A-1 Fire Protection, Inc.

National Labor Relations Board - Board Decisions

Oct 18, 1977

233 N.L.R.B. 38 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A-i Fire Protection, Inc., and Corcoran Automatic
Sprinklers, Inc. and Road Sprinkler Fitters Local
669, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-
CIO. Case 7-CA-12659
October 18, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On December 28, 1976, Administrative Law Judge
Phil W. Saunders issued the attached Decision in this
proceeding. Thereafter, the Respondents filed excep-
tions and a supporting brief; the Charging Party filed
cross-exceptions and a brief in support thereof and in
answer to the Respondents' exceptions; and the
General Counsel filed a brief in answer to the
Respondents' exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge to the extent consistent herewith. 2
Contrary to the Administrative Law Judge, we
find, for the reasons set forth below, that the
Respondents did not violate Section 8(a)(5) of the
Act by refusing to extend the terms of its collective-
bargaining agreement with the Union to the employ-
ees of A-I Fire Protection, Inc. (herein A-I), or by
transferring work from Corcoran Automatic Sprin-
klers, Inc. (herein CAS), to A-I. According to the
testimony of George Corcoran, in 1973 he separately
incorporated CAS and A-I with the intention of
operating the former as a union company and the
latter as a nonunion company. Since that date he has
been both owner and president of both corporations.
Corcoran admitted that both corporations were
incorporated to perform sprinkler installation, oper-
ated from the same facilities, commonly used the
same tools, trucks, equipment, and materials without
reimbursement, and frequently interchanged employ-
ees.
I The Respondents and the Charging Party have excepted to certain
credibility findings made by the Administrative Law Judge. It is the Board's
established policy not to overrule an Administrative Law Judge's resolutions
with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect. Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3,
1951). We have carefully examined the record and find no basis for
reversing his findings.
2 The Administrative Law Judge found, and we agree, that the
233 NLRB No. 9
On August 2, 1973, before any employees were
hired, Corcoran executed a collective-bargaining
agreement between CAS and the Union for a unit of
journeyman and apprentice sprinkler fitters. Corcor-
an admitted that he did not reveal the existence of
A-I at that time. When, in December 1973, Corcor-
an learned that the Union may have seen a postcard
advertisement for A-I, he informed Business Agent
Pantall that A- was bidding on jobs as a nonunion
company. When Pantall told Corcoran that he could
not do this, that it was part of the Union's work, and
that A-I would have to join the Union, Corcoran
refused.
In January 1975, Corcoran informed Pantall that
lack of business for CAS necessitated the layoff of its
employees, but that A-I had work which they could
perform. Thereafter, Corcoran employed several
CAS employees to work for A-I and paid them
union wages, but did not pay any benefits. Corcoran
testified that although Pantall told him that he
"didn't like the idea" the Union acquiesced in this
procedure in order to avert the consequences of
layoff of the CAS employees.
On May 1, 1975, Corcoran executed a second
contract between CAS and the Union. The Union
did not request that the A-I employees be covered
by that contract. The intent of the parties to limit this
contract to CAS employees is not questioned. The
Union, however, thereafter, began to monitor the
operations of CAS and A-i. On November 11, 1975,
the Union demanded that the A- I sprinkler fitters be
included with those of CAS as a single unit and that
all such employees be covered by the May I, 1975,
contract. This request was denied by Corcoran.
The Administrative Law Judge found that since
early 1975 George Corcoran operated A-I with the
purpose of ultimately dissolving CAS, based on the
credited testimony of employees that Corcoran told
them he planned to phase out CAS, on Corcoran's
admission that much of the work now being done by
A-I is for former customers of CAS, on evidence
that in 1976 CAS had reduced its acquisition of work
assignments to only one new job, and on evidence
that CAS had reduced its complement of sprinkler
fitters from approximately 10 in 1975 to 2 in 1976, as
opposed to an increase in A-l's complement from no
sprinkler fitters in 1973 and 1974 to 7 by 1976.
Accordingly, the Administrative Law Judge found
Respondents violated Sec. 8(aX3) and (4) by discharging and/or refusing to
hire employee Nunn. The Administrative Law Judge, although requiring the
Respondents to make Nunn whole for any losses suffered by reason of the
discrimination against him, failed to include an appropriate provision in his
recommended Order requiring that the Respondents make an offer of
employment to Nunn. In addition, the Administrative Law Judge inadvert-
ently omitted broad cease-and-desist language from his recommended
Order. We therefore shall include such provisions in our Order.
