Bufco Corp

National Labor Relations Board - Board Decisions

Nov 30, 1988

291 N.L.R.B. 1015 (N.L.R.B. 1988)

BUFCO CORP 1015
Bufco Corp and International Brotherhood of Elec
tncal Workers , AFL-CIO, Local 16
Corbett Electric Company , Inc and International
Brotherhood of Electrical Workers, AFL-CIO,
Local 16 Cases 25-CA-15547 25-CA-15111
and 25-CA-15570
November 30 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On May 4, 1984, Administrative Law Judge
Nancy M Sherman issued the attached decision
The Respondents filed exceptions and a supporting
brief and the General Counsel resubmitted the
brief filed with the judge in support of the judge s
decision
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge s rulings findings i and
conclusions only to the extent consistent with this
Decision and Order
Respondent Corbett Electric is an Indiana corpo
ration engaged as an electrical contractor in the
construction industry for many years It has been
wholly owned by Bill W Corbett since its incep
tion In 1973, Corbett by President Bill W Cor
bett executed two IBEW form Letters of Assent
A designating the Evansville Division, Southern
Indiana Chapter National Electrical Contractors
Association (NECA) as its collective bargaining
representative and thereby became bound to the
inside agreement (covering commercial electrical
work) and the residential agreement between
NECA and Charging Party Local 16 The form for
the inside agreement listed the Employer as Cor
bett Electric Co, and the residential agreement
form listed the firm as Corbett Electric Co A Di
vision of Bufco Corp
Bufco was incorporated in 1970 and until 1977
was engaged primarily in construction and devel
opment of single family and some multifamily
housing Corbett Electric had its own employees
and records and inter alia did all the electrical
work for buildings constructed by Bufco After
1977, when Bufco stopped building houses and
i The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
became inactive Corbett Electric continued as an
electrical contractor for other firms Prior to 1983
Bufco had never employed electricians and Bufco
itself never had a collective bargaining relationship
with the Union
Until the events at issue here Bill Corbett was
the president of Bufco (as well as Corbett Electric)
and owned all of its shares (as well as all of Cor
bett Electric s shares) Bill s son Mark Corbett was
an officer of Bufco from at least 1980, and was vice
president of Corbett Electric for 3 or 4 years prior
to June 30 1982
In letters to the Evansville NECA Chapter and
the Union dated June 28 and July 2 1982, respec
tively Respondent Corbett notified them that it
was terminating membership in NECA severing
participation in the multiemployer bargaining
group, and canceling the letters of assent for both
the inside and residential labor agreements At the
time Corbett s letters were sent the NECA Chap
ter and the Union were parties to a contract cover
ing residential electrical work effective from Oc
tober 1 1981 through September 30 1983 The
same parties had also reached agreement and
placed in effect an Inside contract effective by
its terms from June 10 1982 through March 31
1985
Thereafter at some point between August 1982
and January 1 1983 Bill Corbett transferred the
majority of the stock in Bufco (which had been in
active for several years) to Mark Corbett (a minori
ty interest was transferred to Bill Corbett s wife)
In January 1983 Bufco for the first time began per
forming electrical contracting work The parties
stipulated that the individuals employed by Bufco
in January were Mark Corbett Larry Bish and
Thomas Strupp, all of whom had been employed
by Corbett Electric in December 1982 After the
end of 1982 the only person on Corbett Electric s
payroll was Bill Corbett He testified that he re
signed from Bufco because he felt he had to
unload some problems and that he could not see
continuing in the electrical business in the capac
ity that he had in the past He also testified that he
wrote to NECA and the Union because there was
no way he could function under a labor agree
ment and not perform any work himself Bill
Corbett further testified that he gave Bufco to his
son Mark rather than giving him Corbett Electric
because of the involvement with the Union and
that Mark didn t want Corbett Electric
The judge found Respondent Bufco to be an
alter ego of, and a single employer with Respond
ent Corbett Electric and that the reactivation of
Bufco was for avoiding the collective bargaining
agreements that Corbett was obligated to enforce
291 NLRB No 136
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
She also found that the Board has jurisdiction over
Respondents Corbett and Bufco by virtue of Cor
bett s membership in the multiemployer association
and that the appropriate units under both the inside
and residential collective bargaining agreements
with the Union consisted of all employees em
ployed by all members of the association perform
ing work under the respective agreements The
judge further found that the Union enjoyed 9(a)
status as the bargaining representative through the
conversion and merger doctrines and that the bar
gaining agreements were not terminable at will be
cause both of them were succeeding agreements
We have decided to affirm the judge in part and
reverse in part for the reasons set forth below
After the judge s decision the Board decided in
John Deklewa & Sons 2 to abandon the conver
lion and merger doctrines relied on by the
judge as they were applied to collective bargaining
agreements/relationships permitted under Section
8(f) of the Act 3 In so doing the Board held that,
in light of the legislative history of Section 8(f) and
the prevailing practice in the construction industry,
the party to an 8(f) relationship who asserts the ex
istence of a collective bargaining relationship under
Section 9(a) has the burden of proving the exist
ence of that relationship through either (1) a
Board conducted representation election or (2) a
union s express demand for and an employer s
grant of recognition based on a clear showing of
support for the union among a majority of the em
ployees in an appropriate unit However the Board
also held in Deklewa that a union signatory to an
agreement permitted by Section 8(f) acquires limit
ed status as a representative under Section 9(a) to
the extent that the 8(f) agreement may not be uni
laterally repudiated during its term and may be en
forced during its term under the provisions of Sec
tion 8(a)(5) and Section 8(b)(3)
The Board further held in Deklewa that in deter
mining an appropriate unit for election purposes
the Board will no longer distinguish between per
manent and stable and project by project work
forces and that single employer units will normally
be appropriate The merger doctrine was rejected
in 8(f) cases because it can operate to bind a single
employer and employees to full 9(a) status without
providing employees the opportunity to express a
representational preference because Section 8(f)
2 282 NLRB 1375 (1987)
9 Under the conversion doctrine a collective bargaining relationship/
agreement permitted under Sec 8 (f) could convert into one cognizable
under Sec 9(a) simply on the basis of a showing that during a relevant
period the union enjoyed the support of a majority of the employers
employees in an appropriate unit Under the merger doctrine the em
ployer and the union could merge employees into a multiemployer
unit
eliminates majority status as a prerequisite for sign
ing a contract The Board clearly stated however
that it did not imply that multiemployer associa
tions and bargaining could no longer be deemed
appropriate in the construction industry Thus for
the reasons set out in greater detail in Deklewa
supra the Board decided to apply the following
principles in 8(1) cases
(1) a collective bargaining agreement permit
ted by Section 8(1) shall be enforceable
through the mechanisms of Section 8(a)(5) and
Section 8(b)(3) (2) such agreements will not
bar the processing of valid petitions filed pur
suant to Section 9(c) and Section 9(e) (3) in
processing such petitions the appropriate unit
normally will be the single employers employ
ees covered by the agreement and (4) upon
the expiration of such agreements the signato
ry union will enjoy no presumption of majori
ty status and either party may repudiate the
8(1) bargaining relationship
Further the Board has specifically rejected the
proposition relied on by the judge that Section
8(f) applies only to the situation in which parties
enter into an initial contract and not to succeeding
contracts and has overruled those cases that estab
lashed that proposition Brannan Sand & Gravel Co
289 NLRB 977 980 fn 12 (1988) 4
Accordingly we turn to consideration of the
facts in light of Deklewa
First we adopt the judges finding that the
Board properly has jurisdiction in this proceeding
based on Respondent Corbett s membership in the
NECA chapter multiemployer bargaining group 5
We also adopt the judges findings which she
premised in large part on her credibility determina
tions that Bufco is the alter ego of Corbett Elec
tnc that the two companies constitute a single em
ployer and that the Board also has jurisdiction
over Bufco 6 Next applying the principles of
4 Member Higgins agrees with the conclusion stated in fn 12 of the
Boards decision in Brannan that R J Smith Construction Co 191
NLRB 693 (1971) overruled the proposition set forth in Eastern Wash
ington Builders 162 NLRB 476 ( 1966) and subsequent cases that Sec
8(f) applies only to the situation in which parties are entering into an mm
teal contract He does not however express an opinion on the Board s
application in Brannan of the holdings of Deklewa to pre-1959 bargaining
relationships because that issue has not been raised in this case
See Stack Electric 290 NLRB 575 576 (1988)
s In agreeing with the judge s finding that Bufco is the alter ego of
Corbett and that it was reactivated to enable Corbett to avoid its collec
tive bargaining agreements with the Union we do not rely on the j udge s
comments concerning lack of formal education of Mark Corbett or that
he had not run his own business prior to 1983 The record shows that
Mark Corbett had become a journeyman electrician through the Union s
apprenticeship program had been in the trade for 11 years had been a
supervisor at Corbett and an officer in both Corbett Electric and Bufco
In adopting the judge s findings however we note particularly as did
Continued
BUFCO CORP
Deklewa and Brannan we find it clear that the col
lective bargaining relationship between Respondent
Corbett and the Union was entered into without
regard to whether the Union had the support of a
majority of the employees The record shows that
the Respondents employees at no time designated
the Union as their collective bargaining represents
tive by means of a Board conducted election nor is
there any contention that the Union requested or
was granted recognition based on a showing of ma
Monty support We therefore find that there has
been no showing that the agreements between Re
spondent and the Union were anything other than
relationships governed by Section 8(f) and that the
appropriate units remained those of Respondent's
employees
Under the first principle of Deklewa the collec
tive bargaining agreements in effect here although
governed by Section 8(f) are nevertheless normally
enforceable through the mechanisms of Sections
8(a)(5) and 8(b)(3) under the strictly limited 9(a)
status that the Union enjoys during the term of that
agreement absent some exception not present
here 8 Hence Respondent Corbett and its alter ego
Bufco were not privileged to repudiate or fail to
comply with the inside agreement with the Union
effective June 10 1982 through March 31 1985 or
the residential agreement with the Union effective
October 1 1981 until September 30 1983 during
the term of those agreements 9
Accordingly we find that Respondent Corbett
Electric violated Section 8(a)(5) and (1) of the Act
by repudiating and thereafter refusing to abide by
its collective bargaining agreements with the Union
since about July 2 1982 that Corbett Electnc/
Bufco Corp similarly violated the Act beginning
about January 1 1983 and by transferring electn
cal work from Corbett to Bufco in order to avoid
Corbett s obligations under the collective bargain
ing agreements then in effect 10
the judge that Bill Corbett testified that he decided Corbett would
become inactive about December and that that decision probably co
incided with his problems with the Union (the original charge was filed
on December 9 1982) Bufco began its new operations as an electrical
contractor on January 1 1983 with its only personnel having been on
Corbett s payroll in December Bill Corbett began soliciting business for
Bufco and on the Crane Naval Depot job that he thereafter performed as
Corbett Electric he used Bufco employees Further in January Bufco
began using Corbett s tools trucks and equipment under an oral agree
ment for an amount that Mark Corbett testified was more or less kept
open Bill Corbett testified that Mark could use the equipment for
nothing At the time of the hearing Bufco and Corbett Electric were
using the space previously used by Corbett
r Stack, supra at 577 Deklewa supra
8 Deklewa supra, Cf Stack Electric supra at 577-578 (no obligation to
bargain or enforce contract for single person unit)
9 Reliable Electric Co 286 NLRB 834 fn 15 (1987)
io The judge found that the transfer of work from Corbett to Bufco
also violated Sec 8(a)(3) We find it unnecessary to pass on this finding
because it would not in any way affect the remedy or Order
THE REMEDY
1017
Having found that the Respondents engaged in
certain unfair labor practices we shall order that
they cease and desist and take certain affirmative
action designed to effectuate the policies of the
Act We shall order the Respondents to make
whole as prescribed in Ogle Protection Services, 183
NLRB 682 (1970) and Kraft Plumbing 252 NLRB
