L & J Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Feb 13, 1985

274 N.L.R.B. 20 (N.L.R.B. 1985)

20 DECISIONS OF NATIONAL/,LABOR RELATIONS BOARD
L & J Equipment Company, , Inc. and Willow, Tree
Coal Company and United Mine Workers of
America
L & J Equipment Company , Inc. and United Mine
Workers of America. Cases 6=CA-15854 and
6-CA-16225
13 February 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 August 1983 Administrative Law Judge
Robert M. Schwarzbart issued the attached deci-
sion. Respondent L & J Equipment Company, Inc.
(L & J), Respondent Willow Tree Coal Company
(Willow Tree), the Charging Party, and the Gener-
al Counsel filed exceptions and supporting briefs. L
& J filed a reply brief to the General Counsel's and
the Charging Party's exceptions.
The National Labor Relations Board has consid-
ered the decision and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge's rulings, findings,' and conclusions2 and to
adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' 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 L & J paid $20 to $25 a ton for coal purchased from
Willow Tree, rather than $20 to $23
2 We have assessed the complaint in light of the animus finding in L &
J Equipment Co, 272 NLRB No 104 (1984) (not reported in Board vol-
umes) That decision does not alter our conclusion that L & J and
Willow Tree are not alter egos or a single employer Given our dismissal
of the complaint, we find it unnecessary to pass on L & J's motion to
strike pleadings
As noted by the judge, the Board in L & J Equipment Co, 266 NLRB
No 29 (1983) (not reported in Board volumes) found that Respondent L
& J Equipment violated Sec 8(a)(5) and (1) of the Act by, inter alia, re-
fusing to bargain with the Union following the Union's certification Sub-
sequent to the issuance of the judge's decision herein, the United States
Court of Appeals for the Third Circuit denied enforcement to the
Board's Order in that earlier case and remanded the case to the Board for
further proceedings concerning certain of the objections in the underly-
ing representation proceedings See 745 F 2d 224 (Sept 28, 1984) In
view of our agreement with the judge's dismissal of the unfair labor prac-
tice allegations herein, we find it unnecessary in this proceeding to reach
the issue of whether Respondent L & J Equipment generally has an obli-
gation to bargain with the Union as the exclusive representative of its
employees
DECISION
STATEMENT OF THE CASE
ROBERT M SCHWARZBART, Administrative Law
Judge This case was heard in Pittsburgh, Pennsylvania,
on May 16, 17, and 18, 1983, pursuant to charges' filed
by United Mine Workers of America, the Union, and
complaint, issued November 26, 1982.2 The complaint al-
leges that L & J Equipment Company, Inc. (L & J)3 and
Willow Tree Coal Company (Willow Tree) are alter
egos, and, as such, violated Section 8(a)(1), (3), and (5)
of the National Labor Relations Act (the Act). Alterna-
tively, if alter ego status is not found, it is alleged that L
& J alone violated Section 8(a)(5) and (1) of the Act Re-
spondents L & J and Willow Tree in their answer deny
the commission of any unfair labor practices.
Issues
1 Whether L & J and Willow Tree are alter egos
2. If so, whether the Respondents violated Section
8(a)(5) and (1) of the Act by unilaterally opening the
Willow Tree jobsite a short distance from L & J's main
jobsite without prior notice to and bargaining with the
Union.
3. Whether the Respondents violated Section 8(a)(3)
and (1) of the Act by discriminatorily hiring outside em-
ployees to work at the Willow Tree Jobsite instead of re-
calling bargaining unit employees on layoff from L & J
at its main site for employment at Willow Tree.
4 Alternatively, if L & J and Willow Tree are not
found to be alter egos, whether Respondent L & J vio-
lated Section 8(a)(1) and (5) of the Act by unilaterally
subcontracting operations previously performed at its
jobsite to Willow Tree without prior notice to or bar-
gaining with the Union
All parties were given full opportunity to participate,
to produce relevant evidence, to examine and cross-ex-
amine witnesses, and to file briefs Briefs, filed by the
General Counsel, the Union, and by L & J and Willow
Tree, separately, have been carefully considered
FINDINGS OF FACT
1. JURISDICTION AND THE RESPONDENTS' ALLEGED
STATUS AS ALTER EGOS
A. The Business of the Respondents
L & J and Willow Tree are Pennsylvania corporations
engaged in the surface mining of coal L & J's principal
office and place of business is located in Masontown,
Pennsylvania , while Willow Tree's sole facility is at
Garads Fort , Pennsylvania.
i The charge and first amended charge were filed on October 12 and
November 24, 1982 , respectively
2 All dates hereinafter are within 1982 unless otherwise specified
At the hearing , I approved an informal settlement agreement of the
separately issued complaint in Case 6-CA-16225, consolidated herewith,
involving alleged violations by L & J Equipment Company , Inc of Sec
8(a)(1) and (5) of the Act Accordingly , all future references herein will
be to Case 6-CA-15854
274 NLRB No. 5
L & J 'EQUIPMENT CO.
During the 12-month period ending October 31, 1982,
L & J and Willow Tree, collectively, in the course and
conduct of their operations, purchased and received
goods, services, and materials valued in excess of $50,000
directly from points outside the Commonwealth of Penn-
sylvania. On the foregoing conceded facts, the agreement
of the parties, and as the Board has recently exercised ju-
risdiction over L & J in recent earlier proceedings, cited
below, I find that L & J and Willow Tree are employers
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
B. Background
As more fully set forth in L & J Equipment Co.,4
where the Board, in granting summary judgment, found
that L & J violated Section 8(a)(1) and (5) of the Act
both by refusing the Union's requests to bargain with re-
spect to the present uiiit and to provide certain informa-
tion concerning unit employees. As that decision notes,
the Union was certified as bargaining representative in
Case 6-RC-9124 on April 16, 1982, for employees in the
following unit:
All full-time and regular part-time employees em-
ployed by [L & J] at its Hatfield [in Masontown],
Pennsylvania, and satellite jobsites;5 excluding
office clerical employees and guards, professional
employees and supervisors as defined in the Act.
On August 4, 1982, the Board denied L & J's request
for review of the Acting Regional Director's supplemen-
tal decision on its objections to the election and chal-
lenged ballots, and affirmed the Union's status as certi-
fied bargaining agent for the employees in the above bar-
gaining unit. Since the issuance of the Board's decision
granting summary judgment, no collective-bargaining
agreement has been signed.
Since the close of the hearing in the present matter,
Administrative Law Judge Leonard N. Cohen issued his
decision in L & J Equipment Co.,e where he found that
L & J, in attempting to defeat the Union's organizing
campaign at Hatfield, had violated Section 8(a)(1) of the
Act in seven ways. He also found that four employees
had been laid off in violation of Section 8(a)(3) of the
Act.
