Frank N. Smith Associates, Inc.

National Labor Relations Board - Board Decisions

Nov 16, 1971

194 N.L.R.B. 212 (N.L.R.B. 1971)

212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Frank N. Smith Associates , Inc. and Keuka Construc-
tion Corporation and Finger Lakes and Vicinity
District Council of Carpenters of the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO and Local No . 700 of the Seneca and
Vicinity District Council of Carpenters, of the
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. Cases 3-CA-4325 and
3-CA-4345
November 16, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Smith Associates, Inc., herein called Associates, and Keuka
Construction Corporation, herein called Keuka, are a single
entity. The issue on jurisdiction concerns the self-imposed
jurisdiction requirements set up by the Board in order to
determine whether an employer is engaged in commerce
within the meaning of the National Labor Relations Act, as
amended (29 U.S.C. Sec. 151, et seq.), herein called the Act.
It, in turn, breaks down into questions: (a) as to whether
Associates by itself is such an employer; (b) whether Keuka
itself is such an employer; and (c) whether Associates and
Keuka together as a single entity meet the jurisdiction
requirements.
Case 3-CA-4325 began with the filing of a charge on
December 7, 1970, by Finger Lakes and Vicinity District
Council of Carpenters of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, herein
called Carpenters, against Associates and Keuka. Based
upon the charge, the General Counsel of the Board, herein
On July 13, 1971, Trial Examiner George L. Powell
issued the attached Decision in this proceeding.
Thereafter, the General Counsel and the Charging
Parties each filed exceptions and a supporting brief,
and Respondents filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the Trial
Examiner 's Decision in light of the parties ' exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings, and conclusions and to
adopthis recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
called General Counsel, through the Acting Regional
Director for the Third Region of the Board, issued a
complaint on February 19, 1971, alleging that Associates
and Keuka had violated Section 8(a)(1) and (5) of the Act.
The charge in Case 3-CA-4345 was filed on January 8,
1971, against Associates and Keuka by Local 700 of the
Seneca and Vicinity District Council of Carpenters of the
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, herein called Local 700, and the complaint
based thereon was issued March 5, 1971, by the same
Acting Director, above, alleging violations of the same
section of the Act.
On March 5, 1971, an order was issued consolidating the
cases for hearing.
Associates conducts its labor policies under collective-
bargaining agreements with the Carpenters and Local 700,
but Keuka observes no contract, never in name having been
a party to the agreements. Charging Parties and the
General Counsel contend that Keuka is bound by the
Associates' contracts because it and Associates, in fact, are
a single employer, and employees of Keuka are'accretions
to the bargaining units in the contracts with Associates.
Upon consideration of the entire record, including oral
argument and the -briefs filed with me, and specifically
upon my observation of the 'witnesses as they testified
before me,' I find, for the reasons hereinafter set forth, that
1 In adopting the Trial Examiner's dismissal of the complaint, we note
that the issues posed are sumlar to those we recently considered and
the General Counsel has failed to establish by a preponder-
t t
resolved in Gerace Construction, Inc and Helger Construction ance of the evidence that Respondent violated the Act as
company, Inc, 193 NLRB No 91. - enumerated in the complaint because Associates and
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. PowELL, Trial Examiner: These cases were
tried before me in the Court House of Steuben County,
Corning, New York, on May 5 and 6, 1971. The General
Counsel argued orally and he and Respondent, after an
extension of time, filed briefs with me on June 11, 1971.
The broad issues litigated were two in number: (1)
Whether the National Labor Relations Board, herein called
the Board, has jurisdiction; and (2) whether Frank N.
Keuka are not a single entity and Keuka therefore is not
bound by Associates' contracts. Accordingly, I will
recommend that the complaint be dismissed in its entirety.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER
Frank N. Smith Associates, Inc., herein called Associates,
is a New York State corporation engaged in the building
and repair of commercial and industrial buildings at its
principal place of business at 196 West Sixth Street,
Corning, New York.
