Glendora Plumbing

National Labor Relations Board - Board Decisions

Aug 23, 1968

172 N.L.R.B. 1700 (N.L.R.B. 1968)

1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. Howard Jenks , d/b/a Glendora Plumbing and
Plumbers and Steamfitters Local 398, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada , AFL-CIO
Joint Council of the Brotherhood of Independent
Workers , affiliated with the National Federation
of Independent Unions (Glendora Plumbing) and
Plumbers and Steamfitters Local 398, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada , AFL-CIO and Glendora
Plumbing Service , Party to the Contract. Cases
31-CA-3 31 and 31-CB-91
August 23, 1968
SUPPLEMENTAL DECISION AND AMENDED
ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On May 31, 1967, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding, finding that Respondents had
engaged in and were engaging in certain unfair
labor practices and ordering that they cease and de-
sist therefrom and take certain affirmative action to
effectuate the policies of the National Labor Rela-
tions Act. The Board found that Respondent Em-
ployer, J. Howard Jenks, d/b/a Glendora Plumbing,
and Orra D. Jenks, d/b/a Glendora Plumbing Ser-
vice, constituted a single integrated business entity
and that the employees of Glendora Plumbing and
Glendora Plumbing Service comprised a single unit
appropriate for purposes of collective bargaining.
On November 14, 1967, the General Counsel
moved to reopen the record for the limited purpose
of joining J. Howard Jenks, Gary R. Turner, and
Robert I. Vaughn, d/b/a Glendora Contractors,
herein called Contractors, and Glendora Construc-
tion Company, herein called Construction, as
Parties-Respondent on the ground that Contractors
and Construction were alter egos of, or successors
to, Glendora Plumbing and Glendora Plumbing Ser-
vice and as such should be subject to the remedial
provisions of the Order already entered in this
proceeding.
On January 25, 1968, the Board issued in this
proceeding as well as to the proposed parties a
notice to show cause why the General Counsel's
motion to join should not be granted.
' 165 NLRB 101 Trial Examiner Eugene K Kennedy issued the Trial
Examiner 's Decision
On February 8, 1968 , Glendora Plumbing and
Contractors filed an opposition motion containing
the following allegations : ( 1) J. Howard Jenks,
d/b/a Glendora Plumbing , ceased operations and
discontinued business on August 1, 1967. (2) The
name of Glendora Contractors has been changed to
Glendora Plumbing and Contractors . Gary R.
Turner and J. Howard Jenks, but not Robert
Vaughn , are parties in that firm . ( 3) Glendora
Plumbing Service ceased operations and discon-
tinued business on January 1, 1967, and its assets
and liabilities were sold to Glendora Plumbing and
Contractors . ( 4) Glendora Construction Company
is unknown to Glendora Plumbing and Contractors.
(5) All the parties the General Counsel would join
as Parties -Respondent do not meet the jurisdic-
tional standards of the Board.
On March 4, 1968 , the Board issued an Order re-
manding proceeding to the Regional Director in
which it reopened the proceeding and ordered that
a further hearing be held before Trial Examiner Eu-
gene K. Kennedy for the purpose of receiving
evidence on whether or not J . Howard Jenks and
Gary R. Turner , d/b/a Glendora Plumbing and Con-
tractors , or any other business entity, is an alter ego
or successor to either J. Howard Jenks , d/b/a Glen-
dora Plumbing , or Orra D. Jenks , d/b/a Glendora
Plumbing Service.
