DMR Corp

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1063 (N.L.R.B. 1981)

DMR CORP.
DMR Corp. and Harrill Electric Contractors, Inc.'
and IBEW Local 59, IBEW Local 116, Interna-
tional Brotherhood of Electrical Workers. Case
16-CA-8530
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On January 30, 1981, Administrative Law Judge
Richard J. Boyce issued the attached Decision in
this proceeding. Thereafter, Respondents filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions3 of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein. 4
'Herein individually referred to as DMR and Harrill. respectively. and
collectively referred to as Respondents
2 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Stanidard Dry Wall Products.
Inc., 91 NLRB 544 (1050), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
' The Administrative Law Judge correctly concluded that DMR and
Harrill are a single employer. In agreeing with this conclusion, Member
Fanning finds it unnecessary to rely on .4-I Fire Protection. Inc., 250
NLRB 217 (1980), in which he dissented.
Although the Administrative Law Judge also correctly determined.
citing Safety Electric Corporation, 239 NLRB 40 (1978). and Peter Kiewit
Sons' Co. and South Prairie Construction Co., 231 NLRB 76 (1977), that an
employerwide unit is appropriate in this case, he failed to state the factors
upon which he relied in reaching that conclusion. Based on the facts as
detailed by the Administrative Law Judge. we agree with his conclusion
that DMR was created in order to avoid dealing with the bargaining rep-
resentatives of Harrill's employees. We further find, based on the evi-
dence discussed by the Administrative Law Judge, that the employees of
DMR and Harrill possess similar skills and perform the same kinds of
work, that the operations of the two Companies are closely intertwined,
and that Harrill retains significant de facto control over DMR's labor re-
lations. Accordingly, in these circumstances, we believe that the evidence
warrants the conclusion that DMR electrical employees and Harrill elec-
trical employees do not constitute distinct and separate units and that
therefore an employerwide unit is the appropriate unit.
'The Administrative Law Judge recommended that Respondents be
ordered to make whole individuals who may have suffered because of the
failure to honor the collective-bargaining agreements with the Unions
herein, including benefit contributions. with interest as set forth in Florida
Steel Corporation, 231 NLRB 651 (1977) Member Jenkins would award
interest on any backpay due based on the formula set forth in his dissent
in Olympic Medical Corporation. 250 NLRB 146 (1980).
Because the provisions of employee benefit fund agreements are vari-
able and complex. the Board does not provide at the adjudicatory stage
of a proceeding for the addition of interest at a fixed rate on unlawfully
withheld fund payments We shall modify that portion of the Administra-
tive Law Judge's recommended Order dealing with interest on benefit
contributions to conform with our practice as detailed in Merrtywealher
Optical Company. 240 NLRB 1213. 1216. fn 7 (1979).
258 NLRB No. 139
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondents
DMR Corp., Dallas, Texas, and Harrill Electric
Contractors, Inc., Mesquite, Texas, their officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order as so
modified:
I. Substitute the following for paragraph (c):
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them by Section 7 of
the Act."
2. Delete the words "including benefit contribu-
tions" from paragraph 2(a).
3. Insert the following as paragraph 2(c), and re-
letter the subsequent paragraphs accordingly:
"(c) Pay to the appropriate funds the contribu-
tions required to be paid by the collective-bargain-
ing agreements which Respondents failed to honor,
in the manner set forth in footnote 4 herein."
4. Substitute the attached notice for that of the
Administrative Law Judge.
The Administratise Law Judge recommended the use of broad cease-
and-desist language For the reasons set forth in Iickmott Food. Inc. 242
NLRB 1357 (1979). we find that a broad order is unwarranted under the
facts of his case. Accordingly, we shall modify the Administratise Law
Judge's recommended Order h) inserting he narrow in ain hkce or re-
lated manner" remedial language
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILl NOT refuse to honor the terms and
conditions of our collective-bargaining agree-
ments with IBEW Local 59, IBEW Local 116,
International Brotherhood of Electrical Work-
ers.
WE WIl.l. NOT refuse to recognize and bar-
gain with Locals 59 and 116 concerning the
wages, hours, or other terms and conditions of
employment of electricians employed by us,
either or both.
1063
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE: Will. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them
under Section 7 of the Act.