38
A-I FIRE PROTECTION, INC.
that by transferring work from CAS to A- I the
Respondents withdrew recognition from the Union
in violation of Section 8(a)(5). In so doing, the
Administrative Law Judge found no merit in the
Respondents' argument that the Union had ac-
quiesced in the "double-breasted" operation, con-
cluding that, although Pantall may have agreed to a
few tentative arrangements concerning A-I, the
Union was unaware at the time of the May 1975
contract of the Respondents' intention to ultimately
abolish the CAS unit and after the execution of the
contract the Union monitored the CAS/A-I opera-
tions and demanded recognition.
In support of his finding of an 8(a)(5) violation, the
Administrative Law Judge properly found CAS and
A-I to be a single employer. But the Supreme Court
recently held in South Prairie Construction Co. v.
Local No. 627, International Union of Operating
Engineers, AFL-CIO, 425 U.S. 800 (1976), that a
finding that two affiliated companies constitute a
single employer does not require that a collective-
bargaining agreement with one of the companies be
extended to the employees of the other and does not
imply that the employees of each of the two
companies do not comprise separate appropriate
bargaining units. 425 U.S. at 805. In South Prairie, as
here, one company had a union contract and the
other company, to enable it to compete with
nonunion contractors, did not.
The Board has recognized that in the construction
industry a common owner may have one company to
perform contracts under union conditions and
another to operate under nonunion conditions and,
even though they constitute a single employer, has
refused to include the nonunion company employees
in the same bargaining unit with those of the union
company. Central New Mexico Chapter, National
Electrical Contractors Association, Inc., et al., 152
NLRB 1604 (1965). Very recently, in Temple-Eastex,
Incorporated, et al., 228 NLRB 203 (1977), the Board
treated as appropriate a unit of employees in which
the Union petitioned for and won an election
although the unit did not include a group of
employees of the same employer who performed the
same work. And in B & B Industries, Inc., and Fred
Beachner, an Individual d/b/a Fred Beachner Con-
struction Co., 162 NLRB 832 (1967), where two
companies were found to be a single employer,
performed identical types of construction work for
the same class of customers in the same general area,
shared office space and the services of clerical
personnel, and maintained a common post office
box, the Board held that the collective-bargaining
agreement entered into by one company did not
3 Since the employees of A-I were in existence when the Union
knowingly entered into a contract limited to CAS employees, no question of
accretion is presented.
cover the employees of the other because the
evidence did not establish an intention of the parties
to provide such coverage.
In the present case, it is clear from the facts
previously set forth that the parties did not intend to
include the employees of A-i when the contract
between Corcoran and the Union was entered into
on May 1, 1975. The contract covered the same unit
of CAS employees as that encompassed in the 1973
contract between the same parties and the parties
thereby, at least inferentially, stipulated as to the
appropriateness of the unit. Cf. Temple-Eastex,
Incorporated, supra. The Union should not now be
permitted to avoid the terms of the contract or the
scope of the unit to which it voluntarily agreed by
claiming an unfair labor practice in the Respondents'
refusal to extend the CAS contract to A-I. There is
no basis in the record for a finding that the
Respondents would have agreed to a contract for a
combined unit of CAS and A-I employees and the
Board, of course, cannot impose a contract to which
the parties have not agreed.
Moreover, on November 11, 1975, when the Union
demanded that the employees of A-I and CAS be
treated as a single unit and that the contract cover
A-I employees, as well as CAS employees, it does
not appear that it attempted to show that it
represented a majority of the employees of either A-
I or both Companies. In any event, since this was a
different unit from that which the Respondents had
voluntarily recognized, it was not even under a duty
to grant recognition without an election. 3 Linden
Lumber Division, Summer & Co. v. N.LR.B., 419 U.S.
301 (1974). The Respondents' refusal to extend the
contract to A-1 employees, therefore, was not a
violation of Section 8(a)(5). If the Union was
dissatisfied with the scope of the existing unit and
had majority support in a claimed unit of CAS and
A-I employees, the proper recourse upon the
Respondents' refusal voluntarily to recognize the
larger unit, if the existing contract did not interpose a
bar, was to petition for an election.
We also disagree with the Administrative Law
Judge's further finding that the Respondents violated
Section 8(a)(5) by transferring work from CAS to A-
I, thereby withdrawing and withholding recognition
from the Union. There is evidence that since 1975 the
work of CAS decreased and that of A-I increased.
There is no suggestion, however, that the CAS unit
no longer exists as a viable bargaining unit. In
evaluating any reduction in the size of the CAS unit,
its history is quite pertinent. It must be remembered
that CAS and A- were organized on the same day
to handle union and nonunion business, respectively.