On May 2 , 1968, J . Howard Jenks , d/b/a Glen-
dora Plumbing; Orra D. Jenks , d/b/a Glendora
Plumbing Service ; J. Howard Jenks and Gary
Turner , d/b/a Glendora Plumbing and Contractors;
Plumbers and Steamfitters Local 398, United As-
sociation of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United
States and Canada , AFL-CIO; and counsel for the
General Counsel of the National Labor Relations
Board filed with the Board in Washington , D.C., a
motion to transfer proceedings to the Board and a
stipulation of facts . The said parties stipulated that
they waived a hearing before a Trial Examiner, the
ruling upon motions by a Trial Examiner , and the
issuance of a Trial Examiner 's Decision . The parties
also agreed that the stipulation of facts and certain
other formal papers shall constitute the entire
record in this matter , and moved to transfer the
matter for findings of fact , conclusions of law, and
Supplemental Decision and Order directly by the
Board . They waived oral argument in this proceed-
ing and requested that the Board set a time for fil-
ing of briefs.
On May 3, 1968, the Board granted the parties'
motion to transfer the case to the Board . A brief
172 NLRB No. 197
GLENDORA PLUMBING
was filed on May 20, 1968, by the General Counsel.
On June 7, 1968, the General Counsel filed a
motion to correct record with respect to certain
dates in the stipulation of facts executed by the
parties. On June 10, 1968, the Board grantedthis
motion.
Upon the basis of the parties' stipulation of facts,
the brief, and the entire record in this proceeding,
we make the findings set forth below.2
The stipulated facts show the following:
1. On January 1, 1967, J. Howard Jenks, Gary
R. Turner, and Robert I. Vaughn entered into a
partnership agreement for the purpose of engaging
in the business of general contracting, concrete
construction, and plumbing.' Prior to this date,
Vaughn was an employee of Glendora Plumbing
Service and Glendora Plumbing doing field super-
visory work and occasional plumbing estimating.
2. Prior to the time of entering into said partner-
ship, Turner was engaged, as a sole proprietorship,
in the general contracting business under the name
of Gary R. Turner, General Contractor. Although
Turner paid no rent therefor, he occupied the same
office space as Glendora Plumbing and Glendora
Plumbing Service. With the exception of work per-
formed by Turner and by a carpenter and laborers
who were in the employ of Glendora Plumbing Ser-
vice, General Contractor subcontracted out all its
other work.'
3. On January 12, 1967, the partnership ob-
tained a certificate to do business under the ficti-
tious name of Glendora Contractors. J. Howard
Jenks invested more than $59,000 in trucks, equip-
ment, and cash,5 while Vaughn and Turner respec-
tively invested cash in the amount of $500 and
$750, with the latter also contributing the use of
two trucks.
4. During 1967 and the first quarter of 1968,
Turner and/or Jenks entered into some plumbing
and general contracting contracts in the name of
Glendora Plumbing and others in the name of Glen-
dora Plumbing Service which were performed by
employees on the payroll of Glendora Contractors
or Glendora Plumbing and Contracting.
5. As of January 4, 1967, Orra D. Jenks became
an employee of Glendora Plumbing and performed
the same bookkeeping and clerical services in-
terchangeably for Glendora Contractors and Glen-
dors Plumbing which she had previously performed
2 Pursuant to the provisions of Section 3(b) of the National Labor Rela-
tions Act, the Board has delegated its powers in connection with this case
to a three - member panel
' Vaughn withdrew from the partnership in April 1967
'The laborers as well as office employees on the payroll of Glendora
Plumbing Service worked interchangeably for that Company, Glendora
Plumbing , and General Contractors
1701
for Glendora Plumbing and Glendora Plumbing
Service.
Glendora Contractors took over the plumbers
and laborers of Glendora Plumbing and Glendora
'Plumbing Service and in 1967 these employees
were used interchangeably by Glendora Plumbing
and Glendora Contractors.6
The employees ' group health insurance, which
was obtained in 1967 , was secured in the name of
Glendora Plumbing Service.
6. The trucks previously owned by Turner bore
the name of Glendora Plumbing until April 20,
1968, after which it was changed to Glendora
Plumbing and Contracting . The same change of
name was made with respect to the trucks owned
by J. Howard Jenks and Orra D. Jenks.
