Estrella Construction Co.

National Labor Relations Board - Board Decisions

May 24, 1988

288 N.L.R.B. 1049 (N.L.R.B. 1988)

WILLIAM N. TAYLOR, INC. 1049
William N. Taylor, Incorporated; John R. Taylor
and Dolores Taylor, a Partnership, d/b/a Es-
trella Construction Company and Local Union
No. 12, International Union of Operating Engi-
neers. Case 31-CA-12477
May 24, 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
On November 7, 1983, Administrative Law
Judge Roger B. Holmes issued the attached deci-
sion. The Respondents filed exceptions and a sup-
porting brief, and the General Counsel and the
Charging Party filed reply briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings, 1 and
conclusions 2 as modified, to modify his remedy,
and to adopt the recommended Order as modified.
The facts are set forth at length in the judge's
decision. The Respondent, William N. Taylor, In-
corporated (Taylor, Inc.), is engaged in the con-
struction business as an underground utility con-
tractor. Since 1957 Taylor, Inc. has been a party to
a series of collective-bargaining agreements with
Local Union No. 12, International Union of Oper-
ating Engineers (the Union), the latest of which
was effective from July 1, 1980, to June 30, 1983.
Taylor, Inc. was owned by William Taylor and his
wife Katie Taylor, who became the sole owner
when William died in 1982. Their son, John
Taylor, became president of Taylor, Inc. in 1980,
and in 1981 became its registered responsible man-
aging officer. During this period John supervised
all employees, both directly and through an onsite
foreman, prepared bids, and ordered supplies. Katie
also prepared bids, ordered supplies, and performed
general office work, including bookkeeping and
payroll responsibilities.
In February 12823 John formed Respondent Es-
trella Construction Company (Estrella). The part-
The Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Thy Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings
2 In the absence of exceptions, we adopt the judge's conclusion that
the Respondents violated Sec 8(a)(1) by attempting to convince an em-
ployee to abandon his union membership and by interrogating an employ-
ee about his union activities.
3 All dates are m 1982 unless otherwise noted.
nership was solely owned by John and his wife
Dolores. On May 29 John and Dolores resigned as
president and treasurer of Taylor, Inc. and from its
board of directors. Katie replaced John as presi-
dent, and though other family members assumed
positions as officers and directors of Taylor, Inc.
(including Renee Vellinga, John's daughter, as sec-
retary-treasurer and a director), Katie was the only
individual formally associated with Taylor, Inc.'s
operation who took an active role in its manage-
ment.
In finding that Taylor, Inc. and Estrella were
alter egos and a single employer, the judge relied
on extensive evidence, which is fully set forth in
his decision. For the reasons detailed in his deci-
sion we agree with his finding. Estrella began as a
going concern in the first week of June as a non-
union company. Immediately before that period
Taylor, Inc. had 12 employees. Nine of them left
Taylor, Inc. to work for Estrella and constituted
Estrella's sole employee complement at the time.
Estrella did not adhere to Taylor, Inc.'s collective-
bargaining agreement with the Union, but wages
and working conditions were otherwise substantial-
ly the same as they had been at Taylor, Inc. Es-
trella performed the same underground utility
work in the same geographical area using Taylor,
Inc.'s equipment, which was initially provided
without compensation. 4 Employees of both compa-
nies reported to work at Taylor, Inc.'s yard. Es-
trella paid nothing for the use of Taylor, Inc.'s
yard. Katie provided uncompensated bookkeeping
and other services for Estrella, and John remained
involved in day-to-day supervision of Taylor, Inc.'s
projects, including the hiring of Taylor, Inc. em-
ployee Kent Day and criticism of his work. John
performed these services without compensation
from Taylor, Inc. When questions arose over the
use of nonunion personnel by Taylor, Inc. in July
1982, it was John who consulted with the laborers'
union over the situation.
Operating capital flowed freely between the
companies through a series of interest-free, unse-
cured loans transacted as need arose and without
repayment terms or late fees. It is readily evident
that these exchanges, which occurred informally
when one company had cash on hand and the
other did not, were not at arm's length but resulted
from centralized control that pervaded the oper-
ations of both Respondents. In addition, we note
4 Although Estrella later compensated Taylor, Inc. for some of the
equipment pursuant to an oral agreement between Katie and John, they
did not enter into a written rental agreement until September 1, after the
Union filed a charge with the Board Pursuant to the oral agreement,
there were no records or receipts showing payment by Estrella to Taylor
for the use of the equipment
288 NLRB No. 118
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Katie routinely authorized cash disbursements
not only for Taylor, Inc., but also for Estrella.
While Katie testified that she was in the process of
training Renee Vellinga to handle such disburse-
ments on behalf of Estrella, the record establishes
that Katie continued to disburse funds for Estrella
up until the time of the hearing nearly a year after
she had begun training Renee Vellinga. As noted
above, Renee Vellinga, daughter of John Taylor,
was secretary-treasurer of, and on the board of di-
rectors for Taylor, Inc. Although in form they re-
mained separate entities, the Respondents were, in
fact, an integrated business with common finances,
management, labor relations, premises, equipment,
and business purpose, providing exactly the same
services in the same geographical area. According-
ly, we agree with the judge that the Respondents
constitute a single employer and their employees a
single unit.
The judge found that John's reason for forming
Estrella was to be more competitive by evading
Taylor, Inc.'s contractual obligations with the
Union and, in particular, to be free from the con-
straints of the Union's hiring hall. He credited the
testimony of Respondents' witness, Jack Nelson,
who learned from John that he intended to estab-
lish Estrella as a "duplicate" or "parallel" company
to compete in Taylor, Inc.'s job market. Under the
circumstances, we have no difficulty concluding
that Estrella was merely a technical change in op-
eration or a disguised continuance of Taylor, Inc.,
and that the Respondents are alter egos. Accord-
ingly, for this additional reason, we agree with the
judge's finding that their employees constitute a
single appropriate unit. 5 Having found that the Re-
spondents are a single employer and alter egos, we
conclude that Respondent Estrella was bound to
Respondent Taylor, Inc.'s collective-bargaining
agreement with the Union, but impose the contrac-
tual obligation for the following reasons.
The judge accepted the Respondents' admission
that the Respondents were engaged in the con-
struction industry as underground utility contrac-
tors, and the record shows beyond question that
this is so. We, therefore, find that the Respondents
are engaged in the construction industry within the
meaning of Section 8(f) of the Act.
In John Deklewa & Sons, 282 NLRB 1375 (1987),
the Board overruled R. J. Smith Construction Co.,
191 NLRB 693 (1971), enf. denied sub nom. Oper-
ating Engineers Local 150 v. NLRB, 480 F.2d 1186
(D.C. Cir. 1973), abandoned the conversion doc-
trine and modified unit scope rules in 8(f) cases.
5 See, e g., Samuel Kase & Sous, 269 NLRB 424, 427-429 (1984)
The Board decided to apply the following princi-
ples (282 NLRB 1375):
(1) a collective-bargaining agreement permit-
ted by Section 8(1) shall be enforceable
through the mechanisms of Section 8(a)(5) and
Section 8(b)(3); (2) such agreements will not
bar the processing of valid petitions filed pur-
suant to Section 9(c) and Section 9(e); (3) in
processing such petitions, the appropriate unit
normally will be the single employer's employ-
ees covered by the agreement; and (4) upon
the expiration of such agreements, the signato-
ry union will enjoy no presumption of majori-
ty status, and either party may repudiate the
8(1) bargaining relationship.
The Board also held at footnote 41: "Mie will re-
quire the party asserting the existence of a 9(a) re-
lationship to prove it." As the record in the instant
case fails to demonstrate a 9(a) relationship, we
find that Section 8(1) applies that Deklewa is con-
trolling. 6
For the reasons set forth in Deklewa, we affirm
the judge's finding that the Respondents, by failing
to apply the 1980-1983 agreement to employees of
Respondent Estrella, violated Section 8(a)(5) and
(1) of the Act. In 1957 Taylor, Inc. signed an
agreement incorporating the master labor agree-
ment in effect between the Southern California
Contractors Association and the Union, effectively
delegating bargaining authority to the Association
for successor agreements. At the time of the hear-
ing, the most recent master labor agreement ex-
pired by its terms on June 30, 1983. Although
Deklewa permits a party to repudiate its 8(1) rela-
tionship on the expiration of a bargaining agree-
ment, there is no evidence that the Respondents ef-
fectively repudiated their relationship or agreement
with the Union 7 or timely withdrew bargaining au-
thority from the Association. Accordingly, we
leave to compliance the determination of whether
the Respondents, as a single employer/alter egos,
are bound to any subsequent or successor agree-
ments under the principles of Deklewa.
6 The judge found that the Respondent failed to prove the relationship
was an 8(1) relationship As mdicated, Deklewa explicitly decided the
burden of proof was on the General Counsel, as the party asserting the
9(a) relationship, to establish the existence of a 9(a) relationship The
General Counsel did not meet this burden in the instant case. There is no
evidence that Taylor, Inc recognized the Union because of an affirma-
tive showing of majority support, or that Taylor, Inc 's employees voted
for representation by the Union.
7 We reject the Respondents' contention that because Estrella failed to
honor the 1980-1983 agreement, the Respondents effectively repudiated
it Respondent Taylor, Inc. did not repudiate the 1980-1983 agreement
and continued to abide by its terms
WILLIAM N. TAYLOR, INC. 1051
CONCLUSIONS OF LAW
I. The Respondents are in the construction in-
dustry and are engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent William N. Taylor, Incorporated
and Respondent John R. Taylor and Dolores
Taylor, a partnership, d/b/a Estrella Construction
Company are alter egos and a single employer.
4. All heavy equipment operators, mechanics,
oilers, and grade checkers employed by the Re-
spondents, excluding all office employees, manage-
rial employees, guards, and supervisors as defined
in the Act constitute an appropriate bargaining
unit.
5. By failing and refusing to abide by its 1980-
1983 collective-bargaining agreement with the
Union, the Respondents have violated Section
8(a)(5) and (1) of the Act.
6. By seeking to dissuade an employee from re-
maining a union member and interrogating an em-
ployee about his union activities, the Respondents
violated Section 8(a)(1) of the Act.
7. The unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Raving found that the Respondents engaged in
certain unfair labor practices, we shall order that
they cease and desist and take certain affirmative
action designed to effectuate the policies of the
Act. We shall order the Respondents to make their
employees whole, as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), for any losses they
may have suffered as a result of the Respondents'
failure to adhere to the 1980-1983 collective-bar-
gaining agreement 8 with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded.9
8 As noted, we leave to compliance the issue of whether Respondents'
contractual liability extends beyond the agreement's expiration date.
g In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U S C. § 6621. Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U SC § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977).
Because the provisions of employee benefit fund agreements are vari-
able and complex, the Board does not provide at the adjudicatory stage
of this-proceeding for the addition of interest at a fixed rate on unlawful-
ly withheld fund payments. Therefore, any additional amounts owed with
respect to the health and welfare fund and pension plan shall be deter-
mined m accordance with the procedure set forth m Mertyweather Optical
Co., 240 NLRB 1213, 1216 fn 7 (1979)
ORDER
The National Labor Relations Board orders that
Respondent William N. Taylor, Incorporated, and
Respondent John R. Taylor and Dolores Taylor, a
partnership, d/b/a Estrella Construction Company,
Lancaster, California, their officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to abide by their 1980-
1983 collective-bargaining agreement and any suc-
cessor agreements with Local Union No. 12, Inter-
national Union of Operating Engineers as the ex-
clusive collective-bargaining representative of the
Respondents' employees in the following appropri-
ate unit:
All heavy equipment operators, mechanics,
oilers and grade checkers employed by the Re-
spondents, excluding all office employees,
managerial employees, guards and supervisors
as defined in the Act.
(b) Seeking to dissuade an employee from re-
maining a union member and interrogating an em-
ployee about his union activities.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Comply with the terms and conditions of the
1980-1983 collective-bargaining agreement, and
any successor agreements, including wage rates,
fringe benefit payments, hiring hall provisions, and
union-security provisions.
(b) Make whole employees covered by the 1980-
1983 contract and any successor contracts, in the
manner set forth in the remedy, for any losses suf-
fered as a result of the Respondents' failure to
adhere to them
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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.
(d) Post at their Lancaster, California offices
copies of the attached notice marked "Appen-
dix." 1 ° Copies of the notice, on forms provided by
g ° If 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 Nation-
al 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"
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Regional Director for Region 31, after being
signed by the Respondents' authorized representa-
tive, shall be posted by the Respondents immedi-
ately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to abide by the
1980-1983 collective-bargaining agreement, or any
applicable successor agreements, with Local Union
No. 12, International Union of Operating Engineers
as the exclusive representative of our employees in
the following appropriate unit:
All heavy equipment operators, mechanics,
oilers and grade checkers employed by us, ex-
cluding all office employees, managerial em-
ployees, guards and supervisors as defined in
the Act.
WE WILL NOT seek to dissuade our employees
from remaining union members and interrogate
them about their union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make our employees whole for losses
incurred, with interest, because of our failure to
abide by the terms and conditions of the 1980-1983
collective-bargaining agreement or applicable suc-
cessor agreements with the Union, including wages
and fringe benefit payments, hiring hall provisions,
and union-security provisions.
WILLIAM N. TAYLOR, INCORPORAT-
ED; JOHN R. TAYLOR AND DOLORES
TAYLOR, A PARTNERSHIP, D/B/A Es-
TRELLA CONSTRUCTION COMPANY
Rachel D. Young, Esq., for the General Counsel.
Peter Szabadi, Esq. (Acret & Perrochet), of Los Angeles,
California, for the Respondents.
Julius Reich and Anthony R. Segall, Esqs. (Reich, Ade11 &
Crost), of Los Angeles, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge. The
unfair labor practice charge in this case was filed on Sep-
tember 21, 1982, by Local Union No. 12, International
Union of Operating Engineers.
The General Counsel's complaint was issued on De-
cember 9, 1982, against William N. Taylor, Incorporated,
and John R. Taylor and Dolores Taylor, a partnership,
doing business as Estrella Construction Company. The
General Counsel alleges that the Respondents have en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act. In separate answers
filed to the General Counsel's complaint, both Respond-
ents denied that they had engaged in the alleged unfair
labor practices, and both Respondents raised certain af-
firmative defenses.
The trial in this proceeding was held on May 10-13,
1983, and on June 7, 1983, at Los Angeles, California.
The time for the filing of posttrial briefs was extended to
July 25, 1983.
FINDINGS OF FACT
I. THE WITNESSES AND CREDIBILITY RESOLUTIONS
Thirteen persons were called as witnesses at the trial
of this proceeding. In alphabetical order by their last
names, they are: Mickey Jay Adams, business representa-
tive of the Charging Party Union; Thomas Ayers, em-
ployed by Respondent Estrella; Charles J. Beck, civil en-
gineer with Antelope Valley Engineering; James Lee
Cox, business agent of Laborers Local 300; Kent Q. Day,
former employee of Respondent Taylor; Howard Wesley
Holcomb, former employee of Respondent Taylor; Mi-
chael James McLain, former employee of Respondent
Estrella; Gloria Meyer, secretary and auditor for the
West Valley County Water District; Raymond Morris,
apprenticeship coordinator for the Operating Engineers
Training Trust; John Nelson, civil engineer with Ludwig
Engineering; John Robert Taylor, one of the partners of
Respondent Estrella; Katie S. Taylor, the president of
Respondent Taylor; and Dan Vellinga, employed by Re-
spondent Estrella.
The findings of fact are based on some portions of the
testimony given by each one of the witnesses who testi-
fied during the trial proceedings. In addition, certain
findings of fact will be based on documentary evidence.
Literally, there are several hundred pages contained in
the exhibits that were introduced during the course of
the trial. The attorneys for the parties were able to reach
agreement on certain stipulations of fact, which had the
beneficial effect of focusing the scope of the litigation on
those other issues of fact on which there was disagree-
WILLIAM N. TAYLOR, INC. 1053
meat. Additional findings of fact will be based on those
stipulations by the parties.
