Wiley Bros. Transit Mix, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 382 (N.L.R.B. 1974)

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wiley Bros . Transit Mix, Inc .; Shamrock Sand and
Rock, Inc.; and Shamrock Trucking , Inc. and
Building Material and Dump Truck Drivers Local
No. 36 of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America and International Union of Operating
Engineers, Local No. 12, AFL-CIO. Cases
21-CA-11293 and 21-CA-11296
June 12, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On February 5, 1974, Administrative Law Judge
Allen Sinsheimer, Jr., issued the attached Decision in
this proceeding. Thereafter, Respondents, General
Counsel, and each of the Charging Parties filed
exceptions and a supporting brief, and the General
Counsel filed an answering 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, findings,
and conclusions of the Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
Wiley Bros . Transit Mix, Inc., and Shamrock
Trucking, Inc., Vista, California, their officers,
agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to recognize Teamsters Local 36 as the
exclusive bargaining representative of their employ-
ees in the following appropriate unit: All drivers of
pickup trucks, 2 axle, 3 axle, semi-3 axle, and 4 or
more axle trucks, mixers, cement tankers, flat beds,
Euclid type trucks, parts clerks, warehousemen,
bunkermen, batch plant operators (manual), gas
station attendants, greasers and tiremen, refinishers,
car and truck washers, general maintenance and yard
cleanup men , power broom operators, body repair-
men, truck mechanics or welders, forklift operators,
concrete pump operators, concrete pump assistants,
dixon wagon or athey wagon drivers, off-highway
hauling unit operators, and truck foremen employed
by the employer-members of San Diego County
Rock Producers Association, and including Respon-
dents Wiley Bros . Transit Mix, Inc., and Shamrock
Trucking, Inc.
(b) Failing to adhere to, comply with, and maintain
in full force and effect the terms and conditions of
the collective-bargaining agreement covering said
unit, currently in effect, between the aforesaid
Teamsters Union Local 36 and the San Diego Rock
Producers Association.
(c) Refusing to recognize Operating Engineers
Local 12 as the exclusive representative of their
employees in the following appropriate unit: All
heavy duty repairman's and/or welder's helpers,
firemen, oilers, and greasers, general helpers and/or
assistant engineers , cruchermen and/or screen men,
skip loaders and tractor operators-yard operations,
conveyor men, drag-scraper operators, mixer opera-
tors-all types and sizes, excluding transit-mix
trucks, tractor operators (pit excavation, tournepull
Euclid, motor patrol and DW operators), rock plant
operators, bulk cement plant operators, heavy duty
repairmen and/or welders, equipment greasers,
heavy duty repairmen-electricians , batch plant oper-
ators (nonmanual), universal equipment operators,
shovel, dragline, clamshell or crane operators, load-
ing out operators-skip loader, and computer batch-
men-weighmasters employed by the employer-mem-
bers of the San Diego County Rock Producers
Association, and including Wiley Bros. Transit Mix,
Inc., and Shamrock Trucking, Inc,
(d) Failing to adhere to, comply with, and maintain
in full force and effect the terms and conditions of
the collective-bargaining agreement covering said
unit, currently in effect, between the aforesaid
Operating Engineers Local 12 and the San Diego
Rock Producers Association.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed them by Section 7 of the
National Labor Relations Act.
2. Take the following affirmative action which is
required to effectuate the policies of the Act:
(a) Bargain collectively through the San Diego
Rock Producers Association with Teamsters Local
36 as the exclusive bargaining representative of their
employees in the above-described unit, and execute
the current agreement between the Association and
Teamsters Local 36 which was effective August 16,
1972.
(b) Adhere to, comply with, and maintain in full
force and effect the terms and conditions set forth in
said Teamsters Local 36 agreement and give and
apply retroactive effect thereto to August 16, 1972,
including making employees whole for wages and
benefits lost as a result of the failure to comply, as
well as making whole the welfare funds or other
211 NLRB No. 45
WILEY BROS. TRANSIT MIX, INC. 383
sources for any unpaid fringe benefits provided in
the Teamsters Local36 agreement.
(c) Bargain co11e6tively through the San Diego
Rock Producers Association with Operating Engi-
neers Local 12 as the exclusive bargaining represent-
ative of our employees in the above-described unit,
and execute the current agreement between the
Association and Operating Engineers Local 12 which
was effective August 17, 1972.
(d) Adhere to, comply with, and maintain in full
force and effect the terms and conditions set forth in
said Operating Engineers Local 12 agreement and
give and apply retroactive effect thereto to August
17, 1972, including making employees whole for
wages and benefits lost as a result of the failure to
comply as well as making whole the welfare funds or
other sources for any unpaid fringe benefits provided
in the Operating Engineers Local 12 agreement.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(f) Post at each of their operating facilities copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional
Director for Region 21, after being duly signed by its
representative, shall be posted by each Respondent
or its representative immediately upon receipt there-
of, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply
herewith.
, In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize Teamsters
Local 36 as the exclusive bargaining representa-
tive of our employees in the following appropriate
unit: All drivers of pickup trucks, 2 axle, 3 axle,
semi-3 axle, and 4 or more axle trucks, mixers,
cement tankers, flat beds, Euclid type trucks,
parts clerks, warehousemen, bunkermen, batch
plant operators (manual), gas station attendants,
greasers and tiremen, refinishers, car and truck
washers, general maintenance and yard cleanup
men, power broom operators, body repairmen,
truck mechanics or welders, forklift operators,
concrete pump operators, concrete pump assist-
ants, dixon wagon or athey wagon drivers, off-
highway hauling unit operators, and truck fore-
men employed by the employer-members of San
Diego County Rock Producers Association, and
including Wiley Bros. Transit Mix, Inc., and
Shamrock Trucking, Inc.
WE WILL NOT fail to adhere to, comply with,
and maintain in full force and effect the terms
and conditions of the collective-bargaining agree-
ment covering said unit, currently in effect,
between the aforesaid Teamsters Union Local 36
and the San Diego Rock Producers Association.
WE WILL NOT refuse to recognize Operating
Engineers Local 12 as the exclusive representative
of our employees in the following appropriate
unit: All heavy duty repairman's and/or welder's
helpers, firemen, oilers, and greasers, general
helpers and/or assistant engineers, crushermen
and/or screen men, skip loaders and tractor
operators-yard operations, conveyor men, drag-
scraper operators, mixer operators-all types and
sizes, excluding transit-mix trucks, tractor opera-
tors (pit excavation, tournepull Euclid, motor
patrol and DW operators), rock plant operators,
bulk cement plant operators, heavy duty repair-
men and/or welders, equipment greasers, heavy
duty repairmen-electricians, batch plant operators
(nonmanual), universal equipment operators,
shovel, dragline, clamshell or crane operators,
loading out operators-skip loader, and computer
batchmen-weighmasters employed by the em-
ployer-members of the San Diego County Rock
Producers Association, and including Wiley Bros.
Transit Mix, Inc., and Shamrock Trucking, Inc.
WE WILL NOT fail to adhere to, comply with,
and maintain in full force and effect the terms
and conditions of the collective-bargaining agree-
ment covering said unit, currently in effect,
between the aforesaid Operating Engineers Local
12 and the San Diego Rock Producers Associa-
tion.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed them by
Section 7 of the Act.
WE WILL bargain collectively through the San
Diego Rock Producers Association with Team-
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sters Local 36 as the exclusive bargaining repre-
sentative of our employees in the above -described
unit , and execute the current agreement between
the Association and Teamsters Local 36 which
was effective August 16, 1972.
WE WILL adhere to, comply with , and maintain
in full force and effect the terms and conditions
set forth in said Teamsters Local 36 agreement
and give and apply retroactive effect thereto to
August 16, 1972, including making employees
whole for wages and benefits lost as a result of the
failure to comply, as well as making whole the
welfare funds or other sources for any unpaid
fringe benefits provided in the Teamsters Local
36 agreement.
WE WILL bargain collectively through the San
Diego Rock Producers Association with Operat-
ing Engineers Local 12 as the exclusive bargain-
ing representative of our employees in the above-
described unit and execute the current agreement
between the Association and Operating Engineers
Local 12 which was effective August 17, 1972.
WE WILL adhere to , comply with , and maintain
in full force and effect the terms and conditions
set forth in said Operating Engineers Local 12
agreement and give and apply retroactive effect
thereto to August 17, 1972, including making
employees whole for wages and benefits lost as a
result of the failure to comply as well as making
whole the welfare funds or other sources for any
unpaid fringe benefits provided in the Operating
Engineers Local 12 agreement.
WILEY BROS . TRANSIT
Mix, INC.
(Employer)
Dated By
(Representative) (Title)
SHAMROCK TRUCKING,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , Eastern Columbia Building, Room
600, 849 South Broadway, Los Angeles , California
90014, Telephone 213-688-5254.
DECISION
STATEMENT OF THE CASE
ALLEN SlNSHEIMER , JR., Administrative Law Judge: The
above proceeding was heard at San Diego, California, on
July 31 , August 1 , 2, 3, 6, 13, and 14, 1973. On November
20, 1972, an order consolidating cases, a consolidated
complaint,' and a notice of hearing issued , alleging that
Respondent Wiley Bros . Transit Mix , Inc., violated Section
8(a)(1) and (5) of the Act . On April 23 , 1973, an amended
consolidated complaint 2 and an amended notice of
hearing issued, alleging that Respondents Wiley Bros.
Transit Mix, Inc., Shamrock Sand and Rock , Inc., and
Shamrock Trucking , Inc., engaged in violations of Sections
8(aXl) and (5) of the Act by refusing to sign agreements
which had been negotiated on Respondent's behalf (by San
Diego Rock Producers Association ) with Truck Drivers
Local 36 and Operating Engineers Local 12 . The issues
involve : First, whether or not Wiley Bros . Transit Mix,
Inc., is bound by contracts negotiated by the San Diego
Rock Producers Association with Truck Drivers Local 36
and Operating Engineers Local 12 . Second, assuming,
arguendo, that it is so bound, whether or not said contracts
also are applicable to Shamrock Sand and Rock , Inc., and
Shamrock Trucking, Inc. The latter involves whether or
not either or both were in effect a single , common, or joint
employer with Wiley Bros. Transit Mix , Inc. A further
issue involves whether or not Wiley Bros . Transit Mix, Inc.,
had any employees in classifications subject to the contract
to which the San Diego Rock Producers Association,
Wiley Bros . Transit Mix, Inc., and Operating Engineers
Local 12 and the Association had admittedly been parties
at the commencement of the negotiations here involved.