Contending that L & J and Willow Tree are alter
egos, a point strongly contested by the Respondents, the
General Counsel argues that the Respondents were
obliged to bargain with the Union concerning the open-
ing of the new jobsite at Willow Tree and to offer recall
to employees on layoff from L & J's main strip mine.7
21
Alternatively, the General Counsel maintains that if L
& J and Willow- Tree are not found to be alter egos, then
L & J alone has violated Section 8(a)(1) and (5) of the
Act by unilaterally subcontracting work performed by
bargaining unit employees at Hatfield to Willow Tree.
C. Willow Tree's Alleged Status as L & J's Alter Ego
1. The facts
Willow Tree' s status must be considered in the context
of the overall business operations of the Filiaggi family,
proprietors of approximately 3000 acres of land located
in Fayette and Greene counties, Pennsylvania.
The family's commercial principals are James and
Lawrence Filiaggi, brothers, who serve as president and
secretary-treasurer, respectively, and as sole directors of
both L & J and Filiaggi Holding Company, which owns
all L & J stock. The stock of Filiaggi Holding, in turn, is
held in equal shares by James and Lawrence Filiaggi.
James Filiaggi is the chief operating officer of L & J and
is most active in its affairs.
L & J, which is principally engaged in the contour,
surface, or strip mining of coal, does not hold leases or
permits from the Pennsylvania Bureau of Mining and
Reclamation, Department of Environmental Resources
(DER) which regulates mining activities, as it is char-
tered as an equipment company. However, since L & J's
founding, it has engaged in strip mining through the use
of its employees and equipment by way of a series of
family-held satellite companies that have mining permits
and realty leaseholds. These include:
Lawrence Coal Company: The stock of Lawrence
Coal is owned entirely by Lawrence Filiaggi, president.
Josephine Ozanich, employed as L & J's bookkeeper, is
secretary-treasurer. They are the sole directors and offi-
cers.
Filiaggi Coal Company: A sole proprietorship wholly
owned by James Filiaggi.
Marion Coal Company: All Marion Coal stock is
owned by James Filiaggi, the Company's only director
Currently, Nancy Coffman, James Filiaggi 's sister, is
president and Elizabeth Burns, a former L & J employee,
is secretary-treasurer.8
Sang Coal Company Wholly owned by its president,
James Filiaggi, Sang Coal ceased all operations before
January 1, 1981.
L & J's largest and principal mining site is at Hatfield
in Masontown, Pennsylvania,9 also known as the Hartley
site, i ° where it operates under a permit from Lawrence
Coal. i i
4 266 NLRB No 29 L & J's appeal of this decision is pending before a
US Court of Appeals
5 As will be detailed below, L & J, under permits owned by various
closely held satellite corporations, is engaged in coal strip mining at sev-
eral sites within Greene and Fayette counties L & J's largest jobsite is at
Hatfield in Masontown and the smaller jobsites are termed satellites
6 JD-(ATL)-50-83 (7/7/83) Judge Cohen's decision is presently pend-
ing before the Board
At the time, 10 bargaining unit employees were on layoff from L &
J's Hatfield site, but 5 to 10 miles from the like operation started at
Willow Tree The unilateral opening of the Willow Tree site without
notice or bargaining and the hire of two employees from outside the bar-
gaining unit , according to the General Counsel, were violative of Sec
8(a)(5) and (1) The Respondents are further charged with having violat-
ed Sec 8(a)(3) and (1) of the Act by discriminatorily hiring outside em-
ployees instead of laid-off Hatfield employees at Willow Tree
8 Before July 1982, Richard Filiaggi, then L & J supervisory foreman
and now a principal of Willow Tree, was president of Marion Coal
9 All mining locations referred to herein are in the Commonwealth of
Pennsylvania
10 The Hartley strip is named for Charles Hartley, the land's owner
and mining rights lessor Hartley, as will be indicated below, was associ-
ated with the Filiaggts in other real estate ventures Hartley also owns
the land where the Willow Tree jobsite is located
11 All the jobsites worked by L & J are in the Commonwealth of
Pennsylvania
22 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Under another permit from Filiaggi.Coal, L & J mines
the Khedive site situated 1 to 2 miles from the Hatfield
mine. By permit from Lawrence Coal, L & J mines sites
at Dunbar , Normalville, and Kennedy, all of which are
located 30 to 40 miles from Hatfield. Marion Coal holds
a permit to mine a site at Bridgeville in Alleghany
County, 50 to 60 miles from Hatfield . However, the
permit under which L & J mines in Bridgeville is from
Big Break Mining Company, which is not owned or op-
erated by members of the Filiaggi family. L & J also op-
erates at Fort Martin, 12 to 15 miles from Hatfield, under
a contract to haul and dispose of fly ash . No mining is
done at the Fort Martin location.
L & J's Hatfield site adjoins the West Penn Power
Company Hatfield Power Station L & J has a contract
with West Penn to deliver 30,000 tons of coal per month
to its Hatfield Power Station. To meet this agreement, L
& J uses coal which it mines at its Hatfield site, at its
above-described satellite locations , and which it pur-
chases from smaller mine operators in the area . The coal
to be used under the West Penn contract is delivered to
L & J's Hatfield site where, regardless of source, it is
commingled , weighed , dumped in a crusher , or else
piled . The coal is mixed to obtain the specifications re-
quired under the contract and then delivered to West
Penn's premises One of L & J's coal suppliers whose
output is used in its arrangement with West Penn is
Willow Tree, the asserted alter ego
Willow Tree was incorporated as a strip mining ven-
ture on June 5, 1981. Its stock is owned half by Richard
Filiaggi and half by Deborah Krzysiak, who, respective-
ly, are the president , secretary-treasurer , and sole direc-
tors. There are no other officers . Richard Filiaggi, age
26, is the son of Lawrence Filiaggi and Krzysiak , slightly
older, is the daughter of James Filiaggi. Richard Filiaggi
is in charge of the day-to-day operations of Willow Tree
while Krzysiak maintains the Company 's books and
records.
Willow Tree holds a drainage permit from DER12 to
mine at a jobsite at Garads Fort, 5 to 10 miles from the
main L & J Hatfield location Specifically, Willow Tree's
Garads Fort permit extends to both a 66-acre tract of
land owned by Charles Hartley and to an adjacent
second land tract of approximately the same size as the
Hartley property , owned by James and Lawrence Fi-
liaggi in undivided one quarter shares each, and by
Charles Hartley and his sister , Wanda Lee Vandenberg,
as joint tenants of the remaining undivided half. Howev-
er, Willow Tree holds a lease to mine only the Hartley
property, for which it pays a royalty of 75 cents per ton.
