Edenwald Construction Co., Inc. And Belt Contracting Co., Inc.

National Labor Relations Board - Board Decisions

May 30, 1989

294 N.L.R.B. 297 (N.L.R.B. 1989)

EDENWALD CONSTRUCTION CO 297
Edenwald Construction Co., Inc . and Belt Contract-
ing Co., Inc. and Attmore Walton . Case 29-
CA-12779
May 30, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On May 6, 1988, Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondents, Edenwald Construction Co.,
Inc. (Edenwald) and Belt Contracting Co. Inc.
(Belt), filed exceptions and a supporting brief, and
the General Counsel filed exceptions and a sup-
porting brief and an answering brief in response to
the Respondents' exceptions to the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings, 2
and conclusions only to the extent consistent with
this Decision and Order.
The judge found that the Respondents, Eden-
wald and Belt, are an integrated business enterprise
and constitute a single employer, and that their em-
ployees constitute a single appropriate unit. He
thus concluded that the Respondents violated Sec-
tion 8(a)(5) and (1) of the Act by failing and refus-
ing to provide the employees of Belt with the
wages and benefits contained in Edenwald's collec-
tive-bargaining agreement with Operating Engi-
neers Local 15C (Local 15C), covering certain
Edenwald employees.
We agree with the judge, for the reasons stated
in his decision, that the Respondents constitute a
single employer. However, we disagree with his
finding that the Respondents unlawfully failed to
apply the terms of the bargaining agreement to the
Belt employees because we find inadequate support
for his conclusion that the Belt employees do not
constitute a separate appropriate unit.
A finding of single employer status, as the judge
recognized, does not in itself mean that the em-
ployees of both entities composing the single em-
1 As correctly observed by the Respondents in their brief, the judge
erred in finding that the motion to correct the transcript was made solely
by the General Counsel The motion was jointly made by the General
Counsel and the Respondents
2 The Respondents have excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re-
versing the findings
ployer will be included in a single bargaining unit
covered by a collective-bargaining contract signed
by only one of the nominally separate employers.
As stated in Land Equipment, 248 NLRB 685, 688
(1980):
[A single employer] finding, though rele-
vant, is not conclusively determinative as to
whether an employerwide unit is appropriate
since the criteria for finding a single employer
are different from those for determining the
appropriatenesses of the unit. South Prairie
Construction Co. v. Local 627, International
Union of Operating Engineers, AFL-CIO, 425
U.S. 800 (1976); Frank Naccarato, a Sole Pro-
prietor, d/b/a Naccarato Construction Company,
et al., 233 NLRB 1394 (1977).
In determining the scope of the unit, the pri-
mary concern is the community of interest of
the employees involved. The relevant factors
to be considered are bargaining history, the
functional integration of operations, the differ-
ences in the types of work and the skills of
employees, the extent of centralization of man-
agement and supervision, particularly as to
labor relations and control of day-to-day oper-
ations, and the extent of interchange and con-
tact between the groups of employees. Naccar-
ato Construction Company, supra; Peter Kiewit
Sons' Co. and South Prairie Construction Co.,
231 NLRB 76 (1977).
Edenwald is a general contractor involved, inter
alia, in heavy construction, and has had a long bar-
gaining relationship with Local 15C. Belt, which
began operations in 1983, has had no bargaining re-
lationship with Local 15C at any time. Local 15C
has made no appearance in this proceeding, and
there is no indication on this record that Local 15C
currently seeks or has ever sought to represent the
Belt employees.
The most recent collective-bargaining agreement
covering Edenwald's Local 15C-represented em-
ployees was negotiated in late 1984, more than, a
full year after Belt began operations. Edenwald's
bargaining agreement with Local 15C, negotiated
by the General Contractors Association of New
York, has a broad description of the scope of the
bargaining unit covered by the contract, including
all employees who repair and maintain "contractor
machinery."3
That bargaining agreement defines the bargaining unit as follows
(a) All employees who repair, service, assemble, maintain and re-
build all types of contractor machinery including the welding there-
of, the handling, storing, pick-up and delivery of parts contingent to
the work and equipment covered by the agreement with the Union
and the driving maintenance vehicles in the performance of their
Continued
294 NLRB No. 22
298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As the judge found, Edenwald's employees cov-
ered by the bargaining agreement include mechan-
ics and welders, who work both in the field and at
Edenwald's premises. The evidence shows that the
mechanics repair heavy equipment, and they gener-
ally possess special expertise in regard to engines,
transmissions , or electrical work. An Edenwald
mechanic, in addition to the above repair duties,
also drives a fuel truck to the worksites in order to
maintain fuel supplies. The welders do "heavy
welding," i.e., work involving the fabrication or
maintenance of extremely heavy pieces, such as
caterpillars, bulldozers, and heavy-duty hydraulic
excavators. Edenwald employees are supervised by
Working Foreman Manuel Ortiz, who also deter-
mines the repairs to be made to equipment, and
who does some of the more intricate work.