890 (1980) 11 employees for any losses they may
have suffered as a result of the Respondents failure
to adhere to the inside and residential agreements
then in effect from about January 1 1983, until
their expiration 12 with interest as computed in the
manner prescribed in New Horizons for the Retard
ed 13
ORDER
The National Labor Relations Board orders that
the Respondents Corbett Electnc Co and Bufco
Corp Evansville, Indiana their officers agents
successors, and assigns shall
1 Cease and desist from
(a) Withdrawing recognition during the term of
a collective bargaining agreement from Internation
al Brotherhood of Electrical Workers AFL-CIO
Local 16, as the exclusive collective bargaining
representative of the Respondents employees cov
ered by the agreement
(b) Refusing to adhere to or transferring work
to avoid the 1981-1983 residential and 1982-1985
it The judge ordered a quarterly computed backpay remedy As we
find that Bufco is the alter ego of Corbett that the two entities constitute
a single employer and that the appropriate units include the employees
of both companies covered by the inclusionary language of the residential
and inside agreements with the Union we conclude that the appropnate
remedy is to require Respondent to apply the contracts retroactively and
to make its employees whole for any losses they may have suffered as a
result of Respondents failure to apply the contracts When as here the
amounts due employees result from a Respondents repudiation and fail
ure to apply the terms of a collective bargaining agreement and does not
involve cessation of employment status or interim earnings a quarterly
computation is unnecessary and unwarranted
is As noted above the original charge in this proceeding Case 25-
CA-15111 was filed against Respondent Corbett Electnc on December
9 1982 Thereafter the parties in February 1983 entered into a settlement
agreement under which Respondent Corbett made whole its employees
by making the appropriate fund contributions The General Counsel con
cedes that Corbett made all those payments that had not been made for
1982 and Bufco began operating as an electrical contractor about Janu
ary 1983
13 In accordance with our decision in New Horizons for the Retarded
283 NLRB 1173 (1987) interest on and after January 1 1987 shall be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 US C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
Because the provisions of employee benefit fund agreements are van
able and complex the Board does not provide at the adjudicatory stage
of the proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments Therefore any additional amount owed regard
ing fringe benefit and pension funds shall be determined in accordance
with Merryweather Optical Co 240 NLRB 1213 1216 fn 7 (1979)
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
inside collective bargaining agreements with the
Union until their September 30 1983 and March
31 1985 expiration dates
(c) In any like or related manner interfering
with restraining or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
(a) Make whole employees covered by the rest
dential and inside agreements in the manner set
forth in the remedy for any losses they may have
suffered as a result of the Respondents failure to
adhere to the contracts until they expired on Sep
ember 30 1983 and March 31 1985
(b) Preserve and on request make available to
the Board or its agents for examination and copy
ing all payroll records social security payment
records timecards personnel records and reports
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(c) Post at its Evansville Indiana office copies of
the attached notice marked Appendix 14 Copies
of the notice on forms provided by the Regional
Director for Region 25 after being signed by the
Respondents authorized representative shall be
posted by the Respondent immediately upon re
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no
tices to employees are customarily posted Reason
able steps shall be taken by the Respondent to
ensure that the notices are not altered defaced or
covered by any other material
(d) Sign and return to the Regional Director suf
ficient copies of the attached notice marked Ap
pendix for posting by International Brotherhood
of Electrical Workers AFL-CIO Local 16 if will
ing in conspicuous places where notices to em
ployees and members are customarily posted
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
MEMBER JOHANSEN concurring
I fully agree with my colleagues in the result' and
in application of the principles of Deklewa 282
NLRB 1375 (1987) Additionally I note that re
cently in Brannan Sand & Gravel Co 289 NLRB
977 (1988) the Board unanimously rejected conten
tions that construction industry collective bargain
ing relationships originating before the enactment
14 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
of Section 8(f) should be treated in the same
manner as relationships in industries not covered
by Section 8(f), and held that the Board will find
full 9(a) Status with respect to all construction in
dustry bargaining relationships only if the signatory
Union has been certified following a Board election
or has been recognized on the basis of an affirma
tive showing of majority support Id at 979 (and
see discussion at 980) Thus as the Board reiterat
ed in Brannan the legislative history fully set forth
in Deklewa demonstrates that prior to the 1959
amendments the established practice in the con
struction industry of employers recognizing and en
tering into coilective bargaining agreements with
unions even before any employees were hired had
become so widespread that Congress deemed it
necessary to add Section 8(f) to the Act because
the Board s application of Section 8(a)(2) to the in
dustry was resulting in substantial instability in the
industry by the invalidation of established industry
practices Brannan supra at 979-980 citing
Deklewa, supra, at 1380 Further in rejecting the
argument that there should be another way to es
tablish 9(a) status in the construction industry the
Board noted that its decision in R J Smith Con
struction Co 191 NLRB 693 (1971) had implicitly
overruled the proposition set forth in Eastern
Washington Builders 162 NLRB 476 (1966) that
Section 8(f) applies only to the situation in which
parties enter into an initial contract and not to suc
ceeding contracts Thus the Board in Brannan ex
pressly overruled that case as well as Williams En
terprises 212 NLRB 880 (1974) and Dallas Building
Trades Council 164 NLRB 983 (1967) relied on by
the judge in this case
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT repudiate the October 1 1981-
September 30, 1983 residential and the June 10
1982-March 31 1985 inside collective bargaining
agreements between our Company and Internation
al Brotherhood of Electrical Workers AFL-CIO
Local 16 during the terms of those agreements
WE WILL NOT in any like or related manner
interfere with restrain or coerce you in the exer
cise of the rights guaranteed you by Section 7 of
the Act
BUFCO CORP 1019
WE WILL make whole with interest the unit
employees who have incurred losses of wages and
benefits becaase of our failure to abide by the
terms and conditions of the collective bargaining
agreements between our Company and the Union
until the residential agreements expiration on Sep
tember 30 1983 and the inside agreements expira
tion on March 31 1985 The appropriate unit is
Our employees who perform work which is
described in and covered by the October 1,
1981 Residential Wiring Agreements and
those employees who perform work which is
described in and covered by the June 10 1982
Inside Electrical Construction Agreement,
each such agreement being between the South
em Indiana Chapter of the National Electrical
Contractors Association and Local Union No
16 of the International Brotherhood of Electn
cal Workers
WE WILL pay to the appropriate funds the health
and welfare pension apprentice training , and other
contributions required to be paid by the collective
bargaining agreement or agreements to which we
have been bound
BUFCO CORP AND CORBETT ELEC
TRIC COMPANY, INC
Walter Steele Esq for the General Counsel
Cecil Davenport Esq of Louisville Kentucky for the
Respondents
DECISION
STATEMENT OF THE CASE 1
NANCY M SHERMAN Administrative Law Judge
These consolidated cases were heard before me in Ev
ansville Indiana on October 31 and November 1 1983
The charge in Case 25-CA-15111 was filed on Decem
ber 9 1982 by International Brotherhood of Electrical
Workers Local 16 (the Union) against Corbett Electric
Company Inc (Corbett Electric) The charge in Case
25-CA-15547 was filed by the Union on May 25 1983
against Bufco Corp (Bufco) The charge in Case 25-
CA-15570 was filed by the Union on June 3 1983
against Corbett Electric The original complaint was
issued on July 8 1983 and amended on September 6 and
October 24 1983
The complaint in its final form alleges inter alia that
Corbett Electric and Bufco are alter egos and a single
employer within the meaning of the Act The complaint
further alleges that at all times material Corbett Electric
and (by virtues of the alleged alter ego status) Bufco
have been employer members of Evansville Division
Southern Indiana Chapter NECA Inc (the Associa
tion) The complaint goes on to allege that after the As
sociation and the Union had executed two collective bar
gaining agreements covering two separate appropriate
multiemployer units each of which units included em
ployees of Corbett Electric and other employers Section
8(a)(5) and ( 1) of the National Labor Relations Act (the
Act) was violated since about July 2 1982 when Corbett
Electric submitted an untimely revocation of its member
ship in the Association and advised the Union that Cor
bett Electric was canceling its assent to both bargaining
agreements withdrew its recognition of the Union as the
exclusive bargaining representative of the employees in
both units and without the Union s agreement to such
conduct and without affording prior notice and bargain
ing opportunity to the Union discontinued contractually
required payments to various benefit plans and changed
employees cortractually required wage rates The com
plaint further alleges that Section 8(a)(5) and (1) of the
Act was violated when Corbett Electric through Bufco
refused since early 1981 [sic] to abide by the two bar
gaining agreements between the Union and Association
(including fringe benefits payments ) and in early 1983
withdrew recognition from the Union Also the com
plaint alleges that Section 8(a)(3) (5 ) and (1 ) of the Act
was violated when Corbett Electric unilaterally decided
to transfer its work performed by the unit employees in
both units to Bufco for the purpose of avoiding obliga
tions under those agreements and without the Union s
consent or affording the Union opportunity to bargain
over the transfer
On the entire record including the demeanor of the
witnesses and after due consideration of a brief filed on
behalf of Bufco and Corbett Electric and a brief filed on
behalf of counsel for the General Counsel I make the fol
lowing I _
FINDINGS OF FACT
I JURISDICTION
Corbett Electric is an Indiana corporation with an
office in Evansville Indiana At all material times until at
least July 2 1982 Corbett Electric was engaged in the
electrical contracting business was a member of the As
sociation had authorized the Association to bargain on
Corbett Electric s behalf and employed employees who
were covered by multiemployer collective bargaining
agreements between the Association and the Union
Bufco is an Indiana corporation with its principal
office and place of business in Evansville Indiana where
it is engaged in the business of providing and performing
general construction and electrical contracting and relat
ed services I
The Association is an employer within the meaning of
Section 2(2) (6) and (7) of the Act One of its members
is Swanson Nunn Electric Corporation Swanson Nunn
received goods in excess of $50 000 from sources directly
outside Indiana during the year preceding October 31
1983 and is an employer within the meaning of Section
2(2) (6) and (7) of the Act
Whether Corbett Electric and Bufco are engaged in
commerce within the meaning of the Act is related to
the merits of some of the unfair labor practice allega
tions and will be determined concerning such allega
tions
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II THE ALLEGED UNFAIR LABOR PRACTICES
A Corbett Electric s Bargaining History Before 1982
The Union represents two kinds of electricians-
inside electricians and residential electricians Inside
electricians perform heavy commercial industrial and
construction type electrical work on such structures as
schools factories restaurants and office buildings and
also perform work on outside lighting street lighting
and stoplights Residential electricians work on single
family residences and on apartment buildings whose
height does not exceed three stones
About 1960 Bill W Corbett began to operate an elec
trial contracting business as an individual proprietor
About 1963 he joined the Association Before June 1973
Bill Corbett signed as president of Corbett Electric
Co a document entitled Letter of Assent A and
reads in part as follows
In signing this letter of assent the undersigned firm
does hereby authorize [the Association] as its col
lective bargaining representative for all matters con
tained in or pertaining to the current approved
Inside labor agreement between the [Association]
and [the Union] This authorization in compliance
with the current approved labor agreement shall
become effective on the 1st day of June 1973 It
shall remain in effect until terminated by the under
signed giving written notice to the [Association]
and the [Union] at least one hundred fifty (150)
days prior to the then current anniversary date of
the aforementioned approved labor agreement
On an undisclosed date before October 1 1973 Bill
Corbett signed as president of Corbett Electric Co a di
