Malcolm Boring Co., Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1981

259 N.L.R.B. 597 (N.L.R.B. 1981)

MALCOLM BORING CO., INC. 597
Malcolm Boring Co., Inc., B. C. Malcolm and Bruce ings,2 and conclusions3 of the Administrative Law
C. Malcolm and Local 12, International Union Judge and to adopt his recommended Order.
of Operating Engineers, AFL-CIO
ORDER
Off-Shore Drilling and Allied Workers Division of
the National Maritime Union of America, AFL- Pursuant to Section 10(c) of the National Labor
CIO and Local 12, International Union of Op- Relations Act, as amended, the National Labor Re-
erating Engineers, AFL-CIO. Cases 31-CA-
9751 and 31-CB-3586 Thus, B. C. Malcolm is the name of the sole proprietorship under which
Billy C. Malcolm does business, and he, along with his wife, owns all of
D »mh r S 1981 tthe stock of Malcolm Boring. The record further reflects in this regardDecember 8, 18that Respondents maintain a common pool of employees who are each
day assigned by Billy C. Malcolm to either field or shop work; and that
DECISION AND ORDER when a particular employee is sent to the field to perform construction
work, he is placed on the payroll of Malcolm Boring, but if assigned to
BY MEMBERS FANNING, JENKINS, AND the yard to perform maintenance, repair, and fabrication work, he ap-
pears on the payroll of B. C. Malcolm. Such assignments are made as the
ZIMMERMAN need arises and are based upon the relative skill level of any particular
employee. The record is thus indicative of Respondents' common owner-
On June 2, 1981, Administrative Law Judge ship and management and central control of labor relations. Despite the
Richard D. Taplitz issued the attached Decision in finding of single-employer status, the Administrative Law Judge correct-
.1s. r ..r t i *ing _ty ly concluded that the employees of Malcolm Boring and the employees
this proceeding. Thereafter, the Charging Party of B. C. Malcolm each constitute a separate unit, and also correctly relied
and Operating Engineers Pension Trust, Operating upon the ambiguity of the relevant contract language as well as upon the
Engineers Health and Welfare Fund, Operating practice of 3 years' duration of not applying the collective-bargaining
agreement with Malcolm Boring to employees working on the B. C. Mal-
Engineers Vacation-Holiday Savings Trust and Op- colm payroll. In so finding, and apparently seeking to further buttress his
erating Engineers Training Trust, hereinafter the conclusion that separate units are appropriate herein, the Administrative
Law Judge inaccurately characterized the nature of Respondents' busi-
Intervenor, each filed exceptions and a supporting nesses and the manner in which they interact. Thus, in the context of his
brief, and Respondents B. C. Malcolm and Mal- analysis with respect to unit scope, the Administrative Law Judge de-
-r - 1 i2. Analysis and conclusions
In mid-October 1979, David Frederick made a com-
plaint about his pay to Local 12 Business Representative Malcolm Boring and B. C. Malcolm constitute a single
Robert Dye. Frederick was one of the employees who employer. However, that does not answer the question
did fieldwork on the Malcolm Boring payroll at full con- whether the two parts of the single employer had single
tract rates and also did shopwork on the B. C. Malcolm or separate bargaining units. As the Board held in Peter
payroll at 80 percent of contract rate without fringe Kiewit Sons' Co. and South Prairie Construction Co., 231
benefits. Frederick explained the situation to Dye. In De- NLRB 76, 77 (1977), enfd. 595 F.2d 844 (D.C. Cir.
cember 1979, Dye went to the Malcolm Boring office 1979):
and discussed the matter with Billy C. Malcolm. Billy C.
Malcolm explained the structure of B. C. Malcolm and In determining whether a single employer exists we
Malcolm Boring and in effect confirmed what Frederick are concerned with the common ownership, struc-
had told Dye previously. Dye took the position that the ture, and integrated control of the separate corpora-
contract covered shopwork and Billy C. Malcolm took tions; in determining the scope of the unit, we are
the position that it did not.20 That dispute led to this liti- concerned with the community of interests of the
gation. employees involved.