1 Cf. Bishop and Malco, Inc, 159 NLRB 1159, 1161.
194 NLRB No. 34
FRANK N. SMITH ASSOCIATES 213
Until withdrawing from "all multi-employer collective
bargaining negotiations with ... [Chemung Valley Build-
ers Association, Inc.]" on March 17, 1971, Associates had
been a member of the association and considers itself
bound by the existing collective-bargaining agreement with
Local 700 expiring May 31, 1972. Associates also considers
itself bound by an agreement between the Carpenters and
the Building Employers' Trades Association, Inc., of
Auburn, New York, the Geneva Builders and Trades
Association, Inc., of Geneva, New York, and the Ithaca-
Cortland Builders Exchange of Ithaca, New York, having a
term from July 1, 1970, to May 31, 1972.
Associates purchased $312,870.34 worth of materials in
the 12-month period ending December 31, 1970, of which
sum, $19,806.08 worth was purchased directly from outside
New York State. During the same period, Associates
received $51,449.16 for goods and services performed for
New York Telephone Company,2 a nonretail enterprise
coming within the $50,000 outflow standard or a public
utility which meets the Board's jurisdictional standards.
Additionally Associates received for four jobs performed
by it, including its subcontractors, for Pleasant Valley Wine
Co., a part of Taylor Wine Co., Inc.,3 $266,779.70,
$391,978.76, $19,424, and $6,090.4 These sums represent
jobs performed and value of contracts performed between
January 1, 1970, and March 3, 1971. As revealed in
employment, hereinafter set forth, Associates had 632 man
weeks of employment in the months of August through
December 1970 as compared with only 80 man weeks of
employment in the first 2 months of 1971. This clearly
shows that the great bulk of employment and the
concomitant value of services performed took place in
calendar 1970 for the four figures above of some
$684,272.46. Accordingly more than $100,000 worth of
goods and services were performed in 1970 by Associates
for Taylor Wine Co., Inc., an enterprise coming within the
$50,000 outflow jurisdictional standard of the Board and
the Board has jurisdiction over Associates. Jonesboro Grain
Drying Cooperative, 110 NLRB 481, 484, as modified by
Whippany Motor Co. 115 NLRB 52.
Keuka Construction Corporation, herein called Keuka, is
a New York State corporation engaged in the building and
construction of commercial, industrial, and residential
buildings at its principal place of business at 196 West Sixth
Street, Corning, New York. Originally incorporated in 1966
it was dissolved in December 1969 but was reincorporated
in September 1970 to get a contract job with Pleasant
Valley Wine.5 Keuka purchased materials valued at
$166,943.73 in the period September 1, 1970, to March 1,
1971, of which sum $797.25 was purchased directly from
outside New York State. From September to May 1970,
Keuka billed one customer, Pleasant Valley Wine, $219,685
for materials bought for and services rendered .6 As noted
above, Pleasant Valley Wine is a part of Taylor Wine
Company and is engaged in interstate commerce within the
Board's jurisdictional standards. As Keuka received more
than $100,000 worth of goods and services performed for an
enterprise [Pleasant Valley Wine ] coming within the
$50,000 outflow standard of the Board, Keuka meets the
Board's jurisdictional standard in the category referred to
by the Board as the "indirect outflow" standard. Jonesboro
Grain Drying Cooperative, 110 NLRB 481, 484, as modified
by Whippany Motor Co., 115 NLRB 52 (1956). See also
Vogue Craft, 111 NLRB 220, and The Plastic Molding Co.,
Inc. 110 NLRB 2137.
II. THE LABOR ORGANIZATIONS
I also find as true the admitted allegations in paragraphs
IV of both complaints that the Unions are labor
organizations within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
As noted earlier, Associates is performing under
collective-bargaining agreements involving both Local 700
and the Carpenters. Keuka, on the other hand, is not party
to any collective-bargaining agreements and operates an
open shop. If Keuka is a part of Associates its employees
are accretions to the unit of Associates and it should be
following the collective-bargaining agreements of Associ-
ates and its failure to do so results in Associates' breaching
its agreements and also violating Section 8(a)(5) and (1) of
the Act by unilateral modification of the collective-
bargaining agreements . The question to be resolved is
whether, under the circumstances, Keuka and Associates
are an integrated enterprise or a single entity.