vision of Bufco Corp a document identical to the June
1973 document except that the word Residential ap
pears instead of the word Inside and the effective date
of the current approved agreement is specified as Oc
tober 1 1973 Both documents were also signed by the
Union s then business manager
Bufco was incorporated in 1970 Until 1977 it was pn
manly engaged in single family and multifamily housing
and development Between 1973 and 1977 Bill Corbett
operated Corbett Electric as a division of Bufco Corbett
Electric had its own employees and records but priman
ly did all the electrical work for buildings that Bufco
constructed
In 1977 Bill Corbett incorporated his electrical con
tracting business as Corbett Electric Company Bill Cor
bett has at all times been that corporations sole stock
holder At the time of the hearing on October 31 to No
vember 1 1983 Bill Corbett was Corbett Electric s
president and his daughter Rebecca Miller was its sec
retary treasurer Until at least June 30 1982 and for 3 or
4 years prior Corbett Electric s vice president was Mark
Corbett who is Bill s son and Rebecca Miller s brother
Until at least July 1982 Corbett Electric continued to
operate the business in the same manner as it had been
operated as a sole proprietorship However because in
1977 Bufco stopped constructing houses Corbett Elec
tnc thereafter performed electrical work for firms other
than Bufco
After Corbett Electric Company had been incorporat
ed no new letter of assent was signed so far as the
record shows However Bill Corbett testified in October
1983 that Corbett Electric had been a member of the
Association for about 20 years-that is for a period both
before and after the 1977 incorporation The parties stip
ulated that for 10 years prior to May 31 1982 Corbett
Electric Company was a party through its membership
in the Association to a series of collective bargaining
agreements covering inside employees and another series
of collective bargaining agreements covering residential
employees Bill Corbett testified that from 1973 through
June 1982 it was basically true that he agreed to be
bound by the Associations contracts with the Union and
abided by their terms The parties stipulated in sub
stance that as to inside employees and residential em
ployees respectively a unit consisting of all such em
ployees employed by employer members of the Associa
tion including Corbett Electric was appropriate for the
purposes of collective bargaining within the meaning of
Section 8(a) of the Act for at least the 10 years up until
July 2 1982 i
On December 11 1981 the Association and the Union
executed as to residential electricians in the employ of
certain Association members a collective bargaining
agreement effective by its terms from October 1 1981
until at least September 30 1983 and from year to year
thereafter absent written notice by either party within
90 days prior to the anniversary date of any year of a
desire to terminate the agreement As previously noted
the parties stipulated that through the Association Cor
bett Electric Company was a party to this contract until
at least the end of May 1982 On a date not shown by
the record the Association and the Union executed a
collective bargaining agreement covering inside employ
ees of certain Association members This agreement ex
pired at the end of May 1982 As previously noted the
parties stipulated that Corbett Electric was a party to
this contract
B Events that Led to Corbett Electric s Purported
Cancellation of Both Contracts and Withdrawal of
Recognition from the Union
About February 1982 the Association and the Union
began negotiations for a new inside contract to replace
the contract that was to expire about the end of May
1982 The Associations bargaining committee initially in
cluded Bill Corbett who resigned from the committee in
May 1982 because he was temporarily out of the State
and did not have enough time to discharge his duties on
the committee The Union s bargaining representatives
were appointed by the union president who is elected by
the membership
On June 8 or 9 1982 the Association and the Union
reached an oral agreement to renew the expiring agree
' The actual stipulation was couched in terms of the complaint which
in turn is couched in terms of the units set forth in the respective con
tracts See Conclusions of Law 3 and 4 infra
BUFCO CORP
ment with certain agreed on changes to be effective
June 10 1982 The new agreement was ratified by the
union membership on June 10 All union members who
worked under a bargaining agreement that covered
inside electricians were eligible to vote whether they
worked for an Association member who was part of the
multiemployer unit About 300 members attended the
ratification meeting and about 200 of them cast ballots
favoring ratification of the 1982-1985 inside contract
The proportion of eligible members who participated in
the vote is unclear in the record 2 The record fails to
show how many Corbett Electric employees were eligi
ble to vote or how many (if any) voted The Associa
tion s members were informed of the new economic
terms of the agreement in time for them to be reflected
in the paychecks issued to the employees on June 18
1982 for the payroll week ending June 11 1982 A
formal complete bargaining agreement to be effective
through March 31 1985 was executed on June 10 1982
On or before June 28 1982 Bill Corbett received a
copy of this contract After reading it he decided that
for economic reasons he could not live up to it By
letter dated June 28 1982 from Bill Corbett to Associa
tion Manager William N Cooper Corbett Electric
stated This is to inform you as of June 30 1982 our
intent to terminate our membership in the Association
By letter from Bill Corbett to Union Business Manager
Malvin E Hoover Sr dated July 2 1982 Corbett Elec
tric stated
You are herewith informed I have terminated my
membership in the [Association ] effective June 30
1982 The purpose of termination my trade associa
tion membership is to sever my participation in the
multi employer bargaining unit of the [Association]
This letter will also serve to notify you of my in
terest and desire to cancel my letter of assents des
ignated A for the both the inside and residential
labor agreements between Corbett Electric Compa
ny Inc and [the Union] effectively [sic] immediate
ly
In a reply letter dated July 20 1982 with a courtesy
copy to Cooper Hoover stated
In your letter you refer to your terminating your
membership in the [Association]
This is a decision that has no bearing on the re
maining relationship with the Union
As to your desire to conceal your Letters A of
Assent due to the untimeliness of your request it is
not acceptable
Late that same month Hoover asked Bill Corbett by
telephone his intentions about making fringe benefit pay
2 Union Business Agent Hoover testified that the number of employees
who work for Association members varies from 350 to 500 and the
number who work for non Association members who contract with the
Union vanes between 10 and 300 It is unclear whether his figures en
compassed only inside electricians or both inside and residential electn
cians I am inclined to think that his figures encompassed both groups
Nor is it clear whether union members on the out of work list were
eligible to vote
1021
ments continuing to be a member of the Association
and continuing to be a signatory to the Union s agree
ment Bill Corbett said that he had no employees at Cor
bett Electric and did not intend ever to have any em
ployees of Corbett Electric He further said that he
could not Buy a job under the union contract because
the wages were getting too high and he could not com
pete
C Corbett Electric s Failure to Honor the Bargaining
Agreements Between the Union and the Association
After sending Hoover the July 2 1982 letter purport
edly canceling the letters of assent Corbett Electric dis
honored both the 1981-1983 residential contract and the
1981-1985 inside contract More specifically Corbett
Electric did not make the dues deductions called for by
the checkoff clauses in each contract and failed regard
ing some employees to pay the wage scales contractually
called for Moreover during the remaining months of
1982 Corbett Electric without consulting the Union
failed to make contributions to the various funds as re
quired by both of these contracts such as the pension
health and welfare insurance and vacation funds
D The Settlement Agreement Executed by Corbett
Electric in Case 25-CA-15111
As previously noted on December 9 1982 the Union
(through Business Agent Hoover) filed against Corbett
Electric a charge docketed as Case 25-CA-15111 The
charge alleged inter alia that Corbett Electric had vio
lated Section 8(a)(1) and (5) of the Act by refusing to
follow the bargaining agreement and by unlawfully at
tempting to terminate it Thereafter Corbett Electric and
the Union executed an informal settlement agreement
that was approved by the Regional Director on Febru
ary 25 1983 In this agreement Corbett Electric under
took inter alia to give effect to both bargaining agree
ments to bargain with the Union to make employees
whole for any loss of wages or other benefits they may
have suffered in consequence of Corbett Electric s refus
al to honor these agreements and to make certain pay
ments including (and perhaps consisting of) payments
into the contractually established funds The agreement
contains the clause By entering into this Settlement
Agreement the Charged Party does not admit that it has
engaged in any violation of the Act Corbett Electric in
fact made certain payments as called for by this agree
ment
After January 1 1983 Corbett Electric filed blank re
ports with the contractually established funds About
February 1983 Union Representative Hoover found out
that Bill Corbett had not made any contributions to the
foregoing funds for the month of January 1983 When
Hoover asked Bill Corbett about the matter he replied
that there would be no more contributions to the funds
that the well had run dry and that the Union had got
all it was going to get Since the payroll period ending
February 6 1983 and at least until November 1983 Bill
Corbett has been the only person listed on Corbett Elec
tric s payroll
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E The Resuscitation of Bufco
Bufco was incorporated in 1970 3 As previously noted
until 1977 it engaged in single family and multifamily
housing and development Thereafter Bufco was dor
mant until at least August 1 1982 Before 1983 Bufco
employed no electricians Bufco as such never had a bar
gaining relationship with the Union
Between 1970 and at least August 1 1982 Bill Corbett
was Bufco s president was on its board of directors and
owned all of its 100 shares For a period that began no
later than July 2 1980 and continued at least until
August 1 1982 the other officers consisted of Bill Cor
bett s son Mark Corbett and his daughter Rebecca
Miller who is Mark Corbett s sister 4 As of August 1
1982 Bufco had no assets no bank account and no ac
counts receivable Bill Corbett credibly testified to the
belief that as of that date the corporation had no salable
value
Bill Corbett testified that in the latter part of 1982
his son Mark Corbett expressed a desire to go into buss
ness for himself Bill Corbett went on to testify that the
two discussed the matter for 4 to 6 months and Bill then
offered to give Bufco to Mark if he wanted it
Bill Corbett testified and Bufco s corporate minutes
recite that on August 1 1982 he endorsed 49 shares of
his stock to his wife Lucinda Corbett and the remaining
51 shares to Mark Bill s son from an earlier marriage
No payment was made for this stock The corporate
minutes further recite that on that same day Bill Corbett
resigned as president and director The corporate min
uses go on to recite that on that day Mark and Lucinda
named themselves as directors and as directors named
Mark as president and treasurer and Lucinda as vice
president and secretary Mark testified that he did not
become president of Bufco until January 1 1983
Bufco s corporate minutes also state that on August 1
1981
Bill W Corbett opened a discussion con
cernmg his desire to rid himself of the worries of
[Bufco] and to devote himself solely to the conduct
of his electrical business The said Bill W Corbett
advised Mark A Corbett and Lucinda A Corbett
that he was suffering a health problem which
seemed to stem from his financial problems and
Mark A Corbett and Lucinda A Corbett con
curred in his opinion that if he devoted himself to
Corbett Electric Company doing much of the
physical labor of Corbett Electric Compary him
self that his health condition would probably im
prove
Bill Corbett testified that in June and July 1982 he
purportedly withdrew from the Association and purport
edly canceled the bargaining agreements because Corbett
Electric had been losing money for so many years the
agreements (or at least the inside agreement) forbade Bill
3Its original corporate name was Bufco Corp On an undisclosed
date before December 1 1980 its name was changed to Bufco Con
struction Co In January 1983 steps were initiated to change its name
back to Bufco Corp the name that apppears in the pleadings
4 During the first part of this period her surname was Austin
Corbett to perform any work with his hands 5 and he be
lieved that if he got out of the Union and started work
ing with his hands he could start making a living again
When asked why he resigned from Bufco s presidency
he replied It was an inactive corporation I felt I
had to unload some problems I couldn t see continuing
in an electrical business in the capacity that I had in the
past I developed possible ulcers last winter [the
winter of 1982-1983] This was preceding that but I of
fered to [Mark] the availability of this existing corpora
tion If he wanted to be in the electrical business he was
welcome to use this corporation Bill Corbett went
on to testify
Q Well why didn t you give him Corbett?
