Angelus Block Co., Inc.

National Labor Relations Board - Board Decisions

Jul 22, 1980

250 N.L.R.B. 868 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Angelus Block Co., Inc., Amari, Inc. and Building
Material & Dump Truck Drivers, Local 420, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America.
Case 31-CA-8800
July 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On March 6, 1980, Administrative Law Judge
Earldean V. S. Robbins issued the attached Deci-
sion in this proceeding. Thereafter, Respondents
filed exceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge,' to
amend her remedy, and to adopt her recommended
Order, as modified herein.
AMENDED REMEDY
As part of her remedy, the Administrative Law
Judge orders Respondents to reimburse the trust
funds provided for in the collective-bargaining
agreement for those contributions Respondents
have failed to make on behalf of unit employees. 2
In addition, we shall order Respondents to make
employees whole by reimbursing them for any
medical or dental bills they have paid directly to
health care providers that the contractual policies
would have covered, as well as any premiums they
may have paid to third-party insurance companies
to continue medical and dental coverage in the ab-
sence of Respondents' required contributions to the
I Respondents 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing her find-
ings.
2 Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments. We leave to the compliance stage the question
whether Respondents must pay any additional amounts into the benefit
funds in order to satisfy our "make-whole" remedy. These additional
amounts may be determined, depending upon the circumstances of each
case, by reference to provisions in the documents governing the funds at
issue and, where there are no governing provisions, to evidence of any
loss directly attributable to the unlawful withholding action, which might
include the loss of return on investment of the portion of funds withheld,
additional administrative costs, etc., but not collateral losses.
Merryweather Optical Co., 240 NLRB 1213 (1979)
250 NLRB No. 127
appropriate funds. Further, we shall order Re-
spondents to reimburse any employees for contri-
butions they themselves may have made for the
maintenance of the contractual pension, health and
welfare funds because of Respondents' unlawful
failure to contribute to those funds.3 Interest on all
such sums shall be paid in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977). 4
Respondents argue that the Administrative Law
Judge erred in providing that if the parties are
unable to agree on a wage rate it shall be left to
the compliance stage of these proceedings to deter-
mine which classification in the contract is most
comparable to the equipment utilized by employees
on the Amari payroll and that backpay is to be
computed on the basis of such rate or rates. With-
out reaching the question of whether the Board has
the authority to impose such a remedy we find that
it is sufficient here to limit our remedy to an order
directing Respondent to bargain about such mat-
ters, the usual remedy in cases of this nature.
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, as modi-
fied below, and hereby orders that the Respond-
ents, Angelus Block, Co., Inc., and Amari, Inc.,
Sun Valley, California, their officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Jointly and severally make whole the em-
ployees in the appropriate unit, for any losses they
incurred because of Respondents' refusal to comply
with the terms of the collective-bargaining agree-
ment with Building Material & Dump Truck Driv-
ers, Local 420, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, by transmitting the contributions to the
Union's pension, health and welfare trust funds, as
required by said bargaining agreement, and by re-
imbursing unit employees for any medical and
dental expenses ensuing from Respondents' unlaw-
ful failure to make such required contributions.
Unit employees' reimbursement shall include: (a)
contributions they themselves may have made for
the maintenance of the Union's pension, health and
welfare trust funds after Respondents unlawfully
ceased contributing: (b) any premiums the employ-
ees may have paid to third-party insurance compa-
nies for medical and dental coverage, and (c) medi-
:' Ferro Mechanical Corp., 249 NLRB 669 (1980).
See, generally. Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
868
ANGELUS BLOCK CO. INC
cal or dental bills the employees have paid directly
to health care providers that the contractual poli-
cies would have covered. All payments to employ-
ees shall be made with interest."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT refuse to recognize Building
Material & Dump Truck Drivers, Local 420,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the representative for purposes of
collective bargaining on behalf of the employ-
ees in the following appropriate unit:
All truckdrivers, warehousemen, batch plant
operators, bunkers, gas station operators,
loaders, washers, warehouse foremen, greas-
ers, tiremen, chippers, fork lift operators,
truck repairmen, and truck repairmen help-
ers employed by Angelus Block, Co., Inc.,
and Amari, Inc. at their Sun Valley, Califor-
nia facilities; excluding all office clerical,
technical and professional employees,
guards, watchmen, and supervisors as de-
fined in the Act.
WE WILL NOT refuse to acknowledge that
Amari, Inc., is bound by the terms and condi-
tions of the collective-bargaining agreement
between Angelus Block, Co., Inc., and the
above-named Union.
WE WILl. NOT refuse to pay the wages or
make the contributions to the various contrac-
tually agreed-upon trust funds or to apply any
of the other terms of the aforesaid agreement
to all the employees in the appropriate unit de-
scribed above.
WE WILL NOT unilaterally institute a classifi-
cation and wage rate applicable to new equip-
ment at a wage rate lower than the wage rates
contained in the collective-bargaining agree-
ment.
WE WILL NOT coercively interrogate em-
ployees as to their union activities and sympa-
thies.
WE WILL. NOT threaten employees with a re-
duction of their overtime hours because of
their representation by the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in the Act.
WE WILL bargain collectively with the
above-named Union by recognizing it as the
collective-bargaining representative of all the
employees in the aforesaid appropriate bar-
gaining unit.
WE WILL acknowledge that Amari, Inc., is
bound by the collective-bargaining agreement
described above and give effect to its terms
and conditions retroactively and prospectively.
WE WII.L jointly and severally make whole
our employees in the appropriate unit, for any
losses they incurred because of our refusal to
comply with the terms of the collective-bar-
gaining agreement with Building Material &
Dump Truck Drivers, Local 420, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, transmit-
ting the contributions to the Union's pension,
health and welfare trust funds, as required by
said bargaining agreement. and by reimbursing
unit employees for any medical and dental ex-
penses ensuing from our unlawful failure to
make such required contributions. Our em-
ployees' reimbursement shall include: (a) con-
tributions they themselves may have made for
the maintenance of the Union's, pension,
health, and welfare trust funds after we unlaw-
fully ceased contributing, (b) any premiums
our employees may have paid to third-party
insurance companies for medical and dental
coverages, and (c) any medical or dental bills
our employees have paid directly to health
care providers that the contractual policies
would have covered. All payments to employ-
ees shall be with interest.
ANGELUS BL OCK, Co., INC.; ANMARI,
INC.
869
DFCISIONS 1OF NATIONAL .A()OR RELA IONS BO()ARD
DECISION
SA'I'I-IMEiNI 01FI HlI CASE
EARI.DIEAN V.S. ROBiINS, Administrative Law Judge:
The hearing in this matter was held before me in Los
Angeles, California, on September 11 and 12, 1979. The
charge was filed by Building Material & Dump Truck
Drivers, Local 420, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, herein called the Union, on March 6, 1979, and
served on Angelus Block Co., Inc., and Amari, Inc.,'
herein respectively called Angelus and Amari, and col-
lectively called Respondents, on March 6, 1979. A first
amended charge was filed by the Union and served on
Respondents on April 26, 1979. The complaint which
issued on April 27, 1979, and amended on July 13, 1979,
and on September 11, 1979, alleges violations of Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended, herein called the Act. The principal issues
herein are whether Angelus and Amari are single em-
ployers or alternatively joint employers or alter egos of
one another and, if so, whether Amari is bound by An-
gelus' collective-bargaining agreement with the Union;
and, if so, whether the Union waived its right to bargain
as to the wage rates for new classifications during the
term of said agreement.
