Del Chemical & Supply Co.

National Labor Relations Board - Board Decisions

Dec 15, 1976

227 N.L.R.B. 293 (N.L.R.B. 1976)

PACIFIC POLLUTION ,CONTROL, INC. 293
Pacific Pollution Control, Inc., and Cunningham,
Stuart & Wheeler, d/b/a Del Chemical & Supply
Company and Thomas F. Accinelli. Case 20-CA-
10287
December 15, 1976
2 The discriminatory discharge of an employee because of his protected
concerted activities goes to the very heart of the Act . The Administrative
law Judge omitted a broad cease -and-desist order covering the illegal
discharge which he found Respondents had committed . Consequently, as it
is found that Respondents unlawfully discharged an employee , we shall issue
a broad cease-and-desist order herein . N.LR.B. v. Entwistle Mfg. Co, 120
F.2d 532 (C.A. 4, 1941).
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINs
On March 30, 1976, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and a supporting brief. The General Counsel filed an
answering letter and submitted to the Board the brief
that he had submitted to the Administrative Law
Judge, for the purpose of supporting the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has _ considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, fmdings,l and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondents, Pacific Pollution
Control, Inc., and Cunningham, Stuart & Wheeler,
d/b/a Del Chemical & Supply Company, Emeryville,
California, their officers, agents, successors, and
assigns, jointly and severally, shall take the action set
forth in the said recommended Order, as so modified:
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
"(a) Discharging employees for engaging in protect-
ed concerted activities. -
"(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act."
2. Substitute the attached' notice for that of the
Administrative Law Judge.
1 The Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
227 NLRB No. 54
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employ-
ees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a represen-
tative they choose
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such activities.
WE WILL NOT discharge our employees for
engaging in protected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed under Section 7 of the Act.
WE WILL offer Thomas F. Accinelli immediate
and full reinstatement to his former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his
seniority and other rights and privileges, and WE
WILL make him whole for any loss of earnings and
other benefits suffered because of his unlawful
discharge with interest at the rate of 6 percent per
annum.
PACIFIC POLLUTION
CONTROL, INC., AND
CUNNINGHAM, STUART &
WHEELER, D/B/A DEL
CHEMICAL & SUPPLY
COMPANY
DECISION
STATEMENT OF THE CASE
RICHARD J. BoYCE, Administrative Law Judge: This case
was heard before me in San Francisco , California, on
December 4, 9, and 10, 1975. The charge was filed May 29,
1975, and- amended August 19, by Thomas F. Accinelli, in
his individual capacity (herein called Accinelli). The
complaint issued August 27, 1975 , was amended on August
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
28, and alleges a violation by Pacific Pollution Control,
Inc.,' and Cunningham, Stuart & Wheeler d/b/a Del
Chemical .& Supply. Co., as joint employers (herein,
respectively, called PAC and Del), of Section 8(a)(1) of the
National Labor Relations Act, as amended:
The parties were given opportunity at the hearing to
introduce relevant evidence, examine and cross-examine
witnesses, and argue orally. Briefs were filed for the
General Counsel and Del.
1. ISSUES
The issues were whether Accinelli's discharge on March
15, 1975, violated Section 8(a)(1) of the Act; and, if so, to
whom responsibility should be attributed.
H. JURISDICTION
PPC is a California corporation, headquartered in
Emeryville, engaged in the manufacture, sale, and installa-
tion of a product known as Aqua-Fence, which is used in
the containment of oil spills. Its customers are located
throughout the world and its annual sales approximate $1
million. Among its customers in 1975 were Exxon Compa-
ny in Aruba, Dutch Antilles; Hess Oil Company in the
Virgin Islands; the Port of Stockton, California; and Sea-
Land Service, Inc., in Elizabeth, New Jersey, Oakland and
Long Beach, California, and Seattle, Washington.
