ELLSWORTH SHEETMETALS, INC.
Ellsworth Sheetmetals, Inc., and Benchmark Sheetme-
tal Corp. (Alter Ego) and Sheet Metal Workers
International Association, Local Union No. 83,
AFL-CIO. Case 3-CA-6554
May 1, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On April 27, 1977, Administrative Law Judge Ivar
H. Peterson issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and a supporting brief, and the General Counsel filed
exceptions.
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
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, and to
adopt his recommended Order, as modified herein.
We agree with the Administrative Law Judge that
Respondents constitute a single entity and violated
Section 8(a)(5) and (1) of the Act, as alleged in the
complaint, by unilaterally, and without notice to or
consultation with the Union, changing the existing
wage rates of their employees in the appropriate unit
and by failing and refusing to make the contributions
on behalf of the employees to the insurance, pension,
vacation, and apprenticeship funds as provided in its
collective-bargaining agreement with the Union.
However, we do not agree with the Administrative
Law Judge's further finding that Respondent Ells-
worth committed an independent violation of Sec-
tion 8(a)(5) and (I) by setting up Benchmark as an
alter ego, transferring its employees thereto, and
paying them with Benchmark checks. We further
correct an apparently inadvertent error of the Ad-
ministrative Law Judge by modifying his recom-
mended Order and substituting a new notice to
include a provision, pursuant to the recommendation
set forth in "The Remedy" section of his Decision,
effectuating the terms of the collective-bargaining
agreement so as to make Respondents' employees
whole for the difference between the rates they
received and those provided in the agreement.
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-
235 NLRB No. 172
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dents, Ellsworth Sheetmetals, Inc., and Benchmark
Sheetmetal Corp., Fort Edward, New York, their
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
I. Substitute the following for paragraph 2(b):
"(b) Give effect to the contract with the Union and
apply that agreement to the sheetmetal workers in
the employ of Ellsworth Sheetmetals, Inc., and
Benchmark Sheetmetal Corp., make them whole for
the monetary difference between what they were
paid and the wage rates contained in that agreement,
and pay to the Union's insurance, pension, vacation,
and apprenticeship funds the contributions provided
in the collective-bargaining agreement between the
parties, with interest thereon to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). (See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).)"
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and, upon
request, bargain with Sheet Metal Workers Inter-
national Association, Local Union No. 83, AFL-
CIO, as the exclusive representative of our em-
ployees in the appropriate unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to self-organization,
to form labor organizations, to join or assist Sheet
Metal Workers International Association, Local
Union No. 83, AFL-CIO, or any other labor
organization, to bargain collectively through rep-
resentatives of their own choosing, or to engage in
other protected concerted activities for the pur-
poses of mutual aid or protection, or to refrain
from any or all such activities, as guaranteed by
Section 7, except to the extent permitted by the
proviso to Section 8(a)(3) of the Act, as amended.
WE WILL, upon request, bargain collectively
with Sheet Metal Workers International Associa-
tion, Local Union No. 83, AFL-CIO, as the
exclusive representative of all our employees in
the appropriate unit, described below, with regard
to rates of pay, hours of employment, and other
terms and conditions of employment and, if an
understanding is reached, embody such under-
1273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing in a signed agreement. The appropriate
unit is:
All journeymen and apprentice sheetmetal
workers employed by us, excluding all office
clerical employees, all professional employ-
ees, and all guards and supervisors as de-
fined in the Act.
WE WILL give effect to our contract with Sheet
Metal Workers International Association, Local
Union No. 83, AFL-CIO, and apply that contract
to the sheetmetal workers in our employ, make
them whole for the monetary difference between
what they were paid and the wage rates contained
in the contract, and pay to the insurance, pension,
vacation, and apprenticeship funds of Sheet
Metal Workers International Association, Local
Union No. 83, AFL-CIO, the contributions
provided for in the contract, with interest.
ELLSWORTH
SHEETMETALS, INC. AND
BENCHMARK SHEETMETAL
CORP.