WI. wIi.L make the appropriate individuals
whole for any losses they may have suffered
by reason of our failure to honor the collec-
tive-bargaining agreements with Locals 59 and
116, with interest.
WE wit.. pay to the appropriate funds the
contributions required to be paid by the collec-
tive-bargaining agreements which we failed to
honor.
Wil wllt. recognize and bargain upon re-
quest with Locals 59 and 116 as the exclusive
collective-bargaining representatives of electri-
cians employed by us, either or both, concern-
ing wages, hours, or other terms and condi-
tions of employment.
DMR CORP. ANt) HARRII.. ELECTRI-
CAI. CONTRACTORS, INC.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYci, Administrative Law Judge: This
matter was heard before me in Dallas, Texas, on Febru-
ary 6-8, 1980. The charge was filed on June 7, 1979, by
IBEW Local 59, IBEW Local 116, International Broth-
erhood of Electrical Workers (Local 59 and Local 116).
The complaint issued on July 31, 1979, alleging that Har-
rill Electrical Contractors, Inc. (Harrill Electric) and
DMR Corporation (DMR), as a single employer, com-
mitted certain violations of Section 8(a)(5) and (1) of the
National Labor Relations Act (the Act).
1. JURISDICTION
Harrill Electric is a Texas corporation located in Mes-
quite engaged in electrical contracting. It annually takes
delivery in Texas, directly from outside the State, of ma-
terials valued in excess of $50,000. It is concluded that
Harrill Electric is an employer engaged in and affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
DMR is a Texas corporation located in Dallas also en-
gaged in electrical contracting. As is later concluded, it
and Harrill Electric are a single employer for purposes
of the Act. It follows, given Harrill Electric's status
under Section 2(2), (6), and (7), that the two, jointly, are
an employer engaged in and affecting commerce within
those provisions.
II. L.ABOR ORGANIZATIONS
Locals 59 and 116 are labor organizations within Sec-
tion 2(5) of the Act.
III. THE ISSUE
The General Counsel contends that Harrill Electric
and DMR violated Section 8(a)(5) and (1) of the Act on
and after February 1, 1979, by failing to apply the terms
of Harrill Electric's bargaining agreements with Locals
59 and 116 to the electricians on DMR's payroll and by
failing generally to recognize Locals 59 and 116 as the
bargaining representatives of those employees.
Harrill Electric and DMR contend, in substance, that
DMR employees are not an accretion to the existing
Harrill Electric bargaining unit, and that there conse-
quently is no obligation to apply the agreements to those
on DMR payroll.
IV. THE ALLEGED MISCONDUCT
A. Evidence
Harrill Electric has been in existence since 1975, first
as a proprietorship owned and managed by Randy Har-
rill (Randy); then, since early 1977, as a corporation. Its
address is 843 Dalworth Drive, Mesquite, Texas. It at
relevant times has been party with Locals 59 and 116 to
"letters of assent" binding it to the master labor agree-
ments between those locals and certain chapters of Na-
tional Electrical Contractors Association (NECA);' and,
as concerns those electricians nominally in its employ,
unfailingly has complied with its contractual obligations
at such times.
Harrill Electric's president, board chairman, manager,
and major shareholder (7,500 shares out of 10,000) is
Randy Harrill. His wife, Anita (Anita), is vice president,
a director, and a minor shareholder (500 shares). Other
directors, at least from June 1978 to June 1979, were
Dean Morris and Raymond Mercer. Randy described
Morris as a banker and his investment partner. Mercer is
his father-in-law. Other shareholders are Joe Rawlinson
(1,400 shares) and Larry Walters (600 shares). Barbara
McClung is secretary-treasurer.
DMR came into being and was incorporated in Sep-
tember 1978, and began performing electrical contracting
work in January 1979. Its registered address, as set forth
in its articles of incorporation, is 1012 Gus Thomasson,
Mesquite, Texas. Its first operating address, apparently,
was 10474 Plano Road, Dallas, Texas. In February 1980,
it moved to 10750 Sandhill Road, Dallas, Texas. Both
Dallas addresses are 15 to 20 minutes driving time from
that of Harrill Electric. DMR at all times has deemed
itself to be nonunion, has never purported to comply
with the labor agreements binding on Harrill Electric,
and in fact has separted from the terms of those agree-
ments in various significant ways-most notably as con-
cerns rates of pay and its failure to make fringe benefit
contributions.