George Paletta, related by marriage to Eden-
wald's owners, and one of the two Belt owners,
also performs "consulting" work for Edenwald.
Although the record indicates that Paletta is famil-
iar with Edenwald's operations, the record does
not indicate his exact responsibilities for that Com-
pany. The judge found that both Paletta and Ortiz
confer on a daily basis in order to plan the work to
be performed by the employees of Edenwald and
Belt.
Belt began operations in 1983 for the purpose of
repairing and maintaining equipment owned by
Edenwald,4 and Edenwald provided the start-up
capital for Belt. The record contains little specific
information about Belt's activities during the first
2-1/2 years of its existence, but it appears that
Belt's operations have been essentially unchanged
from its inception. Belt employees generally repair
and maintain small tools and equipment, including
vans, trucks, and automobiles. For instance, Belt
employees repair small tools, saws, and pumps and
perform light mechanical work on small equipment
and vehicles, e.g., hose changing, tire changing,
and minor maintenance . Belt also has two employ-
ees who work as a parts man and a yard man, re-
spectively.
Part of the work performed by Belt employees
involves welding. Although the testimony estab-
lished that a Belt employee did welding on buckets
from Edenwald's heavy equipment, he did so only
after the buckets were removed from the equip-
ment . Based on Charging Party Walton' s testimo-
duties, the driving of fuel, oil and grease trucks used to fuel and
service contractors' equipment
(b) All employees who operate, only at the [employer's] premises,
hoisting devices, such as overhead cranes, yard derricks, portable
cranes, forklifts and similar equipment, all in accordance with prior
jurisdictional precedents
4 The record does not detail how this maintenance work was per-
formed prior to Belt's formation The record, however, does indicate that
such work is occasionally performed by outside companies
ny, which was characterized as "sketchy," the
judge found that both Edenwald and Belt employ-
ees performed the same light work in connection
with repairs and maintenance .5 The judge also
found that some of the Edenwald welders are certi-
fied to do certain types of work not performed by
Belt employees and that some complicated repairs
are made solely by Edenwald mechanics. Paletta
testified that he ran the day-to-day operations for
Belt, but the judge found that Ortiz' involvement
with Belt employees was considerable and that
they worked under his supervision. The judge ob-
served that Ortiz screened all applicants for em-
ployment with Belt.
In view of the above and for the reasons dis-
cussed below, we find that the General Counsel
has not shown that the Belt employees fail to con-
stitute a separate appropriate unit. To the contrary,
we find that the Belt employees enjoy a separate
community of interest from the Edenwald employ-
ees.
We disagree with the judge's conclusion that the
evidence of overlap between the work of the
Edenwald employees and Belt employees is suffi-
cient to negate any distinction between the core
functions of these two groups of employees. Clear-
ly, the principal assignment of the Edenwald em-
ployees was to perform the more complicated
work, and that of the Belt employees was to per-
form the repair and maintenance work on the
smaller pieces of tools and equipment. Employee
Walton's limited testimony-which relied solely on
his own experience and which the judge criticized
as being "extremely vague"-has limited probative
values for establishing the overall nature of the
overlap, especially where Walton acknowledged
that he performed only occasional work at con-
struction sites after August 1985, more than a year
before he filed the charge in this case. Indeed, that
testimony suffers in comparison with the evidence
indicating that the central work performed by
these two groups of employees is distinct and that
the level or nature of the skills involved is distin-
guishable.
