Blake Construction Co.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 630 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blake Construction Co., Inc. M & S Building Sup- plies, Inc. and Local 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 5 CA-9137 September 28, 1979 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO. AND TRUESDALE On June 28, 1979, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, Respondent Blake Construc- tion Co., Inc., and its alter ego, M & S Building Sup- plies, Inc., filed exceptions and a supporting brief, and the General Counsel filed a brief in response to Respondent's exceptions. 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 briefs and has decided to affirm the rulings,' findings.2 and 'Respondent excepts to the failure of the Administrative Law Judge to disqualify himself when counsel for Respondent moved that he do so at the hearing, and contends that it is entitled to a new hearing before a competent administrative law judge. Respondent filed in support of its hearing motion affidavits of its attorney, Joel 1. Keiler. and of the warehouse manager for M & S Building Supplies. Inc., Frank Raymond, which alleged that Adminis- trative Law Judge Buschmann was not fully congnizant of the ensuing pro- ceedings in that he both read a newspaper and took brief naps while wit- nesses were being examined, that the Administrative Law Judge improperly engaged in an exparte communication with counsel for the General Counsel. and that certain evidentiary rulings were made by Administrative Law Judge Buschmann only after he inquired of counsel for the General Counsel how his case would be prejudiced if objections of Respondent's counsel were sustained. We have carefully reviewed the entire record in light of Respon- dent's various contentions regarding the bias and competency of the Admin- istrative Law Judge, and we are satisfied that Respondent's assertions in this regard are without merit. Specifically. the alleged ex parte communication was fully explained at the hearing by counsel for the General Counsel's statement that he had indeed approached the Administrative Law Judge with a piece of paper making application for a subpoena duces tecum, but that such an ex parte communication is expressly provided for by Sec. 102.31 of the Board's Rules and Regulations. Series 8, as amended. With respect to the Administrative Law Judge's questions regarding prejudice to the General Counsel's case, we note that counsel for Respondent was likewise asked by the Administrative Law Judge if his case would be prejudiced when Admin- istrative Law Judge Buschmann was ruling on an evidentiary objection urged by counsel for the General Counsel. Moreover. Administrative Law Judge Buschmann adequately explicated the appropriateness of this inquiry when it was challenged by counsel for Respondent by stating that a fair application of the rules of evidence may at times turn on whether or not the case of the party opposing introduction of evidence would be prejudiced were the evidence received, since the cause of justice is best served when all of the relevant facts are fully adduced. Finally, with respect to the assertion that the Administrative Law Judge was less than fully attentive to the testi- mony of witnesses at the proceeding, we find the frequency with which the Administrative Law Judge was required to make rulings on evidentiary and other objections. and the rulings themselves, alone rebut such a contention. Nor do any other matters urged by Respondent support a finding of either bias or incompetence on the part of the Administrative Law Judge Accord- ingly, we find no merit to Respondent's exception in this regard. conclusions of the Administrative Law Judge and to adopt his recommended Order.' as modified herein.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Blake Construction Co., Inc., and its alter ego, M & S Build- ing Supplies, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Substitute the following for paragraph (c): "(c) Refusing to recognize and bargain with the Union as the exclusive representative of its employees in an appropriate unit consisting of the following wage classifications but excluding all other employ- ees, guards and supervisors as defined in the Act with respect to the wages, hours, working conditions, and other terms and conditions of employment of said employees: Boom Trucks Small Dump Trucks Water Sprinklers Grease & Oil Trucks Dump Trucks Over 8 Wheels Flat Trucks Trailers Small Euclids Euclid Water Sprinklers Tunnel Work Underground Mechanics Mechanics Limited Low Boys Tractor Pulls Warehousemen-Job Site Pickups Hauling Materials Helpers Carryalls Large Euclids Greasers Tiremen Stockroom Men Runners Pay Haulers 2 The Administrative Law Judge inadvertently refers t "Randolph" on several occasions when it is apparent from the record that he is referring to statements of Respondent's warehouse manager. Frank Raymond We also note that. although the Administrative Law Judge found that Blake and M & S separately purchased and received in interstate commerce materials and supplies worth at least 50.000. Respondent in fact conceded that each Company had direct inflow in excess of that amount for purposes of meeting the Board's jurisdictional requirements 'The Administrative Law Judge recommended that Respondent cease and desist from "in any other manner" interfering with the employees' Sec. 7 nghts. We find that the issuance of a broad order is warranted in this case as Respondent's unlawful conduct was egregious and widespread and demon- strated a general disregard for the employees' fundamental statutory rights Cf. HicAmot Foods, Inc., 242 NLRB 1357 (1979): Hansa Mold, Inc., 243 NLRB (1979}. 