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SHORE EX REL. NLRB v. UNITED BHD. OF CARPENTERS

August 13, 1970

Henry Shore, Regional Director for Region Six, National Labor Relations Board, for and on Behalf of The National Labor Relations Board, Petitioner,
v.
United Brotherhood Of Carpenters And Joiners Of America, Carpenters District Council Of Western Pennsylvania, AFL-CIO, Respondent


Rosenberg, District Judge.


The opinion of the court was delivered by: ROSENBERG

ORDER

On October 12, 1970, the court issued the following order: ". . . the unfair labor practice charge filed with the National Labor Relations Board having been withdrawn with the approval of the Regional Director, and the parties having consented to the entry of the within order, it is therefore Ordered that the temporary injunction entered herein on August 13, 1970, be and the same hereby is vacated and dissolved and the proceeding herein terminated without costs to either party." ROSENBERG, District Judge.

 This proceeding is here on a petition filed by Henry Shore, the Regional Director for Region Six of the National Labor Relations Board (the Board), pursuant to § 10(l) of the National Labor Relations Act (the Act), as amended, 61 Stat. 149; 73 Stat. 544, 29 U.S.C. § 160(l), *fn1" seeking a temporary injunction against the respondent, United Brotherhood of Carpenters and Joiners of America, Carpenters District Council of Western Pennsylvania, AFL-CIO, pending the final disposition of a charge filed by 316 Construction Co., Inc. (316) alleging that the respondent has engaged in, and is engaging in, unfair labor practices. Specifically, it was charged that the respondent violated and is violating § 8(b)(4)(i) and (ii)(D) of the Act, 29 U.S.C. § 158(b)(4)(i) and (ii)(D), *fn2" which proscribes action to force or require an employer to assign particular work to employees in a particular labor organization or in a particular trade, craft or class, rather than to employees in another labor organization or in another trade, craft or class, in circumstances where the employer involved is not failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.

 Based upon the petitioner's conclusion that reasonable cause exists to believe that the respondent has engaged and is presently engaging in the unfair labor practice charged, the petitioner seeks the issuance of temporary injunctive relief pending the resolution of this matter before the Board. *fn3"

 Marvin G. Elman is the president and 99% owner of the stock of the following corporations: 316 Construction Co., Inc.; Elman Associates, Inc.; Four Seasons Heating and Cooling Co., Inc. and H.B.P. Properties, Inc. In addition he is a general partner in Mt. Royal Associates. In his capacity as chief executive officer, Elman directs the functions and determines the policies of these corporations and is the executive in control of all activities concerning these corporations. The activities of all these corporate entities are interrelated in that their overall function is to acquire land, build apartment buildings, and procure supplies both for the construction and the ultimate maintenance of the buildings. One of the corporations pays the wages and salaries of the employees in all the corporations, and the employees interact and perform services indiscriminately for all the corporations. Elman as president of these corporations assigns the work and supervises the employees with indifference to corporate distinctions.

 On July 21 and July 22, 1970, two business agents of the respondent Union, Gene Smigas and Adam Petrovich whose function was to organize new members, visited the construction site and demanded that Elman sign contracts with respondent Union covering the wages, working conditions and hours of employment of the non-union carpenter employees working for Elman. The respondent's representative Smigas, said to Elman "I want that work for the men I represented." Elman pointed to the wooden forms to be used as footers, and explained that he had given that work to his own men, whereupon Smigas stated, "We don't want any nailers on that job." Elman stated that "My men aren't nailers," and the conversation terminated. On July 21 and July 22, 1970, Elman rejected both overtures made by the respondent's representative. Following that the respondent placed pickets on the job with signs that read "Elman Associates, Inc. has no contract covering working conditions with the Carpenters District Council of Western Pennsylvania." They thereupon influenced independent truck drivers not to deliver needed construction supplies, and so stopped the construction. With the work stoppage at this construction site, Elman transferred the two carpenters to work at his other 31 or 32 apartment buildings. On August 5th, the day before the postponed hearing, the respondent applied to the Board for certification as union representative for the two of Elman's five carpenters, who had been at the construction project.