A Why didn t I give him Corbett? Because of
the involvement with the local unions
Q So you gave-
A He didn t want Corbett
Q So you gave him Bufco to avoid the problems
with the Union
A Not for me I didn t avoid them He is a big
boy and he can make his own decisions and he had
no interest in Corbett Electric Company and the in
vovlement that I was in
Q But you gave him Bufco as opposed to Cor
bett
A I made it available to him And if he wants to
be a union contractor he can be a union contractor
Mark Corbett testified that he was sure that the only
reason his father resigned from Bufco s presidency was
that Mark wanted to go into business and this was a way
for him to get into business
Bufco s corporate minutes recite that on October 28
1982 Bill Corbett attended a meeting of Bufco s board of
directors-that is his wife and his son Mark-during
which they discussed a contract to lease to Bufco all
vehicles tools and equipment including office equipment
now owned by Corbett Electric Company Inc
Corbett Electric Company Inc to have priviledge us
[sic] of all said equipment to complete uncompleted con
tracts during 1983 after which time all items are the ex
clusive control [sic] of Bufco per contract agree
ment Corbett Electric to submit to Bufco a
contract agreement within 30 days Thereafter Bill and
Mark Corbett executed such a lease in consideration of
2% of [Bufco s] gross sales for fiscal year 1983 for 1
year with three 1 year options 6 The written lease (pre
pared by Bill Corbett) recites that the parties have here
unto set their hands and seals the day and year first
above written The date on the document is November
5 1982 However the lease was not in fact executed
until several weeks before the hearing which was held
The 1982-1983 inside agreement provides (art III sec 3 02) No
member of any firm signatory to this agreement shall himself perform
any manual electrical work Bill Corbett testified that he did not know
whether the residential agreement contained such a provision (it does
not) but that this was not the major part of Corbett Electric s work
6 The lease contains no specific provision for determining the amounts
due after the fiscal year 1983
BUFCO CORP 1023
on October 31 and November 1 1983 7 Mark Corbett
testified that at the end of 1982 Corbett Electric
(through Bill Corbett) and Bufco (through Mark Cor
bett) reached an oral agreement that I was to use
trucks tools anything to perform my business for an
amount which was more or less left open Mark fur
ther testified on November 1 1983 that the leased equip
meat was worth $20000 that his father had not given
him a list of this agreement and that no payments had
ever been made under the oral agreement It s set up for
an end of the year Bill Corbett testified that Mark Cor
bett could use my equipment for nothing
F The 1983 Operations of Bufco and Corbett Electric
Bill Corbett credibly testified that Bufco never per
formed any electrical work before January 1983 when
(according to Mark Corbett) Bufco began operations
Bill Corbett further credibly testified in October and No
vember 1983 that Bufco was now doing the same type of
work that Corbett Electric did and that employees of
Bufco essentially perform the same type of work as did
the employees under Corbett Electric Bill Corbett fur
ther credibly testified that after the end of 1982 he solic
ited electrical work for Bufco and tried to induce Cor
bett Electric s former customers to have their work per
formed by Bufco
Under the business name Marbeck Development Com
pany Bill Corbett owns an office complex at 2305 North
Kentucky in Evansville Indiana that houses a number of
different business tenants Among the businesses that
occupy these facilities are Marbeck Corbett Electric
and Bufco Corbett Electric has always used this address
Bufco has used the North Kentucky address as its corpo
rate address since its 1970 incorporation but so far as the
record shows did not occupy any significant amount of
floor space between 1977 and at the earliest August
1982 At the time of the fall 1983 hearing Bufco was
renting from Marbeck the same floor space that Corbett
Electric had rented from Marbeck until August 1 1982
at the earliest At the time of the fall 1983 hearing Bufco
and Corbett Electric were sharing the space that had
been rented by Corbett Electric from Marbeck before
1983 and were sharing the office and contracting equip
meat owned and used by Corbett Electric before 1983
Corbett Electric as such had no telephone number Bill
Corbett transferred to Bufco the telephone number that
before 1983 had been used by Corbett Electric Bufco
paid the utilities for Corbett Electric and Marbeck
Before 1983 all of Corbett Electric s clerical work had
been performed by Lucinda Corbett (Bill Corbett s wife
and Mark Corbett s stepmother) Rebecca Miller (Bill
Corbett s daughter and Mark Corbett s sister) and Larry
Bish After 1982 these same individuals performed all
the clerical work for Corbett Electric Bufco and Mar
beck 8 During 1982 Corbett Electric s supervisors were
Bill and Mark Corbett
Mark Corbett explained that the lease had not been signed earlier be
cause our books were with our lawyers
9 Bill Corbett testified that none of these three firms ever paid Lucinda
Bill Corbett Mark Corbett and Thomas Strupp (also
referred to in the record as Scrupp and Scruggs) were
on Corbett Electric s last 1982 payroll Bill Corbett testi
feed that from January 1 to about March 1983 he spent
95 percent of his time working for Bufco Mark Corbett
and Strupp were employed by Bufco beginning January
1 1983 All three of them worked as electricians for
Bufco in 1983 There is no unequivocal evidence that
anyone else ever worked for Bufco as an electrician 9
Mark Corbett was born in December 1954 He has no
academic education beyond the high school level After
leaving high school he was an apprentice electrician for
4 years and then became a journeyman When working
for Corbett Electric he acted as a supervisor Before his
1983 association with Bufco Mark Corbett had never
run his own business
As previously noted Bill Corbett testified that be
tween January and March 1983 he spent about 95 per
cent of his time working for Bufco He credibly testified
that he had managed Corbett Electric for about 23 years
that beginning no later than January 1983 he counseled
Mark Corbett about job related matters he is my son
and we have a close relation and that when Mark
asked him to help on a job he worked on that job if he
could Mark Corbett testified that Bill Corbett was
more or less a foreman on Bufco s Cabucca Restaurant
job (also referred to in the record as the Carry out job)
Union Representatives Hoover and Richard Neukam
both credibly testified that in late July 1983 they saw
Bill Corbett laying out electrical work for another
worker on that job Because of the foregoing testimony
the probabilities of the case and demeanor consider
ations I do not credit Bill Corbett s and Mark Corbett s
testimony that Mark Corbett is Bufco s only supervisor
Rather I find that on occasion Bill Corbett also acted as
Bufco s supervisor Further to' the extent inconsistent
with this finding I do not accept Bill Corbett s testimony
that Mark does not consult with him about how jobs
should be performed
Mark Corbett testified that he hires employees without
consulting his father or anyone else Three of Bufco s
employees-electrician Strupp estimator Bish and truck
driver Clifford Russell-worked for Corbett Electric in
1982 for a period that included its last 1982 payroll
period Because of the probabilities of the case and for
demeanor reasons I accept Bill Corbett s testimony that
although he never hired any employees for Bufco he
and Mark Corbett possibly discussed whether to hire
some of Bufco s employees although they did not spe
cifically discuss each hire 1
Mark Corbett testified that he decides on employee
wages without consulting anyone else He had never set
wage rates for Corbett Electric For demeanor reasons
and because of the probabilities of the case I accept Bill
Corbett s testimony that he might be a sounding board
about wage scales r
Mark Corbett testified that he would deal without
consulting with anyone else with problems between the
Corbett for her work Rebecca Miller was also unpaid at least by Cor 9 Mark Corbett testified that aboutk four named Bufco employees
belt Electric might perform electrical work
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees and management Mark Corbett had never
handled grievances for Corbett Electric There is no evi
dence that any grievances ever in fact arose between
Bufco employees and management
Bill Corbett testified on October 31 to November 1
1983 that Corbett Electric was not currently bidding
procuring or going into any forms of business in the
electrical field and was not going to do so in the future
He went on to testify that after the collection of ac
counts receivable payment of taxes and auditing every
thing out Corbett Electric would become inactive Ac
cording to Bill Corbett his decision that Corbett Electric
would become inactive was made in December 1982 and
probably coincided with Bill Corbett s problems with
the Union
Before 1983 Corbett Electric s estimating work was
done by employee Bish and its bidding was done by Bill
Corbett Bish was on Corbett Electric s last 1982 payroll
In December 1982 he resigned from Corbett Electric s
employ He was hired by Bufco effective January 1
1983 10 After being added to Bufco s payroll Bish per
formed the same kind of estimating work he performed
for Corbett Electric Bish maintains an estimators log
which regarding each bid shows (among other things)
to whom the bid was submitted a description of the
work the amount bid and the successful contractor As
received into evidence this log lists bids due at various
times between December 27 and 28 1982 (while Bish
was still on Corbett Electric s payroll) and October 28
1983 This log lists bids on about 190 jobs Of these bids
at least six were submitted by Corbett Electric with re
spect to jobs where the bids were due on various dates
between January 5 and April 8 1983 The log states that
of all the bids recorded in the log about 40 were low
bids Two of these low bids were submitted by Corbett
Electnc Corbett Electric was awarded these two jobs
one of which was still incomplete as of October 1 1983
The log numbers the bid jobs consecutively and does not
show which bids were submitted by Bufco and which
were submitted by Corbett Electric i 1 Corbett Electric s
own records for bids due after February 8 1983 are cor
related to the job numbers in Bish s log Mark Corbett
told Bish to give Bill Corbett any numbers that he
wanted to prepare bids to be submitted by Corbett Elec
tnc Bish did so and Bill Corbett submitted Corbett
Electric s bids on the basis of the numbers supplied by
Bish Mark Corbett submitted Bufco s bids which were
also prepared on the basis of numbers supplied by Bish
Corbett Electric and Bufco never bid on or were award
ed the same job
As previously noted after the end of 1982 the only
person on Corbett Electric s payroll was Bill Corbett In
performing the two jobs (the Crane Naval Depot job and
the Butler County high school job) which Corbett Elec
tric was awarded in 1983 12 Bill Corbett used the two
10 Mark Corbett testified that on January l 1983 he conducted a
preemployment interview with Bish but that the interview did not last
very long
11 For unexplained reasons the first assigned job number is 83-119
The subsequent jobs are numbered 83-120 83-121 and so forth
12 The Crane Naval Depot bid was due to January 1983 the Butler
County bid was due in February 1983 The record fails to show when
electricians (Mark Corbett and Tom Strupp) who had
appeared on Corbett Electric s payroll at the end of
1982 When working on these jobs Mark Corbett and
Strupp were on the payroll of Bufco which billed Cor
bett Electric for their services Corbett Electric worked
on these jobs pretty well continuously between March
1983 and October 1983 In April 1983 Union Business
Agent Hoover asked Bill Corbett whether he was going
to make contributions to the various funds concerning
employees on the Crane Naval Depot job Bill Corbett
replied no Hoover asked him if he had hired any em
ployees on that job He replied that he had hired a
couple of guys to finish concrete for him in relation to
some electrical work he was doing there Hoover asked
if Bill Corbett did not think that Mark Corbett (a union
member until some time in 1982) should rejoin the
Union Bill Corbett emphatically said that this would
never happen He further said that Corbett was no
longer in business would not be hiring people from the
Union Hoover asked Bill Corbett whether Mark Corbett
was working on a lounge construction job variously re
ferred to in the record as the Back Alley Bar job the
Esquire Lounge job and the Scrumps Back Alley Bar
job Bill replied yes but stated that Mark was not an em
ployee of Corbett Electric Hoover asked who Mark s
employer was Bill did not reply
The electrical contractor on the Back Alley Bar job
with a $35 000 contract was Bufco the lounge owner
had never done any business with Corbett Electric That
same month Hoover telephoned Glen Miller who
owned the corporation for which the lounge was being
built Hoover asked Miller whether he owned the Back
Alley bar He said yes Hoover asked whether Corbett
was doing any electrical work out there Miller said that
he was Hoover said that he had labor charges filed
against Corbett Electric Bill Corbett was not living up
to the settlement agreement and Hoover might file ad
ditional labor charges against Corbett Hoover asked
for any assistance that Miller could give him to in our
terms straighten the work out or whatever Miller said
that Hoovers problem was with Corbett and no con
cern of Millers 13 On May 31 1983 Union Assistant