Del is apartnership consisting at relevant times of Dennis
Cunningham, Ronald Stuart; and James Wheeler, head-
quartered in Emeryville, engaged in the servicing-i.e.,
deployment, retrieval, and upkeep-of oil spill containment
systems, and in the cleanup of oil spills. Between October
1974 and October 1975, Del received over $50,000 for
services performed outside -California; and over $50,000
from customers unnamed, each of whom annually grosses
in excess of $500,000.'
It is, -concluded that PPC and Del, separately, are
employers engaged in and affecting commerce, within
Section 2(2), (6), and (7) of the Act .2
III. LABOR ORGANIZATION
No labor organization is involved in this proceeding.
1 Mr. Finkle initially entered an appearance on behalf of both Del
Chemical & Supply Company and Pacific Pollution Control, Inc., stating at
the time that he might have to withdraw as representative of Pacific Pollution
Control because of a conflict of interest. He did withdraw on the second day
of the hearing, and no one entered an appearance for Pacific Pollution
Control in his stead Another attorney, Robert C. Field, previously had filed
a joint answer for both Del Chemical & Supply and Pacific Pollution
Control.
2 The complaint contains no independent jurisdictional allegations
concerning PPC, instead alleging jurisdiction on the theory of PPC's joint-
employership with Del. The matter of PPC's relationship with Del is treated
later in this decision.
The complaint alleges that Del has an annual direct inflow exceeding
$50,000, otherwise making no assertions concerning the monetary scope of
Del's business . During the hearing, on the representation of Del's counsel
that it does not meet the direct-inflow standard, counsel for the General
IV. THE ALLEGED UNFAIR LABOR PRACTICE
A. Evidence
The relationship between PPC and Del: Until October
1974, both PPC and Del were wholly owned by Neeld
Tanksley; until February 3, 1975, the two shared premises
at 800 Grayson Street in Berkeley, California; and, until
April 1, 1975, rank-and-file employees of both were treated
as Del employees for all payroll purposes. PPC has been
primarily involved at all times in the manufacture, sale, and
installation of Aqua-Fence; and Del in the servicing of
pollution containment systems and oil-spill cleanup.
Among Tanksley's employees-until October 1974 were
Dennis Cunningham, Ronald Stuart, and James Wheeler.
In October, those three formed a partnership and ostensibly
relieved Tanksley of the Del end of the business. Tanksley,
reputedly having decided that the servicing and cleanup
aspect of his enterprise was _ too much of a burden, had
conceived of this idea a month or so before. Details of the
arrangement between Tanksley and the partnership are
seemingly vague and incomplete. Tanksley did not testify,3
and the only partner to testify was Cunningham, whose
recital was an exemplar of neither clarity nor responsive-
ness.
Cunningham testified that all terms of the October 1974
transaction were oral. He continued that $1 passed from the
partnership to Tanksley, it being understood that, after a
year, they would decide upon a price. During that year,
according to Cunningham,,the partnership could void the
deal at any time, but Tanksley could not. Cunningham
indicated other features of the arrangement to be:
(a) The partnership acquired exclusive use of Del's name.
(b) The partnership took over the use, on a lease basis, of
"certain equipment." Cunningham did not identify the
equipment, nor did he reveal any lease terms.
- (c) Preexisting receivables and obligations, if any, re-
mained Tanksley's.
(d) The partnership acquired "first right of refusal" in the
servicing of containment systems sold by PPC-on the West
Coast. When asked how this, right could be implemented,
inasmuch as it presupposed the consent of PPCs custom-
ers, Cunningham was at a loss to explain.