 The issue before me for determination is in reality not whether the respondent Union was attempting to gain employment for its members at the expense of Elman's carpenters or whether respondent was attempting to organize Elman's employees, as it is whether or not the Board has demonstrated that there was reasonable cause to believe that the elements of an unfair labor practice were present. If it is true that the Union was attempting to gain employment for its own members, then the picketing is a violation of § 8(b)(4)(i) and (ii)(D). However, if organizing of the construction carpenters was the sole aim of the Union, then no illegal activity has occurred because of the exemption provided in the building and construction industry by subsection 8(f) of the Act, 29 U.S.C. § 158(f). *fn4"

 In Schauffler v. Local 1291, International Longshoremen's Association, 292 F.2d 182, 187, C.A. 3, 1961, former Chief Judge Biggs said, "The Board need not show that an unfair labor practice has been committed, but need only demonstrate that there is reasonable cause to believe that the elements of an unfair labor practice are present. Nor need the Board conclusively show the validity of the propositions of law underlying its charge; it is required to demonstrate merely that the propositions of law which it has applied to the charge are substantial and not frivolous."

 Where as here, Congress has vested the Board with the power to grant and fashion appropriate relief, the power of the Board is broad. Teamsters Local Union No. 5 v. NLRB, 406 F.2d 439, C.A. 5, 1969; NLRB v. Bush Hog, Inc., 405 F.2d 755, C.A. 5, 1968. In Section 10 of the Act, Congress established a procedure whereby those individuals who have grievances under the Act can come before the Board for processing the entire claim, and if necessary invoke the jurisdiction of a court. Section 10(l) *fn5" provides that upon a showing of reasonable cause, the Board may petition the district court for temporary injunctive relief pending its final disposition of the matter.

 The Board filed its petition on July 29, 1970, and invokes our aid to prevent picketing until it, the Board, has a fair opportunity to perform its functions in accordance with the dictates of Congress. Thus, it is, that I am called upon to make a determination of whether the Board has reasonable cause to believe that a violation of the Act has occurred and is justified in seeking the Court's aid in the performance of its function.

 The respondent argues that there are two valid defenses here which defeat the right of the Board to hear the matter in controversy: First, that the Board lacks jurisdiction over the subject matter on the grounds that the wrong corporation was the original complainant, and second, that the evidence discloses that the respondent was conducting a membership campaign at 7070 Forward Avenue, and therefore is within the exception provided for in Subsection 8(f). *fn6"

 The difficulty with the first contention of the respondent is that we have here what may be loosely termed an entity consisting of "siamese corporate quadrupeds ". Here four corporations are tied together and so intertwined and interconnected that there is no telling which of the four is performing a single act, since all four act collectively. They all occupy the same office. All four corporations have the same president. The executive functions for all four and their control rests in the same individual. All employees serve indistinguishably all four corporations, and are paid by one bookkeeping or accounting source. Factually it would seem that the president in common of the four corporations is the employer. In reality, all four corporate entities are the alter-egos of Elman, and together function as one conglomerate whole, as a corporate veil for Elman's (the owner's) purposes. To hold otherwise would be to disregard reality in favor of superficial technicalities.

 The NLRB has on many occasions dealt with similar situations, and combined various employers as one integrated enterprise for the purpose of meeting the jurisdictional requirements. NLRB v. Jordan Bus Company, 380 F.2d 219, C.A. 10, 1967; NLRB v. City Yellow Cab Company, 344 F.2d 575, C.A. 6, 1965; Operating Engineers Local 428, 67 LRRM 1144 (Jan. 16, 1968). It is not for me to determine this procedure of the Board erroneous. Such matters are much better left to the expertise of the Board.


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