DMR's articles of incorporation reveal Randy and the
aforementioned Dean Morris as its incorporators, and
them plus E. R. (Tut) Morris as its first directors. The
articles assign the same address to the two Morrises. E.
Local 59's agreements are with Northeast Texas Chapter, NECA.
and pertain to work in the Dallas area. Local 116's agreements are with
North Texas Chapter. and pertain to work in the Fort Worth area.
1064
DMR CORP.
R. Morris is not otherwise identified on the record.
While there is confusion on the point, the weight of evi-
dence suggests that DMR issued 10,000 shares, with
8,000 going to Randy and some if not all of the balance
to Dean Morris. Morris was the firm's first president.
While one might speculate that the name DMR derived
from the initials of Dean Morris and Randy, Randy testi-
fied that the name was chosen at random, the Texas sec-
retary of state having disallowed other proposed names.
Randy testified that Morris initially approached him
about "setting up" DMR, and that the "original idea"
underlying its creation was this:
It was strictly a small business investment to just-
something to play with, I guess, or get into. We
was going to do some stock transactions, land trans-
actions, and we would . . . have a small [electrical]
service shop to do some service work for banks and
this sort of thing.... [W]e knew of . . . at least
ten guys that, in banking, that said, you know, you
get a little service company, and we would let you
have the service work. And we never intended to
do much of anything with it i;l the electrical field
. . . as it first started out.
Anita, later to succeed Morris as DMR's president, testi-
fied on the other hand that the idea behind DMR was to
create "a small service company who would do some
work for two companies that would require the use of
nonunion labor."
Randy's professed "original idea" to the contrary,
there is no evidence that DMR ever functioned as other
than an electrical contractor. Extracting from Randy's
testimony:
As time went along, the financial structure, what
we had headed out to do, changed drastically . . .
and we had to kind of change programs then.
The change that Randy referred to seemingly had to
do with the fact, as put by him, that Harrill Electric was
"down to zero jobs" at the end of 1978, and "hadn't got
a thing [i.e., any new projects in the Dallas-Fort Worth
area] in six months." Randy elaborated that Harrill Elec-
tric had terminated the last of its Fort Worth-based elec-
tricians in November 1978 and the last of its Dallas-based
ones in May 1979, and that that was the way matters
stood "up until the last few weeks" before the present
hearing.
Randy at first testified that these developments came
about even though, "if anything," Harrill Electric had in-
creased its bidding activity in the Dallas-Fort Worth area
"towards the end of 1978." He later conceded, however,
that the Company had all but ceased submitting bids in
the area, advancing sundry reasons:
(a) He had made a "business decision" to reduce the
Company's activities in the area because he "wanted to
completely get out of the small service end part of it."
(b) Nonunion companies in the area "just blow you
plumb out where you don't even have a chance . . .
every time you try to bid."
(c) He did not "Feel like [he] would get a fair shake
from the Union . . . at that time."
(d) Finally, confusing cause and effect, "of course it
[bidding] would be reduced if I was working by myself
without any help."
According to Randy, he and Anita discussed the plight
of Harrill Electric "right after New Year's" in 1979. He
assertedly told her that he was "tired of beating [his]
head into the ground here trying to get somewhere." and
that Morris "didn't want to mess with the electrical con-
tracting business anymore." Randy's recital continued
that Anita then asked if he thought she could "control it
[DMR] over there," after which she reputedly said she
could "handle it" with the knowledge she had and with
somebody to "help me get it going." Randy responded,
so he testified: "Maybe you should try to make us a
living then; it looks like I ain't going to do too good this
year because I got nothing going."
With that, Randy went on, he told his attorney "exact-
ly what we was going to do," directing him "to struc-
ture this thing so . . . we don't break any laws." Randy
added:
[T]he last thing I wanted to do was try to . . . run
from the collective bargaining or anything else....
Them guys right back there [the union officials in
the courtroom] are as good friends as I have.
Randy's and Anita's alleged post-New Year's conver-
sation notwithstanding, he and Morris hired one Bill
Lance in early January, ostensibly to be in charge of the
day-to-day operation of DMR. Two electricians, Jerry
Edwards and Kenneth Tuggle, were added to the DMR
payroll at or about the same time, presumably having
been hired by Lance. Neither Lance nor the other two
had had any prior connection with Harrill Electric.