. Finally, we disagree with the judge' s statement
that Local 15C's failure to request the inclusion of
the Belt employees in the Edenwald bargaining
unit is not probative on any of the issues in this
case, given the settled principle that bargaining his-
5 In agreeing with the judge's finding that there is some overlap in the
work assignments of Belt employees and Edenwald employees, we do
not rely, as he did, on the Respondents' stipulating that the equipment
and maintenance and repair services for Edenwald were and are custom-
arily performed by either Edenwald or Belt employees This stipulation
indicates no more than that specific repair work was performed by either
an Edenwald employee or a Belt employee, but not necessarily by both
EDENWALD CONSTRUCTION CO
tory is a relevant factor in assessing employee com-
munity of interest. In this regard, there is no claim
or evidence that Local 15C was unaware of Belt's
existence or its function, or the nature of the work
performed by its employees. Thus, it is significant
that Belt was in existence for 2-1/2 years prior to
the institution of the present proceeding, and that
at no time did Local 15C, the union that represents
Edenwald's employees, seek to represent the Belt
employees. Such separate bargaining history,
which resulted in the Belt employees not being
covered by the bargaining agreement,6 strongly
supports the Respondents' claim that the Belt em-
ployees possess a separate community of interest.
We find, therefore, that the separate bargaining
history for Edenwald's employees to the exclusion
of Belt's employees, coupled with the differences in
skills and types of work performed by the two
groups of employees, are determinative of the unit
issues presented in this case. These factors clearly
outweigh the evidence that Belt employees per-
formed repair and maintenance services necessary
for Edenwald's operations and had a significant
degree of contact with Edenwald employees and
that Ortiz and Paletta worked in close cooperation
in order to coordinate the work of the Edenwald
and the Belt employees. Accordingly, we find that
the General Counsel has failed to establish that the
Belt employees do not separately constitute an ap-
propriate unit . We further find that it would be im-
proper to impose on the employees of Belt the col-
lective-bargaining agreement executed by Eden-
wald and Local 15C and that the Respondents
have not violated Section 8(a)(5) and (1) by failing
to do so.7 We shall therefore dismiss the complaint
in its entirety.
6 We find that the judge 's reliance on the broad nature of the contrac-
tual language regarding the description of the collective -bargaining unit
is misplaced It does not follow that , simply because the two companies
constitute a single employer , the contractual unit description pertaining
to the employees of one of the companies a priori establishes that the un-
represented employees of the other company are , or should be , included
in the contractual unit because their job classifications seem to comport
with those set forth in the contractual unit The determination whether
they may or may not constitute an appropriate (separate) unit depends on
their community of interest and the relevant factors that we have noted
above In this regard , the contractual unit description is a factor to be
considered but only to see if the job descriptions or classifications of the
unrepresented employees , in comparison with those pertaining to the rep-
resented employees , are similar
' Although we have decided this case without speaking in terms of
whether the Belt employees could be accreted to the Edenwald unit, our
finding that the Belt employees have a separate community of interest
would effectively foreclose any accretion See Melbet Jewelry Co, 180
NLRB 107, 109 (1969) We also note that the judge erred in finding that
the Edenwald employees outnumbered the Belt employees The record
includes a document establishing that during the period between June
1986 and July 1987, Edenwald 's complement of unit employees (exclud-
ing Ortiz) ranged from 7 to 9 and Belt 's employee complement ranged
from 8 to 15 At no time during this period did the unionized Edenwald
unit employees outnumber the unrepresented Belt employees
ORDER
The complaint is dismissed.
299
Kevin R . Kitchen, Esq., for the General Counsel.
Joan L. Paley, Esq. (Berman, Paley, Goldstein & Berman),
of New York, New York, for the Respondents.
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was heard by me at Brooklyn, New York, on 4
and 5 November 1987.1 The complaint, based on a
charge filed by Attmore Walton, an individual, alleges
violation of Section 8(a)(1) and (5) of the National-Labor
Relations Act (the Act) by reason of the refusal of the
Respondents, Edenwald Construction Co., Inc. (Eden-
wald) and Belt Contracting Co., Inc. (Belt) to pay to
Belt employees the same wages and benefits received by
Edenwald employees under that Company's collective-
bargaining agreement with International Union of Oper-
ating Engineers , Local 15C, AFL-CIO (the Union). The
complaint alleges that the two companies constitute an
integrated business enterprise and a single employer.
In separate answers interposed on their behalf by the
same attorney, the two Respondents deny that they area
single employer and deny that Belt employees are being
unlawfully depraved of rights under the collective-bar-
gaining ageement.
