Tabernacle Sand & Gravel Corp.

National Labor Relations Board - Board Decisions

Oct 6, 1977

232 N.L.R.B. 957 (N.L.R.B. 1977)

TABERNACLE SAND & GRAVEL CORPORATION
Tabernacle Sand & Gravel Corporation and Nalbone
Trucking and William L. Waldron. Case 22 CA-
7135
October 6, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELIO0 AND MURPHY
On July 11, 1977, Administrative Law Judge
Norman Zankel issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions3 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I Respondent's motion to stnke General Counsel's Exception 2 and that
portion of the brief in support thereof is denied as lacking in merit. Further.
Respondent's motion to supplement the record with a three-page excerpt of
a U.S. district court proceeding. Civil Action 77- 188. is denied. The excerpt
contains statements by the General Counsel that Pasquale Nalbone's
affidavit in an unrelated case was used in the investigation of the instant
case. Respondent made the same request to the Administrative Law Judge,
who denied it in his Decision at fn. 25. We deny Respondent's motion for
the reasons cited by the Administrative l aw Judge. Furthermore, we note
that the granting of the motion would not affect the result of the case. The
information contained in the excerpt was admitted by the General Counsel
at the hearing and was fully considered by the Administrative Law Judge.
2 We agree with the Administrative Law Judge's finding that the lack of
interchange between the dnvers of Nalbone and Tabernacle, the different
onsite supervision. and the Union's rejection of the opportunity to represent
Tabernacle dnvers are factors which tend to support the finding that
Nalbone drivers constitute a separate appropriate unit. In addition, there is
a long history of separate representation by the Ulnion of the Nalbone
employees.
Both Nalbone and Tabernacle were established as corporations in 1956.
In 1966 Nalbone joined in forming the Eastern I rucking Asssociation and
engaged in multiemploser collective bargaining with the Union. Tabernacle
was never a member of the multiemployer association and its employees
were not represented by the Union. In approximately 1975, Nalbone
withdrew from the Association and bargained separately with the Union as
the collective-bargaining representative of Nalbone's drivers. At no time
during this period were Tabernacle drivers included in the coverage of the
agreements negotiated between Nalbone and the Ulnion. Nor did the Union
ever request to so include Tabernacle drivers, even though it was aware of
their existence.
232 NLRB No. 168
There are factors present which in other circumstances would tend to
support the finding of a single unit of Tabernacle and Nalbone dnvers. The
drivers do the same work, possess the same skills, receive their work
assignments from the same people, and sometimes work at the same situs.
However. Nalbone's long bargaining history with the Union, supplemented
hb the absence of interchange between Nalbone and Tabernacle dnvers. the
different onsite supervision. and the Union's rejection of the offer to
represent Tabernacle employees lead us to conclude that the Nalhbone
drivers constitute a separate and distinct unit from the Tabernacle dnvers.
Accordingly. we find that the dnvers employed by Nalbone constitute a
separate appropriate unit. See Peter Kliewit Sons' Co. and South Prairie
Construction Co.. 231 NLRB 76 41977).
:' The Administrative Law Judge inadvertently confuses Nalbone and
Tabernacle in his initial discussion of junsdiction. The parties stipulated.
and we find. that Nalbone is an employer engaged in commerce within the
meaning of the Act, and had a direct inflow in excess of $50.000 in the 12-
month period immediately preceding the issuance of the complaint The
parties were unable to stipulate as to Tabernacle's employer status and no
evidence was submitted to show Tabernacle's volume of business. The
Administrative Law Judge finds, and we agree. that Nalbone and
Tabernacle are a single integrated employer. Therefore. Tabernacle is an
employer engaged in commerce within the meaning of Sec. 2(6) and (7) of
the Act.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This case
was heard before me on January 25 and April 27, 1977,1 at
Newark, New Jersey. The charge was filed by William L.
Waldron (hereinafter Waldron) on August 17, 1976,2 and
was amended on September 15. On September 28, the
Regional Director for Region 22 of the National Labor
Relations Board (hereinafter the Board) issued a complaint
and notice of hearing against Tabernacle Sand & Gravel
Corporation and Nalbone Trucking (hereinafter called
Tabernacle, Nalbone, or jointly referred to as Respondent)
alleging, inter alia, that Tabernacle and Nalbone, as a
single-integrated employer, violated Section 8(a)(Xl1) and (3)
of the National Labor Relations Act, as amended (herein-
after the Act), by failing to provide union-negotiated wage,
pension, and welfare benefits and job referrals to its
employees who were not members of Teamsters Local
469, 3 while providing such benefits to its employees who
were members of that labor organization.
Respondent filed a timely answer denying the substan-
tive allegations of the complaint and setting forth two
specified affirmative defenses. Specifically, the "first
affirmative defense" pleaded that the "Complaint fails to
state a claim upon which relief can be granted"; and the
"second affirmative defense" pleaded that the "Complaint
is based upon a charged unfair labor practice occurring
more than 6 months prior to the filing of the charge .... "
Additionally, Respondent filed a formal motion to dismiss
the complaint and supporting brief asserting the two
affirmative defenses as grounds for the motion. The
counsel for the Board's General Counsel submitted a
The intenm period between the heanng dates was consumed by
subpena enforcement proceedings in the United States district court (New
Jersey), which proceedings were necessary to the continued progress of the
instant case.
2 All dates hereafter are in 1976, unless otherwise stated.
I The union's formal designation is: Local 469. International Brother-
hood of Teamsters. Chauffeurs. Warehousemen and Helpers of Amenca.
