The Arundel Corp.

THE ARUINDEL CORPORATION The Arundel Corporation and Petroleum, Construc- tion, Tankline Drivers and Allied Employees Local Union No. 311 a/w International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America and International Union of Operating Engineers, AFL-CIO. Case 5-CA-1 1229 September 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PNEI.I.O On July 30, 1980, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting memorandum. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and memorandum and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE BERNARD RIEs, Administrative Law Judge: This matter was heard before me in Baltimore, Maryland, on February 19 and 20, 1980. The complaint alleges, and the answer denies, that when Respondent opened a quarry in Havre de Grace, Maryland, at the end of 1978 and ex- tended recognition to the International Union of Operat- ing Engineers, AFL-CIO, Local No. 37, instead of to the Charging Party, as the collective-bargaining repre- sentative of certain employees at the quarry, Respondent violated Section 8(a)(5) and (2) of the Act. Briefs have been received from the General Counsel and Respondent. On the basis of the briefs and the entire record in this case, I make the following findings of fact, conclusions of law, and recommended Order.2 Certain errors in the transcript are hereby noted and corrected. I The pleadings establish, and I conclude, that it is appropriate for the Board to assert jurisdiction in this case. The pleadings further show. and I further conclude, that the labor organizations involved are statutory labor organizations within the meaning of Sec. 2(5) of the Act 252 NLRB No. 59 I. A RIEF SUMMARY OF THE PERTINENT FACTs. Respondent is a large corporation headquartered at 110 West Road in Baltimore, Maryland. As a corporate entity, it has three principal divisions: a material supply division, which furnishes concrete, slag, stone, sand, gravel, etc. to the construction trades; a construction di- vision, which builds dams, power plants, and similar structures; and a real estate division, which is involved in the development of commercial real estate. Respondent also conducts operations through various subsidiaries, which are engaged in a miscellany of construction-relat- ed activities in Maryland, Virginia, and North Carolina. For a number of years, Respondent has directly con- tracted with Teamsters Local Union No. 311, the Charg- ing Party herein, as the collective-bargaining representa- tive of certain of its employees. The most recent bargain- ing agreement contains the following recognition lan- guage: "The Employer hereby recognizes the Union as the exclusive collective-bargaining agent for all of the employees of the Employer who are employed by the Arundel Corporation in all stone quarries, sand and gravel pits and supply terminals in the work classifica- tions listed in Article V." Article V shows the classifica- tions of "Euclid Truck Driver (Quarry Drivers)," "Ship- ping Clerks," "Dump Truck Drivers (Delivering Agg.)," and "Pick-up Truck Drivers." At the time the present dispute arose, the contract was being applied to three of Respondent's operations, all of which are under the materials division. One was a quarry known as the Delight quarry, located in Delight, Mary- land; one was a quarry referred to as Greenspring, which is on Greenspring Avenue, immediately inside the beltway; and the third was a facility at Brooklyn, Mary- land, in southern Baltimore, which was not a quarry, but rather a supply terminal and a concrete plant. All three of these operations are located in an area proximate to the Baltimore metropolitan region. At these locations, Respondent also recognized and contracted with two other labor organizations, Operating Engineers Local No. 37 and a Laborers local, as the bargaining agents of other employees working in various classifications. In 1977, Respondent decided to develop and put into operation a quarry which it owned at Havre de Grace, Maryland. The quarry is located about 37 miles from Arundel's headquarters on West Road. Site preparation for the purpose of building a stone-crushing plant began around September 1977, using some employees from the Delight quarry and the Greenspring quarry who had been laid off. The Teamster bargaining agreement was applied to some of these employees while they were doing the excavation work. During 1977 and 1978, officials of Arundel Corpora- tion met to discuss the possibility of running the new quarry as a nonunion operation. To accomplish that ob- jective, it was concluded that a virtually dormant corpo- ration, Arundel