Thornton Heating Service, Inc. And Thornton Heating & Cooling Co.

304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Thornton Heating Service, Inc. and Thornton Heat- ing & Cooling Co., alter egos and/or single em- ployer and Sheet Metal Workers' International Association Local No. 73. Case 13-CA-27005 May 30, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 19, 1988, Administrative Law Judge Leonard M. Wagman issued the attached de- cision. The General Counsel filed exceptions and a supporting brief. 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, and conclusions and to adopt the recommended Order. I DECISION STATEMENT OF THE CASE LEONARD M . WAGMAN, Administrative Law Judge. Upon a charge filed by the Union , Sheet Metal Workers' International Local No. 73, on June 26, 1987 ,1 the Re- gional Director for Region 13 of the National Labor Re- lations Board (the Board) issued a complaint on October 1. The complaint alleged that the Respondent , Thornton Heating Service, Inc. and Thornton Heating & Cooling Co. (individually Thornton Heating and Thornton Heat- ing & Cooling), had violated Section 8(a)(5) and (1) of the National Labor Relations Act (29 U.S.C. § 151 et seq.) (the Act), by refusing to extend a collective-bar- gaining agreement to Thornton Heating and Cooling's employees. Thornton Heating filed a timely answer de- nying that it had committed the alleged unfair labor practice . Thornton Heating & Cooling did not file any answer to the complaint. I held the hearing in this case on January 4, 6, 7, 11, 12, and 13, 1988, at Chicago, Illinois. On the entire record, including my observation of the demeanor of the witnesses, and after considering the beefs filed by the General Counsel and the Union , I make the following ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Thornton Heating Service, Inc. and Thornton Heating & Cooling Co., a single employer, Wheeling, Illinois, their officers, agents, successors, and assigns, shall take the action set forth in the Order. i The General Counsel excepts only to the ,fudge's failure to specify in his recommended Order the time period for which the Respondent should be required to apply the terms and conditions of the collective- bargaining agreement and make whole the affected unit employees The General Counsel argues that although the charge was not filed until June 26, 1987, the 6-month limitations period of Sec 10(b) of the Act was tolled until March 1987, when the Union was first put on notice of the Respondent's hiring of nonunion sheet metal workers The General Counsel therefore contends that the remedy should extend back to the employees' date of hire, i e , in November 1986, when the Respondent's violative conduct began As specifically found by the judge, the Respondent violated Sec 8(a)(5) and (1) of the Act by failing to extend the collective- bargaining agreement to the sheet metal employees of Thornton Heating & Cooling on and after November 17, 1986 The judge's recommended remedy and Order do not include any time limit Additionally, the limitations period of Sec 10(b), which is an affirmative defense, has at no time been raised by the Respondent Under these circumstances, it is clear that the remedy runs from the beginning of the violation, and we see no need to consider any 10(b) question or to modify the judge's recommended Order Julie Hughes and Emilie Fall, Esqs., for the General Counsel. Richard F. Nelson, Esq. (Rooks, Pitts and Poust), of Chi- cago, Illinois, for Thornton Heating Service, Inc. Robert E. Waddell, of Wheeling, Illinois, for Thornton Heating & Cooling Co. Michael Daley, Esq. (Daley and George), of Chicago, Illi- nois, for the Charging Party. FINDINGS OF FACT 1. JURISDICTION AND THE LABOR ORGANIZATION INVOLVED In its answer to the complaint, Thornton Heating denied that its business operations satisfied the Board's jurisdictional standards. At the hearing, Thornton Heat- ing moved for dismissal of this case on the ground that its business did not satisfy the Board's applicable nonre- tail jurisdictional standard. In support of its position, Thornton Heating introduced a Board-commerce ques- tionnaire filled out by the firm's president, Fred Starck. According to Starck, Thornton Heating had neither inflow nor outflow, direct nor indirect, during the 12 months preceding November and did not otherwise satis- fy the Board's jurisdictional standard applicable to his firm. I find no merit in Thornton Heating's motion. Thornton Heating, by its answer, admitted that it is an Illinois corporation with an office and place of business at Wheeling, Illinois, where it engages "in the construc- tion industry, specifically fabricating, installing and serv- icing heating, air conditioning and ventilation equip- ment." Thornton Heating's records show that between March 18 and December 30, in the course and conduct of its business, it purchased goods valued in excess of $50,000 from Temperature Equipment Corporation (T.E.C.). I find from the uncontradicted testimony of Ted Schuler, the treasurer of Temperature Equipment Corporation, that his employer is a distributor of Carrier Corporation products, which it purchases directly from plants located outside the State of Illinois. I also find from Schuler's testimony that during calendar years 1985, 1986, and 1987, Thornton Heating annually pur- chased from T.E.C. Carrier products valued in excess of i Unless otherwise stated, all dates occurred in 1987 294 NLRB No. 26 THORNTON HEATING SERVICE $100,000. Accordingly, I find that Thornton Heating's annual indirect inflow exceeds $50 ,000, and thus satisfies the Board's jurisdictional standards for nonretail enter- prises. Laborers