957
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
memorandum opposing Respondent's motion and, by
written Order dated November 17, 4 Respondent's motion
to dismiss was denied. At the hearing, I granted Respon-
dent's unopposed motion to amend its answer by adding a
"Third Affirmative Defense," as follows:
The Complaint is based upon evidence given in
confidence to the N.L.R.B. by Pasquale Nalbone, in a
prior proceeding, which evidence was improperly
revealed by the N.L.R.B. Region to the charging party.5
All parties were afforded full opportunity to participate
in the proceeding upon all issues, including the three
affirmative defenses; to examine and cross-examine wit-
nesses; and to argue orally. The counsel for the General
Counsel and Respondent's counsel filed posthearing briefs
which have been carefully considered.6
Upon the entire record in the case, including my
observation of the demeanor of' witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Tabernacle, a New Jersey corporation, maintains its
principal office and place of business at Route 33,
Mercerville, New Jersey, where it is engaged in the business
of trucking and hauling sand and gravel.7 During the 12-
month period immediately preceding issuance of the
complaint, Tabernacle caused to be purchased, transferred,
and delivered to its Mercerville, New Jersey, location,
goods and materials exceeding $50,000, of which goods and
materials exceeding $50,000 in value were transported to
the Mercerville location directly from points outside the
State of New Jersey.
The parties stipulated, and I find, that Tabernacle is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
Nalbone, a New Jersey corporation, maintains its
principal office at Route 33, Mercerville, New Jersey, from
which it is engaged in the business of trucking and hauling
sand and gravel." The parties were unable to stipulate that
Nalbone is an employer engaged in commerce within the
meaning of the Act, and no evidence was adduced to show
Nalbone's volume of business. Nonetheless, based upon
the conclusion reached below,9 that Tabernacle and
Nalbone constitute a single-integrated enterprise, I find
that Nalbone is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. °
Respondent admits, the record reflects, and I find, that
Local 469, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
4 Issued by Administrative Law Judge Arthur Leff.
I Tr., p. 49, 11. 12 16.
6 General Counsel's unopposed motion to correct the official transcript,
p. 104, 1. 12, to delete the word "yes" and substitute the word "no," is
granted.
I Although this fact was denied by the answer to the complaint, par. 5, 1
find this fact based upon the uncontradicted testimony of Pasquale
Nalbone, an operating supervisor of Tabernacle and Nalbone.
8 From the uncontradicted testimony of Pasquale Nalbone and the
corporation's telephone advertisement contained in G.C. Exh. 2.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background l
Both Tabernacle and Nalbone were established as
corporations in 1956. Originally, Nalbone was conceived as
a hauler of sand and gravel and Tabernacle as engaged in
quarry activities, the latter organization owning a stone pit
approximately 40 miles from the Route 33, Mercerville
location. In 1966, Nalbone (together with other trucking
companies in southern New Jersey) formed the Eastern
Trucking Association which thereafter engaged in multi-
employer collective bargaining with three Teamster locals,
including Local 469. Each of the labor organizations
represented different job classifications among the various
employer members of the trucking association. At no time
was Tabernacle a member of the trucking association. In
approximately 1975, Nalbone timely withdrew from the
association and bargained separately with Local 469 as the
collective-bargaining agent of Nalbone's truckdrivers.
Since approximately May 1, 1975, Nalbone and Local 469
maintained a collective-bargaining relationship between
them by way of two successive oral agreements, the most
recent of which was due to expire on May 1, 1977. At the
second hearing date, negotiations for a new agreement
were in progress. The uncontradicted testimony of Pasq-
uale Nalbone indicates that Local 469 had made no
specific request to include any of Tabernacle's employees
in the coverage of the agreement under discussion. He also
testified that at no previous time had Local 469 made such
a request. In fact, during the summer of 1976, during a
strike by Local 469 against Nalbone, Pasquale Nalbone
testified that he told Local 469 business representative,
Fred Potter, that Tabernacle would sign an agreement with
Local 469 covering a project of Crescent Construction at
which Tabernacle employees were at work. According to
Nalbone,' 2 Potter rejected the offer, claiming Tabernacle
should leave the site because the work belonged to
Nalbone and its employees. Thus, as revealed by the
foregoing, Nalbone was operated as a unionized entity
while Tabernacle was nonunion.
Charging Party Waldron had been employed as a
truckdriver by Nalbone between 1971 and 1973,13 during
which time he also was a member of Local 469. After
completion of his employment with Nalbone in 1973,
Waldron permitted his union dues to lapse in arrears, a
status in existence in April 1976, when he was called to
work for Tabernacle. Waldron's first week of work for
Tabernacle was the payroll week ending April 28, 1976. On
April I, Local 469 struck Nalbone over terms for a new
agreement for Nalbone's truckdrivers. The strike continued
against Nalbone until August 15.
Waldron's uncontradicted testimony reveals that he
worked irregularly for Tabernacle in 1976. Thus, he
9 See sec. 11 B, infra.
l° N.L.R.B. v. Marinor Inns, Incorporated 445 F.2d 538 (C.A. 5, 1971),
enfg. 181 NLRB 467 (1970); Central Taxi Service, 173 NLRB 826 (1968).
" The facts reported in this section are not disputed.
Z2 Potter did not appear as a witness at the heanng.
13 Waldron's employment was not continuous during this penod, having
been interrupted by layoffs which, apparently, are common.
958
TABERNACLE SAND & GRAVEL CORPORATION
testified he would sometimes work 2 or 3 days a week and
sometimes as much as 6 weeks would pass between work
assignments. As indicated hereinabove, Waldron filed the
original charge herein on August 17, alleging he had been
discriminatorily laid off by Tabernacle.' 4 (Although that
same assertion is contained in the first amended charge, the
instant complaint contains no allegation of Waldron's
alleged discriminatory layoff.) According to Waldron, he
was not paid the Local 469 wage rate, nor did he receive
any of the union's negotiated pension and welfare benefits.