Sand and Gravel Company (herein called A. S. & G.), should be revived and given operat- 397 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing control over the Havre de Grace quarry. : A former employee of Respondent named Frank Yount was hired in 1977 to excavate the quarry, build the crushing plant, and manage the operation thereafter. Pursuant to the plan to have A. S. & G. operate the quarry, a board of three directors (one of whom was the president and a di- rector of Respondent and one of whom was a vice presi- dent of Respondent) and five officers (Yount being the president, Harry Schlegelmilch, the materials division operation manager of Respondent, being the vice presi- dent, and the secretary of Respondent being the secre- tary) were named as the overseers of A. S. & G. Around mid-December 1978, Yount hired about five employees to begin operating the new quarry. The first crushed stone was produced around December, and it apparently was available for sale at that time, although, because of mechanical problems with the crushing plant, normal operations did not begin for a few months there- after. A representative of the Operating Engineers, on De- cember 18, wrote a letter to Schlegelmilch, advising him that Operating Engineers Local No. 37 had been selected as collective-bargaining representative by a majority of the Havre de Grace employees, and requesting recogni- tion. Enclosed with the request were copies of five signed authorization cards. Schlegelmilch testified that after he discussed the problem with Yount, Bernard Ditter, the personnel director for Respondent, and Henry Boecker, the vice president in charge of the materials di- vision of Respondent and a director of A. S. & G., it was concluded that there was no way to avoid recognizing the Operating Engineers. On December 26, officials of Respondent and a representative of the Operating Engi- neers submitted the authorization cards to Donald L. Miller, director of the State Mediation Service for the State of Maryland, and on January 3, 1979, Miller issued a certification of Local No. 37 as the representative of "all hourly production and maintenance employees em- ployed by The Arundel Sand and Gravel Company at their Havre de Grace location, including equipment op- erators, mechanics and helpers and drivers, and exclud- ing office clericals, supervisors, guards and all other em- ployees." The testimony is in conflict as to the time at which the Teamsters became aware of, or should have been aware of, this grant of recognition. Perhaps as early as Decem- ber or as late as March,4 the Teamsters became aware of the recognition extended to the Operating Engineers and indicated to Arundel a desire to represent at Havre de Grace the same categories of employees that the Union represented at the other locations referred to above under the Teamsters bargaining contract. Respondent re- jected the request, pointing out that the Operating Engi- neers was officially certified to represent the drivers. In April 1979, Respondent and the Operating Engineers ex- ecuted a bargaining agreement covering all the Havre de a The evidence shows that A S. & G. was incorporated in 1908, but its function in recent years has evidently been little more than a landholding corporate shell. I Respondent, contending that the Teamsters was aware of the recog- nition in December, advances a Sec. 10(b) argument. The Teamsters did not file the present charge with the Board until July 18, 1979 Grace employees. On July 18, the Teamsters filed the charge underlying this case. II. ANALYSIS AND CONCLUDING FINDINGS The theory of the complaint may be summarized as follows. Arundel and A. S. & G. constitute a "single em- ployer," as that term of art has been explicated by the Board in prior cases. Because of the asserted single iden- tity of the two corporations, the recognition provision of the bargaining agreement between Respondent and the Teamsters, which covers "all of the employees of the Employer who are employed by the Arundel Corpora- tion in all stone quarries, sand and gravel pits and supply terminals" in specified work classifications, applies to the employees of A. S. & G. in those classifications who were hired to work at the Havre de Grace quarry. 