UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


O'DOVERO, PETER

v.

NLRB


98-1433b

D.C. Cir. 1999


*	*	*


Rogers, Circuit Judge: Petitioner Peter O'Dovero d/b/a  Associated
Constructors and O'Dovero Construction, Inc. ap- peals the decision
and order of the National Labor Relations  Board finding that it
violated s 8(a)(1), (a)(3) and (a)(5) of the  National Labor Relations
Act ("Act"), 29 U.S.C. ss 158 (a)(1),  (a)(3), and (a)(5), and
directing that petitioner henceforth  cease and desist from
"[d]iverting work from one group of  employees to another in order to
discourage union activity,"  and "[r]esume bidding for jobs to be
performed by unit  employees under bidding practices as they existed
prior to  the unlawful diversion of union work." Peter O'Dovero d/b/a 
Associated Constructors and O'Dovero Construction, Inc.,  325 N.L.R.B.
No. 187, 1998 WL 380989, at *5 (1998). Before  the court, petitioner
makes four claims of error: first, that  the Board was precluded from
making a single employer  finding in light of a prior prosecutorial
decision not to pursue  such a union complaint and the union was
estopped from  bringing the instant case; second, the Board's finding
that  O'Dovero has not ceased its operations is unsupported by 
substantial evidence in view of the evidence that it was  performing
no work nor bidding on contracts and that discus- sions about
dissolving O'Dovero began two years earlier;  third, that the Board's
finding that work was diverted from  O'Dovero to Associated elevates
treatment of a union subcon- tractor and distorts the underlying
contractual relationship;  and fourth, that the Board abused its
discretion by imposing  an unduly burdensome remedy, effectively
forcing resumption  of unprofitable operations. Only the latter
contention re- quires some explication. Because the Board's findings
are  supported by substantial evidence in the record, and because  the
Board did not abuse its discretion in requiring resumption  of the


enforcement of the Board's order.1


I.


Associated Constructors ("Associated") and O'Dovero Con- struction,
Inc. ("O'Dovero") are family owned and run con- struction companies.
Associated, founded in the 1980s, is  owned entirely by Peter
O'Dovero, while O'Dovero, estab- lished in the 1960s, is owned by
Peter O'Dovero, his wife Lois,  and his son James, who is president of
O'Dovero. Historical- ly, O'Dovero has performed work on Associated's
projects,  specializing in laying underground pipe. That work is per-
formed by unionized employees, who are hired on an as  needed basis
during the construction season, which generally  runs from mid-April
to the end of November. O'Dovero has  recognized the International
Union of Operating Engineers,  Local 324 ("the Union") since its
incorporation, although the  Union was not certified until 1993.
Associated has never  recognized the Union, although the Union has
made attempts  to organize its employees.


The instant case arises in connection with a project begun  in April
1995 to replace underground water pipes in Caspian,  Michigan. The
heavy equipment work involved in laying  underground pipe was assigned
to O'Dovero. On several  occasions before the job shut down in
November, Craig  Dufresne, job superintendent of the O'Dovero
equipment  operators, as well as supervisor of approximately ten
Associ- ated laborers, told the heavy equipment operators that the 
job was non-union, although the operators were then being  paid union
wages and receiving union benefits, and were paid  as well for show-up
as required under the collective bargain-




__________

n 1 Petitioner does not challenge the Board's findings that peti-
tioner violated s 8(a)(1) and (a)(5) by failing to bargain with the 
Union for a new contract and with respect to the diversion of work  on
the Caspian project, by making coercive statements regarding 
employees' decisions to join or to stay in the Union, and by dealing 
directly with Union represented employees. Accordingly, we affirm 
those findings. See, e.g., Corson and Gruman Co. v. NLRB, 899  F.2d
47, 50 n.4 (D.C. Cir. 1990).


ing agreement between the Union and O'Dovero. Because  considerable
pipe laying work remained to be done, Dufresne  told the operators
that the project would start up again when  the weather broke.


In April 1996, shortly before O'Dovero's contract with the  Union was
to expire, Bill Gray, the Union's bargaining repre- sentative, asked
James O'Dovero about bargaining the terms  of a successor contract.
Gray was informed that a new  contract might not be possible because
Peter O'Dovero was  upset that the Union had tried to organize
Associated's  employees. On June 20, 1996, Gray was told that O'Dovero
 had decided to cease operations. Similar statements were  made
regarding Peter O'Dovero's anger at the Union by  Dufresne, when he
tried in the spring of 1996 to recruit  O'Dovero employees who had
worked on the Caspian project  in 1995 on the basis that the project
work would be non- union. Dufresne informed at least two O'Dovero
employees  who had worked in 1995 that the project would be entirely 
non-union because Peter O'Dovero was angry at the Union  and
particularly at Union representative Gray. The Union  members refused
to accept work on these terms, and the  Caspian project was completed
by Associated employees on a  non-union basis.