Business Representative William A Diehl went to the
Back Alley Bar jobsite He encountered Mark Corbett
who was unloading lighting fixtures from a panel truck
whose marking had been removed with something that
had left a scar Diehl remarked to Mark Corbett It
looks like Corbett has got this job Mark Corbett re
plied that he was not working for Corbett anymore
Diehl asked him if he was employed by Bufco Mark
said yes Mark further said that Corbett Electric no
longer had any employees and that all electrical work
was being performed by Bufco Diehl said that there was
difficulty that there was an NLRB settlement with Cor
bett Electric and that Diehl hoped we could get our
problems resolved and once again have Corbett living
Corbett Electric submitted its successful bids Bish s log lists the Butler
County job after nine jobs by and three awarded to Bufco
13 Hoover s uncontradicted testimony about his conversation with
Miller was not received to show the truth of Miller s representations
about Corbett
BUFCO CORP ' 1025
by the agreement That same or the following day Diehl
dialed the telephone number that he had previously used
to reach Corbett Electric Company and that had previ
ously been answered Corbett Electric A female voice
answered the telephone Bufco Corbett
On various occasions between January 1980 and Sep
tember 1982 Corbett Electric performed various jobs for
Busier Enterprises which operates a number of retail
outlets Corbett Electric contracted directly with Busier
for these jobs billed Busier for them directly and was
paid directly by Busier Donald Finch who at all rele
vant times has been Busier s vice president and general
manager has been personally acquainted with Bill Cor
bett for 30 years On an undisclosed date in or before
February 1983 Finch telephoned Bill Corbett and asked
him for an estimate on a job referred to in the record as
the I 64 motel wiring job Finch eventually reached an
oral agreement with Bill Corbett for the performance of
this job which was physically performed in February
1983 by Bill and (perhaps) Mark Corbett On May 19
1983 Bufco sent a bill to Busier for this job totaling
about $5800 On June 16 1983 Busier wrote a check in
this amount to Corbett Electric which cashed the check
On an undisclosed date between May 25 and 31 1983
Bill and (perhaps) Mark Corbett physically performed a
job for Busier at Washington Greenriver Road On June
14 1983 Bufco billed Busier $89 for this job On June
23 1983 Busier wrote a check for this amount to Cor
bett Electric which cashed the check So far as the
record shows Bufco never complained to Busier as to
either job that Bufco had not been paid Bufco was set
up on Busier s computer in August 1983 Bufco per
formed various jobs for Busier in July and August 1983
billed Busier and was paid by it with checks payable to
Bufco
In early July 1983 when visiting the Cabucca Restau
rant job Assistant Union Business Agent Neukam was
advised by the foreman on the job Bob Hazelip that
Busier was going to own the restaurant that Corbett
Electric had done all of Busier s electrical work for a
number of years and that Corbett Electric was going to
do the electrical work on the Cabucca job 14 Neukam
said that the Union was having difficulty with Corbett
and that he didn t seem to be using our people any
more Neukam asked what Busier representative he
should get in touch with about the situation Hazelip re
ferred Neukam to Busier Vice President Finch Neukam
then returned to the union office and reported Hazelip s
remarks to Union Business Representative Hoover
During a telephone conversation with Finch on the
following day Hoover asked whether Busier was build
ing the Cabucca restaurant Finch said yes Hoover
asked whether Corbett Electric was doing the job Finch
said that it was and that it had done his work for 15
years Finch said that Corbett Electric was a union con
tractor and asked what the problem was Hoover said
that Corbett had withdrawn or was trying to withdraw
from the Union that he was not paying fringe benefits
and that he did not consider himself a union contractor
14 Neukam s testimony about what Hazelip told him was not received
to show the truth of what Hazelip said
Finch said that if Hoover had"a problem it was with
Corbett and not Busier 15
Later that day Hoover dialed the number that until
about a month earlier he had used to reach Corbett
Electric and that had previously been answered Corbett
Electric A male answered Bufco Corbett and identi
feed himself as Larry Bish Hoover asked to speak to Bill
Corbett Bish said that Bill had just left In response to
questions by Hoover Bish said that Bufco was doing the
Cabucca Restaurant job and that Bish had estimated the
job for Bufco 16
Later that month Hoover and Neukam visited the Ca
bucca jobsite Parked at the jobsite was a white van
loaded with electrical material and tools No company
name was on the van itself but a ladder on top of it read
Corbett Electric Bill Corbett was laying out electrical
work for another worker Neukam asked Bill Corbett
who was doing the job He replied that it was being per
formed by Bufco 17
Later that day the Union put up a picket line against
Corbett at the Cabucca project In consequence of the
picket line Finch asked Bill Corbett to leave the project
due to the fact that [Busier] had a trade agreement
signed with the laborers and with the carpenters Finch
had made the arrangements for the electrical work on
this job with Bill Corbett orally and testified that as
long as I ve known Bill Corbett it really didn t matter to
me whether-who was doing the work After Bill Cor
bett left the job the electrical work was performed by a
member of the Association Hartic Electric
Corbett Electric and Bufco bank at separate banks Be
tween July 20 and September 27 1983 Bufco wrote
checks to Corbett Electric totaling more than $6200
Bufco s president treasurer and 51 percent shareholder
Mark Corbett testified on November 1 1983 that this
money was sent out by Lucinda Corbett (Mark s step
mother Bill s wife and Bufco s vice president secretary
and 49 percent shareholder) that he did not know
whether he was consulted about these payments and
that he did not know what they were for In May and
June 1983 Corbett Electric issued checks to Bufco total
ing more than $7000 Bill Corbett Corbett Electric s
president and sole stockholder testified that he did not
know what any of this money was for In January 1983
Corbett Electric issued checks totaling $3000 to Bill Cor
bett Bufco account Bill testified that he did not know
15 Hoover s uncontradicted testimony about their conversation was not
received to establish the truth of Finch s representations to Hoover
Finch testified that he did not recall this conversation but that it could
have occurred
16 My findings in this paragraph are based on Hoover s uncontradicted
testimony which was not received to show the truth of Bish s representa
tions to Hoover I am unclear whether counsel for Corbett Electnc and
Bufco questioned the sufficiency of Hoover s testimony to establish that
Bish was the speaker Whether he was the speaker has little materiality to
the issue
11 My findings in this paragraph are based on Hoover s and Neukam s
uncontradicted testimony No objection was advanced to Neukam s testi
mony that Bill Corbett said that job was being performed by Bufco Al
though a timely objection was advanced to similar testimony by Hoover
such a statement by Corbett Electric s president is receivable for its truth
regarding Corbett Electric at least See Rule 801 (d)(2) of the Federal
Rules of Evidence Whether it is similarly receivable against Bufco is dis
cussed infra , part II H I
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
what this money was for and that it would not be safe
to say that this money went to the Bufco account Bill
Corbett testified that his wife (a Bufco officer who owns
49 percent of its stock) handles Corbett Electric s money
on her own and regarding money transfers I trust her
judgment Anything she wants to do is fine with
me Concerning money transfers to Bufco Bill Corbett
testified that Mark Corbett (owner of 51 percent of
Bufco s stock) is my son and if he needs some money
111 loan it to him And if I need money I imagine that
he 11 loan it to me Bill Corbett further testified that nei
ther corporation has ever lent money to the other or
acted as a guarantor on a loan to the other
The record fails to show Bill Corbett s salary if any
from Corbett Electric prior to 1983 Between January 1
and July 3 1983 Corbett Electric paid him a salary of
$660 a week Between July 3 and October 16 1983 Bill
Corbett continued to receive $660 a week (except that he
received $659 50 for the week ending September 18) but
these payments were sometimes made by Corbett Elec
tnc alone were sometimes made by Bufco alone and
were sometimes divided between them 18 Bill Corbett
testified that dunng 1983 he worked mostly for Bufco
until March and mostly for Corbett Electric thereafter
Before he so testified and before counsel stipulated to the
foregoing figures on the basis of Bufco s and Corbett
Electric s records Bill Corbett testified that he believed
Bufco paid him by the hour but money isn t always a
factor in a family relation that he did not know what
his hourly rate was that he gave his paycheck from
Bufco to his wife (Bufco s vice president secretary and
bookkeeper) without looking at it that he worked for
Bufco between 5 and 80 hours a week whenever the
need arises and that he was interested in making Mark s
operation successful whether Bill made any money or
not The record fails to show what dividends if any
were paid by Corbett Electric or Bufco at any time
It is undisputed that Bufco has never recognized the
Union has never honored the Association contracts and
has failed to make the wage payments and fringe benefit
payments set forth in those contracts The Union has
never made any effort to organize Butco s electricians as
such
G The Setting Aside of Corbett Electric s Settlement
Agreement in Case 25-CA-15111
On July 8 1983 the Regional Director for Region 25
issued under a caption naming Corbett Electric but not
Bufco and with the docket number of the first charge
(Case 25-CA-15111 naming Corbett Electric only) filed
herein a Notice of Withdrawal and Vacation of Settle
ment Agreement and Determination to Reinstitute
Formal Proceedings This Notice stated in part
The parties are hereby notified that because of the Re
spondents [sic] noncompliance with the terms of the Set
tlement Agreement in the above captioned case and its
18 During 1 week of this period he was paid $660 from Bufco alone
during 2 weeks he was paid $660 from Corbett Electric alone His pay
ments from Corbett Electric otherwise vaned between $222 75 and
$643 50 His payments from Bufco otherwise vaned between $437 25 and
$1650
[sic] failure to perform all its [sic] obligations thereunder
the approval of said agreement is hereby withdrawn and
said Agreement is set aside
H Analysis and Conclusions
I Whether the settlement agreement executed by
Corbett Electric has been breached whether
Corbett Electric and Bufco occupy alter ego or
single employer status
As previously noted on February 25 1983 the Re
gional Director approved a settlement agreement execut
ed by Corbett Electric and the Union No unfair labor
practices can be found based on conduct prior to this set
Clement agreement unless there has been a failure to
comply with that agreement Interstate Paper Supply Co
251 NLRB 1423 1424-1425 fn 9 ( 1980) 19 With the pos
sible exception noted infra fn 29 the General Counsel
does not appear to contend that Corbett Electric as such
failed to comply with the settlement agreement Rather
the General Counsel contends in effect that because the
settlement agreement executed by Corbett Electric re
quired it to honor the collective bargaining contracts
Bufco s admitted failure to do so breached the settlement
agreement because Bufco allegedly occupies alter ego or
single employer status with respect to Corbett Electric
I agree with the General Counsels alter ego conten
icon In determining whether Bufco is the alter ego of
Corbett Electric the Board
must consider a number of factors no one of which
taken alone is the sina qua non of alter ego status
Among these factors are common management and
ownership common business purpose nature of op
eration and supervision common premises and
equipment common customers i e whether the
employers constitute the same business in the same
market as well as the nature of the negotiations
and formalities surrounding the transaction We
must also consider whether the purpose behind the
creation of the alleged alter ego was legitimate or
whether instead its purpose was to evade responsi
bilities under the Act Fugazy Continental Corp 265
NLRB No 165 slip op 4 footnotes omitted (De
cember 16 1982) enforced 115 LRRM 2471 (8th
Cir 1984)
See also Advance Electric 268 NLRB 1001 (1984) NLRB
v Campbell Harris Electric 719 F 2d 292 (8th Cir 1983)
All Kind Quilting 266 NLRB 1186 fn 4 (1983) R M
Tanaka 249 NLRB 238 (1980) enfd 675 F 2d 1029 (9th
Cir 1982)
19 This is obviously true regarding Corbett Electric the named party
to the settlement agreement The General Counsel s contention that
Bufco occupies single-employer or alter ego status concerning Corbett
Electric would be inconsistent with any contention by him that the settle
ment agreement could not affect Bufco The Regional Director having
set the settlement aside no contention is made that any failure to comply
with the settlement agreement constituted an unfair labor practice in and
of itself Cf NLRB Y All Brand Printing Corp 594 F 2d 926 (2d Cir
1979)
BUFCO CORP
In the instant case the General Counsels alter ego
contention is supported by every single one of these fac
tors Although it is true that Bill Corbett is Corbett Elec
tric s sole stockholder and that Bufco s stock is owned