Upon the entire record,2 from the demeanor of the
witnesses, and after due consideration of post-hearing
briefs filed by the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Angelus, a California corporation with an office and
principal place of business located in Sun Valley, Califor-
nia, is engaged in the manufacture of concrete blocks.
Amari, a California corporation with a principal place of
business located in Sun Valley, California, is engaged in
the sale and transport of raw materials solely to Angelus
which materials are purchased and received from Con-
rock, a supplier of Angelus, as required by Angelus.
Angelus, in the course and conduct of its business op-
erations, annually purchases and receives goods or serv-
ices valued in excess of $50,000 directly from suppliers
located outside the State of California.
The complaint alleges, and Respondents deny, that
Angelus and Amari are a single employer. In the circum-
stances herein, for the reasons set forth below, I find that
Respondents constitute a single employer and that Re-
spondents are, and at all times material herein have been,
employers engaged in commerce and in operations af-
fecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
I The name, of Respondents appear as correcled at the hearing
2 After Ihe close of the hearing herein, the Gieneral Counsel ilsved Io
reopen Ihe record for the limited purpose of reclilng into csidenllc a
slipulation of Ihe parlies T he mntilon is hereby granied aind Ihe stiptl;l-
lion is received as ( C Fsxh 13
II. I HlI 1AOR OR(,ANIZA I ION
The complaint alleges and I find that the Union is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
Ill. Ilil AlI Ii(illI) UNIFAIR I ABOR PRACI1 iCtS
A. Facts
i. The relationship between Angelus and Amari
Angelus is engaged in the manufacture of concrete
block at two facilities in Sun Valley, California, known
as the Tuxford Plant and the Sheldon Street Plant, a fa-
cility in Orange, California, and a facility in Fontana,
California. Angelus has had collective-bargaining agree-
ments with the Union covering its drivers at the Tuxford
Plant since 1954. The current agreement is effective from
August 1, 1977, to July 31, 1980. There are no drivers
located at the Sheldon Street Plant. Rather, drivers from
the Tuxford Plant service the Sheldon Plant which is ap-
proximately 2 miles from the Tuxford Plant. The drivers
at the Orange facility are represented by Teamsters.
Local 235. At the time of the hearing herein, the Fon-
tana Plant had been owned by Angelus for less than 30
days. The drivers at that plant are represented by Team-
sters, Local 467.
Angelus employs approximately 90 employees at the
Tuxford location, 18 to 20 at the Sheldon plant, 50 to 60
at the Orange plant, and 20 to 25 at the Fontana plant.
There are approximately 20 drivers employed at Tux-
ford, 12 at the Orange plant, and 3 or 4 at the Fontana
plant.
In the manufacture of block, Angelus uses heavy
weight rock and sand, sometimes referred to as rock dust
and squeegee, light-weight aggregate, also referred to as
expanded shale, bulk cement, iron oxide pigment, and
some chemical compounds. Its drivers are principally
used to haul bulk cement, rock and sand, and aggregate
from suppliers to Angelus' facilities and to deliver the
finished concrete block to Angelus' Respondent's cus-
tomers. Prior to the formation of Amari, the supplier,
Conrock, transported rock and sand to the Tuxford and
Sheldon facilities. However, Angelus drivers transport
rock and sand from a supplier to the Orange plant.
The facilities involved herein are the Tuxford and the
Sheldon plants. The transportation equipment used at the
Tuxford Plant includes cement trains in which bulk
cement is hauled in large pneumatic tanks from the sup-
plier located in Colton, California, to the Tuxford facility
where it is unloaded by the driver through tubes into
cement silos by means of an air pressure device. Also
used are block trucks which are basically a set of double
flatbed trucks used to deliver the finished block to the
customer where it is unloaded by the Angelus driver
using a forklift which is carried on the truck.
Lightweight aggregate trains are bottom-dump trucks
specially built for Angelus and used to haul lightweight
aggregate from the suppliers in Ventura, California, and
Fraser Park, California, to the Tuxford and Sheldon
Plants where it is unloaded by the driver. Additionally,
870
ANGEI.US BLOCK CO., INC
Angelus utilizes one or two truck and trailer combina-
tions and one or two semi-trailers.
Angelus was incorporated in 1955. Eighty percent of
the stock of Angelus is owned by the estate of Edward
Antonini in a testamentary trust. The remaining 20 per-
cent of the stock is owned by his widow, Olga Antonini.
Olga Antonini is the beneficiary of the Edward Anton-
ini trust for her lifetime. After her death, her son Mario
Antonini, herein called Antonini, becomes the benefici-
ary of the income of this trust for his life. The reversion-
ary interest goes to the children of Mario Antonini.
Amari was incorporated in June 1978. Antonini testi-
fied that Amari was formed primarily as a means of pro-
viding for the welfare of his wife Marisa in the event he
predeceased his mother inasmuch as his wife is not a
beneficiary of the Edward Antonini trust. A secondary
purpose was to allow William Gapastione, vice president
of Angelus and a 30-year employee of Angelus to ac-
quire some equity in an Antonini enterprise, something
which Antonini could not provide through Angelus.
Ninety percent of the stock of Amari is owned by the
Antonini family trust, an inter vivos trust established by
Antonini and his wife in 1972 or 1973." Antonini and
Marisa Antonini are lifetime beneficiaries of the Antonini
family trust. Should he predecease her, then she is the
lifetime beneficiary. The reversionary interest goes to
their children. Ten percent of the Amari stock is owned
by Gapastione. Antonini and Marisa Antonini made a
capital contribution to Amari of $25,000, and subsequent-
ly Gapastione made one of $2,500.
Amari is engaged solely in the business of hauling rock
dust and squeegee from Conrock to Angelus' Tuxford,
and Sheldon plants. There is no formal contract between
Angelus and Amari. Angelus is Amari's sole customer
and Conrock is its sole supplier. Amari is not listed in
the telephone directory and does not advertise in trade
publications. The Conrock facility is located across the
street from the Tuxford plant. Prior to the formation of
Amari, Angelus purchased the rock dust and sand used
at the Tuxford and Sheldon Plants directly from Con-
rock and Conrock delivered these materials to Angelus
at a zone-delivered rate. Following the formation of
Amari, Amari purchased rock and sand, as needed by
Angelus for the Tuxford and Sheldon Plants, at an f.o.b.
rate and hauled the materials from Conrock to the Tux-
ford and Sheldon Plants. Amari sells these materials to
Angelus at the same zone-delivered rate previously
charged Angelus by Conrock.4 Amari maintains no in-
ventory.
Antonini is president of Angelus and its chief execu-
tive officer, Olga Antonini is chairman of the board. Ga-
pastione is vice president and is in charge of production.
Edwin Kaftal is secretary-treasurer and chief financial of-
- The other propert>y owned h) the Antonili family trust is the home
of Mario and Marisa Antonini. svhich was placed in the trust at the time
it was eslablished
I Antonlni testified that there was soIme adslaniage to Angelus im
making its purchase, through Anlarl Conlrock i regulated hb the Pulblic
Utilities Commimissioi, and the Board of ['quali/ailon as a hauler for hire
Howevcr. Amari is not s uhec tl thi Ihse regualtiotls hecause it haiuls for
Angelus under a hu)-,sll agreement the record d oes Iot elablish pre-
Clsely what the advanlage is bhut ii appears to ino.lse sm11 thilange ill
P Lt C. regulations
ficer and Arliss Andrus is transportation superintendent.