Further issues arise from contentions as to jurisdiction,
majority status , and application of Section 10(b).
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs of the
General Counsel , the Charging Parties, and the Respon-
dent, I make the following: 3
i Based on an original charge filed October 6, 1972, in Case
2I-CA-11293 filed by Dump Truck Drivers Local No. 36 of the Teamsters
and an original charge in Case 21-CA-11296 filed October 10, 1972, by
International Union of Operating Engineers , Local No. 12.
2
An amended charge in Case 21-CA-11293 was filed March 9, 1973, by
Dump Truck Driers Local No. 36 of the Teamsters , naming as
Respondents Wiley Bros . Transit Mix, Inc., Shamrock , and Provident
Engineers , and on April 16, 1973, a second amended charge was filed by
Dump Truck Driers Local No. 36 of the Teamsters , naming as
Respondents Wiley Bros. Transit Mix, Inc., Shamrock Sand and Rock, Inc.,
and Shamrock Trucking , Inc. On March 12 , 1973, an amended charge was
filed in Case 21-CA-112% by Operating Engineers Local No. 12, naming as
Respondents Wiley Bros . Transit Mix, Inc ., Provident Engineering
Development Company and Shamrock Sand and Rock , Inc. On April 16,
1973, a second amended charge was filed by Operating Engineers Local No.
12, naming as Respondents Wiley Bros. Transit Mix, Inc ., Shamrock Sand
and Rock , Inc., and Shamrock Trucking, Inc.
3 After the close of the hearing, the Respondents moved that the briefs of
the Charging Parties not be considered by the Administrative Law Judge on
the ground that they had not been served on the Respondents. Both
WILEY BROS. TRANSIT MIX, INC.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYERS (AND
RESPONDENTS)
The jurisdictional facts herein do not rest upon the
separate businesses of Respondents but rather upon the
total business of members of the San Diego Rock
Producers Association and whether or not Respondent
Wiley Bros . Transit Mix, Inc . and other Respondents are
bound by a contract negotiated by the San Diego Rock
Producers Association (herein called the Association).
There is no doubt that said Association is engaged in
commerce within the meaning of the Act. The employer-
members of the San Diego County Rock Producers
Association, including Wiley Bros . Transit Mix, Inc., in the
aggregate, annually sell and deliver products valued in
excess of $50,000 to customers in the State of California,
each of whom annually purchases and receives goods,
materials , or supplies valued in excess of $50,000 directly
from suppliers located outside the State of California. I
find that said Association is engaged in commerce within
the meaning of the Act and that Wiley Bros . Transit Mix,
Inc., herein called Wiley or Wiley Bros ., as a member of
said Association and a party to its contract with various
unions , was also engaged in commerce within the meaning
of the -Act. The issues herein are whether Wiley Bros.
Transit Mix, Inc., is now bound by a subsequent contract
negotiated by the Association with Truck Drivers Local 36
and Operating Engineers Local 12, and whether or not
Shamrock Trucking, Inc., and Shamrock Sand and Rock
are also bound by said contracts if Wiley is.
II. THE LABOR ORGANIZATIONS INVOLVED
Building Material and Dump Truck Drivers Local No.
36 of the International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, herein
called Teamsters Local No. 36 or Teamsters , is a labor
organization within the meaning of the Act. International
Union of Operating Engineers , Local No. 12, AFL-CIO,
herein either called Operating Engineers Local No. 12 or
Operating Engineers , is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
As set forth previously, the issues are essentially (1)
whether or not Wiley Bros . Transit is bound by a contract
negotiated by the Association and (2) whether or not
Shamrock Sand and Rock, Inc., herein called Shamrock
Sand, and Shamrock Trucking, Inc., herein called Sham-
rock Trucking or Trucking, are part of a single operation
Charging Parties have submitted copies of affidavits of service of said beefs
showing service on Respondents and Charging Party Operating Engineers
advised , by letter of November 21, 1973, it was forwarding to Respondents
a second copy of its brief . In view of the foregoing , I see no pertinent issue
respecting my consideration of said briefs . I have accordingly considered
them . In the event any party has not as yet received a copy of every other
385
or a common or joint employer with Wiley Bros . Transit
Mix, Inc.
San Diego Rock Producers Association, herein called the
Association, has existed since at least 1956 and for years
the Association has engaged in collective bargaining and
had collective-bargaining agreements with both Teamsters
Local 36 and Operating Engineers Local 12. The members
of the Association have delegated authority to it to
represent them for purposes of collective bargaining and
the members are required to enter into and abide by the
collective-bargaining agreements negotiated by the Associ-
ation. The latest agreements prior to 1972 between the
Association and Teamsters Local 36 and Operating
Engineers Local 12 were entered into in 1969. The
agreement between Local 36 and the Association was
effective from August 15, 1969, to August 15, 1972, and the
agreement between Operating Engineers Local 12 and the
Association, effective from August 16, 1969, to August 16,
1972. Sometime prior to the 1969 agreements, Wiley Bros.
Transit Mix, Inc., joined the Association and the 1969 to
1972 agreements were signed by each of the members,
including Wiley, with both Local 36 of the Teamsters and
Local 12 of the Operating Engineers.
B. The Negotiations for the 1972 Contracts
There is no question or problem as to Wiley's member-
ship in the Association until at least April 17, 1972. At that
time, William Halloran, president of Respondent Wiley,
wrote to Howard Dennis, then president of the Associa-
tion, that "I must reserve the right to accept or reject the
pending labor contracts." Halloran then stated that he
appreciated this was contrary to the bylaws of the
Association and added he felt that "... this prerogative
could be necessary to this company's preservation. I am so
notifying the Unions involved in this decision."
However, Halloran did not send a copy of this letter to
either Local 36 or Local 12 but did send them each a letter
dated April 17, 1972: One to Teamsters Local 36 read
"Pursuant to Article 15 of our agreement, we hereby give
you official notice that this firm may desire to either amend
or modify or terminate said agreement [emphasis sup-
plied]." The letter to Operating Engineers Local 12 read
"Pursuant to our agreement we hereby give you official
notice that this firm may desire to either amend, modify or
terminate said agreement [emphasis supplied]."
The above letters were Wiley's only communication to
Teamsters Local 36 or Operating Engineers Local 12 and
they received no other notification that Wiley was in any
different position from any other members of the Associa-
tion with respect to the 1972 negotiations.
At a meeting of Association members (not including
Wiley) on May 15, 1972, Halloran's April 17 letter to
Dennis was discussed and it was agreed that Dennis would
talk to Halloran about the letter.4
parties' bnef, I am hereby directing that, upon appropriate request, such
copy be furnished.
4 On May 15, Teamsters Local 36 wrote Fjellestad (chairman of the
negotiating committee) of the Association as follows
In accordance with Article XV of the San Diego County Rock
Producers ' Association Agreement now in effect , we hereby give
(Continued)
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dennis and Halloran met May 22, 1972, in Dennis'
office . According to Dennis , he told Halloran:
A. I explained to Mr . Halloran that under the
bylaws of the Association that he could not accept or
reject the labor contracts as an individual company;
that he would have to abide by the decision of the
overall Association and still retain membership in the
Association , and I asked him if there was any
possibility that he could retain his membership in the
Association and join in the negotiations until at a later
date prior to the termination of negotiations , that if he
decided at that time that he did not like the way
negotiations were proceeding, he could resign at that
time and the unions would be so notified.
Q. O.K. Continue.
A. And after discussion along those lines, Mr.
Halloran advised me that he would talk to his attorney
and would advise me later as to his decision.
At another Association meeting on June 5 5 (at which
Wiley was not present) Wiley's participation was discussed
and Dennis reported on his meeting with Halloran. It was
agreed Dennis would talk to Halloran again and report
back . He was to try to get an answer before the first
negotiation meeting with Teamsters Local 36 scheduled for
June 7.
There is some conflict as to what occurred after June 5.
Dennis testified that Halloran called him on June 7 and:
He advised me that, yes, he would stay in the
Association and follow the negotiations and then
decide at a later date whether or not he would resign or
go through the negotiations to completion.
Dennis also testified he told Halloran "he had the right to
pull out of the Association at any time." Fjellestad
testified:
Q.
again?
Do you know if he did talk to Mr. Halloran
A. After the 5th?
Q. Yes.
A. He might have, yes.
Q. Do you recall discussing it with Mr. Dennis
after the 5th?
A. He told me that Wiley Bros . would remain in
the Association, but they would reserve the right to
official notice sixty (60) days prior to August 15, 1972, of our desire to
change , modify and terminate the aforementioned agreement and all
amendments and addendums thereto.
We are opening this letter for all Association Companies. Please
notify us if there are any changes in your affiliates.
Please contact Mr. A. Henderson of the San Diego Building Trades
Council, as to time and place convenient with your Committee for a
first meeting.
This letter was signed by John Lyons for the Union and shows copies to "all
Rock Association members." On June I, 1972, Operating Engineers Local
12 sent a letter to the Association, attention Ralph Virden, secretary, which
states:
This letter will serve as official notice that the International Union
of Operating Engineers , Local Union No. 12, wishes to reopen the
existing
Rock, Sand and Gravel
either accept or reject the new labor contracts prior to
August 15th.
Although Dennis, as set forth, testified to a June 7
conversation with Halloran, the latter said he did not have
any conversation with Dennis after June 5 but testified he
did speak to Dennis on May 22 as follows:
THE WITNESS: He said, "We were upset about
receiving your letter," and he said, in essence, this
is-"You cannot remain in the organization and not
allow us to bargain."
And I said, "Well, Howard, just off-the-record-"
this is me talking.
I says, "Off-the-record."
I gave him reasons why I felt I could not stay in.
And he says, "Bill, I wish you would reconsider."
And, I said, "I am acting on counsel's advice, Mr.
Pappas advised me not to get involved in this." And, he
said, "Will you talk to him again and see if there is any
other way you can handle this?"
And I said, "I will."
That was pretty well-he said , "I wish you a lot of
luck in your venture and I hope it works out for you."
Halloran testified he had a phone conversation with
Association Representatives Taylor Elliott, vice president,
and Charles McAllen on June 5 or 6, after the Association
meeting of June 5. According to Halloran, the following
occurred:
He says, "We have to submit names tomorrow at a
meeting.
Did you change your mind?"