While it has not mined the Filiaggi -Hartley-Vandenberg
tract,13 and holds no lease to those premises , Willow
Tree has been permitted to construct a sediment pond
13 A mine drainage permit allows the holder to drain treated water
used on its site into streams and waterways Willow Tree could not have
lawfully operated without such a permit
13 The same persons who own the Hartley -Filiaggi-Vandenberg prop-
erty also own an adjoining parcel of land consisting of approximately 580
acres, which they hold in the same interest ratios
and a , treatment pond on, the Filiaggi-Hartley -Vanden-
berg tract. 14-
When Willow Tree began operations, Richard Filiaggi
was a foreman with L & J at its Hatfield site and a su-
pervisor within the meaning of Section 2(11) of the Act.
Filiaggi, who holds a bachelor of science degree in
mining operations , had begun to work part time for L &
J during the summer of 1978, becoming a full-time gener-
al equipment operator there in 1979. In 1980, he became
a foreman. 15
Although Willow Tree was incorporated in early June
1981, and began earth -moving operations at its jobsite
with one employee, Estle Lee, on July 26, 1982,16 Rich-
ard Filiaggi continued on L & J 's payroll as a foreman
until mid-November 1982, while he devoted increasing
amounts of time to Willow Tree. During this period
when his responsibilities to L & J and Willow Tree were
apportioned , he drew separate prorated salaries from
both corporations in amounts which reflected the use of
his time . As Richard Filiaggi's involvement with Willow
Tree increased so did his earnings from that Company,
while his L & J pay decreased. Accordingly, before the
week ending August 28, 1982, Richard Filiaggi was paid
$600 a week by L & J. From the weeks ending August
28 through October 30, he was paid $400 per week and
from the weeks ending October 30 through November
13, he received weekly payments of $200. Since Novem-
ber 13, Richard Filiaggi has had no salary from L & J.
Concurrently, from the weeks ending July 31 through
October 30, Richard Filiaggi drew $200 per week from
Willow Tree. This weekly sum increased to $400 from
weeks ending October 30 through November 13; and to
$600 from weeks ending November 13 through Decem-
ber 25 . Since December 25, Richard Filiaggi has been
paid solely by Willow Tree
Deborah Krzysiak has received a monthly salary from
Willow Tree since January 1983. There is no evidence
that she ever had worked for L & J.
On November 15, 1982, Richard Filiaggi hired a
second employee, David Moodry, to work with Lee on
the Willow Tree site. Moodry had not been previously
associated with L & J 17
At Willow Tree's peak, Lee and Moodry were the
only two employees whose job categories would have
put them in the relevant bargaining unit at that jobsite L
& J, since January 1982, has had a work force of ap-
proximately 50 unit employees. Filiaggi Holding, Law-
rence Coal , Filiaggi Coal, Marion Coal, and Sang Coal
have no employees.
From February 18, 1983, to the time of the hearing,
Willow Tree has been inactive and its employees laid off.
14 Willow Tree 's lease with Hartley was signed on June 1, 4 days
before Willow Tree ' s date of incorporation Earlier, on March 13, 1981,
Willow Tree , as required by law, had published in a local newspaper
notice of its intent to apply for a mine drainage permit at this location
15 For about 1 year starting after his college graduation, Filiaggi ac-
quired further experience by working for a coal company not connected
to his family, after which he returned to L & J
16 Richard Filiaggi had hired Lee on July 24, 1982
" Although Estle Lee had worked for James Filiaggi's father's coal
mine years before , he had not been employed by L & J in the current
period
`1 s' At n ""„ L '&" J,1EQUIPMENT ICO ' I, ' 23
This shutdown was caused by an injunction-, issued by a
state court at the request of the Greene Township super-
visor The injunction prevents Willow Tree from hauling
coal from its jobsite over the township road Viable Coal
Company, a coal mining concern unrelated to the Filiag-
gi's, located almost adjacent to Willow Tree's site, which
also uses the township road to haul its coal, likewise
originally had been enjoined by the court's order. How-
ever, Viable Coal had resumed hauling after entering
into an agreement with the township by which it agreed
to repair the relevant township roads damaged by the
heavy trucks used in hauling its coal. Willow Tree re-
mains enjoined from the use of the roads until it reaches
agreement with Viable for future road maintenance and
for allocation of repair expenses already incurred by
Viable. Willow Tree, at the time of the hearing, was re-
sisting such an agreement with Viable, preferring instead
to reach an accord with Greene Township. According to
Richard Filiaggi, Viable, which hauled much more coal
over the roads than did Willow Tree, was insisting that
Willow Tree pay a disproportionate amount.
As related by Richard Filiaggi, his company has been
holding firm in this dispute because during an earlier
agreement with Viable Coal, where each had agreed to
pay half the cost of road repairs, Viable Coal, with its
greater traffic, had done much more damage to the road
This had resulted in disproportionately high road repair
costs to Willow Tree, which it did not want continued.
At the time of the hearing, the injunction was still in
effect and Willow Tree's operations remained at a halt.
Willow Tree received its startup funding when Rich-
ard Filiaggi established a $50,000 line of credit with L &
J under terms which provided for repayment of principal
in equal installments over 5 years, with a 12-percent in-
terest on the outstanding balance By the time of the
hearing, Richard Filiaggi had drawn $20,000 of this
credit line. The first payment was scheduled for July 1,
1983, a date after the close of the hearing, and no repay-
ment of any part of this obligation had been made while
the record was still open
Willow Tree arranged a letter of credit, dated Septem-
ber 6, 1982, from the Pittsburgh National Bank to be
guaranteed by Richard Filiaggi and Deborah and Donald
Krzysiak, with liens and mortgages filed against real
estate owned by them. No money has been drawn pursu-
ant to this line of credit.
Richard Filiaggi and Deborah Krzysiak each personal-
ly also have borrowed the sum of $65,699.85 from L & J
with interest at the below market rate of 8-percent per
annum for the purchase of land to be held as an invest-
ment These indebtednesses are evidenced by identical
judgment notes, dated November 19, 1982, calling for
equal monthly installment payments of $600 starting Jan-
uary 10, 1983. Both Richard Filiaggi and Deborah Krzy-
siak have made the required payments by deductions
from their respective Willow Tree salaries The land pur-
chased with these two loans is very favorably situated
and is held by Richard Filiaggi and Krzysiak, personally,
not by Willow Tree There is no intent to use this parcel
for coal mining.
As Willow Tree was getting started, in addition to ini-
tial financing, it received various other forms of assist-
ance,from I? &,Land,'James Filiaggi. Josephine Ozanich,
L & J's bookkeeper and an officer of Lawrence Coal, set
up Willow Tree's bookkeeping system for which she was
paid $25.