By letter dated January 28, 1980, Malcolm Boring no- Section 9 of the Act gives the Board considerable
tified the Union that it desired to bargain separately for a discretion in determining appropriate units. Section
new agreement at the expiration of the contract in 1980. 9(b) of the Act empowers the Board to "decide in
The letter also asked for a copy of the current contract each case whether, in order to assure to employees
for Southern California and for the Union's position with the fullest freedom in exercising the rights guaran-
regard to what was timely notice of termination. By teed by this Act, the unit appropriate for the pur-
letter dated January 30, 1980, Malcolm Boring notified poses of collective bargaining shall be the employer
the engineering contractors association that the associ- unit, craft unit, plant unit, or subdivision thereof
ation did not have authority to represent the company in .. ." The mandate of that section "to assure to
collective bargaining. By letter dated February 22, 1980, employees the fullest freedom" indicates that our
Malcolm Boring notified Local 12 of the termination of pmy o s the degree o o o interest
primary concern is the degree of common interests
of the employees involved. The ultimate unit deter-0 Dye testified that, during this conversation, Billy C. Malcolm told ofthe employees involved. The ultimate unit deter-
him that he was going to go out of business and was going to lease his mination is thus resolved by weighing all the factors
equipment to his son Bruce. However, Gannon, another union repre- relevant to the community of interests of the em-
sentative who was at the meeting, made contemporaneous notes in which ployees. Where, as here, we are concerned with
he quoted Billy C. Malcolm as saying that he would be going out of busi- more than one operation of a single employer, the
ness and leasing his equipment to a son other than Bruce. I believe that
Dye was confused with regard to the names of the sons. Dye testified
that Billy C. Malcolm told him that Bruce Malcolm was an officer of ° On the stipulation of the parties the letter was received as evidence
Malcolm Boring. Billy C. Malcolm averred that he did not tell Dye that as a late-file exhibit and was marked NMU Exh. 1. The stipulation went
Bruce Malcolm was an officer but he might have told him that Thomas to the question of authenticity and all parties reserved their rights to
Malcolm was. At that time Bruce Malcolm had his own business. I be- argue or challenge in their briefs the relevancy or any other matters re-
lieve that Dye was again confused with regard to the names, lating to that exhibit.

"
iffer i t t i i t r i t B L 12 n ..m
fi l . r l l t l t t r t f t M B ec au se L oc al o2 "° it hs" r r t j rit f
fi l i il l i t iMalcolm s l e , it i t i l i . r
r t r r fri i , t t t t - t er es tl n r i i f r t l . r f r ,
dil alcolm ha l i r i t r
l l i l ll tr t r i l .
BT ea d " - -rr> i-. *-1 i- -i 2. al sis a c cl si s
,
t. 20
l tt r t r , , l l ri - ti f t i t i r l
tifi t i t t it i i r tely i ti i t r i i i ti
t t i i i . ) t i i
l tt r l f t t t t i l
f t r lif i f t i ' iti it ll f i r i i i
r r t t ti l ti t i ti . t t i t, t i i t t
l tt r t r , , l l ri tifi ll ti i i ll t l
t i ri tr t r oci ti t t t ci- it, ft i , l t i , i i i t f
t ri t r r t t co pany in e mandate of that section "to assure to
l ti i i , employees t f ll t fr " i i t t t r
i l ti ploy th f f ic that our
~~~---~ , i. . . * „.„ /,.,,, „~of . M t tifi t t, ri t is rs ti , ill . l l t l . e ivle. .t. ui dtr
t ill . alcol as saying that he ould be going out of busi- ore than one operation of a single employer, the
. " t h e
as a -fi
th e
. 1
t t t i it.