Pasquale Nalbone confirmed that Tabernacle's eight or
nine truckdrivers were paid less than Nalbone's five
truckdrivers and received fewer fringe benefits.' 5 Waldron
also testified to one exception to this method of compensa-
tion; namely, that he received the union rates from
Tabernacle when he worked at the Crescent Construction
jobsite.
The evidence relevant to the allegation that Respondent
discriminated in job referrals is: (1) truckdrivers of both
Tabernacle and Nalbone normally appeared at the Route
33 location each day and were given their assignments by
Pasquale Nalbone or some other of Respondent's designee,
the exception being when an employee already was at some
distant jobsite; (2) three Nalbone drivers ' returned to
work during the strike; (3) while Waldron first testified that
those three drivers were given their assignments ahead of
Tabernacle drivers, on cross-examination, he recalled that
at times there were Tabernacle drivers 17 who received
assignments ahead of any other.
B. The Single Employer Issue
Pasquale Nalbone provided the uncontradicted account
of the operations and organization of Tabernacle and of
Nalbone [attached as an appendix], in addition to the facts
relative to corporate existence described above in section
A.
No other evidence bearing upon the single-employer
issue was produced at the hearing, nor was any witness
specifically asked to identify who controls, or controlled,
the labor relations policies of either corporation. While the
General Counsel contends that the above factors, in their
totality, render Tabernacle and Nalbone a single-integrat-
ed enterprise, Respondent denies this contention.
In Radio & Television Broadcast Technicians Local Union
1264 v. Broadcast Service of Mobile, Inc., 379 U.S. 812
(1965), the Supreme Court cited with approval the Board's
earlier-announced single employer tests of (I) interrelation
of operations, (2) common management, (3) common
ownership, and (4) centralized control of labor relations.
See Sakrete of Northern California, Inc., 137 NLRB 1220
(1962); Overton Markets, Inc., 142 NLRB 615 (1963). The
Board elaborated upon these criteria declaring, in Gerace
Construction, Inc., 193 NLRB 645 (1971), that "a critical
factor in determining whether separate legal entities
operate as a single employing enterprise is the degree of
common control of labor relations policies, and that such
1" Nalbone was named as a charged party. for the first time, in the
September 15 first amended charge. This fact relates to Respondent's third
affirmative defense to be considered in sec. II1 C. infra
Is This testimony necessarily refers to the time pnor to May I and after
August 15. the period of the strike against Nalbhone.
common control must be actual or active, as distinguished
from potential control."
My assessment of the above-described evidence, consid-
ered in the light of the established criteria, persuades me,
though the issue is not free from doubt, that the record
contains sufficient requisite elements supporting the Gen-
eral Counsel's position. I recognize the existence of factors
which dictate a contrary conclusion. For example, the
separation between Nalbone and Tabernacle as to job
bidding and the fact they have not ever competed with one
another (see The Carvel Company and C and D Plumbing
and Heating Company, 226 NLRB 111, 112 (1976)); the
"charge back" accounting procedures utilized herein (see
Gerace Construction, Inc., supra; Frank N. Smith Associates,
Inc., 194 NLRB 212 (1971); and Western Union Corpora-
tion, 224 NLRB 274, 276 (1976)); the absence of evidence
to demonstrate employee interchange between Nalbone
and Tabernacle (see The Carvel Company, supra); the
separate bank accounts (see Peter Kiewit Sons' Co. and
South Prairie Construction Co., 206 NLRB 562 (1973),
reversed 518 F.2d 1040 (C.A.D.C., 1975), affd. in part and
reversed and remanded in part, sub nom, South Prairie
Construction Co., 96 S.Ct. 1842 (1976)); and the separate
onsite supervision of Tabernacle employees by Stewart,
together with other factors of separation identified hereina-
bove, are impressive indicators that Nalbone and Taberna-
cle are not so interrelated as to warrant a determination
they are a single employer for purposes relevant herein.
Despite the foregoing, I have based my conclusion upon
the following. As to the interrelationship of Nalbone and
Tabernacle, it is clear that Nalbone was established, in
part, and operated as an adjunct of Tabernacle. Tabernacle
originally owned and operated the quarry and Nalbone
was engaged in transportation of the materials derived
from the gravel pit. This dependence by Tabernacle upon
Nalbone continues, for Tabernacle does not own any of the
trucks it uses. While such dependence is not dispositive of
the instant issue, it is noted that the common ownership,
officers, and directors do establish that dependence to
involve more than an arm's length transaction s between
two business entities. Additionally, significant to the
integrated character of the corporations' relationship are
(I) the common method of job assignments by Pasquale
Nalbone or the bookkeeper to all employees; (2) the use of
Tabernacle employees to drive Nalbone's trucks; (3) the
use of Tabernacle's gravel pit by Nalbone and the fact that,
at all times relevant herein, the only pit used by both
corporations was owned by Tabernacle; and (4) the fact
that Nalbone pays Pasquale Nalbone even when he makes
work assignments to Tabernacle employees. All these
factors lead me to conclude that the record sufficiently
demonstrates the element of interrelationship between
Nalbone and Tabernacle.
No extensive discourse is necessary to perceive the
existence herein of the elements of common management
and ownership. Factors I through 4, listed above, amply
'6 Eddie Boksz. Jerry Simicsak. and Robert Rose.
:7 Indentified as Coleman. Frank, and a third unknown.