Local 1082 (Boggs Plastering), 150 NLRB 158, 170 (1964). I further find, therefore, that Thornton Heating is, and has been at all times material to this case, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. International Har- vester Co., 247 NLRB 791 (1980). In its answer to the complaint , Thornton Heating also denied that the Union is a labor organization within the meaning of Section 2(5) of the Act, which provides: The term "labor organization" means any organi- zation of any kind , or any agency or employee rep- resentation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Contrary to Thornton Heating's position , the record shows that the Union satisfies the requirements of Sec- tion 2(5) of the Act. Initially, I note that in its answer to the complaint, Thornton Heating conceded that it was party to a collective -bargaining agreement with the Union covering its employees, effective from June 1, 1986, until May 31, 1988. Indeed, I received in evidence collective-bargaining agreements to which the Union has been a party, running from June 1, 1983; until May 31, 1988, as the exclusive representative of employees en- gaged in sheet metal work . These agreements included provisions regarding wages, hours of employment, griev- ances, and conditions of employment . I also find from the uncontradicted testimony of its business representa- tive, Anthony Scavone, that the Union 's purpose is to represent employees in collective bargaining with em- ployers and that employees participate in the Union by electing officers , ratifying collective -bargaining agree- ments, and by other organizational activities . I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Since 1974, Thornton Heating has engaged in the busi- ness of fabricating, installing, and servicing of heating, air-conditioning and ventilation equipment for commer- cial and residential customers . At all times material to this case, Fred Starck and his wife, Sharen, have been, respectively, president and secretary of that corporation and, together, owners of all of its shares of stock. Since December 17, 1985 , Thornton Heating has been signato- ry to successive collective-bargaining agreements be- tween the Union and the Sheet Metal Contractors Asso- ciation, the last of which expired on May 31, 1988, cov- ering Thornton Heating's sheet metal workers. As of Oc- tober 30, 1986, Thornton Heating's bargaining unit con- sisted of five employees 305 On November 17, 1986 , Thornton Heating & Cooling was incorporated as an Illinois corporation . Its articles of incorporation recite as one of its purposes: To act as contractor or subcontractor for the instal- lation and servicing of all types of heating , ventilat- ing and air-conditioning systems. Thornton Heating was the source of Thornton Heating & Cooling's officers and superintendent . The new corpo- ration's president was and is Robert E . Waddell, who, prior to the birth of Thornton Heating & Cooling, had been employed by Thornton Heating for 3 or 3-1/2 years in sales and estimating . Thornton Heating & Cooling's secretary, Tina Goldman, was, prior to November 17, 1986, an employee of Thornton Heating. I note that Thornton Heating's annual corporate report to the State of Illinois shows that she was assistant secretary of that corporation as of January 27. In November , Richard Larrance, a former Thornton Heating employee, re- placed Goldman as secretary of Thornton Heating & Cooling. Goldman's name did not appear on Thornton Heating's payroll list of March 31.2 At all times material to this case , Thornton Heating & Cooling has maintained its office and place of business at 139 South Wheeling Road , Wheeling, Illinois. Thornton Heating's place of business is housed at 137 , in the same building. Fred Starck expressly authorized Waddell to use "Thornton" in the new business without limitation or charge. However, only Thornton Heating's name ap- pears on the door to 137 and no name appears on the en- trance to 139. Thornton Heating & Cooling's name does not appear anywhere on the outside of the building. Thornton Heating leased the premises at 139 to Thorn- ton Heating & Cooling in November 1986, when the latter firm began its business operations. The record shows that Thornton Heating was also an important source of rank-and-file personnel for the new corporation. Thus, Thornton Heating & Cooling's records show that by December 31, 1986, it employed 10 employees, including Waddell and Goldman. Of the re- maining eight, seven were on Thornton Heating's payroll as of September 30, 1986 By the end of the first calendar quarter of 1987, Thornton Heating & Cooling's payroll had increased to 19, of whom 13 had been on Thornton Heating's payroll as of September 30, 1986 . I also note that 6 of the 19 appeared on payroll records of both firms for the calendar quarter ending March 31 I find from Waddell's testimony and Thornton Heating & Cooling's payroll records that as of December 23, 10 of its employees were formerly Thornton Heating employ- ees, and the seniority dates shown on those records re- flect when they began working for the latter firm. Employing a substantial number of former Thornton Heating employees, Thornton Heating & Cooling per- forms both commercial and residential heating, ventilat- ing, and air-conditioning work , but mostly residential. I find from Waddell's testimony that Thornton Heating & 2 The record does not disclose whether Goldman returned to Thorn- ton Heating's employ Waddell testified that he did not know whether she currently worked for Thornton Heating 306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cooling employs former Thornton