Randy described himself as "very lightly" involved in
the management of DMR at this stage, seeing that Lance
was "headed . . . in the right direction." The aforemen-
tioned Larry Walters testified that he also "overseered"
Lance, even though Walters was not to appear on DMR
payroll until later.
Lance was terminated on or about February 6. While
the record is vague concerning the mechanics of the
action, it intimates that Randy played a part, he having
testified in that context that he and Anita had decided
that they "didn't trust anyone except one of us to con-
trol" DMR. More particularly, he went on, they "didn't
trust Mr. Lance to run it." Lance was succeeded, as of
February 9, by Mike Eavenson, until then a foreman for
Harrill Electric. Then, on February 23, Anita and Wal-
ters joined DMR payroll; and, in early April, the afore-
mentioned Joe Rawlinson did the same. Walters testified
that he had joined DMR in a defacto sense 2 or 3 weeks
before his official placement on the payroll, receiving va-
cation pay accrued while with Harrill Electric during
that period.
Anita had been an office clerical employee for Harrill
Electric, Walters had been its chief estimator and materi-
als buyer, and Rawlinson had been a project superintend-
ent, and all assumed much the same roles for DMR. All,
moreover, had been on Harrill Electric's payroll immedi-
ately before moving to DMR. Randy, Walters, Rawlin-
son, and Eavenson had comprised Harrill Electric's
1065
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire management complement. Rawlinson's switch to
DMR left Randy as Harrill Electric's only management
person.
Despite Randy's alleged post-New Year's conversation
with Anita, in which it supposedly was decided to put
her in charge of DMR, she testified that she had nothing
to do with DMR until joining its payroll in late Febru-
ary; and she did not supplant Morris as president until
June 1979. Upon becoming president, she received a con-
trolling bloc of DMR shares (6,500), most if not all of
which had been Randy's. She paid nothing for the
shares. Randy explained:
[S]he wasn't paid hardly anything, so it [the stock]
wasn't worth nothing when she went there [to
DMR]. If she could make it into something, she was
welcomed to the stock.
Anita's salary with DMR, as it had been with Harrill
Electric, was $60 per week. She explained: "I guess I
was just used to . . . making the $60, so I just stayed
with it."
Coincident with Anita's becoming president, Rawlin-
son was named DMR's vice president, and Randy
became or remained its secretary-treasurer. Rawlinson
also received DMR shares at this time (1,400), as did
Walters (600). Randy was left with 1,500 DMR shares,
and Morris apparently then ceased being a DMR share-
holder.2 Walters paid nothing for his shares, the stated
consideration being work he previously had done for
DMR. The record is unclear whether the same applied
to Rawlinson. Anita and Rawlinson joined Randy as
DMR's directors as of about this same time. In August
1979, Walters replaced Rawlinson as vice president.
It is assumable that the organizational changes just de-
scribed were precipitated by the filing of the present
charge. Not only did the two developments correspond
closely in time, the charge having been filed on June 7,
but Randy testified that he decided to get "out of control
of it [DMR] once I got flak about having opened in an
open [i.e., nonunion] shop." He added that he thereupon
"got rid of' his stock in DMR. As if to minimize the du-
ration of his involvement with DMR and to obscure the
nexus between his relinquishment of control and the
charge, he initially testified that he withdrew and trans-
ferred the stock in January or February, rather than in
June.
DMR's financing, in its early months of operation, was
provided primarily by loans from Harrill Electric. Sever-
al such loans, between December 1978 and June 1979,
added up to about $45,000. None was memorialized by
written document or secured by collateral, and the re-
payment schedule was "whenever you can afford it."
The interest rate, supposedly agreed upon between
Randy and Anita, was the "prevailing rate" of 10 per-
cent. Regarding the lack of documentation and collater-
al, Anita testified:
2 Randy testified that he acquired 500 DMR shares from Morris some-
time before July 1979.
[W]e were such a closely-held corporation that, by
word of mouth, we did it that way. We certainly
weren't going to cheat each other out of anything.
DMR repaid $20,000 in May 1979, $5,000 in June, and
$20,971.85 in July.