In, deciding to mine this jobsite, Willow Tree was per-
mitted without charge to examine the results of certain
drilling tests done there by L & J in the mid or late
1970s. These tests showed the location, depth, and qual-
ity of the underlying coal, and indicated potential mining
difficulties as might be caused by rockiness of the soil
James Filiaggi testified that perhaps four test holes had
been drilled at a maximum cost to L & J of $500.
Other items on Willow Tree's premises also came from
L & J. These included a storage trailer used to keep
tools, and smaller equipment, given by L & J at Richard
Filiaggi's request.18 James Filiaggi described the trailer
given to Willow Tree as "scrap" with a value of $0-300
Willow Tree also received its water pump free from L
& J, an item which remains unused on Willow Tree's
premises since Willow Tree's operations have been
halted. James Filiaggi explained that his company owns
much equipment which is left at various locations. If
Richard Filiaggi required the pump for an extended
period when L & J did not, it could remain on Willow
Tree's property, subject to L & J's right to reclaim it, as
needed. No records were kept on the use of the water
pump as James Filiaggi had confidence that' his nephew
would advise if the pump was being used so-that Willow
Tree might be billed for wear and tear.
Willow Tree acquired a fuel storage tank from James
Filiaggi, as well. In response to an inquiry concerning
same by Richard Filiaggi, James Filiaggi suggested that
one might be available at a farm in the area. When James
Filiaggi earlier had purchased a trailer from the farm's
owner, the fuel storage tank had been included at no
extra cost to L & J. Accordingly, as requested by Rich-
ard Filiaggi of his uncle, L & J employees picked up the
tank at the farm and brought it to L & J's Hatfield prem-
ises. From there, Willow Tree transported the tank to its
own jobsite. As noted, Willow Tree made no payment
for either the tank or for its transportation.
All major equipment used by Willow Tree in its
mining operations was obtained from L &'J. L & J and
Willow Tree entered into separate written lease agree-
ments covering five pieces of such equipment Willow
Tree also acquired two additional items of major mining
equipment from L & J without written leases.
Equipment covered by the written leases included a
Caterpillar D-9 bulldozer, leased July 19, 1982, at a
monthly rental of $10,000; a Case 680 backhoe, leased
August 27, 1982, at a $40 hourly rental; a Caterpillar 9$0
highlift #87, leased September 13, 1982, at a monthly
rental of $7500; a 637 pan #32,19 leased October 11,
1982, at a monthly fee of $800; and a 922 loader leased
the same day as the pan at a rental of $500 per month
18 By contrast, the trailer on L & J's Hatfield premises was used as an
office where that Company's books and records were kept Willow
Tree's business records were stored in Krzysiak's home
11 A pan is a motorized device which scrapes up earth as it moves
over the ground, collecting it in a portion of the vehicle
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In 1982, Willow Tree used and paid, for,the above-
leased equipment as follows:
Months Bulldozer
Backhoe
H,80ift
Pan Loader
(Ud•Pd)
(Ud Pd)
(Ud Pd)
(Ud Pd) (Pd)
Aug (U). 26 - - - -
days
(281 hrs) - - - -
(P) - - - -
$10,000
Sept (U) 10 90 hrs 5 days - -
days
(100 hrs ) (50 hrs) - -
(P)
$10,000 $3600 $7500 - -
Oct (U): 3 - 20 days - -
days (200 hrs)
Nov (U)• 5 - 13 days - -
days
(53 hrs) (130 hrs )
(P)'
$10,000 - $7500 $8000 -
Dec. (U) • 8 - 11 days I day -
days plus
(80 hrs ) ( 110 hrs.) 2 half
days
(P)'
$10,000 - $7500 $8000
Jan '83 (U): 2 - 11 days 4 days
days +
2 half - (110 hrs.) (40 hrs.)
days
In addition to the above five items of equipment cov-
ered by written leases, Willow Tree, since November,
also leased from L & J two additional pieces of equip-
ment not covered by written agreement These were an-
other D-9 bulldozer and a 992-C highlift. The second
bulldozer was used 9 days in November (68 hours), 14
days in December, and 10 days in January 1983.20 No
lease payments were made by Willow Tree for the
second bulldozer, which it ultimately purchased for
$40,000 from L & J in January 1983. Willow Tree re-
ceived a $10,000 credit toward this price from the De-
cember lease payment made for the first bulldozer.
The 992-C highlift, which was used by Willow Tree 1
day in November, 7 days in December and 13 days in
January 1983, also was purchased by Willow Tree in
January for $5000 without mandatory prior lease pay-
ments. The $8000 October rental payment made by
Willow Tree for the use of the pan was credited toward
the overall $45,000 purchase prices for the bulldozer and
highlift. James Filiaggi had agreed to grant Richard Fi-
liaggi 's request for such a credit, as the pan, although on
Willow Tree's premises throughout, had been used only
during 1 full day and parts of 2 days in December 21
20 The first bulldozer obtained by Willow Tree was lighter than the
second, did not have a ripper, and had a smaller blade Accordingly, the
first machine was used for forming ponds, ditches, and backfield work,
but not for strip mining The second bulldozer will replace the first after
a period of concurrent use
21 The Respondents contend that under industry practice payment is
made for leased equipment only to the extent that the equipment actually
The $27,000 balance due on the bulldozer and highlift
above the combined $18,000 credit was paid in January
1983. However, no lease payments have been made with
respect to any of the other above-described pieces of
equipment since December 1982, although it all has re-
mained on Willow Tree's premises with the two items of
purchased equipment.22 Richard Filiaggi explained that
as he was not moving any coal or using the equipment
because of the injunction against Willow Tree, James Fi-
liaggi had agreed to his request that payments on the
leased equipment be delayed until Willow Tree's oper-
ations resume. No interest increase was assessed by L &
J because of the period of nonpayment for the idled
equipment since December 1982.23
The truck used at no charge by Willow Tree is owned
by National Ford, a dealership belonging to Richard's
father Lawrence Filiaggi, coprincipal of L & J and Fi-
liaggi Holding. Other members of the Filiaggi family,
whether or not connected with the family's businesses,
also have free use of National Ford's vehicles.
While Willow Tree was in its initial phases, when
Richard Filiaggi was employed by L & J, he used L &
J's address and telephone number for Willow Tree
However, this practice was discontinued in July 1982
when Willow Tree began operations. Richard Filiaggi
then established a separate Willow Tree mailing address
and began to use his home telephone number for Willow
Tree's affairs. As noted, Willow Tree's business records
are stored in Krzysiak's home, where she maintains
them.
