D & B Contracting Co.

National Labor Relations Board - Board Decisions

Nov 29, 1991

305 N.L.R.B. 765 (N.L.R.B. 1991)

765
305 NLRB No. 103
D & B CONTRACTING CO.
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 No exceptions were filed to the judge’s ruling that the charge in
the instant case was not barred by Sec. 10(b).
3 There is insufficient evidence to establish that the D’Egidio oper-
ation was transferred to D & B.
D & B Contracting Co., Inc. and Domenic D’Egidio
and Berniece D’Egidio t/a D’Egidio Con-
tracting Co. and Teamsters Local 470, a/w
International Brotherhood of Teamsters, AFL–
CIO.1 Case 4–CA–18472
November 29, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On May 8, 1991, Administrative Law Judge Martin
J. Linsky issued the attached decision. The General
Counsel filed exceptions and a supporting brief. The
Respondent filed a brief in answer to the General
Counsel’s exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings,2 findings, and con-
clusions and to dismiss the complaint.
The judge found, and we agree for the following
reasons, that the results of the Board-conducted elec-
tion among the drivers of D & B Contracting Co., Inc.
(D & B) determine whether D & B has a duty to rec-
ognize the Union and apply the collective-bargaining
agreement between D’Egidio Contracting Co.
(D’Egidio) and the Union. At the time of that rep-
resentation proceeding, both the Union and the D & B
employees were fully aware of evidence that would
support a reasonable contention that D & B and
D’Egidio constituted a single employer/single unit and
or alter ego. This evidence included the fact that
D’Egidio was managed and controlled by the same in-
dividual who managed D & B. Despite this, the Union
petitioned for an election involving only the D & B
employees. The employees voted to reject the Union in
an election held in March 1989. Where the unit em-
ployees in such circumstances have rejected representa-
tion in a free and fair election, we would not use sin-
gle employer and alter ego doctrines to impose rep-
resentation on the employees by operation of law.
The essential facts are as follows. D’Egidio, a part-
nership of Domenic and Berniece D’Egidio, was en-
gaged in the business of hauling bulk material.
D’Egidio recognized the Union in 1986 and subse-
quently entered into a collective-bargaining agreement
with the Union effective April 30, 1988, to April 30,
1991. D & B is a corporation established by Domenic
D’Egidio in 1984. In 1988, D & B began the business
of hauling bulk material. Domenic D’Egidio managed
and controlled D & B and D’Egidio. Between June
and December 1988, D & B and D’Egidio operated
out of the same yard on Merion Avenue Philadelphia,
Pennsylvania. The drivers employed by each company
sometimes drove for the other company. Each com-
pany occasionally used the trucks of the other com-
pany. Such interchange of employees and equipment
was a common occurrence.
In December 1988, Union Vice President and Busi-
ness Agent Tipton met with Domenic D’Egidio and
discussed the Union’s desire to represent the D & B
drivers. No agreement on representation was reached.
In January 1989, D & B moved from the Merion
Avenue yard to a yard on Oak Avenue in Glenolden,
Pennsylvania. On January 17, 1989, the Union filed a
petition with the Board seeking an election among the
D & B drivers. The parties agreed to hold the election
at the Merion Avenue yard even though D & B was
located at the Oak Avenue yard.
The Board conducted the election on March 3, 1989.
The vote was three for and two against the Union with
one challenged ballot. There were no objections to the
conduct of the election. The Acting Regional Direc-
tor’s report on the challenged ballot recommended that
the challenge be overruled. The challenged ballot was
then opened and counted and the revised tally of bal-
lots shows three for and three against the Union. On
August 8, 1989, the Region issued a certification of re-
sults of election stating that the Union was not selected
as the collective-bargaining representative of the D &
B drivers. Three of the six employees who voted in the
election were former employees of D’Egidio who
worked for D’Egidio during part of the time when
D’Egidio and D & B operated out of the Merion Ave-
nue yard.
On October 17, 1989, D’Egidio, which had been de-
creasing in size since June 1988, sold its one remain-
ing truck and went out of business.3 On Febuary 1,
1990, the Union filed the unfair labor practice charge
in the instant case alleging that D & B and D’Egidio
were a single employer, that D & B was the alter ego
of D’Egidio, and that D & B therefore violated Section
8(a)(5) of the Act by refusing to recognize the Union
and to apply the collective-bargaining agreement
signed by D’Egidio and the Union to the D & B em-
ployees.