In determining which portions of the testimony of the
witnesses were credible, accurate, and reliable, I have
given consideration to several factors. The demeanor of
the witnesses on the stand has been one factor. Of
course, that observation includes not only the witnesses'
demeanor during direct examination, but also their de-
meanor during the probing cross-examination by the ex-
perienced attorneys in this case. Not surprisingly, some
witnesses were more certain of their recollection of some
events than they were of other matters, and their certain-
ty, or hesitation, has been another factor to be consid-
ered. The occupation of the witnesses has been another
factor in the sense that some witnesses were identified
with the interests of one of the parties to the proceeding,
and, therefore, may have an interest in the outcome of
the litigation. Consideration also has been given whether
the record reflects a basis for the witnesses' knowledge
concerning the facts about which the witnesses testified
at the trial. I have also given consideration to the con-
sistency, or the inconsistency, of portions of the wit-
nesses' testimony, and the probability of the witnesses'
versions in light of other testimony, documentary evi-
dence, stipulations, or undisputed facts.
In addition to the foregoing criteria and in assessing
the credibility of Adams' account, I have also given con-
sideration to the matters brought out on the record re-
garding Adams' earlier affidavit given to an NLRB
agent; Adams' earlier notes, and a deposition he gave.
(See Tr. 37-39; 43-44; 53-59; 64-68; 105-113; 117-125,
and R. Estrella Exhs. 445-447.) Haying considered the
foregoing, and the criteria mentioned in the paragraph
above, I have relied on portions of Adams' account,
except regarding the content of a conversation between
Adams and Dan Vellinga. Those two witnesses gave sig-
nificantly different versions of the content and the cir-
cumstances of a conversation between them. Because of
the fact that Adams was assigned to his present position
on July 1, 1982, I concluded that Adams was correct in
placing the date of their conversation some time in July
1982, rather than in June 1982, as Dan Vellinga stated at
the trial. I conclude, however, that Dan Vellinga was
correct in placing the location of the conversation as
having taken place at the West Valley Water District
jobsite rather than at the K-Mart jobsite in Mojave. (The
West Valley jobsite is sometimes referred to as the Holi-
day Valley jobsite. References to the Green Valley job-
site at the trial pertain to still another jobsite.) Concern-
ing the foregoing, I noted that Day did not recall seeing
Dan Vellinga at the K-Mart jobsite at any time, and I
noted that Cox spoke with Dan Vellinga at the Holiday
Valley jobsite. Thus, it seems to be more probable that
the conversation between Adams and Dan Vellinga took
place at the West Valley jobsite (Holiday Valley jobsite).
Of course, I have also considered the fact that Adams
did not know Dan Vellinga at that time. Thus, it is possi-
ble that a person other than Dan Vellinga could have in-
troduced himself to Adams as being Dan Vellinga. Be-
cause Adams did not know Dan Vellinga, he would not
have been able to discern wheiher the person was giving
his correct name. Rather than speculate on what might
have occurred, I will accept Dan Vellinga's version as to
the location of the conversation. I conclude that Adams
spoke with someone on that occasion at the K-Mart job-
site in Mojave, but that someone was not Dan Vellinga.
Regarding the contents of the conversation, Dan Vel-
linga's version appears to be more probable. In Dan Vel-
linga's version, Adams is the one who poses the question
of how John Taylor could get away with swapping em-
ployees back and forth between Respondent Estrella and
Respondent Taylor. In Adams' version, Dan Vellinga is
the one who asks that question. Considering Dan Vellin-
ga's relationship as the son-in-law of John Taylor, and
his position as a foreman of Respondent Estrella at that
point in time, it seems less likely that Dan Vellinga
would be the one to raise that question about his father-
in-law, who had recently hired him to work as a foreman
for Respondent Estrella. Thus, the findings of fact re-
garding that conversation will be based on Dan Vellin-
ga's version.
Regarding Ayers' account, I concluded that Ayers'
version of his conversation with John Taylor in June
1982 at transcript 913 was more convincing than his later
version at transcript 918-919 where he changed his testi-
mony. Note that at transcript 913 Ayers stated, regarding
that conversation with John Taylor: "Just that it was
going to be Estrella Construction Company, and it
would be a non-union company, and would I like to join
it? I said, I had no—it didn't make any difference to me,
because I wasn't in the union at the time anyway." Con-
trast that account with the version at transcript 918-919
to the effect that John Taylor did not tell him Respond-
ent Estrella was going to be a nonunion company, but
instead, it was something that Ayers assumed, and some-
thing that later on "got back to me as hearsay." With the
criteria mentioned in the earlier paragraph in mind, I
concluded that the first version, rather than the second,
was credible.
Regarding Day's testimony, I have weighed the fact
that his recollection had to be refreshed on several occa-
sions. (See, for example, the discussions among the attor-
neys and me at Tr. 215-220, 225-227, and 229-230.) Of
course, the passage of time between the occurrence of
the events about which Day testified and the time he
gave his testimony on May 10, 1983, at the trial is a
factor that also was considered. Notwithstanding his in-
ability to recall certain conversations without having his
recollection refreshed on the witness stand, I concluded
that Day was not fabricating his account of these events
and, instead, that Day was relating the events, as best as
he could do so by the time of the trial, in a truthful
manner. Day candidly acknowledged during cross-exam-
ination that he previously had had a drinking problem,
which earlier had resulted in his being terminated from
employment with Respondent Taylor on a number of
different occasions over the past 8 to 10 years. The rea-
sons given by the Employer for the terminations of Day
were his failure to show up for work and his being unde-
pendable. In Day's opinion, his drinking problem had
ended about 2 years prior to the time he testified at the
trial.
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regarding McLain, it was brought out at the trial that
he had never been a member of the Charging Party
Union. McLain, however, had spoken with Union Repre-
sentative Adams prior to the time that McLain testified
about his joining the Union. McLain stated at transcript
762: "He said that it looks like in June they could prob-
ably break me in or I could possibly go out as an appren-
ticeship program." Nevertheless, McLain testified that
Adams had not made a definite promise to him. Also
considered concerning McLain's account is that he had
quit working for Respondent Estrella prior to the time
he testified. McLain explained at the trial that he did so
because of a new requirement of Respondent Estrella
that he drive from his residence to and from the jobsite.
McLain was of the opinion that it was not economical
for him to do so.
Regarding the testimony of Meyer, I have considered
the accounts given by Nelson and by John Taylor.
Meyer, however, was more convincing in her version
based on the criteria mentioned earlier, and her testimo-
ny found support in the minutes that she took of the
meeting of the board of directors of the West Valley
County Water District on July 22, 1982. See the Board's
decision in Buffalo Neighborhood Housing Services, 267
NLRB 514 fn. 1 (1983), in which minutes of a board of
directors meeting were found to be admissible.
Regarding the testimony of Katie S. Taylor, it should
be noted that she appeared to be a very knowledgeable
witness regarding the matters about which she testified.
If she did not have knowledge of the matter posed in the
questions to her, or if she did not recall an event by the
time of the trial, she was candid in so stating. For the
purposes of clarity, the first name of Katie S. Taylor and
John Robert Taylor will be given, along with their sur-
name. The term "Respondent Taylor" will be used to
refer to the Company, William N. Taylor, Incorporated.
"Respondent Estrella" will be the term used to make ref-
erence to the other Company.
Regarding the account given by John Taylor, I have
also considered the fact that he had to correct portions
of his testimony regarding the amount of, and the source
of, his capital investment in Respondent Estrella. (See
Tr. 483; 510-511; 629-631; and 775-776.) John Taylor,
however, explained at the trial that he had looked at Re-
spondent Estrella's records after he had testified on May
12, 1983, and he corrected his earlier testimony the next
day. (See Tr. 781-787.) The records he examined then
were introduced into evidence as Charging Party's Ex-
hibit 3. (See Tr. 794.) In addition, John Taylor acknowl-
edged that in his pretrial affidavit given to an NLRB
agent he had stated that there was no capital investment
made in Respondent Estrella. He explained at the trial
that he was referring to equipment when he had given
his affidavit. (See Tr. 510-511.) The Chevrolet vehicle
was not in Respondent Estrella's name, but, instead, it
was in John Taylor's name. He acknowledged, "It was in
my name but I am Estrella so it is one and the same."
(See Tr. 511.) He did not, however, consider the vehicle
to be equipment. (See Tr. 512.) In addition to the forego-
ing, I have also considered John Taylor's responses re-
garding the other matters covered in his pretrial affidavit
about which he was questioned at the trial. (See Tr. 514-
519 and 680-681.) Considering the foregoing and the cri-
teria mentioned previously, I have accepted portions of
John Taylor's account in making the findings of fact, but
not the entire account. In fairness, it-should be noted that
his testimony covered many subjects; his testimony spans
many more pages of the transcript than any other wit-
ness at the trial, and his testimony was not given all at
one time, but instead it was necessarily interrupted by
other events during the course of the trial proceedings.
Regarding the testimony given by Dan Vellinga, I
have considered the fact that he is the son-in-law of John
Taylor. He is married to the daughter of John and Dolo-
res Taylor. Her name is Renee Vellinga. The Vellingas
were married on February 13, 1982. Certain fmdings of
fact will be based on portions of his account. Although
Renee Vellinga did not testify at the trial, other persons
gave testimony regarding her duties and her employ-
ment, first by Respondent Taylor, and then by Respond-
ent Estrella. For the purpose of clarity, the first name of
Dan Vellinga and Renee Vellinga will be given along
with their surname.
It does not appear to be necessary to make additional
comments regarding each one of the other individual
witnesses. As indicated above, the criteria mentioned
previously has furnished guidance in considering the ac-
counts given by all the witnesses and in determining the
portions of their accounts on which to base the findings
of fact. Regarding the acceptance of some, but not all, of
the testimony of a witness, see the Board's decision in
Krispy Kreme Doughnut Coip., 245 NLRB 1053 (1979).
Although all the evidence has been considered, the find-
ings of fact to be set forth will be limited to the credited
evidence in this proceeding. See the Board's decision in
ABC Specialty Foods, 234 NLRB 475 fn. 2 (1978).
II. THE LABOR ORGANIZATION INVOLVED
The status of the Charging Party Union as a labor or-
ganization within the meaning of Section 2(5) of the Act
is not in issue in this case. Such status was admitted to be
true by both Respondent Taylor and Respondent Estrella
in the pleadings. (See G.C. Exhs. 1(c), (e), and (0.)
III. THE EVENTS COMMENCING PRIOR TO JUNE 1,
1982
Among the facts that were stipulated to by the parties
are those that are reflected in the following paragraphs
from Joint Exhibit 1, and which pertain to certain events
regarding Respondent Taylor prior to June 1, 1982:
1. William N. Taylor, Inc. was formed on Febru-
ary 27, 1957.
2. William N. Taylor, Inc. is a California corpo-
ration in good standing.
3. On March 12, 1957, the following individuals
were elected to the Board of Directors of William
N. Taylor, Inc.:
William N. Taylor
Katie S. Taylor
Newell John Gardner
WILLIAM N. TAYLOR, INC. 1055
4. On March 12, 1957, William N. Taylor was
elected President, Katie S. Taylor, Vice President
and Treasurer and Newell John Gardner, Secretary.
5. On March 25, 1957, 250 shares of the Class A
Voting Common shares of William N. Taylor, Inc.
were issued to William N. Taylor and 250 shares of
the Class A Voting Common shares of William N.
Taylor were issued to Katie S. Taylor.
(i. On a later date, during the calendar year of
1957, 5 shares of the Class A Voting Common
shares of William N. Taylor, Inc. were issued to
William N. Taylor and 5 shares of the Class A
Voting Common shares of William N. Taylor, Inc.
were issued to Katie S. Taylor.
7. To date, no additional shares of the Class A
Voting Common shares of William N. Taylor, Inc.
have been issued than those described above to
(Stipulations 5 and 6) William N. Taylor and Katie
S. Taylor.
8. On March 25, 1957, 250 shares of Class B
Non-voting Common shares of William N. Taylor,
Inc. were issued to William NT. Taylor and 250
shares of the Class B Non-voting Common shares of
William N. Taylor, Inc. were issued to Katie S.
Taylor.
9. On June 1, 1957, 5 shares of the class B Non-
voting Common shares of William N. Taylor, Inc.
were issued to William N. Taylor and 5 shares of
the Class B Non-voting Common shares of William
N. Taylor, Inc. were issued to Katie S. Taylor.
10. To date, no additional shares of the Class B
Non-voting Common shares of William N. Taylor,
Inc. have been issued to those described above to
William N. Taylor and Katie S. Taylor.
11. At the meeting of the Board of Directors of
William N. Taylor, Inc. conducted on July 1, 1973,
the following members of the Board of Directors of
William N. Taylor, Inc. were elected:
William N. Taylor
Katie S. Taylor
John R. Taylor
12. At the above meeting, (Stipulation 11) Wil-
liam N. Taylor was elected President, Katie S.
Taylor, Vice President and Secretary, and John R.
Taylor, Vice President and Dolores E. Taylor,
Treasurer of the corporation.
13. At a meeting of the Board of Directors of
June 24, 1980, the following individuals were elect-
ed as officers of the corporation:
John R. Taylor, President
William N. Taylor, Vice President
Katie S. Taylor, Vice President/Secretary
Dolores E. Taylor, Treasurer
14. At the meeting of the Board of Directors of
William N. Taylor, Inc. conducted on May 29,
1982, John R. Taylor and Dolores E. Taylor ten-
dered their resignations in writing as members of
the Board of Directors of William N. Taylor, Inc.
and of their offices as President and Treasurer, re-
spectively. Said resignations took effect on May 29,
1982.
15. The Board of Directors of William N.
Taylor, Inc. accepted said resignations and elected
to replace said individuals by Sandra S. Easter as
Vice President and Renee L. Vellinga, Secre-
tary/Treasurer. Said individuals also filled the
Board of Directors positions left vacant by the res-
ignation of Dolores Taylor and John Taylor, re-
spectively.
16. Neither John R. Taylor nor Dolores E.
Taylor ever owned any shares (of whatever class)
of the corporation William N. Taylor, Inc.
17. Since the death of William N. Taylor, on
February 18, 1982, the sole shareholder of William
N. Taylor, Inc. has been Katie S. Taylor.
18. The offices of William N. Taylor, Inc., since
the creation of the corporation, have been located
at 42110 21st Street West, Lancaster, California
93534.
. . . .
20. The contracting firm William N. Taylor, Inc.
has been engaged from its creation in the business
of general engineering contracting in the Southern
California area.
21. William N. Taylor, Inc. has a current State
License No. 169992 in the following classes: C-12
(earthwork and paving), C .,34 (pipeline) and Class A
(general engineering).
22. John R. Taylor became the registered respon-
sible managing officer of William N. Taylor, Inc. on
January 1, 1981, after William N. Taylor became se-
riously ill.
23. Since May 29, 1982 neither Dolores E.
Taylor nor John R. Taylor has served as an officer
for William N. Taylor, Inc.
39. That on or about June 14, 1957, William N.
Taylor on behalf of William N. Taylor, Inc. execut-
ed a short-form agreement with Local Union 12,
International Union of Operating Engineers incor-
porating the terms and conditions, with certain ex-
ceptions of the Master Labor Agreement, then in
effect, between Local 12 and the Southern Califor-
nia General Contractors Associations.
40. That since June 14, 1957 to the present, there
has been a Master Labor Agreement between the
Contractors Association and Local Union 12, Inter-
national Union of Operating Engineers. The most
current of such agreement is effective from July 1,
1980 to June 30, 1983.
Copies of the collective-bargaining agreements re-
ferred to in paragraphs 39 and 40 of Joint Exhibit 1 were
introduced into evidence as General Counsel's Exhibits 2
and 3.
Among the facts that the parties stipulated to at the
trial are those reflected in the following paragraphs from
Joint Exhibit 1 that pertain to events involving Respond-
ent Estrella prior to June 1, 1982:
28. John Taylor, on November 11, 1980, as JRT
Construction Company, obtained a Contractors
State License, No. 395236, Class A.
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29. On February 16, 1982, the Department of
Consumer Affairs, Contractors' State License Board
for the State of California approved the change of
name of JRT Construction Company to Estrella
Construction Company.