8 See Overron Markets, supra at 619.
959
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
provide the evidentiary basis for finding each of those
elements present herein.19
As noted, no explicit identification of the person or
persons in control of labor relations for either corporation
was presented at the hearing. As indicated, the Board, in
Gerace, supra, made it clear that evidence of mere potential
labor relations control does not satisfy the Board's test (see
also The Carvel Company, supra at 112). Despite the failure
to pursue this matter at the hearing, I conclude the
evidence provides a basis for finding that actual control of
labor relations of Nalbone and Tabernacle was, and is,
vested in common individuals. It is abundantly clear that
both corporate entities are organized and operated as
close-knit family organizations. Not only is the officer and
director structure identical, but also all supervision (except
for Stewart during 1976) is identical between the corpora-
tions. In this context and the absence of any contravening
evidence, it is reasonable to conclude, as I do, that there is
similar commonality with regard to control of labor
relations, even though no formal designation of that
individual or individuals has been proferred. Accordingly,
I conclude the record as a whole contains a preponderance
of evidence to find, as I do, that Nalbone and Tabernacle
are and, at all times material herein, have been a single-
integrated employer within the meaning of the Act.
C. The Third Affirmative Defense
Respondent contends the complaint should be dismissed
because its issuance was based upon a charge improperly
founded. Specifically, Respondent asserts that the instant
proceedings are not appropriate because the investigating
Board agent exceeded his authority and breached his
obligations to maintain the confidentiality of information
in the Board's possession by disclosing to Waldron
evidence contained in a Regional case file, which evidence
had been obtained in the course of investigating an
unrelated charge.20 Respondent asserts this improper
conduct led to filing of the first amended charge herein.
This is the gravamen of the third affirmative defense.
The General Counsel contends it is proper to utilize
evidence in possession of the agency to formulate amended
charges; admitted that the evidence of single employer
leading to the amendment adding Nalbone to the charge
was obtained from the CC case; and neither admitted nor
denied that Waldron had been informed of the contents of
Pasquale Nalbone's affidavit prior to, or at, the solicitation
of the first amended charge herein.
In promoting its third affirmative defense, Respondent
argues, in effect, that the use of the affidavit rendered the
admitted solicitation of the amendment improper and that,
in consequence, those activities placed the Board in the
position of having itself initiated the first amended charge
upon which the instant complaint was issued.
im It is noted that Samuel Nalbone, Jr., and Russell Nalbone are a
brother and uncle, respectively, of Pasquale Nalbone, who is the son of
Samuel Nalbone, owner and president of both corporations.
20 Pasquale Nalbone, on August II. gave an affidavit to the Board in
Case 22-CC-682 in support of charges against Local 469, claiming the
union engaged in unlawful secondary activity against Tabernacle during its
1976 strike against Nalbone.
21 Tr. 17, 11. 22 23. Respondent attached what purports to be three pages
of the subpena enforcement proceedings transcript to its postheanng brief to
As background, the instant case and other matters
relevant occurred in the following chronological order:
August 11: Case No. 22-CC-682 was filed. Pasquale
Nalbone gave supporting affidavit. There is no dispute
that, upon an administrative determination that Nal-
bone and Tabernacle were a single employer, it
appeared that case lacked merit.
August 17: A withdrawal request was approved by
the Regional Director for Region 22 in Case No. 22-
CC-682.
August 17: The instant charge in addition to a
companion CB charge (Case 22-CB-3309) was filed by
Waldron. The claim of both charges was that a layoff of
Waldron by Tabernacle on August 4 was discriminato-
ry.
After regional office investigation of the CA and CB
charges, which included examining "a listing of prior
proceedings"21 involving the parties and a review of the
contents of those prior case files, Waldron was
informed no merit appeared to the CB case,2 2 and was
advised of his right to file an amended charge in the CA
case.
September 15: The instant first amended charge was
filed by Waldron, and he gave an affidavit in support of
the case on that date. As can be observed, the
amendment (1) restates Waldron's earlier complaint
that he had been discriminatorily laid off on August 4;
(2) adds Nalbone as a charged party and; (3) adds the
allegation that since on or about February 17, Respon-
dent unlawfully encouraged membership in Local 469.
At the hearing, Respondent sought to adduce evidence,
by calling Waldron as its witness, that the contents of
Pasquale Nalbone's affidavit had been divulged to Wal-
dron by the Board's investigating agent. Although I
recognized that improper solicitation of an amended
charge is a litigable issue (Hod Carriers and Common
Laborers Union San Bernardino Local 783 (Petersen Con-
struction Corp.), 128 NLRB 971, 972 (1960), vacated in part
for other reasons 134 NLRB 1768 (1961); Parisian
Bakeries, 169 NLRB 1047, 1057 (1968)), 1 sustained
objections to questions of Waldron which would have
required him to relate what, if anything, he was told
specifically was contained in Pasquale Nalbone's CC
affidavit. I also rejected Respondent's offer of proof made
in response to my rulings upon the questions. In my
opinion, the prohibited questions and offer of proof are
irrelevant to the true underlying issue posed by Respon-
dent. Although, superficially, Respondent's argument
challenges the propriety of the mechanics involved in the
solicitation herein, I view the issue to be whether or not
Nalbone was appropriately named as a charged party and,
subsequently, as Respondent. This conclusion was, at the
me. These pages, identified as appendices to Respondent's brief, are argued
to contain General Counsel's admission that the first amended charge was
solicited after the investigating agent informed Waldron of the results of
examination of prior files. I have not utilized those appendices for any
purpose (I) because they were not offered as evidence at the hearing, (2)
because they appear to be incomplete on their face, and (3) they have not
been properly authenticated.
22 Waldron withdrew the charge in Case 22-CB-3309, but the date of
withdrawal does not appear in the record.