In this factual context, we find that the results of the
Board-conducted election determine the issues of rep-
resentation and bargaining obligations regardless of
whether D & B was the alter ego of and a single em-
ployer with D’Egidio. Although the Union and the D
& B employees voting in the March 3, 1989 election
had no conclusive knowledge of the legal relationship
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Cf. Burgess Construction, 227 NLRB 765 (1977).
5 There was no contention at the time, nor is there any present
contention, that the election was flawed by objectionable conduct.
6 In light of this conclusion, we find it unnecessary to pass on the
judge’s discussion of the single employer and alter ego issues.
1 The Charging Party joins in the brief filed by the General Coun-
sel.
between D & B and D’Egidio, it is undisputed that
they were aware of the existence of the two companies
and of Domenic D’Egidio’s managerial role in both
companies. This is not a case, therefore, where the ex-
istence of a union or nonunion company has been con-
cealed.4 Both the D & B employees and the Union
participated in the March 3, 1989 election with full
awareness of the existence of D’Egidio, the unionized
company. Indeed, the election was held at the yard
used by D’Egidio even though D & B had already
moved to a different location. Half of the employees
voting in the election not only knew of the existence
of D’Egidio, but recently had worked at D’Egidio
under unionized conditions.
Thus, the D & B employees freely decided in a fair
election5 that they did not want to be represented by
the Union. In these circumstances, even if D & B is
the alter ego of D’Egidio or would otherwise be re-
quired under the Act to recognize the Union and apply
the D’Egidio collective-bargaining agreement, we shall
not disregard the desires of the employees expressed in
the election.6 Instead, we give controlling weight to
their rejection of representation and we dismiss the
complaint.
ORDER
The recommended Order of the admnistrative law
judge is adopted and the complaint is dismissed.
David Faye, Esq., for the General Counsel.
Michael G. Tierce, Esq. (Schnader, Harrison, Segal &
Lewis), of Philadelphia, Pennsylvania, for the Respondent.
Mark P. Muller, Esq. (Freedman & Lorry), of Philadelphia,
Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On No-
vember 27 and December 6, 1989, and February 1, 1990, a
charge, a first amended charge, and a second amended
charge in Case 4–CA–18472 were filed by Teamsters 470
(the Union). The charge and first amended charge were filed
against D’Egidio Contracting, Inc. The second amended
charge was filed against D’Egidio Contracting Company and
its alter ego D & B Contracting, Inc.
On February 28, 1990, the National Labor Relations
Board, by the Acting Regional Director for Region 4, issued
a complaint in Case 4–CA–18472. The complaint in Case 4–
CA–18472 was consolidated for trial with Case 4–CA–
18404. On the eve of the trial Case 4–CA–18404 was settled,
the charge withdrawn, and that portion of the consolidated
complaint dismissed.
It is alleged in Case 4–CA–18472 that D & B Contracting
Co., Inc. (Respondent D&B), and Domenic D’Egidio and
Berniece D’Egidio t/a D’Egidio Contracting Co. (Respondent
D’Egidio Contracting) were a single employer with each
other and that D&B is an alter ego of D’Egidio Contracting,
and that D&B violated Section 8(a)(1) and (5) and Section
8(d) of the National Labor Relations Act (the Act), by refus-
ing to recognize the Union as the collective-bargaining rep-
resentative of its employees and abide by the collective-bar-
gaining agreement effective April 30, 1988, to April 30,
1991, entered into by the Union and D’Egidio Contracting.
Respondents D’Egidio Contracting and D&B deny that the
Act was violated in any way. More specifically it is denied
that D&B and D’Egidio Contracting are either a single em-
ployer or that D&B is the alter ego of D’Egidio Contracting.
Respondent also raises a 10(b) defense and claims further
that the results of an election among the employees of D&B,
which the Union lost, should control the issue of whether the
Union represents the D&B employees.
Trial was held before me in Philadelphia, Pennsylvania, on
December 12, 1990.
On the entire record in this case, to include posthearing
briefs filed by the General Counsel1 and Respondent, and on
my observation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
I. JURISDICTION
D & B Contracting Co., Inc. is a Pennsylvania corpora-
tion. D’Egidio Contracting Co. is a partnership comprised of
Domenic D’Egidio and Berniece D’Egidio, doing business as
and trading under the name of D’Egidio Contracting Co.