DMR also borrowed money from Randy and/or Anita
personally on more than one occasion, in sums totaling
several thousand dollars; 3 and borrowed about $7,000
from Morris personally. It did not resort to institutional
financing until June or July 1979, when it borrowed
$50,000 from Morris' bank.
Concerning equipment, DMR's first four trucks for-
merly had been Harrill Electric's,4 and DMR also used
many tools and materials that once belonged to Harrill
Electric. Walters and Eavenson used the same trucks
with DMR as they had with Harrill Electric, Walters
testifying that he does not have "the slightest idea" if the
title to his truck had been transferred to DMR. Anita
and Randy both testified that DMR purchased every-
thing it obtained from Harrill Electric, at what was de-
termined to be "fair market" value. Randy added that
the value of tools and supplies was dictated by suppliers'
pricing sheets, whereas Anita testified that value was de-
cided among Randy, Walters, and herself, with Randy
and Walters handling "most of that." In an apparent
effort to ensure that these transactions be perceived as
arm's-length, Anita testified that she was "sure" that
there were times when Harrill Electric's asking price for
certain items was "out of line." She would cite no in-
stance, however, in which this was so.
As earlier mentioned, DMR's complement in its first
days of its operation consisted of Lance, Edwards, and
Tuggle, none of whom had prior connection with Harrill
Electric, with Eavenson replacing Lance in early Febru-
ary 1979. In the week ending February 13, DMR payroll
was doubled by the addition of three electricians, Mark
Penney, Amos Pollard, and James Ralston. All had been
with Harrill Electric the week before; and Penney, in the
week ending February 20, was credited with hours for
both DMR and Harrill Electric. Also as previously
noted, DMR payroll was further increased on February
23 by the addition of Anita and Walters.
DMR added 16 more to its payroll in March, one of
whom, Tommy Lucas, previously had been with Harrill
Electric. Lucas, in fact, appeared on the payrolls of both
entities in the weeks ending March 20 and 27. Four more
joined DMR payroll in the week ending April 3, two of
whom-Rawlinson and Donald Watkins-had been on
the Harrill Electric payroll just before. In all, DMR
hired approximately 160 people in 1979. Except for the
nine just named-Eavenson, Penney, Pollard, Ralston,
Anita, Walters, Lucas, Rawlinson, and Watkins-appar-
ently none had prior experience with Harrill Electric.
Meanwhile, again as earlier indicated, Harrill Electric's
complement of electricians based in both Fort Worth and
Dallas was extinguished.
' Randy conceded that there is "very little way to tell the difference"
hetween loans from him, personally. to DMR, and from Anita.
'DMR had about 30 trucks at the time of the hearing
1066
DMR CORP.
Randy testified that, except for his part in the hire of
Lance, he was not involved in the hire of anyone for
DMR; and, more particularly, that he did not have "any-
thing to do with" the shift to DMR of the former Harrill
Electric employees.
Further in this vein, Randy asserted that he never
spoke with Pollard about working for DMR, only to
admit when pressed that he and Pollard had discussed
Pollard's working on a DMR job at Texas Women's Uni-
versity in Denton, and that he counseled Pollard on the
implications of "work in an open shop"-"that is up to
you, you do what you want to, but I'm going to tell you
that you are going to burn a bridge when you do this."
Randy also testified that he told Pollard at this time that
the Denton job was "not even" Harrill Electric's, and
that he consequently had "nothing to do with that what-
soever"; and that he recommended against Pollard's
working for DMR because of the attendant union prob-
lems.
Pollard, on the other hand, recalled Randy's touting
DMR as "a possible chance" for Pollard to make more
than he had with Harrill Electric, and his telling Pollard
that "the union wasn't going to treat [Pollard] right."
Pollard added that Randy gave him the address of the
Denton job. He began working there the next day. Pol-
lard was vastly more convincing than Randy, and is
credited to the extent that their recitals differ.
Similarly, Randy at first testified that he never dis-
cussed with Ralston his working for DMR, later recant-
ing that he had "basically" the same exchange with Ral-
ston as with Pollard. Randy eventually admitted, more-
over, that his conversation with Ralston was punctuated
by his telephoning the Denton job regarding Ralston's
going to work there. In a deposition given before the
hearing, Randy also had testified that he had never
talked with Ralston about working in Denton; indeed,
that he was "absolutely positive" he had not. Asked
during the hearing to explain the discrepancy between
that and his testimony as it evolved in the hearing,
Randy stated that he was distracted during the deposi-
tion-taking because the lawyers were "hollering and
screaming and beating on the tables." Ralston reported
to the Denton job the day after this conversation.