Although Richard Filiaggi denies ever having held out
his company as being a part of L & J, there originally
was a melding of insurance coverage whereby Willow
Tree was jointly included under certain policies obtained
by L & J on behalf of itself and the above- named satel-
lite companies. The certificate of insurance, dated Sep-
tember 3, 1981, filed with DER by Willow Tree on De-
cember 10, 1981, in support of its application for a sur-
face mining operator's license, shows that Willow Tree
was covered by policies for general liability and automo-
bile liability, and by a policy written by another carrier
for excess liability. The three policies, which also cov-
ered Lawrence Coal, Filiaggi Coal, and Marion Coal,
originally were effective from May 15, 1981, to May 18,
1982. Thereafter, Willow Tree was insured by another
policy, effective May 18, 1982, to May 18, 1983, issued
is used Accordingly, Richard Filiaggi asserts that the October $8000
payment for the pan was made in error He did not explain the later like
payments for the pan
2 2 James Filiaggi testified that L & J is not primarily in the business of
leasing its equipment, preferring to use it to do road construction work
when the cyclical coal industry is slow When the coal market improves,
its equipment is returned to stripping coal However , L & J also has
leased equipment to many others besides Willow Tree, including West
Penn Power, a particularly good customer in this respect , to Mononga-
hela Power , and to Lynn-Mar, a manufacturing concern This equipment
is leased with and without L & J - employed operators
23 In addition to the forebearance of lease payments since December
1982 and the crediting of former lease payments to the purchase prices of
the second bulldozer and highlift, L & J further subsidized Willow Tree
in this area by not charging for the use of the second bulldozer and high-
lift during the months before those items were purchased, when they
were under unwritten lease to Willow Tree
'1>IA(,i) rr(A, L & Ji EQUIPMENT CO., `t' "- 25
jointly to L & J, Sang Coal, Lawrence {Coal, Filiaggi
Coal, Marion Coal, and, Filiaggi Holding,' providing com-
prehensive general liability protection, and which includ-
ed additional multicoverage for business and automobile
related liabilities
Richard Filiaggi testified that when, in September
1982, he discovered Willow Tree's joint coverage under
insurance policies also applicable to L & J and related
firms he corrected this error by removing Willow Tree.
Richard Filiaggi related that there had been a partial in-
surance coverage overlap in that Willow Tree had had
its own general liability insurance, in its own name, since
the preceding June. James,Filiaggi, in turn, testified that
it had been he who had corrected this error by removing
Willow Tree as he did not want to pay someone else's
bills L & J had not paid larger premiums for the time
when Willow Tree was also covered under its policies as
that company had not yet started its business operations.
When Willow Tree applied to DER for its necessary
mine drainage permit, it was required to post a bond
with the State to assure that the land would be reclaimed
when mining there was completed To meet this require-
ment, Willow Tree's application was accompanied by a
surety bond in the amount of $164,000, dated October
13, 1981. This had been issued by a surety company after
L & J and James and Lillian Rogers and Laurel Indus-
tries, Inc 24 signed a general coindemnity agreement to
protect the surety's position in the event of default. The
record is clear that the necessary surety bond would not
have been issued had L & J and the others not entered
into the coindemnification agreement.25
Richard Filiaggi testified he exercises complete oper-
ational control over Willow Tree, with no interference
from James Filiaggi Accordingly, it was Richard Fi-
haggi who hired and assigned work to both 'of Willow
Tree's employees, personally deciding every operational
aspect of that company' s business There has been no
employee interchange between Willow Tree and L & J,
except that in August 1982 when a bulldozer leased from
L & J became stuck in the mud and a crew from L & J
was dispatched to extricate it. Willow Tree was not
billed for this service which took crew and equipment 4
hours to perform
Additionally, on 2 half days in February 1983, a drill-
ing operator and rig from L & J was used to do drilling
on Willow Tree's jobsite Although Willow Tree was
billed for this service, the bill had not been paid at the
time of the hearing
Differences in employment terms also have been em-
phasized Willow Tree employees were paid a straight
hourly rate of $12. They received no vacation or holiday
pay and no health insurance Willow Tree's employees
24 James Rogers is president of Laurel Industries, a construction and
maintenance contracting concern, and Lillian Rogers is his wife
25 The coindemnification agreement was signed on the Filiaggi side
not only by L & J, but by Filiaggi Holding and by all the above-named
satellite companies Accordingly, Richard Filiaggi signed not only as
president of Willow Tree, the beneficiary concern, but also on behalf of
Marion Coal, technically one of the indemnifiers, of which he was then
the president Richard Filiaggi explained that as Willow Tree had not
had a past bonding record, there had been nothing to base his indemnity
request on and it had been necessary to request that his uncle support his
application, to which James Filiaggi had agreed
also received)no,.pe"nsion or profit-sharing plan, and uni-
forms were not provided. By comparison, L'& J, which
had no collective-bargaining agreement, pays its heavy
equipment operators between $10 to $11 an hour, pro-
vides a group insurance plan, a profit-sharing plan, and
holiday and vacation pay, and contributes half the cost
of uniforms.
Summarizing other operating differences, Willow Tree
and L &'J file separate Federal and state tax returns,
have separate Federal identification numbers, and keep
their respective books at different locations 26 The two
concerns each have their own bank accounts and, since
September 1982, their own insurance coverage. Both
firms use the same insurance broker. While L & J, as
noted, ' provides health insurance for its employees,
Willow Tree does not, and Richard Filiaggi has a health
insurance policy in his own name
Donald Brotherton27 testified that in June or July
1981 he was approached on L & J's Hatfield jobsite,
where then employed, by Richard Filiaggi, then a super-
visor there. Fihaggi told Brotherton that "they" were
going to start up a new strip at Willow Tree near Garads
Fort, and were going to take a bulldozer, a highlift, and
a couple of trucks over there very soon. Fihaggi contin-
ued that Jim Carolla28 probably would be going there
on the highlift, and asked if Brotherton would go on the
bulldozer. Brotherton replied that he would not mind the
new location because it would be closer to home and he
would not have to travel as far Brotherton related that
although he had expressed an interest in going to the
proposed new location as being closer to his home, the
topic was not again mentioned.