(e),As previously stated, rank-and-file employees of both
PPC and Del remained Del employees for all payroll
purposes until April 1, 1975, -when the practice was
discontinued as "unworkable." Until the discontinuance,
paychecks issued in Del's name, from its account. The
Counsel in effect abandoned that allegation without providing another in its
place. Del accordingly moved during the hearing, and again in its brief, that
the complaint "should be dismissed for failure to state a proper jurisdictional
basis as to Respondent Del." The motion was and is denied , it being manifest
that Del meets a jurisdictional standard, and it being further manifest that
Del was not prejudiced in the presentation of its defense by this situation
3 Tanksley was mysteriously absent throughout the hearing. Counsel for
the General Counsel represented that he was under subpena, but could not
be located; and Del's counsel stated that his best efforts to locate Tanksley
had failed. Cunningham testified that Tanksley telephoned him on Decem-
ber 8, - 1975-i e., the day before Cunningham 's testimony-and that
Tanksley pointedly refused to discuss the case or reveal his whereabouts, or
even leave a phone number where he could be reached. Cunningham stated
that he asked Tanksley, in that conversation, to "get in touch with" Del's
counsel. -
PACIFIC POLLUTION CONTROL, INC. 295
employees were represented as Del's in quarterly reports to
IRS, and Del withheld from their pay for income tax and
social - security purposes. Workmen's compensation cover-
age for them was in Del's name, and Cunningham "as-
sumed that the -state charged Del's account for any
unemployment benefits received by Accinelli because of
the discharge in question. Until mid-February, Del some-
times advanced funds for-payroll purposes, after which -it-
issued checks on behalf of PPC only when PPC money was
"in hand." PPC, in addition to making Del whole for
moneys thus disbursed, paid a portion, of the salaries of
those on Del's office, staff devoting time to PPC's payroll.
The reason for the payroll's staying - in Del's name,
according to Cunningham, was:
[Tanksley ] had been under some pressure in that he had
just recently-,cleared, up a situation with the IRS and it
had been a large obligation and we agreed then at that
point to go ahead and carry the employees under the
name of Del Chemical Company....
Cunningham continued:
[IJt was basically because of Mr. Tanksley's request ...
because of the fact that he had some-problems with the
IRS, had gotten those problems straightened out and he
was wanting to keep it as nearly as possible a -straight
situation at that point.
(f) The partnership, ` in Cunningham's words, "would
provide the labor force necessary for the manufacture of the
oil containment barrier." Whether this was but another
reference to the payroll arrangement is unclear from the
record. This testimony wag' on examination by Del's
counsel, who abruptly changed the line of inquiry before
Cunningham could explain, and the thread was never
picked up.
(g) The partnership took over from Tanksley, as a
subcontractor, the servicing of containment systems for
Holly Corporation, the Port of Stockton, and Sea-Land
Service in Oakland-.
As mentioned above, PPC and Del continued to share the
Grayson Street premises until February 3, 1975. PPC then
moved to a facility - on Hollis Street and Del to one on
Horton- Street, both in 'Emeryville. From October `1974 to
February 3, there was frequent employee interchange
between PPC and DeI-i.e.,, between manufacturing and
service-functions. From the-rank-and-file point of view, in
fact, about the only change attending the October transac-
tion between Tanksley and the partnership was that the'
employees thenceforth were'to"`signify on their timeslips
hours devoted to manufacturing as opposed to service
functions.
Coincident with the physical split,, the employees were
allocated between PPC and, Del largely on. the basis of
where their loyalties lay. At that time, according to
Cunningham, -he assembled those allocated to Del, telling
them -"that .they would be working strictly out of our
location and would not be working for Pacific Pollution
Control." Similarly, Tanksley told- those allocated to PPC
that, while they would, continue receiving pay from Del,
they were working for him and subject to his orders.,
Employee interchange, for practical purposes, ceased at
that poinL4 Cunningham insisted,-in his testimony, that the
partners had no say-in the operation of PPC after the split,
nor did Tanksley in the operation of Del. Heparticularized
that, neither had a voice in the terms and conditions of
employment.-and job activities of the other's employees.