30. Estrella Construction Company, a general
partnership, is operated by John R. Taylor and Do-
lores E. Taylor, as General partners.
John Taylor is the son of William N. Taylor and Katie
S. Taylor. Dolores Taylor is the wife of John Taylor.
Estrella is the maiden name of Dolores Taylor. Renee
Vellinga is the daughter of John Taylor and Dolores
Taylor, and she is the granddaughter of Katie Taylor.
Sandra S. Easter is the daughter of William N. Taylor
and Katie S. Taylor. She had been residing in Colorado,
but she returned to California on the day before Katie
Taylor testified at the trial on May 11, 1983. Easter does
not have any involvement in the day-to-day operations
of Respondent Taylor, but she became the vice president
of Respondent Taylor and a member of the board of di-
rectors of Respondent Taylor on May 29, 1982. (See Tr.
281 and par. 15 of Jt. Exh 1, quoted above.)
Insofar as the allegations pertaining to interstate com-
merce are concerned, Respondent Taylor admitted the
allegations of paragraphs 2(a) and (b) of the General
Counsel's complaint. Therefore, I find that the business
operations of Respondent Taylor meet the Board's indi-
rect outflow jurisdictional standard. (See G.C. Exhs. 1(c)
and (e).) Respondent Estrella answered, in part, the alle-
gations of paragraph 3 of the General Counsel's com-
plaint by stating "admit that they as Estrella engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act." (See G.C. Exh. l(fl) Each Respondent, respec-
tively, admitted that it was engaged in the construction
industry as an underground utility contractor with its
office and principal place of business located in Lancas-
ter, California.
Katie Taylor, personally since 1947, has owned the 2-
1/2 acre yard where the employees of Respondent
Taylor report to work in the mornings before they leave
for the construction jobsites. The yard is also used for
the storage of equipment that belongs to Respondent
Taylor. There is a gasoline pump and a diesel fuel pump
located in the yard. Katie Taylor also owns a house ad-
joining the yard. She lives there, and Respondent Taylor
has its business office in her house. Respondent Taylor
does not pay rent to Katie Taylor, but instead, Respond-
ent Taylor pays the property taxes. The yard is located
at 20th and M Streets in Lancaster.
Respondent Taylor has employed persons in the job
classifications of operating engineer and laborer. During
the year 1982, Respondent Taylor has requested the re-
ferral of employees from the Charging Party Union pur-
suant to the contract between Respondent Taylor and
the Union. (See Tr. 326.) Also during the year 1982, Re-
spondent Taylor has made trust fund payments and filed
reports with the Union pursuant to the contract between
Respondent Taylor and the Union. Those reports include
the names of the employees of Respondent Taylor who
are covered by the union contracts. Respondent Taylor
has continued to file such reports during the year 1983.
Insofar as John Taylor knew, there has never been an
election among the employees of Respondent Taylor
wherein the employees selected the Charging Pasty
Union as their representative. (See Tr. 819.) For the 5
years prior to June 1982, Respondent Taylor's type of
business was about 80 percent public works projects for
governmental agencies and about 20 percent was work
for private enterprise companies. Regarding the public
works jobs, John Taylor said the Davis-Bacon Act was
applicable to Respondent Taylor's employees, who
earned the prevailing wage rates.
In 1975 business was slow for Respondent Taylor.
John Taylor said at transcript 998, "we were down to
just myself and maybe one other employee on a rental
basis. So the work volume was very negligible." As a
result, in 1975 and 1976, Respondent Taylor rented its
equipment and its operator on an hourly basis to other
companies, including the Southern California Gas Com-
pany, General Telephone Company, and Southern Cali-
fornia Edison Company. Only rarely did Respondent
Taylor rent its equipment without its own operator. The
rate was a subject of negotiations. John Taylor said at
transcript 1000, "In other words, they would more or
less tell you what they were willing to pay. If you didn't
like it, you didn't work for them."
Business conditions thereafter did improve for Re-
spondent Taylor. John Taylor gave his opinion at tran-
script 1002, "It grew. I would say, between where we
were in '75, in that area, until the time that I resigned,
the company probably doubled in dollar volume." John
Taylor, however, said the volume of business of Re-
spondent Taylor slowly declined from January through
June 1982. In his view, the reason was "our prices were
too high." (See Tr. 1002.) His basis for that opinion was
that Respondent Taylor was not being awarded the bids
for the work it sought during the year's period from
June 1981 through June 1982. As he pointed out at tran-
script 1003 regarding the bidding process, "It didn't do
any good to be second." In his opinion, the amount of
the production of employees was the true variable in de-_
termining the amount of a bid.
Regarding the duties of Katie Taylor, she has been ac-
tively involved for years in the management of Respond-
ent Taylor, and even more so, after her husband became
ill in 1975. Katie Taylor has prepared bids for jobs based
on the plans and specifications submitted; prepared the
payroll; performed bookkeeping work; wrote checks;
signed contracts; and ordered office supplies for Re-
spondent Taylor.
Regarding the duties of John Taylor prior to June 1,
1982, for Respondent Taylor, Katie Taylor said at tran-
script 299, "He supervised all the employees, the fore-
man, and he also made bids." John Taylor also visited
the jobsites of Respondent Taylor; dispatched employees
to those jobsites from Respondent Taylor's yard; gave
instructions regarding the work; and ordered materials.
John Taylor said at transcript 479 that he "basically co-
ordinated the work that was to be done and helped pre-
pare bids, helped collect money, whatever it took to
keep the company going."
WILLIAM N. TAYLOR, INC. 1057
Regarding the duties of Holcomb as a foreman for Re-
spondent Taylor, Holcomb reported directly to John
Taylor and received his instructions from John Taylor
regarding the work to be done. Holcomb also said at
transcript 159, "Once we arrived at the jobsite and I was
informed as to what I was to do concerning that project,
yes I did run the job at the site." Holcomb had worked
for Respondent Taylor for a total of about 7 years. He
first worked as a heavy equipment operator, and then he
was a foreman for the last 3 or 4 years of his employ-
ment until he voluntarily quit work about June 2, 1982.
Holcomb had been a member of the Charging Party
Union for about 5 years at the time he testified at the
trial.
Nelson, a civil engineer with Ludwig Engineering,
was the one who handled the design of the Holiday
Valley project for the West Valley County Water Dis-
trict. During late March or early April 1982, Nelson
started advertising for bids from contractors. Later on,
Nelson acted as the construction inspector at the jobsite.
Sometime in early April 1982, Nelson held a prebid
conference at the jobsite. About 5 or 6 construction
firms were represented by the 12 or 15 people who at-
tended the conference. Nelson recalled at the trial that
John Taylor was present at the conference, and that it
was the first time that Nelson had met him In Nelson's
opinion, John Taylor "asked some intelligent questions"
at the prebid conference. (See Tr. 525.)
At this time, John Taylor was still the president of Re-
spondent Taylor. He spoke with various subcontractors
during the prebid stage. He had dealt with a majority of
them previously on behalf of Respondent Taylor, and he
did not mention Respondent Estrella's name to them. He
also telephoned Beverly "Corky" Brissette at the PIA
Holt Agency regarding obtaining a bond to submit with
the bid. He had dealt with her previously on behalf of
Respondent Taylor and, at the trial, he did not recall
whether he mentioned Respondent Fstrella's name to her
in that telephone call. (See Tr. 644.) John Taylor, how-
ever, said at transcript 649, "I asked her if she, at some
point in time, would be willing to bond me or my own
company, what I would have to do to accomplish that."
Katie Taylor assisted in the "take-off' process in prep-
aration of the Holiday Valley bid during the prebid
stage. (See Tr. 648.)
On April 21, 1982, when John Taylor picked up the
bond from Brissette, he noticed that the bond was in the
name of Respondent Taylor and the Stevens Company as
a joint venture. The Stevens Company is a general con-
tractor, and it has engaged two or three times in the past
in joint ventures with Respondent Taylor. The Stevens
Company and Respondent Taylor hold a joint venture li-
cense. The reason for the inclusion of the Stevens Com-
pany name on the bond was for "increased bonding ca-
pacity." (See Tr. 657.) Respondent Estrella has never
had a joint venture license with the Stevens Company.
According to John Taylor, he mentioned to Brissette
that the bond should have been made out to Respondent
Estrella. According to John Taylor, "she said, it is too
late to change it." (See Tr. 655.) The bids were to be
submitted at 2 p.m. that same day, so John Taylor sub-
mitted the bid in the same name as the bond. (See R. Es-
trella's Exh. 34.)
Nelson recalled that John Taylor was present at the
bid opening on April 21, 1982, but he did not recall any
mention by John Taylor at that time that the name on
the bid or the bond was in error. The bid, submitted
under the name of Respondent Taylor and the Stevens
Company, was the low bid. Around May 1, 1982, a
public hearing was held for the property owners of the
proposed assessment district. Nelson said that ownership
of the construction companies was not discussed at the
public hearing. Nelson said that the project passed with-
out any protest.
IV. THE EVENTS COMMENCING IN JUNE 1982
The parties entered into the following stipulations re-
garding Respondent Estrella in addition to those previ-
ously mentioned. The numbers alongside the stipulations
are those reflected in Joint Exhibit 1.
31. The Fictitious Business Name Certificate for
John Robert Taylor and Dolores Taylor, doing
business as Estrella Construction Company was
filed on June 2, 1982.
. . .
35. Estrella Construction Company is a general
engineering contractor engaged in such work in the
Southern California area.
36. The office of Estrella Construction Company
is located at 2044 West Avenue L-12, Lancasters,
California 93534.
The office of Respondent Estrella referred to above is
located in the house where John Taylor lives. His house
is on an adjoining one-half acre lot to Katie Taylor's
house where the office of Respondent Taylor is located.
The two houses are about 600 feet apart.
As of June 1, 1982, the capital investment by John
Taylor in Respondent Estrella was $5000. The source of
those funds was Katie Taylor who, either personally or
by drawing on Respondent Taylor's account, made a
loan of that amount to John Taylor. (See Tr. 775-776
and 786.) There was no promissory note executed or
anything else in writing. Nothing was negotiated about
interest payments or terms of payment of the loan by
John Taylor. (See Tr. 780.) John Taylor subsequently
paid the amount of the loan to Katie Taylor after Re-
spondent Estrella received some cash from the perform-
ance of work on jobs during August and September
1982.
John Taylor described at the trial a verbal agreement
that had existed between himself and Katie, Taylor re-
garding operating capital and cash flow problems. He
said at transcript 776, "That, if she became short of
money, rather than going to the bank, and I had some,
that I would loan it to her and vice versa."
A second loan in the amount of $6000 was made to
Respondent Estrella by Katie Taylor for operating ex-
penses on July 31, 1982. (See Tr. 796-797 and C.P. Exh.
3.) Another loan was in the amount of $2,531.30 on
August 31, 1982, and still another loan was in the
amount of $10,000 on October 31, 1982. Regarding all of
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
those loans, there were no particular terms, and payment
was to be made whenever Respondent Estrella could do
so. (See Tr. 797.) By the end of March 1983, all but
$31.30 had been repaid. The ledger shows payments by
Respondent Estrella of $11,000, $500, $2000, and $10,000.
(See the column headed "charges" on the "notes pay-
able" sheet in C.P. Exh 3)
Loans in the amounts of $35,445, $10,000, $17,000, and
$25,000 have been made by Respondent Estrella to Re-
spondent Taylor. (See the "notes receivable" sheet in
C.P. Exh. 3.) Those loans were made because Respond-
ent Taylor had cash flow problems. (See Tr. 778.) No
promissory notes were executed. No interest or repay-
ment terms were negotiated. (See Tr. 781.) All except
the last loan had been repaid by Respondent Taylor to
Respondent Estrella. As of March 31, 1983, Respondent
Taylor owed Respondent Estrella the amount of $25,000.
(See Tr. 801.)
John Taylor also made a loan to Respondent Estrella
in the amount of $80,300, although, in his view, it was an
investment of funds instead of a loan. The source of
those funds was a loan obtained by John Taylor with his
house as security. John Taylor said at transcript 778, re-
garding Respondent Estrella's books, "It shows as a loan
from me to Estrella Construction."
John Taylor said that he formed Respondent Estrella
because, "I wanted to form my own company and go
out on my own and be more competitive with the com-
petition that was in the valley." (See Tr. 519.) John
Taylor later elaborated on his answer at transcript 619,
"The competitors in the Antelope Valley area were all
non-union contractors and for me to compete with them
I had to form a company that could offer the same serv-
ices that they offered." When he was asked, "In other
words, you had to start a non-union company; is that
correct," he responded, "That is correct." (See Tr. 619.)
John Taylor also acknowledged that a part of his moti-
vation in forming Respondent Estrella was to be free
from the constraint of the Union's hiring hall in deter-
mining who John Taylor was to hire. (See Tr. 1077.)
Whether he considered Respondent Taylor to be a
competitor of Respondent Estrella in bidding for jobs,
John Taylor stated at transcript 1075, "I guess, theoreti-
cally, they would be, yes. I don't remember them bid-
ding on any jobs that I bid on."
On or about June 4, 1982, John Taylor told Holcomb
outside the office door that he was not happy with the
profits being made by Respondent Taylor. John Taylor
also told Holcomb that John Taylor and Katie Taylor
were putting money into Respondent Taylor, but they
were not receiving an adequate return from their invest-
ment. According to Holcomb, John Taylor also told him
"that he was thinking of starting a non-union company."
(See Tr. 131.)
In another conversation in June 1982 between John
Taylor and Holcomb, Holcomb said that John Taylor
told him "that I wouldn't be concerned with this non-
Union company until this Well 41 job was over." (See
Tr. 132.) Holcomb further stated that John Taylor told
him that there were crews already working under Re-
spondent Estrella, and that Holcomb's crew was the only
one that was a union crew operating under Respondent
Taylor. Holcomb later recalled at transcript 187, "In the
best of my recollection, he informed me that he was
starting a non-union company, and the men could work
for that non-union company if they wished." Holcomb
informed the employees of Respondent Taylor in accord-
ance with what John Taylor had told him.
All the persons who were initially employed by Re-
spondent Estrella during the first week of its operation in
June 1982 had previously been employed by Respondent
Taylor. That includes both John Taylor and office em-
ployee Renee Vellinga, along with the other employees.
(See C.P. Exh 2 and Tr. 822-824.) Subsequently, Re-
spondent Estrella has employed persons who have never
worked for Respondent Taylor. (See Tr. 854-856.) No
employee has been, carried on the payroll of both Re-
spondent Estrella and Respondent Taylor at the same
time.
The employees of Respondent Estrella reported to
work in the mornings to the same yard as the employees
of Respondent Taylor. They left from the yard, with
their tools and equipment, to the jobsites. That practice
continued until a few weeks prior to the trial proceed-
ings in this case. At first, there was some confusion. John
Taylor stated at transcript 635, "there were some people
that in the first two or three days of the changeover
were on Taylor's payroll but they ended up on an Es-
trella job for maybe a couple of hours or so until it was
straightened out. You don't belong here, get over on
your own work. But they were never paid by Estrella.
They were Taylor employees."
Dan Vellinga began working for Respondent Taylor in
August 1979 as a laborer. While he was employed by
Respondent Taylor, he joined Laborers Union Local
300.
In the first part of June 1982, there was a conversation
between John Taylor and Dan Vellinga wherein John
Taylor said he was forming another company, and he
asked if Dan Vellinga would like to be hired. According
to Dan Vellinga, John Taylor also told him, "He said
that you would be working for a non-union company. So
it's up to you whether you quit the union or not." (See
Tr. 947 and note Dan Vellinga's corrections to his prior
answer.) John Taylor also told Dan Vellinga that he
would receive the same wages that he had been getting,
and that John Taylor would obtain his own insurance for
health and welfare. Dan Vellinga also said at transcript
936, "I said that I would. As far as I am concerned, the
union wasn't doing me any good." At the trial, Dan Vel-
linga explained that he previously had wanted to become
an operating engineer, but he had been told that his
chances were pretty slim and that the waiting list was
too long. John Taylor ago told Dan Vellinga that he
would be a foreman and, according to Vellinga, "He said
that I would be doing the same job that I was before,
when I worked for William N. Taylor." (See Tr. 937.)