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: This case
was heard by me in Albany, New York, on 4 days
commencing on August 16, 1976, and concluding on
December 17, based upon a complaint issued by the
Regional Director for Region 3 on June 30, which, in turn,
was based upon a charge filed by Sheet Metal Workers
International Association, Local Union No. 83, AFL-CIO,
herein called the Union, on May 13. In substance, the
complaint alleged that Respondent Ellsworth Sheetmetals,
Inc., and its alleged alter ego, Benchmark Sheetmetal
Corp., since on or about November 13, 1975, had refused
to bargain collectively with the Union as the exclusive
representative of an appropriate unit of employees repre-
sented by the Union, and that since on or about May 1,
1970, the Union and Respondents had entered into
collective-bargaining agreements which they maintained in
force and effect covering the employees in the appropriate
unit. The complaint further alleged that commencing on or
about November 13, 1975, and thereafter, Respondents
refused to bargain with the Union in that Respondents
unilaterally and without notice to or consultation with the
Union changed the existing wage rates of its employees in
the appropriate unit and failed and refused to make the
contributions on behalf of these employees to the insur-
ance, pension, vacation, and apprenticeship funds as
provided in the collective-bargaining agreement, by placing
these employees on the payroll of Respondent Benchmark
and paying them with checks carrying the name of
I The unopposed motion of counsel for the General Counsel to correct
the transcript in certain respects in hereby granted.
Respondent Benchmark. By these acts, the complaint
alleged that Respondents had engaged in conduct violative
of Section 8(aX)(1) and (5) and Section 2(6) and (7) of the
Act. In its answer, dated July 13, Respondents denied that
Ellsworth and Benchmark were New York corporations,
but admitted that Ellsworth maintained an office and its
main place of business in Fort Edward, New York; it also
denied that it set up Benchmark and that the latter at all
material times had operated out of Ellsworth's plant,
engaged in the same business operations, utilized Ells-
worth's plant and equipment, and employed the same
employees and supervisors as Ellsworth. Respondents
denied that either of them had engaged in any conduct
violative of the Act.
Upon the entire record' in the case, my observation of
the witnesses, and after considering the briefs filed with me
by counsel for the parties on or about January 18, I make
the following:
FINDINGS OF FACT
I. JJRISDICTION
Respondent Ellsworth has, at all times material, main-
tained its principal office and place of business in the city
of Fort Edward, New York, where it has been engaged in
the fabrication and installation of sheetmetal and related
products. It is alleged that on or about May 28, 1975,
Respondent Ellsworth set up a corporation known as
Benchmark, and that thereafter Benchmark has operated
out of the Fort Edward plant, has been engaged in the
same type of operations as Respondent Ellsworth, has used
the Ellsworth plant and equipment, and has employed the
same employees and supervisors as theretofore had been
employed by Ellsworth. Thus, the complaint alleged that
since on or about May 28, Respondent Ellsworth and
Respondent Benchmark have been affiliated businesses
with common officers, ownership, directors, and operators
and, in consequence, constitute a single integrated business
enterprise with their respective labor policies formulated
and administered by the same directors and officers. The
complaint alleges that Benchmark has at all times since
May 28, 1975, been an alter ego of Respondent Ellsworth.
It is admitted that Respondent Ellsworth comes within the
Board's jurisdictional standards, but this is denied as to
Benchmark.
11. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleged that a unit consisting of all
journeymen and apprentice sheetmetal workers employed
by Respondents at its Fort Edward plant, excluding all
office clerical employees, all professional employees, and
all guards and supervisors as defined in the Act, constitute
an appropriate unit for collective-bargaining purposes
within the meaning of Section 9(b) of the Act, and that the
Union, at all material times since on or about May 1, 1970,
has been the representative for collective-bargaining pur-
poses of the employees in the foregoing unit. Since May I,
1970, the parties have maintained collective-bargaining
1274
ELLSWORTH SHEETMETALS, INC.
agreements covering the employees in the foregoing unit. It
is asserted that the Union requested Respondents to
bargain collectively with it concerning the rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment of the employees in the foregoing
unit, and that since on or about November 13, 1975,
Respondents have refused to bargain with the Union
concerning the employees in the foregoing unit, and that it
had unilaterally, without notice to, advice of, or consulta-
tion with the Union, changed existing wage rates of its
employees in the appropriate unit and failed and refused to
make the contributions on behalf of these employees to the
Union's insurance, pension, vacation, and apprenticeship
funds as provided in the agreement between the parties, by
placing these employees on the payroll of Respondent
Benchmark and paying them with checks carrying the
name of Respondent Benchmark.