5 Ac- cordingly, the complaint alleges, the refusal of Arundel to recognize Teamsters Local 311 as the bargaining rep- resentative of certain of the Havre de Grace employees constituted a violation of Section 8(a)(5) of the Act; and Respondent's recognition of, and execution of a bargain- ing agreement with, the Operating Engineers, which agreement included a union-security clause, constituted unlawful assistance to the Operating Engineers, in viola- tion of Section 8(a)(2) of the Act, and further constituted a violation of Section 8(a)(3) of the Act insofar as the particular employees concerned were required to become members of the Operating Engineers by virtue of the union-security provision. As of the time of the hearing, there were 15 hourly employees working at Havre de Grace. Two of them were Euclid truckdrivers. 6 The only other Havre de Grace employee who might arguably qualify as an em- ployee covered by the Teamsters contract was a man who performed minimal "shipping clerk" duties and was described by Yount as his "office manager." At bottom, then, the claim asserted here is that the Board should order Respondent to recognize Teamsters Local 311 as the bargaining representative of two or three employees who have never designated the Teamsters to represent them in their employment at Havre de Grace, and should require Respondent to desist from extending rec- ognition to the Operating Engineers as the representative of those two or three employees. There seems to be little doubt that the General Coun- sel is correct in alleging that Respondent and A. S. & G. constitute a "single employer" under governing prece- dents. In Radio and Television Broadcast Technicians Local Union 1264, etc. v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965), the Supreme Court delineated the "controlling criteria" for determination of that rela- tionship as "interrelation of operations, common manage- s Thus, par. 6(c) of the complaint alleges that since around December 1978. "by virtue of the circumstances described above in paragraph 4 li.e. the single employer relationship] and the collective bargaining agreement set forth in paragraph 6 subparagraph (a). Respondent in- curred and continues to have an obligation to bargain with the Union as the exclusive bargaining representative of its Havre de Grace. Maryland employees who perform work within the classifications set forth in said agreement" ' The work function of these drivers is to haul exploded stone to a crusher. 398 THE ARUNDEL CORPORATION ment, centralized control of labor relations and common ownership." No one of the four criteria is dispositive, N.L.R.B. v. Welcome-American Fertilizer Company, 443 F.2d 19, 21 (9th Cir. 1971), nor need all of the criteria be present in order to establish that 2 entities constitute a single enterprise, Canton, Carp's, Inc., 125 NLRB 483, 484 (1959). The evidence here shows that A. S. & G. is a wholly owned subsidiary of Respondent, and was resurrected for the sole purpose of serving as a corporate instrumentality through which Respondent could operate the Havre de Grace quarry. The president and vice president of Re- spondent serve as two of the three directors of A. S. & G. The same individual is the secretary of both corpora- tions. Respondent's manager of operations for its materi- als division, Schlegelmilch, is the vice president of A. S. & G. All of the equipment used at Havre de Grace is owned by and is registered in the name of Arundel. Sim- ilarly, the quarry itself is owned by Arundel, and all li- censes and permits pertaining to the quarry are issued in the name of Arundel. Many of the parts needed at Havre de Grace are ordered from Arundel's supply department at Greenspring, and the repair and maintenance of equip- ment are performed by Arundel mechanics from Greenspring. Testimony by Respondent's managers discloses that they exercise ultimate operational control over the Havre de Grace quarry. Yount, who is the president of A. S. & G., refe,: to Schlegelmilch, the vice president of A. S. & G. and als, the operations manager of the Arundel mate- rials division, as "his boss." Schlegelmilch "review[s] Mr. Frank Yount's performance." Edward Beck, Schlegel- milch's subordinate, was said by Yount to be "the man- ager of all of our quarries," including Havre de Grace. Most of the records of A. S. & G. are maintained at Re- spondent's headquarters at 110 West Road, and the ac- counting for A. S. & G. is performed there. The payroll for A. S. & G. is processed through Arundel's computer facility based on information transmitted from A. S. & G. to the payroll office at Greenspring. The decision to extend recognition to the Operating Engineers was made by Respondent's officials, and the contract between that Union and A. S. & G. was negotiated by those officials. There seems to be no real need to recite every detail of the relationship, because I feel quite confident that the undisputed facts of record establish that Respondent and A. S. & G. are a "single