The parties were afforded full opportunity to be heard;
to call , examine, and cross-examine witnesses ; and to in-
troduce relevant evidence. Posthearing briefs have been
filed by the General Counsel and by counsel for the Re-
spondents.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed, I make the following
FINDINGS OF FACT
1. JURISDICTION
Edenwald's answer admitted that Edenwald is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, while Belt's answer
denied that Belt was such an employer. Edenwald, how-
ever, can be presumed to know its own status, and facts
stipulated at the hearing and recited in the next section
make it clear that jurisdiction over Edenwald exists. As
appears hereinafter, I find that the two companies are in-
tegrated business enterprises which constitute a single
employer, and thus jurisdiction exists over both of them.
Sakrete of Northern California, 137 NLRB 1220 (1962)
Moreover, Respondents' counsel admitted pertinent juris-
dictional allegations in her opening statement . Accord-
ingly, I find that at all times material here, the Respond-
ents were and are engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Both an-
i The motion of the General Counsel to correct errors in the transcript
is granted and the transcript is deemed amended in accordance with the
terms of the motion
300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
swers admit, and I accordingly find, that the Union was
and is a labor organization within the meaning of Section
2(5) of the Act.
H. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Business of Respondent's and the Work of
Their Employees
The following facts were stipulated by counsel.2 Eden-
wald and Belt are New York corporations. Both operate
out of offices located in Whitestone, Queens, New York.
Edenwald received, in the year preceding issuance of the
complaint, materials and machine parts from points out-
side of New York State having a value in excess of
$50,000, and performed services valued in excess of
$50,000 for various enterprises located in New York
State which were directly engaged in interstate com-
merce and met the Board standard for the assertion of
jurisdiction exclusive of indirect inflow or indirect out-
flow.
.Belt, at all times, was engaged in, providing equipment
maintenance services and related services exclusively to
Edenwald, and during the year preceding issuance of the
complaint performed services valued in excess, of
$50,000. Edenwald is directly engaged in interstate com-
merce and meets the Board standard for the assertion of
jurisdiction, exclusive of indirect inflow or indirect out-
flow.
Edenwald is a general contractor involved in heavy
construction and sewer and road work, mostly under
contracts with municipal agencies . Its work volume is
necessarily seasonal. It is party to a collective-bargaining
agreement which had been negotiated with the Union by
the General Contractors Association of New York, Inc.
to which it had given its assent . It defines the appropri-
ate bargaining unit as follows:
(a) All employees who repair, service, assemble,
maintain and rebuild all types of contractor machin-
ery including the welding thereof, the handling,
storing, pick-up and delivery of parts contingent to
the work and equipment covered by the agreement
with the Union and the driving of maintenance ve-
hicles in the performance of their duties, the driving
of fuel, oil and grease trucks used to fuel and serv-
ice contractors' equipment.
(b) All employees who operate, only at Respond-
ents' premises, hoisting devices, such as overhead
cranes, yard derricks, portable cranes, forklifts and
similar equipment, all in accordance with prior ju-
risdictional precedents
Edenwald's unit employees varied in number at vari-
ous periods of the year, averaging 18 with a mean of 38.
The average number of Belt employees was 7 with a
2 The matters narrated in this decision without evidentiary comment
are those facts found by me on the basis of admissions in the answers,
data contained in the exhibits, stipulations between or concessions by
counsel, undisputed or uncontradicted testimony, and, in instances where
conflicts in the testimony did not warrant discussion, the testimony
which I have credited
mean of 12. (The available figures were for the year
from 21 June 1986 through 11 July 1987.)
The Respondents contend that Belt supplies a service
to Edenwald consisting of repair and maintenance of the
small vans, trucks, and automobiles, utilized at the Eden-
wald jobsites, while Edenwald itself is engaged in the
construction business. Thus, there is no integrated oper-
ation at major levels and the employees of Belt either do
not perform the same kind of work as the Edenwald em-
ployees, or they do it on a lighter scale. There is overlap
only in the essential nature of some of the work, but in
reality, it is claimed, it was different because the union
personnel were engaged in operation and repair of ex-
tremely heavy equipment while the nonunion personnel
were limited to lighter types of equipment.