In response to the Union's filing of charges alleging, among  other
things, failure to bargain a successor contract and  illegal work
diversion, an Administrative Law Judge ("ALJ")  found that O'Dovero
and Associated were a single employer,  that O'Dovero had ceased
operations, and that various of  petitioner's actions violated the
Act, including unlawful diver- sion of Caspian project work for
anti-union purposes from  O'Dovero to Associated in violation of s
8(a)(3) and (a)(1).  The National Labor Relations Board ("Board")
adopted the  ALJ's decision except as to O'Dovero's operations. The 
Board found no cessation of operations, but only the contin- ued
diversion of work to non-union represented Associated  employees.


The court will set aside the Board's decision and order only  if the
Board " 'acted arbitrarily or otherwise erred in applying  established
law to the facts' at issue, International Union of 


Elec., Elec., Salaried, Mach. and Furniture Workers, 41 F.3d  at 1536
(citations and internal quotation marks omitted), or if  its findings
are not supported by 'substantial evidence'. 29  U.S.C. s 160(e), (f)
(1988)." Plumbers and Pipe Fitters  Local Union No. 32 v. NLRB, 50
F.3d 29, 32 (D.C. Cir. 1995).  See also Elastic Stop Nut Div. of
Harvard Ind., Inc. v.  NLRB, 921 F.2d 1275, 1279 (D.C. Cir. 1990).
Moreover, the  court owes great deference to the Board's determination
of an  appropriate remedy for violations of the Act, setting aside 
that remedy only if the Board's remedy "is a patent attempt  to
achieve ends other than those which can fairly be said to  effectuate
the policies of the Act." Virginia Elec. & Power  Co. v. NLRB, 319
U.S. 533, 540 (1943). See also Teamsters  Local Union No. 171 v. NLRB,
863 F.2d 946, 957 (D.C. Cir.  1988).


II.


Petitioner's challenges to the Board's findings for lack of 
substantial evidence do not merit extended discussion.


Notably, petitioner does not challenge the Board's finding  that
Associated and O'Dovero are a single business enter- prise. Rather,
petitioner maintains that the Board and the  Union were estopped from
making a single employer argu- ment in view of the Board's rejection
in 1995 of a similar  complaint by the Union, and in view of the
Union's alleged  twenty years of "knowledge of the O'Dovero-Associated
rela- tionship". Neither contention has merit. The 1995 decisions  by
the Board's Acting Regional Director and General Counsel  not to
pursue prosecution of the Union's 1995 charges were  based solely upon
the limited evidence then provided by the  Union, and not upon
independent investigation by the Board.  Prosecutorial decisions by
the Regional Director and General  Counsel are not adjudications and
have no preclusive effect  on future actions of the Board. NLRB v.
United Food &  Commercial Workers Union, 484 U.S. 112, 125-26 (1987); 
Bryant & Stratton Bus. Inst. Inc. v. NLRB, 140 F.3d 169, 185  (2d Cir.
1998); Ball Corp., 322 NLRB 948, 951 (1997). Peti- tioner's waiver or
estoppel argument, that the Union has long 


known of the single employer relationship between Associated  and
O'Dovero, is no less flawed because, as the ALJ pointed  out, the
existence of a single integrated enterprise does not  alone constitute
an unfair labor practice; there must be other  evidence on which to
base an unfair labor practice.


Petitioner's challenge to the Board's finding that Peter  O'Dovero
unlawfully diverted pipe work on the Caspian pro- ject in violation of
s 8(a)(3) and (a)(1), also is meritless. See  Laro Maintenance Corp. v
NLRB, 56 F.3d 224, 228 (D.C. Cir.  1995). See also NLRB v.
Transportation Mgmt. Corp., 462  U.S. 393, 395, 397-403 (1995); Wright
Line, 251 NLRB 1083  (1980). First, there was substantial evidence to
show anti- union motivation. Two witnesses, whom the ALJ credited, 
recounted statements by O'Dovero's supervisor on the Caspi- an project
that the project had "gone nonunion" because  Peter O'Dovero was angry
with the Union. Petitioner con- cedes in the reply brief that there
was substantial evidence  that the statements were made. A third
witness, also credit- ed by the ALJ, recounted being told by James
O'Dovero that  Peter O'Dovero was angry at the Union because it had 
attempted to organize Associated's employees. In addition,  the ALJ
found "that the very fact that Peter O'Dovero and  [the O'Dovero
supervisor] gave differing reasons [for the  diversion of pipe laying
work] itself undermines [petitioner's]  case on this issue." 2 See
Southwest Merchandising Corp. v.  NLRB, 53 F.3d 1334, 1340 (D.C. Cir.