Later in June 1982, and without any hiatus between
his employment by Respondent Taylor and his employ-
ment by Respondent Estrella, Dan Vellinga became a
foreman for Respondent Estrella. Subsequently, he
became a job superintendent for Respondent Estrella,
which was the position he held at the time he testified at
WILLIAM N. TAYLOR, INC. 1059
the, trial. As a job superintendent, Dan Vellinga was
given the authority to hire and to fire employees of Re-
spondent Estrella.
In June 1982, Dan Vellinga ceased being a member of
the Laborers Union. He believed that his health and wel-
fare benefits had continued for about 6 months thereafter
because Respondent Taylor had already made the pay-
ment for those benefits. Dan Vellinga received the same
wages as he had received when he worked for Respond-
ent Taylor. He also began receiving vacation pay credits
as shown on his paycheck stubs.
Introduced into evidence as Respondent Estrella's Ex-
hibit 42 was a copy of that Company's payroll record for
Dan Vellinga. Under the heading "Date Employed," the
document shows "10-18-79." The earliest payroll infor-
mation on I hat document of Respondent Estrella is for
June 7, 1982.
After Dan Vellinga was hired by Respondent Estrella
in June 1982, he continued to live in a trailer at the yard
of Respondent Taylor. He had lived there for about a
year while he was employed by Respondent Taylor. Dan
Vellinga has not paid any rent to Respondent Taylor for
staying there.
Ayers became an employee of Respondent Estrella in
June 1982. Prior to that time, Ayers had been an em-
ployee of Respondent Taylor for about a year. He had
worked for Respondent Taylor as a laborer and as an op-
erating engineer. He unsuccessfully attempted to join the
Operating Engineers Union while he was working for
Respondent Taylor. However, benefits were paid for
Ayers by Respondent Taylor to the Operating Engmeers
trust fund.
When Ayers reported to the yard of Respondent
Taylor one morning in June 1982, he had expected to
continue working for Respondent Taylor. (See Tr. 920.)
John Taylor, however, informed Ayers that he was
forming another company, and the name of the other
company was Estrella. (See Tr. 906.) According to
Ayers, John Taylor also told him that "it would be a
non-union company." (See Tr. 913.) John Taylor also
told Ayers that he would be making more money. (See
Tr. 922.) John Taylor asked Ayers if he wanted to work
for the other company, and Ayers replied yes, because it
made no difference to him since he was not in the Union
at the time anyway. Ayers immediately went to work
that same day as a foreman for Respondent Estrella.
Ayers was still employed by Respondent Estrella at the
time of the trial, but he was running equipment at the
Pinion Hills jobsite under Job Superintendent Dan Vel-
linga. (See Tr. 908.)
After Ayers left his employment that morning in June
1982 and went to work for Respondent Estrella, he has
not worked for Respondent Taylor or received any pay
from Respondent Taylor. As far as he knew, employees
of Respondent Taylor did not work at the jobsites where
Ayers worked for Respondent Estrella. Ayers reported
to work for Respondent Estrella at the same yard he had
gone to as an employee of Respondent Taylor. Also, his
working hours basically have been the same. Ayers has
received his paychecks as an employee of Respondent
Estrella from John Taylor or Renee Vellinga at Re-
spondent Taylor's office. A few Months before, however,
he testified that Ayers began to receive his paychecks at
the jobsite rather than at Respondent Taylor's office.
(See Tr. 930.)
One of Ayers' duties after he began working for Re-
spondent Estrella was to place Respondent Estrella's
signs on vehicles. That was the only new work rule that
was told to Ayers after he became an employee of Re-
spondent Estrella. (See Tr. 926.) Ayers also stated at
transcript 910, "Well, we had the magnetic signs. And
we had to put them on the door. Sometimes we'd have a
problem with the wind blowing them off. And some of
the trucks didn't have any at all. So, before we went to
the job, we had to have the signs on there, or nothing."
Ayers further said that some of the equipment had no
identification on it, but if the equipment did have identifi-
cation, he made sure that a magnetic sign with Respond-
ent Estrella's name was placed on it. Once a job was
begun, the equipment was left at the jobsite until the job
was completed.
Introduced into evidence as Respondent Estrella's Ex-
hibit 38 was a copy of that Company's payroll record for
Ayers. Under the heading "Date Employed," the docu-
ment shows "9-8-80." The earliest payroll information
on that document is for June 7, 1982.
John Eberling had been working for Respondent
Taylor when he went to work as an employee of Re-
spondent Estrella in June 1982. About 3 or 4 weeks later,
Katie Taylor offered Eberling the job of foreman be-
cause Holcomb had quit. E,berling returned to work for
Respondent Taylor in July 1982 as a foreman.
Tony Espinoza had been an employee of Respondent
Taylor, but he injured his leg while playing baseball one
weekend. He was off from work for almost 2 months.
John Taylor said at transcript 671, "Then he came to me
and asked if he could go to work for me." John Taylor
then hired Espinoza to work for Respondent Estrella.
Espinoza was still working , for Respondent Estrella at
the time of the trial.
Regarding vacation pay, John Taylor explained at the
trial that Respondent Estrella sets aside vacation pay for
its employees and lets the amounts accumulate for a 1-
year period of time before paying out the vacation
money to employees. Thus, the vacation pay for employ-
ees of Respondent Estrella first began to accumulate in
June 1982 for those who were employed at that time.
The exception to paying out the money prior to June
1983 occurred when an employee quit work or was laid
off. In such cases, the policy was to pay the vacation
money when the employee was given his final check.
Regarding medical insurance, Respondent Estrella ob-
tained such coverage for its employees with the New
York Life Insurance Company about the same time that
Respondent Estrella began its operations in June 1982.
At the time of the trial proceedings, Respondent Estrella
was also in the process of establishing a pension plan for
its employees with the New York Life Insurance Com-
pany.
During the first part of June 1982, Katie Taylor set up
the books for Respondent Estrella, and she continued
training her granddaughter, Renee Vellinga, to perform
bookkeeping duties. Katie Taylor was still training Renee
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Vellinga at the time that Katie Taylor testified at the
trial on May 11, 1983. She stated at transcript 305, "I su-
pervise her." The training primarily takes place in Re-
spondent Taylor's office. Katie Taylor said regarding
Renee Vellinga at transcript 305, "She is in most every
day."
The paychecks for employees of Respondent Taylor
are prepared by Katie Taylor and distributed to employ-
ees at Respondent Taylor's office. Payday is on Monday.
The paychecks for employees of Respondent Estrella are
prepared by Renee Vellinga under the supervision of
Katie Taylor. Those paychecks were distributed on
Mondays at Respondent Taylor's office at that time, until
a few months before the trial. (See Tr. 358-359.)
The telephone for Respondent Estrella can be an-
swered in the office of Respondent Taylor, and the tele-
phone for Respondent Taylor can be answered on an ex-
tension telephone in John Taylor's home, where the
office of Respondent Estrella is located. (See Tr. 316-
317.)
Respondent Estrella does not pay anything to Re-
spondent Taylor for the use of Respondent Taylor's
office concerning work for Respondent Estrella. (See Tr.
366.) Respondent Estrella does not pay Respondent
Taylor anything for Respondent Estrella's use of the
yard to store equipment or to have the employees of Re-
spondent Estrella gather there. (See Tr. 365.)
During June 1982, John Taylor visited two jobsites of
Respondent Taylor. They were the Well 41 jobsite on
90th Street and also the 116th Street jobsite. John Taylor
estimated that he visited the 90th Street jobsite three or
four times after June 1, 1982, and that he visited the
116th Street jobsite twice. Work at the 116th Street job-
site had not begun prior to June 1, 1982, and, therefore,
his first visits to that jobsite occurred after he had re-
signed his position with Respondent Taylor. (See Tr.
637.) Respondent Taylor did not pay John Taylor any-
thing for his visits to Respondent Taylor's jobsites after
June 1, 1982. John Taylor said at the trial that his visits
were made pursuant to an agreement he had made with
Katie Taylor. He stated at transcript 641, "I told her
since I was familiar with those two jobs that I would
help her if she had any problems on them because I was
familiar with them." During his visits to the jobsites of
Respondent Taylor after June 1, 1982, John Taylor had
conversations with people who worked there. He stated
at transcript 664, "Yes, if they had any problems and
asked me. For instance on Well 41 the subcontractor that
built the water tank put it in backwards and it was dis-
covered just about the time that I left so I was trying to
iron that out."
After Respondent Estrella began operations, it estab-
lished accounts with the Stoddard Company and H. C.
Lawsen as suppliers of materials. The Stoddard Compa-
ny supplies the major portion of the materials used by
Respondent Estrella. Respondent Estrella does not have
an account at Lancaster Plumbing.
Introduced into evidence as Respondent Estrella's Ex-
hibits 52 and 53 were copies of General Indemnity
Agreements that John Taylor had executed on June 12,
1982, in order to obtain bonding capacity for Respondent
Estrella. In addition, John Taylor submitted a personal
financial statement to the PIA Holt Agency.
From June 1 to July 12, 1982, Respondent Estrella
used certain equipment belonging to Respondent Taylor.
However, Respondent Estrella did not pay anything for
the use of Respondent Taylor's equipment during that
time period. (See Tr. 345-347 and 633.) Regarding the
work done by Respondent Estrella during that period,
John Taylor said at transcript 686 that Respondent Es-
trella installed, "A few scattered fire hydrants and small
one day jobs, two day jobs, things like that, and then we
did some preparation work for the West Valley job."
The preparation work was surveying and checking out
the plans for the West Valley job.
V. THE EVENTS COMMENCING IN JULY 1982
Beginning on July 15, 1982, Respondent Taylor began
to charge Respondent Estrella for the use of Respondent
Taylor's equipment. There was no written agreement at
that time. Katie Taylor said at transcript 331, "We had
an understanding." According to her, the rental rates
were based on charts distributed by various rental agen-
cies. Many of those charts included an operator of the
equipment, so the rates charged Respondent Estrella
were discounted in the amount of the wages and benefits
of an operator. That was done because Respondent Es-
trella was using Respondent Taylor's equipment without
an operator from Respondent Taylor. A separate charge
was not made at that time for gasoline and diesel fuel,
but later on in September 1982, Respondent Taylor did
bill Respondent Estrella for the use of Respondent Tay-
lor's fuel.
In determining the amount of money for Respondent
Taylor to charge Respondent Estrella for the use of the
equipment, Katie Taylor said at transcript 341, "I re-
ferred to payroll to bill." While the payroll did not re-
flect what equipment was used, Katie Taylor said at
transcript 341, "The payroll didn't reflect that, but I
knew what equipment was used on that job, just knew
it." She did not keep any written records of precisely
what equipment was being used at that time.
Concerning his duties as a business agent of Laborers
Local 300, James Lee Cox visited, on July 8, 1982, a job-
site located in the vicinity of 90th Street East and
Avenue J. That was also known as the Well 41 jobsite.
Cox spoke with three persons that day at the jobsite. He
identified two of those persons as Holcomb and John
Eberling, and he did not know the identity of the third
person.
Cox observed a sign on a boom truck at the jobsite.
The sign had the name "Estrella" on it and a license
nuiriber. Eberling walked over to Cox; said that sign was
not supposed to be there; removed the magnetic signs
from both of the doors of the truck; and threw them
inside the cab of the truck. Cox also noticed that there
was a flatbed truck on the jobsite with the name
"Taylor" on it.
According to Cox, Holcomb told him that either John
Taylor or Respondent Taylor was forming "a non-union
outfit," and that Cox should check out the Holiday
Valley jobsite. (See Tr. 418.) According to Cox, Hol-
WILLIAM N. TAYLOR, INC. 1061
comb said, "We got a job out there that is going to be
done non-union." (See Tr. 418.)
At the trial, Cox said an audit had been conducted of
Respondent Taylor by the Laborers Southern California
trust, and that Respondent Taylor had been found to be
delinquent in the amount of about $27,000, but that
amount had been paid in full by the time of the trial. Cox
acknowledged that he had not filed a grievance under
the collective-bargaining agreement against Respondent
Taylor, nor had he filed an unfair labor practice charge.
On July 14, 1982, Cox once again visited the 90th
Street jobsite. According to Cox, during that visit Hol-
comb informed Cox "that they had started the Estrella
job out at the Holiday Valley job, which was on 255th
and Avenue B or A." (See Tr. 397.) As a result of that
information, Cox got back in his car and drove to the
Holiday Valley jobsite. He arrived there around 10 or
10:30 a.m. on July 14, 1981
Cox spoke with Dan Vellinga at the Holiday Valley
jobsite that morning. Dan Vellinga told Cox that he was
working for Respondent Estrella and, according to Cox,
Dan Vellinga told him "it was none of my business."
(See Tr. 428.) Cox asked to see Dan Vellinga's union
card, and he also checked to see if the other employees
there had union cards. Cox discovered that all the per-
sons there, except for Dan Vellinga, were not union
members. Cox then requested that Dan Vellinga remove
the nonunion employees from the jobsite. Dan Vellinga
then contacted Katie Taylor by radio. Cox overheard
Katie Taylor inform Dan Vellinga that John Taylor was
on his way to the jobsite.
Cox next talked with John Nelson, a civil engineer
with Ludwig Engineering, and he asked Nelson who had
the contract. Nelson told Cox that the contract had been
taken out by William Taylor and Stevens Company.
Introduced into evidence as General Counsel's Exhibit
7 were 11 color photographs that Cox had taken on July
14, 1982, at the Holiday Valley jobsite. According to
Cox, the vehicle depicted in his photograph with a sign
of Respondent Estrella on the door was the only vehicle
with a Respondent Estrella sign on the Holiday Valley
jobsite on that occasion. The other vehicles depicted in
the photographs had a Respondent Taylor sign on the
door.
On the arrival of John Taylor at the jobsite on that oc-
casion, Cox told him that there were nonunion personnel
on the jobsite. Cox said that Respondent Taylor was in
violation of the labor agreement, and Cox requested that
John Taylor remove the men from the jobsite. Accord-
ing to Cox, John Taylor told him, "Well, I have subbed
it out to Estrella." (See Tr. 399.) Cox replied that he
would file against Respondent Taylor because he could
not subcontract to a nonsignatory contractor under the
terms of the collective-bargaining agreement with Labor-
ers Local 300. According to Cox, John Taylor "just re-
peated again that he could sub out to anybody that he
wanted to." (See Tr. 399.) Cox said that he and John
Taylor had what Cox characterized as being "a heated
discussion," during which John Taylor "called me a
leech and threatened to bury me." (See Tr. 410 and 439.)
Following his conversation with John Taylor at the
Holiday Valley jobsite, Cox got into his car and drove to
the Stevens Company office. Cox spoke with Harold Ste-
vens and inquired whether he was aware that Stevens
was engaged in a joint venture with Respondent Taylor.
Stevens replied that he was not aware of the job, but
that his bonding company had contacted him 3 or 4
months earlier and asked if Stevens wanted to go on the
bond with Respondent Taylor. Stevens agreed to do so
because Stevens had made a profit in the past in a joint
venture with Respondent Taylor. Cox took the position
with Stevens that Stevens could be held responsible and
that Stevens was liable because Stevens' name was on
the contract with the Water District; that nonunion
people were working at the jobsite; and that the work
had been subcontracted to Respondent Estrella, which
Cox urged was in violation of the Laborers collective-
bargaining agreement. While Cox was present, Stevens
attempted to contact John Taylor by telephone, but John
Taylor was not in his office at that time. Stevens then
telephoned his bonding company, which notified Stevens
that his company had entered into a joint venture bond
with Respondent Taylor. According to Cox, "Harold
Stevens assured me that he would get the situation taken
care of or pull his bonding out of the jobsite." (See Tr.
412.)
A couple of days after Cox's visit to the Holiday
Valley jobsite, Adams telephoned Cox and asked what
he had found out. Cox told Adams that the job was a
joint venture between Respondent Taylor and Stevens
Company, and that Cox had talked with Stevens and
Stevens was "either going to get Estrella and the non-
union people off the job or pull the bond." (See Tr. 446.)
