Consumers Asphalt & Concrete Co. And Buchanan Asphalt

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 749 (N.L.R.B. 1989)

CONSUMERS ASPHALT CO.
Consumers Asphalt & Concrete Co. and Buchanan
Asphalt; John Kinney, III and Local No. 7,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO and Local No. 324, International
Union of Operating Engineers , AFL-CIO.
Cases 7-CA-20916, 7-CA-21148, 7-CA-
21501, and 7-CA-21554
June 15, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN, CRACRAFT, AND
DEVANEY
On May 8 , 1984, Administrative Law Judge
Wallace H. Nations issued the attached decision.
The General Counsel and the Charging Party,
Local No . 324, International Union of Operating
Engineers , AFL-CIO (Operating Engineers), filed
exceptions and supporting briefs, and the Respond-
ents filed cross-exceptions , a supporting brief, and
an answering brief.
Thereafter, on July 11 , 1985, the Board remand-
ed the proceeding to the judge for further consid-
eration of certain 8 (a)(1), (3), and (5) allegations of
the third amended consolidated complaint and for
issuance of a supplemental decision.
On April 18, 1986, the judge issued the attached
supplemental decision. The General Counsel and
the Respondents filed exceptions and supporting
briefs, and the Charging Party Operating Engineers
filed cross-exceptions, a supporting brief, and a
brief in opposition to the Respondents ' exceptions.
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,' and
conclusions as modified and to adopt the recom-
mended Order as modified.
I. THE 8(A)(5) AND ( 1) ALLEGATIONS
The judge found, and we agree , that Respondent
Buchanan Asphalt (Buchanan) is an alter ego of
Consumers Asphalt & Concrete Co. (Consumers).2
1 The Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings.
2 In light of our alter ego finding, we find it unnecessary to pass on the
single-employer status of Buchanan and Consumers Although we find
that Respondent John J. Kinney III, is an agent, officer, and sole share-
holder of Respondents Consumers Asphalt & Concrete Co and Buchan-
an Asphalt and that he participated in each of the unfair labor practices
found herein, it is not alleged, nor do we find, that either company is an
749
Consumers transferred employees from its payroll
to that of its alter ego Buchanan in order to evade
obligations under a collective-bargaining agreement
with Charging Party Local No. 7, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America , AFL-CIO (Team-
sters), with whom it had a 9(a) relationship , and re-
pudiated that contract in violation of Section
8(a)(5) and (1) of the Act. We further agree with
the judge that the transfer of employees was also
accomplished to evade obligations under the 8(f)
prehire agreement with Charging Party Operating
Engineers, that the Respondents repudiated the
collective-bargaining agreement then in effect by
virtue of the 8(f) relationship, and that the Re-
spondents have failed since June 20, 1982, to the
end of the term of that agreement , June 1 , 1983, to
pay employees represented by the Operating Engi-
neers a wage increase due under the terms of that
agreement . We base our findings concerning the
Operating Engineers agreement , 3 however, not on
precedent cited by the judge, but on John Deklewa
& Sons, 282 NLRB 1375 (1987), enfd. 843 F.2d 770
(3d Cir. 1988), which issued after both the judge's
original and supplemental decisions.
It is undisputed that the Respondent Consumers
entered into its relationship with the Operating En-
gineers pursuant to Section 8(f) of the Act. In
Deklewa, the Board overruled R. J. Smith Con-
struction , 191 NLRB 693 (1971), enf. denied sub
nom. Operating Engineers Local 150 v. NLRB, 480
F.2d 1186 (D.C. Cir. 1973), abandoned the conver-
sion doctrine , and modified unit-scope rules in 8(f)
alter ego of Respondent Kinney. Accordingly , we find that the General
Counsel has not demonstrated that Kinney committed any act as an indi-
vidual that would justify piercing the veil of the corporate Respondents
and finding Kinney personally liable for the unfair labor practices com-
mitted under the principles set forth in Riley Aeronautics Corp., 178
NLRB 495 ( 1969), and Chef Nathan Sez Eat Here, Inc., 201 NLRB 343
(1973).
Member Devaney , while not agreeing with all of his colleagues' com-
ments, agrees that on the particular facts of this case , a finding of person-
al liability on Kinney's part is not warranted.
0 Even assuming Buchanan was not found to be an alter ego of Con-
sumers, we would adopt the judge's alternative finding that the establish-
ment of Buchanan nevertheless violated Sec 8(a)(5) and ( 1) of the Act, as
Buchanan was established without notice to or bargaining with the
Charging Party Unions concerning either the transfer decision or its ef-
fects. We find , contrary to the judge 's recommended Order, but consist-
ent with his finding that the transfer of operations was a mandatory sub-
ject of bargaining, that the Respondents were obligated to bargain over
not only the effects but the decision to transfer operations In adopting
the judge's conclusion that the decision to transfer operations was a man-
datory subject of bargaining, we rely on Otis Elevator Ca, 269 NLRB
891 (1984), not on Milwaukee Spring Division, 268 NLRB 601 (1984), enfd.
sub nom . Automobile Workers v. NLRB, 265 F.2d 175 (D.C. Cir. 1985),
also cited by the judge for that proposition We further find the judge's
conclusion supported by any of the views expressed in Otis Elevator.
Member Cracraft finds it unnecessary to rely on the alternative ration-
ale of Otis Elevator. Rather, she relies solely on the alter ego theory in
finding the transfer of operations unlawful.
295 NLRB No. 77
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cases. The Board decided to apply the following
principles (Deklewa, supra at 1377-1378):
(1) a collective-bargaining agreement permit-
ted by Section 8(f) 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 employer's 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(f) bargaining relationship.
We disagree with the Respondents' contention
that their agreement with the Operating Engineers
could be repudiated at will because of an inad-
equate showing of majority support. That argu-
ment is premised on the continued application of
the conversation doctrine, which Deklewa abol-
ished. Deklewa further held, however, that "[i]n
light of the legislative history and the traditional
prevailing practice in the construction industry," in
which the Respondent is engaged, "we will require
the party asserting the existence of a 9(a) relation-
ship to prove it."4
Respondent Consumers and the Operating Engi-
neers entered into an 8(f) agreement in October
1962. Respondent Consumers agreed to be bound
by the most current collective-bargaining agree-
ment negotiated by the Operating Engineers with
the Associated General Contractors of America,
the Steel & Metal Erectors Association, the Under-
ground Contractors Association, and the Michigan
Road Builders Association, subject to automatic re-
newal in the absence of notice of intent to amend
or terminate it. There is no contention that the
agreement was ever amended or terminated in the
manner contemplated by the parties.5
Nor is there a showing that the Operating Engi-
neers achieved full 9(a) status among the Respond-
ents' employees on a single-employer basis. As ex-
plained in Deklewa, that showing is accomplished
only by traditional means, i.e., a Board election or
voluntary recognition based on a prior demand for
recognition with majority employee support. Con-
trary to the judge, we do not find support in the
record for a finding that voluntary recognition was
4 Deklewa, supra at 1385 fn. 41
S Although Deklewa permits a party to repudiate its 8(f) relationship on
the expiration of a bargaining agreement , there is no evidence that Re-
spondent Consumers effectively repudiated its relationship or agreement
with the Union Accordingly, we leave to compliance the determination
whether Respondent Consumers is bound to subsequent or successor
agreements under the principles of Deklewa.
ever extended to the Operating Engineers by the
Respondents. Nor is there any contention that the
Operating Engineers attained 9(a) status by certifi-
cation pursuant to a Board election.
Under the Deklewa principles, the June 1980-
1983 agreement was "binding, enforceable, and not
subject to unilateral repudiation"6 by the Respond-
ents. The Operating Engineers, however, enjoyed
no presumption of majority status following the
contract's expiration, June 1, 1983, and thus at that
point the Respondents were free to repudiate the
8(f) bargaining relationship. Accordingly, we find
that the Respondents have violated Section 8(a)(5)
and (1) of the Act by failing to apply the 1980-
1983 agreement to the Buchanan project and by re-
fusing on June 20, 1982, and thereafter to imple-
ment a wage increase for their Operating Engineers
employees, thereby repudiating the terms of the
1980-1983 contract during the contract term. We
grant the General Counsel's exception to the
judge's failure to include a make-whole remedy for
employees covered by both contracts, but in view
of the term of Operating Engineers' contract under
Deklewa, shall limit the make-whole remedy ac-
cordingly.7
We also find, in agreement with the judge, that
the Operating Engineers were unlawfully denied
their request for an audit of the Respondents' pay-
roll records to verify the Respondents' compliance
with the 1980-1983 contract to which they were
bound under Deklewa.8 We modify the judge's
legal conclusions to reflect Buchanan's joint liabil-
ity as an alter ego of Consumers for this unfair
labor practice.
II. THE 8 (A) (3) AND (1) ALLEGATIONS
In late June or early July 1982, the Respondents
offered employee Thomas Skidmore work with Bu-
chanan that was covered by the 8(f) contract with
the Operating Engineers but at noncontractual
wages and benefits. Skidmore refused the job with
Buchanan because of the reduced wages and bene-
fits and told the Respondents' president, John
Kinney, that he had worked for Consumers for 15
years and did not wish to work for a nonunion op-
eration. By that offer the Respondent effectively
presented Skidmore with a Hobson's choice be-
tween work with lower wages and benefits than
agreed to or no employment at all. His subsequent
6 Deklewa , supra at 1389.
7 We have also adopted the judge's finding that there is no clear show-
ing that Charging Party Operating Engineers was made aware of any
failure on the Respondents' part to make fringe benefit contributions re-
quired under the 1980-1983 agreement.