Substantial evidence thus supports the Board's conclusion  that
anti-union animus was a "motivating factor" in the  Caspian work
diversion. Indeed, petitioner's conflicting ex-




__________

n 2 While Peter O'Dovero claimed that the change in crew was  due to
the fact that "[t]he job was tapering down"--"[w]e went from  two
crews to one crew and it was an Associated project to start with  so
... on Associated projects we do give preference to Associated 
people," the supervisor claimed that the work was diverted because 
"we had problems with O'Dovero Construction [in 1995]", although  the
only problems he could identify involved Associated's employees  and
he agreed as to every O'Dovero employee about whom he was  asked that
the employee had performed well and was asked to  return, albeit as an
Associated employee.


planations for the reassignment of work hardly constitute the  showing
that it must make, namely that "the same action  would have taken
place even in the absence of the protected  conduct". See Laro, 56
F.3d at 228, 229. That work was  assigned to O'Dovero employees after
the Union attempted to  organize Associated, and after the Union had
filed its 1995  unfair labor practices complaint, demonstrates only
that there might have been  other, earlier opportunities for Peter
O'Dovero to develop  anti-union animus and does not demonstrate that
Peter  O'Dovero did not act on anti-union animus in diverting Caspi-
an project work to Associated employees.


There also was substantial evidence that O'Dovero never  ceased
operations. The Board noted in view of the evidence  of the single
employer status of O'Dovero and Associated, see,  e.g., Radio &
Television Broadcast Technicians Local Union  1264 v. Broadcast
Services of Mobile, Inc., 380 U.S. 255, 256  (1965) (per curiam),
which finding petitioner does not chal- lenge, that "it is not
entirely clear what it means to say that  one of them, but not the
other, has ceased operations." In  any event, Peter O'Dovero admitted
that the corporate entity  is "still in existence", "did not file
papers of dissolution," and  could resume a project "tomorrow" if it
so chose. Other than  evidence that discussions about dissolution of
O'Dovero oc- curred as early as 1994, petitioner can point to nothing
that  would support its distinction between existence and cessation. 
Petitioner's contention that the Board erred by failing to  undertake
a partial closing analysis under Textile Workers v.  Darlington Mfg.
Co., 380 U.S. 263 (1965), is unpersuasive  inasmuch as that case
involved a corporate liquidation and  physical closing of a mill;
nothing of the kind is shown here.  That O'Dovero was not bidding on
work or performing work  misses the mark; O'Dovero's work was seasonal


III.


Turning to petitioner's challenge to the Board's remedial  order, the
Board directed that O'Dovero must resume opera-


tions inasmuch as there was no showing that it would be  unduly
burdensome to resume the work that it historically  had done. The
Board clarified, however, that nothing in its  Order "prohibit[s
petitioner] from abandoning any operations,  or from declining to bid
on projects, for legitimate business  reasons." Peter O'Dovero, 325
N.L.R.B. No. 187, 1998 WL  380989, at *5.


Under s 10(c), the Board "has wide discretion in ordering  affirmative
action" to remedy the effects of unfair labor  practices, Virginia
Electric, 319 U.S. at 539. Thus, the court  will decline to enforce
the Board's remedial order only if the  order represents "a patent
attempt to achieve ends other  than those which can fairly be said to
effectuate the policies of  the Act." Virginia Electric, 319 U.S. at
540; Teamsters  Local Union No. 171, 863 F.2d at 957. A remedial order
 directing the resumption of operations cannot stand, however,  where
a company demonstrates that "compliance with the  order is unduly
economically burdensome." Teamsters Local  Union No. 171, 863 F.2d at
957-58. See also Coronet Foods,  Inc. v. NLRB, 981 F.2d 1284, 1288
(D.C. Cir. 1993); Lear  Siegler, Inc., 295 N.L.R.B. 857, 861 (1989).
While a determi- nation of undue burden necessarily is case specific,
courts  have found an undue burden to exist where a plant was  ordered
reopened "at an estimated operating loss of several  hundred thousand
dollars to the company a year", Frito-Lay  v. NLRB, 585 F.2d 62, 68
(3d Cir. 1978), or where a "substan- tial capital outlay" would have
been required of a small  company with a "minimal profit margin." NLRB
v. R & H  Masonry Supply, Inc., 627 F.2d 1013, 1014 (9th Cir. 1980). 
Similarly, the Board itself acknowledged in Lear Siegler that 
requiring "an entity to reopen a demonstrably unprofitable  facility",
even where it could "offset losses from the reopened  facility with
profits from others ... might well be found to be  unduly burdensome."