C,ox did not recall whether he told Adams about his
taking the photographs that were introduced into evi-
dence at the trial as General Counsel's Exhibit 7. Adams
expressed his opinion to Cox that Respondent Estrella
was the same as Respondent Taylor, and Cox agreed
with that opinion. Adams also asked Cox about Dan Vel-
linga. Cox replied that Dan Vellinga was a member of
Laborers Local 300; that he was in good standing; and
that Dan Vellinga had 1 more month before his status
ran out.
Also, a couple of days after Cox's visit to the Holiday
Valley jobsite, Cox again spoke with Nelson who, ac-
cording to Cox, "told me that William N. Taylor was
trying to get it switched over to Estrella." (See Tr. 437.)
About a week after his visit to the Holiday Valley job-
site, John Taylor telephoned Cox and asked him to come
by his office. According to Cox, John Taylor told him
he wanted to talk with him "about the attitude problem
we had out on Estrella's job. He wanted to apologize."
(See Tr. 438.) Cox met in Respondent Taylor's office
with John Taylor, Katie Taylor, and Renee Vellinga.
Cox testified at transcript 440, "He wanted me to leave
Estrella alone, or leave that particular job alone. And I
told him I would, as long as he would keep his non-
union people away from Taylor and as long as the con-
tract was switched to Estrella." At the trial, Cox said he
had told John Taylor the foregoing at the direction of
the Southern California Trust for Laborers, but Cox did
not reveal that fact to John Taylor at the time of their
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conversation "because we were in the process of audit-
ing their books at the time." (See Tr. 440.)
A short time later, Cox discovered that a nonunion
employee named Tony Hall was employed at a job of
Respondent Taylor in Quartz Hill. Cox telephoned John
Taylor regarding Hall and, according to Cox, "he as-
sured me the man would be removed." (See Tr. 441.)
According to Cox, Hall at that time had not yet gone to
work for Respondent Estrella. Cox explained at tran-
script 442, "At that time, Tony Hall told me that he was
going to go to work for Estrella, that John was keeping
him busy at this time."
On July 1, 1982, Mickey Adams was assigned as a
business representative to the Lancaster, California office
of the International Union of Operating Engineers. The
geographical area covered by the Union's Lancaster
office includes the northern part of Los Angeles County;
the eastern part of Kern County; and all of Indio County
and Mono County.
On July 14, 1982, Adams visited a jobsite in Mojave,
California, where a K-Mart shopping center was being
built. Adams spoke with the general contractor, who in-
formed him of the names of the subcontractors on the
project. One of the subcontractors was identified as
being Respondent Taylor.
Adams then spoke with a person who was operating a
backhoe, and Adams learned that the person was a labor-
er and not a member of the Charging Party Union.
Adams next asked who the foreman was, and the person
identified himself as being the foreman for Respondent
Taylor. Adams said, "I asked him to correct the viola-
tion, and they called the dispatch hall later that morning
and requested him in." (See Tr. 17.) The person who
was requested by name to be dispatched by the Charging
Party Union to work for Respondent Taylor was Kent
Day. (See Tr. 31-32.)
The next day Adams returned to the K-Mart jobsite.
Jack Forrest, a retired operating engineer, rode in the
car with Adams, but Forrest did not go onto the jobsite.
(See Tr. 69-71.) Kent Day, a member of the Charging
Party Union, was working as the backhoe operator on
that occasion. Adams spoke with Day for a minute, and
then Adams again spoke with the person who had identi-
fied himself as the foreman of Respondent Taylor. That
person told Adams that the violation had been corrected.
Adams then asked him if they had any other jobs.
Adams testified, in part, at transcript 18, "He told me
that they had a job in Holiday Valley. . . ." Adams then
left the K-Mart jobsite and proceeded to the Holiday
jobsite.
At the Holiday Valley jobsite, Adams spoke with
some employees, but he did not recall their names at the
time of the trial. Adams did recall speaking with John
Nelson. Adams asked Nelson to whom the contract was
awarded, and Nelson told him to Respondent Taylor.
Adams said at transcript 19, "He informed me that Wil-
liam N. Taylor had subcontracted to Estrella." Adams
noticed that the magnetic signs on the sides of the pickup
trucks at the jobsite had "Estrella Construction" on
them.
In July 1982, Dan Vellinga was working as a foreman
for Respondent Estrella at the Holiday Valley jobsite. At
that location, he had a conversation with Adams, who
introduced himself to Dan Vellinga at that time. Adams
asked if there were any union operators on the job. Dan
Vellinga stated at transcript 940, "And I said, no, we are
a non-union company." Adams inquired as to the name
of the contractor who was working on the job, and Dan
Vellinga told him that it was Respondent Estrella. Dan
Vellinga said at transcript 940-941, "He asked me how
can John get away with swapping his employees back
and forth. And I said he doesn't." (See also his testimony
on this subject at Tr. 951.)
According to Dan Vellinga, employees of Respondent
Taylor did not perform work on the West Valley Water
District job at Holiday Valley. He also said that magnet-
ic signs identifying Respondent Estrella were placed on
the doors of vehicles, and that any signs that were blown
off were replaced.
On July 20, 1982, Adams and Apprenticeship Coordi-
nator Raymond Morris went to the Holiday Valley job-
site. During that visit, Adams again spoke with Nelson.
Adams asked to see the contract. Nelson showed it to
him. Adams noticed that the contract was let to William
N. Taylor, Inc. and Stevens Company as a joint venture.
Introduced into evidence as General Counsel's Exhibit
4 were five color photographs that were taken by Ray-
mond Morris on July 20, 1982, at the Holiday Valley
jobsite. Three of those photographs show Respondent
E,strella's name on the sides of trucks.
In July 1982, Kent Day had three conversations with
John Taylor before he returned to work for Respondent
Taylor on July 15, 1982. Day had worked for Respond-
ent Taylor on previous occasions over the past 8 or 10
years. The reason that Day approached John Taylor was
that Day was being laid off from work at Lancaster
Ford. Day had not performed any operating engineer's
work at Lancaster Ford, nor had he done such work in
his earlier job for his father. Day was inactive in the
Charging Party Union at the time. Day did not ask for a
job in his first conversation with John Taylor in July
1982.
About 3 or 4 days before July 15, 1982, Day went to
Respondent Taylor's yard, where he spoke with John
Taylor. Day stated at transcript 203, "I told him I'd
heard that Howard had left, and I asked him if he
needed an operator." John Taylor responded that he did
not have an operator. (The second negative in L. 3 at
Tr. 204 appears to be an error in transcription in reflect-
ing "he didn't need one." That appears to be so in light
of the fact that Respondent Taylor employed Day 3 or 4
days later.) Day also recalled at transcript 224, "He said
he was going to start a non-union company. He said he
was going to have to fade William N. Taylor out. And
asked me if I'd want to go to work for Estrella." Day
added at transcript 225, "He told me that the benefits
and things would be just about like the union. He'd have
insurance coverage for me and all that . . . William N.
Taylor was having troubles, and he was going to start
the Estrella company so that he could bid non-union and
keep up with the rest of the contractors. And get some
work in." After his recollection had been refreshed a
second time, Day also recalled at transcript 230, "He
WILLIAM N. TAYLOR, INC. 1063
asked if I wanted to go to work for Estrella, get out of
the union." Day told John Taylor that he did not want
to work for Respondent Estrella. (See Tr. 258-259.)
On the day before he resumed working for Respond-
ent Taylor, Day also went to Respondent Taylor's office,
where he filled out a tax withholding form. John Taylor
and Katie Taylor were present in the office at that time.
John Taylor told Day to come to work the next day.
Day also had a conversation with Union Representa-
five Adams that day when he obtained a referral slip at
the union hiring hall. Day informed Adams that he was
going to go to work for Respondent Taylor. (See Tr.
245.) According to Day, Respondent Taylor had tele-
phoned the union hall and specifically requested that he
be referred. (See Tr. 260.)
On the following day, Day reported to work for Re-
spondent Taylor at Respondent Taylor's yard. Accord-
ing to Day, John Taylor was in the yard in the mornings
during the period of Day's employment from June - 15,
1982, until mid-September 1982, when he voluntarily
ended his employment with Respondent Taylor. During
that period of time, John Taylor gave some instructions
directly to Day regarding his work for Respondent
Taylor. In addition, Day observed that John Taylor
spoke with Foreman John Eberling. In July 1982, Eberl-
ing had become the foreman for Respondent Taylor. He
still held that position at the time of the trial. Eberling
was the one who gave instructions to Day at the jobsites.
In the early part of July 1982, Michael James McLain
had a conversation with John Taylor. McLain asked if
John Taylor was hiring, and he replied that he might be
doing so in the future. John Taylor also told McLain
that if he was hired, he would probably go to the West
Valley or Holiday Valley job. According to McLain,
"He just told me that he was going to go to Estrella;
that he couldn't afford to compete with the union people
and he was going to try to get out of the union." (See
Tr. 749.)
In a subsequent conversation between John Taylor and
McLain, John Taylor again told McLain that, if he went
to work, he would be in the West Valley. John Taylor
further told McLain that he would start out at $8 an
hour, and that John Taylor would make it worthwhile
for McLain thereafter. McLain replied that he really did
not want to go to work for $8 an hour. They then came
to an agreement whereby McLain would be given a $1-
an-hour raise after his first week, and then they would
see what happened in the future. John Taylor told
McLain that he was going to start everybody at the
same wage rate.
McLain began working for Respondent Estrella in
July 1982 at $8 an hour, plus insurance coverage and va-
cation pay. He continued to work for that Company
until May 9, 1983. McLain ran a trencher and a backhoe.
At first, he reported to Dan Vellinga, and later on he re-
ported to Ayers. McLain began his employment with
Respondent Estrella by working at the Holiday Valley
jobsite. After 1 week, McLain received $9 an hour, and
4 or 5 weeks later, McLain received $17.31 an hour,
which he continued to receive thereafter. At a later time,
McLain also received a check for retroactive pa', which
meant that his pay from the beginning of his employment
was brought up to $17.31 an hour. (See Tr. 754-755.)
McLain received a paycheck from Respondent Es-
trella every Monday evening. He said it was given to
him "at Mrs. Taylor's house, the office." (See Tr. 742.)
On a couple of occasions, he received his paycheck from
Renee Vellinga, but most of the time he got his pay-
check from Katie Taylor. On the one or two occasions
that McLain telephoned the office regarding insurance
matters, he spoke with Katie Taylor.
While McLain was employed by Respondent Estrella,
he reported to work in the mornings at the yard, also
used by employees of Respondent Taylor. According to
McLain, all the equipment used by Respondent Estrella
came out of that yard. After a project was begun, the
equipment usually was left at the jobsite, except for the
trucks.
Sometime after the contract had been awarded by the
West Valley Water District to Respondent Taylor and
the Stevens Company, John Taylor sought to have the
contract changed to Respondent Estrella. He first spoke
with Nelson of Ludwig Engineering regarding that
matter. John Taylor said at transcript 497, "I told him
that there had been a mistake made in the issuance of the
bond originally when we bid on it and that the job
should be in the name of Estrella and the initial contact
with Mr. Nelson was to determine what would be the
best way to remedy the error." During cross-examination
by the attorney for the Charging Party, Nelson testified
at transcript 573-575 regarding his conversation with
John Taylor:
Q. . . . did you ask Mr. Taylor anything about
Estrella in that conversation?
A. I am sore I would ask why he wanted to
change it over,
Q. You did ask him
A. I am sure I would ask.
Q. And what did he say?
A. That he wanted to set up, you know, where
they would have a union and a non-union so they
would have actually a duplicate company because
at the time bids were going pretty doggone cheap
so it was the only way he could compete.
Q. Okay, so he did mention that the new compa-
ny, Estrella, was going to be non-union?
A. I believe so, yes.
Q. Okay. And did he mention that Taylor, Inc.
was signatory to one or more union contracts?
A. I don't recall him mentioning that but I natu-
rally would have assumed that since the union rep-
resentatives were out there.
Q. Mr. Taylor said something, did he not, to the
effect that he was starting a non-union company in
order to be more competitive?
A. At the time, and I don't know whether he was
referring to starting it, but yes, he mentioned some-
thing about having a parallel company and at the
time there just weren't too many jobs going to it.
Everybody was bidding super-cheap.
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Q. So people were bidding super-cheap; that is
what Mr. Taylor told you?
A. He didn't say that. That is what'I know. The
bids were cheap bids, very good bids, from our
standpoint anyway, the owner' s standpoint.
As indicated previously, Gloria Meyer is the secretary
and auditor for the West Valley County Water District.
She attended a regular monthly meeting of the board of
directors of that water district, which was held on July
22, 1982.
Meyer recalled at the trial that John Nelson of
Ludwig Engineering told the board of directors at the
meeting on July 22, 1982, that "there had been some sort
of confusion or mix up and that the contract should have
been in the Estrella Construction Company rather than
Taylor-Stevens." (See Tr. 467.) Members of the board of
directors inquired whether "there were going to be any
problems labor-wise." (See Tr. 467.) Nelson assured
them that everything had been taken care of that the
contract had been made out incorrectly; and that the
contract should have been in Estrella's name. Nelson said
the cost figures for the contract would be the same.
Meyer also recalled that Nelson told the board of direc-
tors regarding the two companies, "They were both
owned by the same man." (See Tr. 468.) Meyer further
testified during cross-examination, "I can't remember
what he said verbatim, but yes, I would say that Mr.
Nelson did say yes, that Mr. Taylor had two compa-
nies." (See Tr. 475.) Meyer also said that an attorney for
the water district was present at the meeting, and he in-
dicated that it sounded okay to him She said that the
board of directors approved the change in the contract
to Respondent Estrella's name, but no documents were
submitted that evening at the meeting regarding the
change in the names on the contract.
Among the duties of Meyer as the secretary and audi-
tor for the West Valley County Water District is the
task of taking the minutes of meetings of the board of di-
rectors. Introduced into evidence as General Counsel's
Exhibit 5 was a copy of the minutes for the meeting held
on July 22, 1982. In part, those minutes state:
Construction contract name change. Mr. Nelson
explained that there had been an error by the Bond-
ing Company in the contract to Taylor. It should
have been Estrella. The companies are owned by
the same person, but it was the non-union firm that
was to be under Bonding. A new surety bond had
been made and approval had been received. Direc-
tor Hunter moved, seconded by Director Brown to
approve the change. Carried unanimously.
Introduced into evidence as General Counsel's Exhibit
6 was a copy of the contract between the West Valley
County Water District and Respondent Estrella. The
document indicates that it was signed by John Taylor on
July 22, 1982, and by William R. Barnes, as chairman of
the board of directors of the water district, on August
26, 1982. Meyer gave her opinion at the trial that there
was no significance in the delay in the signing of the
contract on behalf of the water district until the next
monthly meeting of the board of directors. She based
that opinion on the fact that Nelson could not locate a
copy of the document at the meeting on July 22, 1982.
VI. THE EVENTS COMMENCING IN AUGUST 1982
Around the first of August 1982, or possibly the latter
part of July 1982, Adams met Holcomb at the B-1
bomber project. During one of his conversations with
Holcomb, Adams learned that Holcomb previously had
worked as a foreman for Respondent Taylor. Adams tes-
tified at transcript 75, "He said that William N. Taylor
had started a non-union company, Estrella Construction,
and that he was a foreman, and that John Taylor had
told him to tell his three laborers that they could remain
in the employ of Estrella if they dropped their union
membership, and that he could do the same. He said that
he informed the employees of that, and then left the em-
ployment of William N. Taylor—that he wasn't going to
work non-union."
At the trial, Holcomb expressed his belief that Adams
had misunderstood the conversation between Holcomb
and Adams as to what John Taylor had told Holcomb.
(See Tr. 177-180.) According to Holcomb, John Taylor
did not instruct him to give the laborers an ultimatum
that they had to discontinue their membership in the La-
borers Union and go to work for Respondent Estrella, or
go to work somewhere else. Holcomb said that John
Taylor asked him to inform the laborers that Respondent
Estrella was being created and, if they wanted to do so,
they could go to work for that Company. Holcomb also
said at transcript 187, "To the best of my recollection, I
told Mr. Adams that Mr. Taylor had informed me he
was starting a non-union company, and that the , men
could either work for Estrella Company, or go work
somewhere else."