8 See Kephart Plumbing, 285 NLRB 612 (1987).
CONSUMERS ASPHALT CO.
layoff therefore violated Section 8(a)(3) of the Act,
as alleged.9
As found by the judge , employee Hurley Skid-
more, also represented by the Operating Engineers,
was offered a managerial position at the Buchanan
operation in late June 1982, while he was on layoff
from Consumers . Skidmore refused the position be-
cause it was at a lower rate of pay than he was en-
titled to contractually as a rank-and-file employee
and because it offered him no benefits . Skidmore
was not subsequently offered work for the term of
the Buchanan project . There is no contention that
the position Skidmore was offered was anything
other than a managerial position , for which the Re-
spondent had no obligation to offer contractual
wages and benefits , or that the creation of that po-
sition was a sham to avoid payment of contractual
wages and benefits on the Buchanan project. Nev-
ertheless , the judge found unlawful the Respond-
ent's failure to offer Skidmore employment at the
contractual wage rate "when work which Skid-
more was qualified to do was available ." Similarly,
the General Counsel argues that the Respondent
violated Section 8(a)(3) of the Act by offering
Skidmore a job outside the bargaining unit at a rate
below that to which bargaining unit employees
were contractually entitled and that the Respond-
ent's offer of the nonunit job to Skidmore shows
that unit work was available.
We find these arguments without merit. The
contractual wage rate does not apply to employees
in positions outside the bargaining unit that the
contract covers . Further, the existence of an open-
ing for a managerial position does not show that
bargaining unit work is available . Moreover, there
is no allegation that the contract required employ-
ees to be laid off or recalled on the basis of seniori-
ty or that the Respondent unlawfully failed to do
so. Accordingly , we dismiss the allegation that the
Respondent 's failure to offer Hurley Skidmore em-
ployment at the contractual wage rate violated the
Act.
III. THE 8 (A)(4) ALLEGATIONS
In his original decision , the judge found that the
Respondents did not violate Section 8 (a)(4) of the
Act by laying off employees for 3 days on Septem-
ber 7 , 1982 . The judge found that the layoff was
caused by a lack of work rather than in retaliation
for the refusal of employees represented by the
Teamsters to drop the 8(a)(1), (3), and (5) charges
filed by their Union in July over the transfer of
employees from Consumers to Buchanan . We dis-
agree.
See White-Evans Service Ca, 285 NLRB 81 (1987).
7,51
We have adopted the judge's finding that the Re-
spondents violated Section 8(a)(1) by conditioning
its acceptance of midterm concessions on with-
drawal of charges by Teamsters-represented em-
ployees. Immediately before the announcement of
the September layoff, employees took a vote on
concessions demanded by Kinney and on whether
to withdraw the charges. The employees voted to
accept the contract concessions but not to with-
draw the charges. As found by the judge based on
the credited testimony of Teamsters representative
Alan Sprague , Kinney, on learning of the employ-
ees vote, responded, "if the charges cannot be
dropped, then we don't have a deal. That's all part
of the deal, the relief. As far as I'm concerned no-
body's working today." At that point, Kinney an-
nounced to employees that "there's no work.
We're closing the doors," told Sprague that he had
"just put 'em all out of a job," and ordered Spra-
gue to leave.
Even Kinney's own testimony does little to rebut
the General Counsel's evidence of unlawful moti-
vation. Thus, Kinney himself described his reaction
to the vote against withdrawing charges in these
terms:
KINNEY : I was still trying to clean up the
entire program. Legal or illegal , I asked to
drop all of the problems of the past , clean up
the thing , and we 'd go from there . The Team-
ster informed me that he would not drop the
labor charges . They would drop everything or
concede to the wages, etc., but they would not
drop the labor charges.
Q. What happened next?
KINNEY: Well, next after that I accepted it
and told Al Sprague to remove himself from
the premises ....10
Kinney also acknowledged having been upset at
this point in his discussions with Sprague . We find
ample evidence in this record to support a finding
that the employees ' refusal to withdraw their
charges was a motivating factor in the ensuing
layoff.
We disagree with the judge 's acceptance of the
Respondents ' asserted justification for the Septem-
ber layoff. First, the Respondents contend that
until a "soft spot" in the pavement on a current
project at Andrews University could be reprepared
for asphalt by an independent construction compa-
ny, there would be no work on that project; that
Kinney did not become aware of that condition
10 Kinney continued that he then reviewed his calendar and deter-
mined based on the state of current projects that work would have to be
interrupted until September 30.
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
until some time during the previous weekend; and
that he was unaware of the state of other projects
until he checked his calendar on Tuesday, Septem-
ber 7, after his discussions with Sprague . Second,
the Respondents explain their decision to allocate
available work in terms of a "practice" of denying
holiday pay to employees in a period of economic
hardship when they could conserve resources in a
way consistent with their contractual obligations. )1
We find these assertions to be pretextual.
The General Counsel adduced testimony from
employees of long tenure with the Company-one
as long as 18 years-that until September 7, 1982,
they had never been sent home after reporting to
work barring adverse weather conditions . 12 Fur-
ther, even assuming Kinney testified truthfully that
he became aware for the first time the previous
weekend that the Andrews University project
would be held in abeyance until the soft spot could
be prepared and therefore could not inform em-
ployees of an imminent layoff the previous Friday,
this fails to show why he made no announcement
regarding a layoff until precisely the time on Sep-
tember 7 that he learned of the vote against with-
drawing charges.' 3 Thus, to the extent that the Re-
spondents cite to support a "practice" two occa-
sions in which layoffs had been scheduled at times
adjacent to holidays, they cannot be found to have
acted consistently with any such practice after the
Labor Day 1982 holiday. Indeed , Sprague testified
without contradiction (and without objection to his
testimony 's admissibility) that employees had been
laid off previously when other charges had been
filed with the Board, suggesting that the September
layoff was consistent with a much different prac-
tice from the one urged by the Respondents to jus-
tify their action-one suggesting an unlawful
i i Labor Day was celebrated on Monday , September 6, 1982 . The de-
cision to lay employees off was made on the following day, and the
layoff lasted from that day , Tuesday , September 7, until Thursday, Sep-
tember 9 . Work resumed on Friday, September 10. According to the Re-
spondents , with operations suspended on the Andrews University project,
there remained on Tuesday, September 7, only I day of work, which
could be performed that day or the following Friday, September 10.
Kinney testified that he chose September 10 over September 7 because,
under the collective-bargaining agreement with the Teamsters , the Re-
spondents were relieved of any obligation for holiday pay if employees
did not work the day preceding or following the holiday.
12 Indeed, the only evidence suggesting otherwise was from an em-
ployee who contributed that , though he had been sent home before, it
had never been for that long a time.
is Kinney testified that if he had known of the conditions of current
projects on Friday evening he would have announced the layoff then.
According to Kinney , such conditions included not only the state of the
Andrews University project , but also , as reflected on his calendar , infor-
mation that his next job (for the Berrien County Road Commission)
needed manholes to be raised before asphalt could be laid. In view of the
Respondents ' contention that they seek to schedule layoffs around holi-
days, we are not persuaded that Kinney would have had insufficient in-
formation on hand on which to base a decision regarding a layoff until
the convenient moment following news of the employees' vote when he
apparently claims to have first examined his calendar.
motive . 14 Accordingly , we reject the Respondents'
contention that they would have laid the employ-
ees off regardless of their determination to seek res-
olution of their charges before the Board.
THE REMEDY
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 recognize
and bargain with Teamsters Local 7 (a 9(a) repre-
sentative) as the exclusive bargaining representative
of employees in the following unit:
All drivers and mechanics employed by the
Respondents at or out of their Benton Harbor,
Michigan, place of business but excluding
office clerical employees , guards, and supervi-
sors as defined in the Act.
Having found that the Respondents unlawfully
transferred employees from Consumers to Buchan-
an to evade obligations under collective -bargaining
agreements and that they unlawfully denied a wage
increase due under the 1980-1983 agreement with
the International Union of Operating Engineers,
Local No . 324, we shall also order the Respond-
ents to make whole, as prescribed in Ogle Protection
Services, 183 NLRB 682 (1970), and Kraft Plumb-
ing, 252 NLRB 890 (1980), employees for any
losses they may have suffered as a result of the Re-
spondents ' failure to adhere to the 1980-1983
agreement and any successor agreement with the
International Union of Operating Engineers, Local
No. 324, and to the collective-bargaining agree-
ment with Teamsters Local 7, since June 1982, less
net interim earnings, with interest, as computed in
the manner prescribed in New Horizons for the Re-
tarded.ls
Having found that the Respondents unlawfully
laid off employees from September 7, 1982 , to Sep-
tember 9 , 1982, in retaliation for their refusal to
withdraw charges before the Board, we shall order
14 We also reject the Respondents ' suggestion that they may be justi-
fied in calling a layoff so long as the action includes everyone and not
only the employees who participated in the vote to withdraw the
charges. Where, as here , there is strong evidence of animus against the
filing of charges and where explanations given for the timing of the
layoff are not credible , the fact that more than solely those employees
who engaged in protected activity are the objects of retaliation does not
preclude a finding of discriminatory intent . See, e.g., Alliance Rubber Ca,
286 NLRB 645 (1987).
ib 283 NLRB 1173 (1987).
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 with re-
spect to fringe benefit and pension funds shall be determined in accord-
ance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn . 7 (1979).
CONSUMERS ASPHALT CO. 753
that they make employees whole for any losses
they may have suffered because of the layoff by
payment to them of a sum of money equal to the
amount they would have earned in wages and
other benefits during the term of the layoff, less net
interim earnings . The amount of backpay for the
layoff shall be calculated in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest to be computed in the manner prescribed in
New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that
the Respondents, Consumers Asphalt & Concrete
Co. and Buchanan Asphalt, Benton Harbor, Michi-
gan, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Transferring employees from the payroll of
Respondent Consumers Asphalt & Concrete Co. to
that of Respondent Buchanan Asphalt in order to
evade terms of their collective-bargaining agree-
ments with Local No. 7, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO, and with Local
324, International Union of Operating Engineers,
AFL-CIO, during the 1980-1983 term of the latter
agreement.