The Angelus board of directors consists of Antonini. Ga-
pastione, and Olga Antonini. The) are all located at the
Tuxford Plant but Antonini. Gapastione. and Kaftal
travel to the other plant as necessary, and Olga Antonini
is not involved in the routine day-to-day operations.
Marisa Antonini is president of Amari, Antonini is vice
president, and Gapastione is secretary-treasurer. They
also constitute the Amari board of directors. According
to Antonini, he, Gapastione, and Kaftal are the only su-
pervisors of Amari. Antonini, Gapastione, and Kaftal
perform their Amari duties and functions from their An-
gelus offices. Amari has no separate offices.
Marisa Antonini has no office and no regular working
hours. Antonini and Kaftal are responsible for Amari's
day-to-day operations. Marisa Antonini has no office and
spends only several hours a month in the performance of
her function as president. Amari has no telephone. To
the extent a telephone is required, Angelus telephones
are used. Antonini, Gapastione, and Kaftal receive remu-
neration from Angelus for their full-time services but
none from Amari. Marisa is the only Amari officer who
receives compensation. She is paid $18,000 annually.
Amari owns two pieces of equipment, a truck pur-
chased in either the latter part of December 1978 or the
first part of January 1979, and a truck purchased in
either the latter part of January or the early part of Feb-
ruary 1979. Amari began hauling materials from Conrock
to Angelus in January. The second truck was put into
service in February. One of the trucks is a used two-axle
tractor with a set of bottom-dump trailerss purchased for
$15,000. The other is a new, custom-built four-axle dump
truck purchased from Peterbilt Co. for about $65,000. 6
The Amari trucks are painted white with the name
Amari, Inc. in black letters. Angelus trucks are painted
in four colors with a distinctive script logo. Amari trucks
are parked in the Angelus yard and the Amari drivers
report there for work each day.
Kaftal handles the accounting for Amari. Sandra
McGilvary, accountant supervisor, is in charge of ac-
counting for Angelus. Amari has limited use for clerical
assistance-the typing of bills to Angelus two or three
times a month and the receipt of a monthly bill from
Conrock which is routed unopened to Kaftal.7 This
clerical service is rendered by employees of Angelus.
Antonini estimates that the Angelus clerical staff spends
only 15 to 20 minutes a week performing services for
Amari. There are no signs on the Tuxford facility indi-
cating that Amari occupies the premises. There is an An-
gelus sign however. Angelus mechanics do normal, regu-
lar maintenance work on Amari equipment. No written
' In Ma) 1979 Amari sold the trailers to Angelus fior the sanme amollnlt
thalt Amari paid According to Kaftal. Amari had to piurchase Irailer, it
did nol need ias a package . ith the equipment it desired Antonillil Itest-
fled that Angelus is now utilizting Ihese holioren-dump Irailers al the
()raglle f.aclitu aus ,a s.parc set of hotloni-durip, t()r haulltng rock .11(m1 amitld
.nmaimri obtained a hblank loan .aholut Jimnuar 1'79 foIr $55.(Xt or
$h.5.tK() sshich la, securted h) .: persollial gualranltee ,of M1.rlo .i rid Nailri,i l
Alltonlliil itanlk lo;ts obtllilied bh AXngelus are gulranteed bs Mario and
()lga A tol lilnli
Angetlus iimail is ,opened ipnti receipt and thent routed to tile proper
pers ni
871
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
record is kept of this maintenance work, nor of the
repair work which is performed by Angelus employees
on Amari equipment. Angelus has its own fuel tanks.
Both Angelus equipment and Amari equipment are
fueled from these tanks. Sterling Tire provides tire main-
tenance service for both Angelus and Amari which is
billed to Angelus. Both Amari and Angelus have ac-
counts at Conrock. 8 They are separate accounts. Some
sanding has been done on an Amari truck by Angelus
drivers. According to Kaftal, this was done because the
weather was inclement and these employees would oth-
erwise have been sent home.
Amari has made no payment to Angelus for clerical or
maintenance and repair service nor for the use of the
telephone or the Angelus facilities or for the tire service
rendered by Sterling Tire. Amari is charged on a month-
ly basis for fuel at cost. Kaftal testified that sometime
during the first quarter of 1979 he and Antonini had
some discussion as to the "minor matter" of billing
Amari for these services. According to him, he did not
consider it that important so he does not recall specifical-
ly what was said. He knows they decided that fuel
charges would be billed on a monthly basis.
According to Kaftal, he and Antonini discussed insur-
ance which was on a separate policy and billed separate-
ly. He does not recall whether maintenance was specifi-
cally discussed. Kaftal also testified that he thinks he just
made a unilateral decision to charge Amari for mainte-
nance, repair, and tire service at the end of the fiscal
year,9 because the administrative work necessary to keep
track during the course of the year was excessive for the
money involved. He does not recall whether he commu-
nicated this decision to anyone. He admits that no rec-
ords are kept regarding the amounts owed by Amari to
Angelus for the maintenance work or the clerical serv-
ices or the use of the telephone.' 0 Antonini testified that
Kaftal specifically asked him how he wanted to handle
maintenance and repair. He replied, annually, since it
would be minimal.
Angelus and Amari have separate tax numbers and file
separate tax documents. Kaftal signs checks for both An-
gelus and Amari, " however, they have separate bank
accounts. Amari has separate workmen's compensation
and comprehensive liability insurance policies and pays
its own premiums. Angelus and Amari have separate
business licenses and maintain separate books of account.
Angelus' financial statements are audited. Amari's are un-
audited.
Amari has two employees, both drivers. Antonini, and
Kaftal testified that Amari employees are supervised by
Kaftal, Antonini and Gapastione and Angelus drivers at
the Tuxford Plant are supervised by Andrus. Antonini
testified that he spends no more than I hour a month su-
pervising Amari employees, that Gapastione spends only
I or 2 hours a month on such duties, and that, at the
8 Occasionally Conrock still makes deliveries to Angelus
9 The fiscal year of both Amari and Angelus ends on February 2f.
'0 Antonini testified that the Angelus telephone bill is approximately
$2.500 to $2,800 monthly and that approximately 5 to 10 calls are made
monthly on behalf of Amari, generally all local calls to Colnrck
II Antonini and Marisa Antonini also sign checks for Amari. and An-
tonini and Olga Antonini also sign checks for Angclus
most, Kaftal spends 2 hours a week. Kaftal estimates he
spends only 5 or 10 minutes a week on such duties. Ac-
cording to Antonini, there is practically no dispatching
involved in connection with Amari drivers. The drivers
commence work at a certain time in the morning and
they haul materials from Conrock until certain stockpiles
are filled which can be determined by the drivers by
visual observation. When all the stockpiles are full, they
clock out and go home. Kaftal testified that no supervi-
sion is required of Amari drivers on a day-to-day basis,
that, as a practical matter, a week or two could pass
without any direct supervision. Generally, either he, An-
tonini, or Gapastione is available. On the occasions when
all three of them are absent, they are generally at one of
the other plants and can be reached by telephone if a
problem arises.'2 In that event, the driver would prob-
ably tell Andrus and Andrus would telephone one of
them.
Andrus testified that Angelus drivers are dispatched,
the implication appearing to be that they require supervi-
sion, whereas Amari drivers do not. However, from the
testimony of two Angelus drivers, James Newell and
Armand Marsolais, it appears that what dispatching is
done by Angelus is done only as to the block drivers
who deliver the finished product to customers. Thus
Newell, a block driver, testified that he follows a daily
routine. Invoices are left out overnight so that the driv-
ers can get them in the morning and see what deliveries
they are to make since the office staff is not there when
the drivers commence work. After they tie down their
loads they then proceed to make deliveries in accordance
with the invoices. Occasionally they are told to call in.