In August 1982, Katie Taylor telephoned Adams, and
she asked if he could take a member in the Charging
Party Union for her. Adams thought at the trial that the
person's name was Dan Vellinga, but he was not certain,
and he had no present recollection at the time of the
trial. Adams explained to Katie Taylor that he could not
take the person into the Union, but the person could sign
the C list, and after the persons on the A list and the B
list were dispatched, he would be eligible for dispatch.
Sometime in August 1982, Adams visited a jobsite
where Respondent Taylor was working on 116th Street,
in the vicinity of Pear Blossom. He spoke with a fore-
man of Respondent Taylor there about correcting a con-
tract violation and having an operating engineer dis-
patched to operate the equipment. Kent Day was then
dispatched by the Union to do that work. Day told
Adams that an NLRB agent had come out to question
John Taylor. Day told Adams that John Taylor was
upset with Day, and that John Taylor thought Day had
been talking to the NLRB agent and to the Union.
Adams also visited a jobsite on 90th Street East, where
Respondent Taylor was working. Adams acknowledged
at the trial that he saw no employees of Respondent Es-
trella, nor any equipment with Respondent Estrella's
name on it, at either the 90th Street or 116th Street job-
sites at the time of his visits. Adams also acknowledged
WILLIAM N. TAYLOR, INC. 1065
at the trial that the same was true regarding a jobsite he
visited later at Cerrocasco College.
Introduced into evidence as Respondent Estrella's Ex-
hibit 29 was a copy of a letter dated August 17, 1982,
from Respondent Estrella on its letterhead stationery to
R. M. McCullough. The letter was written by Katie
Taylor, but she believed that she and John Taylor had
discussed it, although she did not recall whether he saw
the letter before she sent it. Katie Taylor has some of
Respondent Estrella's stationery in Respondent Taylor's
office.
The letter makes reference to a bid that had been sent
to McCullough on March 8, 1982, under the name of Re-
spondent Taylor. The letter also states, in part, "As dis-
cussed with John, the contract is to be in the name of
Estrella Construction Company." Underneath Respond-
ent Estrella's typewritten name is Katie Taylor's signa-
ture and typewritten name.
According to Katie Taylor, the work mentioned in the
letter is different from the job for the West Valley
County Water District. The customer had asked Re-
spondent Taylor to make a bid for the work. Katie
Taylor prepared a bid, and the contract was awarded to
Respondent Taylor. Subsequently, Katie Taylor asked
John Taylor to have Respondent Estrella perform the
work. She said at the trial that she did so because the
customer was in a hurry to get the work done, and Re-
spondent Taylor did not have the personnel to perform
the work. At the trial, she acknowledged that Respond-
ent Taylor did not attempt to obtain additional workers
through the Union's hiring hall for that job. She said at
transcript 374, "It was a small job and it wasn't worth-
while." At the time Respondent Taylor had one crew,
but they were working on another job. The document
indicates that the total amount of the bid was $12,750.
(See R. Estrella's Exh. 29 and Tr. 392.)
One day in late August 1982, Day was in Respondent
Taylor's yard. As indicated earlier, Day was an employ-
ee of Respondent Taylor and not an employee of Re-
spondent Estrella. John Taylor approached Day on that
occasion and inquired why, on the previous workday, he
had been sitting in the shade under a truck. Day told
John Taylor that his work had been completed, and
there had not been any work for the bacldioe or the
crane. According to Day, John Taylor told him some-
thing to the effect that there was a lot of work to be
done, and Day could be helping to do it. Day also said
at transcript 213, "He said he couldn't afford to pay me
operator's wages for doing nothing."
A couple of days later, John Taylor spoke with Day
again in the yard area. Day stated at transcript 214, "I
think he was just saying I should get up and work with
the rest of them."
Among the facts regarding Respondent Taylor on
which the parties were able to stipulate were those set
forth in paragraphs 25 and 26 of Joint Exhibit 1, which
are applicable to this time period:
25. On August 24, 1982, William N. Taylor, Inc.
submitted an application for the replacement of
John R. Taylor as registered responsible managing
officer of William N. Taylor, Inc. by the corpora-
tion's president Katie S. Taylor. (General Counsel
reserves the right to examine Mrs. Taylor regarding
application and its contents.)
26, On August 24, 1982, an application was sub-
mitted by Katie S. Taylor to the State Contractor's
License Board for approval of her as licensed re-
sponsible officer.
VII. THE EVENTS COMMENCING IN SEPTEMBER 1982
Among the facts to which the parties stipulated were
those in paragraphs 27, 32, 33, and 34 of Joint Exhibit 1,
which are applicable to this time period.
27. Katie S. Taylor, President of William N.
Taylor, Inc. since September 9, 1982, has been the
registered responsible managing officer of William
N. Taylor, Inc. for the State Contractor's Licenses
in Classes C-12, C-34 and Class A.
32. The Articles of Incorporation for Estrella
Construction Company, Inc. was filed and en-
dorsed, Identification No. 1122539, by the Office of
the Secretary of State for the State of California on
September 13, 1982.
33.Estrella Construction Company, Inc. is a Cali-
fornia corporation in good standing with the Office
of the Secretary of State of the State of California.
34.On September 30, 1982, John Robert Taylor
was elected as President and Dolores Taylor was
elected as Secretary, Treasurer and Chief Financial
Officer for Estrella Construction Company, Inc.
During the first part of September 1982, John Taylor
and Day had a brief conversation in the yard area. Day
stated at transcript 221, "Well, he'd ask me that if I
wasn't going to work along with the rest of the guys,
that I could go pick up my check." Day thought about
that and then replied, "Well, I'll stay here for awhile."
(See Tr. 221-222.)
John Taylor and Day had still another conversation
one afternoon in the yard area. John Taylor asked Day
what he was trying to do. Day replied that he did not
know what John Taylor was talking about. Day further
said at transcript 223, "He asked me if I'd been going to
the union. And I told him I hadn't. And he said some-
body had been taking pictures of the Estrella trucks with
John Eberling in them."
Introduced into evidence as Respondent Taylor's Ex-
hibit 398 was a copy of a written agreement dated Sep-
tember 1, 1982, between Respondent Taylor and Re-
spondent Estrella. The agreement specifies the monthly
rental rate for certain equipment and vehicles, and that
gasoline and diesel fuel will be charged for on a monthly
basis. Katie Taylor said that the rental agreement was
negotiated between herself and John Taylor. The flat
monthly rental rates were the same ones as under their
verbal agreement, but the written agreement provided
for the separate and additional billing for gasoline and
diesel fuel.
In addition to the equipment described in Respondent
Taylor's Exhibit 398, Respondent Estrella has also rented
other equipment belonging to Respondent Taylor. Those
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
additional items include other pickup trucks, generators,
and air compressors. It is a common situation for Re-
spondent Estrella to rent such equipment which is not
listed on Respondent Taylor's Exhibit 398. (See Tr. 351-
352.) Those items that are not listed on the written
agreement between Respondent Taylor and Respondent
Estrella are rented pursuant to oral agreements reached
between Katie Taylor and John Taylor. For example,
Respondent Taylor's Exhibit 402 shows that a compres-
sor was rented by Respondent Estrella from Respondent
Taylor for $750 a month for the period from September
11 to October 11, 1982. Katie Taylor had prepared that
invoice largely from her memory of where the equip-
ment was during that time period.
According to Katie Taylor, charts from rental compa-
nies were the basis for arriving at the $750-a-month
figure. She acknowledged at the trial that Respondent
Taylor receives new rental charts from time to time, and
that sometimes the rental rates increase and sometimes
decrease. However, the rental rates agreed on between
Respondent Taylor and Respondent Estrella have not
changed since the initial oral agreement was reached in
mid-1982. (See Tr. 354.)
Respondent Taylor's Exhibit 402 also shows that Re-
spondent Taylor retroactively billed Respondent Estrella
for gasoline and diesel fuel usage for a 3-month period in
the amounts of $4,711.99 and $863.08, respectively. Katie
Taylor stated at transcript 357, "I just reviewed our
records and decided it should be done." After reviewing
Respondent Taylor's cost records, Katie Taylor request-
ed of John Taylor that Respondent Estrella pay for such
fuel already used. The figures for gasoline and diesel fuel
are based on an average of fuel consumption for various
pieces of equipment as reflected on a chart which Katie
Taylor prepared based on her general knowledge. (See
Tr. 357-358.)
At the trial, John Taylor acknowledged that he was
aware that the Charging Party Union had filed an unfair
labor practice charge prior to the time in September
1982 that the written rental agreement was executed.
(See Tr. 803-806 and 812-813, and C.P. Exh. 7.)
VIII. OTHER EVENTS
Introduced into evidence as Charging Party's Exhibit
1 were copies of the monthly cash disbursements journal
of Respondent Estrella from June 1982 through March
1983. All of the handwriting was made by Katie Taylor.
At the time that she testified at the trial on May 13,
1983, Katie Taylor said that the cash disbursements jour-
nal of Respondent Estrella had been her responsibility,
but she was beginning to have Renee Vellinga write
checks at that time.
Katie Taylor said that she works in the office of Re-
spondent Taylor, but not in the office of Respondent Es-
trella. She explained regarding Renee Vellinga at tran-
script 874, "She usually brings them over to me when
she wants some counseling or there has to be something
done."
Katie Taylor acknowledged that there were certain
periodic bills of Respondent Estrella that she paid auto-
matically without consulting with John Taylor. At other
times John Taylor has told Renee Vellinga that certain
bills were to be paid. Katie Taylor explained at transcript
875, "then she'll bring it to me because she's not in the
habit of writing checks." Regarding John Taylor's visits
to Respondent Taylor's office since June 1, 1982, Katie
Taylor said at transcript 875, "he probably checks in
there every day at some time or other."
Charging Party's Exhibit 1 for January 1983 shows a
cash disbursement in the amount of $52,000 from Re-
spondent Estrella to Respondent Taylor. Katie Taylor
explained the breakdown as $31,192.74 for accounts pay-
able; $17,000 paid to Respondent Taylor on a loan;
$3,098.26 paid to Respondent Taylor for rental of equip-
ment; and $709 for automobile insurance. Regarding the
insurance payment, she said at transcript 876, "Because
on the jeep that John Taylor leased, that was run
through the books of William N. Taylor at first, and then
it was transferred out because it had no part of William
N. Taylor." She also said at transcript 878, "The $3098
that was paid by [Respondent] Taylor on this jeep that
should have been paid by John [Taylor]." She also said
that Respondent Taylor and Respondent Estrella used
the same insurance agency for certain things.
The payments by Respondent Estrella to Respondent
Taylor on accounts payable on the loan and leases were
not made regularly every month. Katie Taylor said at
transcript 878, "When his cash flow warranted payments,
why he instructed me to pay the bills."
An entry on Charging Party's Exhibit 1 for December
1982 shows a payment of $1500 by Respondent Estrella
to Katie Taylor. At the trial, Katie Taylor explained that
she indirectly had paid certain legal fees on behalf of Re-
spondent Taylor to the attorney who represented both
Respondent Taylor and Respondent Estrella in this pro-
ceeding. The amount reflected in the cash disbursements
journal was to reimburse Katie Taylor for Respondent
Estrella's share of the legal fees.
Entries on Charging Party's Exhibit 1 for August 1982
show a cash disbursement by Respondent Estrella to Re-
spondent Taylor in the amount of $62,000. Katie Taylor.
said that $11,000 of that amount was payment by Re-
spondent Estrella to Respondent Taylor for a loan;
$35,445 of the amount was a loan made by Respondent
Estrella to Respondent Taylor; and $15,555 of that
amount was a payment by Respondent Estrella to Re-
spondent Taylor for the rental of equipment.
Introduced into evidence as Charging Party's Exhibit
2 were copies of the time and payroll records of Re-
spondent Estrella from June 6, 1982, through March 27,
1983. The handwriting on those documents was made by
Renee Vellinga, except for the documents dated Decem-
ber 26, 1982; January 2, 1983; part of January 16, 1983;
January 30, 1983; February 6, 1983; February 13, 1983;
and March 6, 1983. Katie Taylor explained that Renee
Vellinga was on vacation during Christmas, so Katie
Taylor prepared those two payrolls. Regarding the Janu-
ary 16, 1983 payroll, Katie Taylor said at transcript 867,
"The only explanation I can give is she must have been
late that morning." As a result, Katie Taylor began the
preparation of the payroll and Renee Vellinga completed
it after she arrived at Respondent Taylor's office. Re-
garding the preparation of the January 30 and February
WILLIAM N. TAYLOR, INC. 1067
6, 1983 payroll for Respondent Estrella, Katie Taylor be-
lieved that Renee Vellinga was on vacation in Arizona at
that time. Katie Taylor said at transcript 868, "Yes, I did
because I was supervising her anyway, and it had to be
done." Katie Taylor acknowledged at the trial that she
was not compensated in any way by Respondent Estrella
for her work.
Regarding her preparation of the payroll for February
13, 1983, Katie Taylor did not recall when Renee Vel-
linga had returned from her vacation, but she was certain
that Renee Vellinga had returned by the time Katie
Taylor prepared the March 6, 1983 payroll. Katie Taylor
said at transcript 870, "The only explanation I can give is
that for some reason she was—she didn't come to work
that day or something and the payroll had to go out."
Introduced into evidence as Charging Party's Exhibit
3 were copies of the general ledger for Respondent Es-
trella. Katie Taylor said that she did the posting into the
general ledger for Respondent Estrella up to March
1983, when she told Renee Vellinga, "Now it's time that
you started doing this." (See Tr. 871.) At the time that
Katie Taylor testified at the trial on May 13, 1983, the
ledger for April 1983 had not been closed.
Introduced into evidence as Charging Party's Exhibit
5 were copies of the time and payroll records of Re-
spondent Taylor from July 3, 1982, through March 27,
1983. Katie Taylor's handwriting appears on the docu-
ments, except for May 16 and 30 and June 6, 1982, when
Renee Vellinga's handwriting appears on the time and
payroll records of Respondent Taylor. Katie Taylor said
that Renee Vellinga was on the payroll of Respondent
Taylor for about 1 month up to May 30, 1982. She ac-
knowledged that Renee Vellinga had prepared the pay-
roll of Respondent Taylor for June 6, 1982, while Renee
Vellinga was employed by Respondent Estrella. Katie
Taylor said at transcript 873, "That is true, but she
needed the experience in payroll." Katie Taylor ac-
knowledged that Respondent Taylor did not compensate
Renee Vellinga for her preparation of Respondent Tay-
lor's June 6, 1982 payroll.
About 5 or 6 months before May 1983, Dan Vellinga
began to keep records regarding the use of Respondent
Taylor's equipment by Respondent Estrella. Dan Vel-
linga turned that information over on a weekly basis to
John Taylor, who gave the information to Katie Taylor
to compute the amount of the rental charges.
Charles J. Beck has been a civil engineer with Ante-
lope Valley Engineering for about the past 10 years.
Prior to that time Beck had worked for several different
contractors and as a bridge engineer for the State of
California. In the course of his engineering work for An-
telope Valley Engineering, Beck has designed water sys-
tems,and sewer systems for private developers of subdi-
visions and water lines for the County of Los Angeles.
During the preplanning phase of some projects, Beck has
sought technical advice from many experienced contrac-
tors as to the most practical or the most economical way
to design an interconnection into an existing water
system. One of those contractors that Beck has consulted
periodically over the past 10 years is Respondent Taylor.
Beck had spoken by telephone with William N. Taylor,
Katie Taylor, and John Taylor. However, his contacts
with Katie Taylor primarily have occurred since the
death of her husband. As to the number of times he had
talked with Katie Taylor since the death of her husband,
Beck said, "I would say that we would ask a question on
the average of one every two or three weeks." (See Tr.