(b) Repudiating the terms of their collective-bar-
gaining agreement with Charging Party Teamsters
and, during the term of the 1980-1983 agreement,
with Charging Party Operating Engineers, by fail-
ing to apply the provisions of those agreements to
employees while they worked on Respondent Bu-
chanan's payroll.
(c) Refusing to implement a wage increase for
employees represented by Charging Party Operat-
ing Engineers during the term of the 1980-1983
collective-bargaining agreement.
(d) Refusing to submit to an audit requested by
Charging Party Operating Engineers to determine
compliance with fringe benefit contribution obliga-
tions under the 1980-1983 collective-bargaining
agreement.
(e) Laying off employees because they refuse to
work for less than contractual wages and benefits.
(f) Conditioning agreement to contract modifica-
tions on withdrawal of unfair labor practice
charges filed with the National Labor Relations
Board.
(g) Laying off employees because they refuse to
withdraw charges filed with the National Labor
Relations Board.
(h) 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) Recognize and bargain with the Charging
Party Teamsters as the exclusive representative of
all the employees in the unit described in the
remedy.
(b) Make whole employees represented by both
Unions in the manner set forth in the remedy sec-
tion, for losses they may have suffered as a result
of the Respondents' failure to adhere to their con-
tractual obligations or as a result of the Respond-
ents' retaliation for employees' refusing to with-
draw charges filed with the Board.
(c) Provide the Charging Party Operating Engi-
neers with information necessary to conduct an
audit of the Respondents' records to determine
whether contractually required wages and benefit
payments have been made during the term of the
1980-1983 collective-bargaining agreement.
(d) 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.
(e) Post at their Benton Harbor, Michigan facili-
ty copies of the attached notice marked "Appen-
dix." 16 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being
signed by the Respondents' authorized representa-
tive, shall be posted by the Respondents immedi-
ately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply.
16 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."
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join , or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT transfer employees from the pay-
roll of Consumers Asphalt & Concrete Co. to that
of Buchanan Asphalt in order to evade terms of
our collective-bargaining agreements with Local
No. 7, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica, AFL-CIO, and with Local 324, International
Union of Operating Engineers , AFL-CIO , during
the 1980- 1983 term of the latter agreement.
WE WILL NOT repudiate the terms of our collec-
tive-bargaining agreements by failing to apply the
provisions of those agreements to employees while
they work on the Buchanan Asphalt payroll.
WE WILL NOT refuse to implement wage in-
creases for employees during the term of a collec-
tive-bargaining agreement to which we are bound.
WE WILL NOT refuse to submit to an audit re-
quested by your bargaining representative to deter-
mine compliance with collective -bargaining agree-
ments to which we are bound.
WE WILL NOT lay off employees because they
refuse to work for less than contractually mandated
wages and benefits.
WE WILL NOT condition agreement to contract
modifications on withdrawal of unfair labor prac-
tice charges.
WE WILL NOT lay off employees because they
refuse to withdraw unfair labor practice charges
filed with the National Labor Relations Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of rights guaranteed you by Section 7 of the
Act.
WE WILL recognize and bargain with Local No.
7, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO as the exclusive collective-bargaining
representative of:
All drivers and mechanics employed by the
Employer at or out of their Benton Harbor,
Michigan , place of business but excluding
office clerical employees, guards, and supervi-
sors as defined in the Act.
WE WILL make employees whole for losses they
have suffered as a result of our failure to adhere to
our contractual obligations and as a result of our
retaliation against employees for refusing to with-
draw charges filed with the National Labor Rela-
tions Board.
WE WILL provide Local 324, International
Brotherhood of Operating Engineers , AFL-CIO
with information necessary to conduct an audit of
our records to determine whether contractually re-
quired wages and benefits have been made during
the term of the 1980-1983 collective-bargaining
agreement with that Union. .
CONSUMERS ASPHALT & CONCRETE
CO. AND BUCHANAN ASPHALT
Howard M. Dodd, Esq., for the General Counsel.
Norman E. Jabin, Esq., of Grand Rapids , Michigan, for
the Respondent.
Fredrick B. Gold, of Birmingham , Michigan , for the
Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS , Administrative Law Judge.
Pursuant to a charge filed in Case 7-CA-20916 on July
12, 1982,1 by Local No. 7, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America (Teamsters), a complaint and notice of hearing
issued on August 25, against Consumers Asphalt & Con-
crete Co. and Buchanan Asphalt (Consumers/Buchanan)
or by the Teamsters in Case 7-CA-21148 on September
9. On October 4, the Teamsters filed an amended charge
in Case 7-CA-20916. A second amendment to Case 7-
CA-20916 was filed by the Teamsters on October 8.
Thereafter, an order consolidating cases, amended con-
solidated complaint , and notice of hearing issued on Oc-
tober 26 . The Teamsters filed a third charge in Case 7-
CA-21501 on December 3. On December 20, Local 324,
International Union of Operating Engineers , AFL-CIO
(Operating Engineers), filed a charge in Case 7-CA-
21554. On December 22, an order consolidating cases,
second amended consolidated complaint , and notice of
hearing issued . The Operating Engineers filed a second
charge in Case 7-CA-21554 on January 14, 1983. On
February 10, 1983, an order consolidating cases, third
amended consolidated complaint , and notice of hearing
issued . The consolidated complaints, as amended, alleged
' All dates are in 1982 unless otherwise noted.
CONSUMERS ASPHALT CO. 755
that Respondents have violated Sections 8(a)(1), (3), (4),
and (5), and 8(d) of the National Labor Relations Act
(the Act), by certain actions and conduct by Respond-
ents.
On June 20 and 21 , 1983, a hearing was conducted in
Berrien Center, Michigan , in these proceedings . Subse-
quently, briefs were filed.
1. BUSINESS OF RESPONDENTS
Respondent Consumers is engaged in the manufacture,
sale, and application of asphalt and in the manufacture
and sale of readi -mix concrete in Benton Harbor , Michi-
gan. Respondent Buchanan at all times material to this
decision was engaged in a similar business in Buchanan,
Michigan . The jurisdictional allegations of the complaint
with respect to Respondents are admitted and I find that
it will effectuate the policies of the Act to assert jurisdic-
tion in this proceeding . Both Respondents have engaged
in a requisite amount of commerce to meet the jurisdic-
tional standards of the Act.
II. THE INVOLVED LABOR ORGANIZATIONS
Teamsters Local Union No. 7 and Operating Engi-
neers Local No. 324 are both labor organizations within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaints allege that Respondents
have engaged in certain conduct violative of the Act in-
cluding ( 1) allegations that Respondents transferred em-
ployees from Consumers to Buchanan to evade their ob-
ligation to bargain with the Teamsters and Operating En-
gineers and to avoid their collective-bargaining agree-
ments; (2) allegations that the Respondents , since July 6,
have repudiated the terms of the collective-bargaining
agreements with the Teamsters and the Operating Engi-
neers; (3) allegations that Respondents, since June 20,
failed and refused to implement a wage increase for their
Operating Engineers employees ; (4) allegations that Re-
spondents through John J. Kinney, president of both Bu-
chanan and Consumers , refused to recall employee
Hurley Skidmore from layoff because he would not
agree to work for less than the wages and benefits pro-
vided by the collective-bargaining agreement between
Respondents and Operating Engineers ; (5) allegations
that the Respondents laid off Thomas Skidmore because
he refused to transfer from Consumers to Buchanan and
work for less than contractual wages and benefits ; (6) al-
legations that Respondents laid off their employees on
September 7, 8, and 9 because the Teamsters refused to
withdraw pending unfair labor practice charges; (7) alle-
gations that the Respondents refused to provide the Op-
erating Engineers access to information requested by it
on December 13; and (8) allegations that Respondents,
through Kinney , by various acts and conduct interfered
with , restrained , and coerced their employees in the ex-
ercise of their rights guaranteed to them in Section 7 of
the Act . Each of these allegations will be discussed
below.
A. The Alleged Unlawful Transfer of Work From
Consumers to Buchanan
Consumers has been in business since 1959 and oper-
ates, as pertinent , an asphalt plant at its principal place of
business in Benton Harbor, Michigan . It also operates a
readi-mix concrete plant at that location which is not in-
volved in this proceeding . In May Consumers ' president,
John Kinney, established Buchanan Asphalt Company in
Buchanan , Michigan , which is located approximately 20
miles from Benton Harbor . Buchanan operated during
the asphalt season from summer to early fall and went
out of business in 1983 when all of its assets were sold.
From its inception , Buchanan Asphalt was engaged
solely in the manufacturing and sale of asphalt and ag-
gregates . In early July Buchanan undertook the only sig-
nificant paying job that it performed referred to in the
record as the "Van Buren County job." This job lasted
approximately 6 weeks and constituted about 95 percent
of all the work done by Buchanan.
All stock in both Consumers and Buchanan is owned
by Kinney . Kinney and his wife are the directors for
both corporations and Kinney is the president of both
corporations and actively controlled each.
Kinney testified that in 1981, Consumers had lost
money for the first time in its history . Beginning the
season of 1982, because of economic conditions, it ap-
peared to Kinney that there would be relatively little
work available to Consumers . Consumers bid on a
number of jobs for the 1982 season but was relatively un-
successful in obtaining business. Kinney started Buchan-
an in May in an attempt to break into a new market-the
market south of the Boston Harbor area-to establish a
lower cost operation to provide a supply of asphalt to
Consumers at a lower price, aid Consumers in its bidding
and to bid on contracts which Consumers had been
unable to get . It successfully bid on four projects, al-
though as noted above, the Van Buren was the only one
of any significance. For this project, virtually all the as-
phalt utilized by Buchanan was purchased from the Con-
sumers' facility. Four of the five Buchanan truckdrivers
had been employed by Consumers and were on layoff
status. The Buchanan employees that were actually in-
volved in the application of asphalt were all Buchanan
employees. Buchanan's paver , roller, and 60 to 70 per-
cent of the trucks and all support equipment used by Bu-
chanan on the Van Buren job came from Consumers.