39
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When CAS signed the first collective-bargaining
agreement in 1973, it had no employees and sought
out the Union. Its recognition of the Union was a
completely voluntary act, unaccompanied by any
organizing efforts of the Union, to serve the business
purpose of qualifying for contracts which required
union conditions. The organization and operation of
the nonunion Company served the similar business
purpose of allowing CAS to compete economically
with nonunion bidders where the jobs permitted
nonunion wages and working conditions. The Union
was cognizant of and accepted this situation. We
find, therefore, that the Administrative Law Judge
erred in concluding that the Employer here is not
free to employ one company or the other in whatever
fashion may enable him to get the work.
Consequently, any increase in A-I's work and
decrease in CAS's can hardly be attributed to any
sinister purpose or unlawful motive on the part of the
Respondents, but must be considered the result of
changes in the demand for contracts to be performed
under union conditions. There is no finding that
union work was transferred from CAS to A-I and
such transfer seems most unlikely in view of A-I's
inability to qualify to perform such work. The
Administrative Law Judge's conclusion that the
Respondents violated Section 8(a)(5) by transferring
work from CAS to A-I and thus withdrawing
recognition from the Union is accordingly untenable.
We therefore dismiss the 8(aX5) allegations of the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
A-I Fire Protection, Inc., and Corcoran Automatic
Sprinklers, Inc., Clio, Michigan, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging and/or refusing to hire employees
or otherwise discriminating against them in regard to
hire or tenure of employment or any other term or
condition of employment because said individuals
have filed, or the Union has filed on behalf of said
individuals, unfair labor practice charges.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the purposes of the Act:
(a) Offer Michael Nunn immediate employment at
the Alma College job or, if that job has been
completed, substantially equivalent employment, and
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him
by payment of a sum equal to that which he would
normally have earned from the date of the discrimi-
nation, January 19, 1976, to the date of Respondents'
offer of employment. The backpay and interest
thereon is to be computed in the manner prescribed
in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651
(1977).4
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at their place of business copies of the
attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respon-
dents' representative, shall be posted by Respondents
immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply
herewith.
I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
s In the event that 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 National 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge and/or refuse to hire
employees or otherwise discriminate against them
in regard to hire or tenure of employment or any
other term or condition of employment because
said individuals have filed, or the Union has filed
on behalf of said individuals, unfair labor practice
charges.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join or assist labor organizations, including
the Union herein, to bargain collectively through
40
A-I FIRE PROTECTION, INC.
a representative agent chosen by our employees,
to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or
protection, or to refrain from any such activities.
WE WILL offer Michael Nunn immediate
employment at the Alma College job or, if that
job has been completed, substantially equivalent
employment, and make him whole for any loss of
earnings he may have suffered as a result of the
discrimination against him, with interest.
A-I FIRE PROTECTION,
INC.
CORCORAN AUTOMATIC
SPRINKLERS, INC.
DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Judge: Based on an
original charge filed on January 13, 1976, by Road
Sprinkler Fitters Local 669, United Association of Journey-
men and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO,
herein the Charging Party or Union, an amended com-
plaint against Corcoran Automatic Sprinklers, Inc., herein
called Respondent Corcoran, and A-I Fire Protection Inc.,
herein called A-I, and collectively called Respondents, was
issued on May 18, 1976, alleging violations of Section
8(aX1), (3), (4), and (5) of the National Labor Relations
Act, as amended. Respondents filed an answer to the
complaint denying it had engaged in the alleged unfair
labor practices. A hearing in this proceeding was held
before me, and the General Counsel, the Union, and
Respondents filed briefs.
Upon the entire record in this case, and from my
observation of the witnesses and their demeanor,1 I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
At all times material herein Respondents have main-
tained their only office and place of business at 571 W.
Vienna in Clio, Michigan. Respondents are engaged in the
installation of fire sprinkler systems and related products.
Respondents' office located at Clio, Michigan, is the only
facility involved in this proceeding.
During the year ending December 31, 1975, which period
is representative of their operations during all times
material herein, Respondents, in the course and conduct of
their business operations, sold and installed at their Clio,
Michigan, place of business, and at various jobsites within
the State of Michigan, fire sprinkler systems valued in
I The facts found herein are based on the record as a whole upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N.LR.B. v. Walton Manufacturing Co. et al., 369 U.S. 404, 408
excess of $100,000, of which systems valued in excess of
$50,000 were sold to and installed for enterprises, each of
which had retail sales during said period in excess of
S500,000. During the same year Respondents also pur-
chased and caused to be transported and delivered at their
Clio place of business, and at various jobsites within the
State of Michigan, sprinkler pipe, and other goods and
materials valued in excess of $50,000, of which goods and
materials valued in excess of S50,000 were transported and
delivered to their place of business in Clio and to other
Michigan jobsites directly from points located outside the
State of Michigan.