Cunningham elsewhere conceded, however, that- he "may
have -made recommendations to [Tanksley] concerning
people and-who he was sending on a given job." Cunning-
ham hastened to add that his recommendations "made no
difference"
The physical split notwithstanding, the functional rela-
tionship between PPC and Del continued much as before,
PPC concerning itself mainly with manufacturing and sales,
Del with servicing and spill cleanup. Some servicing
continued-to be done in PPC's name, however-for Sea-
Land in Seattle and Long Beach. Cunningham testified that
the partnership d/b/a Del has not been limited to the
servicing of PPC installations; indeed, that a "major
portion" of its business has been independent of PPC.
Rather than wait the full year, the partners on August 1,
11975, "fmalized" their takeover of, Del, according to
Cunningham. They gave Tanksley an,unsecured note for
$125,000, purportedly took title to the equipment previous-
ly leased from hun, and displaced PPC in servicing the Sea
Land contracts at Seattle-and Long Beach. Incidental to
taking over the two Sea Land jobs, Del retained two,
incumbent PPC employees at each location. Cunningham
characterized Del as a subcontractor under PPC concern-
ing those jobs. Although the details are hazy, Tanksley was
active on behalf of Del in arranging with Sea-Land'for
PPC's -being replaced by"Del. This included the negotiation
of a lower fee for Del than that. paid by Sea-Land to PPC, to
correspond with the fee of -a ' PPC"subcontractor' doing
sunilai' work in New Jersey'.`
PPC and Del, in their joint answer to the complaint,
dated September 8, 1975, while denying joint-employership,
admit that Tanksley had the limited right of supervision of
certain activities performed by Del Chemical'and Supply."
The record `nowhere spells out that "limited right," and
Cunningham denied its existence. The answer was prepared
by Attorney Robert- C. Field, who did not enter an
appearance at the hearing. And, during the General
Counsel's investigation of the charge herein, Attorney Field
submitted a document, dated July 17, 1975, stating that
Tanksley was Del's "representative best qualified to give
further information" of a jurisdictional nature. - -
Accinelli's discharge: Accinelh began working for
PPC/Del in September 1974-i.e., before the advent of the
partnership. He performed both manufacturing-and servic-
ing functions on occasion. Until about the time of the
physical split, he commonly worked under the direction of
one or the other of the partners. Roughly coincident with
the split, he expressed dissatisfaction -with his situation,
announcing that he would work only under Jesse Tapia, a
4 In February or March 1975, in what was described by Cunningham as accommodation of Tanksley, and that the partners could- have told hun to
an "emergency situation," Tanksley borrowed two Del employees to work on "go fly a kite."
the Sea-Land job in Long Beach. Cunningham stated that this was purely an -
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman assigned to PPC incidental to the split. Accinelli's
wishes were honored, and he thereafter worked only under
Tapia, and only out of PPC's new location on Hollis Street.
On February 19, 1975, Tanksley dispatched Tapia and
Accinelli to Seattle to augment an existing PPC crew in
servicing a containment system for Sea-Land. The crew
eventually came to consist of Tapia, Accinelli, and Otis
Hewitt, with Tapia in charge. They were to receive a
specified daily wage-$60 in Accinelli's case-plus expense
money. By March 14, none of the three had received a
single paycheck, and they were almost out of expense
money. Consequently, on the morning of March 14, the
three decided to take turns calling Tanksley's Emeryville
office until they received some kind of satisfaction.
Accinelli made the first call in furtherance of this
decision, about I p.m. on March 14, after which Tapia
called and Accinelli called again. None of these calls
succeeded in reaching Tanksley himself. Finally, about
2:30, Hewitt got through to Tanksley. Tanksley told Hewitt
that he was working on the problem and would "get back"
to the crew; and asked that they manage as best they could
in the meantime. This tended to pacify Tapia and Hewitt,
but not Accinelli. He shortly called Tanksley again,
pressing for details of when money would be coming. Much
as he had with Hewitt, Tanksley told Accinelli that he was
working on the problem and asked for understanding and
patience. Accinelh continued to press; suddenly, Tanksley
asked to talk to Tapia. With Accinelh listening on an
extension line, Tanksley asked Tapia what was wrong with
Accinelli, adding that he had told Hewitt that he was taking
care of the problem. Tanksley then commanded Tapia to
take Accinelh off the job.