In these instances, they telephone Andrus and he in-
structs them where to go next. If they are not specifical-
ly instructed to call in they return to the Tuxford plant
and report to Andrus who assigns them their next load.
Marsolais, who hauls raw materials from the suppliers
to the Tuxford and Sheldon plants, testified that he fol-
lows a regular daily routine. When he reports to work,
he checks his truck. Then he checks the materials supply
to determine what materials are needed. He then pro-
ceeds to the supplier who furnishes whatever material is
needed. If sand is needed, he goes to one supplier. If
rock is needed, he goes to another supplier. Marsolais
works a 2- to-10 a.m. shift. Occasionally at the end of the
shift, Andrus will tell him that particular materials are
needed the next day. However, generally, Marsolais
makes his own determination, from a visual observation
of the supply on hand, as to what materials he needs to
obtain.
Amari driver Phillip Cosentio testified that he runs be-
tween 18 and 25 loads a day. Generally, no one at the
Tuxford Plant inquires as to the progress of his work.
However, on five or six occasions Andrus has questioned
him as to why his deliveries were slow. On one occasion
in March 1979, according to Cosentio, Andrus came
across the street to Conrock to inquire as to why Cosen-
tio was taking so long. Andrus does not deny this.
2 Kaftal estimates that the three of them are away from the Tuxford
I'lant at the sain ie nima o l ;in1 acrage of 4 hours a week
872
ANGELUS BLOCK CO., INC
Amari drivers work a 5-day week unless the plant is in
production on Saturday. In this event, according to
Andrus, he tells the Amari driver that the plant will be
in production on Saturday and they know from that to
report to work on Saturday since they only work on Sat-
urday when the plant is in production.' 3 His other regu-
lar contact with Amari employees is to receive their pa-
perwork and timecards. The paperwork consists of
weight slips from Conrock which are given to Andrus or
placed on his desk daily. The timecards are given to him
weekly. According to Andrus, he computes the hours
and gives the timecards to Kaftal. He gives the weight
slips to one of the office clericals. Also, when Amari
drivers wish to report problems with their equipment,
they do it in written form which is given to Andrus. Ac-
cording to Andrus, he then speaks to Antonini or Kaftal
regarding the problem. When Angelus drivers have me-
chanical problems with their equipment, Andrus calls the
Angelus shop.
All applicants for driving positions are referred to
Andrus. Generally, when an applicant comes into the
office, he has no knowledge of the existence of Amari. If
either Angelus or Amari has a vacancy, Andrus informs
the applicant of this. All applicants are given an applica-
tion form whether or not there is a vacancy. According
to Andrus, he does not interview the applicants when he
has them fill out the application form. He describes the
driving jobs and the only question he asks, which he
does prior to giving them a form, is whether they have a
good or bad driving record. All applications are kept on
file together. Andrus spends probably no more than 5
minutes a day receiving paperwork from Amari drivers
and handling applications.
Andrus also testified that he interviews and hires driv-
ers for Angelus but does not interview and hire for
Amari. Kaftal testified that if Amari has an opening he
asks Andrus for some current applications and possibly
asks Andrus to check if the applicant is still available. He
has never, to his recollection, asked Andrus for a recom-
mendation as to whether an applicant should be hired.
According to Kaftal, Amari does not interview appli-
cants. Rather Kaftal selects someone from the applica-
tions given him by Andrus. He checks with the insur-
ance carrier regarding the applicant's driving record. If it
is satisfactory, he instructs Andrus to telephone the ap-
plicant and offer him the job.
Andrus prepares and signs a payroll change notice re-
flecting the hiring of the employee. According to Kaftal,
Andrus has no discretion in filling out this notice. All
Amari employees are hired at $7.50 an hour, with time
and a half for all hours over 40 hours a week. Andrus
then gives the payroll change notice and a personnel file
jacket" to Kaftal. Kaftal initials the notice's and it is
filed. According to Kaftal, the personnel jacket is pre-
pared by whoever has time.
13 Andrus' duties as transportation superintendent at the Tuxford Plant
entail the dispatching of trucks, arranging for the repairing of equipment.
and overseeing the yard and the loading
'4 Kaftal testified that each personnel folder takes 5 to 10 minutes to
prepare.
16 In at least one instance. Andrus initialed the payroll change notice
for a new hire. Kaftal does not always initial this notice prior to ihe
actual hiring of the individual
During its existence, Amari has hired eight drivers. Of
those eight, one, Phillip Cosentio, has received two wage
increases-one on February 12, 1979, from $7.50 to $7.98
an hour, and one on July 31, 1979, from $7.98 an hour to
8.50 an hour. Kaftal testified that Andrus does not initial
payroll change notices reflecting wage increases and
does not participate in the decision to grant such in-
creases. According to him, he and Antonini do the
hiring, set the policies and approve the pay raise. He also
testified that he has hired most of the Amari drivers. At
least one was hired by Antonini. Andrus testified that
when a new Amari driver reports to work, he relays
instructions to the Amari drivers that the old driver is to
break in the new driver. Neither Kaftal nor Andrus re-
ceives any compensation for the work they perform for
Amari. They are compensated only by Angelus.
Cosentio initially talked to Antonini when he applied
for a job because he had a personal referral to Antonini.
According to Cosentio, Antonini inquired as to his driv-
ing license and record. He showed Antonini a photocopy
of his Department of Motor Vehicles record. Antonini
photocopied it and told Cosentio to return the following
day and talk to Andrus. Antonini did not tell him he was
hired. When Cosentio returned the following day he
filled out an application form and Andrus told him basi-
cally the same things that Antonini did, as to wages,
hours, and benefits. Andrus told him he was hired and
the next day he reported to Andrus. Andrus told him to
work with the other driver and learn the duties.
There is no interchange between Amari drivers and
Angelus drivers. Usually, if for some reason both Amari
trucks are not in operation, Conrock will deliver materi-
als to Angelus. On one occasion this year, for a portion
of I day, according to Andrus, an Angelus driver using
an Angelus truck made deliveries from Conrock to An-
gelus. Andrus does not recall the circumstances which
gave rise to these deliveries. Antonini testified that this
has occurred twice.
Both Angelus drivers and Amari drivers are paid on
Fridays. Angelus drivers and Amari drivers use the same
restroom, park their equipment in the same yard, and
unload in the same area. Amari drivers start at a wage
rate of $7.50 an hour and Angelus drivers start at $9.25
or $9.30 an hour. Amari's overtime rate is time-and-a-half
after 40 hours a week. Angelus' overtime rate is time and
a half after 8 hours a day, or 40 hours a week, which-
ever is greater, and on Saturdays, and double-time on
Sundays and certain holidays with certain exceptions.
Amari provides health insurance for its drivers through
an insurance carrier and its vacation policy is I week
after I year's service and 2 weeks after 2 years' service.
The Angelus collective-bargaining agreement provides
for a union health insurance plan and for I week's vaca-
tion after I year, 2 weeks after 2 years, and 3 weeks after
10 years. Amari drivers drive substantially less than 100
miles a day with a maximum of 4 miles per round trip.
Angelus raw material drivers drive from 130 to 150 miles
per round trip. Amari drivers work from 9 to 12 hours a
day, averaging around 10 hours daily. Angelus drivers
work on either a day or a swing shift. Angelus cement
and light-aggregate haulers generally work an 8-hour
873
I)E-CISI()NS ()F NATI()NAI. I.A()R REI A TI()NS B()ARI)
day, 40-hour week. The Angelus block drivers work be-
tween 50 and 60 hours a week during the busy season.