As for Walters, Randy testified that he left Harrill
Electric because "I couldn't afford to keep him there
anymore, with the workload that we had"; and that "I
didn't actually discuss with him going over there [to
DMR] or anything"-"I didn't encourage it one way or
another." Randy continued that Anita had asked him if
he thought Walters "would want a job, to help her out";
and that he replied that he "would leave that up to her,
if she was going to try and make something out of
[DMR]."
After that, according to Randy, Walters did ask him
"what his opportunities would be or what he could do
by going over there" to DMR, and Randy assertedly re-
plied in this fashion:
I told him that we was just trying to have some
income from somewhere and she [Anita] was just going
to go over there and try to make something out of it.
And that would strictly be up to her and Dean [Morris]
at that time.
Randy concluded:
I didn't exactly hire [Walters]. I'm not saying that I
didn't have some influence in it. I just really don't
recall the exact circumstances around it.
Anita, for her part, effectively impeached much of
Randy's testimony about Walters. Not only did she tes-
tify that she had nothing to do with Walters' hire, "not
really," but also she stated that she did not insinuate her-
self into the affairs of DMR until joining the payroll on
February 23-some 2 to 3 weeks after Walters became
involved with DMR in a defacto sense.
Concerning DMR's hire of Rawlinson, Randy testified
variously that he could not recall talking to Rawlinson
about going to DMR; that they "probably did have some
conversations about it"; that they "sure did" have such
conversations; ihat he could not "recall any specific in-
stances or anything"; that Rawlinson "did discuss it with
me, yes"; that "I discussed the possibilities . . . with him,
yes": and, finally: "But I didn't actually send him over
there."
Walters testified that he and Anita decided on Rawlin-
son's hire, because of DMR's "need for some experi-
enced supervision," and that "the two of us, we decided
on his rate of pay." Anita testified, on the other hand,
that she had nothing to do with setting Rawlinson's
salary, theorizing: "I guess he [Rawlinson] did; I don't
really know."
The Denton job, mentioned above, apparently was the
first performed in the name of DMR. It involved the re-
habilitation of several university buildings, and lasted for
a number of months. Walters testified that the job was
awarded before he went to DMR, and that he does not
know who prepared the bid. Given the earliness of the
award, relative to when DMR became operative, and the
magnitude of the job, logic suggests that the bid had to
have been prepared by Harrill Electric.
Other DMR jobs included the rehabilitation of 5
junior high schools in Birdville, Texas, which began in
the early spring of 1979; and 3 school rehabilitation proj-
ects, embracing a total of 12 schools, in Fort Worth,
which ran during the spring and summer of 1979. The
general contractor on the Birdville and Fort Worth jobs
was McCarty Corporation, for whom Harrill Electric
previously had performed in a like manner on numerous,
similar jobs.
McCarty Corporation is nonunion. Billy Wayne
Valley, a Harrill Electric employee at the time, credibly
testified that Randy said to him, perhaps in March 1979,
that Harrill Electric was not getting work from McCarty
anymore because "they couldn't afford the union labor."