Buchanan supervisors were previously Consumers' em-
ployees.
At about the same time Buchanan was formed, Kinney
requested meetings with the business agent of the Oper-
ating Engineers and Teamsters locals in order to seek
wage ad benefit concessions to enable consumers to suc-
cessfully bid on jobs. A meeting was held with the Oper-
ating Engineers business agent shortly after the request
but the Teamsters agent did not meet with Kinney until
Buchanan was already operational and engaged in the
Van Buren project. The Consumers employees utilized
by Buchanan were offered approximately $ 1 to $2 hour
less in wages and were asked to forego other contractual
benefits . As discussed in another context later in this de-
cision, Kinney did meet with the Teamsters employees in
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
July and the employees agreed to the wage concessions
which Kinney sought . Although , for reasons which shall
be discussed later, Kinney ultimately rejected a conces-
sion deal with the Teamsters , those Consumers employ-
ees utilized by Buchanan were evidently paid at the
wage rate sought by Kinney in the concession meetings.
The General Counsel urges that Buchanan and Con-
sumers are alter ego companies and are, in fact , essential-
ly identical operations under the control of Kinney. It is
contended that the Buchanan operation was commenced
to avoid the Teamsters and Operating Engineers' con-
tracts with Consumers and represents a repudiation of
those contracts . Based on the facts of this case and the
Commission 's recent decision in Milwaukee Spring Divi-
sion , 268 NLRB 601 (1984), I cannot find that the Bu-
chanan operations represents a violation of the Act.
From the facts, I find that Buchanan was established by
Kinney for economic reasons, that is, to attempt to
obtain work through lower bids on jobs that Consumers
was unsuccessful in bidding . The evidence will not sup-
port a finding that union animus played any part in the
decision to establish Buchanan . As was the case in Mil-
waukee Spring, supra , Kinney also attempted to bargain
with his employees over the Buchanan issue as well as
concessions in wages and benefits . There was a delay in
the bargaining process which was the fault of the Team-
sters' business representative which , among other things,
resulted in Buchanan 's operations commencing before
bargaining could actually take place . By the time that
bargaining commenced and meetings were held with the
employees and the business agent by Kinney , the only
significant job that Buchanan had, the Van Buren job,
was well on its way to completion.
I believe the attempt at bargaining by Kinney with his
union employees substantially satisfies the requirements
as set out by the Board in Milwaukee Spring, and as the
decision to establish Buchanan was motivated by eco-
nomic factors rather than by union animus, I do not find
that Kinney 's actions in this regard constitutes either a
repudiation of his contract with the Teamsters or Oper-
ating Engineers nor an unlawful refusal to bargain. The
business sought by Buchanan and that obtained was the
business which Consumers was unable to get . In this
regard , the Buchanan operation was essentially a new
operation and had the salutory effect of providing em-
ployment, albeit at a lower wage rate, for Consumers'
employees who would otherwise have been unemployed.
B. Alleged Violation of the Act by the Failure of
Consumers to Pay a Contractual Wage Increase
Consumers has never executed a formal contract with
the Operating Engineers ; however, Consumers executed
an assent agreement to be bound by the contract be-
tween the Michigan Road Builders Association and the
Operating Engineers in 1962 . Since that time , Consumers
has made contributions to the Operating Engineers Trust
Fund for its employees , has used the Union as a source
of referral of employees and has paid its Operating Engi-
neers employees appropriate contract rates . As noted
above, Kinney contacted the business agent or Operating
Engineers Local 324 in an attempt to obtain concessions
from the Operating Engineers prior to forming Buchan-
an. I find that Consumers is bound by the terms of the
Operating Engineers contract and that Consumers has
recognized the Operating Engineers as the collective-bar-
gaining agent of its pertinent employees.
The hourly wage rate of the Operating Engineers
members was to be increased by $1 per hour effective
June 1. The Operating Engineers sent Kinney a letter on
or about June advising him of the new wage increase.
Kinney admitted that he knew of the wage increase but
did not implement it. Respondent offers two defenses for
its failure to pay the wage increase as called for in the
contract . First, it contends that the business agent for
Local 324 of the Operating Engineers agreed to a wage
freeze for the Operating Engineers employees at Con-
sumers in a conversation with Kinney . Second, under the
Equal Treatment Clause of the involved contract, Con-
sumers was entitled to forego the wage increase as simi-
lar businesses in the Benton Harbor area had been al-
lowed by the Union to forego the wage increase.
Kinney testified that in the summer of 1982, Operating
Engineers Business Agent Russell McGregor met with
him and in a response to a question from Kinney about
whether there could be a break or concession because of
economic problems, McGregor allegedly stated that as
long as Kinney paid all the fringe benefits that he did not
care what wage rate was paid to the operators . Kinney
testified that McGregor said that he would not put the
agreement in writing but that Kinney could go ahead
and do it so long as he paid the fringes.
On his part, McGregor testified that he did not recall
having had such a conversation and at a later point in his
testimony denied having such a conversation . Another
witness presented by Respondent, James Kent , owner of
an asphalt contracting company in southwest Michigan,
testified that he had a similar conversation with McGre-
gor at about the same time and was told by McGregor
that he could freeze his operating engineers ' wages if it
was alright with the employees . McGregor denied
having this conversation as well . I credit McGregor's
denial of the concessions as it is consistent with his posi-
tion with respect to attempting to insure that wages and
fringe benefits are paid by both Consumers and other
companies in the area shown to have been remiss in
making benefit payments or paying proper wage scales.
With respect to the equal treatment argument, I find
that the facts do not support Respondent 's contention
that it was not being treated equally with other employ-
ers in the area . Respondent called a representative of
Kalin Construction Company which engages in trucking,
gravel crushing equipment rental, and construction in the
Benton Harbor area . The representative testified that his
company did not abide by the Michigan Road Builders
Association contract ; however, it was not shown that it
is a signatory to this contract and; therefore, not shown
to be bound by the contract . A representative of West
Shore Construction testified in a similar vein as the wit-
ness from Kalin ; however, it also was not shown to be a
signatory to the Michigan Road Builders Association
agreement or that it had any obligation to comply with
the agreemet . Another company , Klett Construction,
submitted evidence that it was a signatory to the Michi-
CONSUMERS ASPHALT CO. 757
gan Road Builders Association and did not abide by its
terms . The Operating Engineers fringe benefit fund noti-
fied Klett as of June 14, 1983, that it intended to audit its
account and recover any moneys due under the contract
not paid . Thus, the Union's actions , with respect to
Klett, are consistent with its position in relation to Con-
sumers.
Respondent also presented evidence from another
company which showed that a predecessor company
which had gone bankrupt failed to pay all required
fringes and wages under the contract . The Operating En-
gineers are also seeking , in another forum , to recover the
wages and fringes not paid . There is no evidence that the
Operating Engineers agreed to the actions of this compa-
ny.
Therefore, I find that the Operating Engineers Local
did not authorize concessions to Consumers directly and
has not treated the company differently from other com-
panies in the area bound by the same contract . There-
fore, I find that the failure of Consumers to pay the $1-
per-hour increase beginning on June 1, as required by its
contract violates Section 8 (a)(5) of the Act.
C. The Alleged Unlawful Refusal to Recall from
Layoff Hurley Skidmore and the Laying Off of
Thomas Skidmore
The evidence establishes that while Hurley Skidmore
was on layoff in late June Kinney called and offered him
a job with Buchanan . The job offered was that of the
manager of the Buchanan plant . Kinney advised that if
he accepted the job he would be paid $10 an hour with
no fringe benefits. Hurley Skidmore refused the offer of
employment based on the fact that the wages and bene-
fits were less than the Operating Engineers contract rate.
The evidence establishes that in June or early July
Kinney offered Thomas Skidmore employment with Bu-
chanan but at wages and benefits below that stated by
the contract with the Operating Engineers . He refused
the offer of employment because of the reduced benefits
and the fact that he worked for Consumers for 15 years
and did not desire to go to work for Buchanan which
was nonunion . It is contended by General Counsel that
after refusing this job offer, Thomas Skidmore was laid
off at Consumers , however, a review of the record does
not reflect that Thomas Skidmore was laid off as his tes-
timony includes references to work performed after July.
Thomas Skidmore did not allege that he was in any way
threatened with layoff by Kinney if he did not accept a
job offer. Based on the evidence with respect to Thomas
Skidmore, I cannot find that a violation of the Act has
occured.
With respect to Hurley Skidmore , Respondent offered
evidence that he was not recalled from layoff because of
the lack of available work. The evidence reflects that
Skidmore had worked very little at Consumers during
the summer . Skidmore's job during the summer was
being done by a junior employee . Skidmore had com-
plained to Business Agent McGregor about the fact that
this employee was running the loader for Consumers,
and doing work that Skidmore could have done . McGre-
gor acknowledged that Skidmore had raised the issue
with him but did not discuss the matter with Kinney. No
grievance was filed with respect to the question of se-
niority rights.
A review of the evidence will not support a finding
that Consumers refused to recall Hurley Skidmore from
layoff because of his refusal to accept employment with
Buchanan . No threat was made to Skidmore when he re-
fused the Buchanan job offer, to the contrary, the evi-
dence reflects that Skidmore was offered work at Con-
sumers when it was available . Therefore, I find that Re-
spondent has not violated the Act by its actions with re-
spect to Thomas and Hurley Skidmore.
D. The Alleged Layoff of All Employees Because of
Their Refusal to Drop Unfair Labor Practice Charges
In late August a meeting was held of Consumers em-
ployees to consider concessions requested by Kinney.