4 The Administrative Law Judge failed to include a unit description in his recommended Order. referring therein only to the "appropriate unit." Ac- cordingly, we shall modify his recommended Order by adding the unit de- scription. which consists of those classes of employees listed in the applicable collective-bargaining agreement, excluding all other employees 245 NLRB No. 76 630 BLAKE CONSTRUCTION CO. 2. Substitute the following for paragraph 2(b): "(b) Upon request, recognize and bargain with the Union with respect to the wages, hours, and condi- tions of employment of Respondent's employees in the above-described bargaining unit." 3. 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 WE WILL NOT discourage membership in Local 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by laying off, discharging, paying lower wages, or in any other manner discriminating against em- ployees in regard to their hire or tenure of em- ployment or any term or condition of employ- ment because of their union membership, activities, and desires, or in order to avoid deal- ing with the Union. WE WILL NOT violate the terms of the collec- tive-bargaining agreement which was binding on Blake Construction Co., Inc., and therefore bind- ing also upon M & S Building Supplies, Inc., as part of a single enterprise comprising both Re- spondents. WE WILL NOT refuse to recognize and bargain with the Union with respect to the wages, hours, working conditions, or other terms and condi- tions of employment of our employees in the fol- lowing wage classifications but excluding all other employees, guards and supervisors as de- fined in the Act: Boom Trucks Carryalls Small Dump Trucks Large Euclids Water Sprinklers Small Euclids Grease & Oil Trucks Euclid Water Sprinklers Dump Trucks Over 8 Wheels Tunnel Work Flat Trucks Trailers Low Boys Tractor Pulls Warehousemen- Job Site Pickups Hauling Materials Helpers Underground Mechanics Mechanics Limited Greasers Tiremen Stockroom Men Runners Pay Haulers WE WILL NOT impose conditions upon the con- tinued employment of our employees, such as the filling out of employment application forms, because of union considerations. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their right to self-organization. to form labor organizations, to join or assist the above- named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. WE WILl offer William Williams immediate and full reinstatement to his former job or. if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or an3 other rights and privileges previously enjoyed. and WE WILL make him whole for any loss of earnings or benefits suffered by reason of the dis- crimination against him, plus interest. WE WILL offer Gerald Chasten, James Thomp- son, Choncie Taylor, John Moncrief. and John Liles backpay with interest and other benefits and WE WILL make them whole for any loss of earnings and benefits they suffered by reason of the discrimination against them, plus interest. WE Wll.L, at the Union's request, give retroac- tive effect to the aforesaid collective-bargaining agreement and apply the agreement to our em- ployees covered by our contract with Local 639, and AWE WilI. make them whole for any wage losses they may have suffered by reason of our failure to apply the contract to them, with inter- est. All our employees are free to become, remain, or refrain from becoming or remaining, members of Lo- cal 639 or any other labor organization, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. BLAKE CONSTRUCTION Co., IN(C. M & S BUIILDING SUPPLIES, INC. DECISION SIAIEMEN OIF lIIE CASE KARI H. BLS(¢HMANN, Administrative Law Judge: This case arose upon a charge filed on January 19. 1978. and amended on February 27 and again on March 14. 1978, hby 631 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 639, International Brotherhood of Teamsters. Chauf- feurs, Warehousemen & Helpers of America. The com- plaint against Blake Construction Co. Inc., and M & S Building Supplies, Inc., issued on March 30, 1978. and al- leged that Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). More specif- ically, the complaint alleged several instances of indepen- dent Section 8(a)(1) violations, including interrogations of employees and threats to close the plant if the employees sought coverage of a collective-bargaining agreement. The complaint further charged that Respondent, in violation of Section 8(a)(3) of the Act, discriminated against seven em- ployees because of their union membership and activities on behalf of the Union. Finally, the complaint alleged, in substance, that Respondent has failed and refused to bar- gain in good faith with the Union and has attempted to undermine the Union by transferring unit work from Re- spondent Blake to Respondent M & S. by negotiating di- rectly with the unit employees, and by reducing the wages of its employees, laid off by Blake and rehired by M & S, in violation of the union contract. Respondent's answer admitted that Local 639, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America is, and has been, a labor