The testimony established that Edenwald' s union mem-
bers included mechanics, whose function was to repair
heavy equipment, and who generally possessed some spe-
cial expertise in regard to engines, transmissions , or elec-
trical work; a welder who, according to George Paletta,
the secretary-treasurer of Belt, did "heavy welding"; a
mechanic who traveled in the field fixing breakdowns of
heavy construction equipment; a welder who worked
both in the yard and in the field, and who, according to
Paletta, did "complicated work" in both places; and a
second traveling mechanic who went out 6 days a week
on a fuel truck to maintain fuel supplies, and who did
repair work both in the yard and in the field. Paletta de-
fined "heavy welding" as work which involved the fabri-
cation or maintenance of extremely heavy pieces such as
the caterpillars, bulldozers, and heavy-duty hydraulic ex-
cavators. Thus, Edenwald's employees included both me-
chanics and welders, who worked both in the field and
at Edenwald's premises and performed construction
work and repairs on their own equipment
Walton's testimony comparing the type of work per-
formed by the employees of the two companies was
sketchy, but in the main indicated similarity between the
work done by Belt employees and that performed by a
considerable number of Edenwald employees. Walton
was a welder. As a welder, he worked alongside union
welders and alongside employees of both Edenwald and
Belt. He did welding work at the shop and at construc-
tion sites. The fact that his testimony was imprecise and
he was unable to furnish details of time, place, and iden-
tity of coworkers does not alter the essential thrust of his
testimony that employees of both companies did essen-
tially similar work. Paletta's testimony tended to confirm
this. He claimed that certain welders performed more in-
tricate work and were required to be licensed in order to
be allowed to work at certain sites and on derricks,
cranes, and gas mains, but he conceded that welders
were not required to be certified for much of Edenwald's
work. This put Walton, who was not certified at the
time he was hired, on the same plane as some of Eden-
wald's unionized welders.
Respondents contended that the business of Belt was
limited to supplying repair and maintenance service for
the small vans, trucks, and automobiles used by Eden-
wald in the contraction business . Paletta testified to the
work functions of persons on the Belt payroll, all of
EDENWALD CONSTRUCTION CO. 301
whom were nonunion . As names were presented to him,
he described their duties: welders; repairer of small tools,
saws, pumps (no welding involved); tire-changing and
light mechanical work on small equipment and small
trucks; automotive mechanic on small trucks and other
items; parts man; yard man; hose-changing and minor
maintenance-type repairs, as on tires . He observed that
the men who did truck and automotive repairs had back-
grounds with car and used truck dealers or gas stations
and that when they did repairs on heavy equipment,
such as buckets, it was only after the buckets were taken
off the equipment . When asked to be more specific about
what a worker actually did when he was performing a
"mechanical function," Paletta stated that he would
"change sparkplugs, he would take the partner saws
apart, pumps apart . . . pull the gaskets. Whatever was
wrong with the small power-tool-type equipment, which
is basically the saws and the pumps, et cetera."
It was stipulated that equipment maintenance and
repair services for Edenwald were and are customarily
performed by either Edenwald or Belt employees and
are occasionally performed by outside companies. The
interchangeability is apparent, some Edenwald employ-
ees performing the same light work that Belt employees
did in connection with repairs and maintenance and Belt
employees performing Edenwald work, both in and out
of the premises . Walton testified that he worked side by
side with Edenwald employees, in the field and in the
shop. It was his understanding that they were unionized
because they told him so, although they never explicitly
mentioned Local 15C; he inferred that that was their
union because there was no other union in the shop. He
testified that at the time he was hired Ortiz tested him
and put him to work in the shop for the first 2 weeks.
Thereafter, until the first week in August 1985, he
worked in the field, returned to work in the shop in
1986, and from then until the end of his employment on
2 October 1986 he was sent into the field from time to
time. Though, on cross-examination, Walton was ex-
tremely vague with respect to when and where he
worked outside the shop, his testimony in that regard
was not controverted.
The evidence adduced at the hearing warrants the
conclusion that Belt employees perform the same kind of
work as a number of the Edenwald employees. While
the latter perform some types of work in the construc-
tion industry which Belt employees do not perform,
they, and the Belt employees, perform work in the cate-
gory described in the definition of the appropriate bar-
gaining unit contained in the collective- bargaining agree-
ment that covers "All employees who repair, service, as-
semble, maintain and rebuilt all types of contractor ma-
chinery including the welding thereof." (Emphasis sup-
plied.) It includes employees who are engaged in the
"handling, storing, pickup and delivery of parts contin-
gent to the work and equipment covered by the agree-
ment with the Union."