Kinney spoke at this meeting and advised his employees
that he wanted a $1-an-hour wage cut in the contract
wages, changes in seniority rights, and that he wanted
the NLRB charges pending against him at that time to
be dropped . After Kinney left the meeting, the employ-
ees discussed the concessions requested and rejected Kin-
ney's proposal . The employees did vote accept the $1-
per-hour wage cut if Consumers would make contrac-
tually acquired pension and vacation contributions. After
the vote, Kinney was advised of the outcome and he re-
quested an opportunity to speak again to the employees.
He then told them that he had bids to submit but he was
not going to do so because of the way the employees
had voted . He told the employees that when work at Bu-
chanan was completed that they were done . He also told
the employees that there would be no more work around
the plant.
Within approximately a week, Kinney was advised by
the employees that they would accept his contract con-
cession request . The union representative advised Kinney
that he could not accept this representation over the tele-
phone but would come to the plant and conduct a vote
of the membership. On September 7, the union represent-
ative went to the Consumers plant and advised the mem-
bers that they could vote on contract concessions but
that the NLRB charges then pending could not be
dropped . The membership voted to accept the economic
relief sought by Kinney . After the meeting, the union
representative advised Kinney of the memberships'
action and that the Board charges would not be dropped.
Kinney responded that if the Board charges were not
dropped then the parties did not have a deal. Kinney
then told the union representative that as far as he was
concerned that no one would be working on that date
and announced over his two -way radio to his employees
that the Company was not working that day. None of
the Consumers employees worked for the following 3
days.
Kinney, on behalf of Consumers , did not accept the
contract concessions offered by the employees on Sep-
tember 7, because the Union refused to drop pending
Board charges . In all other respects, the concession offer
of the employees was as requested by Consumers. I find
that conditioning acceptance of contract concessions
758 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
upon a withdrawal of Board charges by Consumers to be
a violation of Section 8(a)(1) of the Act.
General Counsel urges that the layoff of employees
following the September 7 meeting was a retaliatory
action for the refusal of the employees to drop Board
charges . I disagree . Kinney testified credibly that on
Tuesday morning, September 7, Consumers only had 1
day's work available . Kinney also testified that Labor
Day is a paid holiday for Teamsters if they work on the
following day. Since there was only 1 day's work that
week , Consumers could get the extra day of holiday pay
by scheduling the work for Friday rather than Tuesday,
the day immediately following the holiday . For this
reason , Kinney testified that he decided to schedule
work for Friday instead of Tuesday and laid off the
entire work force from September 7 to 9 . By scheduling
the 1 day of available work for Friday of the week
rather than for the Tuesday immediately following
Labor Day, Kinney saved the Company the added ex-
pense of the holiday pay for each employee . Given the
Company's financial condition and the state of the econ-
omy at the time, the decision to avoid holiday pay was
definitely a rational economic one. Records introduced
by Respondent reflect that the Company had a similar
layoff immediately following Memorial Day and Fourth
of July holidays . I find that the reasons given by Re-
spondent for the layoff to be legitimate and recommend
that the charges alleging unlawful intent for the layoff be
dismissed.
In a related matter, it is urged that Kinney's actions at
the August meeting, the employees constitutes an unlaw-
ful threat to the employees of a loss of work and closure
of the facility because they had refused to accept the
midterm contract concession . At that meeting, Kinney
advised that because of the employees ' refusal to accept
the concessions that he would no longer allow the driv-
ers to work on their trucks or haul stone . This work was
characterized by both Kinney and other witnesses as
"make work ." Kinney also stated that the Company
might be closed the following year . I find that cancelling
the "make work," given the economic condition of the
Company, was a reasonable business decision . Further,
by informing the employees of the possibility of the plant
being closed the following year, given Consumers' eco-
nomic condition , I do not find that to be a threat . Conse-
quently, I do not find that Kinney or Consumers violated
the Act in this regard and will dismiss the allegations in
the complaint related to this matter.
E. The Alleged 8(a)(5) Violations
The Operating Engineers , by letter dated December
13, requested an audit of Respondent 's payroll records to
determine if Respondents had made the appropriate
fringe benefits . Kinney refused to allow the audit. In de-
fense of this position Kinney offered the same defense to
the audit on behalf of Consumers that he offered in de-
fense of the decision not to pay the contractually re-
quired wage increase during the summer . For the same
reasons that I set forth with respect to the wage increase
issue, I find that Respondent Consumers has accepted the
contract between the Operating Engineers and the
Michigan Road Builders Association and by its course of
conduct recognized the Operating Engineers as the col-
lective-bargaining representative for certain of Consum-
ers' employees . Since Consumers was obligated to recog-
nize and bargain with the Operating Engineers and was
bound by the contract , it was obligated to provided in-
formation to the Operating Engineers upon request, to
enforce the contract . The information sought by the Op-
erating Engineers in their letter of December 13, sought
information necessary to determine if Consumers was fol-
lowing the contract . By refusing to provided the request-
ed information to the Operating Engineers , Consumers
has precluded the Operating Engineers from enforcing
their contract and has thereby violated Section 8(a)(5) of
the Act. As I have heretofore found that Respondent
Buchanan was not found by the contract and that its es-
tablishment was not unlawful , I do not find that Re-
spondent Buchanan has violated the Act in this regard.
IV. CONCLUDING FINDINGS
I have found that Respondent Consumers has violated
Section 8(a)(1) of the Act by conditioning contract con-
cessions on withdrawal of pending Board charges and I
will order that it cease and desist from such action. I
have also found that Respondent has violated the Act by
refusing to pay, since June 20, a wage increase for the
Operating Engineers employees in violation of its con-
tract with the Operating Engineers and will order that it
make its involved employees whole for such sums that
are due them because of such refusal . I have further
found that Respondent Consumers has unlawfully re-
fused the Operating Engineers access to information re-
quested by it on December 13, 1982, and will order that
Respondent Consumers promptly make the requested in-
formation available to the Operating Engineers . I further
find that Respondent has not violated the National Labor
Relations Act in the other respects alleged in the consoli-
dated complaint.
CONCLUSIONS OF LAW
1. Respondents Consumers and Buchanan are and have
been at all times material herein , employers engaged in
commerece within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Teamsters Local Union No. 7 and Operating Engi-
neers Local Union No. 324 have , at all times material to
this proceeding been labor organizations within the
meaning of Section 2(5) of the Act.
3. Respondent Consumers, by conditioning contract
concessions sought from its employees upon withdrawal
of charges filed with the National Labor Relations Board
has violated Section 8(a)(1) of the Act.
4. Respondent Consumers, by refusing to pay the con-
tractually required wage increase to its Operating Engi-
neers employees since June 20, 1982, in violation of its
contract has violated Section 8(a)(5) of the Act.
5. Respondent, by refusing to comply with the infor-
mation request by the Operating Engineers so that they
may conduct an audit to determine if Respondent had
made contractually required wage and benefit payments
has violated Section 8 (a)(1) and (5) of the Act.
CONSUMERS ASPHALT CO.
6. The unfair labor practices set out above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
7. Respondent Consumers and Respondent Buchanan
has not engaged in other unfair labor practices as dis-
cussed.
REMEDY
Having found that Respondent Consumer has engaged
in certain unfair labor practices, I find it necessary to
order that Respondent cease and desist from engaging in
such unfair labor practices and take certain affirmative
action designed to effectuate the policies of the Act.
Respondent, having conditioned concession negotia-
tions upon withdrawal of charges by its employees with
the National Labor Relations Board, is hereby ordered to
cease and desist from such action. Respondent, having
refused to pay the contractually required wage increase
to the Operating Engineers since June 20, 1982, in viola-
tion of its contract, is ordered to make whole its employ-
ees covered by the contract with the Operating Engi-
neers for any loss they may have suffered by reason of
Respondent's unlawful action. All backpay due under the
terms of this Order shall be computed, with interest, in
the manner described in F W. Woolworth Co., 90 NLRB
289 (1960); Florida Steel Corp., 231 NLRB 651 (1977),
and Isis Plumbing Co., 138 NLRB 716 (1962).
Respondent, having unlawfully refused to provide to
the Operating Engineers information necessary for the
Operating Engineers to conduct an audit of Respondent
Consumers books to determine if proper wage and bene-
fit payments have been made, is ordered to promptly fur-
nish the information requested to the Operating Engi-
neers.
[Recommended Order omitted from publication.]
Howard M. Dodd, Esq., for the General Counsel.
Norman E. Jabin, Esq. (Miller, Johnson, Snell & Cumnis-
key), of Grand Rapids, Michigan, for the Respondent.
Frederick B. Gold, of Birmingham, Michigan, for the
Charging Party.
SUPPLEMENTAL DECISION
WALLACE H. NATIONS, Administrative Law Judge.
On 8 May 1984 I issued my decision in this proceeding.
The General Counsel and the Charging Party, Local No.
324, International Union of Operating Engineers, AFL-
CIO, filed exceptions and supporting briefs, and the Re-
spondent filed an answering brief. The Respondent also
filed cross-exceptions in the supporting brief.
Subsequently on 11 July 1985, the Board issued its
Order remanding the proceeding back to this administra-
tive law judge for further consideration regarding certain
8(a)(1), (3), and (5) allegations of the third amended con-
solidated complaint and the issuance of a supplemental
decision. This supplemental decision is issued in response
to the Board's Order of 11 July 1985. As this decision is
supplemental in nature, it adopts and makes a part my
decision issued on 8 May 1984 to the extent that it is not
inconsistent with the supplemental findings of fact and
conclusions of law made herein.