And I said, "No, I have not."
They said, "Well, it is terribly important to us at this
time that we be allowed to use you on our-part of our
negotiations. We feel that your withdrawal at this point
in time could cause serious complications to our
negotiating."
And he said, "We are referring to you and we are
also referring to Mr. Tom Streuder."
That is Southcoast Asphalt.
I says, "Well, Tom is here in my office. Let me put
him on the other phone."
So I did.
We specifically asked, or Mr. McAllen and Mr.
Agreement for the purpose of changing or modifying wages, hours and
working conditions as provided under the terms of the present contract.
In accordance with the provisions of the termination clause, if a
new agreement has not been concluded as of the expiration date of the
current contract , you are hereby notified that the Local Union No. 12
considers the present agreement terminated as of that date.
Please signify by return mail or telephone call a time and place of
your choosing, so that these negotiations may be entered into and
concluded prior to the expiration of the agreement now in effect.
5 Association minutes of this meeting state:
1. President Dennis said he had talked with Mr . Halloran of Wiley
Bros. about his letter of resignation , and Mr. Halloran while expressing
his desire to remain a member, stated that he felt he must reserve the
right to accept or reject any labor contract negotiated by our
Association . Mr. Dennis said they would discuss further and he would
report to the group prior to June 7, when the first meeting with the
Teamsters would take place.
WILEY BROS. TRANSIT MIX, INC.
Elliott said, "If you people will retract your letter,"
which Mr. Streuder did, which I did not, he said, "We
would like to feel that you were-that you would not
pressure withdrawal any further."
And, he said, as I recall the words, "And we want
you to know that you will not be bound by the
negotiations at any time, unless you wish to do so."
Q. (Continuing) At this point time, as best I can
recall, Mr. Elliott had said that they had talked to their
attorney and that I positively-that Mr. Streuder,
myself, would positively would not be bound by the
negotiations unless we so wished and could drop out of
the entire thing anytime or not sign, that we had that
prerogative.
I said at that time, I said, "The advice I have been
getting is contrary-" this is Taylor Elliott-"has been
contrary to this, and I don't want to hurt your
bargaining position, but I feel this is perhaps bad
information."
And he said, "Bill, I want you to be assured that you in
no way will jeopardize your rights to negotiate individually
with this matter."
And he said, "Tom, that goes for your matter too,"
and that was pretty well-I said, "In light of that, I
won't make any more effort at this point in time, then,
to damage your bargaining position as long as there is a
clear understanding on that."
Halloran testified further:
JUDGE: What did you say to him?
THE WITNESS: I said, "Taylor, if you feel that I
will damage your negotiating position," I said, "I
cannot believe a company as large as you people would
be possibly affected by a small, tiny operation such as
ours."
Well, he said, "There is you and there is Tom
Streuder."
He said, "If you both pull out at this time," he said,
"this is going to seriously jeopardize us," and I will
quote.
He says, "We may be forced to sign any contract as
presented to us."
And I said, "I cannot believe what you are saying, but,
if this is true, " I said, "I won't do anything further at this
point. I won't withdraw my letter or anything, but with the
assurance that I can retain my bargaining rights, I will
attend the meetings on a hearing basis, to keep-" Not the
negotiating hearing now. This is a periodic rock and
gravel meeting."
"I will attend those, just to be abreast of what is going
on [emphasis supplied]."
Halloran further testified:
Was there anything discussed as to how you would
appear in the negotiations, insofar as the union was
concerned between you and Elliott?
THE WITNESS: Just to this degree.
I said, I had talked to my attorney regarding this and
387
he said he is not a labor specialist, but he said, "I feel that
you should make a firm withdrawal at this time," and Mr.
Elliott and Mr. McAllen said "We have talked to our
counsel, who is a labor attorney, and he said this was not
necessary. He says, you can withdraw any time you want
to."
And I said, "Taylor, as I say, I find it hard to
believe-what would happen if everybody assumed this
position on the night before the contract was to be signed,
everybody got up and walked out and stated that they did
not feel they were bound, what kind of bargaining
arrangement would that be?"
He said, "Nevertheless, you have the assurance that this
is still your prerogative."
I said, "On that basis, I won't do anything further
[emphasis supplied]."
Halloran, as set forth, testified McAllen and Elliott said
it was important they have his answer prior to a meeting
the next day, June 7. Halloran said they didn't tell him
why. ". . . I assume they said who they were representing or
who they were not [emphasis supplied]." Halloran also
testified:
Q. Did they tell you how your not withdrawing would
be communicated to the unions?
A. I indicated, as I recall, that "I don't know how you
are going to handle this. As long as I can maintain,
preserve my rights, I don't know how you are going to
handle this with your bargaining, but I will try to stay out
of it."
JUDGE: Stay out of what?
THE WITNESS: Stay out of any further involvement
with the union, as far as a letter or any further
communications with them [emphasis supplied]. Hallo-
ran admitted he did not communicate his position as to
the Association and a contract to either Teamsters
Local 36 or Operating Engineers Local 12. In any case,
it is clear that neither Local 36 nor Local 12 had
knowledge of the situation as between Wiley and the
Association or the discussions between Halloran and
the Association. After April 17, the only information
the Union received were statements made by Associa-
tion representatives during the negotiations.
The negotiations between Local 36 and the Association
extended from May 8, 1972, through August 18, 1972, and
between Local 12 and the Association, from June 22
through August 16 or 17, 1972. Hans Fjellestad was
chairman of the Association's negotiating committee, and
at one of the earlier meetings Local 36 asked him whom
the Association was representing and whether it was
representing Wiley. Fjellestad replied he would furnish
Local 36 with a list of employees represented by the
Association. At a later meeting he furnished Local 36 with a
list of such employers with Wiley listed among the employers
named thereon. At one of the other meetings , Local 12
asked which employers the Association was representing and
whether it was representing Wiley. Fjellestad, according to
uncontradicted testimony which I credit, said the Association
did represent Wiley. Local 12 then requested a list of the
members of the Association be furnished them in writing. At a
388 DECISIONS OF NATIONAL LABOR kELATIONS BOARD
subsequent meeting, an Association representative gave Local
12 a list of employers represented by it and Wiley was named
thereon.
Negotiations between Local 36 and the Association were
completed August 18 when the parties reached agreement
subject to approval by the employees who ratified it the next
day. Local 12 and the Association reached agreement on
August 16 or 17 subject to approval by the employees who
ratified it shortly thereafter. About a week later, both
agreements were ratified by the membership of the Association'
(evidently excluding Wiley Bros Transit), according to
Dennis.
After the drafts of the agreements had been prepared for
signatures, some of the individual members signed the
agreements at a meeting in mid-September at which no
representative of Wiley was present. The agreements were
then taken to those members who were not present,
including Wiley. The signed agreements were returned to the
Unions. Neither of the agreements had been signed by Wiley,
although they had been signed by all other members of the
Association. On September 27, Halloran sent Dennis a
letter which stated:
Regarding the execution of the current labor agree-
ments, I refer you to our letter of April 17, 1972, in which
I reserved the right to `accept or reject' the current labor
contracts.
I find I cannot accept these contracts . I regretfully
submit my resignation from your San Diego Rock
Producers Association.6 [Emphasis supplied.]
On October 3, the Association informed Local 36 and
Local 12 by letter of Wiley's resignation from the
Association and sent each of the Unions a copy of
Halloran's letter of September 27. Prior to receiving
Halloran's letter of September 27, neither Local 36 nor Local
12 had been informed of any limitation on the Association's
authority to represent Wiley.
Representatives of Wiley attended several Association
meetings which were held about July and August for the
purpose of discussing negotiations. Wiley officials not only
were present but participated actively, according to
Fjellestad, discussing proposals and even suggested a
change in the grievance procedure which became a part of
one of the final agreements. At a meeting held on or about
August 16, when negotiations with the Unions had reached
a critical point, a list of names and the business and phone
numbers was prepared so the negotiating committee could
reach them on short notice.? Members present wrote their
own names and phone numbers on the list. Halloran's
name appeared on the list and it is not disputed that
Halloran was present at the meeting and wrote in his own
name and phone numbers. Also, as a member of the
Association, Wiley was required to pay dues and continue
to pay throughout the period when negotiations were going
on, with his last payment made in September which,
according to Halloran, was intended to cover dues for the
month of August. On July 7, Halloran called Swanson, a
member of the negotiation committee, requesting Swanson
to meet and inform him concerning the negotiations.
Swanson and Halloran met for lunch, with Swanson
explaining in general terms how he thought the negotia-
tions would go.
From the foregoing, it is clear, first, that the letter of
April 17 from Respondent Wiley to the Unions was not an
unequivocal notice of the Respondent's intention to with-
draw from Association bargaining. Since there was no
other communication from the Respondent Wiley to the
Unions either directly or through the Association as to
Wiley's qualified participation, it is evident that, under the
cases, Wiley was bound by the negotiations conducted by
the Associations
In addition, it is evident that Wiley was continuing in the
Association during the negotiations even though the issue
had been raised but not resolved as to its legal position or
obligations in the event it subsequently sought to withdraw
from negotiations. Further, to a certain extent, as set forth,
Wiley did participate in connection with negotiations by
checking on what was occurring, by actively taking part in
Association meetings preliminary to negotiations and
indicating its views therein, while claiming to reserve the
right not to accept a final agreement. In so doing, Wiley, in
addition to not withdrawing from the Association, cloaked
the Association with apparent authority and further, by its
conduct, Wiley is also estopped from denying the Associa-
tion's authority. In fact, it was after Wiley through
6 Halloran testified as follows as to this letter it some serious consideration, and I no longer felt I could be a party to
Q (By Mr Manning) Mr Halloran, I hand you General Counsel's the negotiations
Exhibit 7 and ask you if you are familiar with it' Q (By Mr Manning) I ask you again, if you consider the language
A Yes, I am between the two letters to be essentially the same'
t T • • M
Q Would you tell me why you sent that letter'
A Yes
I was told my resignation had not been formally accepted, although
it was brought to the attention of the San Diego Rock Producers
I was dust repeating my request to resign which was-this was, just
to reiterate, this was my intent
Q. You refer to the original letter of April 17, 1972 meaning in that
letter you resigned
A I felt I did, yes
Is the language in the letter of April 17, 1972 essentially the same as
the language in your September 27, 1972 letter'
A. As I recall, it set forth something to the extent after I had given
A I think the basic difference might be in reply, in this letter of
April 17 of 1972, 1 specifically referred to an article here that required,
under our by-laws, if I were going to remain a member or be a member
of the San Diego Rock Producers Association, it was necessary for me
to allow them to bargain in my behalf, and I am saying, I am reserving
the right to do my own bargaining. I am appreciating this is contrary to
Article 2, Section 3, Article 5 and that that does not say this here, but
was tantamount to resignation, is what they asked Apparently they
considered my resignation at the next meeting
7 According to Fjellestad, agreement was reached with the Operating
Engineers on August 17 and with the Teamsters, August 18 or 19.
8 See Retail Associates, Inc, 120 NLRB 308, Sheridan Creations, 148
NLRB 1503, enforced 357 F.2d 245 (C.A 2, 1966), Ray Hopman Plumbing
and Heating, 174 NLRB 403, Senco, Inc, 177 NLRB 882, and Imperial
Laundry, 195 NLRB 708
WILEY BROS . TRANSIT MIX, INC. 389
Halloran indicated, supra, about June 6 that it was not then
withdrawing from the negotiations that thereafter the
Association, following requests by the Unions, named
Wiley as one of the members for whom the Association
was bargaining . It was only after the agreements had been
reached and concluded that Wiley finally indicated to the
Association that it would not accept the contracts and the
Association then informed the Unions. From the forego-
ing, it is evident that not only was there no unequivocal
withdrawal from the Association but in fact Wiley
continued to remain a member of the Association, did not
withdraw from negotiations until after they were complet-
ed, clothed the Association with apparent authority to
proceed for it, and caused a situation wherein it was
estopped from denying such authority. Accordingly, I find
it is bound by the Association contract with said Unions .9
C. Appropriate Units and Majority
Two other questions raised herein are the appropriate
units which are denied as to both Teamsters Local 36 and
Operating Engineers Local 12 and, second, the majority in
said units . First, it is clear that by entering into the
agreements, the Association and Local 36, as well as Local
12, agreed that the units were proper ones for bargaining.
Wiley, by accepting the units in the 1969 to 1972 contracts
which covered essentially the same units , also admitted the
appropriateness of the units. The majority status in 1969 of
both Teamsters Local 36 and Operating Engineers Local
12 is established by the existence of the contracts between
Local 36 and Local 12 and such majority status continues
absent evidence to the contrary. No effort was made to
dispute this at the hearing. I accordingly find that the units
to which Teamsters Local 36 and Operating Engineers
Local 12 are parties in both the past and current
Association contracts, as set forth below,10 are appropriate.
I also find , based on a continuing presumption of majority
status , that Teamsters Local 36 and Operating Engineers
Local 12 continued to be and are exclusive bargaining
representatives of the employees covered by said units.
C. Coverage of Employees Under Operating
Engineers Local 12's Agreement
Wiley contends it had no employees subject to Local 12's
contract during the period 1969 to 1972.
There is no question that Wiley did have employees in
the unit covered by Teamsters 36 at all times material. The
issue is whether Wiley at either its old Vista plant or a
9 See cases cited , supra, In. 8 and see Jeffries Banknote Company, 281
F.2d 893 (C.A. 9, 1960).
10 These units represented respectively by Local 36 and Local 12 are:
(a) All drivers of pick-up trucks, 2 axle, 3 axle , semi-3 axle , and 4 or
more axle trucks, mixers, cement tankers, flat beds, Euclid type trucks,
parts clerks, warehousemen , bunkermen , batch plant operators (manu-
al), gas station attendants, greasers and tiremen , refinishers , car and
truck washers, general maintenance and yard clean-up men, power
broom operators , body repairmen , truck mechanics or welders, fork lift
operators , concrete pump operators, concrete pump assistants, dixon
wagon or athey wagon drivers , off-highway hauling unit operators, and
truck foremen employed by the employer-members of SDCRPA, and
including Respondents Wiley Bros. Transit Mix, Inc. and Shamrock
Trucking, Inc. (whom I am finding, post, constitute a single enterprise
for purposes of collective bargaining).
(b) All ,heavy duty repairman's and /or welder's helpers, firemen,
plant which it operated at Fallbrook had a batch plant
operator who came within the unit represented by Local
12. Wiley had a batch plant operator at Vista but the
question is whether such batch plant operator was
operating a manual or nonmanual batch plant. Manual
operators were to be in the unit covered by Local 36, while
nonmanual operators were to be in the unit represented by
Local 12. The question with respect to the old Vista plant
which existed prior to May 15, 1973, was whether the batch
plant operation was manual or nonmanual .11 There is no
question that the operation at the new Vista plant since
May 1973 is a nonmanual operation. In general, the term
"batch plant operator (manual)," according to Ernest
Heinrich, business manager for Operating Engineers Local
12, refers to a batch plant in which the operator controls
the flow of materials by manually pulling levers. According
to Heinrich, the term "batch plant operator (nonmanual)"
describes a plant where the operator controls the flow of
materials through hydraulic and/or electric action and
power is automatically provided by pushing buttons rather
than actual physical labor. However, the difficulty is that
plants vary from all manual to fully automated, with many
in between, and the old Vista plant was neither all manual
nor fully automated.
Before 1968, there was a dispute concerning the proper
application of the terms to the batch plant operators
employed by some members of the Association, according
to Alex Swanson, vice president and general manager of
two companies which are members of the Association. At
that time in 1968, following a meeting among employers,
Teamsters Local 36 and Operating Engineers Local 12,
according to Swanson, it was agreed that these batch plant
operators whose status had previously been in dispute
would be in the unit represented by Local 12. Local 36
agreed to the resolution of the dispute and, as a result of
the agreement, five batch plant operators employed by
three of the employer-members were transferred from
Local 36 to Local 12. This agreement did not directly
involve Wiley. These members of the Association had a
variety of different types of batch operations with varying
degrees of automation and one or more wherein the
operator pulls levers for a portion of the load.
There is no question that certain parts of the operation at
the old Vista plant were conducted by pushing buttons.
Halloran estimated that 10 to 15 percent of the operation
involved facilities that used buttons. Halloran testified
specifically:
oilers, and greasers , general helpers and/or assistant engineers,
crushermen and/or screen men, skip loaders and tractor operators
-yard operations , conveyor men, drag-scraper operators, mixer
operators-all types and sizes , excluding transit-mix trucks, tractor
operators (pit excavation, tournepull Euclid , motor patrol and DW
operators), rock plant operators , bulk cement plant operators, heavy
duty repairmen and/or welders , equipment greasers , heavy duty
repairmen-electricians, batch plant operators (non-manual), universal
equipment operators , shovel, dragline, clamshell or crane operators,
loading out operators-skip loader, and computer batchmen-weigh-
masters employed by the employer-members of SDCRAP, and
including Respondents Wiley Bros. Transit Mix, Inc. and Shamrock
Trucking, Inc. (whom I am finding, post, constitute a single enterprise
for purposes of collective bargaining).
11 The Fallbrook operation appears to have been manual but that does
not appear to be in issue.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNESS: There was a button pushed to
open the gate on the overhead material hopper. One
button, say, perhaps for rock and another button for
sand, and then when the proper weight would fall into
the end of the weigh hopper, why, another button
would be pushed to shut it off and then commence
-push a button, drawing some more weight, so no
rock and sand would be drawn, say, with a start and a
stop button.
The water was done with a different system and the
cement was drawn with a different system.
After manually setting the required water on a large scale,
a "toggle" switch would be "hit" to start the flow and
subsequently switched to turn it off at the proper point.
According to Halloran, to stop the rock and sand flow it
had to be manually stopped. As for the cement, Halloran
testified:
THE WITNESS: They would push a button to start
it. They would set a weight-they would set the weight
and push the button. A hand would come up to the
proper indicated weight and when it reached that point,
the operator would then push the stop button.
According to Alex Swanson, vice president of Fenton
Product Co., and Hugh McDonald, business agent of
Teamsters Local 36, this plant was similar to one of the
Fenton Company plants whose batch plant operators were
included in the unit represented by Local 12. As stated,
Halloran contended that the old Vista plant was essentially
a manual plant . The new Vista plant is fully operated and
there is no dispute that it is a nonmanual plant.
Although Respondents contend that Wiley had no
employees covered by the contracts between Local 12 and
the Association, Wiley did sign a 1969 to 1972 contract
with Local 12 as well as with Local 36. According to
Halloran , he signed because he thought Wiley was required
to sign all contracts negotiated by the Association, even if
it had no employees covered by such contracts.12 Halloran
also signed a contract with one of the Laborers locals,
although Wiley had no laborers at the time. It is evident
that, while the old Vista plant had less automation than the
current one, it did have certain operations which were
automated and some , as set forth, which could be said to
relate to a manual operation. However, it appears that
Association members and the Unions, by a prior agree-
ment , supra, in 1968, had agreed that employees at other
operations similar to Wiley's plant at the old Vista location
were to be represented by Local 12. Even if this were not
the case , Wiley, as a member of the Association, had
entered into a contract from 1969 to 1972 under which he
had agreed that if Wiley had any employees who were
covered by Local 12's contract, that they would come
within that contract. In any case , since , as found above,
Wiley is bound by the current Association contract and
now has an automated batch plant at Vista requiring
nonmanual operators, I find that Wiley now has an
employee or employees subject to the agreement between
Local 12 and the Association and that Wiley is accordingly
bound to enter into the Association agreement with said
Local 12.
D. The Business Control and Relationship of
Respondents Wiley Transit and Shamrock Trucking
Respondent Wiley Transit is solely owned by Provident
Engineering and Development Company, herein called
Provident. Provident is owned in equal shares by William
Halloran, Donald Shepardson, William Kemper, and
Donald Winn. Halloran is president of Wiley and appears
to be the only one of the owners of Provident actively
engaged in controlling Wiley's business.
Before the formation of Respondent Shamrock Truck-
ing, Wiley was in the business of ready-mix concrete
production and delivery. It brought rock, sand, and cement
into its plant where it was stored, then weighed and mixed
to form concrete and delivered tojobsites. Wiley employed
both material drivers who brought the original raw
materials to the plant and mixer drivers who transported
the finished concrete to Wiley's customers at jobsites.
There was also a batch plant operation, previously referred
to, and a shop which maintained both the material trucks
and the mixer trucks. Prior to the formation of Shamrock
Trucking, Halloran was president of Wiley and Harlen
Brown was general manager who as such had responsibility
for supervising Wiley's operations. John Patten, as dis-
patcher, was in charge of both material and mixer drivers.