employer" within the meaning of that term as elaborated by prior cases. E.g., American Theatre Corporation d/b/a Pussycat Theatre; Downtown Books. Inc.; and Global Industries, Inc., 220 NLRB 295, 296-297 (1975); Central New Mexico Chapter, National Electrical Contractors Association. Inc. and Represented Employees, 152 NLRB 1604, 1607-8 (1965); The Family Laundry, Inc. Standard Coat, Apron and Linen Service, Inc., 121 NLRB 1619, 1620 (1958). The fact, however, that two affiliated corporate enti- ties are, as a matter of law, a single employer, "does not necessarily establish that an employer-wide unit is appro- priate, as the factors which are relevant in identifying the breadth of an employer's operation are not conclusively determinative of the scope of an appropriate unit." Cen- tral New Mexico Chapter, ational Electrical Contractors Association. Inc., supra, 152 NLRB at 1608; B & B Indus- tries, Inc., and Fred Beachner, an Individual d/b/a Fred Beachner Construction Co., 162 NLRB 832 (1967). De- spite the theory of the case spelled out in the complaint, which seems to rest the asserted violations on the two simple criteria that Respondent and A. S. & G. are a single employer; and that Respondent was, at material times, a party to the contract with the Teamsters, con- taining the recognition clause earlier quoted, at the hear- ing; and on brief, the General Counsel has acknowledged that something more is needed to make out the case for the Government. The Board has consistently held that despite the exist- ence of a contract provision between an employer and a union which purports to cover "all" operations of an em- ployer, whether or not in esse at the time the contract was executed, it will not permit the contracting parties to treat a new operation as an accretion to the existing contract when the new operation may itself constitute an appropriate unit for bargaining. "We will not, however, under the guise of accretion, compel a group of employ- ees, who may constitute a separate appropriate unit, to be included in an overall unit without allowing those em- ployees the opportunity of expressing their preference in a secret election or by some other evidence that they wish to authorize the Union to represent them." Melbet Jewelry Co., Inc., and l.D.S.-Orchard Park, Inc., 180 NLRB 107, 110 (1969). 7 Thus, if a new location "may constitute a separate appropriate unit," the Board will not permit a union to insist that its broad contractual rec- ognition clause automatically blankets in the employees working there. As the Board further said in Melbet, "If the Board were to permit the extension of the contract covering other stores to the employees of this store (thereby very effectively disenfranchising them) on the ground that this store (although an appropriate unit in itself) may be part of that unit also, it would, in our opin- ion, do serious violence to the mandate that employees rights are to be protected and that appropriate unit find- ings under Section 9(b) must be designed to preserve those rights." 180 NLRB at 109. In Bryan Infants Wear Company, 235 NLRB 1305, 1306 (1978), the Board listed the following factors as "particularly relevant" in determining whether an accre- tion has occurred: "the bargaining history; the functional integration of operations; the differences in the types of work and the skills of employees; the extent of central- ization of management and supervision, particularly in regard to labor relations, hiring, discipline, and control of day-to-day operations; and the extent of interchange and contact between the groups of employees." An as- sessment of the evidence relating to the Havre de Grace quarry operation leaves no doubt in my mind that the new quarry "could constitute a separate appropriate unit," id. at 1306, within the meaning of Board law. As earlier noted in connection with the discussion of the * The Hoard will. however, interpret an "additional store clause" to require an employer to grant recognition to a union and to fold a new location into the existing unit upon presentation by the union of inde- pendent proof of its majority status at the new location Houston Division of the Kroger Co., 219 NLRB 388 (1975) 399 DECISIONS OF NATIONAL LABOR RELATIONS BOARD single employer issue, a considerable amount of oper- ational control over Havre de Grace is exercised by Re- spondent, similar to that which it exercises over Delight, Greenspring, and Brooklyn. Nonetheless, there is also evidence tending to show the kind of independence and autonomy at Havre de Grace which the Board has often found to warrant the conclusion that a particular