Frank N. Smith is the president of both Associates and
Keuka and owns between 70 percent and 75 percent of the
stock of each. He credibly and forthrightly testified that
Keuka was reincorporated in September 1970 in order to
negotiate for or bid on jobs as an open shop. These were
jobs which Associates were not given a chance to bid on
because of its high union carpenter-labor costs.
The remaining 30 percent to 25 percent of the stock of
each corporation is owned equally by three persons, Daniel
McLaughlin, Arlone Kosty, and Franklin Freeborn, who
are, respectively, vice president, secretary, and treasurer of
each corporation.
Labor relations at the higher level are handled by Smith
for Associates and by Daniel McLaughlin for Keuka, with
day-to-day problems handled by the respective job
superintendent of each.
The following breakdown details the categories under
each corporation for comparison:
2 Mr. Smith testified that 1/3 of this $51,449.16 was for services
performed by subcontractors. As the subcontractor was performing for
Associates and not the telephone company the whole amount received is
the value of the services performed by Associates. Vogue Craft, 111 NLRB
220.
3 I take judicial notice of Standard & Poor's Corporation Records,
Cumulative News for April-May, 1971, p. 5138, reporting that Taylor
Wine Co, Inc. is a New York corporation engaged in making and selling
(nationally) wines under the brand name of Taylor and Great Western,
and that in calendar year 1970 its sales of wines exceeded $34 million.
Finally I notice that the Pleasant Valley Wine Co. is a part of Taylor Wine
Co, Inc
4 These jobs are set out in G.C. Exh 2
5 Frank N Smith credibly testified that Keuka was reorganized in order
to bid on.jobs without union labor. See G C. Exh. 2.
6 Forty percent of the $219,685 was the approximate value of Keuka's
subcontractors.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Category Associates Keuka
1. Job Superintendents Paul McLaughlin Donald Knowles
(Supervisors) Robert Young Gordon Lilley
Clifford Ellison
James Hogue
Martin Nee
2. Hires Has no office force
force but pays
Associates for its
share of expenses.
Daniel McLaughlin
hires job super-
intendents and hires
employees from job
applications.
Does not advertise for Advertises for help.
for help.
3. Office Owns the building. Uses same office and
pays pro rata share,
also has office at
home of Daniel McLaughlin.
4. Interchange of None, except once
Employees Paul McLaughlin
worked 2 weeks
for Keuda for
which Keuka paid
Associates.!/
5.
6.
None, except once Job
Superintendent and helper
did small amount of phone
booth installation for
Associates which in turn
paid Keuka.
Job Estimating Smith with Franklin Freeborn assisting,
estimates jobs for both Associates and Keuka.
Pay Checks Prepared for both by Mrs. Negri (employee of 8
years) but separate payroll for each signed
for both corporations by Mrs . Kosty (employee
of 16 years).
All Associates employees All Keuka employees
are not on Associates on payroll for
payroll. Keuka.
7. Accountant Michael A. Carnevale acts for both and is paid
separately.
Mrs. Kosty, hires
office girls.
Smith hires job
superintendents.
Unions refer car-
penters to jobs
they report in to
Job Superintend-
ents.
Union represents No craft category
and refers them and employees work
to Associates. across craft lines
Employs other No union. Not hired
craftsmen also. from Associates nor
solicited from Associates
but hired from job
applications.
From testimony of General Counsel's witness, Ellison, partially
corroborated by Smith, it seems that in August 1970 before Keuka
was reincorporated two employees of Associates laid out batter
boards for a building in Pleasant Valley Wine which Associates
did not build,
8. Carpenters
FRANK N. SMITH ASSOCIATES
Category Associates Keuka
9. Construction
Activity
10. Equipment
Commercial and
Industrial.