It is therefore immaterial that some of the Edenwald
welders are certified to do certain types of work which
are not performed by Belt employees or that some com-
plicated repairs are made only by Edenwald personnel.
There appears to have been plenty of lighter work to go
around; and it was done by employees of both Belt and
Edenwald. Significantly, the collective-bargaining agree-
ment draws no distinction but relates to repairs on all
types of equipment. Paletta's testimony, carefully draw-
ing a picture of heavy work by Edenwald employees and
light work by Belt employees, counts for naught in the
light of the description of the unit to which Edenwald
agreed.3
I find, therefore, that the Belt employees perform the
same kind of work performed by certain of Edenwald's
unionized employees and perform work of the type de-
scribed in the definition of the appropriate bargaining
unit contained in the collective-bargaining agreement
which was in force between Edenwald and the Union at
the pertinent times in this case.
B. The Interrelationships of the Respondents
The Respondent Companies are owned and operated
by four closely related persons. George Follini is presi-
dent and his brother, Charles Follini, is secretary-treasur-
er of Edenwald. They are Edenwald's sole stockholders
and directors. Robert Follmi, their nephew, is president,
and George Paletta„ son-in-law of George Follini, is sec-
retary-treasurer of Belt. They are the sole stockholders
and directors of that corporation.
Paletta is deeply involved in and conversant with the
affairs of Edenwald. He testified unhesitatingly with
regard to its payroll, its employees, and its operations.
He testified that he performs "consulting" work for
Edenwald relating to its equipment and service require-
ments. He started to say that he received a salary for
that work, but corrected himself and stated that he re-
ceives a check and not a salary. No one who was admit-
tedly affiliated with Edenwald appeared at the hearing;
the testimony on behalf of both Respondents came
almost entirely from Paletta.
Besides Paletta's detailed testimony regarding Eden-
wald's payroll records and employees, he testified with
regard to the status of Manuel Ortiz. Ortiz was an Eden-
wald employee and Edenwald's answer admitted that he
was a supervisor of Edenwald's employees within the
meaning of Section 2(11) of the Act. He was a working
foreman, a Class A mechanic, and a member of the
Union. The existence of crossover management was ob-
vious, with both Paletta and Ortiz involved in all aspects
of the work of both companies. The authority of Ortiz
over the employees of Edenwald and the Edenwald shop
was described by Paletta: "He directs the employees' op-
eration in the shop, he determines the repairs to the
equipment and he will do some of the work himself on
the intricate matters."
Consultation between Paletta and Ortiz is intensive.
They confer everyday. They set up work for the follow-
ing day. Paletta seemed to make no distinction between
planning for Edenwald work and planning for Belt
work. He testified that he and Ortiz "will set up what
has to be done. He will follow up and oversee . . . and
s Testimony by Robert Follini, Belt's president, and Paletta, Belt's sec-
retary-teasurer, that they were never asked by Local 15C to include Belt
employees in the Edenwald bargaining unit, is not probative on any of
the issues of this case
302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
report to me . . . how the situations are going " "Situa-
tions" is a word that more appropriately refers to con-
struction jobs than minor repairs The reports he re-
ceived from Ortiz covered the work of both companies,
involving the equipment under repair and the "progress
of the shop in general" and they discussed "areas . . . to
be done":
Q. Does Mr. Ortiz have any input on the work
that 's to be done?
A. He can make suggestions . I will know where
the necessary areas are to be done.
Q. And you say he reports to you.
A. Yes.
Q. What does he report to you?
A. He reports the progress of whatever equip-
ment is being repaired , he reports on any new inno-
vations that might be coming out that I might be in-
terested in and he reports on the progress of the
shop in general.
Q. And Mr . Ortiz also supervises Edenwald em-
ployees as well, does he not?