MALCOLM BORING CO., INC. 607
following factors are particularly relevant; the bar- Moreover, it is basic Board policy to accept the volun-
gaining history; the functional integration of oper- tary agreement of the parties as to the scope of the unit.
ations; the differences in the types of work and the As the Board held in A-i Fire Protection, Inc., and Corco-
skills of employees; the extent of centralization of ran Automatic Sprinklers, Inc., 250 NLRB 217, 220
management and supervision, particularly in regard (1980):
to labor relations, hiring, discipline, and control of
day-to-day operations; and the extent of interchange In resolving disputes over the scope of a bargain-
and contact between the groups of employees. ing unit, the Board's starting point consistently had
been its policy of accepting voluntary agreements
The facts with regard to those criteria are set forth in between parties on unit scope, whether made as
detail in the discussion of the single-employer issue part of a voluntary recognition agreement or en-
above and will not be repeated here. However, other tered into in a Stipulation for Certification Upon
considerations of particular importance must be men- Consent Election. In light of this policy, the
tioned. The skills needed by the employees of B. C. Mal- Board's analysis of such a dispute includes an exam-
colm are substantially different from those of the em- ination of the agreed-upon unit and an examination
ployees of Malcolm Boring. That is so because the work of the circumstances surrounding the alleged agree-
of the two Companies is of a very different nature. Mal- ment on unit scope to determine whether it in fact
colm Boring is wholly engaged in a construction busi- reflects the intent of the parties and constitutes a
ness. The skills required of the employees are those of voluntary agreement.
construction workers on the construction site. B. C. Mal-
colm fabricates, maintains, repairs, and leases equipment In that case, the Board found that the two parts of a
to construction firms. Its employees need skills appropri- single employer had separate bargaining units in a
ate to those tasks and the work is performed in the shop. "double-breasted operation," where one of the parts per-
Malcolm Boring is a construction industry employer and formed nonunion construction work and the other per-
B. C. Malcolm is not. B. C. Malcolm is not simply a formed union construction work.
minor adjunct of Malcolm Boring. It is a substantial busi- In determining what the agreement was with regard to
ness in its own right22 and leases equipment to a number the scope of the unit, it is necessary to consider both the
of other construction firms in addition to Malcolm contract and the practice of the parties. In the instant
Boring. Malcolm Boring signed a short-form agreement case, there is a serious question whether there even is a
with Local 12 in 1962 and it is alleged that, through that contract. In 1962 Malcolm Boring signed a short-form
short-form agreement, it is bound by the Southern Cali- agreement with Local 12. It bound itself to an agreement
fornia Master Labor Agreement of July 1, 1977, to July with that union and with no other. The Southern Cali-
15, 1980. That master labor agreement is a construction fornia Master Labor Agreement of 1977-80, which is the
industry agreement and it contains an 8-day union-secu- key contract in this case, has an entirely different bar-
rity clause that is lawful when applied to "an employer gaining unit from the one agreed to by Malcolm Boring
engaged primarily in the building and construction indus- in 1962. The 1977-80 Southern California Master Labor
try."23 It is unlawful when applied to an employer who Agreement is an agreement between employers and a
is not engaged primarily in the building and construction number of different unions including Carpenters, Labor-
industry.2 4 The original contract between Malcolm Teamsters. Even assuming that the Local 12
Boring and Local 12 was a pre-hire agreement which in- a mnt an e se ropart of the master labor agreement can be severed fromcorporated a union-security clause. That also could be., . , the remainder of the agreement in such a way as to belawful only where the employer was primarily in the t r i
building and construction industry. The Southern Cali- binding on Malcolm Boring, there are serious ambiguities
fornia Master Agreement of 1977-80 contains clauses with regard to the scope of the unit. The 1977-80 masterfornia Master Agreement of 1977-80 contains clauses
limiting the right of employers to subcontract onsite con- abo r dd no t co n ta i t h e b a s ic u n it descp-
tion language that had appeared in prior agreements con-struction work to other employers. Those clauses could cerninguage that had aeaed i ors' yards and shos
not have any meaning with regard to B. C. Malcolm cerning coverage of the contractors' yards and shops.