That same afternoon, in Emeryville, Tanksley revealed to
Lee Wells, PPC's vice president of sales and operations,
that he was "upset" over the "numerous telephone calls"
from Seattle, elaborating that he was having "problems"
with Accinelli. Tanksley directed Wells to go to Seattle, fire
Accinelli, and get him on a plane back to Emeryville.5
Wells flew to Seattle that evening, taking with him three
paychecks for Accinelli, one which was through March
15-i.e., for days in the pay period not yet concluded. Wells
also took expense money for the crew, but no paychecks for
Tapia and Hewitt.6
The next morning, March 15, Wells tendered the three
checks to Accmelli and told him that he was to return to
Emeryville to see Tanksley. Noticing that one of the checks
was for a portion of the current pay period, Accinelli asked
if he was fired. Wells replied: "Not at this point." Accinelli
declined for a time to accept the checks, and announced
that he was not going to leave the job in those circumstanc-
es.
S That Tanksley told Wells on March 14 to fire Accmelb comports with
Wells' testimony under direct examination by counsel for the General
Counsel . Later , under leading cross-examination by Del's counsel, Wells
testified that this was in error and that he first learned that Accmelli was to
be fired during a telephone conversation with Tanksley on March 15.
Although not employed by PPC at the time of hearing, Wells at various times
obviously was attempting to tailor his testimony to best serve PPC's interests
For that reason , and because other circumstances suggest the discharge
decision to have been made on March 14, Well's repudiation on cross of his
earlier testimony is discredited.
6 Wells told Tapia and Hewitt that their checks were being mailed. Tapia
Wells at length phoned Tanksley, reporting Accinelh's
refusal to cooperate. Tanksley instructed Wells to tell
Accinelli he was fired, to which Wells replied that Accinelli
would not accept that from him and that Tanksley should
tell him. With that, Accinelli was summoned to the phone
and Tanksley broke the news . Accinelli asked if he was
fired only as concerns Seattle, or for all purposes. Tanksley
was noncommittal, saying only that he would talk to
Accinelli in Emeryville.
Accinelli left Seattle March 17, and met with Tanksley
and Wells in Emeryville on March 22. To Accinelli's
question if he was "unemployed," Tanksley stated yes; and
to his question why, Tanksley referred to the numerous
March 14 calls from Seattle about money and said that
Accinelli's "was the straw that broke the camel's back." 7
Wells testified that Tanksley and he had decided, the day
before Wells flew to Seattle, to reduce the Seattle crew from
three to two, but had not decided which employee to
remove. He continued that Accinelli was removed pursuant
to this decision and because of the problems that had come
to a head March 14.
There is some rather nebulous testimony that Accinelli
had incurred Tanksley's disfavor around March 1 by failing
to stand watch on PPC's boat in Seattle as prescribed by
Tanksley, the implication being that this was a delayed
action contributing factor in the discharge. The boat matter
evidently received passing mention during Accinelli's
March 22 meeting with Tanksley and Wells. The record
establishes that Accinelli was no less zealous in this
connection than were Tapia and Hewitt, and that none of
them adhered to Tanksley's standards.
B. Discussion
The discharge: Whatever Tapia's supervisory status, the
participation of Accinelli and Hewitt in the decision to take
turns calling Tanksley's office over their monetary crisis,
and their implementation of that decision, unquestionably
were concerted activities protected by Section 7 of the Act.
This includes Accinelli's last call , in which he finally talked
to Tanksley, even though Tapia and Hewitt by then had
been more or less "defused" by Tanksley's assurances to
Hewitt a few minutes earlier . Accinelli, in the last call, still
was acting consistently with the agreed-upon technique and
out of concern for the common problem.