Angelus and Amari drivers use the same timeclock. The
Angelus timecards are kept in a rack on the premises.
The Amari timecards are retained by the drivers until
they are turned in to Andrus at the end of the pay
period.
2. The alleged refusal to bargain
Angelus is a member of the Cement Block Manufac-
turers Association, herein referred to as the Association.
Henry Becker, a labor relations consultant, represents the
Association and its members in labor relations matters.
He also represents Amari. Becker testified that in the
early part of September 1978, he telephoned Jim Thomp-
son, who was then a business agent for the Union but is
now retired. According to Becker, he told Thompson
that Antonini had formed a new corporation and that he
was establishing a new job with a new end-dump truck.
Becker suggested that they negotiate the terms and con-
ditions of employment for the employees at Amari.
Thompson agreed to arrange a meeting. It
According to Becker, the meeting was held later in
September 1978. Present at the meeting were Becker,
Thompson, the new president of the Union,"7 and Billy
Jack Cooper, a business agent for the Union. Becker tes-
tified that he informed them of the formation of Amari
and stated that it was the present intention of Amari to
have one truck and one driver who would work an 8-
hour shift but that they might go on a double shift with
two drivers. Becker said Amari was a new company,
that it wanted to grow and suggested that the Union ac-
commodate Amari by agreeing to a wage rate lower
than that of the Association contract. He referred to sev-
eral instances where Local 235 had made this type of ac-
commodation in Orange County and stated that Amari
was not going to replace or in any way supplement the
existing jobs of Angelus drivers.' 8 Becker suggested a
wage rate of $7.50 an hour and stated that in return for
this sort of consideration as to wages, Amari was willing
to consider, and would probably agree to, all the benefits
and privileges in the Association contract. Cooper and
Thompson expressed appreciation of management's atti-
tude in trying to foster a harmonious labor relationship.
One of them said they did not know what wage rate
they could offer but they felt something could be
worked out, and a labor agreement was consummated.
Becker also testified that after 3 or 4 weeks he tele-
phoned Thompson and a meeting was arranged for the
middle or latter part of October. Becker, Thompson, and
Cooper were present and the union president was there
for a portion of the meeting. Becker reiterated Amari's
position. Cooper and Thompson said they could not
promise anything but they were sure an agreement could
be reached. Becker said Amari had a custom-built dump
truck which was parked at Angelus Block. He suggested
that they go out and look at the truck. Becker further
II Thompson did notl testify.
17 The union president was not present throughout the entire meeting
He did not testify.
iI The Angelus drivers at the Tuxford facility had never hauled mate-
rials from Conrock.
stated that it was necessary for Amari to have considera-
tion on the wage rates, especially the hire-in rates. He
then showed them a list he had prepared of low rates in
effect in certain agreements of other Teamsters locals.
They reached no agreement as to wage rates but agreed
to another meeting.
Becker testified that the next meeting was held in the
latter part of November or in December, some 2 or 3
weeks after he telephoned either Cooper or Thompson
and arranged the meeting. Becker and Cooper were pres-
ent. Becker continued to ask for a $7.50 rate, stating that
it was unfair to Antonini and Amari to be saddled with a
high wage rate while other companies were getting low
rates from other Teamsters locals, that such competition
could put Amari out of business. Cooper said the Union
was having a terrific fight with one of these other local
unions and that the Joint Council of Teamsters had been
asked to assist them in working out their grievances.
They agreed that they would meet again.
According to Becker, he and Cooper met again in Jan-
uary. Cooper insisted that Amari would have to pay the
same wage rate as in the Association contract, but that
the Union would make concessions as to other contract
terms. Becker said if they could not reach an agreement
Amari would just hire a driver and commence oper-
ations. Cooper said, "Well, you have to do what you got
to do."
In August 1979 Cooper and Becker met again. Becker
testified that Cooper explained that the Union had been
able to work out a settlement involving some of the
companies that had agreements with wage rates less than
those in the Association contract.'9 Cooper said the set-
tlement included a hire-in rate of $8.50 an hour with in-
creased benefits to maintain the same total cost package.
Cooper offered the same package to Amari with a term
extending into 1981. Becker said this would not help
Amari since they had a lower starting wage rate. Becker
also told Cooper that Amari's present employees were
receiving $7.98 an hour. Becker further testified that all
of their negotiations concerned the terms of a collective-
bargaining agreement for Amari and that what the Union
offered in the last negotiation session were the terms of
the Conrock agreement. According to Becker, the Union
never requested that Amari drivers be included under
the Angelus agreement.
Cooper disagrees with Becker as to the dates and
number of their meetings. 20 According to him, the first
meeting was in December or January. However, he testi-
fied in substantial agreement with Becker as to what oc-
curred at the first meeting. Cooper also testified that
later in January he telephoned Becker and asked for a
clarification of what the Amari truck drivers would be
doing. Cooper further said that he felt the Union could
not agree to Amari's wage offer.
i~ These collective-bargaining agreements which the Union considered
to be substandard apparently followed a pattern established when a sub-
sidiary of Conrock negotiated such an agreement. Conrock is bound by
the Master Agreement beitween various Teamsters Locals and the Rock
Product and Ready-Mix Concrete Employers of Southern California
"1) The parties stipulated thai there wmere two meetings between Amari
and the Unirin. one in the fall of 1979 and one in January or February.
874
ANiC;L US HI.()CK '(). INC
A week or so later, in early February,. Cooper testi-
fied, he telephoned Becker and they arranged a meeting
for February 9. Cooper and Becker met as scheduled.
According to Cooper, he explained that the Union was
having a great deal of difficulty with substandard con-
tracts and just was not signing any, and that the Union
felt that the Amari work was covered by the Angelus
agreement. Becker denied this. Cooper said the truck
was domiciled at the Tuxford Plant, was maintained in
service there, and, as he understood it, Angelus people
hired the drivers and they were paid through the An-
gelus office. Thus, Cooper stated, they were doing work
covered by the Angelus agreement. Becker said, "No.
it's new work." Becker again said Amari was entitled to
a $7.50 wage rate contract. Cooper said it was true that
there were some collective-bargaining agreements with
the lower wage rate, but the Union was not signatory to
such agreements, and that some of the union contracts
provided for wages higher than the Association contract.
At some point during the meeting, Becker said Antonini
owned Amari and it was Antonini's "own thing." No
agreement was reached.
James Newell, union steward at the Tuxford Plant, tes-
tified that in February 1979 Angelus driver Robert Ste-
vens complained to him that he had been refused his re-
quest to drive a four-axle dump truck. Newell related
Stevens' grievance to Andrus and asked why the request
had been refused. Andrus said it was going to be a non-
union truck and Stevens would have to get out of the
Union in order to drive it and he knew Stevens did not
want to do that. Newell said Angelus had a union con-
tract and could not run nonunion trucks. Andrus said,
"Well, they can if they want to. It's a free enterprise. It's
another business. They can do whatever they want."
Newell said he would have to turn the matter over to
Cooper and file a grievance, which he subsequently did.
On February 16, the Union filed a grievance and indi-
cated its willingness to take the matter to arbitration.
The grievance alleges:
Angelus Block has purchased additional Teamster
equipment and is working it under a new company
called Amari Trucking and refuses to recognize
their responsibilities under the Angelus Block con-
tract. Local 420 demands Angelus Block post these
jobs for bid and compensate any deprived or dam-
aged employees.
The record does not establish the disposition of the
grievance.