who does no onsite work. If the employees of B. C. Similar language was used in the 1977-80 agreement but
who does no .nsite.work .25.If the employees of B..C. it was included in an appendix related to special workingMalcolm are lumped into the Malcolm Boring bargaining i was included in an apendix related to special working
unit and covered by the master labor agreement, the rules for the operating engineer craft. There is serious
nonconstruction employees of B. C. Malcolm would not doubt as to whether the parties ever intended that shopnonconstruction e ployees of B. C. Malcolm would not
only be bound by a pre-hire contract where the majority employees as opposed to construction employees should
representation status could arguably be attributed to the be covered in light of the fact that the short-form agree-
union-security clause, but would also be subject to the ment signed by Malcolm Boring in 1962 had the box for
requirement that they join Local 12 on the eighth day construction checked but not the box for shop. In view
after their employment, of all these ambiguities it is particularly important to
afterthe~____ ir__ employment.look to the practice of the parties.
" From July 1979 through June 1980 B. C. Malcolm's volume of busi- Malcolm Boring traditionally hired unskilled employ-
ness from rental and sales of equipment was approximately $228,780. ees. When those employees obtained a sufficient degree
From August 1979 through July 1980 Malcolm Boring's volume of busi- of skill, they were permitted to join Local 12 and to
ness from construction industry work was approximately $i,283,165 enjoy coverage by the contract. That practice was fol-
Sec. 8(f) of the Act.
"Sec. 8(aX3) of the Act. lowed openly over the years. The evidence does not es-
Sec. 8(e) of the Act. tablish that the practice was a result of deception or mis-
]
l rs,
):
'
tit t
l r t s f voluntary agree ent.
.
i j t l l i It i t nti l i t r i i t t i t
i it ri t 2 l i t t t t i it i ry i
tr ti r i i i i t ti . I t i t t
rt ri ti
i l i i i ll t i rt-f
rt t li l t lf
L ab o r A g r ee m en t o f J u l , 19 7 7 t o i t t i it t r. t r li-
15, . t t r l r r t i tr ti t r
t i - ti l
rit l t t i l f l li t l i i l l i
ri ril in t il i and construction indus- i, 1962. The 1977-80 Southern California Master Labor
."" i l f l li l r t
is t ri ril in t il i tr ti r f iff r t i i l i r t r , r-
i str .24 he original contract between alcol ers, and Teamsters. Even assuming that the Local 12
ri l 12 a r - ir r t i i - p of t gree ent c b vered f m
.
, * , , , ., ' , . ., ,~~the h n o t remn in s a w a
il i t ti i t . t li i i l l i , t ri i iti
\st ontain t hmi t s , j**i i* *
t t i l r agreement i no t
c o n t ain in t h e b as ic u n it scrip-
struction rk to t r e ployers. s clauses c l tce n cvrgo t h e nt prcor rdsment n-
not have any eaning with regard to B. C. Malcolm Scernmlg coverage of the contractors yards and shops.
who does no onsite work.'2 If the employees of B. C. it l r lan g u ag e as u s edin t h e, ap et 80 ag r e em e n tc b u t
l l are l i t t l l ri bargaining r l w as f n c l u d edo n an gppengdn r e l a t ed to special orking
it and covered by the master labor agreement, the d t r a t pt sr r f t. T h e r e ts ser ho u s
tr cti m l f . . l l l t t r t pcon ru n t en d ed sat shop
l a r - ir tr t r t j rit e ployees as opposed t c str cti e ployees should
r r nt ti t t l r l ttri t t t mb e c o v er e d m li t f t f t t t t rt-f r r -
i -s curity clause, but l ls be s j ct to t cm en t ructi o M al c o lke d "S m l 9 62 the box f r
r ir t that they j i Local 12 on the eighth day construction checked but not the box for shop. In vie
ft r t ir l y t. 0 1f all t s i iti it i rti l rl i rt t t
aft er th eir e mploy m ent. loo k

nessfrom th cntrcuctin i s tr rk
as xi te ly S1,283,165 enjoy coverage by the contract. That practice was fol-
" ec. ,lowed
"Sec. t t.
ii_
^^ n 19 77 - agreement but
s
r i
l .