Respondents are employers engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR OROANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
m. THE UNFAIR LABOR PRACTICES
It is alleged in the complaint that Respondents Corcoran
and A-I constituted a single-integrated business enterprise,
and that since April 1, 1975, Respondents have refused to
recognize, bargain, or abide by its collective-bargaining
agreement with the Union for work performed by A-l,
which work was encompassed by the terms of the
collective-bargaining contract executed between the Union
and Respondent Corcoran. It is further alleged that since
on or about January 1, 1975, Respondents, through
biddings, subcontracting, and other practices, have shifted
work covered, or which would have been covered by the
collective-bargaining contract with Respondent Corcoran,
which was considered a union company, to A-I, which was
considered nonunionized, and by so doing, Respondents
have attempted to operate their business so as to reduce the
amount of work which was, or would have been covered by
the above-mentioned collective-bargaining contract, and,
instead, utilized A-i to perform the work involved; and
that Respondents undertook such practices for the purpose
of reducing the amount of work performed by its
employees under the bargaining agreement.
The complaint also alleges that on or about January 19,
1976, Respondents, by their agent George Corcoran,
discharged and/or refused to hire Michael Nunn and
another individual at Respondents' jobsite located at Alma
College in Alma, Michigan, and have since that date failed
and refused to reinstate and/or hire these individuals, and
did so because such individuals were members of the
Union.
George Corcoran had worked for a number of years in
the sprinkler installation trade, but in 1973 decided to
become an employer and in late July 1973 he incorporated
two separate businesses, Respondents Corcoran and A-I.
Both companies were incorporated for the same purpose
and on the same day. George Corcoran testified that it was
(1962). As to those witnesses testifying in contradiction to the findings
herein, their testimony had been discredited, either as having been in
conflict with the testimony of credible witnesses or becuse it was in and of
itself incredible and unworthy of belief. All testimony has been reviewed
and weighed in the light of the entire record.
41
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his intention to operate one company as a union company
(Respondent Corcoran), and one as a nonunion company
(A-I), and stated that A- I would bid on those jobs where
nonunion contractors were permitted, and where competi-
tion was among similar companies. George Corcoran
thereupon contacted Roy Pantall, at this time the business
agent for the Union, and indicated to Business Agent
Pantall that he wished to enter into a contract with the
Union for Respondent Corcoran, but admitted he did not
reveal the existence of A-l at this time. On August 2, 1973,
a contract was entered into between Respondent Corcoran
and the Union covering employees working in the Union's
local jurisdiction in the maintenance and installation of fire
protection systems.2
In advertising the services offered by A-I, postcards
were sent to numerous potential customers around the
State of Michigan. George Corcoran testified that in
December 1973, he learned of the possibility that Business
Agent Pantall may have seen these postcards, and as a
result he then called Pantall and explained to him the
existence of A-I and the fact that A-I was being operated
as a nonunion company engaged in installation of sprinkler
systems, and would continue as such as long as there were
other nonunion companies (scabs) bidding on jobs in the
area and being permitted to do so by the Union. Pantall
then informed George Corcoran that he could not do this,
that it was part of the Union's work, and that he (A-l)
would have to join the Union. George Corcoran then told
Pantall that he "was not joining the Union."
It appears that the first nonfamily sprinkler fitters were
employed by Respondent Corcoran in late 1973, and
thereafter the number of sprinkler fitters in the unit
represented by the Union continued to grow through 1975
when approximately 10 fitters were employed by Respon-
dent Corcoran.
In January 1974, George Corcoran and Pantall engaged
in another conversation. On this occasion George Corcor-
an asked Pantall how Sparten Fire Protection Company, a
nonunion sprinkler contractor in the area, could work on a
union job with union employees, and he also wanted to
find out from Pantall if he could do the same thing. Pantall
then informed George Corcoran that as long as the
employees belonged to the Union, and were paid out of a
company which was a signatory to a contract with the
Union, it would be all right. However, it appears from this
record that A-I did not hire any employees to engage in
the maintenance and installation of fire protection systems
until later, and since 1975 the number of sprinkler fitters
employed by A-I has increased steadily.
The next contact between the parties occurred in
January 1975. At this time George Corcoran informed
Pantall that the lack of business for Respondent Corcoran
was putting him in a position of having to lay these
employees off, but that he had work for A-1 and told
Pantall he could put employees of Respondent Corcoran to
work for A-I. According to George Corcoran, Pantall then
indicated to him that while he didn't like this idea, it was
2 The composition or makeup of the unit as set forth in the complaint is
as follows: All journeymen and apprentice sprinkler fitter employees of
Respondents employed at or out of their Clio offices, excluding office
clerical employees, guards, and supervisors as defined in the Act, and all
still preferable to having more men placed on his layoff list.
George Corcoran then employed several employees in this
fashion and paid them union wage scale through A-I, but
did not pay any benefits for them.