Cooper testified in agreement with Becker that they
did have another meeting about August 1979. However,
he did not testify as to what occurred at the meeting
except that they did not reach any agreement.
Cooper admits that a five-axle bottom-dump is not a
usual classification in the industry but contends that
there are some in operation which are covered in the
Ready-Mix Master Agreement under "Drivers of Truck-
Trailers and Semi's." He further admits that there is no
general classification for a four-axle end-dump truck and
that they would not have been able to determine what
classification would cover the driver of such a truck
without negotiating.
Angelus' collective-bargaining agreement with the
Union contains the following clause, commonly referred
to as a zipper clause:
A rticle XIII
Bargaining
Each party hereto expressly waives any obligation
or duty presently or hereafter imposed by law on
the other party, and acknowledges and recognizes
that no obligation or duty exists under this Agree-
ment to bargain collectively or negotiate with the
other party over or pertaining to wages, hours, pen-
sions, paid holidays, insurance, sick leave, severance
pay, or any terms or conditions of employment or
retirement or any other matters or subjects whatso-
ever during the life of this Agreement.
Becker testified, without contradiction, that during the
negotiation of the Angelus agreement he and Thompson
discussed the possibility of including in the agreement a
"classification of new equipment" clause. They agreed to
leave that type of clause out of the agreement so that the
employer would be able to establish new jobs during the
term of the agreement. They felt that their bargaining re-
lationship was amicable enough so that they could settle
any dispute which arose as to new classifications infor-
mally or, if they could not reach agreement, it could be
negotiated during the next contract negotiations.
3. The independent 8(a)(l) allegations
Cosentio testified that on July 18 Kaftal called him
into Kaftal's office. According to Cosentio, Kaftal asked
if he had been talking with Bill Cooper. Cosentio said,
"No." Kaftal asked if he had been talking to the guy
from the Union. Cosentio said he had when he was at
the lunch truck at Conrock. Kaftal asked what Cooper
said. Cosentio said, "Bill Cooper told me about the meet-
ing that the Company and the Union were having at
1:30." Kaftal said, "You guys going to be union, and we
are going to cut down your overtime." Cosentio admits
that he talked to counsel for Respondents during the
week prior to the hearing but did not mention that
Kaftal said anything about reducing overtime hours.
However, in his prehearing affidavit, dated July 25, 1979,
Cosentio stated, "Ed said we would be in the Union, but
that we would have our overtime cut back."
Kaftal admits calling Cosentio into his office. Alleged-
ly because he had heard that Cosentio had been bothered
in line at the Conrock Plant by a union representative.
Kaftal testified that he does not recall where he obtained
this information. According to Kaftal, he said, "Phil, I
heard you had been bothered in line at the Conrock
Plant. And I want to know if there was anything to
that." Cosentio said, "No." Kaftal said, "Okay, he hasn't
bothered you, taking up your time?" Again Cosentio re-
plied, "No." Kaftal further testified that there was no
discussion of the Union aside from the observation that a
union representative was at Conrock. Kaftal denies that
X7s
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he told Cosentio that he would have to join the Union
and lose all of his overtime or that he even mentioned
overtime, or having to join the Union or stated that Co-
sentio was not to talk to union agents.
I credit Cosentio, who was still in Amari's employ at
the time of the hearing herein. He impressed me as an
honest, reliable witness. On the other hand, Kaftal evi-
denced a tendency to slant his testimony, particularly as
to the relationship between Respondents, so that it
would be more favorable to Respondents.
B. Conclusions
1. Single employer
Nominally separate business entities are considered by
the Board and the courts to be a single employer where
they comprise a single integrated enterprise. Common
ownership is a factor but is not determinative. The con-
trolling criteria are interrelation of operations, common
management, common ownership, and active common
control of labor relations. Radio & Television Broadcast
Technicians Local Union 1264 v. Broadcast Service of
Mobile, Inc., 380 U.S. 255, 256 (1965); South Prairie Con-
struction Co. v. Local No. 627, International Union of Op-
erating Engineers, AFL-CIO, et al., 425 U.S. 800 (1976);
Gerace Construction, Inc. and Helger Construction Compa-
ny Inc., 193 NLRB 645 (1971).
Here, Respondents are separate legal entities with sep-
arate bank accounts, separate lines of credit, separate
payrolls, separate insurance coverage, and separate tax
obligations. They are owned by separate trusts; however,
there is an element of common beneficial ownership and
they are essentially Antonini family businesses. Thus,
Antonini and his mother are lifetime beneficiaries of the
Edward Antonini trust which owns Angelus and was es-
tablished by the will of Antonini's father; Antonini and
his wife are the lifetime beneficiaries of the Antonini
family trust which owns Amari; and Antonini's children
hold the reversionary interest in both trusts.
Respondents' operations are interrelated. Angelus is
Amari's sole customer. Actually, Amari was formed, and
exists, for the sole purpose of transporting certain raw
materials to Angelus from Conrock. Angelus furnishes
services to Amari for which Amari has not been billed
and, even if Kaftal and Antonini are credited that An-
gelus will bill Amari on an annual basis, they admit that
no agreement was made as to the basis for such billing
and no records are kept of the services rendered. This is
clearly not typical of an "arm's length" relationship. An-
tonini, Gapastione, and Kaftal actively manage both busi-
nesses. Andrus, the admitted supervisor of the Angelus
drivers is, at the least, the liaison between Amari and its
drivers. These managerial and supervisorial functions are
all performed in the course of their workday for An-
gelus. In these circumstances, I find that Angelus and
Amari constitute a single employer.
2. The 8(a)(5) allegation
Respondents contend that even if they are found to
comprise a single employer, the Amari employees consti-
tute a separate bargaining unit inasmuch as the Angelus
collective-bargaining agreement does not include classifi-
cations which specifically cover work performed by
Amari employees, and Amari utilizes new and different
equipment, there is no interchange of employees, there is
different day-to-day supervision, the working conditions
of Angelus and Amari employees vary greatly, and An-
gelus and Amari have different labor relations policies. I
find no merit in this argument.
In determining the scope of the unit, the primary con-
cern is the community of interest of the employees in-
volved. The relevant factors to be considered are bar-
gaining history, the functional integration of operations,
the differences in the types of work and the skills of em-
ployees, the extent of centralization of management and
supervision, and the extent of interchange and contact
between the groups of employees. Frank Naccarato, a
Sole Proprietor, d/b/a Naccarato Construction Company,
233 NLRB 1394 (1977); Peter Kiewit Sons Co., and South
Prairie Construction Co., 231 NLRB 76 (1977).
Here the operations of Amari and Angelus are func-
tionally integrated. The drivers of both Angelus and
Amari transport raw materials by truck from a supplier
to Angelus utilizing essentially the same basic skills and
working out of a common location. There is common
management and, even assuming arguendo that Andrus is
not the supervisor of Amari drivers, he serves as their
principal daily contact with management. Amari has no
bargaining history and as to Respondents' arguments
with regard to differing working conditions and labor re-
lations policies these differences arise out of Respond-
ents' refusal to apply the Angelus contract to Amari
drivers and thus are not controlling factors in determin-
ing whether Angelus and Amari employees comprise a
single unit.