A fair reading of the evidence leaves no doubt, moreover,
that Accinelli's role in this protected activity, and particu-
larly the call in which he talked to Tanksley, triggered the
discharge. Thus:
(a) As an offshoot of that same call, Tanksley expressed
to Tapia his annoyance with Accinelli and directed that
Tapia take him off the job.
testified, contrary to Wells, that Wells delivered paychecks to him and
Hewitt as well as Accinelh . Wells' recall on the point seeming more certain
than Tapia 's, he is credited
7 This is Accmelh's credited version of the conversation . Tanksley did not
testify and Wells testified that he could not recall Tanksley 's saying such a
thing. But even had Wells expressly denied Accinelli's version , Accinelb
would be credited. Although having a stake in the outcome , he impressed me
as a conscientious witness capable of accurate recall. Wells' testimony and
demeanor, on the other hand , raised doubts of his memory and his
commitment to truth.
PACIFIC POLLUTION CONTROL, `INC. 297
(b) That same afternoon of March 14, Tanksley revealed
to Wells that he was "upset" over the calls from Seattle and
that he was having "problems" withAccinellli; anddirected
that Wells-go to Seattle and fire him.
(c) During Accinelli's March 22 meeting with Tanksley
and Wells, Tanksley admitted that the last call from
Accinelli "was the straw that broke the camel's back."
Del argues that the discharge decision was not made
March 14, but rather on March 15, and only after
Accinelli's stated refusal to return to Emeryville. This
display of "insubordination," the argument goes, coupled
with Accinel is earlier derelictions concerning the boat,
prompted the discharge. Apart from the factors cited above
in support of a contrary conclusion, this argument suffers at
least three infirmities.- First, Wells having delivered pay-
checks to Accinelli, including one for the partially com-
pleted portion of the current pay period, but not to Tapia
and Hewitt, Accinelli's fate plainly was decided the day
those checks were prepared, March 14-1 day before the
so-called insubordination. Second, the business about the
boat was, too remote in time and of too slight a concern to
Tanksley, when compared with theirritation engendered.by
Accinelli on March 14, to have preempted the March 14
activities as the cause of the discharge. Third, Tanksley, the
decisionmaker, did not testify. Del's efforts-to characterize
his thought processes, being at odds with the weight of
objective evidence, are but self-serving speculation, singu-
larly lacking in suasive thrust. See Goodyear Tire & Rubber
Co. v. N.LRB., 456 F.2d 465,468 (C.A. 5,1972).
Accinelli's activities being protected, and the discharge
being prompted by them, it follows that the discharge
violated Section 8(a)(1).
Responsibility for the discharge: Tanksley plainly was an
agent of PPC when effecting Accinelli's discharge. Less
clear is whether the action also was binding upon Del. The
General Counsel contends that it was, on the theory that
PPC and Del were joint employers. Del of course argues to
the contrary.
While the joint-employer label perhaps is less apt than
that of alter ego, it is concluded that Del, by whatever
designation, must share PPC's responsibility for the dis-
charge. Among the factors belying a true transfer of Del
from Tanksley to the partners-at least until after the
discharge-are these:
(a) The idea to create a partnership for the operation of
Del originated with Tanksley.
(b) The partners, until the October 1974 transaction, were
Tanksley's employees.
(c) The arrangement was not "finalized" until several
months after the discharge.
(d) It strains credulity that Tanksley would relinquish so
substantial a business as Del, for the first year, without
written documentation of the arrangement and in return for
the token payment of $1; and permanently from August
1975 in return for only an unsecured note.
8 This is not to intimate that the transaction was undertaken for an
improper purpose.
9 In evaluating Cunningham's credibility, it is not of great significance
that his testimony, in which he endeavored to depict total day-to-day
(e) Operationally, and from the, rank-and-file vantage
point, little changed for several months after the October
1974 transaction.
(f) Because Tanksley willed it, all rank-and-file employ-
ees were treated as Del employees for payroll purposes, and
vis-a-vis state and Federal governments, until sometime
after the discharge.