In January 1975, Pantall moved to a new position with
the Union and, in late April 1975, Business Agent Michael
Johnson took over this particular area for the Union. In or
about the same period of time, May 1, 1975, George
Corcoran also signed his second contract with the Union
for Respondent Corcoran, but the Union did not request
that A- be added or be covered by this contract.
Business Agent Johnson stated that when he took over
his new duties for the Union, he and Pantall discussed
problems within his jurisdiction and at which time Pantall
informed him that George Corcoran had two companies,
but that A-i was only selling fire extinguishers and smoke
detectors. However, Johnson gained further information
about A-I in late April or May 1975, when he talked to a
nonunion contractor, Daniel Corcoran, no relation to
George Corcoran, at a jobsite in Bay City. On this occasion
Johnson wanted Daniel Corcoran to join the Union, but he
replied that A-I had "lots ofjobs" and seemed to be doing
all right operating nonunion - so why should he join the
Union. Business Agent Johnson then answered by stating
that "they were after A-I."
In the late summer or early fall of 1975, Gary Sears, a
member of the Union, informed Business Agent Johnson at
a union meeting that A-I had more work than Respondent
Corcoran, and it appeared to him that "something funny"
was going on as A-I was a nonunion company. Sears then
mentioned the possibility of his employment with A-l, and
Johnson told him to go ahead and to also find out where
their work was located. Sears then contacted George
Corcoran in September or October 1975, and applied for a
job with A-I, but did so on the basis of a newspaper want-
ad wherein A-I had advertised for help. Shortly thereafter,
Sears was hired and went to work for A-i. Sears admitted
that upon commencing work for A-l, he then made it his
business to keep his "eyes open for bits of evidence" that
he had been told to look for, and that on a regular basis he
also reported his observations back to Business Agent
Johnson.3
At or about the same time the Union also commenced
keeping a close watch on employees of Respondent
Corcoran, who, of course, were union members, and this
was done in regard to such employees working on jobs with
nonunion people where they were employed by A-I, or
where A-1 employees happened to be participating on a
job. Moreover, internal union charges were also filed by
Johnson and heard in this regard during October 1975, and
which resulted in fines (later rescinded) to employees
Francis Corcoran, the son of George Corcoran, and Peter
Ostrander. On the occasion of the hearings, George
Corcoran, in a side conversation with Business Agent
Johnson and others present at the time, stated that he had
45 jobs for A-I, and in about a 6-month period there
would be less men working for Respondent Corcoran.
other employees, and which constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Sec. 9(b) of the Act.
3 Additional aspects ofSears' testimony will be detailed later on.
42
A-I FIRE PROTECTION, INC.
By letter dated November 11, 1975, the Union demanded
that A-I be included with Respondent Corcoran as a single
unit, and be covered by the current or second contract
between the Union and Respondent Corcoran. By letter
dated November 14, 1975, George Corcoran informed the
Union that A-I was not a part of Respondent Corcoran,
and if the Union wanted any information about these
companies to contact them separately.
Respondents contend that an examination of the
pertinent testimony and the relevant document reveal it
was not the intention of the Union nor George Corcoran,
even though the Union had notice of the existence of A-I
and the work it was doing, for A-I to be a party to, covered
by, or included within the 1973 or 1975 labor agreement. It
is also argued that during the negotiations of the current
contract in April or May 1975, the Union made no attempt
to make A-I a party to this labor agreement, or to include
A-I employees within its coverage, and such demonstrates
a clear intent to exclude A- 1, and the Union should now be
estopped from attempting to create indirectly a collective-
bargaining agreement with A-I when it never attempted to
establish one directly. Respondents further maintain and
argue that an 8(f) prehire contract cannot be used to
establish a presumption of a continuous majority status as
to Respondent Corcoran, let alone using it as the basis for
demanding recognition from A-I or extending Respondent
Corcoran's contract to cover A-I, and that there has never
been a showing that the Union represented a majority of
the A-I employees separately, or in a combined unit of A-
I and Respondent Corcoran employees, during any of the
relevant periods. Further, that the demand for recognition
of A-I made on November 11, 1975, as aforestated, did not
specify any unit, nor did it designate what class of A-I
employees were to be put under Respondent Corcoran's
contract, and that even a single-employer determination
does not necessarily establish that an employerwide unit is
appropriate.
I will turn first to the allegation that Respondent
Corcoran and A-I constitute a single-integrated business
enterprise. The Board, in considering whether an alter ego
or single-integrated enterprise relationship exists between
two employers, has often considered the following factors:
common control of labor relations, common supervision,
common office, commingling of tools and equipment,
whether the two employers were engaged in the same type
of industry, whether the companies bid on the same work
and the identity of the people or person who determined
the amount of the bids, identity of the corporate officers of
the two companies, and whether employees are shuttled
between the two companies; and, of course, if the Board
concludes that the companies are not being operated
separately but are, instead, operated as a single-integrated
enterprise, it will impose the bargaining obligation of the
union employer on the nonunion employer.