7. Glendora Contractors , which changed its
name to Glendora Plumbing and Contracting' in
September 1967, used the telephone number of
Glendora Plumbing and Glendora Plumbing Ser-
vice . The current telephone listing is Glendora
Plumbing Service , while the listing in the plumbing
section of the city directory is Glendora Plumbing
and the listing in the general contracting section is
Glendora Plumbing and Contracting.
8. Glendora Contractors and Glendora Plumbing
and Contracting operated under the State Board of
Equalization Sellers permit issued to Glendora
Plumbing until October 1967, when a permit was
issued to Glendora Plumbing and Contracting.
Glendora Plumbing still retains business license
and renewed one as late as October 1967.
9. In September 1967, Glendora Contractors
moved to a new office location where the sign read
Glendora Plumbing but was changed to Glendora
Plumbing and Contracting in February 1968. Glen-
dora Plumbing and Contracting has been using
Glendora Plumbing Service stationery on which the
former 's name is stamped.
Glendora Plumbing and Contracting is still using
the warehouse and yard owned by J. Howard Jenks
and Orra D. Jenks and previously used by Glendora
Plumbing and Glendora Plumbing Service.
10. In 1967, the gross volume of business of
Glendora Contractors was derived from plumbing
($141,449), general contracting ($20,655), and
concrete construction ($478). During the first
quarter of 1968, the bulk of the income stemmed
' Glendora Plumbing still maintains a bank account and owns the
machinery, yard equipment, trucks, and office equipment used by Glen-
dora Contractors and Glendora Plumbing and Contracting
' All general contracting work was subcontracted out by Glendora Con-
tracting except that performed by the laborers and Turner
' However, no certificate to do business under a fictitious name was is-
sued
1702 DECISIONS OF NATIONAL
from , plumbing ($46,557) in contrast to general
contracting ($1,716).
In determining whether one company is a succes-
sor to another , the Board has taken into account
the continuity of the original business operation,
the use of the same plant and facilities , the same
work force , and the similarity of products or ser-
vice. Application of these criteria to the instant
proceeding persuades us that Glendora Plumbing
and Contracting , which took over the business of
Glendora Plumbing and Glendora Plumbing Ser-
vice, was their successor ." Although the services
were expanded to include general contracting and
concrete construction, plumbing nevertheless con-
tinued to constitute the mainstay of the business.
Glendora Plumbing and Contracting used similar
supervision as well as laborers , plumbers , and Orra
D. Jenks , who were employed interchangeably with
the two old Glendora companies and performed
work contracted for in the name of the latter com-
panies . In addition , Glendora Plumbing and Con-
tracting continued to use the telephone number,
warehouse , yard, and equipment of its predeces-
sors.
Alternatively , we find that Glendora Plumbing
and Contracting is an alter ego of the two older
LABOR RELATIONS BOARD
Glendora firms. The principal investor in the new
company is J. Howard Jenks, the owner of Glen-
dora Plumbing, who remained in control. As noted
above, the contracts executed by, and in the name
of, the two older Glendora companies were per-
formed by the new Glendora firm, which operated
under business licenses issued to the older Glen-
dora firms and used their machinery, equipment,
and employees.'
In view of the foregoing, we shall join J. Howard
Jenks and Gary R. Turner, d/b/a Glendora Plumb-
ing and Contracting, with Glendora Plumbing and
Glendora Plumbing Service as Parties-Respondent
in order to make the remedial order applicable to
all of them.
Accordingly, we shall add the name J. Howard
Jenks and Gary R. Turner, d/b/a Glendora Plumb-
ing and Contracting, to section A of the Board's
Order, A, and the first indented paragraph of Ap-
pendix B.
ORDER
Upon the entire record , the National Labor Rela-
tions Board affirms its Decision and Order of May
31, 1967, as modified above.
"See Randolph Rubber (unnpam, ho , 152 NLRB 496, 499, Main-
tenante , Incorporated, 148 NLRB 1299, 1301
' See Butler Chemical Cumpani, 116 NLRB 1041, 1049, 1050