oper- ation may be a separate appropriate bargaining unit. In the matter of physical proximity, the Havre de Grace quarry is located much farther from Respondent's headquarters at 110 West Road than the other three loca- tions concededly covered by the bargaining agreement. The distance from the West Road headquarters to Havre de Grace is about 37 miles. In contrast, the Brooklyn lo- cation is "close to 20 miles" from West Road, the De- light location is about 10 miles from the headquarters, and the Greenspring quarry is about 3-4 miles from West Road. Edward Beck, a subordinate of Schlegelmilch's who was referred to by the latter as "the manager of the Bal- timore quarry operations, Greenspring, Delight, Brook- lyn and into Havre de Grace," visits the Havre de Grace operation irregularly, from 2-4 times a month, and also speaks to Yount by telephone; 8 Schlegelmilch goes there once or twice a month, and speaks to Yount occasionally by phone. Aside from this kind of general oversight, however, there is no contradiction of the testimony by Respondent's witnesses that Yount, the "president" of A. S. & G., exercises substantial effective control over the daily operations at Havre de Grace. Schlegelmilch testi- fied that Yount "has day-to-day control over the work- ing conditions of employees at Arundel Sand and Gravel." He further testified that Yount has "exercised full control. He has hired everyone up there. He has fired everyone that has been fired. He has complete au- thority to run that operation." Yount testified, "I hire, fire, discipline, involve myself with the production, sales, shipping schedules, particularly as they pertain to our shipments and just about every other facet that enters into operating and running a plant." Indeed, Yount testi- fied that he has under him a "foreman" named James Wirtz who is even more conversant with "the day-to-day details" than Yount is.9 Wirtz, and then Yount, also en- tertain grievances under the Operating Engineers con- tract; sometimes Yount will confer with Schlegelmilch and Ditter, who negotiated the contract, about its inter- pretation. Yount also maintains certain personnel and production records at Havre de Grace, at which his office is housed in a trailer. Since the opening of the quarry for production around the end of 1978, there has been very little in the way of permanent or temporary personnel interchange between the Havre de Grace location and the other facilities op- erated by Respondent. Gary Pearce, who used to work at the Delight quarry as a driver, was transferred to Havre de Grace in November 1977 to prepare the plant- site and at that time worked as a truckdriver under the Teamsters contract. In September 1978, when the site H Beck, however, spends most of his time at the operations at Delight and Greenspring. g Wirtz referred to himself as the "superintendent" of the Havre de Grace location, as did one of the General Counsel's witnesses. preparation ended,' ° he transferred to the Greenspring quarry, where he drove a truck, until January 9, 1979. Shortly before the latter date, Pearce was asked if he was interested in working at Havre de Grace; when he replied in the affirmative, he was told to see Yount at Havre de Grace. He did so, and was hired by Yount. Pearce began work there not as a driver but rather "get- ting the plant ready to process stone." At the time of the hearing, he was employed as a "utility man" at Havre de Grace, which meant that he filled in for employees who were on vacation and ran "any of the equipment that they had." James Wirtz, who, as noted above, referred to himself at the hearing as the "superintendent" of A. S. & G. at Havre de Grace, had previously worked as an op- erating engineer at Greenspring. Larry Wiley was appar- ently the only other former Arundel employee who came to work for A. S. & G.; he was evidently hired to work on the site preparation of the Havre de Grace loca- tion, was laid off, and was subsequently hired "as a plant employee" at Havre de Grace. Since the quarry began regular operations, none of the employees working them have transferred on either a temporary or permanent basis to any other facility of Respondent's, and, except for the maintenance work done by Arundel employees on the equipment at Havre de Grace, there has been vir- tually no work performed at the site by any other Arun- del employees. The nature of the work performed at Havre de Grace also differs from that of the other locations presently covered by the Teamsters agreement. Although, accord- ing to Yount, the new plant will someday be a "tremen- dous operation," much larger than the other