(g) That aspect of the arrangement according Del "first
right of refusal" in the servicing of PPC systems, to be
meaningful, implied continuing Tanksley intervention on
Del's behalf with PPC customers.
(h) Tanksley demonstrated his continued involvement
with Del by securing Sea-Land's acceptance of Del as
PPC's stand-in in Seattle and Long Beach as of August
1975, and by negotiating with Sea-Land a fee reduction for
Del to match that of a PPC subcontractor in New Jersey.
(i) Cunningham's testimony that the partnership-was to
"provide the labor force necessary for the manufacture of
the oil containment system,' which was a PPC function;
and his admission that he "may have made recommenda-
tions to [Tanksley] concerning people and who he was
sending on a given job," betrayed continuing operational
integration.
(j) The admission, in the joint answer of PPC and Del,
that Tanksley'"had a limited right of supervision" of Del
activities`; and, in the jurisdictional- questionnaire,- that
Tanksley was - Del's "representative best qualified to give
further information," were additional indicia of Tanksley's
ongoing role in Del's affairs. `-
Although none of these factors alone is conclusive of the
issue, their totality raises a considerable inference that the
transaction between Tanksley and the partners was more
shadow than substance, initiated by Tanksley to gain some
advantage not apparent on the record.8 Even in their
totality, these factors perhaps could be explained in a
manner consonant with an arm's length deal. Cunningham,
however, failed to accomplish this, instead leaving the
impression, by both the content of his testimony and his
demeanor, that he was distorting and suppressing the real
nature of the arrangement-an impression in no way
abated by Tanksley's studied avoidance of the proceeding."
In sum, while the various cases dealing with alter ego and
kindred issues present widely disparate and unique factual
situations, it is felt that the present facts align more nearly
with those in Transcontinental Theaters, Inc., et al., d/b/a
Cynatron Enterprises, 216 NLRB 1110 (1975), in which the
Board declined to give substantive credence to a transac-
tion of the sort presently involved, than with those in such
cases as Davis Van & Storage, 218 NLRB 1339 (1975), and
El Sol Mexican Foods, Inc., et al., d/b/a La Paloma Foods
Co., 200 NLRB 804 (1972), in which an opposite result
obtained.
CONCLUSIONS OF LAW
1. By discharging Accinelli, as found herein, PPC and
Del jointly and severally engaged in an unfair labor
practice within Section 8(a)(1) of the Act.
autonomy as between the partners d/b/a Del and Tanksley, was unrefuted.
No one with a neutral or pro-Accinelli perspective was privy to their day-to-
day dealings.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. This unfair labor practice affects commerce within
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERto
Respondents, Pacific Pollution Control, Inc., and Cun-
ningham , Stuart & Wheeler, d/b/a Del Chemical & Supply
Company, their officers, agents , successors, and assigns,
jointly and severally, shall:
1. Cease and desist from discharging employees for
engaging in protected, concerted activities.
2. Take the following affirmative action:
(a) Offer to Thomas F. Accinelli immediate and full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings and other
benefits suffered because of his unlawful discharge. Back-
pay shall be computed in accordance with F. W. Woolworth
10 All outstanding motions inconsistent with this recommended Order
hereby are denied In the event no exceptions are filed as provided by Sec.
102 46 of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , and recommended Order herein shall, as provided
in Sec . 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and Order, and all objections thereto shall
be deemed waived for all purposes.
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
(b) Preserve and, make available, upon request, to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at their places of business in Emeryville,
California, the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Regional
Director for Region 20, after being duly signed by Respon-
dents' authorized representative, shall be posted by Res-
pondents Immediately upon receipt thereof, and be main-
tained for 60 consecutive days thereafter, 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.
(d) Notify the Regional Director for Region 20, in
wasting, within 20 days from the date of this Order, what
steps the Respondents have taken to comply herewith.
11 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "