The opinion
TAMM, Circuit Judge
(dissenting):
I must dissent from this needless vacation of the Board’s order, which has resulted from a factual disagreement between a majority of this division and the expert agency charged with principal responsibility for administering our labor policy.
There is no dispute in this case regarding the applicable legal standard. To determine whether two nominally separate employers are, in reality, a “single employer” for purposes of the Act, (1) the interrelationship of operations, (2) centralized control of labor relations, (3) common management and (4) common ownership must all be considered. Radio Union v. Broadcast Service of Mobile, Inc., 380 U.S. 255 , 85 S.Ct. 876 , 13 L.Ed.2d 789 (1965). Consequently, the controversy is simply over the application of those indicia of control to this factual context.
Thus viewed, it becomes apparent that the majority simply has substituted its view of the facts for that of the agency to whom Congress has assigned the task of developing expertise over this type of factual affair. Several references to the majority opinion will suffice to demonstrate this phenomenum.
For example, while discussing the factors the Board found significant, the majority delves into the record itself and delineates the facts it finds significant to reach the opposite conclusion. See 171 U.S.App.D.C. p. 108, 518 F.2d p. 1046. The majority attempts to paint a picture of a substantial shifting of personnel between the companies, despite the fact that even the Administrative Law Judge found “little evidence of transfers of such [i. e. rank & file] employees between [Kiewit’s] and South Prairie’s payroll.” Ante, 171 U.S.App.D.C. p. 109, 518 F.2d p. 1047. Finally, the majority claims that South Prairie’s bidding on four Turnpike Authority jobs between February and June 1972 precluded Kiewit from doing so; in fact, Kiewit was working near full capacity during this period. This is not a case where a new non-union company is “spun off” to draw,, away the union company’s business; before entering Oklahoma, South Prairie had been in existence for twenty-eight years as a non-union company.
Were we deciding this case de novo, I might agree with the majority. However, finding the Board’s order supported by substantial evidence, I respectfully dissent.