Work obtained by
bids.
Party to collec-
tive bargaining
agreements'with
Carpenters and
Local 700 in
respective areas
since 1966.
High lift tractor,
power tools,
scaffolding,
construction
project tools,
four trucks
and insurance.
Smaller Cost commercial,
industrial and resi-
dential.
Negotiated jobs.
Performs in same
geographical work
area as Associates
since 1966, but never
had collective bar-
gaining agreements.
Does no bidding for
jobs.
Rents from Associates and
other on hourly charge
when needed.
Pays pro rata for
office equipment.
215
Rents equipment to
Keuka and to others
when available.
Owns office equipment.
11. Vacations Mrs. Kosty handles Job superintendents
vacation for with Daniel
office help. McLaughlin.
Job, superintendents Smith not involved.
with Smith handle
for Associates'
carpenters.
12. Telephone Separate directory Separate directory
listing and listing and phone
phone number. number
13. Advertising Separate adver- Separate advertising
tising for and advertises for
employees. employees.
14. Books and Records Kept separate. Kept separate.
15. Clients Referral None to each None to each other.
other.
16. Competition on None None
Bids
17. Credit Has own line Has own line of
of credit. credit from bank.
18. Chemung Valley Member Non Member
Employers
Association
19. Directors Meetings Separate from Separate from
Keuka Associates.
216
Category
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associates Keuka
20. Salaries of Smith , Paid by Asso- Pays Associates for
D. McLaughlin , ciates . their services
Freeborn and when given.
Kosty.
21. Number of Employees Employees of this There are no craft
Corporation are divisions of
separated into employees here.
crafts.
Week ending All Carpenters All
8/4/70 53 20
8/11/70 49 19
8/18/70 50 19
8/25/70 50 19
9/1/70 51 19
9/8/70 41 17
9/15170 39 16 7
9/22/70 36 16 8
9/29/70 36 16 9
10/6/70 29 10 12
10/13/70 24 8 17
10/20/70 22 7 19
10/27/70 21 7 23
11/3/70 16 5 24
11/10/70 '18 5 24
11/17/70 15 4 24
11/24/70 14 4 25
12/1/70 18 6 28
12/8/70 16 5 31
12/15/70 12 3 39
12/22/70 11 3 35
12/29/70 11 3 35
1/5/71 11 3 36
1/12/71 11 3 35
1/19/71 11 3 36
1/26/71 11 3 33
2/2/71 11 3 31
2/9/71 10 3 30
2/16/71 9 3 30
2/23/72 6 1 30
Arnold Johnson, business manager and secretary-treasur- Keuka were members of the Corning local, a different local.
er of the Carpenters since 1954, admitted that Smith refused Roger Strauss was called as a witness by the General
to discuss Keuka employees with him and that none of the Counsel. He testified on cross-examination that while he
members of the Carpenters went to work for Keuka after- did carpentry work at Associates his work at Keuka was not
being laid off by Associates. Those that went to work for restricted to that, but at Keuka he did different work, i.e.,
FRANK N. SMITH ASSOCIATES 217
mason work, ironworkers' work, and laborers' work as well
as carpentry. He testified that George Heath, Gordon
Lilley, and six or seven former employees he knew at
Associates also did this multicraft type work at Keuka. No
one solicited him to go to work for Keuka. He filled out an
application for work there and was hired. He would go to
the same address (196 West Sixth Street) for Keuka as for
Associates occasionally to pick up a work order. He kept
his tools in his pickup truck when he worked for Associates
and when he worked for Keuka. It is clear from the
testimony that no employees were solicited to change
employment from Associates to Keuka nor were transferred
from Associates to Keuka or were moved from Associates
payroll to the payroll of Keuka. Rather, any employee
desiring work at Keuka first filled out a work application at
Keuka and was hired if work was available.