Dean Zornes was lead mechanic or shop superintendent
and Dorothy Leckband was the office manager.
On May 1, 1972, Wiley entered into a consultant
agreement with Brown under which Brown was retained as
a business consultant to Wiley (at $1,000 a month,
subsequently increased to $1,100 a month about August)
and, according to Halloran, at the same time Brown
submitted his resignation as general manager of Wiley. On
June 1, an agreement was entered into between the four
owners of Provident and Brown restricting Brown's right to
dispose of the stock (to be issued) of Shamrock Trucking.
At the time Shamrock Trucking Corporation apparently
was in contemplation but not in legal existence. During the
period May 1 to October 1, Brown, although listed as a
consultant, continued to perform in fact as general
manager of Wiley in supervising its affairs.
September 18, 1972, Shamrock Trucking was incorporat-
ed and commenced operations on October 1. Shamrock
Trucking issued 10 shares of stock, all of which are held by
Brown. Brown's powers of ownership are restricted by the
agreement referred to above which provides that if he
intends to sell or otherwise dispose of his shares in
Shamrock Trucking, he must first notify Halloran and the
other owners of Provident. For 60 days thereafter they
have the right to acquire the shares on the same terms as
his proposed transaction. Also, if Brown should die, his
personal representative must sell, and Halloran and the
others buy, his shares at the par value of the shares.
Halloran stated the purpose of the agreement was to assure
that Shamrock Trucking did not pass to an outsider.
12 There is some evidence in the record that Wiley in 1969 had an continued to be a member until about 1972 although he became a
employee, Patten, working as a batch man at the old Vista plant and that dispatcher in 1969.
Patten , at the time , was a member of the Operating Engineers and
WILEY BROS . TRANSIT MIX, INC.
Brown is the president and treasurer of Shamrock
Trucking, Dorothy Leckband, Wiley' s office manager, is
vice president , and the directors are Brown , Leckband, and
Frank Robertson, who is field superintendent and truck
foreman of Shamrock Trucking.
Upon Shamrock Trucking's commencing operations, it
took over a substantial part of the operations which Wiley
had previously performed. Wiley ceased its material
hauling operations and Shamrock took over the operations
Wiley gave up. Wiley continued to perform a portion of its
operations not taken over by Shamrock consisting primari-
ly of the production of ready-mix concrete and delivery of
the concrete to customers.
Prior to formation of Shamrock Trucking, Wiley also
maintained shop facilities for repair and maintenance for
all of Wiley's mobile equipment, including both mixer
trucks and material trucks. At the time Shamrock began
operations , the shop facilities passed to it. Shamrock
Trucking either purchased or leased Wiley's shop facilities,
including its inventory of shop parts, its tools, and its
heavy repair equipment.
Employees of Wiley who performed the work taken over
by Shamrock Trucking terminated employment with Wiley
and were then hired by Shamrock Trucking. Wiley had
approximately 10 employees performing this work, includ-
ing 5 or 6 material drivers and about 4 shop employees.
Virtually all of these left Wiley and became employees of
Shamrock as soon as it began operations and apparently
all of them had become employees of Shamrock within a
short time thereafter. The employees performed substan-
tially the same kind of work at Shamrock as they had for
Wiley. Practically all ceased employment with Wiley on
September 30 and practically all were employed by
Shamrock Trucking on or before October 15, with most of
them employed by Shamrock Trucking on October 1. Each
was employed in the same job classification at Shamrock
as he had been at Wiley, except that persons classified as
"material drivers" with Wiley were called "truck drivers"
when they became employees of Shamrock Trucking.
As set forth, the equipment Wiley used to perform the
work was transferred to Shamrock Trucking on October 1,
1972. All of the equipment which Shamrock Trucking had
when it began operations was leased from either Wiley or
Provident. All of it was equipment which had been used by
Wiley immediately before October 1. Shamrock Trucking
entered into lease agreements with Wiley and Provident
covering numerous specific trucks and other pieces of
mobile equipment on October 1. Some of these vehicles
had been leased by Wiley from Provident prior to October
1. When Shamrock was formed, the existing lease agree-
ments terminated and Provident entered into new lease
agreements with Shamrock Trucking. All of the equipment
Wiley had been using for material hauling was transferred
to Shamrock Trucking.
After Shamrock Trucking began operations, Brown
continued to participate in the management of Wiley. On
October 1, Wiley, through Halloran, and Shamrock
Trucking, through Brown, entered into a consultant
agreement under which it was agreed that Brown and Fred
Robertson would render consultant services to Wiley
relating to matters such as premix plant operations, sales,
391
prices, credit terms, and hiring and that Wiley would pay
Shamrock $1,100 per month for such services. Halloran
said that Brown resigned from Wiley on October 1 but
admitted Brown continued to be a consultant and that
Wiley paid Brown $1,100 per month for several months
after October 1. Brown apparently has continued to be a
consultant to Wiley to the date of the hearing although the
$1,100 per month payments purportedly ceased after a few
months. This amount of $1,100 was the amount Brown was
receiving from Wiley during the period immediately before
Shamrock Trucking commenced operations, which would
indicate that Wiley in effect paid Brown's salary for some
months after Shamrock began operations.
Brown in a deposition in December 1972 testified he was
the manager of Wiley and said he entered into all phases of
the company operation. Brown sought to explain this
testimony by saying he was referring to the time of the
incident involved in the suit rather than the time of the
deposition. It also appears that after October 1, 1972,
certain employees of Wiley in the batch plant and the
mixer operation continued to consult with Brown, that
Brown maintained two offices, one in Wiley's operation
and the other in that part which Shamrock Trucking
leased, and that in essence he was involved to some extent
in the operations of both Wiley and Shamrock.
Dean Zornes, who was lead mechanic and shop
superintendent, testified that after Shamrock began opera-
tions, he worked on both Wiley trucks and Shamrock
Trucking trucks in the same shop and that if he felt it
necessary to send out a truck for a major overhaul,
regardless of which truck it was, he would consult Brown,
who would tell him whether to incur the expense on the
Wiley trucks as well as Shamrock trucks.
In addition to Brown, the remaining Shamrock supervi-
sors either came from Wiley or in part remained on Wiley's
payroll while supervising Shamrock Trucking employees.
Robertson, who is field superintendent and truck foreman
of Shamrock Trucking, worked for Wiley before October 1
as Halloran's assistant , particularly on setting up the new
Vista plant. Under the consultant agreement set forth,
Robertson as well as Brown remained available to Wiley as
consultants. The move to the new Vista plant did not take
place until May 1973. Zornes, who was shop superintend-
ent for Wiley, was subsequently employed by Shamrock
for whom he performed the same work as shop superin-
tendent. John Patten became dispatcher for Wiley in 1969
and was still performing this job up to the time Shamrock
began operations. Patten was in charge of both material
drivers and mixer drivers. He assigned trucks to all the
drivers and gave them their instructions. After Shamrock
began operating, Patten remained on Wiley's payroll and
still is on Wiley's payroll, according to Halloran. However,
Patten continued to supervise both the mixer and material
drivers, the latter of whom were after October listed as
employees of Shamrock Trucking. Halloran testified he is
not authorized to sign checks or handle labor problems for
Shamrock. However, Zornes testified that Halloran some-
times made a decision whether to incur a major expendi-
ture on a truck, including trucks of Wiley and Shamrock
Trucking.
In addition, Halloran arranged with Aetna Insurance
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company for Shamrock Trucking employees to be covered
under Wiley's medical insurance policy although, accord-
ing to Halloran, Shamrock paid its pro rata share of this
insurance. Further, at all times since Shamrock com-
menced operations, Shamrock Trucking has been at the
same location as Wiley's main Vista plant. When it first
started, a trailer on Wiley's property became Shamrock's
office adjacent to Wiley's office building. The drivers who
went to work for Shamrock Trucking continued to work at
the same facility. Wiley trucks were stationed at one end of
the yard with Shamrock trucks at the other end. Shop
employees who went to Shamrock Trucking continued to
work in the same shop located at the same premises of
Wiley's old Vista plant. Halloran testified that Shamrock
leased its facilities at the old Vista plant from Wiley for
$125 a month.
On May 15, 1973, the entire operations of Wiley and
Shamrock were moved to the new Vista plant at another
location. Wiley and Shamrock Trucking are now located at
the same address at 2683 Oleander. The entire property,
consisting of about 200 acres, is leased by Wiley from
Thibodo Estates. Shamrock Trucking subleases 2 or 3 acres
from Wiley. The shop building and Shamrock Trucking's
offices on the property are subleased by Shamrock
Trucking, for which it is obligated to pay $250 a month. As
set forth, Brown has two offices, one on Wiley property,
the other on Shamrock's leased property. Wiley has power
to terminate the lease at any time if Shamrock fails to
adequately perform services as required by Wiley. Shamrock
Trucking performs primarily two types of work, material
hauling and repair maintenance. Virtually all of its
material hauling is done for Wiley. According to Halloran,
this is about 90 percent of Shamrock Trucking's business.
There is no commitment by Wiley to use Shamrock Trucking,
so this business relationship could be terminable at any time.
It also means, when coupled with leases, etc., that Wiley has
considerable control over Shamrock Trucking. Brown testi-
fied that the outside hauling was somewhat more than the
10 percent indicated by Halloran. The outside hauling
which Shamrock does is also work which Wiley formerly
performed for some outside customers who continued to
call Wiley for materials, which Wiley would obtain and
Shamrock Trucking would then deliver.
Shamrock Trucking's shop, as stated, performed most of
its work on repair and maintenance of vehicles operated by
Wiley and vehicles operated by Shamrock. It also performs
work for other customers. According to Halloran, this
latter amounted to about 35 percent of the shop's business
and was more than when Wiley operated the shop because
it did very little outside work. Halloran said that of the 35
percent, about 15 was for Shamrock Sand and the
remaining 20 percent for outsiders. Brown testified about
60 percent of the shop's work was for Wiley, about 25
percent for Shamrock Trucking, about 10 percent for
Shamrock Sand and that the work for outside customers is
so very minor that he didn't count it. Brown said he prefers
not to do work for outside customers and did so only in
unusual circumstances.
Wiley performs administrative, accounting and clerical
services for Shamrock Trucking under an agreement
entered into October 1, 1972, by which Shamrock Trucking
is obligated to pay Wiley $600 per month for services
rendered. Of four office workers Wiley has on its payroll,
two, including Dorothy Leckband, participated in work for
Shamrock Trucking immediately after it began operations.