Both D&B and D’Egidio Contracting were engaged in the
transportation of bulk materials.
During the past year prior to the issuance of the complaint
both Respondents provided services in excess of $50,000 to
other enterprises, including Glasgow, Inc., located within the
Commonwealth of Pennsylvania, each of which enterprise
purchased and received goods and service valued in excess
of $50,000 directly from points located outside the Common-
wealth of Pennsylvania.
Respondents admit, and I find, that they are and have been
at all times material employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondents admit, and I find, that Teamsters 470 is now
and has been at all times material, a labor organization with-
in the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Overview
D’Egidio Contracting, the partnership, operated out of a
yard on Merion Avenue in Philadelphia, Pennsylvania.
D’Egidio Contracting was in the business of hauling bulk
material, i.e., its drivers drove dump trucks which hauled
sand, gravel, asphalt, and dirt.
767D & B CONTRACTING CO.
In 1986 D’Egidio Contracting, which had been in business
since 1967, recognized the Union as the collective-bargaining
representative of its drivers. Later, D’Egidio Contracting and
the Union entered into a 3-year contract effective April 30,
1988, to April 30, 1991.
Back in 1984, 2 years before D’Egidio Contracting recog-
nized the Union, on the advice of his accountant, Domenic
D’Egidio set up a corporation named D’Egidio Contracting
Co. In 1988 the name was changed to D & B Contracting
Co., Inc. because the original corporate name was too similar
to the partnership name. The corporation was dormant until
June 1988, when it began operating out of the same Merion
Avenue yard in Philadelphia out of which the partnership,
D’Egidio Contracting, operated. Between June 1988 and De-
cember 1988 both D’Egidio Contracting and D&B operated
out of the same facility. Both entities did the same kind of
work, i.e., the hauling in dump trucks of bulk material. The
drivers employed by D’Egidio Contracting sometimes drove
for D&B and vice versa. On occasions D&B trucks were
used by D’Egidio Contracting and vice versa.
Domenic D’Egidio ran both D’Egidio Contracting and
D&B. Donald D’Egidio, the son of Domenic and Berniece
D’Egidio, did the books for both D’Egidio Contracting and
D&B.
In the fall of 1988, William Hammer, who was a driver
for D’Egidio Contracting and Chief Steward, told Union
Vice President and Business Agent Delmont ‘‘Tex’’ Tipton
that D’Egidio was starting up a new business. Tipton spoke
with D’Egidio about representing the drivers in the new busi-
ness. At a meeting in December 1988 Domenic D’Egidio and
Tipton met. Domenic D’Egidio wanted a contract for D&B
which was less costly laborwise than the D’Egidio Con-
tracting contract with the Union. There is some difference
between Tipton and Domenic D’Egidio as to what was said
at this meeting. The bottom line, however, is that no agree-
ment was reached that the Union would represent the D&B
drivers.
Also in December 1988 Domenic D’Egidio spoke with
John DiLuzio, who was president of Teamsters Local 312.
D’Egidio spoke with DiLuzio about D&B signing a contract
with Teamsters Local 312 and that D&B was moving from
the city of Philadelphia to Darby Township. Domenic
D’Egidio was thinking of going with Teamsters Local 312
for his D&B drivers because D&B would be located in
Teamsters Local 312’s jurisdiction and because D&B’s big-
gest custom, Glasgow, Inc., had suggested D&B go with
Teamsters 312 because Glasgow, Inc. was in Teamsters
Local 312’s jurisdiction as well. DiLuzio told D’Egidio he
wanted to check with Teamsters Local 470 and he would get
back to D’Egidio. DiLuzio learned from Tipton that Team-
sters Local 470 was trying to organize D&B and DiLuzio
told Tipton that in light of that he had no interest in Team-
sters Local 312 representing the D&B drivers. DiLuzio never
got back to Domenic D’Egidio on this.
In January 1989 two significant events took place. D&B
moved from the Merion Avenue yard in Philadelphia to a
yard on Oak Avenue in Glenolden, Pennsylvania (Darby
Township). As result the D&B trucks were kept separate and
apart from the D’Egidio Contracting trucks except when
D&B trucks went to the Merion Avenue yard for repairs. I
note that other trucking concerns also used the Merion Ave-
nue yard, which yard was owned by Domenic D’Egidio and
two of his brothers, who have no personal connection to ei-
ther D’Egidio Contracting or D&B. The second significant
event was the filing of an election petition by Teamsters
Local 470 with the Board on January 17, 1989, for an elec-
tion among the D&B truckdrivers.