Charles B. Wilhelm, business representative of Local No.
700, testified that he asked Smith in October 1970 if he was
reactivating Keuka and was told that Keuka would be
"structured separately" and "financed separately" from
Associates, and the employees would be paid "what they
were worth." Smith refused to discuss Keuka employees
with Wilhelm. Later on near the end of October or first part
of November 1970 Wilhelm again asked Smith about
Keuka but Smith again refused to discuss that corporation.
Discussion and Conclusions
Johnson, the business manager of the Carpenters,
maintains that Keuka is bound in the Carpenters' contract
with the Building Employers' Traders Association (GC Exh.
3) in accordance with article IV, section 15.7 As the
employers in this collective-bargaining contract are legal
entities, the entity (corporation) itself would have to "own
and/or control" Keuka in order to qualify under article IV,
section 15. The facts above show that Associates does not
own and/or control Keuka and Keuka is not part of the
Associates Corporation as, for example, a wholly or
partially owned subsidiary corporation would be. Rather,
Keuka is a separate entity albeit owned and controlled by
the same officers and directors of Associates.
The question to be decided here is whether Associates
and Keuka are a single employer in the view of the Board in
effectuating the purposes of the Act. The theory of the
General Counsel in his complaint is that the two
corporations are a single entity. Both the General Counsel
and Respondent set out in their briefs the four factors
weighed by the Board in deciding whether sufficient
integration exists to treat separate concerns as a single
employer in exercising jurisdiction. The General Counsel
and Respondent then proceed to use the Board's tests for
jurisdiction in the instant case where the issue is whether
employees of Keuka are an accretion to the unit of
employees of Associates and accordingly are covered in the
collective-bargaining agreements or whether by virtue of
being a single entity Associates 'is making unilateral
7 Article IV, section 15 . - "Me provisions of this Agreement shall
apply to and bind any construction company or construction corporation
owned and/or controlled by the employers at the time of the execution of
"this Agreement or during the effective term thereof."
8 The same result applies to the unit of employees represented by the
Carpenters (GC Exh. 3). However, instead of the doctrine of accretion, the
changes in its contract in violation of its obligation to
bargain in good faith. I believe that before using these tests
for asserting jurisdiction, assuming without now deciding
that they do apply in this area, I should first consider the
theory of accretion and see if Keuka's employees would
even belong in the unit of carpenters under Associates if
Keuka and Associates were a single employer.
Accretion
Associates has many employees 'but only recognizes
Local No. 700 "for its employees employed as Journeyman
Carpenters, Carpenters Apprentices, Carpenters Foremen,
Journeymen Millwrights, Millwright Foremen, and Mill-
wright Apprentices, Pile driver Foremen and Carpenter and
Millwright General Foremen." See section 1.2 of the
Agreement and Working Rules between the Building
Trades Employers Division of the Chemung Valley
Builders Association, Inc. and Local No. 700 of the Seneca
and Vicinity District Council of Carpenters of the United
Brotherhood of Carpenters and Joiners of America,
Effective: June 1, 1969. Expiration: May 31, 1972. (GC
Exh. 4). Who represents other than carpenter employees of
Associates is unknown but the above lists shows that the
carpenter employees of Associates are only about one third
of the total number. Possibly other craftsmen are likewise
individually represented by their craft unions.
On the other hand, the evidence discloses that Keuka has
no craft divisions in its complement of employees with each
employee doing the work customarily done by other
craftsmen, such as masons, ironworkers, and laborers. In
other words, Keuka does not have a unit of carpenters as
does Associates. For Local No. 700 to claim all the
employees of Keuka under the theory of accretion, the unit
would end up being inappropriate and Local No. 700 would
be representing employees not in its unit. Other craft
unions, if any, would have the same claim. Accordingly,
under these circumstances I find Keuka's employees cannot
be added to Local No. 700's unit of Associates' employees.8
Single Employers
In Marine Welding and Repair Works, et al, 174 NLRB
661, dated February 20, 1969, and cited as authority by the
General Counsel in his brief, the Board affirmed Trial
Examiner Herzel H. E. Plaine in his handling of
jurisdiction. Judge Plaine had this to say:
Under the tests for "single employer" developed by
the Board, 21st Annual Report NLRB (1956) 14-15,
restated and approved in Sakrete of Northern California
v. N.LR.B., 332 F.2d 902, 905-908 (C.A. 9,1964), cert.