In addition, Provident has also performed similar work for
Shamrock through its secretary-treasurer, Gerald Nelson.
Shamrock does not compensate Provident for his work.
Shamrock now has an office clerical who began work
about 60 days before the hearing.
The office work includes all phases of office clerical
work, accounting and billing, communications, payroll,
finances and cash for credit and so forth and even involves
answering the phone for Shamrock Trucking which did not
have a separate phone at the old Vista plant. Shamrock
Trucking checks are signed by Mrs. Leckband and Brown,
and Mrs. Leckband also signs Wiley's checks. She is
Wiley's office manager and vice president, secretary of
Shamrock Trucking and a member of its board of
directors, and may participate in its profits. She kept the
books on the material hauling phase of Wiley's business
prior to Shamrock Trucking's formation and continued to
do so after the material hauling was taken over by
Shamrock. She also makes financial decisions in the
interests of Shamrock as to its privilege of drawing money
against its billing to Wiley and handles the actual transfer
of funds from Wiley to Shamrock Trucking. Brown didn't
know how the money was actually transferred from Wiley
to Shamrock Trucking. Mrs. Leckband determines whether
money owed to Wiley by Shamrock is paid by check or by
set off of amounts due from Wiley. She gives Brown checks
to sign and he normally signs them. Brown usually doesn't
know which basis Mrs. Leckband is using for the
financing.
Shamrock Trucking, and also another company, South-
em California Testing Laboratory, is included under the
same workman's compensation policy as Wiley. As stated,
Shamrock Trucking is under the same medical program
and life insurance as Wiley and so also evidently is
Shamrock Sand. Shamrock Trucking pays its quarterly
portion of the cost of the life insurance, medical insurance,
and the workman's compensation insurance but it isn't
clear whether this is paid to Wiley or directly to the
insurance company.
Shamrock Trucking does not have separate liability
insurance for the trucks and leased equipment which is
evidently covered by Wiley's and Provident's insurance
policies. Also, Wiley's insurance coverage as to fire, theft,
etc., applies to the premises, equipment, etc., Shamrock
Trucking has or uses on its premises as Shamrock Trucking
does not separately carry such insurance. Shamrock
Trucking is supposed to be billed in due course for the
foregoing types of insurance but does not appear to have
been so billed.
Also, Shamrock Trucking credited its employees with
seniority for the time they had been with Wiley on such
matters as vacations and truck assignments. Most of the
material drivers were reduced from $5.97 an hour to $5.49
upon transferring from Wiley to Shamrock Trucking, while
wages of some of the other employees remained the same.
In the case of Shamrock Trucking employees, they were
WILEY BROS . TRANSIT MIX, INC. 393
listed as employees of Wiley on the insurance cards issued
them by the Aetna Insurance Company.
Halloran testified, assto the reason for the formation and
development of Shamrock Trucking as follows:
JUDGE: Do you know the reason for the formation
and development of Shamrock Trucking?
THE WITNESS: I do.
JUDGE: What was it?
THE WITNESS: There was another material source
available. It became very important to us and to other
members of the industry to coordinate the material
delivery and the rock and sand pick-ups. The trucking
end of the company had been a losing venture for us.
At that time we approached Harlen Brown, who was
then manager of Wiley Brothers to see if he would be
interested in taking over the trucking.
We felt an owner-operator could give it the close
attention and the supervision that it would require to
make money.
Shamrock Trucking began its organization with $1,000
which was obviously an under capitalization for a
company with a weekly payroll of $2,500 or $3,000 and
which owed a large amount of money to Wiley and
Provident for monthly lease payments and also other
expenses for materials , etc. Some expenses were deferred
through credit but there were obligations which Shamrock
Trucking could not currently cover and which could not be
deferred. The $1,000 derived from the issuance of the stock
was paid to Wiley about the time Shamrock commenced
operations. According to Halloran, this was for the
privilege of obtaining Wiley's business in a gesture of good
faith. Brown testified it was to purchase the right to the
material hauling business whatever that right might be in
view of the right of Wiley to terminate its business with
Shamrock Trucking at any time.
Brown said part of the necessary funds were given to
Shamrock Trucking by himself and that he contributed
$3,000 of his own money. Halloran assured Brown he
would help out if there was a shortage. About mid-
October, Brown went to Halloran and obtained $1,000
from Halloran personally which was placed in Shamrock
Trucking's account.
Shamrock Trucking also operates under Wiley's PUC
license . Wiley pays Shamrock Trucking at PUC rates for
the hauling which Shamrock Trucking does for Wiley.
However, the first payments from Wiley were not received
by Shamrock until November 1972. During this time,
Shamrock Trucking obtained funds through an arrange-
ment whereby it was permitted to draw against billings to
Wiley for services which had been performed. This was a
special arrangement since Wiley normally paid monthly. It
apparently resulted from an agreement between Halloran
and Brown but was administered by Mrs. Leckband, who
decided when and how much of the draw should be made.
Wiley has also subsidized the operations of Shamrock
Trucking in other ways until Shamrock Trucking could
establish credit. It made purchases from suppliers with
whom Wiley was doing business and charged such
purchases to Wiley's account for approximately the first 60
days after Shamrock Trucking commenced operations.
Second, Shamrock Trucking took over Wiley's inventory
of shop parts, tools, and heavy equipment. Some of the
heavy repair equipment was leased to Shamrock Trucking,
while other items, including the inventory of shop parts,
were purchased for approximately $15,000. Shamrock
Trucking did not pay the purchase price immediately but
did so under an arrangement whereby Wiley was not
charged for parts used on Wiley equipment which was
repaired in the shop. Wiley received credit for parts used
on its equipment until it had used up enough parts to offset
the value of the inventory. After Shamrock Trucking began
operations, it had to obtain additional parts. With regard
to a substantial part of the new parts, Wiley was billed
rather than Shamrock because Shamrock at the time was
unable to pay for them. This practice continued for about
60 to 90 days after Shamrock Trucking began operations
and then Shamrock Trucking purchased directly. Although
Halloran testified that the entire debt to Wiley was
liquidated in 60 to 90 days, Brown testified he did not
know whether the original debt had been liquidated at the
time of hearing. It would be difficult to understand how
such was accomplished in that time since, according to
Halloran, only 60 to 70 percent of the original inventory
was used up during the first 60-to 90-day period. At the
time the inventory was transferred from Wiley to Sham-
rock Trucking, Brown determined the value and evidently
acted on behalf of both companies in so doing.
Shamrock Trucking's shop, apart from dealing with
Wiley for parts, also bills it for labor at a profit. The labor
rate charge of $12 an hour is lower than the prevailing
labor rate which is $14. Shamrock Trucking not only bills
Wiley but it also bills itself for cost purposes for both parts
and labor. In addition to the foregoing, although Shamrock
Trucking is required to pay Wiley under lease agreements
at certain times , the payments have on many occasions
been late with Halloran's approval.
From the foregoing, it is evident that Wiley Transit and
Shamrock Trucking have operated as a single employing
enterprise (or joint employer) since the inception of
Shamrock Trucking. Shamrock Trucking took over a
substantial part of Wiley's business with the same
employees at substantially the same location with the same
general manager , Haden Brown, who has continued to in
part also perform work for Wiley. Halloran still makes
certain decisions respecting equipment of both companies.
Some supervision overlaps as set forth, supra. In addition,
Shamrock Trucking uses the same trucking equipment
under lease from either Wiley or Provident. It also uses the
same shop equipment under lease that Wiley did. Sham-
rock Trucking also obtained its inventory from Wiley
under an arrangement to pay it off. Its principal customer
is Wiley. Shamrock has essentially been and still is being
financed by Wiley. The bulk of its business is with Wiley
both in hauling materials and in its shop repair depart-
ment. Shamrock Trucking uses Wiley's PUC permit. Wiley
keeps books and records and does billing and handles
financial matters for Shamrock.
Wiley and Shamrock Trucking are treated as a single
employer for insurance purposes. Wiley and Provident
carry the insurance on the vehicles leased by Shamrock. A
single fleet policy covers Wiley's mobile equipment and
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shamrock Trucking's mobile equipment. Shamrock, ac-
cording to Brown, does not even have any liability
insurance so that liability is also covered by Wiley's and
Provident' s policies . Wiley and Provident pay the premi-
ums and Shamrock Trucking, according to Brown, has not
reimbursed them as yet. Shamrock Trucking carries no fire,
theft, or any other type of insurance on its premises. This is
covered by Wiley's insurance . Health-medical insurance is
carried under an overall policy written in the name of
Wiley. The same is true as to workman's compensation and
life insurance.
Finally, there is no agreement covering any of the terms
under which Shamrock Trucking's material hauling for Wiley
is done and there is no limitation on Wiley 's right to terminate
its business with Shamrock Trucking at any time. Wiley also
can terminate Shamrock Trucking's lease of its premises and
physical facilities if Shamrock Trucking fails to perform the
delivery services properly. While Brown owns the stock of
Shamrock Trucking, it is subject to an agreement to sell to the
owners of Provident, as set forth supra.
The above factors and others indicate that Wiley and
Shamrock Trucking are legally functioning as a single
employing enterprise (or joint employer) and/or that Wiley
for all practical purposes controls Shamrock Trucking. I
accordingly so find and the Association contracts with the
Unions, which are applicable to Wiley and which it should
have executed following the Association agreement there-
to, are equally applicable to Shamrock Trucking, which
also should be required to enter into the same contracts.13
E. Respondent's Contention Concerning)
Section 10(b)
Respondent Shamrock Trucking, Inc., contends that
"operations started outside the statute of limitations as set
forth in the Act and prior to six (6) months from the first
filing of any charge against said firm . . . and also includes
the date of Wiley Brothers' refusal to sign the association
agreement."
As set forth, a first charge in Case 21-CA-11293 naming
Wiley Bros . Transit Mix, Inc., was filed by Teamsters
Local 36 on October 6, alleging a failure to bargain from
August 15, 1972; and a first charge in Case 21-CA-11296
naming Wiley Bros. Transit Mix, Inc., was filed by
Operating Engineers Local 12 on October 10, 1972,
alleging a failure to bargain from August 17, 1972.