A. Yes, he does.
It is impossible to tell where their concern with one
company ends and their concern with the other begins,
which is not surprising in view of the enormous amount
of evidence of common management and control, even
to the extent of representation by one attorney at the
hearing. Antonio Fiorenza is controller of both compa-
nies and filed corporate banking resolutions with Chemi-
cal Bank for Edenwald and with Chase Manhattan Bank
for Belt He is a signatory for checks of both corpora-
tions. The two companies share space in premises leased
by Edenwald , but Belt is not a party to any lease and
pays no rent at all. Edenwald purchases all supplies for
both companies . Belt makes no purchases and owns no
equipment Employees of both companies change into
their work clothes in the same locker room . They all
wear work uniforms distributed by Ortiz which bear the
name of Edenwald . Such accounting , payroll, auditing,
and legal services as Belt may require are furnished
through Edenwald. Edenwald is Belt's sole customer and
its only source of revenue. It was founded by Edenwald,
which provided its startup capital . Under these circum-
stances, it is of little significance that Belt renders bills to
Edenwald which Edenwald pays by check, and that Belt
pays its own payroll and insurance expenses . The tie-in is
so complete that Belt 's business volume varies in direct
proportion to the seasonal activity of Edenwald and Belt
lays off employees during Edenwald 's slow periods.
Walton testified that he never saw Belt 's name on any-
thing but his paycheck stubs. It was easy for him to be
confused as to the identity of his employer in view of the
similar type of work being done by employees of the
two companies and the omnipresent supervision of Ortiz.
Paletta contended that Walton could not have been
confused about whom he worked for because he inter-
viewed him for the job after Ortiz recommended him
and they discussed pay rate and duties. Walton insisted
that only Ortiz interviewed him and that he did not
speak to Paletta until 60 days later when he wanted to
get a pay raise and was told by his coworkers that Pa-
letta was the man he had to talk to. I credit Walton's tes-
timony. Though Paletta asserted that he ran the day-to-
day operations of Belt and that there were no other su-
pervisors employed by Belt, his testimony also showed
that Ortiz ' involvement with Belt 's affairs is considerable.
Paletta naturally has the final word on hiring , but Ortiz
interviews prospective employees for him and ascertains
their knowlege and experience . Paletta testified he re-
ceives Ortiz' recommendations and did not claim to have
ever rejected or reinterviewed any of the applicants rec-
ommended by Ortiz.
Walton 's testimony presents difficulties . His assertion
that he believed he was working for Edenwald because,
among other things, he did not examine his paychecks
during the first 8 or 10 months of his employment is hard
to believe. His testimony regarding when and where he
worked off the Edenwald premises is vague He knew
only first names or nicknames of coworkers. He had to
concede, despite his initial testimony , that after August
1985 he worked in the field only occasionally . But his
demeanor was credible and the rest of his testimony
amply supported the General Counsel 's contentions. His
basic story , that he worked alongside union employees
doing similar work both on and off the Edenwald prem-
ises, remains unrebutted and for the most part not even
denied by Paletta.
Much of Paletta 's testimony simply confirmed and am-
plified the other evidence in the record that Respondents
were an integrated business enterprise and a single em-
ployer . The employees work in a common workplace or
at the same worksites , side by side. The similarity or
identity of their work functions is significant in extent,
and where it differs it does so because some Edenwald
employees who perform the same work have a higher
degree of experience or expertise and therefore handle
more complicated work or because they are employees
who are primarily involved in Edenwald 's construction
work . Employees are interchanged between the two
companies to the extent that their nominal employment
by one or the other of the companies does not restrict
the manner of their assignment . They all work under the
supervision of Manuel Ortiz , a working foreman on the
Edenwald payroll who is concededly a supervisor within
the meaning of Section 2(11) of the Act. Ortiz works
closely with and reports daily to Paletta and has an im-
portant function in screening job applicants for both, Belt
and Edenwald.
There certainly is no arm 's-length relationship between
the companies . Belt was started up with capital provided
by Edenwald to provide specific services for Edenwald,
and has no other customer . Its equipment and administra-
tive needs are met by Edenwald . One person is control-
ler of both companies . Belt derives its entire income
from Edenwald Close family ties bind the principals of
the two companies . There truly exists in this situation
"such actual or active common control, as distinguished
from merely a potential , as to denote an appreciable inte-
gration of operations and management policies." See
Teamsters Local 639, 158 NLRB 1281 , 1286 (1966).
Accordingly , I find that Edenwald and Belt are a
single employer of the Belt employees.