by Mark Corbett and Lucinda Corbett ownership by the
same family constitutes substantially identical owner
ship for determining alter ego status Advance Electric
supra at 1003 In any event Bufco s stock was admitted
ly worthless when Bill Corbett gave it to his wife and
son as a gift Further Bufco had uncontrolled access to
much if indeed not all of the capital assets that underlay
the value of Corbett Electric s own stock More specifi
cally Bill Corbett testified that Mark Corbett could use
all Corbett Electric s equipment for nothing and that
Lucinda Corbett could transfer funds from Corbett Elec
tric s account to Bufco s account whenever and for any
reason she wanted
Moreover the record shows that the Bufco operation
was set up for avoiding the collective bargaining agree
ments that the settlement agreement obligated Corbett
Electric to honor and whose dishonor by Corbett Elec
tric to save labor costs constitutes the gravamen of the
complaint Thus Bill Corbett testified that he gave Mark
Corbett Bufco rather than Corbett Electric Because of
the involvement with the local unions Bill Corbett fur
ther testified that his decision that Corbett Electric
would become inactive was made in December 1982 (the
initial charge was filed on December 9) and probably
coincided with Bill Corbett s problems with the Union
Moreover Mark Corbett testified that he became Bufco s
president on January 1 1983 and Bill Corbett testified
that he did not offer to give Bufco to Mark until 4 to 6
months after the latter part of 1982 Further Mark
Corbett testified that an oral agreement that Bufco
would use Corbett Electric s equipment was reached at
the end of 1982 The foregoing credible testimony by
Bill and Mark Corbett and demeanor considerations
lead me to conclude that Bufco s corporate minutes
(signed by Mark and Lucinda Corbett) are inaccurate in
stating that the signatories received their stock and
became Bufco s officers as early as August 1 1982 that
Bill Corbett was untruthful in testifying that he gave
Bufco s stock to Mark and Lucinda as early as August 1
1982 and that the November 5 1982 date on the
Bufco/Corbett Electric equipment lease which was not
executed until about September 1983 has no relation to
the date when it was decided that Bufco would use Cor
bett Electric s equipment Furthermore because Bufco
had admittedly been dormant for several years before
August 1 1982 the health reasons recited in the minutes
and in Bill Corbett s testimony for resigning Bufco s
presidency make no sense at all if attached to a resigna
tion as early as August 1 and limited to Bufco response
bilities alone However the minutes and Bill Corbett s
testimony do make some sense (although I do not credit
them) if attached to a decision toward the end of 1982 to
cease doing an electrical business as Corbett Electric and
to set up an electrical business as Bufco The foregoing
efforts to conceal the close temporal relationship be
tween the alleged decision to cease doing business as
Corbett Electric and the decision to start doing business
as Bufco lead me to infer that such decisions were not
1027
made for normal business reasons and add further
weight to my conclusion that Bufco s electrical business
was set up for evading any obligations that Corbett Elec
tric might have under the collective bargaining agree
ments and as claimed by the Union s December 9 1982
charge This conclusion is further buttressed by Bill Cor
bett s efforts to conceal Corbett Electric s 1983 business
activities his use of Bufco personnel to perform Corbett
Electric s jobs in 1983 and his efforts to induce Corbett
Electric s former customers to give their business to
Bufco
Because Bufco occupies alter ego status regarding
Corbett Electric the out of court statements by Bill Cor
bett Corbett Electric s president bind Bufco as well as
Corbett Electric
A fortiori I find that Bufco and Corbett Electric
occupy single employer status Such a finding is suffi
cient of course to establish that their operations are to
be considered as one for purposes of determining wheth
er their operations meet the Board s jurisdictional stand
ards Sakrete Inc 137 NLRB 1220 (1962) 140 NLRB
765 (1963) enfd 332 F 2d 902 (9th Cir 1964) cert
denied 379 U S 961 ( 1965) I do not otherwise consider
whether the results would be affected by a finding that
the two corporations constitute a single employer but
not alter egos See Victor Valley Heating & Air Condition
ing 267 NLRB 1292 ( 1983) All Kind Quilting supra
Holiday Inn of Benton 237 NLRB 1042 ( 1978) modified
617 F 2d 1264 (7th Cir 1980) Carpenters Local 1846 v
Pratt Farnsworth Inc 690 F 2d 489 504-509 (5th Cir
1982)
2 Whether Section 8 (a)(5) and (1) of the Act was
violated through Corbett Electric
a Factual basis for Corbett Electric s 8(f) defense
Laying to one side the fact that Corbett Electric is an
employer in the construction industry Corbett Electric
plainly violated Section 8(a)(5) and (1) of the Act by dis
honoring the two collective bargaining agreements be
tween the Union and the Association during their effec
tive terms and after they had been executed Bonanno
Linen Service v NLRB 454 US 404 (1982) NLRB v
Iron Workers Local 103 (Higdon Contracting) 434 U S
335 343 ( 1978) Moreover and still laying to one side
the construction industry factor Corbett Electric further
violated Section 8(a)(5) and (1) by concomitantly pur
porting to withdraw from the Association Teamsters
Local 378 (Capital Chevrolet) 243 NLRB 1086 (1979) re
manded 672 F 2d 741 (9th Cir 1982) decision on remand
266 NLRB 685 (1983) Bill Corbett testified that he sent
the withdrawal letter because he had been losing money
for 5 years he believed that he could begin to show a
profit if he could work with his hands and the inside
contract forbade him to do so Plainly such consider
ations are msuffi,-ient to warrant dishonoring the con
tracts during their effective period and after their execu
tion Oak Cliff Golman Baking Co 202 NLRB 614
(1973) 207 NLRB 1063 (1973) enfd 505 F 2d 1302 (5th
Cir 1974) cert denied 423 U S 826 ( 1975) Indeed I am
doubtful whether such consideration would have consti
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tuted a legal defense to a withdrawal that was tendered
before a contract had been agreed to but after the date
by which timely withdrawals from multiemployer bar
gaining must ordinarily be effected Tulsa Sheet Metal
Works 149 NLRB 1487 1500-1501 (1964) enfd 367
F 2d 55 (10th Cir 1966) Corbett Electric produced no
documentary evidence at all that it ever lost money and
no specific evidence to show that it could reasonably
expect to lose money if it honored the two bargaining
agreements Moreover the 1981-1983 residential con
tract did not forbid Bill Corbett to work with his hands
the prohibition in the inside contract had also been in
cluded in the prior contract Bill Corbett had been on
the Association negotiating committee until less than 6
weeks before the final 1982-1985 contract was agreed to
he testified that he became aware while so serving that
the prohibition would be included in that contract and
he did not renounce the contracts until more than 2
weeks after the execution and effective date of the inside
contract and 10 months after the effective date of the
residential contract
Corbett Electric s brief contends however that Sec
tion 8(f) operates as a defense to its otherwise unlawful
action regarding the contracts and Association member
ship Regarding this contention the at least arguably rel
evant evidence shows as follows
The Union began to represent Corbett Electric s em
ployees about 1963 10 years before Bill Corbett as a
sole proprietorship doing business as Corbett Electric
signed the 1973 letters of assent to becoming a part of
the Association unit At no time after the business was
incorporated in 1977 were any signed authorization cards
secured from Corbett Electric s employees During the
period between 1973 and July 2 1982 not all of Corbett
Electric s employees were dues paying members of the
Union However Bill Corbett s testimony that it was
basically true that he abided by the union contracts
until mid 1982 leads me to infer that he abided by the
contractual union security agreements which all con
tained a 30 day grace period Union membership by Cor
bett Electric s employees is further shown by the fact
that Corbett Electric remitted checked off dues to the
Union until July 1982 when it renounced the bargaining
agreements
Regarding inside electricians the Association and the
Union have had a bargaining relationship since 1947 As
to residential electricians the Association and the Union
have had a bargaining relationship since at least 1968
Corbett Electric and all the Associations approximately
17 or 18 permanent members are contractors associated
in the electrical work involved in the construction of
buildings The work force of each of the contractors
fluctuates with the contractors workload Of each con
tractors work force at peak periods one sixth to one
fourth of the electricians work for that contractor year
round and the rest are hired when called for by the
workload Over the 10 years preceding November 1
1983 the respective work force of the three largest As
sociation members (which did not include Corbett Elec
tric) fluctuated from a high of about 130 to a low of
about 50 The percentage fluctuation of most other em
ployers work force was much lower ( see infra at fn 20)
Corbett Electnc however employed between about 22
and about 6 electricians of whom 4 or 5 constituted a
stable force who generally stayed with Corbett Elec
tnc 20
For at least 10 years before October 1983 bargaining
agreements between the Union and the Association con
tained clauses that required employer members of the
Association to hire employees through the Union s refer
ral service if the Union could provide employees Prior
to 1982 Corbett Electric pursuant to such clauses used
the Union as a hiring hall to obtain Corbett Electric s
employees The record does not contain copies of the
hiring hall clauses in the Association contracts that were
in effect before the effective dates of the contracts in
effect in July 1982 At least at the time of the October
November 1983 hearing before me as to inside and rest
dential electricians all the Union s contracts with non
members of the Association were the same as the
Union s contracts with the Association The 1982-1985
inside agreement gives first preference in referral to jour
neymen inside wiremen who are residents of the geo
graphical area constituting the normal construction labor
market 21 and who have been employed for a period of
at least 1 year in the last 4 years under a collective bar
gaining agreement between the parties to this agree
ment 22 Second preference is given to other journey
men inside wiremen with 4 years experience in the
trade third preference is given to applicants who have 2
or more years experience in the trade are residents of
the geographical area constituting the normal construc
tion labor market (see supra at fn 21) and have been
employed for at least 6 months in the last 3 years of the
trade under a collective bargaining agreement between
the parties to this Agreement (see supra at fn 22) and
fourth preference is given to applicants who have
worked at the trade for more than 1 year With excep
tions not material here applicants are to be referred
within each group in order of the dates when they regis
tered their availability for employment An applicant
who has registered on the out of work list must renew
his application every 30 days or his name will be re
moved from the list When the Union s inability to refer
applicants has caused an employer to hire applicants out
side the referral procedure such employees must be re
placed as soon as applicants are available under the refer
ral procedure 23 The Union is required to select and
20 My findings in the last three sentences are based on credible parts of
the testimony of Union Representative Hoover and Bill Corbett As to
the work force of employers other than Corbett Electric I regard
Hoover as more knowledgeable than Bill Corbett because of the Union s
operation of the hiring hall used by all employees However as to Cor
bett Electric s operations I regard Bill Corbett as more knowledgeable
and more likely to remember than Hoover
21 This is defined as 13 named counties in Indiana one named county
in Illinois plus the commuting distance adjacent thereto and is to in
clude the area defined by the Secretary of Labor to be the appropriate
prevailing wage area under the Davis Bacon Act to which the Agree
ment applies
22 It is unclear from the terms of the contract whether such creditable
employment could include employment by an employer who is a party to
the contract but not in the multiemployer unit
23 The employer is supposed to notify the Union when an employee is
hired off the street Normally however the Union is not so notified and
Continued
BUFCO CORP 1029
refer applicants for employment without discrimination
against such applicants by reason of membership or non
membership in the Union and such selection and referral
shall not be affected in any way by rules regulations
By laws Constitutional provisions or any other aspect
or obligation of Union membership policies or require
ments The foregoing hiring hall provisions are inappli
cable to apprentices who are hired through a joint ap
prenticeship and training committee on which the Asso
ciation and the Union are equally represented The Com
mittee has full authority to transfer apprentices from
one job or Employer to another
The 1981-1983 residential agreement contains rather
similar hiring hall provisions including a no discrimina
tion undertaking by the Union However the residential
agreement contains no requirement that an employer re
place employees properly hired outside the referral pro