Similarly, I reject Respondents' argument that the rec-
ognition clause of the Angelus collective-bargaining
agreement precludes the inclusion of Amari drivers in
the unit inasmuch as the equipment utilized by Amari is
not specifically named in the agreement. The recognition
clause of the agreement provides:
Article I
Union Shop
Section 1. RECOGNITION OF THE UNION The Em-
ployer recognizes the Union as the exclusive repre-
sentative for the purpose of collective bargaining in
respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment for all em-
ployees in the bargaining unit, consisting of those
classifications set forth in Article IV, Section 1,21
and excluding all employees properly covered by
other bargaining units, office clerical employees,
technical and professional employees, guards,
watchmen and supervisors as defined in the Nation-
al Labor Relations Act as amended ....
Article IV, lists the classifications.
It seems clear that the basic classification involved is
that of truck driver. Thus, where the requisite communi-
ty of interest exists, no truckdriver employee should be
2 This is clearly a typographical error and should read "Section 2."
876
ANGELUS BLOCK CO., INC.
excluded from the unit simply because the contract does
not contain a precise description of the equipment driven
by him. In the circumstances herein, I find that the
Amari drivers and the Angelus drivers enjoy the requi-
site community of interest. In this regard I find, in the
circumstances herein, the lack of interchange of Amari
and Angelus employees to be no different in essence than
would a lack of interchange of job functions between
employees in any two job classifications.
Accordingly, I find that Respondents' employees com-
prise a single unit and that the appropriate unit is that al-
leged in the complaint:
All truckdrivers, warehousemen, batch plant opera-
tors, bunkermen, gas station operators, loaders,
washers, warehouse foremen, greasers, tiremen,
shippers, fork lift operators, truck repairmen, and
truck repairmen helpers employed by Respondents
at their Sun Valley, California facilities; excluding
all office clerical, technical and professional em-
ployees, guards, watchmen, and supervisors as de-
fined in the Act.
Since Angelus and Amari are a single employer and
the employees of both constitute the appropriate unit,
Amari is bound by the collective-bargaining agreement
between Angelus and the Union. Accordingly, I find that
Respondents have violated Section 8(a)(5) and (1) of the
Act by refusing to apply the terms and conditions of the
Angelus collective-bargaining agreement to the employ-
ees on the payroll of Amari. 22 Safety Electric Corporation
and San Joaquin Pacific Corporation, 239 NLRB 40
(1979); Edward J. White, Inc., and its Alter Ego, Repairs,
Inc., 237 NLRB 1020 (1979); Watson Meat Co., d/b/a
Ideal Meat Co., Inc., et al., 234 NLRB 1115 (1978).
I further find that the evidence is insufficient to estab-
lish, as alleged in the complaint, that Angelus created
Amari and Respondents assigned to employees on the
payroll of Amari the work of transporting raw materials
from Conrock to Angelus in order to circumvent the
Angelus collective-bargaining agreement. In this regard I
credit Antonini as to the reasons for establishing Amari.
However, I further find that, once the decision was
made to establish Amari, Respondents did seek to avoid
the contract.
Respondents contend that, even if Respondents are
found to be a single employer and their employees to
comprise a single appropriate unit, the 8(a)(5) allegations
of the complaint must be dismissed in view of the
22 I have fully considered, and rejected, Respondents' contention that
the Union never claimed to represent employees on Amari's payroll and
never requested that the Angelus contract be extended to them
Throughout the initial negotiations the Union insisted upon a wage rate
within the range of those in the Angelus agreement. I conclude that to
the extent that the Union considered a separate agreement for Amari, it
was based upon Becker's representation that Amari was a completely
separate employer I credit Cooper that at the last session he indicated
that the Union had information that Amari was not a separate employer
and that the Union's position was that the Angelus agreement covered
the employees on Amari's payroll I also reject the contention set forth in
Respondents' answers that this malter should he deferred to the griev-
ance-arbitration procedure Since questions of representation. accretion.
and appropriate unit involve the application of statutory policy rather
than contract interpretation, they are inappropriate for such deferral 14i/-
liams Transporation Company. 233 NLRB 837 (1977)
Union's waiver of its right to require negotiations during
the life of the agreement. 23 In support of this position,
Respondents point to the zipper clause contained in the
agreement.
A zipper clause must meet the standard of any other
form of alleged waiver. It is well established that in
order to establish waiver of the statutory right to bargain
in regard to mandatory subjects of bargaining, such as is
involved here, there must be a clear and unequivocal re-
linquishment of such right. Even where a zipper clause is
couched in broad terms, it must appear from an evalua-
tion of the negotiations that the particular matter in issue
was fully discussed or consciously explored and the
Union consciously yielded or clearly and unmistakably
waived its interest in the matter. This is particularly true
where, as here, an employer relies on the zipper clause
to establish its freedom to unilaterally change, or institute
new, terms and conditions of employment not contained
in the contract. Rockwell-Standard Corporation, Transmis-
sion and Axle Division, Forge Division, 166 NLRB 127
(1967); Unit Drop Forge Division Eaton Yale & Towne.
Inc., 171 NLRB 600 (1968), modified 412 F.2d 108 (7th
Cir. 1969); Radioear Corporation, 214 NLRB 362 (1974);
GTE Automatic Electric Incorporated, 240 NLRB 297
(1979); Rose Arbor Manor, a Division of Geriatrics. Inc.,
242 NLRB No. 125 (1979).
Respondents argue that the Union consciously and un-
equivocally relinquished its right to bargain over the es-
tablishment of classifications for new equipment and the
wage rate therefor. In support thereof Respondents rely
upon Becker's testimony that during the contract negoti-
ations the possibility was discussed of including in the
agreement a "classification of new equipment" clause.
Allegedly they agreed to exclude that type of clause so
that the employer would be able to establish new jobs
during the term of the agreement since their bargaining
relationship was amicable enough so that they could
settle informally any dispute which arose as to new clas-
sifications or, if they could not reach agreement, it could
be negotiated during the next contract negotiation.
The record does not establish what, if any, specific
proposals were considered nor even whether they agreed
on precisely what provisions they were agreeing to ex-
clude. Clearly, they contemplated that some discussion
of new classifications might be necessary. In these cir-
cumstances, I find that the zipper clause herein does not
constitute a clear and specific waiver of the Union's right
to bargain as to the classification to cover new equip-
ment and the wage rates to be applied thereto. Accord-
ingly, I find Respondents have violated Section 8(a)(5)
and (1) of the Act by unilaterally instituting classifica-
tions and wage rates applicable to new equipment at a
wage rate lower than the wage rates contained in the
collective-bargaining agreement. This conclusion is not
affected by the fact that Respondents notified, and met
with, the Union as to the new classifications and wage
rates since Respondents at all times repudiated their obli-
gation to honor the Angelus contract with respect there-
to and, in essence, insisted on bargaining "from scratch."
2: Apparently thi. argument refers oinl to wlage rate,
877
DECISIONS ()F NATI()NAI. IABOR RELATIONS BOARD
3. The 8(a)( ) allegations
The complaint was amended to allege that Kaftal in-
terrogated Consentio in violation of the Act. Respond-
ents argue that the allegation is not supported by the
charge. It is true that the charge specifically alleges only
that Angelus has circumvented its collective-bargaining
agreement by creating Amari in order to avoid comply-
ing with the terms and conditions provided for in the
agreement, and does not specifically allege coercive in-
terrogation. However, the charge does allege violations
of Section 8(a)(1) of the Act and does contain "catch-all"
language. 24 Further, the interrogation involved is related
to and occurred during the time of Respondents' at-
tempts to avoid applying the terms of the Angelus con-
tract to employees on Amari's payroll. In these circum-
stances, I find that no fatal variance exists. Olympic Medi-
cal Corporation, 236 NLRB 1117 (1978).