A hearing was held at the Board Office in Philadelphia re-
garding that election in February 1989, and the parties agreed
that the Board would conduct an election among the D&B
drivers at the Merion Avenue yard in Philadelphia on March
3, 1989. The election was held at the Merion Avenue yard
even though D&B had relocated to the Oak Avenue yard.
The Board-conducted election was held on March 3, 1989,
among the D&B truckdrivers. A list of eligible votes had
been furnished to the Union prior to the election. The vote
was 3 to 2 in favor of representation by the Union with one
challenged ballot. The report on the challenged ballot issued
by the Acting Regional Director recommended that the chal-
lenged ballot be opened and counted. It was and the revised
tally of ballots reflected a vote of three votes for representa-
tion and three votes against representation. A tie vote, of
course, is a vote against representation. The Region on Au-
gust 8, 1989, issued a Certification of Results of Election re-
flecting that the Union was not selected as the collective-bar-
gaining representative of the D&B truckdrivers.
When D&B started operations in June 1988 it had three
trucks and D’Egidio Contracting had five trucks. In January
1989, when D&B moved to the Oak Avenue yard and
D’Egidio Contracting remained at the Merion Avenue yard,
D&B had five trucks (it owned three and leased two from
Domenic D’Egidio) and D’Egidio Contracting had three
trucks. Two of the D’Egidio Contracting trucks were sold in
May 1989 and D’Egidio Contracting was down to one truck.
On October 17, 1989, D’Egidio Contracting sold its one re-
maining truck and went out of business. At this time D&B
was up to eight trucks (it owned five and leased three from
Domenic D’Egidio). The D’Egidio Contracting trucks sold in
May and August 1989 were not sold to D&B.
It is the contention of the General Counsel and the Union
that D&B and D’Egidio Contracting were a single employer
and that D&B was the alter ego of D’Egidio Contracting.
Therefore, the Union represents the drivers of D&B (even
though the Union lost a representation election, 3 to 3,
among those very same drivers). Further, D&B must recog-
nize the Union and abide by the April 1988 to April 1991
contract signed by D’Egidio Contracting and the Union.
The attorney for D&B and D’Egidio Contracting maintains
that the entities were not a single employer, that D&B is not
an alter ego of D’Egidio Contracting, and the fact that there
was an election clearly demonstrates that a question of rep-
resentation existed and the results of that election establish
that the Union does not represent the D&B drivers. Respond-
ents also assert that the Union had reason to believe that
D&B and D’Egidio Contracting were a single employer in
January 1989 but did not file a charge that raised this issue
until February 1, 1990, and, therefore, the complaint is time-
barred under Section 10(b) of the Act.
B. Analysis of the Law
The Board’s traditional test in determining whether two or
more entities are a single employer involves the evaluation
of four factors: (1) interrelation of operations; (2) common
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Documentary evidence at the hearing establishes that throughout
the period when D&B and D’Egidio Contracting were both in oper-
ation (June 1988 to October 1989) D&B dirvers drove D’Egidio
Contracting vehicles and vice versa and D&B drivers driving D&B
trucks did work for D’Egidio Contracting and vice versa. And, fur-
ther, this was a common occurence and not isolated.
3 On the other hand, the fact that within 16 months after D&B
went operational D’Egidio Contracting went out of business might
persuade someone that one of the purposes of creating D&B might
have been to avoid responsibility under the Act.
management; (3) centralized control of labor relations; and
(4) common ownership or financial control.
Single employer status does not require the presence of all
four criteria, but depends on all the circumstances of the par-
ticular case. See Weldment Corp., 275 NLRB 1432 (1985).
However, certain factors carry more weight than others.
Common control of labor relations has been described as a
critical factor, while common ownership is least important.
See Watt Electric Co., 273 NLRB 655, 657 fn. 13 (1984);
Shellmaker, Inc., 265 NLRB 749, 754 (1982).
In the instant case there was an interrelation of operations
between D&B and D’Egidio Contracting because for many
months (June 1988 to December 1988) they shared a com-
mon facility and for the entire period that they both were in
operation (June to October 1989) there was an exchange of
drivers and equipment2 and both entities serviced many of
the same customers, principally a corporation named Glas-
gow, Inc. On the other hand, separate Federal and state tax
returns were filed for both entities and separate books and
records were maintained, albeit, by the same people. Each
entity had a different Federal identification number and sepa-
rate bank accounts.