988.) In his opinion, Beck received satisfactory answers
that assisted him in preparing his plans for developers,
and that indicated to him that Katie Taylor had "techni-
cal and practical" knowledge of how the construction
was supposed to be done. (See Tr. 986.) During cross-
examination, Beck recalled that Katie Taylor did not
always give him an immediate answer. He said, "I'm sure
she has said, she didn't know the answer off the bat, that
she would check." (See Tr. 989.) On such an occasion,
Beck did not know whether the subsequent answer he
received came from the personal knowledge of Katie
Taylor or from someone with whom she had consulted
Sometime during 1982, Beck became aware of the ex-
istence of Respondent Estrella. Beck's recollection was
that John Taylor had told him that he owned Estrella
Construction Company, but Beck had no personal
knowledge of the ownership of Respondent Estrella or
Respondent Taylor. Based on the fact that Respondent
Estrella had been the contractor on the contracts, Beck
said there was general knowledge in the Lancaster area
of the existence of Respondent Estrella. Beck is the
president of the local chapter of the Building Industry
Association of California, and he believed that Respond-
ent Estrella was a member of that association.
At some point in time, Respondent Estrella replaced
the magnetic signs with that Company's name on it with
signs that stuck or adhered to the truck doors. McLain
explained that the magnetic signs had sometimes been
blown off the truck doors. McLain received instructions
that the signs with Respondent Estrella's name were to
be placed on the trucks.
In March 1983, Adams visited a jobsite where Re-
spondent Taylor was working. It is known as the Ridge-
crest job at Cerrocasco College. The Charging Party
Union was picketing another contractor at that location.
Adams asked a foreman of Respondent Taylor to correct
a contract violation and have an operating engineer dis-
patched to operate the equipment there. Adams said Re-
spondent Taylor then utilized an owner-operator.
At the trial, Adams acknowledged that he had never
contacted either Respondent Taylor or Respondent Es-
trella regarding the operations of Respondent Estrella
and the particular jobsites where Respondent Estrella
was working. He also acknowledged that he had not re-
quested that a meeting be held between him and Re-
spondent Estrella or Respondent Taylor.
Around March 1983, McLain picked up supplies for
Respondent Estrella at Lancaster Plumbing on two or
three occasions. Foreman Ayers is the one who told
McLain to pick up the supplies there. When McLain
picked up the supplies, he asked for a receipt for Re-
spondent Estrella. He was told that they did not have a
charge account under Respondent Estrella's name, but it
was under Respondent Taylor's name. (See Tr. 769.)
McLain said that the company name on the receipt for
supplies was "William Taylor." (See Tr. 744.) McLain
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
also picked up supplies for Respondent Estrella at Acme
Rents in Northridge and at Stoddard Company, but he
did not know what company name was used.
About 5 weeks prior to the time that Dan Vellinga tes-
tified at the trial on June 7, 1983, either John Taylor or
Renee Vellinga began bringing the paychecks for em-
ployees of Respondent Estrella to the Pinion Hill jobsite.
(Pinion Hill was sometimes referred to at the trial as the
Phelan jobsite.) Dan Vellinga said that the new practice
was because the employees of Respondent Estrella re-
ported to ma:irk in their own vehicles to that jobsite,
which is 27 miles from the office of Respondent Estrella.
(See Tr. 960.)
Until the middle of May 1983, Dan Vellinga had not
hired any employees of Respondent Estrella. According
to Dan Vellinga, John Taylor had done the hiring and
the firing of employees of Respondent Estrella up to that
time.
A few days prior to the time that he testified at the
trial on May 13, 1983, McLain, who was employed by
Respondent Estrella, telephoned the office. Renee Vel-
linga answered the telephone, and McLain asked her
about his vacation benefits. According to McLain, "She
said to call back when Mrs. Taylor was in or to call
back the following day and she'd find out for me." (See
Tr. 748.) McLain said Renee , Vellinga told him she
would find out from Katie Taylor. Subsequently, Katie
Taylor informed McLain that he could collect his vaca-
tion benefits on June 15, 1983.
Since June 1, 1982, Respondent Taylor has had jobs at
90th Street East and Avenue J, which is also referred to
as Well 41 at some points in the trial; a job at 116th
Street Fast; a job for K-Mart in Mojave; installation of a
water main on Redwood Avenue for Staterfield; installa-
tion of fire hydrants, a job in the amount of $123,000 to
$125,000 at the Whiteman Airport for Southwest Paving;
and a plumbing job at Big Valley. Katie Taylor said at
the trial that Respondent Taylor had been assured of a
job in the amount of $52,000 by Ashland Construction
Company at Edwards, but work had not yet begun be-
cause the base work of another contractor had not been
fmished.
Katie Taylor acknowledged at the trial at transcript
283, "I didn't make a general practice of going out to the
jobsite itself." For example, regarding the Kmart jobsite,
she said at transcript 283, "I think I was up there once."
Regarding the 116th Street jobsite, she said at transcript
283, "I don't believe I was ever out there." She did not
recall the time she had visited the 90th Street jobsite.
Katie Taylor did not visit the Whiteman Airport jobsite
in Pacoima in the San Fernando Valley. She said that
John Eberling was the on-site supervisor there. At her
request, Eberling obtained all the operators who worked
on that jobsite for Respondent Taylor from the Charging
Party Union's hiring hall
At the time that Katie Taylor testified at the trial on
May 13, 1983, there were only two employees of Re-
spondent Taylor. Since June 1, 1982, Respondent Taylor
has never had more than six employees at any one time.
During the first half of 1982, it had been fairly common
for Respondent Taylor to have more than six employees.
She acknowledged that the business of Respondent
Taylor has been declining since the first half of 1982, but
Respondent Taylor also had suffered an earlier operating
loss in 1981. She commented at transcript 895, "It goes
on and on." Respondent Taylor, however, had bid on
future jobs at the time of the trial, and there was still
some work remaining on jobs that had been previously
started. She attributed the situation to the usual fluctua-
tion in the construction business, and the fact that Re-
spondent Taylor had submitted higher bids on some jobs
than its nonunion competitors.
In contrast to the decline in Respondent Taylor's
volume of business since June 1982, Respondent Estrel-
la's volume of business has grown to be larger than that
of Respondent Taylor. Katie Taylor said at transcript
894, "Because they've gotten some large contracts."
During the majority of the time since June 1982, Re-
spondent Estrella has had more employees than Re-
spondent Taylor.
At the time of the trial, Katie Taylor did not recall
that Respondent Taylor had ever bid on a job that Re-
spondent Estrella bid on, but she said at transcript 884,
"We're both in the same line of business, so I'd say we
were competitors." She said that Respondent Taylor,
within a few weeks before she testified at the trial on
May 13, 1983, successfully bid on "non-union jobs." (See
Tr. 885.)
At the time of the trial proceedings, Dan Vellinga was
a superintendent for Respondent Estrella. Tom Ayers
and Tony Espinoza were foremen of Respondent Estrella
and under the supervision of Dan Vellinga. Espinoza was
promoted from laborer to foreman on the first day of the
trial proceedings. (See Tr. 818.)
Since June 1, 1982, John Taylor has not hired or fired
any employees of Respondent Taylor, nor has he sus-
pended employees of Respondent Taylor since that time.
Since June 1, 1982, John Taylor has not submitted any
bids on behalf of Respondent Taylor. Similarly, Katie
Taylor has not submitted any bids on behalf of Respond-
ent Estrella since that time, and no one acting on behalf
of Respondent Taylor has hired or fired any employees
of Respondent Estrella. As far as John Taylor knew, no
foreman or other person employed by Respondent
Taylor has given any orders or supervised any employ-
ees of Respondent Estrella.
John Taylor has never received any request from the
Charging Party Union that they wanted to represent the
employees of Respondent Estrella. No employees of Re-
spondent Estrella ever told John Taylor that they
wanted to join the Charging Party Union or that they
wanted the Charging Party Union to represent them.
John Taylor has never contacted the Charging Party
Union or the Laborers Union as a source of employees
for Respondent Estrella. Respondent Estrella has not
made any payment to the Operating Engineers trust
fund.
Estrella Construction Company, Incorporated, has
been licensed, but Respondent Estrella, the partnership,
is still engaged in business. (See Tr. 828-829 and R. Es-
trella's Exh 22.) Estrella Construction Company, Incor-
porated, is wholly owned by John Taylor and Dolores
Taylor, who are also the partners in Respondent Estrella.
WILLIAM N. TAYLOR, INC. 1069
IX. CONCLUSIONS
In Bacchus Wine Cooperative, 251 NLRB 1552 (1980),
Administrative Law Judge Jay R. Pollack stated at 1554:
In determining whether BWI and the Coop con-
stitute a single employer the controlling criteria are:
(1) interrelation of operations; (2) common manage-
ment (3) centralized control of labor relations; and
(4) common ownership. 1V.L.R.B. v. Don Burgess
Construction Corp., 596 F.2d 378 (9th Cir. 1979);
Radio and Television Broadcast Technicians Local
Union 1264 v. Broadcast Service of Mobile, Inc., 380
U.S. 255 (1965); Sakrete of Northern California, Inc.,
137 NLRB 1220 (1962), enfd. 332 F.2d 902 (9th Cir.
1964), cert. denied 379 U.S. 961 (1965). The Board
has stressed the first three factors, as well as the
present of control of labor relations. Sakrete, supra,
332 F.2d at 905, fn. 4. However, no one of the fac-
tors is controlling, nor need all of the "controlling
criteria" be present. Don Burgess, supra at 384;
N.L.R.R v. Welcome-America Fertilizer Company,
443 F.2d 19, 21 (9th Cir. 1971). Single employer
status, for purposes of the Act, depends upon all of
the circumstances of the case and is characterized as
an absence of an "arm's length relationship found
among unintegrated companies." Blumenfeld Thea-
tres Circuit, a partnership; Blumenfeld Enterprises, a
Division of Cinerama, Inc., Roxie Oakland Theatre, a
partnership, 240 NLRB 206, 214-217 (1979), citing
Local No. 627, International Union of Operating En-
gineers, AFL—CIO (South Prairie Construction Com-
pany and Peter Kiewit Sons' Company) v. N.L.R.B.,
518 F.2d 1040 (D.C. Cir. 1975), affd. in pertinent
part 425 U.S. 800 (1976).
The &mid has pointed out that there are a number of
factors to be considered in determining the issue of
whether one employer is an alter ego of another employ-
er, and that no one factor is the sine qua non of such
status in a Board proceeding. In its decision in Fugazy
Continental Corp., 265 NLRB 1301 (1982), the Board
held the following:
In determining whether Ganser's Auto Service is
the alter ego of Fugazy, we must consider a number
of factors, no one of which, taken alone, is the sine
qua non of alter ego status. 5 Among these factors
are: common management and ownership; 6
common business purpose, nature of operations, and
supervision; 7 common premises and equipments
common customers i.e., whether the employers con-
stitute "the same business in the same market"; s as
well as the nature and extent of the negotiations and
formalities surrounding the transaction." We must
also consider whether the purpose behind the cre-
ation of the alleged alter ego was legitimate or,
whether, instead, its purpose was to evade responsi-
bilities under the Act."
5 N.L.R.B. v. Tricor Products, Inc., 636 F.2d 266, 269 (10th Cit.
1980), affg. 239 NLRB 65 (1978), Crawford Door Sales Company,
Inc. 226 NLRB 114 (1976).
6 Radio and Television Broadcast Technicians Local Union 1264
v Broadcast Service of Mobile, Inc , 380 U.S. 255, 256 (1965).
7 Crawford Door Sales, supra; Farmingdale Iron Works, Inc., 249
NLRB 98, 106 (1980).
8 Davis Industries, Inc. 232 NLRB 946 (1977); J. M. Tanaka
Construction, Inc., 249 NLRB 238 (1980); SFS Painting & Drywall,
Inc., 249 NLRB 111 (1980).
9 International Harvester Co and Muller International Trucks,
Inc., 247 NLRB 791 (1980); Crawford Door Sales, supra.
1 ° Flits Chief Inc., 230 NLRB 1112 (1975); Scott Printing Corp.,
237 NLRB 593 (1978).
11 Southport Co. v. IST.L.R.B., 315 U S. 100, 106 (1942); Regal
Knitwear Co. V. 1V.L.R1i, 324 U.S. 9, 14 (1944). See also House of
Koscot Development Corp. v. American Line Cosmetics, Inc., 468
F 2d 64, 66 (5th Cir. 1972), wherein the court stated the traditional
alter ego rule that it would "pierce the corporate veil" when "nec-
essary to prevent injustice"
The Board has reiterated the "substantially identical"
test regarding considering the factors where alter ego
status is in issue. In its decision in Denzil S. Alkire, 259
NLRB 1323, 1324 (1982), the Board held:
The legal principles to be applied in determining
whether two factually separate employers are in
fact alter egos are well settled. Although each case
must turn on its own facts, we generally have found
alter ego status where the two enterprises have
"substantially identical" management, business pur-
pose, operation, equipment, customers, and supervi-
sion, as well as ownership.3
3 Crawford Door Sales Company, Inc., 226 NLRB 1144 (1976).
Also see Big Bear Supermarkets #3, 239 NLRB 179 (1978), Edward
J. White, Inc., and its alter ego, Repairs, Inc., 237 NLRB 1020
(1978); Ramos Iron Works, Inc., and Rasol Engineering, 234 NLRB
896 (1978); Co-Ed Garment Company and as Alter Ego-Delta Manu-
facturing Corporation, 231 NLRI3 848 (1977).
As revealed in the cases cited above there are some si-
milarities, as well as some differences, in the criteria per-
taining to the issue of single employer status and the
issue of alter ego status. Both issues are presented in this
case. Some of the facts applicable to the issue of single
employer status are also applicable to the issue of alter
ego status. In order to avoid repetition, I will give my
conclusions concurrently, while realizing that some crite-
ria apply to the former issue; some apply to the latter
issue; and some apply to both issues, as indicated in the
cases cited above. In addition, I will attempt to avoid un-
necessary repetition of the numerous findings of fact that
have already been set forth in this decision. All of those
have been considered in reaching the following conclu-
sions.
Regarding the criteria of business purpose, I conclude
that both Respondent Taylor and Respondent Estrella
are engaged in the same type of business. Both are un-
derground utility contractors in the Lancaster area. (See
secs. 3 and 4.) Theoretically, Respondent Taylor and Re-
spondent Estrella are competitors, but, in actuality, they
have not bid on the same jobs. (See sec. 4.) Regarding
the criteria of customers, they are available to serve the
customers in the same geographical area. There is at
least one instance in which Respondent Taylor had suc-
cessfully bid on certain work for a customer, but then
Respondent Taylor gave the work to Respondent Es-
trella because the customer was in a hurry to have the
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
work done, and Respondent Taylor was employing only
one crew at that time and that crew was working on an-
other project. (See sec. 6.) Among other things, that
event shows that Respondent Estrella was capable of
performing the same type of work for the same type of
customer as Respondent Taylor.
Regarding the criteria of ownership, the evidence
shows that the two companies are owned by different
persons, although the persons are all in the Taylor
family. Katie Taylor is the sole owner of Respondent
Taylor, and John Taylor and Dolores Taylor are the
partners and owners of Respondent Estrella. They are
the son and daughter-in-law of Katie Taylor. (See secs.
3-4.)
Regarding the criteria of management, I conclude that
the evidence shows that Katie Taylor is active in the
management and business operations of Respondent
Taylor. She does the important task of preparing bids for
work, and she appears to be very knowledgeable of that
complicated process. In addition, she performs the book-
keeping duties for Respondent Taylor and, primarily, has
done the bookkeeping for Respondent Estrella while she
trains and supervises Renee Vellinga in that work. The
evidence shows that John Taylor is active in the man-
agement and operations of Respondent Estrella. I con-
clude that Katie Taylor and John Taylor possess the
actual and ultimate control over all the business policies
and practices of Respondent Taylor and Respondent Es-
trella, respectively. Regarding the criteria of control
over labor relations, I conclude that Katie Taylor has
such control concerning Respondent Taylor, but within
the parameters of the collective-bargaining agreement
and such laws as the Davis-Bacon Act. John Taylor ex-
ercises control over the employment policies and prac-
tices of Respondent Estrella, and he has control of labor
relations matters within the parameters of such laws as
the Davis-Bacon Act. (See secs. 4-8.)