Subsequently, an amended charge was filed or, May 9,
1973, in Case 21-CA-11293 by Teamsters Local 36,
alleging a failure to bargain from the same August 15,
1972, date but naming Wiley Bros. Transit Mix, Inc.,
"Shamrock," and Provident as Respondents. Service for all
three was accepted by William J. Halloran, the president of
Wiley.
On March 12, 1973, Operating Engineers Local 12 filed
an amended charge in Case 21-CA-11296, alleging a
failure to bargain from the same August 17, 1972, date, but
naming as Respondents Wiley Bros . Transit Mix, Inc.,
Provident Engineering , and Shamrock Sand and Rock,
Inc. Service on Wiley and Shamrock Sand was apparently
' See cases cited at fn. 18, post.
14 See Senco, Inc., 177 NLRB 882, 894.
signed for by Dorothy Leckband and for Provident by W.
Kemper.
Finally, on April, 16, 1973, a second amended charge
was filed by Teamsters Local 36 in Case 21-CA-11293,
alleging a refusal to bargain from August 15, 1972, and
naming as Respondents Wiley Bros. Transit Mix, Inc.,
Shamrock Sand and Rock, Inc., and Shamrock Trucking,
Inc. On April 16, 1973, Operating Engineers Local 12 filed
a second amended charge in Case 21-CA-11296, alleging a
refusal to bargain from August 17, 1972, and naming the
same Respondents as in the Teamsters second amended
charge in Case 21-CA-11293.
First, while the charges refer to dates of August 15 and
August 17, these are not controlling dates. It was not until
September 27, 1972, that Wiley Bros. Transit Mix, Inc.,
informed the Association that it could not sign the
agreements and not until about October 3, 1972, that the
Unions were so informed. It is accordingly clear that the 6-
month limitation period in any case would not begin to run
until at least October 3, 1972.
While there may be some ambiguity in the reference to
"Shamrock" in the second amended charge filed by
Teamsters Local 36 on March 9, 1973, it could very well
apply to Shamrock Trucking and it was served on
Halloran, whose status and involvement with Wiley and
Shamrock Trucking is set forth above. The first amended
charge filed by the Operating Engineers clearly refers to
Shamrock Sand.
However, I do not consider that the foregoing affects the
application of any of the charges to Shamrock Trucking,
Inc. First, I have found it to be a single or common
enterprise with Wiley Transit. Accordingly, service of the
charges on Wiley Transit Mix, Inc., were sufficient to bind
and apply to Shamrock Trucking, Inc., so that Section
10(b) of the Act is inapplicable. 14
An additional argument for inapplicability of Section
10(b) which is unnecessary to resolve herein may be that
the obligation to comply with and abide by the terms of a
contract validly negotiated by an authorized representative
should be considered a continuing one and the failure to
do so a continuing violation thereof and of the obligation
to bargain. This latter might be viewed as comparable to
the continuing obligation to bargain .during a certification
year which may be viewed as a "continuing fact" and
requests to bargain during said time as continuing requests
which need not be repeatedly made where futile.15
F. The Relationship of Shamrock Sand to the
Other Respondents Herein
Halloran testified concerning the formation of Shamrock
Sand as follows:
JUDGE: Now, how did Shamrock Sand come to be
formed?
THE WITNESS: Approximately four years ago I felt
that if we were going to continue to exist with a ready-
mix company, it was liable [sic] to attain [sic] a
material source that we could depend on for quality,
quantity and pricing.
15 See Sewanee Coal Operator 's Association, 167 NLRB 172. Cf Bryan
Manufacturing Co v N.L.R.B., 362 U.S. 411 (1960)
WILEY BROS . TRANSIT MIX, INC.
Our prior situation was one in which we were forced
[to] by [sic] all of our rock and sand from our largest
ready-mix concrete competitor.
JUDGE: Who was that?
THE WITNESS: San Diego Consolidated Corporation.
This obviously was not a desirable arrangement.
I spoke to Mr. Morana who owned a large piece of
property East of Temecula. We tried to put a deal
together.
* * r
THE WITNESS: (Continuing) So, to make a long story
short, four years ago, we were unable financially to put
the package together. We commenced, probably late
1971 to try to develop something, and, subsequently,
Shamrock evolved, incorporated in, I think it was April
31, commenced, production August, late August.
Shamrock Sand was organized about April 30, 1972. It is
owned 50 percent by John Marana, and the other 50
percent in equal shares by the four owners of Providen-
t-Halloran, Shepardson, Kemper, and Winn. As set forth
previously, Provident owns all the stock of Wiley. The
officers of Shamrock Sand are John Marana, president,
Martha Marana, vice president, and Harlen Brown,
secretary. The board of directors is composed of John
Marana, Martha Marana, and Brown. Shamrock Sand is in
the business of mining and excavating rock and sand and
selling it. It commenced production about August 24, 1972.
Shamrock Sand did not take over any operations which
Wiley had previously performed. However, Wiley is
Shamrock Sand's principal customer and purchases ap-
proximately 70 percent of the material produced by
Shamrock Sand. Before Shamrock Sand came into exist-
ence , Wiley purchased sand and rock from a facility of San
Diego Consolidated Corporation located at Pala, Califor-
nia. Shamrock Sand is located at Temecula, California.
Wiley is required to purchase from Shamrock Sand and
Shamrock Sand is required to sell to Wiley at least 75
percent of all sand, rock, and gravel required by Wiley in
Wiley's business. There is no evidence that Wiley obtained
any such materials from any other suppliers than Sham-
rock Sand since October or November 1972.
Shamrock Sand at Temecula is on property owned by
John and Martha Marana. This is about 36 miles from the
old Vista plant and about 40 from the new plant. Lloyd
Mitchell is superintendent and there are six employees,
including two skip load operators, a dump truck operator,
and a plant man. None of these worked for Wiley prior to
commencing work for Shamrock Sand.
Between May and October 1972, Harlen Brown, the
owner of the stock of Shamrock Trucking and the former
general manager of Wiley, spent a good deal of time at
Shamrock Sand (on loan) developing proper loading
facilities and also some time obtaining a large truck scale
to be used by Shamrock Sand. Brown has continued to
visit Shamrock Sand almost daily to the present time in
order to coordinate trucking deliveries and make sure that
the trucks arrive on time and are properly loaded.
Shamrock Sand's other main customer is Escondido
Ready Mix which accounts for about 15 to 25 percent of
395
Shamrock Sand's business. Wiley is required to purchase
from Shamrock Sand and Shamrock Sand is required to
sell to Wiley at least 75 percent of all sand, rock, and gravel
required by Wiley in its business. It does not appear that
Wiley, for its business, has obtained these materials from
any supplier other than Shamrock Sand since November
1972. Halloran has acted on behalf of Shamrock Sand in
communications with Escondido Ready Mix concerning
Shamrock Sand's loading facilities and hours of operation
since Shamrock Sand has no salesman . Halloran also
represented Shamrock Sand in discusions relating to
purchase of materials from Shamrock Sand by Escondido
Ready Mix. Porter, who is now shop superintendent for
Shamrock Trucking and who remained on Wiley's payroll
until January 1973, although beginning services for
Shamrock Trucking in October, also performed work for
Shamrock Sand during the time he was on Wiley's payroll.
Shamrock Sand during that time reimbursed Wiley for
Porter's salary.
Wiley also performs clerical services for Shamrock Sand
pursuant to written agreement under which Shamrock
Sand pays Wiley $600 a month. Mrs. Leckband handles
the work for Shamrock Sand and signs Shamrock Sand's
checks. Shamrock Sand's superintendent, Mitchell, fre-
quently stops by the Vista location to deliver tickets or
records which are needed for payroll, computations and
used in connection with services performed at Wiley's
location for Shamrock Sand. Mrs. Leckband also picks up
mail for Shamrock Sand at a post office box in Vista where
most of its mail goes. Shamrock Sand employees are
included with Wiley and Shamrock Trucking employees
for certain purposes, such as Wiley's medical health
program with Aetna, and also with Wiley and Shamrock
Trucking on a single workman's compensation policy.
Shamrock Sand's mobile equipment is maintained and
repaired by Shamrock Trucking's shop and Shamrock
Sand is billed for parts at an hourly rate for labor. This
latter work makes up about 10 percent of the total business
for Shamrock Trucking's shop, according to Brown.
Shamrock Trucking also does some repairs on Shamrock
Sand's nonmobile equipment. Shamrock Sand has ob-
tained equipment from the other employers referred to
herein. It does not appear to operate any trucks or cars but
operates a motor grader leased from either Provident or
possibly Shamrock Trucking and a water truck rented from
Shamrock Trucking. Shamrock Sand also leases a loader
from Capital Leasing Corporation.
Wiley pays Shamrock Sand for materials at a lower rate
than other customers under an agreement between Wiley
and Shamrock. It was agreed that if Wiley moved its Vista
plant, the cost of such relocation up to $100,000 would be
borne by Shamrock Sand and Shamrock Sand's liability
for the expense was to be paid gradually over a period of
years by reducing the price of materials sold to Wiley by 25
cents per ton. As set forth, supra, under the agreement
Wiley agrees to purchase and Shamrock Sand to supply
not less than 75 percent of all rock, sand, and gravel
required by Wiley in its business. The agreement also
provides:
THIRD: Wiley shall cooperate with Shamrock in
selling by Shamrock of all sand, rock and earth
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
materials mined by Shamrock which are not purchased
by Wiley. Shamrock shall pay to Wiley, as a commis-
sion , five (5) percent of all such monthly net sales.
Shamrock shall give orders by Wiley priority over
other customers insofar as delivery and availability are
concerned.
There is an agreement under which the stock held by
Marana cannot be sold without giving the other sharehold-
ers an opportunity to purchase at a price set forth in the
agreement. It also provides, before any shares can be sold,
that the remainil3g shareholders, excluding Marana, will
have the opportunity to purchase these at a price set forth
in the agreement and there is another provision that in the
event of Marana's death, the shares go to his wife subject
to the same agreements.
It appears that there is a certain interrelationship
between Shamrock Sand's operation and Wiley's. Howev-
er, the relationship is not the same as that between Wiley
and Shamrock Trucking. Shamrock Sand was not a part of
Wiley previously, nor had Wiley previously engaged in a
business such as Shamrock Sand's. Neither were any of the
employees of Shamrock Sand previously employed by
Wiley. Furthermore, neither the employees nor the
business of Shamrock Sand is at the same location as
Wiley. Shamrock Sand also does business with another
company, Escondido Ready Mix. In addition, the land on
which Shamrock Sand is operating is owned by Marana
and leased to Shamrock Sand. Marana himself owns 50
percent of the stock of Shamrock Sand and it does not
appear that Shamrock Sand was financed by either Wiley,
Shamrock Trucking or Provident. Based on the foregoing,
I conclude that Shamrock Sand is not to be considered part
of a single employer enterprise (or joint employer) with
Wiley Transit and Shamrock Trucking.