Domenic D’Eidio was the dispatcher for both D&B and
D’Egidio Contracting and, for all practical purposes, was the
one person running both entities throughout the period they
were both in operation.
D&B and D’Egidio Contracting had common ownership or
financial control because Domenic and Berniece D’Egidio
were the owner and shareholders of D&B and Domenic and
Berniece D’Egidio were the two parties in the partnership
that did business as D’Egidio Contracting.
With respect to whether or not there was centralized con-
trol of labor relations, it is noted that Domenic D’Egidio was
management as for as employees of both D&B and D’Egidio
Contracting was concerned. Obviously the terms and condi-
tions of employment for D’Egidio Contracting employees
were governed by the contract with Teamsters Local 470 and
they were not governed by the contract with respect to the
employees of D&B. In other words, there was centralized
control of labor relations. Basically, pay was the only real
distinction. Drivers for neither entity wore uniforms. The
trucks were only numbered and did not have the name of ei-
ther entity on them.
The criteria applicable to an alter ego/disguised continu-
ance issue are set forth in Fugazy Continental Corp., 265
NLRB 1301 (1982), enfd. 725 F.2d 1416 (D.C. Cir. 1984),
as follows:
In determining whether [one employer] is the alter
ego of [another], we must consider a number of factors,
no one of which, taken alone, is the sine qua non of
alter ego status. Among these factors are: common
management and ownership; common business purpose,
nature of operations, and supervision; common premises
and equipment; common customers, i.e., whether the
employers constitute ‘‘the same business in the same
market’’; as well as the nature and extent of the nego-
tiations and formalities surrounding the transaction. We
must also consider whether the purpose behind the cre-
ation of the alleged alter ego was legitimate or whether,
instead, its purpose was to evade responsibilities under
the Act.
It would certainly appear that D&B is the alter ego of
D’Egidio Contracting because there is common management
(Domenic D’Egidio) and ownership (Domenic and Berniece
D’Egidio), common business purpose (the hauling of bulk
material in dump trucks), nature of operations (dump trucks
that pick up and deliver bulk material), supervision (Domenic
D’Egidio), common premises and equipment (from June
1988 to January 1989 D&B and D’Egidio Contracting shared
the same yard and D&B trucks continue to use that yard for
repairs and D&B and D’Egidio Contracting drivers on many
occasions used trucks from the other entity); common cus-
tomers (D&B and D’Egidio Contracting during the period of
June 1988 to October 1989 both serviced many of the same
customers, i.e., they had approximately eight customers in
common and apparently Glasgow, Inc., was the bigggest cus-
tomer for both entities).
Why was D&B created? Was it to evade responsibilities
under the Act or for some other reason? As noted above
D’Egidio Contracting was a partnership. The liabilities of the
partnership were the personal liability of the principals of the
partnership, i.e., Domenic D’Egidio and his wife, Berniece
D’Egidio. Domenic D’Egidio’s accountant, Daniel Irwin,
credibly testified that he urgued Domenic D’Egidio to let
him set up a corporation and let Domenic D’Egidio thereby
lessen the personal liability of himself and his wife because
the liabilities of a corporation generally do not render the
principals of a corporation personally liable for corporate
debt. Irwin also suggested to Dominec D’Egidio that he relo-
cate his business outside of Philadelphia because the partner-
ship was disputing a debt which the city of Philadelphia
claimed it was owed by D’Egidio Contracting. The debt was
approximately $104,000 and Irwin was fearful that at some
point the city of Philadelphia might terminate certain licenses
D’Egidio Contracting needed to stay in business.
Based on the above it does not appear that D&B was cre-
ated to evade D’Egidio Contracting’s responsibilities under
the National Labor Relations Act3 but it is nevertheless clear
taking all the evidence into account and the law applicable
to deciding whether or not two entities are a single employer
and whether one is the alter ego of the other, that D&B and
D’Egidio Contracting were a single employer and that D&B
is the alter ego of D’Egidio Contracting.
C. Effect of the Election
The only troubling aspect is that there was an election in
March 1989 among the drivers of D&B which vote was three
for representation by the Union and three against representa-
tion, i.e., the Union lost. The legal consequence of a finding
of single employer and alter ego status is that D&B must
769D & B CONTRACTING CO.