DMR also has a contract servicing two Honeywell
facilities in Dallas County. The contract was awarded in
June 1979, until then having been serviced by Harrill
Electric. Additionally, at McCarty's behest, DMR has
done work, apparently of a warranty nature, on at least
four jobs-Temple, Waco (2), and Gladewater-original-
ly performed for McCarty by Harrill Electric. Anita in-
dicated, without impressive conviction. that DMR bills
Harrill Electric for such work.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record contains yet other information relevant to
DMR's connection with Harrill Electric. Don Shankles,
Harrill Electric's shop foreman. delivered the paychecks
to DMR's Denton jobsite; Ralston's first DMR paycheck
and his Harrill Electric termination slip were delivered
in the same envelope; Mark Penney, after perhaps 2
weeks with DMR, told Randy that he was quitting, testi-
fying that he "was never really aware that [he] was
working for anybody besides Randy Harrill"; Pollard,
upon quitting DMR, picked up his final paycheck at the
office of Harrill Electric; Randy visited DMR's Birdville
site "to check out the security" on a load of copper wire,
explaining that he did this as an interested shareholder;
and Randy at one time directed Ralston to go from
DMR's Denton job to one in Fort Worth to do some
demolition work.5
Finally, as against the conclusionary portrayals of
Anita-by Randy, Walters, and Anita herself-as DMR's
first in command, totally independent of Randy, Anita's
lack of grasp of DMR's affairs, while testifying, exposed
her as a figurehead. Asked how many foremen DMR
then had, she replied that she did not know, "not off-
hand"; asked how many jobs DMR then was on, she an-
swered that she did not know, "not without checking";
asked to name DMR's foremen, she could name only one
before admitting that she "can't think of them by name";
asked how many vehicles DMR had, she stated that she
"would have to guess"; asked about loans to DMR, she
initially testified that she was aware of no source other
than Harrill Electric, when there in fact had been at least
one institutional and four private sources, and that she
was not sure how many loans she personally had made,
but that she "probably" made more than one.
Further indicative of Anita's figurehead status, she tes-
tified that Randy and Walters "handled most of' DMR's
purchases of tools and supplies from Harrill Electric;
that she has not "hired anyone personally" for DMR;
and that, while Walters would have her as privy to the
establishment of Rawlinson's salary, she admitted not
only that she was not, but also that she did not know
how it was set, guessing that Rawlinson may have set his
own.
B. Conclusions
It is concluded, in agreement with the General Coun-
sel, that Harrill Electric and DMR, as a single employer,
violated Section 8(a)(5) and (1) by failing to apply the
terms of Harrill Electric's bargaining agreements with
Locals 59 and 116 to the electricians on DMR's payroll,
and by failing generally to recognize Locals 59 and 116
as the bargaining representatives of those employees.
That Harrill Electric and DMR are a single employer
is revealed, among other things, by husband and wife, to-
gether, owning 80 percent of the shares of both, the re-
maining shares of both being held in identical propor-
tions by Rawlinson and Walters; by husband being the
nominal head of one and wife of the other, with Anita
plainly being no more than a figurehead; by husband and
wife comprising one-half the board of directors of one,
b Ralston and Pollard testified credibly of this incident Randy's denial.
like so much of his testimony. lacked conviction.
and two-thirds of the other; by the informality of the
loan arrangements between the two entities because they
were so "closely-held"; by the identical nature of their
business activities; by the dovetailing of Harrill Electric's
business decline with DMR's genesis and business buil-
dup, with DMR seemingly inheriting Harrill Electric's
role vis-a-vis at least two major customers, McCarty Cor-
poration and Honeywell; by the switch of three-fourths
of Harrill Electric's management team-Eavenson, Wal-
ters, and Rawlinson-to DMR, where each assumed the
approximate role occupied with Harrill Electric; by
Randy's being a moving force in the creation of DMR;
by Randy's obvious part in the switch of Harrill Electric
employees to DMR, his reassigning Ralston from DMR's
Denton job to one in Fort Worth, and his concern about
the security of DMR's copper wire; by the substantial
transfer of Harrill Electric equipment to DMR, albeit
under color of sale; by Walters being compensated,
during his first 2 or 3 weeks with DMR, by vacation pay
accrued with Harrill Electric; by the manifest union-
avoidance purpose behind the decline of Harrill Electric
and the emergence of DMR, which is suggestive of a
ruse; and by the appallingly vague, evasive, self-contra-
dicting, and mutually conflicting testimony of Respond-
ents' witnesses, which not only suggests, but also reveals
with virtual conclusivity a form-but-not substance contri-
vances. See, generally, A-I Fire Protection, Inc., and Cor-
coran Automatic Sprinklers, Inc., 250 NLRB 217 (1980);
Safety Electric Corporation and San Joaquin Pacific Corpo-
ration, 239 NLRB 40 (1978); Douglas Lantz d/b/a and or
a/k/a Alacan Forwarding Company, Transportation Con-
sultant and AFCO, 235 NLRB 995 (1978); Don Burgess
Corporation d/b/a Burgess Construction and Donald Bur-
gess and Verlow Hendrix d/b/a V & B Builders, 227
NLRB 765 (1977); Appalachian Construction, Inc., and
SE-OZ Construction Company, 235 NLRB 685 (1978);
Crawford Door Sales and Cordes Door Company, Inc., 226
NLRB 1144 (1976).