Heating sheet metal workers Robert J. Miller and James E. Malloy, and a third, newly hired sheet metal worker, Gene M. Rich- ardson. These three employees double as installers. Em- ployee Joseph D. Kiepura, whose name appeared on both payrolls for the quarter ending March 31, is an in- staller for his current employer, Thornton Heating & Cooling. Superintendent Richard H. Larrance, a former Thornton Heating employee, supervises Thornton Heat- ing & Cooling's sheet metal workers. Service employee Art Sanchez, whose name appeared on both payrolls for the quarter ending March 31, is a serviceman, and thus performs neither sheet metal work nor installation. Thornton Heating & Cooling also employs former Thornton Heating employees William and Michelle Starck on a part-time basis. The two children of Fred Starck were on both payroll lists for the quarter ending March 31. In their current employment, William is a helper, assisting in cleaning up, straightening inventory, and emptying wastepaper baskets, and Michelle is an office employee. Craig M Veselits, a former Thornton Heating employee, is an estimator and a draftsman for Thornton Heating & Cooling. He also provides drafting for Thornton Heating. Ed Carey and Dean O' Brien also work in Thornton Heating & Cooling's office. Carey, an employee of that firm, is a salesman . I also find from the undenied testimony of Clarence Schnackel and Nicholas Gregory and payroll records that O'Brien is and has been at all times since the calendar quarter ending on June 30, 1986, an employee of Thornton Heating. The record reveals a close relationship between Thornton Heating and Thornton Heating & Cooling Since the summer of 1987, there has been an interior pas- sage cut through the wall separating their offices. I find from the testimony ' of Thornton Heating employee Kerry Seal, and former Thornton Heating employee Nicholas Gregory, that Thornton Heating's fabrication shop located in 137 South Wheeling does work for both firms, and that Thornton Heating & Cooling does not have a fabrication shop. I also find from Gregory's testi- mony that one soft drink dispensing machine located in Thornton Heating's fabrication shop, services the em- ployees of both firms. The two firms share the use of a photocopying machine located in the short hall that links their offices. The rear portion of 139 serves as a ware- house for equipment and supplies such as furnaces, hu- midifiers, cleats, and other items used in the work of both Thornton Heating and Thornton Heating & Cool- ing. I find from Kerry Seals' and Gregory's testimony that there is a material storage area at 137. I also find from their testimony that employees of both firms draw equipment and supplies from both locations. Thornton Heating and Thornton Heating & Cooling have also pooled their vehicles. Thornton Heating Serv- ice employee Kerry Seal makes emergency service calls in Thornton Heating & Cooling's van. Nicholas Greg- ory, a former Thornton Heating employee, occasionally delivered material to his jobsites using either his employ- er's truck or a Thornton Heating & Cooling van. At other times, a Thornton Heating employee would deliver material to Gregory, frequently using a Thornton Heat- ing truck, but occasionally in Thornton Heating & Cool- ing's van. Each of the two firms identified its own vehi- cles by painting its firm name on their sides Mark Gre- million observed that Thornton Heating drivers usually made deliveries to Thornton Heating & Cooling jobsites in their firm's trucks. However, on one occasion, Gremil- lion observed a Thornton Heating driver making such a delivery in Thornton Heating & Cooling's van.3 The telephone listings, and the treatment of incoming calls and mail also contribute to the impression of kin- ship. President Waddell purchased advertising space in the 1987-1988 telephone yellow page directory, serving a portion of Chicago's suburbs to stimulate Thornton Heating & Cooling's business. The advertisement pro- claimed that Thornton Heating & Cooling had "over 25 years of reliable service in this area."4 The ad also listed residential, commercial, and industrial, and portrayed Master Charge and Visa credit card logos. The tele- phone number listed on the ad was 541-4336. In the center of the advertisement were the letters "THC" in a format which closely resembled that of the "THS" shown on the service sticker which Thornton Heating affixes to newly installed furnaces, and shows on its let- terhead. However, Thornton Heating & Cooling was not listed either in the 1987-1988 Northwest Regional White Pages issued by Illinois Bell, or in the White pages of the 1987-1988 edition of the Community Telephone Directo- ry, serving the same suburban Chicago communities as the yellow page directory does. Thornton Heating's telephone number was listed in both the 1987-1988, Northwest Regional White Pages and the white pages of the 1987-1988 edition of the Community Telephone Directory referred to above. The telephone number listed for Thornton Heating in the white pages was 541-6054 I find from Fred Starck's testimony that Thornton Heating's receptionist stationed in its office, answers in- coming calls for both her employer and for Thornton Heating & Cooling. 5 I also find from his testimony that the two firms are joined on a common telephone system. I find from the testimony of Mark Gremillion that calls on Thornton Heating & Cooling number could be direct- ed to Fred Starck's office phone. I find from the testimo- 3 My findings regarding the use of Thornton Heating's and Thornton Heating & Cooling's vehicles are based on the credited testimony of Nicholas Gregory and Mark Gremillion 4 The record does not reveal the basis for the claimed 25 years of serv- ice Robert E Waddell has approximately 18 years' experience in the sheet metal business, including heating, air conditioning, ventilation, in- stallation, and service Thornton Heating has been in that business only since 1974 The record did not disclose when Fred Starck began working in the installation and servicing of heating, air conditioning, and ventila- tion equipment 5 Robert E Waddell testified that he did not know if Thornton Heat- ing's secretaries answered Thornton Heating & Cooling's telephone He also testified that Linda Bredinger answered his firm's phone However, when questioned about how she answered, he first answered "Thornton Heating and Cooling Thornton " When asked if in fact she answered, "Thornton Heating," he answered that he "never paid much attention" and thus could not answer When pressed further with leading questions attempting to fathom his recollection of how his phone was answered, Waddell parried counsel's questions with qualified answers which were not responsive Thus, I found his testimony to be of no help in arriving at my findings regarding how Thornton Heating & Cooling's incoming calls were answered THORNTON HEATING SERVICE ny of Nicholas Gregory, who was an employee of Thornton Heating for 1 year, ending October 30, that on the average of once per week, Gregory phoned his em- ployer's office for job instructions, and that, he used either 541-6054 or, if that line was busy, 541-4336. Re- gardless of which number he used, either "Tina" or "Maureen" would answer, "Thornton Heating Serv- ice."6 The record shows that on December 17, Thornton Heating Cooling's employee, Linda Bredinger, received an item of mail addressed to her employer, Robert E. Waddell, Thornton Heating & Cooling Co., and a second one for Fred Starck, Thornton Heating. She also execut- ed a postal service return receipt on behalf of each ad- dressee. There was no showing that she was censured, or otherwise disciplined because she had signed a receipt for Thornton Heating. Nor was there any showing that Fred Starck objected to her action on his behalf. I also note that in at least one instance , Thornton Heating & Cooling was able to use its neighbor's name and warranty to obtain a contract Thus, in a successful contract proposal dated June 15, and signed by President Waddell, there was the following warranty: Thornton Heating Service, Inc. warranties entire system as installed, parts and labor, for a period of 90 days and on extended parts only warranty for the balance of the first year. The close relationship of the two firms also manifested itself in the treatment of insurance matters. Thornton Heating & Cooling's records show that Mark Gremillion was its employee for 9 weeks ending on June 10.7 I also find from his testimony that when he reported for work in March, Rick Larrance handed him an insurance book- let, on the cover of which was printed "Thornton Heat- ing Service," Larrance advised Gremillton, in substance that the booklet contained Thornton Heating & Cool- ing's insurance policy. The history of one insurance claim suggests that the officers of the two firms considered them to be a single entity. On July 7, Thornton Heating employee Gregory sustained a job-connected injury Thornton Heating's worker's compensation insurance policy with State Farm Fire and Casualty Company covered Gregory's claim. Thornton Heating prepared a report of Gregory's mishap dated July 14. Tina Goldman prepared the report, signed off as "Secy," and wrote in Thornton Heating's tele- phone number, 541-6054. By letter dated July 30, Patricia Perkins, a claim serv- ice representative for State Farm Fire and Casualty 6 Gregory did not provide the family names of employees who an- swered the phone when he called However, Thornton Heating's payroll list for the quarter ending on March 31, included Maureen B Dwyer The record does not reveal any other person with that given name Tina Goldman is the only "Tina" mentioned in the record before me I find, therefore, that Gregory was refernng to those two employees in his cred- ited testimony Gremillion testified that he worked for Thornton Heating & Cooling between March and mid-May He generally impressed me as a candid and reliable witness However, in this instance, I have relied on Thornton Heating & Cooling's payroll record dated December 23, which were more likely to be accurate than Gremillion's memory, in view of the ap- parent care with which that record was prepared 307 Company, advised Thornton Heating & Cooling that State Farm had received Gregory's claim and was proc- essing it. In a letter to Gregory bearing the same date, Perkins advised him that State Farm was processing his Heating & Cooling. The letter shows that a carbon copy was sent to Thornton Heating & Cooling. Perkins issued a third letter, also dated July 30, referring to a check sent to the hospital which had treated Gregory's injury. Again, reference was made to Thornton Heating & Cool- ing as the insured, and the letter shows that a carbon copy was sent to Thronton Heating & Cooling. I find from Perkins' testimony that Thornton Heating and Thornton Heating & Cooling shared the same insur- ance agent, who treated them as a single entity. She re- ferred to Thornton Heating and Thornton Heating & Cooling by the name "Thornton." In any event, the cor- respondence shows that State Farm processed a Thorn- ton Heating employee's claim as if a Thornton Heating & Cooling employee had filed it However, there was no showing that Tina Goldman or Robert E. Waddell made any effort to correct this error when it surfaced on Thornton Heating & Cooling's copies of State Farm's correspondence. The relationship between Thornton Heating and its neighbor, Thornton Heating & Cooling is most vividly portrayed by their treatment of employees. Mark Gre- million obtained employment at Thornton Heating & Cooling in March, after seeing its ad in a newspaper. When he arrived at Thornton Heating & Cooling, Robert E. Waddell interviewed him initially, for approxi- mately 10 minutes. Waddell explained some of the work, asked a few questions about sheet metal work, showed some blueprints, and then contacted Fred Starck by phone. Waddell invited Starck to his office. When Starck arrived, he began interviewing Greml- lion about his skills. Starck went on to describe the bene- fits Gremillion would enjoy if he took the job with Thornton Heating & Cooling. Starck also explained that "this was a union/non-union shop, that there was two different shops here, and that [Gremillion] would be working in the Thornton Heating & Cooling end of it." Gremillion began working for Thornton Heating & Cooling in March. On his first day on the job, he report- ed to Robert E. Waddell. After a discussion of Gremil- lion's first assignment, Waddell directed him to see Fred Starck. Starck instructed Gremillion to go to a job and dia- grammed the work to be done. Starck told Gremillion to take materials from the Thornton Heating shop, put them in a van, and go to the job. At first, when Gremillion had any problem or question about his work, he telephoned Thornton Heating & Cooling and asked for Robert E. Waddell, Richard H. Larrance, or Craig M. Veselits. However, after 2 or 3 weeks, Gremillion took his problems up with Fred Starck, at the latter's instructions. On at least two occa- sions, Starck called Gremillion at home to discuss work. While working on a job for Thornton Heating & Cool- ing, Gremillion worked with two Thornton Heating em- ployees. One of the two, James Malloy, a helper, worked with Gremillion for a considerable portion of the time 308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The other Thornton Heating employee, Kerry Seal, worked with Gremillion only for 1 day. During his 9 weeks' employment by Thornton Heating & Cooling, Gremillion suffered reprimands on three or four occasions . Fred Starck issued most of them.8 When employee Kerry Seal applied to Thornton Heat- ing for a job in mid-November 1986, Fred Starck inter- viewed him. In the course of his remarks, Starck ex- plained that he was running a "split shop," that he owned Thornton Heating, the union portion, and that he had nonunion employees whose "boss" was his partner Starck did not mention Robert E. Waddell by name. As a rule, either Fred Starck or Thornton Heating & Cooling's Richard Larrance tells Kerry Seal what work he will be doing on the following workday In the course of his employment, Seal has, on a few jobsites, re- ceived directions on how to proceed with his work from Superintendent Larrance. During a 4- or 5-month job as- signment, during which Seal worked with Thornton Heating & Cooling employee Robert J. Miller, both Fred Starck and Larrance visited the site a few times to see how the work was progressing. In the summer of 1987, Seal, on instructions from Starck, helped a Thornton Heating & Cooling employee for 1 day. Periodically, Seal receives along with his paycheck an emergency service work schedule showing which em- ployees are subject to call on weekends, and after hours during the week. Seal received a schedule dated August 14 listing him, together with another Thornton Heating employee, Joe Eberwein, two rank-and-file Heating & Cooling employees, and Superintendent Larrance, who was to be available "as backup only." The schedule, pre- pared on a Thornton Heating letterhead, did not disclose its source.9 Superintendent Larrance is Fred Starck 's lieutenant. Larrance oversees the larger service jobs, issues work orders to both Thornton Heating & Cooling's and Thornton Heating's employees, including their service employees, and visits jobsites. During the late spring and early summer, Larrance visited a jobsite at which Thorn- ton Heating employees Seal and Gregory were working. He asked them if they needed anything and gave them directions for accomplishing their work. Gregory received his job assignments either in person, "from 137 or 139 or by telephone." When a telephone call was required, either Gregory would call "the shop" or "the shop" would call his home. When Gregory called in, he used either 541-6054 or 541-4336. He also received written assignments and instruction from either Fred Starck or Rick Larrance. On one occasion, in November or December 1986, Starck assigned Gregory to work at the Powell resi- dence. Gregory worked there for 1 day along with two Thornton Heating & Cooling employees. The three em- ployees performed residential sheet metal work. They in- stalled supply and return ducts. 