4 Pursuant to Sec. 10(b) of the Act a charge must be filed within
6 months of the aggrieved party (in this case the Union) being put
on notice of the unfair labor practice. Truck & Dock Services, 272
NLRB 592 (1984). The burden is on the party raising the 10(b) de-
fense (in this case D&B and D’Egidio Contracting) to show notice
and such notice must be clear and unequivocal. Strick Corp., 241
NLRB 210 (1979). It would seem that the 10(b) 6-month period in
this case should run from the certification of election results on Au-
gust 8, 1989. Hence the charge was timely filed.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
recognize the Union and comply with the contract D’Egidio
Contracting had with the Union.
The six employees of D&B who voted in the March 1989
election were:
Brian Durkee
Leonard Leary
William Long
Paul Robertson AKA Dennis Griffen
Claxton Wright
Edward McLaughlin
Three of the six D&B employees, i.e., William Long,
Claxton Wright, and Edward McLaughlin, had been
D’Egidio Contracting employees prior to the election and
during part of the time when both D&B and D’Egidio Con-
tracting were in operation. The only objection to the election
was the Union’s challenge to the ballot of Brian Durkee.
After the election Domenic D’Egidio, the moving force in
both D&B and D’Egidio Contracting, built up D&B from
five to eight trucks and downsized D’Egidio Contracting
from three trucks to zero trucks. And, in October 1989
D’Egidio Contracting went out of the business. When
D’Egidio Contracting went out of business it laid off Wil-
liam Hammer, its last driver, who had been chief steward for
the Union. Charges were filed with the Board over Ham-
mer’s permanent lay off and alleging that he should have
been transferred to D&B and a complaint issued (Case 4–
CA–18404), which case was settled by the parties prior to
the hearing before me.
Prior to the election in March 1989 the General Counsel
and Union could have known through investigation that there
was reason to believe that D&B and D’Egidio Contracting
were a single employer. Rather than file a charge alleging
single-employer status if D&B refused to recognize the
Union, the Union went for a Board-conducted election
among the D&B drivers. Of course, the attorney for D&B
did not advise the Union or the Board that D&B and
D’Egidio Contracting were a single employer.
Some 5 months after the election results were certified by
the Board the Union for the first time on February 1, 1990,
alleged that D&B was the alter ego of D’Egidio Contracting.
I believe the Union waited too long. The Union waived the
single-employer and alter ego issues by going the election
route. The will of the employees expressed in the 3 to 3 vote
should control whether the Union represents the D&B drivers
or not. I find the election results more persuasive than the
evidence on single-employer and alter ego status on the ques-
tion of D&B’s duty to recognize the Union, bargain in good
faith with the Union, and abide by the April 1988 to April
1991 contract which the Union signed with D’Egidio Con-
tracting. Accordingly, I will recommend that the complaint
be dismissed.
Since close to 2 years have gone by since the election re-
sults were certified by the Board on August 8, 1989, the
Union will be free to undertake another organizing campaign
among the D&B drivers and the majority of those drivers
could well decide for themselves that they want to be rep-
resented by the Union even though in March 1989 a majority
of those D&B drivers did not vote for such representation.4
CONCLUSIONS OF LAW
1. D&B Contracting Co., Inc., and Domenic D’Egidio and
Berniece D’Egidio doing business as D’Egidio Contracting
Co. were employers engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Teamsters Local 470 is a labor organization within the
meaning of Section 2(5) of the Act.
3. D&B Contracting Co., Inc., and D’Egidio Contracting
Co. were a single employer during the time they were both
operating, i.e., June 1988 to October 1989.
4. D&B Contracting Co., Inc. is an alter ego of D’Egidio
Contracting Co.
5. A Board-conducted election was held among the em-
ployee drivers of D&B Contracting Co., Inc. on March 3,
1989. The Union lost that election and the Board so certified
on August 8, 1989.
6. The results of the election control whether or not D&B
Contracting Co., Inc. has a duty to recognize the Union as
the representative of its employee drivers. Because the ma-
jority of employee drivers of D&B Contracting Co., Inc. did
not vote to be represented by the Union and the Board has
certified that result D&B Contracting Co., Inc., did not vio-
late Sections 8(a)(1) and (5) and 8(d) of the Act when it re-
fused to recognize the Union as the collective-bargaining
representative of its employee drivers.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The complaint is dismissed in its entirety.