denied 379 U.S. 961, and by the Supreme Court in
Radio and TV, etc., Union 1264 v. Broadcast Service of
Mobile, 380 U.S. 255-256 (1965), the question is
whether the four corporations [involved in the case] are
sufficiently integrated to consider the business of all
together in applying the standards of the Act. The
theory of the General Counsel rightly is based upon a unilateral change in
the agreement made by Associates in violation of its obligation to bargain
in good faith as article II, section 3 requires the employer to assign certain
prescribed work to carpenters. General Counsel's brief claims this theory
and it will be disposed of in the following category "Single Employers.
218 DECISIONS OF NATIONAL
principal factors weighed in deciding that sufficient
integration exists include the extent of (1) interrelation
of operations, (2) centralized control of labor relations,
(3) common management, and (4) common ownership
or financial control. While none of the factors has been
held to be controlling, stress has been laid upon the first
three factors to show operational integration, particu-
larly centralized control of labor relations. [Sakrete,
supra.]
On April 12, 1971, in N.L.R.B. v. Welcome-American
Fertilizer Co., 443 F.2d 19, the same Circuit Court as in
Sakrete, above affirmed the use of the four criteria,
reversing the Board only in its application of the facts to the
factors.
Conclusion
It is evident from the foregoing recital that the two
corporations do not constitute a single integrated enterprise
and a single employer within the meaning of the Act.
Rather, I find that each corporation is a separate and
independent entity and the Associates' contracts have no
application to Keuka.
The facts in Marine Welding are vastly different from
those here. There the four enterprises "grew" to handle
different facets of the total business. Judge Plaine found all
of the four factors to be present in Marine Welding. He
found specifically:
The two Williamsons and Williams are the owners,
officers, and active managers of the four corporations,
in control of their labor relations subject to the supreme
management and labor relations control of President
Bill Williamson. All four companies occupy a single
combined principal office at the waterfront.
The major business of the companies originates at the
Marine Welding docks where shipbuilding and repair is
done. The supporting specialty work performed by the
other three companies in fabricating, repairing, machin-
ing, or supplying parts and materials, is either brought
to their shops from the Marine Welding docks or is
performed at the Marine Welding docks or on the water
by employees of the three companies. In turn, Marine
Welding employees who perform the bulk of their
shipbuilding and repair functions at the docks or on the
water, occasionally do their work at the shops and with
the equipment of the other three companies. The
employees of all four companies, or a lesser combina-
tion of them, frequently work on the same shipbuilding
or repair project, often simultaneously and sometimes
side-by-side. The employees share the tools and
equipment provided by one or the other of the
companies. In addition to the temporary assignments of
some employees to the shops of one or more of the other
companies, a few of the employees have been perma-
nent transfers from shop to another.
The employees occupy two basic locations, one at the
waterfront and the other a short distance away in town,
with employees and materials moving to and from each
location. At the in-town location, the shops are side-by-
LABOR RELATIONS BOARD
side, and the employees share common toolroom,
timeclock, locker, and toilet facilities. At the waterfront
location, while the two shops there are a short distance
apart, the Williamson Engine employees spend almost
half of their working time on the Marine Welding docks
and the Marine Welding employees spend some of their
time in the Williamson Engine shop. All of the
employees in all four corporations have the same hours,
the same vacation, medical, and life insurance benefits,
and are covered by workmen's compensation when
working landside and by Jones Act insurance when
working waterside.