960
TABERNACLE SAND & GRAVEL CORPORATION
hearing and at this time, the basis for my rulings and
findings. All that is deemed relevant to the issue as I have
framed it is whether or not some basis, provided by
Waldron, existed for naming Nalbone in the first amended
charge. At the time of my rulings, rejecting the evidence as
described above, there already was on the record the
statement of counsel for the General Counsel to the effect
that the amendment was, in part, derived from information
in prior Board cases. The particular case, in this instance,
was 22-CC-682. There can be no doubt that Pasquale
Nalbone's affidavit testimony described the interrelation-
ship between Tabernacle and Nalbone. If this were the sole
source of that information. I would agree that Respon-
dent's questions would have been relevant. However, at the
time of Respondent's offer of the rejected evidence, there
also already was in evidence Waldron's September 15
affidavit which, in paragraph 4, relates "Located in the
same building as Tabernacle is Nalbone Company. They
are owned by the same person, Sam Nalbone and three
sons. Pat (Pasquale) Nalbone controls both companies."
Thus, the predicate for joining Nalbone as a party herein
was within the direct knowledge of Waldron himself.
Whatever may have been contained within Pasquale
Nalbone's CC affidavit might only have served to corrobo-
rate or refute Waldron. Thus, if Waldron had been
corroborated, and even if he was so informed by the Board
agent, it would be irrelevant to know the words used to
provide Waldron with that information because it is "the
duty of the General Counsel, in discharging his responsibil-
ities as a public official . . . to take proper measures to
effectively remedy all of the unfair labor practices which
had been revealed by the investigation. An effective
remedial order can be issued only against employers and
labor organizations who are named as Respondents in a
case, and only those persons against whom charges are
filed may be made respondents to a complaint" (Hod
Carriers, Local 783, supra at 972).23 Even if Waldron had
been advised that Pasquale Nalbone earlier gave evidence
contradicting Waldron's, what was said by the Board agent
to Waldron is irrelevant, for it is quite proper for such
differences to be resolved at a hearing. Even the dissent in
Hod Carriers, Local 783, supra at 982, acknowledges that
"Regional personnel should acquaint a Charging Party
with his rights, assist him in the formulation of his charges
and, where investigation reveals that additional charges
can be made or that additional parties should be added as
Respondents, advise him of his right to do so." Insofar as
Respondent herein asserts that the investigating agent
exceeded the bounds of giving advice to Waldron of his
right to file an amended charge, in the face of Waldron's
personal knowledge of facts as depicted in paragraph 4 of
his affidavit, it is illogical, and straining, to conceive that
anything else of which he may have been informed placed
the Board in a position tantamount to becoming the
initiator of the amendments. Respondent argues that
"every inference points inescapably and conclusively" in
the direction of proof that the evidence contained in
23 In the cited case what was in issue, as herein, was the propriety of
solicitation of amended charges adding parties
24 have taken note of and considered Respondent's prehearing
memorandum of law. as requested in its posthearing brief.
Pasquale Nalbone's affidavit was communicated to Wal-
dron. This argument ignores the effect of the statements,
referred to above, contained in Waldron's affidavit. In
N. LR.B. v. Reliance Steel Products Company, 322 F.2d 49
(C.A. 5, 1963), enfg. 135 NLRB 730 (1962), in pertinent
part (cited by Respondent), it was concluded that solicita-
tion of a charge is a litigable matter and, if proved, will
suffice to dismiss a case. In Reliance Steel it was held no
solicitation was proved, the court emphasizing that the
substance of the amendments was encompassed within the
so-called "catch-all" or "by these and other acts" language
of the original charge. Respondent urges that a finding of
solicitation herein is warranted because Waldron's original
charge herein omits the "catch-all" language. I have
examined Waldron's original charge herein, attached to the
complaint, and find Respondent factually inaccurate. At
the bottom of Item 5 of that charge appear the printed
words "By the above and other acts .... " Accordingly, I
find the allegations of the first amended charge within the
scope of the original charge.
In sum, I find that the context surrounding the filing of
the first amended charge herein reveals nothing which
would show, even if Waldron would have been permitted
to testify further on the subject, that the amendment was
improperly solicited. Moreover, I find that, in the circum-
stances herein, the excluded testimony is irrelevant.
Accordingly, I conclude there is no ment to Respondent's
third affirmative defense.
D. The 10(b) Issue - The Second Affirmative
Defense
As previously noted, Respondent seeks dismissal of these
proceedings on the ground that the first amended charge
was filed more than 6 months from the date of the
commission of the unfair labor practice alleged therein.
Respondent argues 24 that the statute of limitations, Section
10(b) of the Act, became operative on March 15 because
the amendment to the charge was filed on September 15.
Inasmuch as the first amended charge, and paragraph 13 of
the complaint, allege unfair labor practices to have
occurred "since on or about February 15," Respondent
contends there exists a fatal defect. In addition to this
position, Respondent claims that the first amended charge
bears no relationship to the original charge in that the
latter (1) had not raised the single employer issue, and (2)
contained no allegation of employer encouragement of
union membership and is, therefore, a different class of
violation, and also asserts that the original charge herein
provided no foundation for the character of the amend-
ment because of the absence of the "catch-all" language.25
It is clear, from the facts recited hereinabove, that the
activities claimed by General Counsel to constitute a
violation of the Act were Respondent's admitted 26 practice
of granting to the Nalbone truckdrivers higher wages and
better fringe benefits than to the Tabernacle truckdrivers,
and this was done pursuant to the most recent oral
agreement between Nalbone and Local 469. It is equally
15 Inasmuch as this last contention was disposed of in sec. II, C. supra I
shall not deal with it hereafter.