As indicated above, I credit Consentio as to statements
made by Kaftal. I find that by calling Cosentio into Kaf-
tal's office and asking him if he had been talking to the
union representative and what the representative said,
Respondents engaged in coercive interrogation in viola-
tion of Section 8(a)(1) of the Act. I further find that, in
the course of this interrogation, Respondents violated
Section 8(a)(l) of the Act by threatening to reduce em-
ployees' overtime hours because they would be repre-
sented by the Union.
CONCLUSIONS OF LAW
I. Respondents Angelus Block Co., Inc., and Amari,
Inc., are a single employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Building Material & Dump Truck Drivers, Local
420, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All truckdrivers, warehousemen, batch plant opera-
tors, bunkermen, gas station operators, loaders,
washers, warehouse foremen, greasers, tiremen,
chippers, fork lift operators, truck repairmen, and
truck repairmen helpers employed by Respondents
at their Sun Valley, California facilities; excluding
all office clerical, technical and professional em-
ployees, guards, watchmen, and supervisors as de-
fined in the Act.
4. At all times material herein the Union has been, and
is now, the exclusive representative of all employees in
the above-described appropriate unit for the purposes of
collective bargaining.
5. By refusing to recognize the Union as the collec-
tive-bargaining representative of all the employees in the
above-described-unit; by refusing to acknowledge that
Amari is bound by the collective-bargaining agreement
24 "By the above and other acts, Ihe above namied employer has inter-
fered with. restrained and coerced employee, il the exercise of their
rights guaranteed in Section 7 of the Act."
between Angelus and the Union; by failing to comply
with all the terms and conditions of the aforesaid agree-
ment as to employees on Amari's payroll, including insti-
tuting a classification and wage rate applicable to new
equipment at a wage rate lower than that contained in
the collective-bargaining agreement; and by failing to
pay wages and make contributions to the various trust
funds as required by the aforesaid agreement, Respond-
ents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, by coercively in-
terrogating an employee as to his union activities, and by
threatening to reduce employees' overtime hours because
of their representation by the Union, Respondents have
engaged in, and are engaging in, unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
8. Respondents did not otherwise violate the Act as al-
leged in the complaint.
THE REMEDY
Having found that Respondents have engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act, I shall recommend that they
cease and desist therefrom and take certain affirmative
action to effectuate the purposes of the Act.
Since I have found that Respondents have violated
Section 8(a)(5) and (1) of the Act by refusing to apply
the collective-bargaining agreement between Angelus
and the Union to employees on Amari's payroll, Re-
spondents shall be ordered to recognize the Union as the
exclusive bargaining representative of all the employees
in the appropriate unit, and to give effect to the terms
and provisions of the collective-bargaining agreement be-
tween the Union and Angelus retroactively and prospec-
tively. I shall also recommend that Respondents make
whole unit employees for any loss of earnings or other
compensation they may have suffered by the unlawful
refusal to apply the terms of the collective-bargaining
agreement to them and to reimburse the trust funds pro-
vided for in the collective-bargaining agreement for
those contributions Respondents have failed to make on
behalf of the unit employees.
Since the classification and wage provision of the con-
tract does not specifically describe the equipment utilized
by employees on Amari's payroll, I shall recommend
that if Respondents and the Union cannot agree on the
wage rate it shall be left to the compliance stage of these
proceedings to determine which classification in the con-
tract is most comparable to the equipment utilized by
employees on Amari's payroll and backpay shall be com-
puted on the basis of such wage rate or rates, or, if
agreement cannot there be reached, to a backpay pro-
ceeding. 25 All backpay is to be computed in the manner
z: I haxe fully coinsidered and reject RerpolndCiint argument that the
iBoard is notl ermpo np erd to fashion such renmed) Cf. Iordruta Steel C(lrpo-
ration. 2201 NI R 26( (1977). This is rnolt a itulation l hcrte Ihc Board 'ill
( 'oatS~lttt'tlt
878
ANGEL US BLOCK CO., INC
prescribed in F: W. Woolworth Company, 90 NLRB 289
(1950), with interest. The General Counsel seeks a reme-
dial interest rate of 9-percent per annum on the moneys
for which Respondents are liable for the violations in-
volved herein. The Board recently rejected that argu-
ment. W1: Carter Maxwell d/b/a Pioneer Concrete Co., 241
NLRB 14 (1979). Accordingly, I recommend that inter-
est herein be computed in the manner set forth in Florida
Steel Corporation, 231 NLRB 651 (1977). 26
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 27
The Respondents, Angelus Block Co., Inc., and
Amari, Inc., a single employer, their officers, agents, suc-
cessors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with Building Ma-
terial & Dump Truck Drivers, Local 420, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America by refusing to recognize the
Union as the collective-bargaining representative of all
the employees in the appropriate unit described below;
by refusing to acknowledge that Amari is bound by the
collective-bargaining agreement between Angelus and
the Union; by unilaterally instituting a classification and
wage rate applicable to new equipment at a wage rate
lower than the wage rates contained in the collective-
bargaining agreement; and by failing to comply with all
the terms and conditions of the aforesaid agreement as to
employees on the Amari payroll, including failing to pay
wages and make contributions to the various trust funds
as required in the aforesaid agreement. The appropriate
unit is:
All truckdrivers, warehousemen, batch plant opera-
tors, bunkermen, gas station operators, loaders,
washers, warehouse foremen, greasers, tiremen,
chippers, fork lift operators, truck repairmen, and
truck repairmen helpers employed by Respondents
be determining the "bargain " Rather. this remedy involves only the ap-
plication of the parties' own "bargain" Any uncertainty as to whether
Respondents and the Union would have reached agreement on a new
classification and wage rate if Respondents had acknowledged that the
employees on Amari's payroll were covered by the contract or, failing
such agreement, which contractual classification and wage rate would
have been applied to said employees is a direct product of Respondents'
unlawful conduct, It is therefore proper that the matter be resolved in the
manner set forth herein, particularly where, as here, Respondents might
have no incentive to agree to anything other than the lowest possible
wage rate under the contract
26 See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
27 In the event no exceptions are filed as provided by Section 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, he adopted by the Board and
its findings, conclusions. and Order, and all objections thereto shall be
deemed ssaised for all purposes
at their Sun Valley, California facilities; excluding
all office clerical, technical and professional em-
ployees, guards, watchmen, and supervisors as de-
fined in the Act.
(b) Coercively interrogating employees as to their
union activities and sympathies.
(c) Threatening employees with a reduction of their
overtime hours because of their representation by the
Union.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Bargain collectively with the Union by recognizing
the Union as the collective-bargaining representative of
all the employees in the aforesaid appropriate bargaining
unit; acknowledge that Amari, Inc., is bound by the col-
lective-bargaining agreement between Angelus Block
Co., Inc., and the Union; and give effect to the terms
and conditions of the aforesaid agreement retroactively
and prospectively.
(b) Jointly and severally make whole all employees in
the appropriate unit described above, for any loss of
wages and benefits they incurred because of Respond-
ents' illegal refusal to comply with the terms and provi-
sions of the aforesaid collective-bargaining agreement,
and reimburse the contractually agreed-upon trust funds
for those contributions Respondents failed to make on
behalf of the employees in the appropriate unit in the
manner set forth in that section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its facility or facilities in Sun Valley, Cali-
fornia, copies of the attached notice marked "Appen-
dix."2 8 Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly signed
by Respondents' representative, shall be posted by them
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. Reasonable steps shall be taken
by Respondents to insure that said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
2s In the event that this Order is enforced hb a Judgment of a United
States Court of Appeals. he words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
S79