Still to be decided is whether the so-called DMR em-
ployees are an accretion to the Harrill Electric bargain-
ing units. As the Supreme Court stated in South Prairie
Construction Co. v. Operating Engineers [Peter Kiewit
Sons' Co.], 425 U.S. 800, 805 (1976):
[A] determination that two affiliated firms constitute
a single employer "does not necessarily establish
that an employerwide unit is appropriate, as the fac-
tors which are relevant in identifying the breadth of
an employer's operation are not conclusively deter-
minative of the scope of an appropriate unit."6
Extracting from Bryan Infants Wear Company, 235
NLRB 1305, 1306 (1978), the test of accretion is whether
the employees of the new firm "could constitute a sepa-
rate appropriate unit" from those of the existing firm. It
is plain in the present case, without laboring the various
elements relevant to the accretion issue, that the test is
met. To paraphrase Appalachian Construction, Inc., supra
235 at 686.
' The quotation within the quotation is from Central New Mexico Chap-
er. .National Electrical Cotlracors Asociaions. Inc.. and Represernted Em-
pl(t'r. 152 NLRB 1604. 1601 (1965).
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DMR CORP
The onl real difference. other than name, between
[DMIR] \orking on the project[s] and [Harrill Elec-
tric] was the absence of union labor.
Peter Kiewit Sons' Co.. 231 NLRB 76 (1977). from
which Respondents argue. is distinguishable from the
present case. Harrill Electric and DMR literally com-
pnse a "mom and pop" operation, with centralized con-
trol and authority. whereas Peter Kiewit Sons' Co. in-
volved massive construction firms whose effective func-
tioning necessitated multilayered delegations of authori-
ty, with an attendant dilution of communities of interest
as between those at the rank-and-file level of the two
firms in question. Moreover, as the Board observed in
Appalachian Construction. Inc., supra 235 at 686, in distin-
guishing Peter Kiewit Sons' Co., "we are not faced with a
'doublebreasted' operation: two companies operating in
different economic climates, one union and one non-
union." (Emphasis supplied.)
CONCLUSIONS OF LAW
Harrill Electric and DMR, a single employer, violated
Section 8(a)(5) and (1) by failing to apply the terms of
Harrill Electric's bargaining agreements with Locals 59
and 116 to the electricians on DMR's payroll, and by
failing generally to recognize Locals 59 and 116 as the
bargaining representatives of those employees.
ORDER 7
The Respondents, DMR Corp., Dallas, Texas, and Har-
rill Electric Contractors, Inc., Mesquite, Texas, their offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to honor the terms and conditions of their
collective-bargaining agreements with IBEW Locals 59
and 116, International Brotherhood of Electrical Work-
ers.
(b) Refusing to recognize and bargain with Locals 59
and 116 concerning the wages, hours, or other terms and
7 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.
conditions of employment of electricians employed by
them. either or both.
(c) In an' other manner interfering with. restraining,
or coercing employees in the exercise of the rights guar-
anteed them under Section 7 of the Act.
2. Take this affirmative action:
(a) Make the appropriate individuals whole for any
losses they may have suffered by reason of Respondents'
failure to honor the collective-bargaining agreements
with Locals 59 and 116, including benefit contributions,
with interest as set forth in Florida Steel Corporation, 231
NLRB 651 (1977).5
(b) Recognize and bargain upon request with Locals
59 and 116 as the exclusive collective-bargaining repre-
sentatives of electricians employed by Respondents,
either or both, concerning wages. hours, or other terms
and conditions of employment.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amounts owing under the
terms of this Order.
(d) Post at their offices, wherever situated, and at all
jobsites where they presently are working, copies of the
attached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by Respondents' au-
thorized representative, shall be posted by Respondents
immediately upon receipt thereof, and shall be main-
tained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order, what
steps Respondents have taken to comply herewith.
See. generally, Isis Plumbing d Heating Co.. 138 NLRB 716 (1962).
9 In the event that this Order is enforced by a Judgment of a United
Slates Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
o1069