or- ganization within the meaning of Section 2(5) of the Act, and that Respondent Blake was, at all relevant times, a member of the Construction Contractors Council, Inc., an association of contractors whose purpose was to negotiate and enter into collective bargaining agreements on behalf of and binding upon its members with labor organization. The answer, filed April 13, 1978, denied all other allegations in the complaint. A hearing on the allegations in the complaint was held on July 10 through 12 and on September 7, 1978. All par- ties, including the charging party, were represented by counsel.' Counsel for the General Counsel and counsel for the Respondent filed briefs on October 6, 1978. Upon the entire record2 in this case, including the briefs, and from my observation of the witnesses, I make the following findings of fact and conclusions of law. FINDINGS OF FA(Cr Respondent, Blake Construction Co., Inc., a District of Columbia corporation with headquarters at 1120 Connecti- cut Avenue, Washington, D.C., has been engaged in the construction business. In connection with its activity of constructing buildings, Blake has owned and operated a yard and warehouse located at 5700 Columbia Park Road, Landover, Maryland. The alleged "alter ego" of Respon- dent Blake has been M & S Building Supplies, Inc. It is also a District of Columbia corporation, headquartered at 1120 Connecticut Avenue, N.W., Washington, D.C., and it has been engaged in the sale of building materials at its ware- house at 5710 Columbia Park Road. Landover, Maryland. I Counsel for the Respondent in his brief renews the argument raised at the hearing for my disqualification. After full consideration of counsel's as- sertions and arguments of the hearing I had denied his motion for my dis. qualification. I do so again without further comment, notwithstanding the provocative nature of Counsel's unwarranted contumacy. I Respondent's motion to correct the transcript by changing on page 160. line 18, the word "M & S" to "Blake" is granted. Blake and M & S separately purchased and received in interstate commerce materials and supplies worth at least $50,000. Jurisdiction by the National Labor Relations Board over both M & S and Blake was conceded at the hearing. They are employers within the meaning of Section 2(2), (6). and (7) of the Act. The Union. Local 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is. admittedly, a labor organization within the meaning of Section 2(5) of the Act. Since June 28. 1977. Daniel A. George has been president and James I. Williams has been vice president and business agent of Teamsters Local 639. As their first efforts after the union election in June 1977. the two union leaders attempted to ascertain what collective-bargaining agreements were in force at that time. George obtained from the Teamsters research depart- ment a list and copies of all collective-bargaining agree- ments to which Local 639 was a party. Upon further in- quiry, Local 639 learned that its contract with the Construction Contractors Council, Inc., effective from Au- gust 1, 1975, through April 30, 1978, included Blake Con- struction Co., Inc., (G.C. Exhs. 3 and 4). The record shows, by way of background information, that some time in July 1977, John Felder, a Blake em- ployee, called Local 639 and expressed the view that as an employee of Blake he should have been covered by the union contract and receive the prevailing wages provided for in that contract. James I. Williams investigated the com- plaint on behalf of the Union, went to Blake's warehouse facility at 5700 Columbia Park Road, Landover, Maryland, and spoke to about 8 or 10 employees who were not mem- bers of any union. Since Blake's contract with Local 639 provided for union security, and since the employees inter- viewed performed the same type of work as that described in the job classfication of the contract. Williams attempted to discuss the matter with Frank Raymond, the highest ranking Blake official at that location. However, Raymond, whose title was "yard superintendent," stated that he had no authority in this matter and that the proper official was Charles Rooney. a supervisor at Blake. On August 31, 1977, Williams met with Rooney at Blake's 5700 Columbia Park facility. Also present were Raymond, Felder, employee John Norman, and shop steward William A. Williams. The substance of the conversation consisted of the Union's re- quest that the two employees, Felder and Norman, who had made application for union membership, be paid the wage specified in the contract, and Rooney's reply that he would be willing to negotiate a separate contract for these employees, but that he would not pay the wages specified in the contract. Subsequently, Local 639, through the efforts of shop steward Williams, solicited among Blake's employees for membership in the Union and distributed union authoriza- tion cards. As a result, approximately 32 signed cards were received by the Union. On January 31, 1978, when Rooney was at the union hall in connection with the processing of a grievance which Local 639 had filed under its contract with Blake, Business Agent Williams approached Rooney stat- ing that he had collected approximately 32 authorization cards and inquired whether Blake would honor these peo- ple as union members and pay them the prevailing rates 632 BILAKE (CONSRI('TION O.() under the contract. Rooney replied. "[N]o. they didn't de- serve that rate that they should be paid a lower rate." tle further stated "that he would be willing to let the seven people remain under the three C's contract. and to negoti- ate a separate contract for those other men." Williams re- plied that the 32 people should he covered by the existing contract. The circumstances which directly precipitated the allega- tions in the complaint are shown in the record as follows: On February 17. 1978, Raymond's status changed at Blake. Howard Bender, vice president. and Charles Roone\ visited Blake's 5700 Columbia Park facility and, according to Ran- dolph, the following occurred: "And they said basically that Blake is no longer going to be in the trucking business and the material warehousing benefits. M & S is. And that Blake was laying all its people off, and M & S was offering jobs first to all the employees that had been with Blake." They also told him that he was no longer in the employ of Blake as "yard superintendent" but that he was henceforth the "warehouse manager" of M & S. Raymond admitted that in his new capacity, he assumed essentially the same function as he had previously performed, namely "the or- ganization of the warehouse, and the distribution of the material, equipment, and supplies kept at the Landover yard location." When pressed for an explanation of exactly how his new job with M & S differed from his prior employ- ment with Blake, Raymond was unable to offer any distinc- tions other than a vague reference to a "tire fill" process and a certain concrete patching compound which M & S was considering marketing. In any case, the record shows that until February 17, 1978, M & S was little more than a warehouse situated next to Blake's Landover facility. One employee, named Ableman, apparently spent his working time at both M & S and Blake facilities. On February 17, 1978, the same day Raymond had been told by Rooney and Bender that he had become an em- ployee at M & S, Raymond called a meeting with all six drivers' who belonged to the Union, William A. Williams, James Thompson, Gerald Chasten, Choncie Taylor, James Liles, and John Moncrief. In accordance with the instruc- tions of Rooney and Howard Bender who were also present at the meeting, Raymond informed the drivers that "Blake would no longer be in the business of running the trucks. and that all the employees of Blake at the location were to be laid off, jobs were to be offered by M & S Building Supplies for various functions at that location." He also told them to fill out employment applications. When Chon- cie Taylor asked Bender at that meeting about their new pay, Bender replied it would be between $7 and $7.50 an hour. That rate was less than the $8.30 or $8.50 an hour which most of the union members had been earning. Raymond also spoke to the nonunion employees at a separate meeting, giving them essentially the same notice: i.e. their layoff by Blake and reemployment by M & S. Those employees signed their employment applications on the same day and received the same rates of pay which theN had been paid by Blake. During the afternoon of February 17. William Williams, the shop steward, called l.ocal 639 and spoke with .. I. The record shows onl six union members not seven as alleged n the complaint. Williams. the business representa;ll c. about the lax olff and the offer of employment with M ci S. J. . Williains prom- ised to investigate the matter and camne to the I.;amdoxer site on the following working dal. Monday. ebrl-ar s 20(. 1978. lie spoke to Roone, and Raymond. Roonex told him 'that Blake was no longer in the tricking huines.g nusi d that the men was laid off. and if thes, wanted to ork. thes \' hIa c to go and work for M & S." Williams then asked h under what circumstances would these men he workinlllg fir M & S. when they had a contract that was still valid uitil April 30, 1978. Roone replied that the, would no longer be hon- oring that contract. When Williams wanted to know hox much these employees would be making. Roones referred him to Raymond. who told Williams that it w ;ts none ot his business, that he would be dealing with the men on an indi- vidual basis, and that he would take to hem indixiduall,. The first of the six union members seen indi iduall ) wsas James Thompson, a Blake emploiee since ()ctobehr 1961. He was first hired as a mechanic and subsequent wAorked as a truckdriver. He had been a member of ocal 639 and earned $8.30 an hour when he drove a stake bed truck and $8.50 when driving a tractor-trailer. Thompson nitiallx re- fused Randolph's offer of $6.25 an hour, but accepted $7 an hour. Raymond also met with Gerald Chasten. emplo,ed as a truckdriver since October 1962 and a member of l.ocal 639 since 1964 or 1965. Although Chasten's most recent hourl,. rate was $8.50 an hour, Randolph offered him $7 without benefits or $6.25 "with everything." which included benefits such as hospitalization, I day off, and vacation pas. Chis- ten accepted the $6.25 with benefits and then completed an employment application form and a W-2 form. Choncie Taylor had been working for Blake since March 1967 and also belonged to Local 639. He handled a ariet> of equipment for Blake: for example he dro,e tractor-trail- ers, low boys. and office and box trailers and operated heavy cranes. His hourlx rate was usually $8.30 and in- creased to $8.50 when he worked with the heax equip- ment. Raymond initially offered him S6.50 an hour. which Taylor refused. When offered $6.75 without benefits or $6.25 with benefits, Taylor accepted the former. John Moncrietf. a driver of tractor-trailers for Blake since 1970 and a member of Local 639, earned $8.50 an hour immediately prior to February 17, 1978. Randolph offered $6.25 with benefits and $6.75 without them. Moncrief ac- cepted $6.75. James Liles. also a member of Local 639. received $5 p'er hour with certain benefits. The last of the six union inembers so interviewed was William Williams. Randolph remarked: "Well, Williams, I'm saving you till last. I ain't going to mess around with you. I'm going to tell you what I got. I got $6 and a quarter with insurance and a week's vacation. I got $6.75 with nothing." Williams replied: "No. I can't go with that." lie left the office and never worked for Blake or MI & S alter that. The record shows that, except foir the absence of shop stew ard Williams and the lower \waes oI the other five union employees. there was little. it alln. change hetucen the emplosment conditions eistint prior to 1hebrutr , 17 and those pre;vailing on Febhriitr! 2() and therlettter. Prior 6,33I DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the change to M & S. Blake had about 40 employees at the Landover site. Thereafter. M & S had approximately the same number of employees, who previously had been with Blake. They performed the same functions after the change. They reported for work at the same Landover loca- tion, punched the same timeclock, and received their instructions from the same supervisory staff. They drove the same trucks with "Blake" insignia on them to the same building sites, which included Walter Reed Hospital, The American University. the Nitrofication Reactor Facility, the Naval Medical Center, and Roosevelt High School. Even the telephone numbers and mail service remained the same. And the day-to-day activities at Blake and M & S continued to be supervised from Blake's principal office lo- cated at 1120 Connecticut Avenue. Washington, D.C. Analysis The position of General Counsel, in substance, is that a valid bargaining agreement existed between Blake and Lo- cal 639 covering Blake's truckdrivers. and that this relation- ship could not be changed and did not change by Blake's decision to go out of the trucking business and M & S's assumption of that activity. Respondent, on the other hand. disputes that a valid bargaining agreement existed and that. in any case, M & S is not the alter ego of Blake. The record shows conclusively that a valid bargaining agreement existed between Blake and Local 639. In evi- dence is a contract between the Construction Contractors Council, Inc. and Drivers, Chauffeurs, Warehousemen and Helpers Local Union No. 639, effective from August 1. 1975, through April 30, 1978 (G.C. Exh. 3). Respondent's answer admitted that Blake has been at all relevant times a member of the Construction Contractors Council. In addi- tion, the record contains a letter, dated December 14, 1977. by the Construction Contractors Council which lists among its membership Blake Construction Co., Inc. (G.C. Exh. 4). Counsel for the Respondent, although quarreling with the unit definition, conceded that Blake had a collective-bar- gaining agreement with Local 639. And Blake considered itself bound by the provisions of the agreement. On or about January 31, 1978. Vice President Rooney had at- tended a grievance meeting at the Landover facility over a dispute about holiday pay. The grievance was processed in accordance with the procedure contained in the contract with the Construction Contractors Council and Local 639. To be sure, the record shows that even though Blake's contract with Local 639 contained a union-security provi- sion, several of Blake's employees who were within the unit definition of the contract did not belong to the Union. This, according to Respondent, as well as the Union's failure to file a grievance and to compel Blake to go to arbitration in matters of vacation pay, shows that the Union disregarded the contract and considered it no longer in force. However. the record also shows that as soon as Daniel George and James . Williams were elected to their offices, as president and vice president, respectively, in June 1977. they em- barked upon a program to assure that the outstanding con- tract with Local 639 was complied with. And in this con- nection, Local 639 attempted to obtain Blake's compiance with the contract. It was Blake's view that it would honor the contract with regard to only the six employees who were already union members, but that it did not intend to honor the contract with respect to the other employees. Ac- cordingly. it cannot be said that the Union waived its rights under the contract, for it certainly attempted to enforce it. and its failure to persuade Blake to live up to some of its obligations under the contract does not indicate that the Union considered it null and void. To the contrary, the record is clear that the Union sought coverage tor all eligible employees and Blake considered itself bound by the terms of the contract only insofar as the six union drivers were concerned, as indicated by Rooney's willingness to attended meetings under the contract's griev- ance procedure, his offer to negotiate a separate contract for the nonunion employees, and Raymond's treating the union members separately from the rest of the employees on February 17 and 20, 1978. When the Union persisted in its efforts. Blake refused and took the action described above: namely: going out of the trucking business and as- signing that function to M & S. Having concluded that a valid bargaining agreement ex- isted between Local 639 and the Respondent, the question remains whether the transfer of the trucking functions from Blake to M & S and the reassignment of the personnel re- lieved Blake of its contractual obligations. General Counsel argues that M & S was merely the alter ego of Blake and that the contractual obligations continued. Respondent, re- lying upon Section 1563 in the Internal Revenue Code, sub- mits that 30 percent of the outstanding stock of M & S was held by persons not connected with Blake a fact which "would negate the 'control' necessary to establish an alter ego." Furthermore, according to Respondent. the entire board of directors of M & S was different from that of Blake, and the labor policy of M & S was directed by Ray- mond who, however, was not responsible for wages or fringe benefits at Blake. To determine whether one legal entity is the alter ego of another, the Board looks to the ownership, management, business purpose, operation. equipment, customers, and su- pervision of the two businesses. Where some of these listed indicia are "substantiallb identical." the Board will find an alter ego status. However, not all of these standards have to be satisfied: centralized control of labor relations or identi- cal corporate ownership is not crucial to the finding of an alter ego. Sossamon Electric Company 241 NLRB 324 (1979): (raHfird Door Sales Company, Inc., 226 NLRB 1144 (1976): Local No. 627 International Union of Operating Engineers. AFL CIO v. N.L. R. 518 F.2d 1040, 1047 (D.C. Cir. 1975). With respect to ownership, the record reveals that the three Bender brothers, Morton. president, Howard. vice president, and Stanely, treasurer, jointly owned 70 percent of the MN & S common stock and more than 70 percent of Blake common stock. It is too well recognized to require statutory or decisional support that ownership in excess of 50 percent means corporate control; indeed, in some in- stances even less than 50 percent of the stock ownership in large publicly held corporations indicates control. The management of both entities was, according to the record, the same. Morton Bender served as president. How- ard Bender occupied the position of vice president, and Stanel, Bender was treasurer of both M & S and Blake. 634 BLAKE CONSTRUCTION CO. Moreover, Frank Raymond, who was Blake's "warehouse superintendent," continued in substantially the same posi- tion at M & S as the "warehouse manager." At that loca- tion he remained the highest official, even after Blake changed to M & S, and he directed the hiring of employees and set their hourly wages. His immediate supervisor was Charles Rooney, who directed the operation both before and after the change, from the corporate headquarters in Washington, D.C. Also the business purposes changed little if any. As stated above, Raymond admitted that M & S performed essen- tially the same functions which Blake's Landover facility had served, "the organization of the warehouse, and the distribution of the material, equipment, and supplies kept at the Landover yard location." The only difference which Raymond vaguely indicated was a "tire fill" process and a new concrete patching compound M & S was attempting to market. The operation of M & S was virtually identical with that of Blake. The employees were the same, having been laid off by Blake and subsequently rehired by M & S. They continued to work the same hours, punched the same time- clock, and reported to the same area for their usual instruc- tions. Even the telephone number and mail service re- mained the same. The sole detectable differences were lower salaries for the union employees and a different desk for Raymond. The record contains detailed evidence of Blake's equip- ment, such as the total number and registrations of dump- trucks, dumpsters, tractors, trailers, pickups, etc. This evi- dence shows that the same equipment which Blake had used prior to February 17, 1978, continued to be used by M & S thereafter, without changes in registration, or insig- nia-which continued to show "Blake"-or location within the yard. M & S continued to deal with the same customers after February 17, 1978, which Blake had previously served. as listed above. Finally, supervision was similarly' unaffected by' the tran- sition from Blake to M & S. Raymond remained the highest official, and John Styler or Alan Latimer dispatched the drivers. In sum, the record not only supports but compels the finding that M & S was the alter ego of Blake. Indeed the record clearly shows that the reorganization of Blake's trucking activities to M & S was a calculated effort by Re- spondent to evade its contractual obligation with the Union. M & S, as the disguised continuance or alter ego of Blake, was therefore under an obligation to honor the con- tract which was in effect between Blake and Local 639 at the time of the transition. Blake's failure to notify and bar- gain with the Union about the effects of its decision to go out of the trucking business, its unilateral decision to trans- fer unit work from Blake to M & S, its unilateral negotia- tion with the six employees who were union members, and its failure to pay the six union members wages and benefits established by the contract after February 17, 1979, consti- tute a failure to bargain in good faith with the Union. Ac- cording, I find that Blake and M & S violated Section 8(aX5) and (1) of the Act. Sossamon Electric Company. su- pra; The Bell Company, Inc., et al. 225 NLBR 474, 482 (1976). Moreover, Respondent's actions against the six union members clearly violated Section 8(a)(3) and ( I) of the Act. The record leaves no doubt that the six employees. Chasten. Moncrief, Liles. Thompson. Taylor, and Williams were considered by both Respondent and the Union to be mem- bers of Local 639. Their work history shows that they fell clearly' within one or more of the categories of work enu- merated in the contract. And the record is also clear that Frank Raymond. the highest executive at M & S and Blake's 5700 Columbia Park Facility, and his supervisor, Charles Rooney. as well as Howard Bender. the vice pres- ident, were "supervisors" within the meaning of the Act. Raymond's authority included the hiring and firing of em- ployees. the determination of their wages, and the general direction of their work. Through these officials, Respondent informed the em- ployees about their layoff from Blake and their employment opportunity with M & S. In effect, all employees continued their employment under virtually identical working condi- tions in spite of the transition from Blake to M & S. except that the six union members were offered substantially lower wages. Indeed one of the employees, William Williams. who discontinued his employment because of the lower pay. must be considered to have been constructively dis- charged. Since the entire reorganization was discriminator- ily motivated, Respondent violated Section 8(a)(3) and (I) of the Act. The Bell Company. Inc., supra, Marquis Printing Corp. 213 NLRB 394. 403 (1974}. Because Respondent required of all employees that they execute an employment application form, and because this condition for employment was imposed as a direct conse- quence of the Union's demand that Respondent honor the union contract for all its employees, it is clear that such an imposition upon the employees because of union consider- ations constituted an unlawful interference and coercion in the exercise of their rights protected by Section 7 of the Act. Such conduct is an independent violation of Section 8(a)( ) of the Act. Finally, all other allegations in the complaint alleging independent violations of Section 8(a)( 1I) are dismissed. since the record contains no evidence to support them. CONCLUSIONS OF LAW 1. Blake Construction Co., Inc.. and M & S Building Supplies. Inc., are employers within the meaning of Section 2(2), (6), and (7) of the Act. 2. At all times material, M & S Building Supplies. Inc. has been the alter ego of Blake Construction Co., Inc.. and both comprise a single employer. 3. Local 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. is a labor organization within the meaning of Section 2(5 of the Act. 3. Local 639. International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 4. At all times relevant to this case, Union Local 639 has been and is now the exclusive bargaining representative of all employees of Blake and/or M & S whose jobs are enu- 635 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD merated in the contract between Construction Contractors Council, Inc., and Drivers, Chauffeurs. Warehousemen and Helpers Local Union No. 639. 5. By failing and refusing to honor the terms of the col- lective-bargaining agreement, including the transfer of unit work from Blake to M & S without consultation with the Union, by unilaterally negotiating with and by reducing the wages of its unit employees in violation of the contract, and by failing to give notice to and bargain with the Union about Respondents' plans to go out of business and to lay off its employees, Respondent has violated Section 8(a)(5) and (1) of the Act. 6. By terminating the employment of Gerald Chasten, John Moncrief, James Liles, James Thompson, Choncie Taylor, and William Williams, and by reemploying them (except for William Williams) at substantially lower wages and benefits, and by constructively discharging Williams who refused to accept the lower pay, Respondent violated Section 8(a)(3) and (1) of the Act. 7. By imposing conditions upon the employees, such as the requirement to complete employment applications, be- cause of the Union's demand that Respondent honor the terms of the collective-bargaining agreement, Respondent violated Section 8(a)( ) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. All other allegations in the complaint have not been sustained. THE REMEDY Having found that the Respondents have engaged in cer- tain unfair labor practices within the meaning of Section 8(aXI), (3), and (5) of the Act, I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Blake and M & S comprise a single employer and that M & S has been the alter ego of Blake but has failed and refused to recognize the Union as the collective-bargaining representative of its employees or to apply the terms of the contract between the Union and Blake to those employees, I shall recommend that Respon- dent M & S and Blake be required, upon request, to recog- nize the Union as the representative of its employees and to honor and apply that agreement to all of its employees whose jobs fall within the enumerated categories in the con- tract and who are within the jurisdiction of the Union. Having further found that Blake terminated its employ- ees on February 17, 1978, and that M & S rehired at sub- stantially lower pay and other benefits employees James Thompson, Gerald Chasten, Choncie Taylor, James Liles. and John Moncrief in order to avoid dealing with the Union, I shall recommended that they be paid backpay in the amounts which constitute the difference between the rates of pay which they should have earned pursuant to the contract and the rates of pay which they actually received. Having found that William Williams was constructively discharged for the same reasons, I shall recommend that M & S and Blake, jointly and severally, be required to offer this employee immediate and full reinstatement to his for- mer position or, if that position no longer exists, to a sub- stantially equivalent position, without prejudice to his se- niority and other rights and privileges. I further order that M & S and Blake. jointly and severally, make all six named employees whole for any loss of pay. including fringe bene- fits, they may have suffered by reason of the discrimination against them. The backpay' provided herein shall be com- puted with the interest, in the manner set forth in F. W. Woolworth ('omparn', 90 Nl'.RB 289 (1950). and Florida Steel Corporation, 231 NLRB 651 (1977).4 Upon the basis of the entire record. the findings of fact, and the conclusions of law, and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER 5 The Respondents. Blake Construction Co., Inc.. and/or M & S Building Supplies, Inc., their officers, agents, succes- sors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in Local 639. Interna- tional Brotherhood of Teamsters. Chauffeurs, Warehouse- men and Helpers of America, or any other labor organiza- tion. by laying off, discharging, paying lower wages, or in any other manner discriminating against employees in re- gard to their hire or tenure of employment or any term or condition of employment because of their union member- ship, activities and desires, or in order to avoid dealing with the Union. (b) Abrogating the terms of the collective-bargaining agreement which was binding on Respondent Blake and therefore upon Respondent M & S as a part of a single enterprise or alter ego relationship comprising both Respon- dents. (c) Refusing to recognize and bargain with the Union as the exclusive representative of its employees in the appro- priate unit with respect to the wages, hours, working condi- tions or other terms and conditions of employment of said employees. (d) Imposing conditions upon the continued employ- ment of its employees, such as the requirement to complete employment applications, because of union considerations. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist Local 639, Interna- tional Brotherhood of Teamsters. Chauffeurs. Warehouse- men and Helpers of America or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion. or to refrain from any and all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer William Williams immediate and full reinstate- ment to his former job or, if that job no longer exists, to a 'See. generally. Isis Plumbing & Iteating Co.. 138 NI.RB 716 (1962). In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions. and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, he adopted hb the Board and become its findings. conclusions. and Order. and all objeclions thereto shall he deemed sAaised fr all purposes. 636 BLAKE CONSTRUCTION CO. substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings and benefits he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Upon request, recognize and bargain with the Union with respect to the wages, hours, and conditions of employ- ment of Respondents' employees who are represented by the Union and who are covered by the aforesaid collective- bargaining agreement. (c) Offer Gerald Chasten, James Thompson, Choncie Taylor, John Moncrief, and John Liles backpay and other benefits and make them whole for any loss of earnings and benefits they may have sufferd by reason of the discrimina- tion against them, in the manner, set forth in the section of this Decision, entitled "The Remedy." (d) Upon the Union's request, give retroactive effect to the aforesaid collective-bargaining agreement and apply that agreement to the employees of Blake and M & S at the Columbia Park Road facility, and make them whole for any wage and benefit losses they may have suffered by reason of Respondents' failure to apply the contract to them, with interest in the manner previously described. (e) Preserve and, upon request. make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards. personnel records and reports, and all other documents nec- essary and relevant to analyze and compute the amount of backpay due under this Order. (f) Post at its offices and the Landover facility copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Re- gion 5, after being duly signed by the Respondent's autho- rized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director, in writing. within 20 days from the date of the Order, what steps Respondents have taken to comply herewith. 6 in the event that this Order is enforced by a Judgment ofa 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. 637