1. ISSUES FOR FURTHER CONSIDERATION
759
A. Whether Employees Tom Skidmore and Norman
Rogers Were Encouraged by Respondent to Engage in
a Wildcat Strike
The complaint alleged that John J. Kinney, the Re-
spondent's president, advised and encouraged Tom Skid-
more and Norman Rogers to engage in a wildcat strike
against the Charging Party Teamsters and the Respond-
ent's business . In this regard, Respondent's employee
Tom Skidmore testified that about 2 weeks after Labor
Day during the late evening after work, Kinney stated to
Skidmore and other unidentified employees that there
were charges against the Company and against him and
"if the charges weren't dropped we wouldn't have a job
there next year." Skidmore testified that Kinney ex-
plained to the workers that he had an asphalt plant was
worth $ 1 million and he really didn't have to worry.
Skidmore then testified in response to a question from
the General Counsel, "Did he say anything else? No, not
that I can think of right off hand, No." Thereafter, in re-
sponse to the question by General Counsel, "Did he say
anything about picketing?" Skidmore then replied, "Yes,
he sure did. He said there Should be a picket-we
should set a picket sign up out front against the Union
against him." Skidmore then testified that Kinney, "said
that for a misrepresentation by the union and for him
being a . . . and an asshole."
With respect to this alleged conversation, Skidmore
agreed with counsel for Respondent that Kinney was
angry and was blowing off steam as he had done a few
times before.
Employee Norman Rogers recalled a conversation
with Kinney in late September or early October 1982.1
The conversation allegedly was held between Kinney,
Rogers, employee Richard Richardson, and Tom Skid-
more. Roger testified that, "We talked about work and
talked about work for the following year. And he
[Kinney] said he didn't know if we was gonna work the
next year. He was in and out of court. And he had to get
the charges taken care of or we probably wouldn't be
working there next year." Rogers also testified that
Kinney said, "He just said he probably wouldn't be there
either."
In response to the question by General Counsel, "Do
you recall him saying anything else?" Rogers stated,
"Not right now, I can't." General Counsel then asked,
"Do you remember any comment made by anybody
about a strike?" After being shown an affidavit given by
Rogers to the Board, Rogers then testified, "We was
talking about the Union. It was said that the Union
wouldn't drop the charges on him. And a day or two
prior to that's, that, what we had our meeting about in
the clock room. We voted to get the charges dropped on
him. Ok? So we says, 'We can't get the charges dropped,
what are we, you know, to do?' He said, 'Well, strike,
you know, against the Union.' He said, 'Put up a picket
line out there in front of the . . . at the gate.-
I All dates are in 1982 unless otherwise indicated
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Employee Richardson testified that he was included in
the conversation between Skidmore , Rogers, and Kinney
on a day in late September or early October. The con-
versation took place in the afternoon at the plant in front
of the building near the fuel pumps . Richardson testified
that Kinney said something about, "If this deal goes
through there wouldn 't be anybody here next year, him
included ." Richardson further testified that with respect
to this conversation he had no recollection of any state-
ments by Kinney in his (Richardson) presence concern-
ing the drivers going on strike against him or the Union.
He did recall being part of the conversation in question.
In response to a question by Respondent 's counsel, "As
far as you 're concerned , from your knowledge, did Mr.
Kinney ever , in your presence make any such statements
to you , either at that meeting or any other meeting, that
the drivers should go on strike against him or the
Union?" Richardson replied , "No sir, I don 't remember
that . And I think I would if he said it." For his part,
Kinney testified that, "One day standing at the counter
in my office , Richardson comes in. Richardson is a
Teamsters with Local 7. He said to me, `You know how
you can end all of this funny business?' I said , how. He
said, 'We can have a wildcat strike.' I said , `What is a
wildcat strike? I don 't know what it is .' He said , `that's
where we just , without your knowledge or with it, we,
ourselves , go out on strike against our own union .' I said,
`Rich , I cannot promote any kind of a wildcat strike.' I
said, `If you're telling me that's what you're going to do
I guess its your priority.' And that 's as much conversa-
tion as I can remember of a so-called promoting a strike.
It was Richardson who came to me, as I just said. I'm
sure somewhere over the line, the same, as I say, how
business is bad , street conversation , I might, again, when
somebody complains about something , I might say, `Why
don't you strike or something?' It's street type conversa-
tion is all. But I never tried to promote a wildcat strike
whatever it is . I don 't even know what it is."
Kinney recalled a conversation with the three employ-
ees one evening when he was ready to go home and no-
ticed the mens' room air-conditioning door open. He
swung around to close the door and turn off the light
and saw the three men. Kinney testified he asked the
men to leave so he could lock the door and the gate. He
testified that he remembered very little as it was a casual
street conversation . He remembered saying things were
not going good , work was bad, and if things continued
like this the Company may not be in business the next
year.
I credit Kinney's denial that he promoted a wildcat
strike . Richardson, who was present at the conversation,
remembered nothing said by Kinney about promoting a
wildcat strike , even though he testified , "I think I would
if he said ." Neither of the other two employees, Rogers
or Skidmore , could recall the conversation without
direct prompting from the General Counsel . With regard
to the alleged strike promotion , the testimony of these
two witnesses differs markedly . As set out above , Rogers
testified , "We'll strike , you know , against the union. Put
up a picket line out there in front of the . . . at the
gate ." Skidmore , mentioned nothing about a "strike" and
testified we should put a picket sign up in front against
the Union and against him.
From the totality of the evidence relating to this al-
leged conversation , I do not find that Kinney encour-
aged the involved employees to engage in a wildcat
strike . At best, it appears that the conversation was, as
characterized by Kinney , a casual street conversation.
None of the participants remembered clearly what was
said and by whom. Under the circumstances I cannot
find that the preponderance of the evidence supports the
allegation and, accordingly , I will recommend that it be
dismissed.
B. The Issue of Whether Respondents Buchanan and
Consumers Were Alter Egos of Each Other
The Board's order remanding this proceeding notes
that the involved complaint alleged that Respondents,
through their agent Kinney, transferred certain employ-
ees from the payroll of Respondent Consumers to the
payroll of Respondent Buchanan to avoid their bargain-
ing obligation to each of the charging parties; that the
Respondents have repudiated the terms of their collec-
tive-bargaining agreements with each of the charging
parties by failing to apply the collective-bargaining pro-
visions of their contracts with each union to certain em-
ployees for the period they worked on Respondent Bu-
chanan's payroll ; and that the Respondents have refused
to implement a $1-per -hour wage increase for certain em-
ployees represented by Charging Party Local No. 324
that was called for by the terms of their collective-bar-
gaining agreement with that Union. Pertinent to each of
the above -described allegations is the theory advanced
by General Counsel at the hearing that Respondents Bu-
chanan and Consumers were alter egos of each other.
The Board notes that the alter ego theory was not ex-
plicitly considered in my decision of 8 May 1984. Such
consideration will now be given to the theory.
With regard to the alter ego theory , it is necessary to
recite certain facts found by me in my former decision.
Respondent Consumers has been in business since 1959
and operates, as pertinent , as an asphalt plant at its place
of business in Benton Harbor, Michigan . In May, Con-
sumers president , John Kinney , established Buchanan As-
phalt Company in Buchanan , Michigan , which is located
approximately 20 miles from Benton Harbor . Buchanan
operated during the asphalt season from summer to early
fall and went out of business in 1983 when all of its
assets were sold . From its inception Buchanan Asphalt
was engaged solely in the manufacturing and sale of as-
phalt and aggregates . In early July, Buchanan undertook
the only significant paying job that it performed referred
to in the record as the "Van Buren County job." This
job lasted approximately 6 weeks and constituted 95 per-
cent of all the work done by Buchanan.
All stock in both Consumers and Buchanan is owned
by Kinney . Kinney and his wife are the directors for
both corporations and Kinney is the president of both
corporations and actively controls each . Kinney testified
that in 1981 , Consumers had lost money for the first time
in its history . Beginning the season of 1982, because of
economic conditions, it appeared to Kinney that there
CONSUMERS ASPHALT CO. 761
would be relatively little work available to Consumers.
Consumers bid on a number of jobs for the 1982 season
but was relatively unsuccessful in obtaining business.
Kinney started Buchanan during the month of May in an
attempt to break into a new market (the market south of
the Benton Harbor area) to establish a lower cost oper-
ation to provide a supply of asphalt to Consumers at
lower cost, aid Consumers in its bidding , and to bid con-
tracts which Consumers had been unable to get . It suc-
cessfully bid on four projects , although as noted above,
the Van Buren project was the only one of any signifi-
cance . For this project , virtually all of the asphalt uti-
lized by Buchanan was purchased from Consumers' fa-
cilities . Four of the five Buchanan truckdrivers had been
employed by Consumers and were on layoff status. The
Buchanan employees who were actually involved in the
application of asphalt were all Buchanan employees. Bu-
chanan 's paver roller , and 60 to 70 percent of the trucks
and all support equipment used by Buchanan on the Van
Buren job came from Consumers . Buchanan 's supervisors
were previously Consumer employees . In Advance Elec-
tric, 268 NLRB 1001, 1002 ( 1984), the Board stated the
standard to use in determining if an alter ego relationship
exist as follows:
The legal principles to be applied in determining
whether two factually separate employees are in
fact alter egos are well settled . Although each case
must turn on its own facts, we generally have found
alter ego status where the two enterprises have
"substantially identical" management , business pur-
pose, operation, equipment , customers , and supervi-
sion , as well as ownership . Denzil S. Alkire, 259
NLRB 1323, 1324 (1982). Accord: NLRB v. Camp-
bell-Harris Electric, 719 F.2d 292 (8th Cir. 1983).
Applying the criteria of Advance Electric, supra, to the
facts at hand , I conclude that General Counsel 's conten-
tion that Consumers and Buchanan are alter egos of each
and constitute a single employer is correct . It is not dis-
puted that Buchanan and Consumers had substantially
identical management and ownership.
Although it is disputed by Respondents , I also con-
clude that the two enterprises had substantially identical
business purpose , operation , equipment , and customers.