. ( ) l l ti
d d the bas c un t de
overa ge of
rado
rtlud in an ap dix related
srt ned bu t n i 1962
tb ese:
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation by Malcolm Boring. On occasions Mal- boys and start a pipe business." Billy C. Malcolm testi-
colm Boring had to argue with Local 12 before Local 12 fled that he never told Cochell that he would close
would accept the fact that employees had sufficient skills down his boring business. As between Billy C. Malcolm
to be allowed to join the Union. An argument could be and Cochell, I credit Billy C. Malcolm.28
made that Local 12 considered the contract to be a mem- Paragraph 12 of the complaint alleges that in or about
bers-only agreement that did not apply to nonmembers. October 1979 Billy C. Malcolm interrogated an employ-
Looking at the situation more favorably from Local 12's ee at the Chino facility regarding his union sympathies
point of view, Local 12 required employees to have a and membership. Larry Cochell testified that, in the
certain degree of skill before joining the Union and, latter part of September or early October 1979, Billy C.
when they had attained that degree of skill, they also Malcolm spoke to him in the shop and asked him what
were eligible for coverage under the contract. In any his thoughts were on the NMU. He averred that Billy C.
event, the practice was for the contract to cover skilled Malcolm mentioned some of the benefits of the NMU.
construction employees of Malcolm Boring. B. C. Mal- Although I have some doubts as to Cochell's credibility,
colm shop employees were never covered. In sum, I do Billy C. Malcolm did not testify with regard to that con-
not believe that the General Counsel has established that versation and I credit Cochell. However, in the entire
the voluntary agreement of the parties, as construed in context of the situations, as set forth above, I do not be-
the light of their practices, included shop employees in lieve that that one isolated question interfered with, re-
the scope of the unit. strained, or coerced Cochell or any other employee in
Under all these circumstances, I find that the ethe mploy- exercise of his rights guaranteed by Section 7 of the
ees of B. C. Malcolm are in a separate bargaining unit c .
from the employees of Malcolm Boring and that any Paragraph 13 of the complaint alleges that in or about
contract that Malcolm Boring had with Local 12 did not October 1979 Bruce C. Malcolm interrogated an employ-contract that Malcolm Boring had with Local 12 did not
ee at the Chino facility regarding his union sympathiesapply to the employees of B. C. Malcolm. In light of that ee at the Chino facility regarding his union sympathiesand membership. Cochell testified that, about the first offinding, I recommend that the allegation that Malcolm a . C t t a t f
October 1979, Bruce C. Malcolm asked him what hisBoring and B. C. Malcolm refused to bargain with Local October 1979, Bruce C. Malcolm asked him what his
thoughts were about the NMU and told him that he had12 in violation of Section 8(a)(5) of the Act be dis- thoughts were about the NMU and told him that he had
missed. 26 signed a contract with that Union. As found above,
Bruce C. Malcolm was not a single employer with Mal-
E. The 8(a)(1) Allegations colm Boring or B. C. Malcolm. At that time Bruce C.
Malcolm had his own business and Cochell was not his
Paragraph 11 of the complaint alleges that in or about employee. Bruce C. Malcolm and Cochell had been
October 1979 Billy C. Malcolm violated Section 8(a)(l) friends and it appeared that Bruce C. Malcolm was
of the Act by stating to employees at the Chino facility merely asking Cochell's advice concerning his new busi-
"that he intended to end his construction boring business, ness. I do not believe that Bruce C. Malcolm's question
in order to discourage activity on behalf of or in support in any manner interfered with, restrained, or coerced Co-
of the IUOE." David Frederick testified that, in August chell or any other employee in the exercise of rights
or September 1979, Billy C. Malcolm told him that he guaranteed by Section 7 of the Act. I shall recommend
had negotiated a contract for Bruce Malcolm with that all of the 8(a)(l) allegations in the complaint be dis-
NMU, that Bruce was going to try that Union, and that missed.