8 I based my findings regarding Gremillion 's experiences while in Thornton Heating & Cooling's employ, including his encounters with Starck, on Gremillion's testimony 9 My findings in the preceding three paragraphs are based on Kerry Seal's testimony During the period from December 1986 until Febru- ary, Gregory was working on a jobsite at Glenview, Illi- nois, with three other Thornton Heating employees. At one point, Gregory told Fred Starck that he needed help. Starck sent Thornton Heating & Cooling employee Ralph Mischke to Gregory's assistance . Mischke helped for about 1 hour. On July 2, Starck told Gregory that there could be no work on July 3, which was a holiday. If Gregory and his colleagues, Clarence Schnackel and Kerry Seal, had worked on Friday they would have been entitled to double pay under the 1986 collective-bargaining agree- ment. 10 While Gregory was in Starck's office, he noticed a blackboard showing that Thornton Heating & Cooling employees Miller and Molloy were scheduled to work on Friday. Gregory also observed that Miller and Molloy would be working at the Scully residence, where Seal and he, Gregory, had been working. i i During his 9 weeks' employment at Thornton Heating & Cooling, Mark Gremillion regularly put his weekly timecards in Maureen Dwyer's bin, located in Thornton Heating's office. He received weekly paychecks from Robert E. Waddell, which carried the signatures of Wad- dell and Lawrence P. Styne, Thornton Heating's book- keeper. Nicholas Gregory, who was an employee of Thornton Heating for 1 year, ending in October, observed Styne handing out paychecks to Thornton Heating & Cooling employees regularly I also find from his testimony that he regularly observed Thornton Heating & Cooling em- ployees turning in their timecards to Tina Goldman, Maureen Dwyer, or, prior to Dwyer's arrival in early 1987, to Alexi, an employee of Thornton Heating Thornton Heating employee Kerry Seal has regularly re- ceived his paycheck at the office in 137. In June or July, he observed two Thornton Heating & Cooling employ- ees picking up their paychecks from Styne. In December 1986, Thornton Heating's employees celebrated Christmas with Thornton Heating & Cooling's employees at a party held at 139 South, Wheeling Road. In the course of the festivities, Fred Starck handed out bonus checks and paychecks to employees of each of the firms. 12 The employees of both firms participated in the next year's Christmas party at 139 South Wheeling Road. This time, Starck distributed checks to Thornton Heat- ing's employees, and Waddell did the same for Thornton Heating & Cooling's employees. Thornton Heating & Cooling's draftsman, Craig Veselits collected money from both firms' employees to purchase a gift for Starck.i8 to Art VI, sec 6,4,C, of the 1986 contract provided in pertinent part All work performed on legal holidays viz New year's Day, Memo- rial Day, Fourth of July or days celebrated as such shall be paid for at the rate of double time My findings regarding Gregory's dealings with Fred Starck are based on Gregory's testimony 12 My findings regarding the 1986 Christmas party are based on the testimony of Seal, Schnackel, and Gregory 18I based my findings regarding the second Christmas party on Seal's testimony of THORNTON HEATING SERVICE I find from the credited testimony of Schnackel, Gre- million, and Gregory that Robert E. Waddell has not participated in the day-to-day direction of Thornton Heating & Cooling's employees. In his testimony before me, Schnackel identified Robert E. Waddell as an estima- tor employed by Thornton Heating & Cooling Gremil- lion's testimony showed that during his brief employ- ment by Thornton Heating & Cooling, Fred Starck su- pervised his work. Indeed, on the first day of that em- ployment, Robert E. Waddell referred Gremillion to Starck. Ultimately, Starck, not Waddell, directed Gre- million's work, answered his questions, and helped him to obtain materials Robert E. Waddell's role in Gremil- lion's employment was to sign and give a weekly pay- check to him. Gregory's testimony showed that Thorn- ton Heating & Cooling's superintendent, Larrance, di- rected his work on a daily basis Indeed, Gregory con- sidered Larrance to be Starck's "right-hand man " Greg- ory often observed Thornton Heating & Cooling em- ployees Gremillion, Miller, Molloy, Richardson, and Mischke talking to Larrance or Starck, in Thornton Heating's office. Absent from Gregory's testimony was any mention of Robert E Waddell in a supervisory con- text. In March, the Union's business representative, Antho- ny Scavone, heard that two nonunion employees were working on a Thornton Heating jobsite. Scavone went to the site, where he found Thornton Heating & Cooling sheet metal workers Miller and Richardson. The two em- ployees told Scavone that they worked for "Thornton." Scavone telephoned Starck, who denied that the two were his employees Starck added that they were Thorn- ton Heating & Cooling employees. On a second occasion, in mid-May, Scavone found Miller and a second nonunion employee at another Thornton Heating jobsite. On June 26, Scavone, on behalf of the Union, filed the unfair labor practice charge in the instant case. A copy of the charge was served on the Respondent. On July 8, the Union instituted the second step of the grievance procedure under its then-current collective- bargaining agreement with Thornton Heating.' The Union, by its counsel, notified Thornton Heating of the pending grievance' on July 18. To date, the dispute re- mains unresolved B. Analysis and Conclusions In determining whether the Respondent violated Sec- tion 8(a)(5) and (1) of the Act, I must consider whether under Board law, Thornton Heating and Thornton Heat- ing & Cooling constitute a single employer and whether an employerwide unit is appropriate in this case. For, if I find a single employer relationship and determine that an employerwide unit is appropriate, then a bargaining agreement covering a unit of Thornton Heating's em- ployees could be binding on Thornton Heating & Cool- ing, along with Thornton Heating's duty to bargain. Neighborhood Roofing, 276 NLRB 861, 868 (1985). In determining whether two nominally separate firms are in fact a single employer, the Board considers four factors: (1) functional integration of operations; (2) cen- tralized control of labor relations; (3) common manage- 309 ment; and (4) common ownership. Watt