With respect to business purpose, Respondent urged that
Buchanan 's purpose was to break into a new market area
as a supplier of asphalt and further, Buchanan did not
engage in the sale of ready-mix concrete , which consti-
tuted a portion of Consumers ' business . Although Re-
spondent is correct that the Buchanan operation did not
involve preparation and sale of ready-mix concrete, in all
other respects , its business purpose, operation, equip-
ment, and customers was virtually the same as Consum-
ers'. This is especially true when it is considered how
Buchanan was actually operated. First , it bid on jobs
which Consumers was either unable to get or which
Kinney had decided , after having bid similar jobs, Con-
sumers would be unable to get. These jobs were all
within the same geographical area served by Consumers.
The equipment utilized by Buchanan and especially all
the very specialized equipment used in the paving oper-
ation was that of Consumers . As I found earlier , 60 to 70
percent of the trucks utilized were those of Consumers
and Buchanan supervisors were previous Consumers em-
ployees.
Looking at the last criteria suggested by the Board in
Advance Electric, supra, I must also agree with the con-
tention of General Counsel. Was the purpose behind the
creation of the alleged alter ego legitimate or was its
purpose to evade responsibilities under the Act? As
noted above , regardless of what the stated motivation in
establishing Buchanan might have been, its actual oper-
ation by Kinney showed no dissimilarities from Consum-
ers' operation except for Buchanan 's ability to avoid
paying union wages and fringes required under the con-
tract Consumers had with the Unions . Indeed , one of the
stated purposes behind forming Buchanan was to operate
at a lower cost , which was made possible only by avoid-
ing the contracts Consumers held with the involved
unions.
For the reasons set forth above, on further consider-
ation, I find that Consumers and Buchanan are alter egos
of each other as alleged in the complaint.
C. Issue of Whether Consumers was Bound by a
Contract with the Charging Party Operating Engineers
In my initial decision, I found that Consumers is bound
by the terms of the Operating Engineers contract and
that Consumers must recognize the Operating Engineers
as a collective-bargaining agent of its pertinent employ-
ees. Respondent urged that the relationship between it
and the operating Engineers is based on an 8(f) prehire
agreement and that these circumstances warrant dismissal
of the 8(a)(5) portion of the complaint. The asphalt oper-
ations at Consumers and Buchanan were identical. After
Buchanan successfully obtained work Kinney closed
Consumers' operation and transferred the equipment, em-
ployees, and management of Consumers to Buchanan so
that it could perform its construction contracts. Al-
though Buchanan had its own asphalt plant, it purchased
95 percent of its asphalt from Consumers . Under its 8(f)
defense, Respondent evidently is asserting that Charging
Party Operating Engineers did not have majority support
among the equipment operators and that Respondent was
free to refuse to bargain with the Union or honor the
provisions of the 1962 prehire agreement and succeeding
master agreements.
In the decision issued 8 May 1984 , I found that Con-
sumers has made contributions to the Operating Engi-
neers trust fund for its employees , has used the Union as
a source of referral for employees, and has paid its oper-
ating engineer employees appropriate contract rates. For
approximately 20 years, Respondent has recognized the
Operating Engineers as the representative of its equip-
ment operators . I find it unusual to argue that the opera-
tors did not represent a majority of the members of the
appropriate unit on the one hand and, on the other,
argue that it satisfied other legal duties by bargaining
with the involved Union in the summer of 1982 over
concessions it felt it needed to continue operations by
Consumers.
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent argued that there had been nonacquies-
cence in the agreement over the course of the 20 years
since the signing of the prehire agreement . Yet, the evi-
dence of record shows otherwise . With regard to the
union-security clause , Respondent argues it was not en-
forced by the Union, citing examples of two employees
Hugh Gardner and Carroll Camp. In the case of Gard-
ner, the evidence reflects that he was an older employee
and had been a lifelong Teamsters member at a time the
Operating Engineers began representation of the equip-
ment operators at Consumers . He was in ill health at the
time and the union representative urged that he be al-
lowed to remain a member of the Teamsters in order
that he be able to collect his pension and other benefits.
The evidence reflects, with respect to Carroll Camp, that
the Union attempted to secure his membership and en-
gaged in discussions or arguments with Respondent over
whether or not he should be an operator . No details with
respect to those discussions were elicited to in the record
and the fact that he was not made a member of the Op-
erating Engineers , given the question of jurisdiction over
his job , does not support Respondent 's position. Re-
spondent also stated that it had not paid certain fringe
benefits required by the master agreement, though there
is no clear showing of the fact that it did not pay such
benefits ever came to the knowledge of the involved Op-
erating Engineers local. There is evidence that the local
enforced the union-security clause for two employees
Tom and Hurley Skidmore . In conclusion, I do not be-
lieve the evidence supports Respondent 's position that it
can, at will , repudiate the 1962 and following agree-
ments . Respondent introduced no substantial evidence
that the Union does not represent a majority of the
equipment operators and based on the affirmative evi-
dence of record that it has acknowledged the Operating
Engineers as the representative of the equipment opera-
tors, I find that its 8(f) defense has failed . See Redland's
Construction Co., 265 NLRB 588 (1984).
D. Issue of Whether Respondent Consumers Violated
Section 8(a)(5) and Failed to Comply with Provisions
of Section 8(d)
On remand , the Board directs that consideration be
given to the issue of whether Consumers violated Sec-
tion 8(a)(5) and failed to comply with Section 8(d) by in-
forming the Union of its decision to transfer work to Bu-
chanan only after the Buchanan project was in operation.
It also directs that factual findings be made regarding: (1)
whether the transfer of operations from the Consumers
location to the Buchanan location was subject to manda-
tory bargaining and, therefore , within the reach of Sec-
tion 8(d) and (2) if this is so the General Counsel's con-
tention that the Buchanan project was presented to the
charging parties only as a fait accompli is supported by
the record evidence.
First, having found in part A of this supplemental de-
cision that Consumers and Buchanan are alter egos of
each other, I find they were obligated by the terms and
conditions of employment established through the collec-
tive-bargaining agreement with the Teamsters and the
Operating Engineers and that by repudiating the terms
and conditions of employment specified in those con-
tracts, Buchanan and Consumers violated Sections 8(a)(5)
and 8(d) of the Act. I find that this proceeding is gov-
erned by the Board 's decision in Advance Electric , supra,
and that in error, I relied on the Board 's decision in Mil-
waukee Spring Division , 268 NLRB 601 (1984 ). Accord-
ingly, since Buchanan and Consumers are alter egos they
are both bound to the terms of the collective -bargaining
agreements between Consumers and the Teamsters and
the Operating Engineers . I have found in part B of this
supplemental decision that Consumers is bound by its
agreement with the Operating Engineers . So finding,
since the Respondents repudiated their contracts they
have violated Section 8 (a)(5) of the Act.
Moreover , on further consideration , I find that even if
Milwaukee Spring Division , supra, is applicable, Respond-
ents have not complied with its mandates nor the man-
dates of the Board in Otis Elevator Co., 269 NLRB 891
(1984). Under both Milwaukee Spring Division , supra, and
Otis Elevator, supra, the Board has held that if a reloca-
tion of all or part of an employer's business turns primar-
ily on a desire to obtain lower labor costs , the employer
is under a mandatory obligation to bargain over the deci-
sion with the involved union or unions.
As I have found , Buchanan was formed in May. Jobs
with Buchanan were offered to various employees of
Consumers during June or early July. In my decision of
8 May 1984 , I found that about the same time Buchanan
was formed , Kinney requested meetings with the busi-
ness agents of the Operating Engineers and Teamsters
locals in order to seek wage and benefit concessions to
enable Consumers to successfully bid on jobs . I further
found that there was a delay in the bargaining process
which was the fault of the Teamsters business representa-
tive which , among other things, resulted in Buchanan's
operations commencing before bargaining could actually
take place . By the time bargaining commenced and meet-
ings were held with the employees and business agents
by Kinney, the only significant job that Buchanan had,
the Van Buren job, was well on its way to completion.
The timeframe involved in these findings was incor-
rect . Review of the transcript and the entire record re-
veals that the delay in meetings referred to in my find-
ings was the delay involved in an August meeting over
possible contract concessions . With respect to the initial
meetings about Buchanan , the record reflects that these
were initiated by the Teamsters ' business agent, Sprague,
after the Teamsters learned from the agent of the Oper-
ating Engineers that Buchanan had been created . In mid-
June, Russell McGregor , representative of the Operating
Engineers had a conversation with Allen Sprague in
which McGregor told Sprague he had heard that a plant
in Buchanan had been purchased by Kinney and oper-
ations there were about to begin . Sprague went to the
Buchanan plant and discovered that it had been pur-
chased by Kinney and the operation was to be called Bu-
chanan Asphalt . Thereafter, having discovered Buchanan
was in effect, Sprague contacted McGregor and suggest-
ed that McGregor and he set up a meeting with their re-
spective members that worked for Consumers . Sprague
had such a meeting in June in Benton Harbor to seek any
information that employees had with regard to the oper-
CONSUMERS ASPHALT CO. 763
ation . A meeting was then sought with Kinney about the
Buchanan operation and the meeting was held on ap-
proximately 6 July.
At this meeting, Kinney was asked by one or the other
of the two union representatives , Sprague and McGre-
gor, if he planned on running Buchanan Asphalt as non-
union . Kinney told the representatives he was getting
beat at the table on bids and that Consumers did not
seem to be able to get any work and he could not afford
the operation at the contract rates to be paid by Consum-
ers. Kinney also indicated he wanted a $1-an-hour cut in
wages and no seniority . Kinney went on to state Buchan-
an was in operation , and drivers were working for the
Company on that day.
I find that Buchanan was already in operation on the
first day the union representatives met with Kinney to
discuss it . The Unions were presented with a fait accom-
pli, making bargaining over the decision to create Bu-
chanan a moot issue.