existing facilities, fewer employees are required to operate the more sophisticated equipment at Havre de Grace. There are only two drivers at Havre de Grace and perhaps "three or four times that many at Greenspring." Unlike the other quarries covered by the contract, about 90 per- cent of the crushed rock removed from the Havre de Grace site is transported by barge and only 10 percent by truck; consequently, there are working at Havre de Grace a number of dock workers who have no counter- part at the other quarries.12 Most of the stone produced at Havre de Grace in the year preceding the hearing was transported by customers up the Delaware River to Delaware, New Jersey, and Pennsylvania, and some of it went to Norfolk. In contrast, Greenspring, Delight, and Brooklyn sell to customers in the metropolitan area of Baltimore. One of the four classifications listed in the Teamsters contract is the "shipping clerk." The normal job function of such an employee is to weigh trucks as they leave the site and to make out weight tickets. Be- 'o Between September and December, when the five employees were hired, no work was performed at Havre de Grace other than plant con- struction. " It appears that on one occasion, Pearce's father-in-law, a welder, came from some other Arundel location to do some welding, and at an- other time, Louis Gray, a messenger for Arundel, spent a Saturday changing antifreeze in the equipment. The record shows that, on occa- sion, equipment is sent to Havre de Grace from other Arundel locations to temporarily replace equipment in need of repair. 12 At the Brooklyn supply terminal, however, there is barge traffic, "predominantly incoming." 400 THE ARUNDEI. CORPORATION cause there is so little offsite trucking from Havre de Grace, the employee who performs shipping clerk duties at that location does very little of that sort of work; ac- cording to Yount, on some days not one truckload leaves the premises. The "shipping clerk" at Havre de Grace, according to Yount, is, as well, an "office manager" who interviews applicants for work, seeks out potential cus- tomers, performs filing, etc., in addition to his occasional scale work. Given the separation of the locations, the lack of sub- stantial interchange and contact between the employees at those locations, the somewhat different character of the work performed at the locations, and the uncontro- verted evidence of Yount's considerable authority over the application of important personnel policies, the cases compel a conclusion that the Board would not, in a retail store context, find that the new operation is an accretion to the existing bargaining unit. See Super Valu Stores, Inc. and K's Super Valu of Peoria, Inc., 177 NLRB 899, 900; Melbet Jewelry Co., Inc., supra, 180 NLRB at 109; Bradford-Robinson Printing Co., 193 NLRB 928, 929 (1971); Meijer. Inc. d/b/a Meijer's Thrifty Acres, 222 NLRB 18, 24-25 (1976); Party Cookies, Inc., 237 NLRB 612, 615-616 (1978). I see no convincing reason for dis- tinguishing between quarry operations and retail store operations in determining whether an accretion has oc- curred. Under the standards set out in the foregoing, and like, cases, the new operation at Havre de Grace could consti- tute a separate appropriate bargaining unit, and therefore would not be regarded as an accretion to the other bar- gaining units. It will be remembered, however, that the claim here is not that the entire operation at Havre de Grace constitutes an accretion to the Teamsters unit. As indicated, at the other three locations at which the Teamsters was recognized, Respondent also recognized the Operating Engineers and the Laborers' Union as bar- gaining agents for other groups of employees at those lo- cations. The General Counsel does not here contend that all of the employees working at Havre de Grace are enti- tled to Teamster representation, but only those catego- ries listed in the Teamster contract. As a technical matter, therefore, while it seems clear that the cited cases require a conclusion that the entire operation at Havre de Grace may constitute a separate appropriate unit, and therefore would not be subject to accretion as a whole, it may be argued that there is some difference between not accreting the whole operation and the possibility of ac- creting the two truckdrivers to the Teamsters unit. Whether or not the truckdrivers themselves at Havre de Grace "may constitute a separate unit" is a debatable question. 