2h" r. 70. 11 17 25
961
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear that this arrangement was practiced at least from
March 15 and continued to the hearing dates. Thus, I find
(even if conceding the validity of Respondent's conten-
tions) that the unlawful activity, if any, was engaged in
within 6 months preceding the filing of the first amended
charge. See N.L.R.B. v. Anchor Rome Mills, 228 F.2d 775
(C.A. 5, 1956).
As to the claim that the allegations of the amendment to
the charge are of a different class from, and not encom-
passed within, the original charge, I note that both
documents assert a violation of Section 8(a)(1) and (3), and
that the original charge does contain the "catch-all"
language. "It is well established that an unfair labor
practice finding may be based upon any conduct which
occurred within a 6-month period prior to the filing of a
charge, although the charge does not specifically setforth such
conduct as a violation of the Act, if the complaint issuing
thereon alleges the conduct to be an unfair labor practice"
(Jay Company, Inc., 103 NLRB 1645, 1647 (1953), and
cases cited therein). Thus, I find it was unnecessary for the
original charge herein to contain the precise assertions of
illegality which are alleged in the first amended charge and
the complaint. The broad allegation of the 8(a)(l) and (3)
violations, coupled with the "catch-all" language, suffice to
confer jurisdiction over the subject matter of the com-
plaint. Accordingly, I find that February 15 is the effective
date for all purposes herein.
E. The Alleged Discrimination
As previously noted, one of the acts of discrimination
was Respondent's alleged disparate job referral practice. 7
General Counsel contends that Respondent issued job
assignments to Nalbone truckdrivers before making such
assignments to the Tabernacle drivers. Both Waldron and
Pasquale Nalbone testified on this issue. Waldron's
testimony appears above in section II1, A, and may be
summarized by stating that he observed Tabernacle drivers
Coleman, Frank, and another receive job assignments
ahead of Nalbone drivers. Pasquale Nalbone admitted
that, at one time, he did indeed give preference to the
Nalbone drivers, but that practice ceased "a year, a year
and a half ago" (prior to his testimony on April 27, 1977).28
I credit both these witnesses. There is no inconsistency in
their respective versions of job assignments. If, in fact, the
preferential treatment ceased not later than April 1976,
then it is reasonable that because Waldron began working
for Tabernacle in the latter part of that month, he would
have observed Tabernacle employees receiving job assign-
ments ahead of Nalbone drivers. Although Pasquale
Nalbone's admission does place the alleged discriminatory
practice 2 months within the 10(b) period, it is sufficiently
vague as to time to believe that if the practice had been
discontinued a "year and a half' before the hearing, then
the practice could not be found to constitute a violation of
27 Par. 13(b) of the complaint.
"2 From tr. 65. I. 25 tr. 66. 1. 10:
(By Mr. Kroll): Q. [.et's say that you have a Nalbone employee and
a TS&G employee. Is there any order as to who would come first, as far
as any work that is given out?
A. No, not at this time.
Q. Not at this time?
the Act. Local Lodge No. 1424, International Association of
Machinists, AFL-CIO, et al [Bryan Manufacturing Compa-
ny] v. N.L.R.B., 362 U.S. 411 (1960). I have searched the
record for evidence enabling me to establish with greater
refinement the time this preferential activity ceased, but
have uncovered nothing to assist in this regard. According-
ly, I conclude the General Counsel has not established,
with certainty, that the alleged unlawful job preference was
in effect after February 15, and shall recommend dismissal
of paragraph 13(b) of the complaint for this reason.
Assuming, however, that there is sufficient evidence
herein to prove that preference in job assignments occurred
within the statutory 10(b) period, I would nonetheless
recommend dismissal for the reasons which follow immedi-
ately below regarding the allegations of paragraph 13(a) of
the complaint.
Paragraph 13(a) of the complaint alleges, in effect, that
Respondent discriminated against employees by its failure
to pay "wages and pension and welfare benefits" to
Tabernacle truckdrivers. The record reveals that before
and after the 1976 strike, Nalbone's drivers were paid the
contractual wages and fringe benefits which were higher
and greater than provided to Tabernacle's drivers, while no
such payments were made to or on behalf of the latter
employees. 29 Based upon the record evidence, I find that
between February 15 and May 1, and again since August
15 and continuing thereafter, Respondent treated the
Tabernacle employees in the disparate manner relative to
those wages and fringe benefits.
General Counsel contends this treatment constitutes a
violation of Section 8(a)(3) and (1), claiming that activity is
inherently conducive to increased union membership.
Thus, General Counsel submits that the Tabernacle drivers
are encouraged to join Local 469 in order to receive
benefits equal to those accorded Nalbone drivers. The
General Counsel's theory is predicated upon the proof that
Tabernacle and Nalbone are a single employer.
Respondent, while neither admitting nor denying the
existence of the disparate treatment, contends that in any
event no violation can be found herein because it has not
been claimed or demonstrated herein that the drivers of
both corporations are within a single bargaining unit.
Respondent argues that a single employer finding does not,
ipso facto, establish the appropriateness of an employer-
wide unit and, absent the latter element, there cannot be a
finding that the disparate treatment is "inherently" dis-
criminatory.
In the Gaynor News portion of the Supreme Court's
decision in The Radio Officers' Union of the Commercial
Telegraphers Union, A FL [A.H. Bull Steamship Company] v.
N.L.R.B., 347 U.S. 17 (1954), the Court found the grant of
retroactive wage increases and vacation payments to
employees who were members of a union with which the
employer maintained a "members-only" contract, while
A. Yes. that's nght.
Q. Was there, at one time?
A. Yes.
Q. When was that?
A. A year ago, a year and a half ago.
29 See sec. 11, A, supra, particularly fn. 15, and its attending text.
TABERNACLE SAND & GRAVEL CORPORATION
refusing to provide those increments to other employees
because of their nonmembership in the union, violated
Section 8(a)(3) and (I). In so holding, the Court observed,
at 347 U.S. 46, that the second circuit was correct in
concluding that "disparate wage treatment of employees
based solely on union membership is inherently conducive
to increased union membership." Gaynor involved treat-
ment between employees who undisputedly were in the
same unit, and admittedly employed pursuant to contract.