In addition, even if Shamrock Sand were a part or
division of an overall enterprise, there would exist a
question as to the application of a contract to its employees
who had never been covered under any prior contract and
who performed work of a different nature from that
previously performed by employees of Wiley Bros. Transit.
This would be true whether Wiley were subject to a
contract as a single employer or as part of an association.
Accordingly, for the reasons, first, that I do not consider
that Shamrock Sand should be treated as a common or
joint employer with Wiley Bros. Transit (and Shamrock
Trucking) and, second, that Shamrock Sand's employees
should not be included under any collective-bargaining
agreement pending resolution of a question of representa-
tion, I am recommending dismissal of the complaint as to
Shamrock Sand.16
E. The Failure to Bargain by Wiley Bros. Transit
and Shamrock Trucking
By Halloran's letter of September 27, supra, in which he
stated that Wiley would not accept the new agreements
between the Association and Operating Engineers Local 12
and Teamsters Local 36, Respondent Wiley Bros. Transit
Mix, Inc., repudiated said agreements. I find by so doing
Wiley Bros. Transit Mix, Inc., violated Section 8(a)(5) and
(1) of the Act.17
I further find that to the extent that Wiley has failed to
comply with the terms of said agreements it has also
violated Section 8(a)(5) and (1) of the Act. Wiley appears
to conform to the contract with Local 36 except for
provisions requiring it to act through the Association and
except for the wages of several of its employees who were
terminated and then reemployed by Shamrock Trucking
herein found to be a single or common employer enterprise
with Wiley. Shamrock Trucking is not complying with the
contract, particularly by paying wage rates lower than
those specified therein.
As for Local 12, Wiley does not even admit having any
employees covered by a contract with Local 12, although,
as found above, it appears to have had such an employee at
its old Vista plant and clearly has such an employee or
employees at its new Vista plant.
Since I have found above that Wiley Bros. Transit and
Shamrock Trucking are a single or common employing
enterprise within the meaning of the Act, for purposes of
bargaining, I further find that the employees listed on
Shamrock Trucking's payroll are included in the bargain-
ing unit covered by the contracts between Teamsters Local
36 and Operating Engineers Local 12 and the Associa-
tion 18 and, of course, so also are employees on Wiley's
payroll.
I further find that by their conduct Wiley Transit Mix,
Inc., and Shamrock Trucking, Inc., are failing and refusing
to recognize Teamsters Local 36 and Operating Engineers
Local 12 as the exclusive bargaining representatives of
their employees in the units found appropriate herein,
supra, and further have failed and refused to execute the
current collective-bargaining agreements, entered into on
their behalf, between the Association and Teamsters Local
36 and Operating Engineers Local 12. I accordingly
therefore find that Wiley Bros. Transit Mix, Inc., and
Shamrock Trucking, Inc., have violated Section 8(a)(1) and
(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Association and of Respondents
Wiley Bros. Transit Mix, Inc., and Shamrock Trucking,
Inc., set forth in section III, above , occurring in connection
with the operations of Respondents set forth in section I,
above , have a close , intimate , and substantial relation to
trade , traffic, and commerce among the several states and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce
V. THE REMEDY
Having found that the Respondents Wiley Bros. Transit
Mix, Inc., and Shamrock Trucking, Inc., have engaged in
16 Under these circumstances, it is unnecessary to consider any question 18 See Royal Oak Tool & Machine Co., 132 NLRB 1361; Glendora
of the application of Section 10(b) to Shamrock Sand's operations. Plumbing, 165 NLRB 101. See also Senco, Inc., 177 NLRB 882; N.L.R.B. v.
17 Sheridan Creations, 148 NLRB 1503; Bill O'Grady Carpet Service, Inc., Gibraltar Industries, Inc., 307 F.2d 428 (C.A. 4, 1962) enf. 133 NLRB 1527;
185 NLRB 587; Imperial Laundry, 195 NLRB 708. N.L.R.B. v. Jewell Smokeless Coal, 435 F.2d 1270 (C.A. 4, 1970).
WILEY BROS. TRANSIT MIX, INC. 397
certain unfair labor practices, I shall recommend that they
cease and desist therefrom and take affirmative action to
effectuate the policies of the Act.
Having found that Wiley Bros. Transit Mix, Inc., and
Shamrock Trucking, Inc., have, in violation of Section
8(a)(1) and (5) of the Act, failed and refused to recognize
Teamsters Local 36 as the exclusive bargaining representa-
tive of their employees in an appropriate Association-wide
unit and to execute the current agreement between the
Association and Teamsters Local 36, I shall recommend
that they be ordered to recognize Teamsters Local 36 as
such representative and to execute the current contract
effective August 16, 1972, between the San Diego Rock
Producers Association and Teamsters Local 36 and to
maintain in full force and effect the terms and conditions
of employment under said agreement, retroactive to
August 16, 1972. Having found that Wiley Bros. Transit
Mix, Inc., and Shamrock Trucking, Inc., have, in violation
of Section 8(a)(1) and (5) of the Act, failed and refused to
recognize Operating Engineers Local 12 as the exclusive
bargaining representative of their employees in an appro-
priate Association-wide unit and to execute the current
agreement between the Association and Operating Engi-
neers Local 12, I shall recommend that they be ordered to
recognize Operating Engineers Local 12 as such represent-
ative and to execute the agreement between the San Diego
Rock Producers Association and Operating Engineers
Local 12 effective August 17, 1972, and to maintain in full
force and effect the terms and conditions of employment
under said agreement retroactive to August 17, 1972.
CONCLUSIONS OF LAW
1. At all times material herein Teamsters Local 36 and
Operating Engineers Local 12 have been labor organiza-
tions within the meaning of Section 2(5) of the Act.
2. At all times material herein, the Association has been
an association of employers existing for the purpose, inter
alia, of representing employers in multiemployer collective
bargaining with Teamsters Local 36 and Operating
Engineers Local 12.
3. At all times material herein, Respondent Wiley Bros.
Transit Mix, Inc., has been a member of the Association
and its letter of withdrawal from the Association dated
September 27, 1972, was untimely and ineffective.
4. At all times material herein, Respondent Wiley Bros.
Transit Mix, Inc., and Shamrock Trucking, Inc., have been
integrated employers engaged in commerce and constitut-
ed a single enterprise within the meaning of the Act, for the
purposes of bargaining herein.
5. At all times material herein, Respondent Wiley Bros.
Transit Mix, Inc., and Shamrock Trucking, Inc., as a single
enterprise, have been obligated to adhere to the terms and
conditions of the collective-bargaining agreements in effect
between the Association and Teamsters Local 36 and
Operating Engineers Local 12.
6. All drivers of pick-up trucks, 2 axle, 3 axle, semi-3
axle, and 4 or more axle trucks, mixers, cement tankers, flat
beds, Euclid type trucks, parts clerks, warehousemen,
bunkermen, batch plant operators (manual), gas station
attendants, greasers and tiremen, refinishers, car and truck
washers, general maintenance and yard clean-up men,
power broom operators, body repairmen, truck mechanics
or welders, fork lift operators, concrete pump operators,
concrete pump assistants, dixon wagon or athey wagon
drivers, off-highway hauling unit operators, and truck
foremen employed by the employer-members of San Diego
County Rock Producers Association, and including Res-
pondents Wiley Bros. Transit Mix, Inc. and Shamrock
Trucking, Inc., constitute a unit appropriate for the
purposes of collective bargaining within the meaning of the
Act.
7. All heavy duty repairman's and/or welder's helpers,
firemen, oilers, and greasers, general helpers and/or
assistant engineers, crushermen and/or screen men, skip
loaders and tractor operators-yard operations, conveyor
men, drag-scraper operators, mixer operators-all types
and sizes, excluding transit-mix trucks, tractor operators
(pit excavation, tournepull Euclid, motor patrol and DW
operators), rock plant operators, bulk cement plant
operators, heavy duty repairmen and/or welders, equip-
ment greasers, heavy duty repairmen-electricians, batch
plant operators (nonmanual), universal equipment opera-
tors, shovel, dragline, clamshell or crane operators, loading
out operators-skip loader, and computer batchmen-
weighmasters employed by the employer-members of the
San Diego County Rock Producers Association, and
including Respondents Wiley Bros. Transit Mix, Inc. and
Shamrock Trucking, Inc., constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
the Act.
8. At all times relevant herein, Teamsters Local 36 has
been the exclusive representative of the employees in the
aforesaid unit set forth in paragraph 6 above for the
purposes of collective bargaining within the meaning of
Section 9 of the Act.
9. At all times relevant herein, Operating Engineers
Local 12 has been the exclusive representative of the
employees in the aforesaid unit set forth in paragraph 7
above for the purposes of collective bargaining within the
meaning of Section 9 of the Ac'.
10. By failing and refusing to recognize Teamsters
Local 36 as the exclusive bargaining representative of the
employees in the unit set forth in paragraph 6, above, by
failing and refusing to execute the current agreement
effective August 16, 1972, between the Association and
Teamsters Local 36, and by failing and refusing to adhere
to and comply with the terms and conditions of said
agreements, Wiley Bros. Transit Mix, Inc., and Shamrock
Trucking, Inc., have violated Section 8(a)(1) and (5) of the
Act.
11. By failing and refusing to recognize Operating
Engineers Local 12 as the exclusive bargaining representa-
tive of the employees in the unit set forth in paragraph 7,
above, by failing and refusing to execute the current
agreement effective August 17, 1972, between the Associa-
tion and Operating Engineers Local 12, and by failing and
refusing to adhere to and comply with the terms and
conditions of said agreement, Wiley Bros. Transit Mix,
Inc., and Shamrock Trucking, Inc., have violated Section
8(a)(1) and (5) of the Act.
12. Shamrock Sand and Rock Company is not an
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
integrated or common employer with Wiley Bros. Transit merce within the meaning of Section 2(6) and (7) of the
Mix, Inc., and Shamrock Trucking, Inc. Act.
13. The aforesaid unfair labor practices affect com- [Recommended Order omitted from publication.]