The General Counsel and Union, construing the refer-
ences to "they" attributed to Richard Filiaggi as meaning
L & J, argue that it had been L & J's intent from the
start to operate the Willow Tree site and had changed
this intent to create Willow Tree as the operating con-
cern only with the start of the Union's campaign in
August 1981. These parties assert that Richard Filiaggi,
as an L & J supervisor, had set out to further L & J's
purpose by recruiting that Company's personnel to help
launch the Willow Tree strip
Richard Fihaggi denied that such a conversation with
Brotherton ever occurred and the Respondent pointed to
certain matters testified to by Brotherton which did not
appear in his pretrial affidavit. Accordingly, Brotherton,
in his affidavit, had made no reference to Carolla, the
movement of equipment to the new location, or that the
new site would be located near Garards Fort. Nonethe-
less, Brotherton reaffirmed his testimony on these mat-
ters, explaining that the affidavit had been taken hurried-
ly at the end of the day. Brotherton's testimony, limited
in its scope, is credited. Unlike Richard Filiaggi, he was
a comparatively disinterested witness who appeared cer-
26 As noted, the two Companies had the same address and telephone
number until July 1982, but have had separate addresses and phone num-
bers ever since.
27 Brotherton was employed by L & J as a bulldozer operator from
February 1976 until his layoff in December 1981
26 James Carolla has been employed by L & J since at least January
1981
26 DECISIONS OF NATIONAL14L ABOR RELATIONS BOARD
tarn of his statement as given at,the' heating- While his
affidavit might have been more comprehensive the defi-
ciencies are' not major In relating the asserted conversa-
tion to the possibility of an opportunity to work closer to
his home, Brotherton had self-interest which could have
credibly impressed the incident in his memory.
L & J, with its above-noted contract to supply West
Penn Power, and Gallatin Fuels, Inc., are the two princi-
pal commercial coal purchasers in Greene and Fayette
counties Between them, they have bought all coal pro-
duced by Willow Tree during its active period. Accord-
ingly, from November 3, 1982, through March 10, 1983,
L & J, paying from $20 to $23 per ton, depending on
quality, purchased five shipments from Willow Tree. Al-
though Gallatin Fuels paid $28 a ton, only two ship-
ments were sold to them by Willow Tree for a total pur-
chase price equal to approximately 5.5 percent of what
Willow Tree received from L & J.
L & J, as stated, also obtained coal from its satellite
sites, as follows: In 1981, L & J, at its Hatfield site, took
58 percent of the coal produced at the Normalville srte29
and all coal produced there in 1982. In 1981 and 1982, L
& J at Hatfield, received 79 and 73 percent, respectively,
of the coal produced at the Dunbar strip. Coal not taken
by L & J from those locations in 1981 and 1982 went to
Keystone Coal Sales, a coal broker.
In 1981, L & J acquired only 17 percent of the coal
produced at the Bridgeville site,30 but, in the following
year, it took 96.5 percent. The quantities that did not go
to L & J during those years went to a variety of compa-
nies, generally in small percentages, except that, in 1981,
one outside purchaser received 44 percent of the Bridge-
ville output
The record also shows that since January 1, 1982, L &
J purchased coal from 18 companies other than Willow
Tree, mostly in multiple shipments from each of the vari-
ous suppliers, except that five of these vendors sold only
one shipment apiece. Prices paid to each of these suppli-
ers for total amounts of coal received ranged from a min-
imum of $336.75 to a maximum of $354,122.14.
L & J's role as a major coal purchaser in its geograph-
ic area is not disputed. 3 i James Filiaggi explained that in
meeting L & J's supply contract with West Penn Power,
he buys coal from Willow Tree and other small opera-
tors because it is cheaper to buy than to mine L & J's
own coal, and by so purchasing, he can keep his own re-
serves intact Accordingly, Willow Tree's coal was
bought to be resold to West Penn Power together with
coal from other operators.
The General Counsel finds evidence of an alter ego or
single employer status in that on March 25, 1983, Rich-
ard Filiaggi and Willow Tree employee Estle Lee at-
tended a periodic DER-conducted32 safety training ses-
sion required by the U.S. Mine Safety and Health Ad-
ministration (MSHA), and held at the request of Law-
rence Coal There, Richard Filiaggi signed the mandato-
ry attendance sheet listing himself as a Lawrence Coal
foreman and Lee signed as a highlift operator for that
company. All others who signed the attendance sheets
for that session were employees of L & J at its Hatfield
strip, but were listed as Lawrence Coal employees. How-
ever , the required certificates of training completed and
signed by each attending individual during the training
session show that Richard Filiggi and Lee had indicated
on that document that they were employees of Willow
Tree and had entered an employer 's identification
number different from that of Lawrence Coal.
Richard Murphy, director of Deep Mine Safety, DER,
whose department had custody of the records of the
March 1983 safety training session in question , testified
that it is not unusual for employees of different compa-
nies to join in a single training session . Notification of
training certificates, sent out in advance of training ses-
sions, when completed , show who will be present, the
employers involved and their respective identification
numbers. According to Murphy, DER had been incor-
rectly notified that the only employer to be involved in
that training session was Lawrence Coal, when Willow
Tree's identification number also should have been given.
Murphy related that this later was corrected on the re-
quired certificate of training , completed by all who at-
tended , which showed that Willow Tree's representa-
tives had signed with the proper identification.33
Except for the conflict relating to Brotherton 's testi-
mony concerning an early invitation to work at the
Garads Fort strip, the evidence concerning arrangements
between L & J and Willow Tree is essentially stipulated,
except that the Respondents have offered explanatory
evidence of instances where L & J has provided and re-
ceived similar courtesies and services for and from other
companies in the area where the principals were unrelat-
ed to the Filiaggi family.
Accordingly, although the General Counsel was able
to establish that L & J had coindemnified Willow Tree
when that Company was applying for a land reclamation
bond as part of its bid for a drainage permit to enable it
to engage in strip mining, James Filiaggi testified that L
& J also earlier had indemnified Laurel Industries, Inc.,
whose owners were unrelated to the Filiaggis, but who
had joined L & J in supporting Willow Tree's bond.
James Filraggr also testified that while it may be
common to receive payment for the use of drilling test
results such as those Willow Tree had obtained from L
& J, or to share the tests with other operators , among a
certain group no money is exchanged . At his Normal-
29 Coal is produced at the Normalville and Dunbar sites under permits
from Lawrence Coal
30 Marion Coal holds the permit to mine the Bridgeville strip
31 Ronald Chico, owner of Carbonaro Coal Co, testified that in 1982
his company sold between 70 and 90 percent of its coal to L & J The
remainder of Carbonaro's production went to Gallatin Fuels Chico relat-
ed that he and the other small operations in the area similarly situated are
largely dependent on L & J and Gallatin Fuels as outlets Chico conced-
ed that if he could not sell coal to L & J or find another buyer, he prob-
ably would have to go out of business
3z Although administered by the State Department of Environmental
Resources , these training sessions are required by the Federal Govern-
ment and attendance is closely monitored The L & J employees who at-
tended the session listed themselves as employees of Lawrence Coal,
under whose permit they were working
33 Murphy's testimony that employees from various companies may
participate in joint training sessions was corroborated by Chico of Car-
bonaro Coal, who averred that he and his staff had been invited to par-
ticipate in the March 1983 training session , but had declined
i rl , r . L & J EQUIPMENT CO ,
ville site, Filiaggi had used ',the drilling records of the
Marcelino Coal Company. as a courtesy, and, L & J had
shared its drilling tests with others, as well. Future pay-
ment for this type of information has been ended as,
under new DER regulations, drilling records now can be
obtained as public information.