3 However, despite this wrinkle in the case, it seems to me that the underlying principle of the cited cases applies here. If the entire new unit could not prop- erly be added to an existing multiunit contract because of 3J Indeed, the appropriateness of a single unit of drivers and shipping clerks at Delight, Greenspring, and Brooklyn may also be questioned. particularly in view of the different functions performed at Brooklyn. The record shows that. as of the time of he hearing, 21 employees at those 3 locations were represented by the Teamsters. At Brooklyn, there appear to be no drivers employed. and only the shipping clerk is repre- senied by the Teamsters. the various characteristics which endow it with an autonomous and separate nature, there is no reason to suppose that a portion of that unit, which portion shares those distinguishing characteristics of the whole unit, can appropriately be severed from the unit and lumped into a group with other units with which it has no special affin- ity, 4 I might note, purely as a question of contract con- struction, that there is no immaculately consistent past practice with regard to the application of the Teamsters contract to Respondent's operations. Although the rec- ognition clause applies to "all of the employees of the Employer who are employed by the Arundel Corpora- tion in all stone quarries, sand and gravel pits and supply terminals" in the given work classifications, it appears that the Teamsters has not in the past sought to apply the agreement to facilities operated by other subsidiaries of Respondent at other locations which would appear to qualify under the literal terms of the agreement. 5 It was purportedly with this consideration in mind that Re- spondent chose to operate the new quarry through A. S. & G. But an employer may legitimately attempt to estab- lish part of its business as a nonunion operation. Peter Kiewit Sons' Co. and South Prairie Construction Co., 206 NLRB 562 (1973), supplemented 231 NLRB 76 (1977). It appears here that Respondent sought to use to its advan- tage a bargaining history in which neither the Teamsters nor the Operating Engineers nor the Laborers had at- tempted, under their similar contracts, to represent em- ployees of corporate subsidiaries of Respondent. So long as the new operation was not merely a device for drain- ing off work which could be classified as existing bar- gaining unit work; so long as the new operation was a "parallel and simultaneous" one, Appalachian Construc- tion, Inc. and SE-OZ Construction Company, Inc., 235 NLRB 685, 686 (1978); and so long as Respondent man- aged to create a separate appropriate unit in evolving this new operation, there would appear to be no legal prohibition against what it achieved. Despite Respondent's claim at the hearing that it hoped to realize nonunion status for the Havre de Grace operation, there is some suggestion in the record and in the General Counsel's brief, touching on the possible im- propriety of the hurried recognition of the Operating En- gineers in December 1978. The arguments on brief by the General Counsel to this effect have provoked a vig- orous written retort from counsel for Respondent, making clear his belief and understanding that the Gener- al Counsel had no intention of asserting that the recogni- tion of the Operating Engineers was in any way motivat- 1' I should point out, however. that the Havre de Grace quarry was opened up by Respondent for short periods on several occasions in the 1960's and perhaps the earl) 1970's. and the Teamsters contract was ap- plied to the appropriate categories of employees working at those times without demurrer. There is no detail in the record as to the nature of the operations, supervision, etc at those times, but Schlegelmilch testified that the contract was applied because Respondent had "sent our people" to work there The same absence of detail is true of the reference to other quarries. now nonoperational, previously controlled by Respond- ent, and put under he Teamsters contract in the past. l I recognize. however, that there may be meaningful differences be- tween the relationship of Respondent to A.S & G. and to its other sub- sidiaries. 401 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed by unlawful intent. That was also my understanding at the hearing, as clarified by statements made by coun- sel for the General Counsel. The complaint call only be read to allege a simple cause-and-effect relationship; that is, the Teamsters was entitled to recognition and there- fore, by recognizing the Operating Engineers as repre- sentative of the truckdrivers, Respondent violated the Act. That is all that the complaint says. I think it im- proper to read any more into it. The General Counsel confirms that view by stating, in a letter of reply to Re- spondent's post-brief letter, that the record evidence per- taining to the manner in which the Operating Engineers was recogmized and certified is relevant only to the 10(b) issue, and that "the violation of Section 8(a)(2) is based upon a finding that Respondent violated Section 8(a)(5)." 