B. C. Malcolm was considering signing with that Union.
As set forth above, Billy Malcolm denied that that con- CONCLUSIONS OF LAW
versation took place and I have credited Billy C. Mal- 1. Malcolm Boring, B. C. Malcolm and Bruce Mal-
colm. Larry Cochell testified that, in June 1979, Billy C. colm, Inc., are, and each is, an employer engaged in
Malcolm told him that Malcolm Boring would be closing commerce within the meaning of Section 2(6) and (7) of
down in January 1980. Cochell also testified that in late the Act.
September or October 1979 Billy C. Malcolm told him 2. Local 12 and NMU are and each is a labor organi-
that he was going to turn the boring business over to the zation within the meaning of Section 2(5) of the Act.
3. The General Counsel has not established by a pre-
"2 As the United States Supreme Court held in N.L.R.B. v. Local ponderance of the credible evidence that Malcolm
Union No. 103. International Association of Bridge, Structural & Ornamen- Boring, B. C. Malcolm, Bruce Malcolm, Inc., or NMU
tal Iron Workers, AFL-CIO [Higdon Construction Co.l, 434 U.S. 335, 345
(1978): "The employer's duty to bargain and honor [an 8(f)] contract is violated the Act as alleged in the complaint.
contingent on the union's attaining majority support at the various con- Upon the foregoing findings of fact, conclusions of
struction sites." The Board has held that that duty also applies where a law, and upon the entire record in this case, and pursu-
union attains majority status in a bargaining unit consisting of a perma- ant to Section 10(c) of the Act, I hereby issue the fol-
nent stable work force which moves from jobsite to jobsite. Precision
Striping, Inc., 245 NLRB 169 (1979), enforcement denied 642 F.2d 1144 lowing recommended:
(9th Cir. 1981). The General Counsel contends that the Union did secure
majority status in such a permanent stable work force. As to part of that 27 It is noted that Local 12 Business Agent Dye did not contact Mal-
argument, the General Counsel lumped together the construction and colm Boring concerning its claim that shop employees were covered by
nonconstruction employees, deleted from the unit employees who had Ihe contract until December 1979.
not worked a certain number of days within a given period, and counted 28 Even if Cochell were credited, it would be clear that the alleged
as part of the bargaining unit workers who were the sons of the owner. threat had nothing to do with Local 12's claim that the contract covered
However, in view of the conclusions reached above, there is no need to shop employees. The threat allegedly occurred in October 1979 and
decide the question of majority status. Local 12's claim was made in December 1979.
.
2

li e v e th a t t h a t o n e so l a t e d
ll , l
t he e x e r c ise o f h is ti
i i i c t
_ P a r p h 3 l i
l l ri it l 12 i not
O c t o b er 19 7 9 B r u c e C M al c o l m interrogated an e ploy-
, . , , , n~ „, , , ,,. ,. c., i l . i l d i pthe
vvnding, I recommend that the allegation ta. Malcolm .and e bership. ochell testified that, a t t first f, t t ll ti t t l l „. in iii iir i r„ . "' „ „ „ , , , , .". .„ , ,
. l l i is,„ . ° , .„„ . „, ,-. , . . ,
l a
. 26signed
.
(l
c o l m o r B

(l)
. , . l
t t i l t t t.
2" t it t t r rt el i . . . . v. Local o era ce of the credible evidence that alcol
i . , I t ti l i ti fBrid , t t l m - , . . ,
, )
): Co l
n-_ f
t ti it . r s l t at t at t also applies here a la , and Upon the entire record in this case, and pursu-
union attains ajority status in a ar ai i unit c sisti f a er a- t t ti ( ) , I i l
, ,
" i t i t t t l-
.

"1 it l l t t t ll
,.

'

i ,
ding3
MALCOLM BORING CO., INC. 609
ORDER 29
The complaint is dismissed in its entirety.
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.