In the instant case it is admitted that George Corcoran
has always been the sole owner and the president of both
companies, and since August 1974, has been the sole
director of both corporations. Moreover, Respondents also
admit that both corporations operate out of the same
facilities, that for all practical purposes the business nature
and the operations of the two corporations are identical,
that both corporations commonly use the same tools,
trucks, equipment, and materials, and that employees were
interchanged between the two companies with such
regularity so as to cause one employee to quip that he had
enough layoff slips from one company to the other "to
paper his wall." Finally, George Corcoran even admitted
that when A-I uses the tools, equipment, and material of
Respondent Corcoran, and vice versa, they do so without
any reimbursement from one company to the other.
As further pointed out, both the management and the
labor relations of the two supposedly different entities are
handled by the same individual. George Corcoran makes
all the management decisions for both corporations such as
determining which jobs the corporations will bid on, what
equipment will be purchased, and makes all decisions
including determining whether the corporations will sign a
collective-bargaining agreement. Morover, the employees
of the two corporations are commonly supervised by
George Corcoran and by his construction supervisor or
foreman, Darrel Ochs.
In summary, Respondent Corcoran and A-I are com-
monly owned, commonly managed in all respects including
labor relations decisions, have predominately the same
arrangements for day-to-day operations and supervisors,
and also have interchangeable equipment and work forces.
I find that Respondent Corcoran and A-I are a single
employer for collective-bargaining purposes.
It is alleged, as aforestated, that Respondents changed
work arrangements so as to reduce the amount of work for
the employees of Respondent Corcoran. The record in this
case amply supports this allegation. As indicated, since
early 1975 George Corcoran operated A-I with the
apparent purpose of ultimately dissolving Respondent
Corcoran. Thus, in November 1975, George Corcoran, in
reply to a question by Gary Sears regarding his employ-
ment security as a sprinkler fitter for A-I, stated that he
generally only laid off union members but that nonunion
employees of A-I were never laid off. On this occasion
George Corcoran also advised Sears that he would shortly
phase out Respondent Corcoran and that A-I would take
over the sprinkler work. Similarly, at a hearing in the fall of
1975 involving internal union charges against his son, as
aforementioned, George Corcoran told Business Agent
Johnson and others present that in a 6-month period there
would be less people working for Respondent Corcoran.
Moreover, the General Counsel's exhibit also clearly
indicates that the gross earnings of A-I have continually
increased.4 In 1976 Respondent Corcoran had just one job,
and George Corcoran likewise conceded that much of the
work now being done by A-I is being done for customers
like Kroeger stores and K-Mart, which were previously
customers of Respondent Corcoran. Plainly, but for
George Corcoran's attempts to rid himself of Respondent
Corcoran and the Union, Respondent Corcoran would
have performed this work. These arrangements, of course,
had a serious and adverse impact on the work of the unit
employees working for Respondent Corcoran and, in
4 See G.C. Exh. 2.
43
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relation thereto, this record shows that while A-i em-
ployed no sprinkler fitters until 1975, it now employs
approximately 7 fitters, but just the opposite has occurred
at Respondent Corcoran, who now employs only 2
sprinkler fitters while not so long ago it employed
approximately 10. It follows from the foregoing that by so
doing, and transferring work from Respondent Corcoran
to A-I, Respondents withdrew and withheld recognition
from the Union in violation of Section 8(a)(5) and (1) of the
Act.
I am also in agreement that any contention to the effect
that the sprinkler fitters of Respondent Corcoran and A-I
combined are not an appropriate unit is untenable. It is
admitted that the operations of both corporations are
identical, and further that the sprinkler fitters employed by
these corporations do "exactly" the same work. Further-
more, as aforestated, these employees work out of the same
facility; use the same tools, equipment, and material; work
under the same supervisors; have the same starting and
quitting time; and are readily transferred from one
company to the other. The above-related factors clearly
demonstrate the appropriateness of a sprinkler fitter unit
covering the employees of both Respondent Corcoran and
A-l.