From the foregoing, it is evident that the four
companies are closely integrated in their functioning
and are operated for all practical purposes as four
divisions of one company. The Respondent is a single
employer under the Act.
As distinguished from Marine Welding, the four owners
of Associates and Keuka do not participate in the active
management of the two corporations on a daily basis, labor
relations is vested in separate persons (separate superin-
tendents for each corporation and Smith and McLaughlin
respectively at the higher level), common work facilities are
not shared as the work projects are geographically
separated and identifiable, and employees do not work
back and forth nor do they work together on the same
project .9
The General Counsel also cited, as favorable for his
position, Senco, Inc. 177 NLRB No. 102, (1969). However,
in Senco, the manufacturing done by the four corporations
was functionally integrated The controlling owner distribut-
ed work among the firms (the Keuka work at Pleasant
Valley wasn't even available to Associates). Monthly
rentals for the lease of machines and equipment between
corporations, unlike the instant cases, were never paid.
Rent, unlike the case here, was only occasionally paid.
Checks of one corporation were used to pay for medical
services rendered to another corporation's employees and
for the latter's want ads. One corporation did not require
invoices from others who had performed work for it. Lastly,
an officer of the four corporations promoted the affiliation
of two corporations with a rival union. These facts are
considerably different from the instant case.
Finally, the General Counsel cited the case of J. Howard
Jenks d/b/a Glendora Plumbing, 165 NLRB No. 1. But
again, factually the case is not similar to the instant case.
Associates has not phased out any of its operations. Keuka
was in existence (albeit, another form) in 1966 to the
knowledge of the carpenters (Wilhelm testified, "I asked
Mr. Smith if he was, in fact, reforming, reactivating the
Keuka Construction Company"). When active, Keuka did
commercial, industrial, and residential work as it was doing
at the time of trial. Unlike the service department of
Glendora, Keuka was never a party to labor contracts which
were executed by Smith, Langhans & McLaughlin or
Associates. There are no elements of discrimination in the
instant case. Keuka is not a successor or alter ego to
Associates as was Service to Glendora's service department.
9 The two isolated events are insignificant when viewed in the context of $300,000 worth of business for Keuka.
over $1 million worth of construction business for Associates and over
FRANK N. SMITH ASSOCIATES 219
Keuka did not embark upon new construction for the
first time as a subcontractor on projects bid by Associates.
Keuka and Associates are not run on a day-to-day basis
by the counterpart of Howard Jenks.
Keuka does not have free access to Associates equip-
ment ; Keuka must rent and pay for it when used at market
prices.
Keuka and Associates do not have a common telephone
nor do the employees report to the same place of work and
use a common entrance , but rather go to their separate jobs.
Keuka does not service Associates ' clients. It does
contract with some clients where Associates was shut out or
foreclosed from further work.
Associates continues in being as a viable firm with
significantly larger projects and sales than Keuka.
I conclude that Keuka was deliberately incorporated in
1970 to operate as a single employer (and it so qualifies
under Board law) in an area of business not available to
Associates. No effort has been made to have Keuka
perform Associates ' work nor is there any antiunion
motivation such as there is in "run-away shop" type cases.
Accordingly, Associates' contracts do not extend to Keuka.
that Associates ' collective-bargaining agreements have no
application to Keuka, I find that the General Counsel has
failed to prove his case that Associates violated Section
8(a)(5) and (1) of the Act by not requiring Keuka to follow
the terms of the collective -bargaining agreements, and I
shall recommend that the complaint be dismissed in its
entirety.
CONCLUSIONS OF LAW
1. Associates and Keuka are separate employers within
the meaning of Section 2(2) of the Act, and are engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. The Carpenters and Local 700 are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
3. The General Counsel has not established by a
preponderance of the evidence that Associates or Keuka
has violated the Act as set out in the complaint.
Upon the foregoing findings of fact and conclusions of
law, and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
THE REMEDY
Having found that Associates and Keuka are separate
and independent entities and not a single employer and
ORDER
The complaint is dismissed in its entirety.