes that "it is impossible to predict at the pre-compliance stage which respondents will later refuse to cooperate." In the absence of any demonstration that a visitatorial clause is needed under the circumstances of this case, I find it unnecessary to in- clude such a clause. [Recommended Order omitted from publication.] ° Under New Horizons, interest is computed at the "short -term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp, 231 NLRB 651 (1977)