Electric Co., 273 NLRB 655, 657 (1984). Examining the facts recited above, I find that the record amply shows that the first three factors are present in this case. Beyond question, Thornton Heating and Thornton Heating & Cooling are functionally integrated They share the same premises, the same telephone system, have what amounts to a joint motorpool, and otherwise share employees and other resources in support of each other's business. The control of both firms' labor relations resides with Fred Starck. The hiring and interviewing of Thornton Heating & Cooling's Mark Gremillion demonstrated that Fred Starck maintains control of that firm's labor rela- tions. The record also shows that Starck controls Thorn- ton Heating's labor relations. He interviewed and hired Thornton Heating employees. Further, Starck's signature appears on a supplemental collective-bargaining agree- ment between the Union and Thornton Heating. Finally, Starck demonstrated his role in the labor relations of both firms, soon after Thornton Heating & Cooling's birth, when he distributed bonuses and paychecks to em- ployees of both firms at a point Christmas party. The record makes clear that, together, Thornton Heat- ing's Fred Starck and Thornton Heating & Cooling's su- perintendent, Rick Larrance, control the day-to-day de- ployment of their respective sheet metal workers, their equipment, and material. Fred Starck is the dominant figure in the supervision and management of the two firms. Larrance is his lieutenant. I have also found that the sheet metal employees of both firms serve on a common weekend and after-hours emergency service roster, drawn up on Thornton Heating stationery. The employees of both firms turn their timecards over to Thornton Heating office employees and receive pay- checks from a Thornton Heating employee. The less-than-arm's-length relationship between the two firms, and the attempt to present them as a single entity to the public reflect the integration and common management of the two firms. Although Thornton Heat- ing's and Thornton Heating & Cooling occupy portions of the same building, only Thornton Heating's name ap- pears on the structure. The local telephone directory white pages list Thornton Heating's telephone number, but none for Thornton Heating & Cooling. The local telephone yellow page directory contains an advertise- ment and listing for only Thornton Heating & Cooling. However, whichever number one uses, the response will be "Thornton Heating Service." The use of the same two words in the names of both firms and the great simi- larity in their logos strongly suggest a hope that potential customers will perceive that they have a close kinship. Thornton Heating & Cooling carries the effort into its contracts which include a provision under which Thorn- ton Heating "warranties" the former's work, including "parts and labor." In sum, the facts before me in this case satisfy the Board's test for showing that two firms constitute a single employer. Accordingly, I find that Thornton Heating and Thornton Heating & Cooling are and have 310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD been since November 17, 1986, a single employer Park- lane Hosiery Co., 203 NLRB 597, 612 (1973). Such a finding, however, does not dispose of the unit issue. For, as the Court stated in South Prairie Construc- tion v. Operating Engineers Local 627, 425 U.S. 800, 805 (1976): [A] determination that two affiliated firms constitute a single employer "does not necessarily establish that an employerwide unit is appropriate, as the fac- tors which are relevant in identifying the breadth of an employer's operation are not conclusively deter- minative of the scope of an appropriate unit." An employerwide unit is presumptively appropriate under Section 9(b) of the Act. Jackson's Liquors, 208 NLRB 807, 808 (1974). In this case, the facts show that the two firms are functionally integrated, that their sheet metal workers enjoy the same skills, work under a cen- tralized management, and common supervision, and that they work together from time to time. I have also found that Fred Starck controls the labor relations of the two firms. As the record shows that the two firms are closely allied, I find that a single unit, including the sheet metal employees of Thornton Heating, and those of Thornton Heating & Cooling, is appropriate for purposes of collec- tive bargaining. Neighborhood Roofing, supra. ' At the hearing, Thornton Heating moved to dismiss the' complaint on the ground that there was no showing that the Union demanded that the collective-bargaining agreement be extended to Thornton Heating & Cooling's sheet metal employees. However, where, as here, two firms comprise 'a single employer, and an employerwide unit is appropriate, the collective-bargaining agreement covering the employees of one of the firms will bind the single employer. Walter N. Yoder & Sons, Inc., 270 NLRB 652 fn. 2 (1984). Thus, I find that the Respond- ent's failure to extend the collective-bargaining agree- ment which covered Thornton Heating's sheet metal em- ployees to Thornton Heating & Cooling's sheet metal employees on and after November 17, 1986, violated Section 8(a)(5) and (1) of the Act. Accordingly, I deny the motion to dismiss the complaint. CONCLUSIONS OF LAW 1. Thornton Heating Service, Inc. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Thornton Heating Service, Inc. and Thornton Heat- ing & Cooling Co. constitute a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. ' 3. Sheet Metal Workers' International Association Local No. 73 is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. 