I turn briefly to the argument by Respondents that the
1973-75 agreement between the Union and Respondent
Corcoran was an 8(f) prehire contract which cannot be
used to show a continued majority status. 5
First of all I will accept the Respondents' argument that
the contracts here in question were prehire agreements
under Section 8(f) of the Act. However, it is well
recognized Board law that a prehire contract need not
establish its majority status prior to the entering of such an
agreement. Bear Creek Construction Co., 135 NLRB 1285,
1286 (1962). Nor, when two or more entities constitute a
single employer, and one of them is party to a valid prehire
agreement, then the union's majority status need not be
established among the employees of the other entity or
entities, but all are bound by the contract's terms. Oilfield
Maintenance Co., Inc., 142 NLRB 1384, 1387 (1963). Thus,
in the instant case, A-I is bound by the contract between
the Union and Respondent Corcoran, and in April or May
1975, there was no need for the Union to express a desire to
negotiate any agreement with A-i, any more than there
was a need to initially establish a majority status. Similarly,
in Williams Enterprises, Inc., 212 NLRB 880, 885 (1974),
enfd. 519 F.2d 1401 (C.A. 4, 1975), the Board held that
while 8(f) contracts may not carry an irrebuttable presump-
tion of majority status in some circumstances, "the
doctrine is applicable only to initial 8(f) agreements, and
not to succeeding contracts." I find that the Union was the
majority representative of the unit employees in both
companies, and Respondents could not refuse to deal with
it.
Respondents further contend and argue that the Union
should now be estopped from attempting to create
indirectly a contract with A-I when it never attempted to
establish one directly, and that the Union had previously
5 It is noted that the second contract in effect between the Union and
Respondent Corcoran when the Union made its written demand for
recognition was executed on May I. 1975, and at this time there were some
agreed to all the unfair arrangements and practices. I reject
this contention. Business Agent Pantall initially learned of
the existence of A-I as a nonunion company in December
1973, as aforestated, and at this time and on this occasion
Pantall specifically informed and advised George Corcoran
that he could "not do it," that it was part of the Union's
work, and that A-i would have to be covered. In January
1975, Pantall and George Corcoran had another conversa-
tion relative to layoffs and employee transfers from
Respondent Corcoran to A-i. While Pantall apparently
agreed to the transfers in question because the Union
already had too many people on layoff, he also, at the same
time, let George Corcoran specifically know that "he didn't
like the idea." Moreover, when Johnson took over in April
1975, he continued and intensified the Union's opposition
to A-I, which eventually culminated in the activities of
Sears, and later the November 1975 demand letter from the
Union that A-i be included with Respondent Corcoran as
a single unit.
In the final analysis, even though Pantall may have
temporarily concurred to a few tentative arrangements
with George Corcoran as to his suggestions relating to A-l,
nobody in the early periods involved herein, or at the time
when the current contract was executed on May 1, 1975,
was aware of Respondents' ultimate intent to literally
abolish the work force and unit of Respondent Corcoran.
As pointed out, even assuming that the Union knew that
A-I was engaging in some unit work prior to the execution
of the current contract on May 1, 1975, it certainly, at this
time, did not know that within a few months A-I would
take over virtually all of the work bid on and assigned
previously to Respondent Corcoran.
In this case the Charging Party presents a strong closing
argument by stating: "We are concerned [here] with the
protection of historic bargaining unit jobs from complete
abolition. Respondents were not content to operate both
sides of their double-breasted entities simultaneously.
Instead, as the record plainly shows they are now engaged
to an overt effort to transfer all work to the nonunion
corporation thereby causing the demise of the represented
unit. Surely in these circumstances the contention that the
Local somehow waived the employment rights of its
members must be supported by evidence which is most
clear and unmistakable. Of course, this evidence does not
exist."
In early January 1976, George Corcoran was considering
hiring men on a job for A-I at Alma College and had
contacted Michael Nunn, a member of the Union, in this
regard. However, Nunn expressed some concern over
working for a nonunion company, and wanted time to
think it over. George Corcoran, in the meantime, had
contacted Business Agent Johnson, and in the course of
resolving a grievance which had been filed, suggested that
maybe the parties could "make peace" if the job for A-I at
Alma College was subcontracted over to Respondent
Corcoran, and then employing Mike Nunn, and another
employee on the Alma project, as a union job. George
Corcoran then contacted Nunn and told him he had
eight sprinkler fitters employed by Respondent Corcoran, and only one
employed by A- .(See Reap. Exhs. 8 and 9.)
44
A-I FIRE PROTECTION, INC.
decided to let the Alma job go union, and made
arrangements with Nunn for him to go to work on this job.
At this time he apparently also made arrangements with
another one of his employees working for Respondent
Corcoran to also work on the job at Alma.
At or about this time, on or about January 12 and 13,
1976, George Corcoran received in the mail a letter from
the Union stating that they had filed charges against
Respondents. George Corcoran testified that upon receiv-
ing this letter, with a copy of the charge attached, he then
called Michael Nunn and told him not to report to work on
the Alma job, that he would have to wait until he found out
what was "going on," and that he did not want Nunn to get
"caught up" between him and the Union. A few days later
Nunn again inquired as to the status of the Alma job, and
on this occasion George Corcoran told him that the only
way Nunn could get on this job was to get permission from
Business Agent Johnson, and that he would then pay him
union wages and benefits. Nunn did not call back and did
not work on the Alma job.