The Court noted this factor when, at 347 U.S. 47, it stated,
"We express no opinion as to the legality of disparate
payments where the union is not exclusive bargaining
agent since that case is not before us." I conclude that a
crucial factual element to support the General Counsel's
position is that Tabernacle and Nalbone drivers are within
a single bargaining unit. A Board decision cited by General
Counsel lends confirmation. Thus, in D. J. Eshom Meat
Co., Inc., 208 NLRB 41 (1973), the Board adopted, pro
forma, the Administrative Law Judge's finding that the
employer violated Section 8(a)(3) and (1) by paying a unit
employee less than the contract wage and denying him the
fringe benefits derived from the contract. Once again, there
was no dispute in the Eshom case that the employee injured
belonged in the contract unit. Although the General
Counsel also relies upon R & N Express, Inc., and Arnco
Service & Leasing Company, Inc.. 224 NLRB 1104 (1976), 1
find that case inapposite to the proposition under consider-
ation. In R & N, the Board expressly disavowed the
applicability of Gaynor to the facts therein stating, at 1105
of that decision "This is not a case where, as in Gaynor ...
the discrimination . . . was 'inherent'.... On the con-
trary, there is clear proof [in R & N that (the discrimina-
tees)] were encouraged to join the Union because of the
Respondent's preferential treatment of the three union
member employees." In R & N, as in Gay nor and Eshom,
there was no dispute that the alleged discrimination
occurred as between employees within a single unit.
Further affirmation of my conclusion that unit evidence
is a requisite herein is found in three additional cases.
Thus, in Central New Mexico Chapter, National Electrical
Contractors Association, Inc., 152 NLRB 1604, 1608 (1965),
the Board observed that a "single-employer determination
does not necessarily establish that an employer-wide unit is
appropriate." This declaration was cited with approval by
the Supreme Court in South Prairie Construction Company
v. Local No. 627, International Union of Operating Engi-
neers, 92 LRRM 2507, 2509 (1976). The Board itself
implicitly acknowledged the viability of the need for
independent proof of appropriateness of the unit in the
situation presented herein in the relatively recent case of
Don Burgess Contruction Corporation d/b/a Burgess Con-
struction, et al., 227 NLRB 765 (1977). In that case, after
affirming a finding of single employer, the Board com-
mented at page 765 therein), "We rely both on the reasons
set forth by the Administrative Law Judge and on the fact
that all of the employees possess the same skills, perform
the same functions, share the same general working
conditions, and usually work at the same situs."
Finally, relevant to the issue at hand is the case of B & B
Industries, Inc., et al., 162 NLRB 832, 834 (1967), where the
Board indicated the impropriety of making unit assump-
tions only on the basis of a single-employer finding. The
Board said, "The Trial Examiner apparently assumed that,
because B & B and Beachner Construction constituted a
single employer, every contract made by either covers all
the employees of both. But this is clearly not the case. Even
an individual employer may have bargaining agreements
that cover some of his plants and not others." (Emphasis
supplied.) Although the B & B case was decided in the
context of alleged refusal-to-bargain violations, I regard
the Board's quoted comments applicable to resolution of
the instant issue.
I find General Counsel's reliance on the R & N case,
supra, misplaced. The arguments propounded by the
General Counsel herein are identical to those this particu-
lar counsel for the General Counsel advanced in R & N.
There, respondent argued that a finding of inherent
discrimination is possible only in conjunction with the
presence of either a certification of bargaining representa-
tive or a collective-bargaining agreement covering the
aggrieved employees. Though the Board rejected that
concept, it is equally clear, as noted above, that its finding
of a violation turned upon the evidence therein of
independent proof that the disparate treatment comprised
actual encouragement to join the union there involved. The
evidence of such encouragement was proof of the failure of
R & N to keep a promise to pay the nonunion employees
the benefits enjoyed by the union employees in the same
unit. Herein, there is no similar evidence of actual
inducement by Respondent for any employee to join Local
469. Even Waldron, who previously had been a member of
that union, had not so much as sought to reinstate his
membership. Thus, in the absence of direct evidence herein
of actual encouragement or other evidence of discriminato-
ry motivation, I am unable to infer the causal connection
proposed by the General Counsel.
As I perceive the lesson gleaned from the totality of the
above-cited authority, it becomes necessary to resolve the
unit question to declare that Nalbone and Tabernacle
drivers are, at all relevant times, appropriately a single unit.
The Supreme Court, in South Prairie, quoting from Central
New Mexico, dictates the exercise of caution in situations
as presented herein. While there are factors in this record
which support a single unit finding, I am persuaded that
the record as a whole does not mandate such a conclusion.
The General Counsel's sole comment in his brief regarding
this matter is that "It is clear that the drivers perform the
same work duties for Respondent, i.e. picking up and
delivering sand and/or gravel to various construction
sites." I agree the record proves this proposition. Moreover,
it is reasonable to infer that all the drivers possess the same
skills (see Don Burgess, supra), and the record demonstrates
they sometimes work at the same situs. On balance,
however, the record as it now stands contains more
convincing evidence suggestive of such a lack of communi-
ty of interest between the drivers of both corporations as to
warrant the conclusion that separate units are appropriate.