4. The following employees of the Respondent, Thorn- ton Heating Service, Inc. and Thornton Heating & Cool- ing Co., constitute a unit appropriate for collective bar- gaining within the meaning of Section 9(b) of the Act: All employees of Thornton Heating Service, Inc., and Thornton Heating & Cooling Co, engaged in sheet metal work, as described in Article I, Section 1.1 of the collective bargaining agreement between the Sheet Metal Contractors Association and the Union, effective from June 1, 1986, until May 31, 1988, but excluding guards and supervisors as de- fined in the Act. 5. At all times material, the Union, Sheet Metal Work- ers' International Association Local No. 73, has been the exclusive collective-bargaining representative of the em- ployees in the appropriate unit, within the meaning of Section 9(a) of the Act. 6. By failing and refusing to recognize and bargain with the Union as the exclusive representative of all of its employees in the appropriate unit, including the em- ployees of Thornton Heating & Cooling Co., and by fail- ing to extend the collective-bargaining agreement to the employees of Thornton Heating & Cooling Co., Re- spondent has violated Section 8(a)(5) and (1) of the Act. 7. The aforesaid violations of the Act are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I shall order Respondent to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. Specifically, I shall recommend that Thornton Heating Service Inc. and Thornton Heating & Cooling Co. be ordered to honor the terms of the current collective-bargaining agreement, and to apply the terms of that agreement to all employees in the appropriate unit described above, in- cluding the employees of Thornton Heating & Cooling Co. Respondent shall also be ordered to reimburse those unit employees denied contractual hourly wage and overtime rates, and shall do so in a manner consistent with Board policy as stated in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Finally, Respondent shall be ordered to recognize and, on request, bargain collectively with the Union as the ex- clusive bargaining representative of all their sheet metal employees, including the employees of Thornton Heating & Cooling Co. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'' 14 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses THORNTON HEATING SERVICE 311 ORDER The Respondent, Thornton Heating Service, Inc. and Thornton Heating & Cooling Co., Wheeling, Illinois, their officers , agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to recognize and bargain collectively with the Union, Sheet Metal Workers' International Associa- tion Local No. 73, as the exclusive bargaining represent- ative of all employees in the following bargaining unit. All employees of Thornton Heating Service, Inc., and Thornton Heating & Cooling Co., engaged in sheet metal work, as described in Article I, Section 1.1 of the collective bargaining agreement between the Sheet Metal Contractors Association and the Union, effeetive from June 1, 1986, until May 31, 1988, but excluding guards and supervisors as de- fined in the Act. (b) Refusing to apply the terms and conditions of the collective-bargaining agreement between the Sheet Metal Contractors Association and the Union to all employees in the unit, set forth in paragraph 1(a). (c) In any like or related manner interfering with re- straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain with the Union as the exclusive bargaining representative of all employ- ees in the bargaining unit set forth in paragraph 1(a). (b) Apply the terms and conditions of the collective- bargaining agreement between the Sheet Metal Contrac- tors Association and the Union to all employees in the bargaining unit set forth in paragraph 1(a), including the employees of Thornton Heating & Cooling Co. (c) Make employees whole for any loss of earnings suffered as a result of the failure to apply the contractual hourly wage and overtime provisions to unit employees, in the manner set forth in the remedy. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at Respondent's jobsites and offices copies of the attached notice marked "Appendix." 15 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- 11 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 " ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to recognize and bargain with Sheet Metal Workers' International Association Local No. 73, as the exclusive bargaining representative of all of you in the following bargaining unit. All employees of Thornton Heating Service, Inc., and Thornton Heating & Cooling Co. engaged in sheet metal work as described in Article I, Section 1 1 of the collective bargaining agreement between the Sheet Metal Contractors Association and Sheet Metal Workers' International Association Local No. 73, effective from June 1, 1986, until May 31, 1988, but excluding guards and supervisors as defined in the Act WE WILL NOT refuse to apply to you the terms and conditions of collective-bargaining agreement between the Sheet Metal Contractors Association and Local No. 73. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, bargain collec- tively with Local No. 73, as the exclusive bargaining representative of those of you in the bargaining unit set forth above, including the sheet metal employees of Thornton Heating & Cooling Co. WE WILL apply to you the terms and conditions of the collective-bargaining agreement between the Sheet Metal Contractors Association and Local No. 73. WE WILL make you whole for any loss resulting from our failure to apply the collective-bargaining agreement's hourly wage and overtime rates to you, plus interest. THORNTON HEATING SERVICE, INC.