Respondents point out and argue that the reason George
Corcoran advised Nunn to obtain authorization from the
Union to work on the Alma project for A-1 was to avoid
the problems experienced previously by his employees
Peter Ostrander and Francis Corcoran, who had been
severely fined by the Union. Respondents further maintain
that the testimony shows that George Corcoran never
withdrew his offers of employment on the Alma project,
and that this record supports the conclusion that from the
time George Corcoran first offered Mike Nunn the
foreman position at the Alma project the offer to employ
him continued, but that Nunn declined the work, apparent-
ly either not seeking or not obtaining union approval.
It appears to me that an extended discussion is not
required to show that Respondents' refusal to employ
Union Member Nunn constituted a violation of Section
8(a)(3) and (4) of the Act. George Corcoran offered Nunn
employment at the Alma College project just prior to
receiving the unfair labor practice charges herein, and
admitted that upon receiving copies of the charge he then
called Nunn and canceled his job offer. Moreover, all the
parties stipulated at the hearing that Corcoran made the
following statement in his affidavit given to the Board
during its initial investigation:
After getting the charges I decided to do the job as A-l
and not subcontract it to Corcoran. I didn't feel there
was any reason for me to show the Union a sign of
good faith after they filed the charges against me.
Additionally, Gary Sears testified that in February 1976 he
called George Corcoran to ask him if he had any work, and
Corcoran then told Sears that
. . . he had already hired Mike Nunn to do a job at
Alma College ... but he just received the unfair labor
practice charges from the Union and that if the Union
wanted to play that game, that he didn't have to hire
Union membership.
The only possible conclusion based on the above
evidence is that George Corcoran took the Alma College
job away from Respondent Corcoran and from Union
Member Nunn, and returned the job to A-l in retaliation
against the Union's filing of unfair labor practice charges
against Respondents, and, accordingly, I so find.
The complaint is this case also alleges that Respondents
refused to hire Nunn and "another individual" at the Alma
College job. However, the exact name of this second
individual was never specifically supplied, but the names of
Bates, Braden, and Killinger have all been suggested.
Moreover, it appears that whoever the other individual or
employee was, he was already working for Respondent
Corcoran and was simply retained or sent to another
project, even though he was never actually sent to the Alma
College job. The remedy provided herein will only be for
discriminatee Nunn.
IV. THIE REMEDY
Having found that Respondents have engaged in unfair
labor practices in violation of Section 8(aX1), (3), (4), and
(5) of the Act, I shall recommend that they be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
To fully remedy the failure of Respondents to apply the
terms of the agreement to the employees of A-I, I shall
order that they do so, retroactive to November 11, 1975,
the date of the Union's initial and definite notification and
written demand that A-I employees be included with
Respondent Corcoran as a single unit. Further, Respon-
dents shall be required to make the employees whole for
any losses of pay they may have suffered by reason of
Respondents' unlawful refusal to apply the terms of the
current contract since the above date; and shall also,
during the same period, make payments or contributions
on behalf of such employees to the fringe benefit funds or
plans as established in such agreement. Backpay shall be
computed in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Further, I shall recommend that Michael Nunn be made
whole for any loss of earnings he may have suffered as a
result of the discrimination against him by payment of a
sum equal to that which he would normally have earned
from the date of the discrimination, January 19, 1976, to
the date of Respondents' offer of employment with
backpay and interest computed in accordance with the
Board's established standards in F. W. Woolworth Co., and
Isis Plumbing & Heating Co., supra. It will be further
recommended that Respondents preserve and make avail-
able to the Board, upon request, all payroll records, social
security payment records, timecards, personnel records and
reports, and all other records necessary and useful to
determine the amount of backpay and the rights to
reinstatement or employment under the terms of these
recommendations.
CONCLUSIONS OF LAW
I. Respondents Corcoran and A-l, Respondents here-
in, are joint employers.
2. Respondents are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
45
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
4. At all times material herein, the Union has been the
exclusive representative of the employees of both Respon-
dent Corcoran and Respondent A-I in the appropriate
unit described herein and as set forth in the complaint.
5. By failing and refusing upon request to give effect,
bargain, or extend the terms and conditions of the current
contract to employees of A-i, Respondents have engaged
in unfair labor practices within the meaning of Section
8(aX5) and (1) of the Act.
6. By discharging and/or refusing to hire Union
Member Michael Nunn after receiving unfair labor
practice charges, Respondents have violated Section
8(aX3), (4), and (1) of the Act.
7. The aforesaid practices are unfair labor practices
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
46