cedure 24 The priority groups are defined as (1) journey
men residential wiremen with 2 or more years expen
ence in the trade who are residents of the geographical
area constituting the normal construction labor market
and have been employed for at least 1 of the last 2 years
under a collective bargaining agreement between the
parties of this agreement (see supra at fns 21 -22) (2)
other journeymen residential wiremen with 2 or more
years experience in the trade and (3) other applicants
with 2 or more years experience in the trade
Both of these agreements and all the agreements be
tween the Union and the Association since at least 1973
include union shop provisions with a 30-day grace period
for nonmembers The record contains very little evi
dence that these provisions were in fact enforced I infer
that they were because of the probabilities of the case
Bill Corbett s testimony that he abided by these agree
ments until mid 1982 Hoover s testimony that it was
merely possible that over a period of time Corbett
Electric had had nonmembers on its payroll and the col
loquy on pages 251-254 of the transcript (largely direct
ed to arrangements for admitting to membership appren
tices and off the street employees ) which indicates an as
sumption by both Hoover and counsel for Bufco and
Corbett Electric that nonmembers were ordinarily re
quired to join the Union Nor does the record directly
show whether regarding employment within the multi
employer unit nonmembers periods of employment with
various member employers were aggregated to deter
mine whether the 30-day grace period had run Cf May
fair Coat & Suit Co 140 NLRB 1333 ( 1963) I infer that
they were because of the probabilities of the case and the
evidence that a particular employees tour of duty with a
particular employer is often less than 30 days 25
Hoover (the Union s business manager since 1975 ) could not recall ever
receiving such a notification from Bill Corbett Hoover testified on No-
vember 1 1983 that Corbett had hired employees off the street in years
past not lately
24 Association Manager Coopers testimony suggests however that
this may have been done in practice
zs Thus under both contracts an employee goes to the bottom of the
out-of work list on being laid off from a job where he has worked
more than 40 hours Moreover as previously noted the size of every in
dividual contracting employers work force fluctuates substantially
The Union s internal rules limit members right to
obtain jobs on their own 26 The Union will not refer any
applicants to an employer with which the Union has no
collective bargaining agreement As previously noted re
garding inside and residential electricians all the Union s
bargaining agreements (including the hiring hall clauses)
are the same as the Association agreements The number
of employees working out of the union hiring hall for
members of the multiemployer unit vanes between 350
and 500 The number of employees working out of the
hiring hall for employers who are not in the multiem
ployer unit vanes between 10 and 300 See supra at fn 2
No Board election has ever been conducted among the
employees of any of the employer members of the Asso
ciation
b Legal analysis
The record shows that the two multiemployer con
tracts that Corbett Electric sought to disavow in mid
term were each the most recent of a series of contracts
to which Corbett Electric (through the Association) had
been bound for at least 10 years as part of a multiem
ployer unit In the most recent Board pronouncement
that I have been able to find regarding this issue 27 the
Board said (Al Bryant Inc 260 NLRB 128 138-139 fn
33 (1982) enfd 711 F 2d 543 (3d Cir 1983) cert denied
464 US 1039 (1984))
With respect to [Respondent employers ] refer
ences to Sec 8(f) it is noted that while an employ
er would assume no enforceable obligation under
such an agreement that consequence does not
obtain in the case of a successor agreement or
where since execution the Union had acquired ma
jonty status among the employees No evidence
exists warranting a finding that the [employers as
sociation] agreements in question were 8(f) con
tracts nor does it appear that if they were [the] re
sponsibility [of the Respondent employer member]
pursuant thereto was unenforceable See Williams
Enterprises Inc 212 NLRB 880 (1974) [enfd 519
F 2d 1401 (4th Cir 1975)] Authorized Air Condition
ing Co 236 NLRB 131 134 (1978) [enfd 606 F 2d
899 (9th Cir 1979) cert denied 445 US 950
(1980)]
In Williams Enterprises the Board said at 885
The Board has held that an 8(f) contract carries
with it no irrebuttable presumption of representative
status and that therefore in the absence of specific
proof of the Union s majority representation an em
ployer may validly cancel an 8(f) contract during its
term R J Smith Construction Co 191 NLRB 693
Ye However a member who has been laid off by a particular employer
is permitted to return to work with that employer if the member has not
signed the out of work list during his layoff
21 The General Counsel s rather sketchy posthearing brief only touches
this issue and cites only Wayne Electric 226 NLRB 409 (1976) a pre
Higdon case although company counsel cited Higdon during the hearing
In Higdon however the Supreme Court substantially followed the
Board s prior 8 (t) interpretations
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[1971] reversed and remanded sub nom Local 150
International Union of Operating Engineers AFL-
CIO v NLRB 480 F 2d 1186 (C A D C 1973) 8
However there are exceptions to that general
principle Thus the doctrine is applicable only to
initial 8(f) agreements and not the succeeding con
tracts Bricklayers and Masons International Union
Local No 3 (Eastern Washington Builders) 162
NLRB 476 477-479 [(1966) enfd 405 F 2d 469 (9th
Cir 1968)] Dallas Building and Construction Trades
Council (Dallas County Construction Employers As
sociation) 164 NLRB 938 943 [(1967) enfd 396
F 2d 677 (D C Cir 1968)] 9
In the instant case as has been seen the 1972
contract was not an initial 18(f) agreement It was
not therefore terminable at will
Secondly the doctrine is not applicable where
there is independent proof of a union s majority as
here Such proof has been found in compliance with
a valid union security clause in the contract Thus
the Board has held with judicial approval that
where the members of the appropriate u'ut were
members of the contracting union by reason of
compliance with a union security clause in the 8(f)
contract the union s majority status continued and
the employer was obligated to continue to recog
nize and deal with it David F Irvin and James B
McKelvy partners d/b/a The Irvin McKelvy Compa
ny 194 NLRB 52 [1971] set aside 475 F 2d 1265
(C A 3 1973) 10 In the instant case as we have
seen the contract contained a valid union security
clause
projects to take any unilateral action with respect to wages
hours or conditions of employment or to withdraw recognition
and confer it on another union [Footnote omitted l
However other Board decision that postdate the Su
preme Court s Higdon decision (although they precede
Bryant) have adopted a somewhat different approach
Thus in Carmichael Construction Co 258 NLRB 226
(1981) enfd 728 F 2d 1137 (8th Cir 1984) the Board ex
pressly disavowed the administrative law judge s state
ment (in which he cited inter alia Williams supra 212
NLRB at 885) that the execution of the succeeding con
tracts makes Section 8(f) irrelevant and therefore raise
the presumption that the Union was the majority repre
sentative of the unit employees Rather in finding that
the respondent construction industry employers violated
Section 8(a)(5) by withdrawing recognition from the
union the Board noted the absence or record evidence
that either the initial or any of the subsequent agreements
was a prehire agreement under Section 8(f) the absence
of record evidence that the union did not enjoy majority
support prior to the execution of the initial agreement or
at any time subsequent thereto and the employers state
ment that their withdrawal or recognition was based on
the belief that the union had ceased to represent a ma
jority In G M Masonry Co 245 NLRB 267 (1979) the
Board adopted (with exceptions not material at this
point) an administrative law judge s decision that reject
ed the contention that Section 8(f) is applicable only to
initial contracts Regarding Eastern Washington Builders
supra 162 NLRB 476 and Dallas County Construction
supra 164 NLRB 938 (both relied on in Williams and
through Williams in Bryant) the judge s decision stated
at 271
8 Cf Oilfield Maintenance Co Inc 142 NLRB 1384 1387
[1963) where the Board held an employer bound by an 8(f) con
tract until its termination date
9 In the Dallas Building Trades case the Board said
Even if we assume arguendo that the agreements in question
here were of a type that would in other circumstances be un
lawful but for the provisions of Section 8(f) it does not follow
that successive renewals of such agreements would be subject
to the second proviso to Section 8(f) The Associations con
tracts with local labo organizations here were not initial agree
ments but the latest fruits of continuing bargaining relationships
dating back as far as 1948 As we recently pointed out in Brick
layers & Masons International Union Local No 3 (Eastern Wash
ington Builders) the legislative history of Section 8(f) re%eals
that the Congress envisioned its prehire provisions as applying
only to the situation where the parties were attempting to es
tablish a bargaining relationship for the first time In the Brick
layers case we held that the duty to bargain in good faith not
applicable to initial negotiations for an 8(f) contract was en
forceable during negotiations for a renewal A parallel situation
obtains here Under normal contract bar rules therefore no
question concerning representation could have been raised in
this case during the period of the agreements material herein
See also Mishara Construction Company 171 NLRB 471 [1968]
and Island Construction Co Inc 135 NLRB 13 [1962]
io Thus the Board said in the Irvin case at p 53
Although we have held that an 8 (f) contract standing alone
creates no presumption of majority status in the instant case it
is conceded that all of Respondent s unit employees were mem
bens of District 50 by virtue of compliance with the union secu
rity clause in the contract Therefore District 50 was still the
representative of employees working on projects which carried
over after March 31 where District 50 had majority status and
Respondent was thus obligated to negotiate with District 50
over the employees on these projects It was not free at those
The Board did not in either case focus on the
question of the majority status of the unions in
volved vis a vis the bargaining units in question
While it is true that in each case the Board suggest
ed that the provisions of Section 8(f) were not ad
dressed to the types of successive bargaining rela
tionships therein involved it also appears that the
Board assumed that the unions were the majority
representatives in each unit based on the evidence
reflecting an unbroken history of successive collec
tive bargaining agreements which had been succes
lively honored Under such circumstances a majori
ty of employees covered by a given union con
tract will ordinarily be members of the union in
volved by the employers routine resort to the
union s hiring hall and routine application of the
union security clause if for no other reasons Ac
cordingly I do not read those cases as creating a
jural presumption of the type urged by the General
Counsel herein
Under the limited criteria suggested in Bryant the bar
gaining agreements in effect in late June 1982 were not
terminable at will because both of them were succeeding
agreements 28 Accordingly beginning about July 1982
28 Although the Respondent corporations brief suggests otherwise the
Higdon contract was not a succeeding agreement in the sense used in
Continued
BUFCO CORP 1031
Corbett violated Section 8(a)(5) and (1) by dishonoring
these agreements withdrawing from the`Association and
withdrawing recognition from the Union The same
result is called for by the approach pointed to in Carmi
chael Construction and G M Masonry supra Thus there
is no evidence that the Union was not the 9(a) represent
ative of a majority of the employees in the respective
multiemployer units in 1947 and 1968 when the Union
and the Association executed their initial contracts cov
enng such units Nor is there any evidence that the
Union was not such a representative at any time thereaf
ter including the 1973 dates when Bill Corbett executed
the letters of assent and the periods before the execution
of the 1981-1983 and 1982-1985 contracts Further there
is no evidence that the Union did not enjoy majority
support among Bill Corbett s employees when such let
ters of assent were signed Indeed Corbett Electric has
never claimed that its June 1982 action in withdrawing
recognition and disavowing the contracts was based on
any belief that the Union did not represent a majority of
Association employees or Corbett Electric employees
Rather Bill Corbett testified that he took such action be
cause he did not believe that Corbett Electric could op
erate profitably while adhering to the terms of these
agreements Except for Corbett Electric s conduct after
its purported withdrawal from the Association the Asso
ciation members had honored these bargaining agree
ments so far as the record shows throughout their re
spective terms Moreover the employees in both multi
employer units had been subject for at least lG years to
union shop and exclusive hiring clauses and to the oper
ation of a hiring hall that referred employees to only em
ployers that had contracts with the Union At least the
hiring hall clauses included in the 1982-1985 inside