The Union and an association of contractors has at all
material times maintained a collective-bargaining contract.
Respondent Ellsworth, although not a member of the
association, signed the agreement as an independent
contractor. By virtue of an automatic renewal clause, the
contract was in full force and effect at all material times
between Respondent Ellsworth and the Union. At all
times, Respondent Ellsworth has paid the wage rates and
fringe benefits provided for in the contract between the
Union and the contractors' association. However, in April
1975, Respondent Ellsworth ceased to make the contrac-
tual fringe benefit payments. This resulted in unfair labor
practice charges being filed with the Board which culmi-
nated in a Decision by Administrative Law Judge Richard
L. Denison on April 2, 1976, finding that Respondent
Ellsworth had thereby violated Section 8(a)(5) and (1) of
the Act. On June 21, 1976, the Board confirmed his
findings (224 NLRB 1506).
Carroll Temple, who had worked for Respondents as the
superintendent from November 1970 until October 1975,
testified that on a Saturday morning during the winter of
1974-1975 he attended a meeting at Respondent Ells-
worth's Fort Edward plant. Also in attendance were
President Charles Ellsworth, his son Gary, Supervisor
Daniel Buckley, and the attorney for Respondents, Daniel
Smitas. At this meeting, Charles Ellsworth, said that he
wished to form a nonunion concern and another union
company, and that he wished to use the nonunion
company on jobs where workers were not required to be
affiliated with the Union. He also stated that he wished to
keep Respondent Ellsworth in business to bid on jobs,
inasmuch as that concern was well known. Ellsworth asked
Temple to become president of the union company known
as North Country.
Until approximately August 1975, Temple was supervis-
ing some three erection jobs plus a fabrication shop in the
area of Plattsburg, New York. About the end of May 1975,
Ellsworth instructed him to layoff all of Respondent
Ellsworth's erection employees the following Wednesday
and tell them that they could report to work the following
morning for North Country. He also told Temple that one
James Sprague would be the president of North Country;
that the supervision would remain the same and there
would be no changes. Temple did as instructed. At
approximately this time, Temple had a conversation with
Buckley in which Buckley told him that a nonunion
company called Benchmark had been formed. Shortly
thereafter, when Temple went to Respondent Ellsworth's
Fort Edward shop to pick up the checks for the Plattsburg
employees, he discovered that the checks for the men in the
Plattsburg shop were no longer drawn on Respondent
Ellsworth but were Benchmark checks. From that time
forward, Temple was given North Country checks for the
erection employees and Respondent Benchmark checks for
the shop employees. From this time until he left Plattsburg
in October, Temple continued to supervise both the
erection employees and the shop employees. Both groups
continued to work on the same jobs in the same places
after they began to receive North Country and Benchmark
checks as they had worked when they received Respondent
Ellsworth checks. In addition, they continued to use the
same tools and trucks as previously, and the registration
and insurance on the trucks remained in the name of
Respondent Ellsworth.
After the creation of North Country and Benchmark,
Temple continued to receive his orders from Charles
Ellsworth as had been the case previously, and Ellsworth
continued to visit the North Country jobsites and the
Benchmark shop as frequently as before the changeover.
Temple continued to visit Respondent Ellsworth's Fort
Edward office to pick up the paychecks for the Plattsburg
employees, and he continued to receive these checks from
the same people as previously. It is Temple's testimony that
the difference between Benchmark and North Country
men was that those employed by North Country were all
union, whereas the Plattsburg shop employees of Bench-
mark were nonunion. The number of employees working at
the Plattsburg shop during the summer of 1975 varied
between one and seven. After the changeover, Temple paid
casual workers who were sometimes employed in the
Benchmark shop in cash; he was reimbursed with Respon-
dent Ellsworth checks.
At no time during this period did Respondent Ellsworth
notify the Union that it was establishing Benchmark and
North Country. Sometime in December or January, the
relationship between Respondent Ellsworth and Respon-
dent Benchmark came to the attention of the Union.