Had Kinney intended to bargain in good faith over the
decision to open Buchanan , he could have requested bar-
gaining prior to its formation or at least before the begin-
ning of its actual operation. He did neither , and the re-
quest for bargaining over the issue came from the Unions
only after discovering on their own the new operation
had started . I find , contrary to my other finding in the
decision of 8 May 1984 , that Kinney has not satisfied the
Board 's directives regarding bargaining in Milwaukee
Spring Division , supra, or Otis Elevator, supra. In conclu-
sion , and in response to the Board 's direction under this
subheading, I find that Respondent Consumers violated
Section 8(a)(5) and failed to comply with the provisions
of Section 8(d) by informing the Unions of its decision to
transfer work to Buchanan only after the Buchanan
project was in operation . I further find that the transfer
of operations from the Consumers location to the Bu-
chanan location , subject to mandatory bargaining, was
within the reach of Section 8(d) and the Buchanan
project was presented to the charging parties only as a
fait accompli.
E. Consideration of the Alleged 8(a)(1) and (3)
Violations
The Board 's order of remand directs consideration of
the allegations that Respondents unlawfully refused to
recall employee Hurley Skidmore because he would not
agree to work for less than wages and benefits provided
in Respondent 's collective-bargaining agreement with
Charging Party Operating Engineers and that Respond-
ents unlawfully laid off employee Tom Skidmore because
he refused to transfer to the payroll of Respondent's Bu-
chanan and work at noncontractual pay rates . The order
of remand also directs that I analyze each allegation of
unlawful layoff and refusal to rehire under the Board's
Supreme Court approved " Wright Line Test." See Wright
Line, 251 NLRB 1083 (1980).
I have found above that Buchanan and Consumers are
alter ego companies and that Buchanan was formed pri-
marily as a continuation of the primary operation of
Consumers on a nonunion basis at a level of compensa-
tion for employees substantially less than that called for
under the Operating Engineers agreement . I found in the
decision of May 1984, in late June or early July, Kinney
offered Thomas Skidmore employment with Buchanan
but at wages and benefits below that set by the contract
with the Operating Engineers . Skidmore refused the
offer of employment because of the reduced benefits and
the fact he had worked for Consumers for 15 years and
did not desire to work for Buchanan which was non-
union . Having found Respondents have violated the Act
by establishing Buchanan as an alter ego company in an
attempt to evade the terms and conditions of its agree-
ment with the Operating Engineers , I further find that
by conditioning the employment of Skidmore on his
working without union representation and for wages less
than those specified in the Operating Engineers agree-
ment, Respondent has further committed a violation of
the Act under Section 8(a)(1) and (3). To the extent that
Skidmore was thereafter laid off at Consumers when
work was available at Buchanan , Skidmore has suffered
from an unlawful layoff.
With respect to Hurley Skidmore , Respondent offered
him the position of manager at the Buchanan operation
while Skidmore was on layoff status at Consumers.
While I cannot find the offer of the management position
to Skidmore to be a violation of the Act, I do find the
failure of Respondent to offer Skidmore employment
with Buchanan at the contract levels of compensation,
when work for which Skidmore was qualified to do was
available, to be unlawful.
I have found General Counsel has proven that both
Thomas and Hurley Skidmore were not employed at Bu-
chanan because they refused to work for less than union
wages . Respondent has offered no reason for its failure
to employ the Skidmore 's at the Buchanan operation
other than the fact that they refused to work for less
than union wages and without union representation. The
extent to which the Skidmore 's were injured by Re-
spondent 's unlawful actions cannot be determined from
this record. However, that determination can be made as
a part of the compliance process in the event this deci-
sion is sustained.
F. Issue of Whether Respondents Violated Section
8(a)(1) and (5) by Refusing to Implement the $1-Per-
Hour Wage Increase
The Board 's order remand also notes that the com-
plaint alleges, inter alia , that Respondents have refused
to implement a $1-per-hour wage increase for certain em-
ployees represented by the Charging Party Operating
Engineers, which was called for in the terms of their col-
lective-bargaining agreement with the Union . The order
requires further consideration of this allegation , giving
consideration to General Counsel's alter ego theory.
In my decision of 8 May 1984 , in section III, subpara-
graph B , and in the concluding findings and conclusions
of law , I found Respondent Consumers had indeed vio-
lated Section 8(a)(1) and (5) of the Act by refusing to im-
plement the $1-per-hour wage increase . As I have found
in detail in section I,B of this supplemental decision that
Respondent Buchanan was in fact an alter ego of Re-
spondent Consumers, I likewise find Respondent Bu-
chanan was also liable under the involved contract and
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
violated Section 8(a)(1) and (5) by refusing to implement
the contractually required $ 1-per-hour wage increase.
H. SUPPLEMENTAL CONCLUDING FINDINGS
In substitution for the findings contained in my deci-
sion of 8 May 1984, I make the following supplemental
findings.
I have found Respondents Consumers and Buchanan
were alter egos of each other, constitute a single employ-
er, and are bound by the terms of their contracts with
the involved Unions. I further find that by establishing
Buchanan , transferring of the employees and equipment
to Buchanan without notice to the Unions, or offering to
bargain with the Unions over the establishment and oper-
ation of Buchanan , Respondents have violated Sections
8(a)(5) and 8(d) of the Act. I also find Respondents have
repudiated the terms of their collective-bargaining agree-
ments with the Unions by failing to apply collective-bar-
gaining provisions under their contracts with the Unions
to employees who have been covered by the collective-
bargaining agreement for the period such employees
worked on Respondent Buchanan 's payroll . I find that
Respondents have violated the Act by refusing to pay,
since 20 June a wage increase for the operating engineer
employees in violation of its contract with the Operating
Engineers and will order that it make the involved em-
ployees whole for such sums due them because of such
refusal . I further find that Respondents have violated
Section 8(a)(1) and (3) of the Act by refusing to recall
Hurley Skidmore and by laying off Thomas Skidmore
because these employees declined to work for noncon-
tractual wages and benefits and in a nonunion capacity. I
find that Respondent Consumers has violated Section
8(a)(1) of the Act by conditioning contract concessions
upon withdrawal of pending Board charges and I will
order that it cease and desist from such action . I further
find that Respondent Consumers has unlawfully refused
the Operating Engineers access to information requested
on 13 December, and order that Respondent promptly
make the requested information available to the Operat-
ing Engineers.
CONCLUSIONS OF LAW
In substitution for the Conclusions of Law set out in
my decision of 8 May 1984, I make the following supple-
mental Conclusions of Law.
1. Respondents Consumers and Buchanan are, and
have been at all times material herein , employers en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Respondents Consumers and Buchanan are alter
egos of one another and constitute a single employer.
3. Teamsters Local No. 7 and Operating Engineers
Local Union No. 324 have, at all times material to this
proceeding , been labor organizations within the meaning
of Section 2(5) of the Act.
4. Respondents, by transferring work from the payroll
of Respondent consumers to Respondent Buchanan,
without notice to the Unions and without bargaining
with the Unions over the effects of such a transfer, have
repudiated the terms of the collective -bargaining agree-
ments obligations with both Unions and have violated
Sections 8(a)(1) and (5) and 8(d) of the Act.
5. Respondent Consumers and Buchanan , by refusing
to pay the contractually required wage increase to its op-
erating engineer employees since 20 June 1982 in viola-
tion of its contract , has violated Section 8 (a)(5) of the
Act.
6. By refusing to' recall employee Hurley Skidmore
and by laying off employee Thomas Skidmore because
they declined to work for noncontractual wages and
benefits and in a nonunion capacity , Respondents have
violated Section 8(a)(1) and (3) of the Act.
7. Respondent Consumers, by conditioning contract
concessions sought by its employees upon which with-
drawal of charges were filed with National Labor Rela-
tions Board is in violation of Section 8(a)(1) of the Act.
8. Respondent Consumers, by refusing to comply with
the information request by the Operating Engineers ena-
bling the Union to conduct an audit to determine if Re-
spondent has made contractually required wage and ben-
efit payments , has violated Section 8(a)(1) and (5) of the
Act.
9. The unfair labor practices set above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
10. Respondents Consumers and Buchanan have not
engaged in other unfair labor practices as discussed.
REMEDY
On substitution for the remedy set out in my decision
of 8 May 1984 , I make the following supplemental
remedy.
Having found Respondents Consumers and Buchanan
have engaged in certain unfair labor practices , I find it
necessary to order the Respondents to cease and desist
from engaging in such unfair labor practices and to take
certain affirmative action designed to effectuate the poli-
cies of the Act.
Respondents, having conditioned contract negotiation
sessions upon withdrawal of charges with the National
Labor Relations Board , is ordered to cease and desist
from such action . Respondents , having refused to pay
the contractually required wage increase to the Operat-
ing Engineers since 20 June 1982, in violation of its con-
tract, are ordered to make whole their employees cov-
ered by the contract with the Operating Engineers for
any loss they may have suffered by reason of the Re-
spondents unlawful actions . Respondents, by refusing to
recall employees Hurley Skidmore and by laying off em-
ployee Thomas Skidmore because they declined to work
for noncontractual wages and benefits shall be ordered to
make these employees whole for any losses they may
have suffered by reason of the Respondents ' unlawful ac-
tions . All backpay due under the terms of this order shall
be computed , with interest , in the manner described in
F. W. Woolworth Co., 90 NLRB 289 (1960); Florida Steel
Corp., 231 NLRB 651 (1977); and Isis Plumbing Co., 130
NLRB 716 (1962).
Respondents, by transferring work from the payroll of
Consumers to Buchanan have repudiated the terms of the
collective-bargaining obligations toward both of the in-
CONSUMERS ASPHALT CO. 765
volved Unions and are ordered to cease and desist from proper wage and benefit payments have been made, are
such action. ordered to properly provide information requested by
Respondents , having unlawfully refused to provide to the Operating Engineers.
the Operating Engineers information necessary for them [Recommended Order omitted from publication.]
to conduct an audit of Consumers' books to determine if