agreement and the 1981-1983 residential agreement were
so drawn as to create a relatively stable labor pool from
which Association members hired unit employees The
foregoing evidence establishes that as to the two multi
employer units (both of them including Corbett Elec
tric s employees) admittedly appropriate until Corbett
Elecric s purported withdrawal from the Association the
Union had achieved 9(a) status long before the execution
of the 1981-1983 residential agreement and has retained
that status at all times thereafter
Because of my finding that the Union occupied 9(a)
status regarding the contract units at the time that the
two Association agreements were executed the rationale
of Dee Cee Floor Covering 232 NLRB 421 (1977) is irrel
evant G M Masonry supra 245 NLRB 267 at fn 1 of
the Board s decision Likewise irrelevant is the court s
opinion in Irvin McKelvy supra 475 F 2d at 1268-1270
because both of these agreements are term agreements
and not project agreements
Williams and Bryant In Higdon the parties prior agreement executed
under Sec 8(f) had expired 7 months before the execution of the dishon
ored contract and the union never claimed to represent a majority of
Higdon s employees See the Board s decision 216 NLRB 45 (1975) and
the court of appeals opinion 535 F 2d 87 88-89 (D C Cir 1976) Cf
G M Masonry supra 245 NLRB at 271-272 involving a 1 year hiatus
DAngelo & Khan Inc 248 NLRB 396 (1980)
3 Whether Section 8(a)(5) and (1) of the Act was
violated through Bufco
Because Bufco was the alter ego of Corbett Electric it
may be doubted whether the 8(a)(5) allegations of the
complaint would be subject to the defense as to employ
ees on Bufco s payroll that the contract units had
become inappropriate to the extent that they included
such employees See Pratt Farnsworth supra 690 F 2d at
507-509 Advance Electric supra Nelson Electric 241
NLRB 545 552-553 (1979) enfd 638 F 2d 965 (6th Cir
1981) but see Ben s Construction Co 267 NLRB 1118
(1983) In any event I find that the appropriate units in
elude Bufco s employees Regarding the period before
Corbett Electric s purported resignation from the Asso
ciation the appropriate units admittedly included Corbett
Electric s employees Bufco s employees performed the
same kind of work as had Corbett Electric s employees
using the same equipment at the same location and con
tinued to be supervised by Mark and Bill Corbett As
had been the practice under Corbett Electric the inside
electrical work continued to be performed ordinarily by
different employees from those who performed the rest
dential work
Accordingly I find that Bufco and Corbett Electric
violated Section 8(a)(5) and (1) of the Act when Bufco
admittedly failed at all times after beginning operations
about January 1983 to recognize the Union or abide by
the contracts including without limitation making the
contractually required fringe benefit payments There is
no evidence that Bufco as such ever refused to recognize
the Union or abide by the contracts as alleged in Section
9(a) and (b) of the complaint This is immaterial howev
er because Corbett Electric did so refuse
4 The alleged unlawful transfer of work
As previously found Corbett Electric violated Section
8(a)(5) and (1) by withdrawing recognition from the
Union and dishonoring the bargaining agreements Fur
ther Bufco is Corbett Electric s alter ego and was estab
lished for giving a semblance of legitimacy to the oper
ation of the business on a nonunion basis The record
shows that Corbett Electric s 1983 jobs were performed
through employees on Bufco s payroll that Corbett
Electric paid Bufco for their services and that the wages
and fringe benefits of employees on Bufco s payroll were
not those called for by the bargaining agreements I infer
that such work was transferred to Bufco to avoid Cor
bett Electric s obligations under the bargaining agree
ments and that therefore such conduct constituted vio
lations by Corbett Electric and Bufco of Section 8(a)(1)
and (3) of the Act Moreover I find that such transfers
also violated Section 8(a)(5) because they were effected
without giving the Union notice or an opportunity to
bargain about them and without obtaining the Union s
consent Farmingdale Iron Works 249 NLRB 98 107-108
(1980) enfd 661 F 2d 910 (2d Cir 1981) Wintz Motor
Fright 265 NLRB 922 (1982) 29
29 The General Counsel does not appear to contend that Corbett Elec
tnc s transfer of this work would violate Sec 8(a)(5) even assuming that
Continued
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III ULTIMATE CONCLUSIONS REGARDING
JURISDICTION
An employer is engaged in commerce within the
meaning of the Act if it is a member of an association
that bargains for its members on a multiemployer basis
and that if that association includes a member who is en
gaged in commerce within the meaning of the Act
NLRB v O Keeffe Electric Co 391 F 2d 589 (9th Cir
1968) Nelson Electric supra 241 NLRB at 550-155
Such an employer meets the Board s jurisdictional stand
ards if the associations members in the aggregate
engage in operations that meet the Board s jurisdictional
standards for a single employer Insulation Contractors of
Southern California 110 NLRB 638 (1954)
It has been found that Corbett Electric and (by reason
of alter ego status with Corbett Electric) Bufco has been
a member of the Association and bound by its collec
tive bargaining agreements with the Union at all maten
a] times on and after June 28 1982 when the unfair
labor practices began The parties stipulated to facts that
establish that between October 31 1982 and the date of
the hearing another member of the Association Swan
son Nunn was engaged in commerce within the meaning
of the Act and made out of state purchases of sufficient
magnitude to meet the Board s jurisdictional standards
The record is silent as to Swanson Nunn s operations be
tween June 28 and October 31 1982 However I regard
the record evidence as warranting a finding that Corbett
Electnc/Bufco is subject to the Board s statutory ,funs
diction and meets the Board s jurisdictional standards I
note the absence of any evidence or claim that Swanson
Nunn made interstate purchases at a lower rate in July-
October 1982 than during the 12 months following and
that the unfair labor practices continued at least through
October 1983 See Langlade Veneer Products Corp 118
NLRB 985 986 (1957) Montex Drilling Co 122 NLRB
139 (1958) Calera Mining Co 97 NLRB 950 951-952
(1962) H J Barton 78 NLRB 431 432 (1948)
CONCLUSIONS OF LAW
1 Corbett Electric and Bufco are alter egos constitute
a single employer and as such are engaged in com
merce within the meaning of Section 2(6) and (7) of the
Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 The following unit is appropriate for collective bar
gaining purposes within the meaning of Section 9(b) of
the Act
The following employees of the employer members
of the Association including Corbett Electric and
Bufco All journeymen wiremen apprentice wire
men and foremen encompassed within the unit de
scribed in the collective bargaining agreement be
tween the Union and the Association effective be
tween June 10 1982 and March 31 1985
Bufco were not an alter ego Cf Fireboard Corp v NLRB 379 U S 203
(1964) Otis Elevator Co 269 NLRB 891 (1984) Both bargaining agree
ments forbid subcontracting of on site work to nonunion firms
4 The following unit has been appropriate for collec
tive bargaining purposes within the meaning of Section
9(b) of the Act until at least September 30 1983 and at
all times thereafter unless and until Corbett Elecnc/
Bufco shall have given proper notice to terminate mem
bership in the Association and then to the expiration of
any then current agreement covering such employees
The following employees of the employer members
of the Association including Corbett Electric and
Bufco All journeymen wiremen foremen and
trainees encompassed within the collective bargain
ing agreement between the Association and the
Union effective between October 1 1981 and Sep
tember 30 1983
5 At all times material the Union by virtue of Sec
tion 9(a) of the Act has been and is the exclusive bar
gaining representative of the employees in the unit de
scribed above in Conclusions of Law 3 for the purpose
of collective bargaining concerning rates of pay wages
hours of employment and other terms and conditions of
employment
6 The Union by virtue of Section 9(a) of the Act has
been the exclusive bargaining representative of the em
ployees in the unit described above in Conclusion of
Law 4 for the purpose of collective bargaining concern
ing rates of pay wages hours of employment and other
terms and conditions of employment at all material times
until September 30 1983 and at all times thereafter
unless and until Corbett Electric/Bufco shall have given
proper notice to terminate membership in the Associa
tion and then to the expiration of any then current agree
ment covering such employees
7 Corbett Electric/Bufco through Corbett Electric
has violated Section 8(a)(5) and (1) of the Act by submit
ting about June 10 1982 a purported revocation of Cor
bett Electric s membership in the Association by notify
ing the Union about July 2 1982 that Corbett Electric
was canceling its assent to the two collective bargaining
agreements between the Union and the Association by
refusing since about July 2 1982 to abide by such agree
ments by withdrawing recognition of the Union about
July 2 1982 as the exclusive collective bargaining repre
sentative of the employees in the units described in Con
clusions of Law 3 and 4 by discontinuing about July 2
1982 contractually required payments to benefit plans on
behalf of employees in such units and by changing such
employees contractually specified wage rates without
prior notice to the Union without having afforded the
Union an opportunity to bargain regarding such matters
and without the Union s having agreed to such conduct
8 Beginning about January 1 1983 Corbett Elec
tnc/Bufco through Bufco has violated Section 8(a)(5)
and (1) of the Act by failing to recognize the Union as
the exclusive bargaining representative of the units de
scribed in Conclusions of Law 3 and 4 and abide by the
two collective bargaining agreements between the Asso
ciation and the Union including the obligation to make
contractually required benefit payments
9 Corbett Electric/Bufco has violated Section 8(a)(3)
(5) and (1) of the Act by transferring electrical work
BUFCO CORP
from Corbett Electric to Bufco to avoid obligations
under the two collective bargaining agreements between
the Association and the Union without giving the Union
notice or an opportunity to bargain over the transfer
and without the Union s consent
10 The unfair labor practices described in Conclusions
of Law 7 8 and 9 affect commerce within the meaning
of the Act
THE REMEDY
Having found that Corbett Electric/Bufco has en
gaged in certain unfair labor practices I shall recom
mend that such corporations be required to cease and
desist therefrom and from like or related conduct
Affirmatively Corbett Electnc/Bufco will be required
to recognize and bargain with the Union as the repre
sentative of all Corbett Electric/Bufco employees in the
two appropriate units to give retroactive effect to the
1981-1983 and 1982-1985 Association union agreements
covering these units and to give retroactive and pro
spective effect to any subsequent Association union
agreements covering these units unless and until Corbett
Electric/Bufco shall have given proper notice to termi
nate membership in the Association and then to the expi
ration of such agreements See Nelson Electric supra 241
NLRB at 553 General Printing Co 263 NLRB 591
(1982) t
Also Corbett Electnc/Bufco will be required to make
employees whole for any losses sustained by them by
reason of the failure to honor the terms and conditions of
the, collective bargaining agreements less any payments
made under the settlement In addition Corbett Elec
tric/Bufco will be required to reimburse the Union for
any dues that were not deducted from the paychecks of
employees who had executed checkoff authorizations
4
.. t
1033
and transmitted to the Union as required by the collec
tive bargaining agreements which must be honored
under this Order insofar as the Union has not obtained
such dues directly from employees Ortiz Funeral Home
Corp 250 NLRB 730 731 (1980) enfd 651 F 2d 136 (2d
Cir 1981) cert denied 455 U S 946 (1982) Loss of
wages is to be calculated in the manner prescribed in
F W Woolworth Co 90 NLRB 289 (1950) Interest on
all the payments to be specified in this paragraph is to be
paid as prescribed in Florida Steel Corp 231 NLRB 651
(1977) see generally Isis Plumbing Co 138 NLRB 716
(1962)
In addition Corbett Electnc/Bufco will be required to
make whole the various fringe benefit funds for any con
tributions required to be paid under the terms of the col
lective bargaining agreements less any payments already
made under the settlement The amount of contributions
is to be determined in accordance with Merryweather Op
tical Co 240 NLRB 1213 1216 fn 7 (1979)
In addition Corbett Electric/Bufco will be required to
post appropriate notices Because some of the benefici
aries of the Order may be employees who will never
work for Corbett Electric/Bufco but who work out of
the Union s hiring hall and would have been referred to
jobs with Corbett Electric/Bufco if the bargaining agree
ments had been honored Corbett Electric/Bufco will be
required to furnish signed copies of the notice to the Re
gional Director for posting by the Union if it is willing
at all locations where notices to employees who work
out of the hiring hall are customarily posted 30
[Recommended Order omitted from publication ]
30 I note that the bargaining agreements which forbid discrimination
against nonmembers in referral require the Union to post the referral
procedures on the bulletin board in its offices