EDENWALD CONSTRUCTION CO 303
C. Conclusions
I have found that the Respondents are an integrated
business enterprise and constitute the single employer of
certain unionized Edenwald employees and of employees
of Belt who perform similar work functions. The appro-
priate bargaining unit defined in the collective-bargaining
agreement between Edenwald and the Union includes
employees performing those work functions. The Re-
spondents moved at the hearing to dismiss the complaint
on the ground that single employer status had not been
established and that, even if it had been, the incorpora-
tion of the Belt employees into the bargaining unit would
have been an unlawful accretion since they would have
been deprived of their right to vote on representation.
Decision on the motion was reserved until decision on
the overall record. The accretion argument deserves
comment, for my conclusion that Respondents constitute
a single employer does not necessarily mean that all em-
ployees belong in the same bargaining unit. The circum-
stances must determine whether one or separate units are
appropriate. See supplemental decision in Peter Kiewit
Sons' Co, 231 NLRB 76 (1977). In the circumstances of
this case, the motion must be denied.
The bargaining unit description covers employees who
repair and maintain "contractor machinery , including the
welding thereof." Paletta described the work of the Belt
employees as involving the repair of automobiles, vans,
and buckets (after they were detached from the heavy
equipment).
No real accretion issue exists , for the reasons that the
Belt employees would not more naturally form a sepa-
rate unit in the context of the existing work situation.
This case simply amounts to a question of whether they
are properly includable in an existing bargaining unit
which is defined to include the very type of work func-
tion they are performing. It requires an affirmative
answer. The evidence adduced as to the respective num-
bers of Edenwald and Belt employees is therefore not
germane to this discussion (It works to the advantage of
inclusion in any event, for the Edenwald employees out-
numbered the Belt employees.) The Respondents are
simply ignoring the facts of this case in their reliance on
cases such as Wackenhut Corp., 226 NLRB 1085 (1976),
and Servair, Inc., 252 NLRB 670 (1980), in which the
work situations were such that the groups of employees
involved could constitute appropriate units on their own.
Reliance is similarly misplaced in NLRB v. Stevens Chrys-
ler-Plymouth, 773 F.2d 468 (2d Cir 1985), for in that case
the court expressly pointed out that not only were there
significant differences in employment conditions and su-
pervision of two groups of automotive service employees
of a single employer, but one group had been conscious-
ly excluded from a prior election held among employees
of the other group by express agreement. (Mere failure
of the Union here to demand the inclusion of the Belt
employees in the unit is not the same as a deliberate, ex-
press agreement excluding a group of employees.)
Accordingly, Respondents have violated Section
8(a)(1) and (5) of the Act. Appalachian Construction, 235
NLRB 685 (1978).
CONCLUSIONS OF LAW
1. Edenwald Construction Co., Inc. and Belt Contract-
ing Co., Inc. constitute a single employer for jurisdic-
tional purposes and are now and have been at all times
material engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Union of Operating Engineers, Local
15C, AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondents violated Section 8(a)(1) and (5) of the
Act by failing and refusing to provide the employees of
Respondent Belt Contracting Co, Inc. with the wage
rates or the benefits contained in the collective-bargain-
ing agreement effective from 9 October 1984 through 8
October 1987 to which the Union and the General Con-
tractors Association of New York, Inc. were signatories
and to which it had assented.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
REMEDY
Having found that the Respondents have engaged in
certain unfair labor practice, I find it necessary to order
them to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act. The
Respondents, jointly and severally, shall be required to
make Attmore Walton, and any other emloyee on the
payroll of Belt who has received less than contract rates
of pay, whole for earnings losses suffered by reason of
Respondents' failure to pay wages and benefits at the
rate called for in the contract from and after 19 June
1986, with interest, as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987) 4
In his posthearing brief, counsel for the General Coun-
sel has requested a visitatorial clause authorizing the
Board, for compliance purposes, to obtain discovery
from the Respondents under the Federal Rules of Civil
Procedure, subject to supervision of the United States
court of appeals enforcing the Order However, nothing
in his lengthy argument in support of the request relates
specifically to the conditions or the circumstances of this
case. Instead , it urges such inclusion on the basis of gen-
eral utility while counsel concedes that "it is impossible
to predict at the pre-compliance stage which respondents
will later refuse to cooperate." In the absence of any
demonstration that a visitatorial clause is needed under
the circumstances of this case , I find it unnecessary to in-
clude such a clause.
[Recommended Order omitted from publication.]
° Under New Horizons, interest is computed at the "short -term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 US C § 6621 Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp, 231
NLRB 651 (1977)