James Filiaggi also sought to counter the evidence
concerning the equipment provided to Willow Tree by
pointing out that L & J also has loaned equipment to and
has borrowed equipment from other coal operators, indi-
cating specific firms with which it has participated in
such exchanges.
As noted, L & J also has leased its equipment,34 with
or without operators, to a variety of companies named
above, and James Filiaggi provided specific instances
where his Company has drilled for firms other than
Willow Tree and even where drilling services were mu-
tually exchanged without charge.
James Filiaggi related with respect to the equipment
furnished to Willow Tree, that the cost to L & J of the
trailer was negligible and the fuel tank had been free
The water pump was one of many pieces of equipment
that L & J owned but did not need at the time
2. Discussion and conclusions
Administrative Law Judge Ries in his Board-approved
decision in Bryar Construction Co,35 held that:
In determining whether two or more businesses
are sufficiently integrated so that they may be fairly
treated, for jurisdictional and other purposes, as a
single enterprise, the Board looks to four principal
factors: (1) common management, (2) centralized
control of labor relations, (3) interrelation of oper-
ations, and (4) common ownership or financial con-
trol. Radio and Television Broadcast Technicians
Local Union 1264 v. Broadcast Service of Mobile, Inc',
380 U.S 255, 256 (1965); Sakrete of Northern Cali-
fornia, Inc. v. N.L.R.B., 332 F.2d 902, 905, fn. 4 (9th
Cir. 1964). "The Board has determined that no
single criterion is controlling, although it considers
the first three, which evidence operational integra-
tion, more critical than the fourth, common owner-
ship." N.L.R.B. v Triumph Curing Center and M.F.
Lee d/b/a Lee's Sewing Company, Inc., 571 F.2d
462, 468 (9th Cir 1978), enfg. 222 NLRB 627
(1976).
Of the above-emphasized first three criteria relating to
operational intergration, particular emphasis has been
placed on centralized control of labor relations.36 While
each case must be resolved on its own facts, alter ego
status generally has been found where the two enter-
prises have "substantially identical" management, busi-
34 James Filiaggi testified that, even at the time of the hearing, he was
in the process of arranging to lease L & J equipment to a coal operator
named Fike and to buy the coal produced by him
35 240 NLRB 102, 103-104 (1979)
3s Friederich Truck Service, 259 NLRB 1294, 1300 (1982), Stoll Indus-
tries , 223 NLRB 51, 53-54 (1976), enfd 551 F 2d 301 (2d Cir 1977),
Gerace Construction, 193 NLRB 645 (1971)
27
ness purpose, operation,equipment, customers, and su-
pervision, as well as ownership 37
L & J and Willow Tree do not have common owner-
ship. The stock of L & J is controlled by Lawrence and
James Filiaggi through their equal ownership of the
shares of L & J's parent concern, Filiaggi Holding.
Willow Tree, at all times, has been owned in equal
shares by Richard Filiaggi and Deborah Krzysiak, as
sole officers and directors. Richard Filiaggi and Deborah
Krzysiak never have owned a financial interest in L & J
or Filiaggi Holding Similarly, no one but them has held
an ownership or official position in Willow Tree.
There has been no common supervision. James and
Lawrence Filiaggi never have been officers or sharehold-
ers of Willow Tree nor have they exercised supervisory
authority there. Although before July 1982, Richard Fi-
liaggi had been president of Marion Coal, an L & J satel-
lite company, and had served as a foreman at L & J's
Hatfield site, he resigned from this position in mid-No-
vember 1982 to work full time at Willow Tree. During a
transition period, Richard Filiaggi worked as supervisor
at both L & J and Willow Tree, but did not fill these
positions as part of a single employment . Rather, he was
paid separately by each corporation for the time respec-
tively spent. Initially, Richard Filiaggi was paid more by
L & J which claimed most of his worktime. As his in-
volvement with Willow, Tree grew, he gradually was
paid less by L & J and more by Willow Tree until he
permanently resigned from L & J, to be thereafter com-
pensated only by Willow Tree.38 There is no evidence
that Krzysiak ever had worked for L & J.
The employees of L & J were separately hired and as-
signed by James Filiaggi, while the two employees em-
ployed by Willow Tree were hired and assigned entirely
by Richard Filiaggi. The independently determined
terms and conditions of employment at Willow Tree,
where no vacations or other benefits were provided,
were very, different from those at L & J where the em-
ployees enjoyed health insurance, paid vacations and
holidays, and profit sharing.
There was no employee interchange between Willow
Tree and L & J, although Willow Tree benefited from
certain specific services entailing use of L & J employees
and equipment. However, these instances , which consist-
ed of L & J's assistance for 4 hours in extricating a bull-
dozer from the mud, partial transportation by L & J em-
ployees of a fuel storage pump intended for Willow
Tree, and Willow Tree's use, during two half days, of a
drilling rig and operator from L & J, were few and iso-
lated. There is no showing that L & J employees, at any
37 Upshur Engineering Enterprises, 259 NLRB 1323, 1324 (1982), Nabco
Corp, 266 NLRB 687 (1983), Crawford Door Sales Co, 226 NLRB 1144
(1976), Ramos Iron Works, 234 NLRB 896 (1978)
3e See United Constructors & Goodwin Co, 233 NLRB 904, 913 (1977)
Contrary to the General Counsel, the weight of the evidence also clearly
shows that the temporary listing of Richard Filiaggi and Willow Tree
employee Estle Lee as a foreman and employee, respectively, of Law-
rence Coal at the March 1983 safety training session was an error, imme-
diately corrected Joint training sessions, participated in by personnel
from more than one mining concern , are common occurrences and there
is no evidence that any individual exercised common supervisory author-
ity over both corporations, except as explicated above
28 DECISIONS OF NATIONA'I•C"LABOR RELATIONS BOARD
time, had become involved in the' routine work per-
formed at Willow Tree, or that the reverse had oc-
curred.