Thus, measured by the standards set forth in Dixie Belle
Mills, Inc., 139 NLRB 629, 632 (1962), 1 am unable to say
with certainty that an employerwide unit of drivers is
appropriate in the circumstances herein. The record reveals
that there is no interchange between the drivers; that they
963
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have different onsite supervision; and that Local 469 has
not sought (and, indeed, rejected) the opportunity to
represent the Tabernacle drivers. I do not hold or find an
employerwide drivers' unit inappropriate but, instead,
conclude the record is insufficient upon which to make a
unit finding. Because of this, I find that the General
Counsel has not sustained his burden of proof as to
paragraph 13(a) and shall recommend its dismissal.
Upon the basis of the foregoing findings and conclu-
sions, and upon the entire record in this case, I make the
following:
CONCIUSIONS OF LAW
I. Tabernacle Sand & Gravel Corporation and Nal-
bone Trucking, Respondent herein, are, and at all times
material have been, a single-integrated employer engaged
30 In the event no exceptions are filed as provided by Sec. 102.46 of the
Board's Rules and Regulations, the findings, conclusions, and recommended
Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations,
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Local 469, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is,
and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint are properly based
upon the first amended charge.
4. Respondent has not proved its second and third
affirmative defenses.
5. Respondent employers have not engaged in any of
the unfair labor practices alleged in the complaint.
Accordingly, I hereby issue the following recommended:
ORDER 3 0
The complaint is dismissed in its entirety.
be adopted by the Board and become its findings, conclusions, and Order.
and all objections thereto shall be deemed waived for all purposes.
964
965TABERNACLE SAND & GRAVEL CORPORATION
Append x
pactor
1. Owners
2. Officers
3. Supervisors
lalbone
Samuel and Theresa
Nalbone
Samuel ';albcne,
President
Theresa ,albone, Vice
President
Pasquale :;albone
Samuel ::albone, Jr.
Russell :lalbone
4. Exercise of Authority Pasquale Nalbone
to hire and fire Samuel l;albone, Jr.
Russell 'lalbone
5. Office location
6. Nature of vork
7. Salaries of Pasquale
Nalbone, Samuel
Nalbone, Jr. and
Russell ;;albone
S. Work Assitnments
Route 33,
!Iercerville, NJ
Hauls sand and gravel;
owns gravel pit In
Allentown, NJ --Pit
recently acquired, and
apparently not onmed at
the tine of alleged
unfair labor practices.
Paid by ';albone, when
perforri.ng services
for that corporation.
Truck drivers pick up
and deliver sand and/or
gravel at samne loca-
tions end at same time
as Tabernacle drivers
and report to Route 33
locaticn for assign-
ments. Drivers are
Tabernacle
Samuel and Theresa
lalbone
Sanuel 'lalbone,
President
Theresa Nalbone, Vice
Pres dent
Pasquale Nalbone
Sanuel Nalbone, Jr.
Russell Nalbone
San Stewart 1/
Pasquale ':albone
Saruel Nalbcne, Jr.
Russell Nalbone
Route 33,
Hercervi lie, NJ
1Hauls sand and gravel
and sand and gravel
pit which it dredges
in Tabernacle, NJ, 40
miles frcm Rt. 33,
'lercervi l1e.
Paid by Tabernacle
when perforr.ing
services for tr.at
corporation.
Truckh drivers pick up
and deliver sand
and/or gravel at sane
locations and at same
tine as 1:albone
drivers and renort to
Route 33 location for
assignments which are
I Throughout 1976. Stewart was on Tabernacle's payroll only. perform-
ing onsite supervision for that corporation. In approximately March 1977.
Stewart also became employed by Nalbone.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ractor
9. Enployee Categories
10. Equtpmrnt
11. Job bidding
12.
13.
14.
Telephone number
Clerical Staff
looks and records
15. Tax returns
16. Accounting
procedure
17. Social Security
ident ficat aon
18. Bank accounts
Nalbone
ass1 gned by Pasquale
Nalbone or by book-
keeper. Pasquale
Nalbone is on Nalbone'a
payroll when making
assigncncts to Taber-
nacle drivers.
Truck drivers;
laborers;2/ and
equ prent operators.3/
Owns trucks which bear
identification
"Nalbone Trucking."
Tabernacle drivers
drive trucks having
Nalbone rarktngs.
Separate from
Tabernacle. Bids on
union lobs. Does not
compete vwith
Tabernacle.
537-3074
Same as Tabernacle
Kept at Route 33
location.
Submits separate
return.
When Nalbone uses
Tabernacle's pit,
there is a "charge
back."
Separate number.
Maintai ned
separately.
Tabernacle
made by Pasquale
Nalbone or by book-
keeper.
Truck drivers and
equipment operators.
Leases trucl:s from
Nalbone. When used.
the trucks bear
"T.S. & C." identi-
fication.
Separate from
Nalbone. Bids on non-
union Jobs. flces not
compete with Nalbone.
587-3074
Same as Nalbone
Kept at Route 33
location.
Submits separate
return.
When Tabernacle uses
Nalbone's pit, there
is a "charge back."
Separate number.
Maintained
separately.
2 Represented by Local 172, not involved herein.
966
3 Represented by Local 825, not involved herein.
TABERNACLE SAND & GRAVEL CORPORATION
Factor Z;albone Tabernacle
19. Letterheads and Separate Separate
stationery
20. FCC License
21. Interchange of
employees
22. Professional service
Separate, for
2-uay radios.
lone
Sase accountant and
attorney4/ as
Tabernacle.
Separate, for
2
-Jay
radios.
Hone
Sane accountant and
attcrney4/ as
Nalbone.
4 No witness testified as to the similanty of attorney I note this fact from
the appearance of a single law firm representing both corporations before
ne.
967