Regarding the criteria of supervision, I conclude that
the evidence shows that both Respondent Taylor and
Respondent Estrella have their own on-site supervisors
who are directly involved in supervising the day-to-day
work of employees. There is evidence of John Taylor's
involvement in the hiring of Day to work for Respond-
ent Taylor in July 1982. The subsequent conversations
between John Taylor and Day regarding Day's job per-
formance also reveal John Taylor's involvement in su-
pervisory concerns regarding an employee of Respond-
ent Taylor. (See secs. 5-7.)
Regarding the criteria of the interrelation of oper-
ations, I conclude that the evidence establishes there is a
substantial and significant interrelationship between Re-
spondent Taylor and Respondent Estrella. That conclu-
sion is particularly based on the flow of money between
the two companies, under circumstances that are indica-
tive of a less-than-arm's-length financial practice; the per-
formance of services free of charge by employees of one
company for the other, and the furnishing of things of
value free of charge by one company for the other. (See
secs. 3-8.) As an example of the foregoing financial prac-
tices between the two companies, it will be recalled that
a verbal agreement has existed between John Taylor and
Katie Taylor with regard to operating capital and cash
flow problems. The agreement is for one company to
make loans to the other company when such moneys are
needed, and when the other company has such funds
available. Those loans have been made interest free from
one company to another. No promissory notes have been
executed or other security given. No terms of repayment
of the loan have been established. As a result, the evi-
dence shows that a substantial amount of money flowed
back and forth between the two companies in the form
of interest-free, unsecured loans with no repayment
terms.
The source of the initial capital investment in Re-
spondent Estrella was a $5000 loan to John Taylor from
Katie Taylor, either personally or from Respondent Tay-
lor's account. That first loan was made as described
above. The bid for the first job performed by Respond-
ent Estrella was a bid that had been prepared by John
Taylor when he was the president of Respotdent Taylor.
Katie Taylor had assisted in the preparation of that bid.
Respondent Estrella did not compensate Respondent
Taylor for the time and work involved in preparing the
bid on which Respondent Estrella ultimately performed
the work. John Taylor visited jobsites of Respondent
Taylor after he formed Respondent Estrella, but John
Taylor made those visits without compensation. Katie
Taylor did a substantial amount of bookkeeping work for
months for Respondent Estrella without any compensa-
tion. Renee Vellinga did some bookkeeping work for Re-
spondent Taylor, without compensation, after she had
left the employ of Respondent Taylor.
Respondent Estrella utilized the same yard as Re-
spondent Taylor did for employees to assemble prior to
going to the jobsites. Respondent Estrella used the yard
for many months without compensation to Katie Taylor,
who owns the yard area. Respondent Taylor has paid
the property taxes in exchange for its use of that yard.
From the first of June 1982 to July 15, 1982, Respondent
Estrella used certain equipment belonging to Respondent
Taylor, but Respondent Estrella did not compensate Re-
spondent Taylor for the use of the equipment during that
time period. From July 15 to September 1982, Respond-
ent Estrella and Respondent Taylor had only a verbal
agreement regarding the rental of Respondent Taylor's
equipment to Respondent Estrella. The rental computa-
tions rested on memory and recollection of where the
equipment was used and for how long. In September
1982, a written agreement was executed between the two
companies regarding the rental of certain equipment, and
a retroactive charge was made for fuel consumed earlier
by Respondent Estrella. Even after the written rental
agreement was executed, however, some equipment was
rented by Respondent Taylor to Respondent Estrella on
a verbal agreement basis. For many months, records
were not maintained regarding the rental of equipment,
but, instead, memory and recollection were relied on as
the basis for computing the amounts owed by Respond-
ent Estrella to Respondent Taylor. (See secs. 4, 5, 7, and
8.)
Regarding the criteria of equipment, it has been noted
above that Respondent Estrella rented a substantial
amount of equipment on an ongoing basis from Respond-
WILLIAM N. TAYLOR, INC. 1071
ent Taylor. Thus, employees of the two companies have
operated the same equipment at different times. In that
connection, the similarity of the work performed has al-
ready been noted. It will also be recalled that, initially,
all the employees of Respondent Estrella were former
employees of Respondent Taylor at the time that Re-
spondent Estrella began operations. Thus, the skills of
the employees, at least in the beginning, were the same.
(See sec. 4 regarding the initial complement of employ-
ees of Respondent Estrella, and see secs. 4, 5, 7, and 8
regarding the rental of equipment by Respondent Es-
trella.)
Regarding the reasons that John Taylor established
Respondent Estrella, those reasons are stated in conver-
sations that John Taylor had with other persons, as well
as his own testimony at the trial. (See secs. 4 and 5.) I
conclude that John Taylor's reasons, based on evidence
referred to above, were to form a nonunion company
which, in his view, would be able to compete more ef-
fectively with other nonunion companies in the Antelope
Valley area, and to be free from using the Union's hiring
hall in hiring employees.
Among the cases cited by the Respondents is the
Board's decision in United Constructors, 233 NLRB 904
(1977). After rereading that decision, I conclude that
there are a number of similarities between United Con-
structors and the present case. There are also important
differences, however, and the primary differences are the
flow of money back and forth between Respondent
Taylor and Respondent Estrella under the circumstances
noted above, and the financial practices of the two Re-
spondents in this case, as noted previously.
After considering the conclusions reached above re-
garding the criteria mentioned, I further conclude that a
preponderance of the evidence establishes that Respond-
ent Taylor and Respondent Estrella are a single employ-
er; that they are alter egos, and that they have engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the Act as alleged in paragraph 11 of
the General Counsel's complaint in this proceeding.
I have given consideration to the affirmative defenses
urged by both Respondents in their answers to the com-
plaint. The affirmative defense regarding the contention
that Respondent Taylor and Respondent Estrella are
"separate and independent employers" has already been
discussed above. Both Respondents urge that the Gener-
al Counsel's complaint failed "to state a claim such as to
constitute an allegation of a violation of the National
Labor Relations Act, as amended." After reviewing the
pleadings once again, I conclude that the allegations in
the General Counsel's complaint in this case meet the re-
quirements of Section 102.15 of the Board's Rules and
Regulations regarding the contents of a complaint. In
part, Section 102.15 provides: "The complaint shall con-
tain (1) a clear and concise statement of the facts upon
which assertion of jurisdiction by the Board is predicat-
ed, and (2) a clear and concise description of the acts
which are claimed to constitute unfair labor practices, in-
cluding, where known, the approximate dates and places
of such acts and the names of respondent's agents or
other representatives by whom committed."
Both Respondents urge that the allegations of the Gen-
eral Counsel's complaint are barred by the provisions of
Section 10(b) of the Act. After reviewing the documents
contained in General Counsel's Exhibit 1, I conclude that
the unfair labor practice charge was filed by the Union
on September 21, 1982, and served on the Respondents
on or about September 22, 1982. The earliest unfair labor
practice allegation in the General Counsel's complaint is
the one set forth in paragraph 12(a) of the complaint.
The date in that allegation is "on or about July 11,
1982." The time allegation in paragraph 11 of the Gener-
al Counsel's complaint is "commencing on or about July
15, 1982." The time allegation in paragraph 12(b) of the
General Counsel's complaint is "on or about September
10, 1982." After considering the foregoing, I conclude
that the allegations of unfair labor practices fall within
the period of time within 6 months prior to the filing and
services of the unfair labor practice charge. Accordingly,
I conclude that those allegations are not barred by Sec-
tion 10(b) of the Act.
Respondent Taylor urges as an affirmative defense that
its employees who perform operating engineers' work do
not constitute an appropriate collective-bargaining unit,
and both Respondents urge that the employees of each
one constitute a separate bargaining unit. As to the ap-
propriateness of a craft unit in the building and construe
tion industry, the Board has found appropriate, as a craft
unit, employees who operate heavy equipment. See, for
example, the Board's decision in Del-Mont Construction
Co., 150 NLRB 85 (1964). In this connection, I also note
the long collective-bargaining history between Respond-
ent Taylor and the Union in the unit in question, which
goes all the way back to 1957.
In its decision in Naccarato Construction Co., 233
NLRB 1394 fn. 2 (1977), the Board stated, in part:
[w]e note that, under the Supreme Court's opinion
in South Prairie Construction Co. v. Local No. 627,
International Union of Operating Engineers, AFL-.
CIO, et al., 425 U.S. 800 (1976), the fact that several
entities constitute a single employer is not disposi-
tive of the ultimate issue of whether each is bound
to the collective-bargaining agreements of the
others. Rather, the test is whether, given a single-
employer fmding, the employees of the separate
companies constitute the appropriate unit or wheth-
er the employees of each of the individual compa-
nies constitute distinct and separate units. The crite-
ria for finding a single employer are different from
those for determining the appropriateness of the
unit. Peter Kiewit Sons' Co. and South Prairie Con-
struction Co., 231 NLRB 76 (1977). In the present
case the operations of the three companies and the
work of their employees are so intertwined as to
render an employerwide unit the appropriate unit
and to preclude the finding of separate appropriate
units.
In its decision in Peter Kiewit Sons' Co., referred to
above, the Board stated, in part, at page 77:
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The ultimate unit determination is thus resolved
by weighing all the factors relevant to the commu-
nity of interests of the employees. Where, as here,
we are concerned with more than one operation of
a single employer, the following factors are particu-
larly relevant" the bargaining history; the function-
al integration of operations; the differences in the
types of work and the skills of employees; the
extent of centralization of management and supervi-
sion, particularly in regard to labor relations, hiring,
discipline, and control of day-to-day operations; and
the extent of interchange and contact between the
groups of employees.
7 Although Kiewit and South Prairie are not, in the traditional
sense, separate plants, the factors used to determine whether a mul-
uplant or a single-plant unit is appropriate are relevant here.
With the foregoing criteria in mind, I have considered
the long history of collective bargaining; the functional
integration of the operations of Respondent Taylor and
Respondent Estrella, with particular notice of the flow
of money between the two companies and the financial
practices of the two companies; the similarity in the type
of work performed by both Respondents and the similar-
ity of skills of employees; the centralization of manage-
ment in Katie Taylor and John Taylor and their ultimate
control over the operations and policies of the Compa-
nies, and the fact that employees of Respondent Taylor
and employees of Respondent Estrella had contact for
many months when they reported for work each day in
the same yard area. I conclude that a single unit of the
employees who perform operating engineers' work is ap-
propriate here. See also the Board's decision in Edward
J. White, Inc., 237 NLRB 1020 (1978).
As its sixth affirmative defense, Respondent Taylor
urged that the Union failed to achieve majority status
among the employees of Respondent Taylor, and, there-
fore, the agreement between Respondent Taylor and the
Union "is of no force and effect." In their posttrial brief,
Respondents urge that the contract between Respondent
Taylor and the Union was the type of agreement permis-
sible under Section 8(0 of the Act, and that there was no
proof by the General Counsel of the Union's majority
status. In considering this affirmative defense, I conclude
that the evidence does not establish that the collective-
bargaining relationship between Respondent Taylor and
the Union was the type of prehire agreement permissible
under Section 8(0. In this connection, note paragraphs
39 and 40 of Joint Exhibit 1, which are set forth in sec-
tion 3 of this decision. Those paragraphs from Joint Ex-
hibit 1 do not establish that the contracts were 8(1)
agreements. I am not unmindful of John Taylor's testi-
mony that there has never been an election among the
employees of Respondent Taylor in which they selected
the Union to represent them, but an election is not the
only way in which a union's majority status may be es-
tablished. Thus, since the evidence did not show that the
collective-bargaining relationship between Respondent
Taylor and the Charging Party Union was an 8(1) rela-
tionship, I conclude that the affirmative defense has not
been established. If the evidence had established that an
8(1) relationship had existed between Respondent Taylor
and the Union, and, if the evidence established that such
a contract had been repudiated by Respondent Taylor,
then the question would have arisen regarding whether
the Charging Party Union had ever achieved majority
status among the employees, and whether that 8(f) rela-
tionship had ever ripened into a 9(a) relationship. For ex-
ample, see the Board's decisions in Hageman Under-
ground Construction, 253 NLRB 60 (1980), and Giordano
Construction Co., 256 NLRB 47 (1981).
Having reached the foregoing conclusions regarding
the allegations of unfair labor practices pertaining to a
refusal to bargain, I turn now to the allegations of con-
duct independently violative of Section 8(a)(1) of the
Act. Those allegations are set forth in paragraphs 12(a)
and (b) of the General Counsel's complaint.
Based on the findings of fact set forth in section 5 of
this decision, I conclude that the evidence supports the
General Counsel's allegation in paragraph 12(a) of his
complaint. In that connection, I have considered the con-
versation between John Taylor and Day, which took
place on or about July 11, 1982. The context of the con-
versation was an employment interview. John Taylor in-
formed Day that he was starting a nonunion company,
and John Taylor described the benefits that would be
given without the presence of a union. According to
Day, John Taylor "asked me if I wanted to go to work
for Estrella, get out of the union." In those circum-
stances, I conclude that the evidence supports the Gener-
al Counsel's allegation, particularly when it is considered
in the context of an employment interview. The fact that
Day was not dissuaded is not determinative because an
objective test is to be used. The Board held in Florida
Steel Corp., 224 NLRB 45 (1976), "the test is whether the
supervisor's conduct reasonably tended to interfere with
the free exercise of the employee's rights under the Act."
Based on the fmdings of fact set forth in section 7 of
this decision, I conclude that the evidence establishes the
allegation in paragraph 12(b) of the General Counsel's
complaint. The conversation in issue was one between
John Taylor and Day, which took place in September
1982. According to Day, John Taylor "asked me if I'd
been going to the union. And I told him I hadn't. And
he said somebody had been taking pictures of the Es-
trella trucks with John Eberling in them." The circum-
stances of that conversation should be considered in light
of the fact that the Charging Party Union had filed an
unfair labor practice charge against the Respondents at
that time; there had been visits to jobsites by union rep-
resentatives, both from the Charging Party Union and
the Laborers Local 300; and photographs had been taken
at the jobsites on two occasions. In its decision in Service
Master All Cleaning Services, 267 NLRB 875 (1983), the
Board held: "The test to determine a violation of Section
8(a)(1) of the Act by interrogating an employee about his
or her union sympathies is whether, under all the cir-
cumstances, the interrogation reasonably tends to restrain
or interfere with employees in the exercise of their statu-
tory rights." Especially considering the circumstances
that had preceded the questioning of Day by John
Taylor, I conclude that the evidence establishes the alle-
WILLIAM N. TAYLOR, INC. 1073
gations in paragraph 12(b) of the General Counsel's com-
plaint.
CONCLUSIONS OF LAW
1. Respondent Taylor and Respondent Estrella are
alter egos, and they constitute a single employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. The Charging Party Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. At all times material, the Charging Party Union has
been the exclusive collective-bargaining representative of
the employees of the Respondents in the following de-
scribed appropriate bargaining unit:
All heavy equipment operators, mechanics, oilers
and grade checkers; excluding all office employees,
managerial employees, guards and supervisors as de-
fined in the Act.
4. The Respondents have engaged in unfair labor prac-
tices within the meaning of Section 8(a)(I) of the Act by
seeking to dissuade an employee from remaining a union
member and by interrogating an employee about his
union activities.
5.The Respondents have engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (5) of the
Act by refusing to bargain collectively with the Charg-
ing Party Union in the unit described above in that the
Respondents have failed and refused to honor the terms
of the collective-bargaining agreement with the Union:
(1) by making unilateral changes in wage rates; (2) by
failing to make fringe benefit payments; (3) by failing to
use the hiring hall; and (4) by failing to terminate em-
ployees who do not become members of the Union
within 8 days after employment commences.
6. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Because I have found that the Respondents have en-
gaged in certain unfair labor practices within the mean-
ing of Section 8(a)(1) and (5) of the Act, I will recom-
mend to the Board that the Respondents be ordered to
cease and desist from engaging in such unfair labor prac-
tices. I will also recommend to the Board that the Re-
spondents be ordered to take certain affirmative action in
order to effectuate the policies of the Act.
[Recommended Order omitted from publication.]