Petitioner contends that the Board abused its discretion in  ordering
O'Dovero to resume operations. In support of its  contention,
petitioner points to evidence that the compiled  financial statements
of O'Dovero prepared by Anderson,  Tackman & Company, showed operating
losses in 1993 


through 1996 of $20,367, $4,630, $32,398, and $97,689, respec- tively.
Consequently, petitioner claims, the decision was  made to cease
operations at the annual shareholders meeting  in December 1995. From
this evidence petitioner maintains  that the Board is requiring the
cross subsidization that it  warned against in Lear Siegler, 295
N.L.R.B. at 861.


The difficulty with petitioner's contention is not its theory  but its
deficiency of evidence to support its theory. As the  Board explained,
the operating losses shown in O'Dovero's  financial statements have
little meaning in view of the inter- mingled and integrated operations
of O'Dovero and Associat- ed. The evidence of record does not isolate
O'Dovero's losses  in a sufficient manner. Some of O'Dovero's major
expenses  inure to the integrated company's benefit, such as rent
being  paid to another Peter O'Dovero company, and his wife's and 
son's salaries being paid by O'Dovero, yet much of the work  that
O'Dovero had performed in recent years was bid by  Associated. Thus,
it was impossible to tell whether on these  projects the company as a
whole lost money on the work that  O'Dovero performed during the
period in question, or wheth- er the losses shown were more than
offset by profits realized  by Associated. Consequently, the financial
statements do not  establish, and no witness claimed, that the Company
did not  realize an overall profit on the work that O'Dovero per-
formed. Indeed, the accountants' telling qualification stated  that
their financial statements were prepared with "manage- ment[ ]
elect[ing] to omit substantially all of the disclosures  and the
statements of cash flows required by generally ac- cepted accounting
principles," and that those omissions  "might influence the user's
conclusions about [O'Dovero's]  financial position, results of
operations and cash flows."  Moreover, the 1996 statement reflected
losses when O'Dovero  performed virtually no unit work.


Even assuming the validity of petitioner's contention that  O'Dovero
has sustained operating losses for several years,  petitioner still
fails to show that the Board's order is unduly  burdensome. Given the
highly intermingled infrastructure of  O'Dovero and Associated, which
remained virtually un- changed, as demonstrated by Peter O'Dovero's
testimony that 


O'Dovero could resume operations "tomorrow", the Board  could properly
find that its resumption directive imposes no  significant operational
costs upon petitioner. Petitioner did  not claim that resumption of
prior bidding practices would  entail any capital investment, or
involve other financial com- mitments, such as moving costs.
Furthermore, the limiting  language in the Board's order makes clear
that O'Dovero may  decline to bid on a particular project if it has a
legitimate  reason for doing so; what petitioner may not do is fail to
bid  on work for anti-union reasons. Contrary to petitioner's 
contention, the Board's order does not require it to resume an 
operation that it has already determined to be intolerably 
unprofitable. The Board simply found that petitioner had  failed to
show that its actions were impelled by a determina- tion that it was


Put otherwise, the Board's order requires no more than a  return to the
status quo ante with respect to "work assign- ment decisions". See,
e.g., Emhart Indus. v. NLRB, 907 F.2d  372, 378 (2d Cir. 1990). Thus,
if and when Associated enters  into a contract that involves in whole
or in part ground pipe  work of the type that would have been
performed by O'Dove- ro's unionized employees prior to the unlawful
diversion of  work and O'Dovero's purported "cessation" of operations,
 then that work must be continued to be assigned to the  unionized
employees. The same would be true if O'Dovero  were to enter into a
contract; work under that contract could  not be shifted to
Associated's nonunion employees unless  prior to the purported
"cessation" of O'Dovero's operations  such work would have been
shifted for reasons unrelated to  anti-union animus.


Additionally, nothing in the Board's order would prevent  the owners of
O'Dovero from taking steps to bring about the  dissolution of O'Dovero
in a lawful manner. If the owners of  O'Dovero conclude that O'Dovero
and its bargaining unit type  of work is an economic drain, and,
therefore, formally dissolve  O'Dovero, nothing in the Board's order
would prevent Associ- ated from performing non-O'Dovero type work
under future  contracts with non-union employees. So understood, the 
Board's order did not require petitioner "to engage in unprof-


itable operations. Petitioner having failed to show that the  remedial
order was unduly burdensome," it necessarily fol- lows that the Board
did not abuse its discretion in directing  resumption of O'Dovero's
operations.


Accordingly, we deny the petition and order enforcement of  the Board's
order.