6 It does appear from the record that Respondent sat next to a wall, and played its cards close to the vest. The disarming character of its fairly unusual assertion that it desired to operate the new quarry as a nonunion oper- ation fades somewhat in the light of the precipitous rec- ognition of the Operating Engineers at a time when only five employees were working on the site.t 7 While there is some evidence in the record suggesting that Respond- ent harbored concern about extending recognition to the Teamstcrs at the nlcw location,l 8 an assumption that the entire matter was rigged so as to exclude the Teamsters does not have much logical appeal. After all, as of the time of the hearing, there were only 2 or possibly 3 of the 15 hourly employees who would have been repre- sented by the Teamsters, had matters developed most fa- vorably toward that Union.' 9 In Similarly, no contention based on the Board doctrine expressed in Midwest Piping & Supply Co., Inc., 63 NLRB 1060, 1070 1945), as subse- quently elaborated, e.g., Playskool. Inc.. a Division of Milton Bradley Com- pany, 195 NLRB 560 (1972), has been advanced here, either in the com- plaint, at the hearing, or on brief. Interestingly, in order to deal with Re- spondent's I(Xb) argument, the parties presented testimony diametrically opposite to that which they might have adduced had they been con- sciously litigating a Midwest Piping theory. " Neither the complaint nor the General Counsel's brief makes refer- ence to a possible theory that Respondent violated Sec. 8(aX2) by extend- ing recognition to the Operating Engineers before it had a representative complement in its employ. See British Industries Company, Lyra Systems. Divisions ofAvnet, Inc., 218 NLRB 1127, 1140-42 (1975). i' According to Respondent's witnesses, the appearance of a Teamster business agent at the site in December 1978 provoked a flurry of tele- phone calls between Respondent's managers; Respondent's reaction to a visit by an Operating Engineers representative appeared to cause substan- tially less alarm. i As matters eventuated, there appears to have been an economic benefit to Respondent, in that, as of May 1979, the two Euclid truck- My consideration of the record leads me to conclude that the evidence does not support a finding that Re- spondent engaged in the alleged unfair practices. Given the facts that the two Euclid truckdrivers employed at the Havre de Grace quarry are located a substantial dis- tance from the other drivers covered by the Teamsters contract, have no contact with those other drivers, are employed in a work situation in which their supervisor has considerable control over day-to-day personnel poli- cies and employment conditions, and have never ex- pressed their preference to be represented by the Team- sters rather than the Operating Engineers, I perceive no basis in law, or in equitable considerations which under- lie the law, for concluding, as the General Counsel urges, that these drivers should be required to join and be represented by the Teamsters Union rather than the Operating Engineers Union. Accordingly, I shall recom- mend that the complaint be dismissed in its entirety.20 CONCUSIONS OF LAW 1. The Arundel Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Arundel Corporation and Arundel Sand and Gravel Company constitute a "single employer" within the intendment of Board doctrine. 3. The General Counsel has not established by a pre- ponderance of the evidence that Respondent has violated the Act as alleged in the complaint. Upon the foregoing findings of fact and conclusions of law, I issue the following recommended: ORDER21 The complaint is hereby dismissed. drivers would have earned $8.24 per hour under the Teamsters contract whereas, under the Operating Engineers agreement, they earned $6.10. Moreover. as the General Counsel points out, the Teamsters contract provides substantial fringe benefits not found in the Operating Engineers agreement. Curiously, however, Gary Pearce testified that when, in May 1979, he was offered an opportunity to return to work at Greenspring under the Teamsters contract, he refused the offer. 20 On this view of the record, I need not deal with the 10(b) conten- tions urged by Respondent and contested by the General Counsel. 2i In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 402