Raymond Sutliff, a member of the Union, called Union
President Henry Landau and told him that a nonunion
man was working for Respondent Ellsworth at a job in
Long Island, New York. Between October and December,
Sutliff had had conversations with Charles Ellsworth,
during which Ellsworth told him that he (Sutliff) was going
to be sent on the Long Island job with George Field, and
that the job would begin as soon as Local 55, which had
jurisdiction over the Long Island area, ended a strike.
About the end of December or in January, Sutliff was
informed by Temple that the Long Island job had begun,
and Field and a nonmember of the Union named Al
Plummer were working on that job. Sutliff thereupon called
Landau, and thereafter Landau contacted Leo Murtha, the
president of Local 55, and asked him to check on the Long
Island job. Sometime before December, Field had called
the hall of Local 55 to report in and had informed the
secretary of that local that he represented Respondent
1275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ellsworth. Although Local 55 was on strike at the time,
Murtha allowed Field to unload his truck. Prior to the time
Landau spoke with Murtha by telephone, and on or about
January 27, Business Agent Erikson and Antonio Colozzo,
a member of Local 55, visited the Long Island jobsite
because Field, the foreman for Respondent Ellsworth, had
not reported in to the hall of Local 55. Upon their arrival at
the jobsite, they saw Field and a man who identified
himself as Rodney LaRock. Field told Murtha and Erikson
that he was the foreman on the job; that he and LaRock
were employed by Respondent Ellsworth; and that, if
Erikson had any questions, he should contact Charles
Ellsworth. Thereafter Murtha and Erikson checked the
dues cards and social security cards of Field and LaRock.
LaRock presented identification indicating that he was in
fact Rodney LaRock. Murtha informed both men that they
were in violation of the Union's constitution, but that he
would not send LaRock back to Fort Edward if Respon-
dent Ellsworth would put Colozzo on the job. After
checking with his superiors, Field agreed to this arrange-
ment. Following this conversation, Murtha spoke by
telephone with Landau, and the latter asked Murtha to
check on the identity of LaRock inasmuch as LaRock had
recently been seen working in the Union's area. Thereupon
Murtha and Erikson visited the Long Island jobsite and
took a photograph of the person who purported to be
Rodney LaRock. Actually, that person was Al Plummer, a
nonunion man.
Shortly thereafter, Sutliff received a telephone call from
Gary Ellsworth, asking if he wished to go to work on the
Long Island job; Sutliff indicated that he would like to do
so, and Ellsworth told him that Field would pick him up
the following week. Field did so, and, when the two arrived
at the Long Island jobsite, Field called the office of Local
55 to report in and stated that he and Sutliff were working
on the Long Island job for Ellsworth Sheetmetals. It is
Sutliff's testimony that Field was the foreman on the job
for Respondent Ellsworth. When Sutliff received his first
paycheck he discovered that it was a Benchmark check.
Thereupon he called Harry VanArsdale, the bookkeeper
for Respondent Ellsworth, who told him that Sutliff should
call Charles Ellsworth as he (VanArsdale) did not want to
get in the middle. Sutliff, rather than calling Ellsworth,
telephoned Landau and reported what had happened.
Sutliff and Field received Benchmark paychecks during the
period they worked on the Long Island job; on the other
hand, Colozzo received Ellsworth Sheetmetals checks
during his period of employmen; on that job.
When Landau discovered that Respondent Ellsworth
was, in effect, back in business, he caused his office to send
out a dues delinquency letter on January 27, advising
Respondent Ellsworth that it was delinquent in the pay-
ment of contractual fringe benefits. As previously noted,
Respondent Ellsworth had ceased making fringe benefit
payments in April 1975. When Landau sent Respondent
Ellsworth a dues delinquency letter in August 1975,
counsel for Respondent Ellsworth answered that Respon-
dent had employed no one since June 1. 1975, except Gary
Ellsworth.
ill. CONTENTIONS AND CONCLUSIONS
Counsel for the General Counsel contends that although
much of the evidence indicating that Respondent Bench-
mark was the alter ego of Respondent Ellsworth relates to a
time prior to the 10(b) period, events that occurred within
the 10(b) period indicate "even more strongly the integra-
tion of Respondent Benchmark and Respondent Ells-
worth." He points out that Charles Ellsworth told Sutliff
that he (Ellsworth) had a job for Sutliff on Long Island;
and that, when Field called the office of Local 55 to
announce that he had arrived for the Long Island job, he
told the secretary of Local 55 that the contractor was
Respondent Ellsworth. Moreover, when Murtha and Erik-
son visited the Long Island jobsite, Field told them that he
and the individual known as LaRock were working for
Ellsworth, and Field gave Erikson the telephone number of
Charles Ellsworth. As a matter of fact, it was only when
Sutliff received his first paycheck that he found out that he
was employed by Respondent Benchmark rather than
Respondent Ellsworth. At the same time, however, Sutliff
and Field were being paid with Benchmark checks and
Colozzo was being paid with Ellsworth checks. Counsel for
the General Counsel contends that the contractual agree-
ments for the jobs were between Respondent Ellsworth and
Pennco, the contractor. He cites as "one of the most
graphic examples" of the interrelationships of Ellsworth
and Benchmark the Ellsworth paycheck issued to Colozzo,
dated May 5, which is signed by Gary Ellsworth, who
together with his wife, is purportedly the owner of Respon-
dent Benchmark. It is the contention of counsel for the
General Counsel that Charles Ellsworth established Bench-
mark in order to avoid the contractual obligations which
Respondent Ellsworth had with the Union. It is his
position that Benchmark was the nonunion concern the
formation of which Ellsworth discussed at the meeting
attended by Temple in the winter of 1974-75. He argues
that all the evidence points to the fact that Charles
Ellsworth "called the shots" for Benchmark from the time
it was formed. He calls attention to the fact that Charles
Ellsworth told Temple that he had a job for him with his
nonunion concern at Ithaca at the time he told Sutliff that
he had a job for him on Long Island. Counsel for the
General Counsel also points out that, in this connection,
Charles Ellsworth did not say that Benchmark had a job
for them, but, rather, stated that "he" had a job for them.
From this, he concludes that Charles Ellsworth "ran both
Respondent Ellsworth and Respondent Benchmark as a
single entity." To summarize, it is the contention of counsel
for General Counsel that, considering that Respondents
Ellsworth and Benchmark utilize the same rank-and-file
employees, Benchmark was formed by persons in control
of Respondent Ellsworth, Benchmark uses the same tools
and equipment as Respondent Ellsworth, Benchmark
employs the same office help, Benchmark uses the same
offices, and the effective control exercised by persons in
control of Respondent Ellsworth, "there can be no ques-
tion but that Respondent Benchmark is the alter ego of
Respondent Ellsworth."
It is the contention of counsel for the General Counsel
that, inasmuch as Respondent Ellsworth and Respondent
Benchmark are alter egos, the contract executed by Re-
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ELLSWORTH SHEETMETALS, INC.
spondent Ellsworth with the Union is binding upon
Benchmark. He points out that Benchmark's payroll
records indicate that it was not paying its employees the
hourly wage found in Respondent Ellsworth's contract
with the Union or the hourly wage found in the current
agreement between the local association of contractors and
the Union, nor was it paying its employees fringe benefits
found in either of these agreements. Therefore, it is his
position that, by the refusal of Respondent Benchmark to
accept and conform to the terms and conditions of the
current agreement between the Union and Respondent
Ellsworth, both Respondent Benchmark and Respondent
Ellsworth have engaged in conduct violative of Section
8(a)(5) and (1) of the Act. Government counsel further
points out that the testimony of Landau and the fringe
benefits reports that were introduced in evidence showed
that, until April 1975. Respondent Ellsworth was paying its
employees the wages and fringe benefits found in the
agreement between the association of contractors and the
Union which was current at that time. He contends that,
since Respondent Ellsworth had complied with all the
terms and conditions to those contracts, Respondent
Ellsworth "adopted those contracts and should be bound
by their wage and fringe benefits provisions." In addition,
he calls attention to the fact that a provision of the contract
actually signed by Respondent Ellsworth obligated that
concern to pay its employees at any jobs outside the
geographical jurisdiction of the Union the wages and fringe
benefits found in the current agreement between the
contractors' association and the local of the Union in that
area. Accordingly, it is his position that Respondent
Benchmark was obliged to pay Sutliff and Field those
wages and fringe benefits provided in the contract between
Local 55 and the association of contractors in the Long
Island area but in fact did not do so.
Counsel for Respondents argues that the "vast majority
of the evidence elicited" in this proceeding relates to events
which occurred prior to the 6 month statute of limitations
prescribed by Section 10(b) of the Act. Moreover, it is his
contention that Respondent Ellsworth and Respondent
Benchmark are separate and distinct entities. We address
ourselves first to the 10(b) contention.
Early in 1974, representatives of the Union visited the
offices of Respondent Ellsworth, and, in consequence, the
Union brought charges against four of Respondent Ells-
worth's employees, including Gary Ellsworth. Fines were
assessed against them, but the fine levied against Gary
Ellsworth was later withdrawn. In March 1974, an employ-
ee of Respondent Ellsworth filed a charge with the Board
(Case 3-CB-2272). In July of that year, Respondent
Ellsworth was brought up on charges by a representative of
the Union, alleging that it had violated three sections of the
collective-bargaining agreement. An arbitration panel con-
sisting of a representative of both parties was assigned to
hear these charges but, before the hearing date, Ellsworth
advised the panel he would be unable to attend. Nonethe-
less, the panel conducted the hearing in Ellsworth's
absence and found him to be in violation of the agreement.
Ellsworth did not comply with the arbitration award, and
thereupon the Union petitioned the National Joint Adjust-
ment Board for permission to abrogate the collective-
bargaining agreement. That Board issued a decision that
the contract would be abrogated in the event Ellsworth did
not pay a fine of $2,500 to the Union's welfare fund. An
injuction was sought in the Supreme Court of the State of
New York, which was removed to the United States district
court, which resulted in the establishment of an escrow
account into which the penalty of $2,500 was to be
deposited and held pending the outcome of this controver-
sy. While this action was pending, Respondent Ellsworth
was involved in several major jobs in the Plattsburg area.
The mechanical contractor, through whom Respondent
Ellsworth had subcontracted to perform these jobs, then
entertained some doubts as to the ability of Respondent
Ellsworth to perform its contractual obligations in view of
the several controversies it had with the Union and also
considering the fact that these jobs were "union jobs"
within the jurisdiction of the Union.
In December 1974, Buckley, a professional engineer then
employed by Respondent Ellsworth, promoted a meeting,
the purpose of which was to examine the feasibility of
Respondent Ellsworth's completing contractual obligations
in light of the difficulties it was then having with the
Union. In consequence of these discussions, North Coun-
try was incorporated primarily to subcontract the major
jobs of Respondent Ellsworth. Thereupon, the unionized
workforce of Respondent Ellsworth was transferred to
North Country. The record is clear that no unionized
employee of Respondent Ellsworth suffered any loss of
time, wages, or benefits as a result of North Country
subcontracting these jobs from Respondent Ellsworth.
In November 1975, Respondent Ellsworth contracted
with Pennco to perform certain sheetmetal work at a Sears
store in Long Island. In January 1976, two employees of
Respondent Ellsworth were working on this job when they
were approached by a business representative of Local 55.
Upon investigation, it was concluded that one of these
employees was not a member of any local of the Sheet
Metal Workers, and, thereupon, the business manager of
Local 55 told Fields, Respondent Ellsworth's employee,
that it would not require that employee LaRock go back
into the Union's jurisdiction on condition that Colozzo be
put to work and retained until the end of the job. President
Ellsworth testified that Colozzo was paid by Respondent
Ellsworth, despite the fact that Respondent Ellsworth had
subcontracted the job to Benchmark, because he was
"strong-armed by Local 55," which "called my office and
said they'd shut the job down if I didn't put a man on the
job myself." As a result, so argues counsel for Respon-
dents, of the "continuing pressure and further discord with
Local #55, Ellsworth Sheet Metal kept Antonio Colozzo
on its payroll as agreed, even after it had subcontracted the
work to Benchmark Sheet Metal, solely to comply with this
agreement and avoid controversy with Local # 55."
Counsel for Respondents further argues that all of the
foregoing has nothing to do with the formation of Respon-
dent Benchmark. He points out that Gary Ellsworth had
had some difficulties with the Union while working for
Respondent Ellsworth in that he had been fined by the
Union. The fine was withdrawn when Gary Ellsworth
agreed to withdraw a charge he had filed with the Board. In
May 1975, Gary Ellsworth determined to go into business
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for himself while he still had some outstanding work
obligations to his father. Gary Ellsworth and his wife
incorporated Respondent Benchmark on May 28. Thereaf-
ter, in December 1975, Respondent Benchmark received a
purchase order from Respondent Ellsworth to perform the
erection and installation work at the Sears store in Long
Island, New York. It is the position of counsel for
Respondents that the only relevant uncontroverted events
within the 10(b) period are (a) that Respondent Benchmark
subcontracted a job from Respondent Ellsworth in Decem-
ber 1975 to perform work in the Long Island area and (b) a
purchase order was issued by Cahill's Sporting Goods on
February 9, 1976, with the following heading: "To:
Benchmark Sheetmetals Ellsworth."
Counsel for Respondents contends that, despite the
compliance of Respondents "with the extensive and prob-
ing subpoenae duces tecum served upon them," counsel for
the General Counsel "has been unable to produce any
other relevant" evidence "tending to prove the existence of
an alter ego relationship." Moreover, counsel for Respon-
dents requests that I address a portion of my Decision "to
the serious problem raised throughout the hearing with
regard to the Counsel for the General Counsel's abuse of
its subpoena power." Counsel states that Respondents
"earnestly resisted compliance with these subpoenae solely
to avoid a situation wherein their competitors might get
access to their confidential business records." It is, of
course, plain that I have no supervisory authority over the
manner in which counsel for the General Counsel investi-
gates a case or prepares for hearing. A somewhat similar
contention was made in a case I heard in 1976, Custom
Excavating, Inc., which is reported at 228 NLRB 285
(1977). The union in that case asked its employer for a
complete list of customers in order to check on the
employer's allegedly fraudulent time records. The employ-
er there argued that if it supplied the records it would
subject its customers to harassment. I found that by
refusing to supply the information requested the employer
violated Section 8(a)(5) and (1) of the Act. The Board
affirmed my Decision.
Counsel for the General Counsel urges that Respon-
dents' contention that the complaint was time-barred is
erroneous. Thus, he states that the evidence concerning the
Long Island job establishes a clear, independent violation
of Section 8(a)(1) and (5) within the 10(b) period. More-
over, it is his contention that "a more basic reason" why
the complaint is not time-barred is that Respondent
Ellsworth never notified the Union that it had formed
Respondent Benchmark. Indeed, he states that not only
did Respondent Ellsworth not notify the Union of the
creation of Benchmark, it did whatever it could to conceal
the connection between the two corporations from the
Union. He points out that, when Landau wrote to Respon-
dent Ellsworth in August 1975 seeking fringe benefit
contributions, Respondent Ellsworth informed the Union
that its only employee was Gary Ellsworth. He states that
Respondent Ellsworth "answered in that manner despite
the fact it had recently established Respondent Benchmark
for the sole purpose of evading its contractual obligations"
with the Union. Government counsel correctly points out
that, as the Board recently held, the period of limitations
prescribed by Section 10(b) "does not begin to run on an
alleged unfair labor practice until the person adversely
affected is put on notice of the act constituting it." See Don
Burgess Construction Corporation d/b/a Burgess Construc-
tion, et al, 227 NLRB 765 (1977). In the present case, the
Union never received actual notice of the relationship
between Respondent Ellsworth and Respondent Bench-
mark and at the earliest can only be deemed to have
received constructive notice of that relationship when
Landau was informed by Sutliff that he had been paid with
a check drawn on Respondent Benchmark. This occurred
well within the Section 10(b) period.
Nor do I find any merit in the apparent contention of
counsel for Respondents to the effect that Ellsworth was
entitled to establish a nonunion concern to avoid its
contractual obligations to the Union for the reason that the
Union was entitled under the Joint Adjustment Board
award to abrogate its contract with Respondent Ellsworth
if the latter did not pay the fines levied upon it by the Joint
Adjustment Board. It seems plain that, until the contract
between Respondent Ellsworth and the Union was actually
abrogated, Respondent Ellsworth was bound by the terms
and conditions of that contract. Also, by the terms of the
stipulation entered into by the parties in Federal district
court on March 28, 1975, the Union agreed that it would
not seek to enforce the award of the Joint Adjustment
Board pending a final determination by the court. There
has been no final determination by the court, and,
therefore, it is clear that the contract between Respondent
Ellsworth and the Union was continued in effect until the
present.
Upon all the evidence, I conclude and find that Respon-
dent Ellsworth and Respondent Benchmark are in effect a
single entity. I further find that, by failing to notify or
consult with the Union with respect to the formation of
Benchmark, Respondent Ellsworth violated Section 8(aX5)
and (I) of the Act. Finally, I find that Respondents
violated Section 8(a)(5) and (1) of the Act by unilaterally
and without notice to or consultation with the Union
changing the existing wage rates of its employees in the
appropriate unit and by failing and refusing to make the
contributions on behalf of the employees to the insurance,
pension, vacation, and apprenticeship funds as provided
for in the collective-bargaining agreement, by placing these
employees on the payroll of Respondent Benchmark and
paying them with checks carrying the name of Respondent
Benchmark.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Ellsworth Sheetmetals, Inc., and Benchmark
Sheetmetal Corp. are employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
2. At all times material herein, the following described
unit has been an appropriate unit for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act:
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ELLSWORTH SHEETMETALS, INC.
All journeymen and apprentice sheetmetal workers of
the Employer, excluding all office clerical employees,
all professional employees, and all guards and supervi-
sors as defined in the Act.
3. By failing to notify or consult with the Union
concerning the formation of Benchmark, Respondent
Ellsworth violated Section 8(a)(5) and (1) of the Act.
4. By unilaterally and without notice to or consultation
with the Union changing the existing wage rates of its
employees in the appropriate unit and failing and refusing
to make the contributions on behalf of those employees to
the insurance, pension, vacation, and apprenticeship funds
as provided for in the collective-bargaining agreement
between the parties, by placing these employees on the
payroll of Respondent Benchmark and paying them with
checks carrying the name of Respondent Benchmark,
Respondent Ellsworth violated Section 8(aX5) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondents engaged in unfair
labor practices in violation of Section 8(aXl) and (5) of the
Act, it will be recommended that Respondents cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It will be recommended that Respondent Ellsworth and
Respondent Benchmark recognize and bargain with the
Union, upon request. In addition, it will be recommended
that Respondent Ellsworth and Respondent Benchmark
give retroactive effect to Respondent Ellsworth's contract
with the Union and to apply that agreement to the
sheetmetal workers in the employ of both Respondents and
to make them whole for the monetary difference between
what they were paid and the wage rates contained in that
contract. In addition, it will be recommended that Respon-
dents pay into the various funds referred to in the contract
the prescribed benefit payments in behalf of those employ-
ees and also to post an appropriate notice.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in the case, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings., conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
ORDER 2
The Respondents, Ellsworth Sheetmetals, Inc., and
Benchmark Sheetmetal Corp., Fort Edward, New York,
their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to recognize and bargain
collectively with the Union as the exclusive representative
of all of the employees in the appropriate bargaining unit,
as hereinabove described, with regard to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment.
(b) In any like or related manner interfering with,
restraining, or coercing their employees in the exercise of
their right to self-organization, to form labor organizations,
to join or assist the Union, or any other labor organization,
to bargain collectively through representatives of their own
choosing, or to engage in other protected concerted activity
for the purpose of mutual aid or protection, or to refrain
from any or all such activities, as guaranteed by Section 7
of the Act, as amended, except to the extent permitted in
the proviso to Section 8(aX3) of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Recognize and, upon request, bargain collectively
with Sheet Metal Workers International Association, Local
Union No. 83, AFL-CIO, as the exclusive representative of
all employees in the appropriate unit, described above,
with regard to rates of pay, hours of employment, and
other terms and conditions of employment, and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Pay to the Union's insurance, pension, vacation, and
apprenticeship funds the contributions provided for in the
collective-bargaining agreement between the parties.
(c) Post at its principal place of business in Fort Edward,
New York, copies of the attached notice marked "Appen-
dix." 3 Copies of said notice, on forms provided by the
Regional Director for Region 3, after being duly signed by
a representative of Respondents, shall be posted by it
immediately upon receipt thereof, and be maintained by
Respondents for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 3, in writing,
within 20 days from the date of this Order, what steps
Respondents have taken to comply therewith.
3 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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