The General Counsel and the Union seek to blur the
operational distinctiveness of these enterprises and to es-
tablish common financial control, absent factual common
ownership, by the quantum of evidence presented of ma-
terial assistance and favored treatment afforded to
Willow Tree by L & J in its establishment and subse-
quent operations
The below market rate credit, debt forgiveness and
forebearance, and other benefits extended to Willow
Tree by L & J, including Willow Tree's startup money
and flexible equipment leasing purchasing terms, have
been set forth in great detail above and need not be re-
peated here. Noting, however, that where Willow Tree
did arrange its own $50,000 credit line, in September
1982, with the Pittsburgh National Bank under terms
which provided that any loan issued thereunder would
be secured by real estate owned by Richard Filiaggi and
Krzysiak, it is quite arguable that the respective
$65,699.85 unsecured loans made 2 months later by L &
J to Richard and Deborah at the below market annual
interest rate of 8 percent, used to buy land, was intended
to ensure that when the time came, they would have real
estate sufficient to pledge-and then some.
In summary, Willow Tree benefited in its formative
period from the use of L & J's office facilities from
family land connections; from L & J's coindemnification
agreement to support its land reclamation bond, from the
extensive credit arrangements above described; from the
generously flexible lease/purchase relationship on heavy
equipment and from other operating items furnished
gratis; from association with L & J or its satellite compa-
nies when Willow Tree applied for its mining license,
and in other ways. L & J also was the principal purchas-
er of Willow Tree's coal.39
I would agree with the General Counsel that, from the
sum of its financial and material assistance, L & J has as-
sumed much of the risk of Willow Tree's venture, with
the result that L & J is positioned, as is any large credi-
tor, to exercise the indirect influence over Willow Tree's
policies. For example, it 'seems unlikely that without L &
J's cooperation, in the face of the injunction, Willow
Tree could have long continued its dispute with Greene
Township over the use of the township road. This, how-
ever, is not the 'same as direct managerial control
Among the factors used to evaluate alter ego status,
common ownership or common financial control, while
targeted if not established here, are considered less im-
portant than the criteria reflecting operational integra-
tion.
99 Although the General Counsel found mtegrational significance in
the fact that Willow Tree sold so much more of its coal to L & J than to
the other major area purchaser, Gallatin Fuels, when Gallatin Fuels paid
$3 to $8 per ton more, this is not conclusive as there was no showing of
Gallatin Fuels' general qualitative or quantitative requirements Noting
that L & J also purchases the bulk or entire coal output of many other
small mining companies in the area, which also might otherwise have
sold to Gallatin Fuels, it is not clear that Gallatin provided as large or as
ready a market for area producers as did L & J
In these circumstances,' I find that although L & J and
Willow Tree had basically the same business purpose,
and, through generously administered lease agreements,
used some of the same equipment, they were maintained
as two totally independent corporations with respect to
their operations and control of labor relations. There
were no common officers, directors, shareholders or su-
pervisors and there was no employee interchange. After
the summer of 1982, in every aspect but financial obliga-
tion the two companies were physically and administra-
tively apart James Filiaggi controlled operations, admin-
istration, and labor relations for L & J, while Richard Fi-
liaggi did the same for Willow Tree.40
The situation here is not unlike Friederich Truck Serv-
ice,41 and Pinter Bros., Inc ,42 where alter ego status was
not found although, in each case, the principals of one
corporation alleged as an alter ego were the children of
the owners of the other asserted corporate alter ego.
In Pinter, as here, the trucking concern owned by the
sons, without penalty, fell well behind in its payments to
the parent's company for the lease of all its rolling stock
and for other leased items. Informality also was present
in the lease arrangements in Pinter as no formal truck
rental agreement was entered into until 5 months after
the start of the lease period.
While, as in Key Coal Co.,43 cited by the General
Counsel, differentiating factors such as separate bank ac-
counts, separate workmen's compensation and unemploy-
ment numbers, separately filed tax returns, different in-
surance policies, and even different terms and conditions
of employment of respective employees, need not pre-
clude a finding that separately incorporated companies
are a single employer, in Key Coal, supra, and in the
other cases cited by the General Counsel and Union
where alter ego or single employer status was found,
control of operations and of labor relations, the direct
decision-making authority, were centralized far more
than here.44 Although the General Counsel, by indicat-
ing the very considerable financial benefits extended to
Willow Tree and its principals by L & J, has created a
suspicion of financial control, if not common ownership,
this is not tantamount to proof In any event, on the
above-cited authority, in determining the existence of
alter ego or single employer status, the factors relating to
4° Even if L & J, in the summer of 1981, had planned to operate on its
own what later became Willow Tree's site, as the General Counsel seeks
to establish through Brotherton, this never occurred In addition, all evi-
dence of animus argued by the General Counsel in support of its alter
ego assertion is contained in Administrative Law Judge Cohen's decision
That matter is pending before the Board, and is not available to substanti-
ate that L & J created Willow Tree to operate the Willow Tree jobsite
for unlawful reasons The degree of separateness found here made would,
in any event, minimize the impact on Willow Tree of any finding of
animus on the part of L & J
41 259 NLRB 1294, 1300-1 (1982)
42 263 NLRB 723 (1982)
43 240 NLRB 1013, 1018-19 (1979)
44 In dictum at 263 NLRB at 740 fn 54, supra, Administrative Law
Judge Biblowitz in his Board-approved decision in Pinter Bros, Inc,
while not reaching the issue, raised the question of whether a finding of
alter ego can be made simply because a father wished to grant certain
favors to his children that he did not afford others In the context of the
overt criteria established for determining alter ego status, the answer
would appear to be in the negative
FE A: )t' - i' r L,& J EQUIPMENT, CO.,
operational integration, which: were not established here,
are paramount. ,!
On the basis of the above, I find that L & J and
Willow Tree are two separate and independent corpora-
tions and are not alter egos or a single employer. There-
fore, as there was no removal of L & J unit work to
Willow Tree, there is no basis for finding, as alleged in
the complaint, that the Respondents had refused to bar-
gain or had acted discriminatorily by Willow Tree's fail-
ure or refusal- to employ any of the 10 bargaining unit
employees previously laid off by L & J from its Hatfield
jobsite.
As there also is no evidence to support the General
Counsel's alternate theory that, should alter ego status
not be found, L & J had unlawfully refused to bargain
with the Union by unilaterally subcontracting to Willow
Tree work previously performed by its bargaining unit
employees at Hatfield, I find that the complaint allega-
tions that the Respondents had violated Section 8( a)(1),
(3), and (5) and, alternatively, that L & J had violated
Section 8(a)(1) and (5) of the Act should be dismissed.
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act
On these findings of fact and the entire record, I issue
the following recommended
29
,I 7I ,CONCLUSIONS OF LAW
1 Respondent L & J and Respondent Willow Tree are
employers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3 Respondent L & J and Respondent Willow Tree are
not alter egos or a single employer and have not engaged
in the unfair labor practices alleged in the complaint in
this proceeding.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed45
ORDER
It is ordered that the complaint be dismissed in its en-
tirety.
45 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses