Ellsworth Sheetmetals, Inc.

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- 1276

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 1277

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: 1278

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." 1279