A-Diamond Glass And Board-Up Co , [Alleged] Alter Ego And/Or Successor Of Apple Glass Co.

National Labor Relations Board - Board Decisions

Apr 18, 1989

293 N.L.R.B. 700 (N.L.R.B. 1989)

700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bell Glass Co, [Alleged] Alter Ego of Apple Glass
Company, A Diamond Glass Co and A Dia
mond Board-Up Co, [Alleged] a Single Employ-
er d/b/a A-Diamond Glass and Board-Up Co,
[Alleged] Alter Ego and/or Successor of Apple
Glass Company , Apple Glass Company and Gla-
ziers, Architectural Metal & Glass Workers
Local Union No 27 , Chicago & Vicinity, Inter-
national Brotherhood of Painters and Allied
Trades , AFL-CIO Case 13-CA-25918
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Bell Glass
Co, and A-Diamond Glass Co and A Diamond
Board Up Co, d/b/a A-Diamond Glass and
Board-Up Co, Chicago, Illinois , their officers,
agents , successors, and assigns , shall take the action
set forth in the Order
April 18, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 30 1988, Administrative Law Judge
Marvin Roth issued the attached decision The Re-
spondent Diamond filed exceptions and the Gener-
al Counsel filed cross-exceptions and a supporting
and answering brief 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,2 and
conclusions3 and to adopt the recommended
Order
' The General Counsel also filed a motion to strike the Respondent
Diamonds exceptions on the basis that they do not comply with Sec
102 46 (b)(1)(ui) of the Board s Rules In its exceptions Diamond asserted
that its exceptions were prepared without the benefit of the record be
cause the General Counsel refused to honor its request for access to the
case transcripts We note however that the General Counsel has submit
ted a copy of a certified letter from counsel for the General Counsel to
Diamond dated August 18 1988 return receipt attached stating that Di
amond had been offered access to the case transcripts on several occa
sions in July 1988 t e prior to the filing of Diamond s exceptions The
letter also renewed the offer to Diamond to view the transcripts and
stated that a motion by Diamond to supplement its exceptions would not
be opposed by the General Counsel According to the General Counsels
motion Diamond did not respond to the August 18 letter In any event
we deny the General Counsel s motion to strike on the basis that al
though Diamonds exceptions do not fully comply with the Board s
Rules they are not so deficient as to warrant striking
2 The Respondent has excepted to some of the judge s credibility find
rags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Diamond also excepts to the judge s findings that Shirley White was
still employed by Apple Glass at the time it ceased operations on Decem
ber 31 1985 and that it received a larger share of Apples inventory than
did Respondent Bell at the time Apple ceased operations We find it un
necessary to pass on either of these findings because they have no effect
on the outcome of this case
3 The General Counsel excepts to the judge s finding that Respondent
Diamond is not an alter ego of Respondent Apple We find it unneces
sary to pass on this finding because it does not affect the remedy in this
case
Alan M Kaplan Esq and Steven L Sokolow Esq for the
General Counsel
Ed Kuzniar, of Mount Prospect Illinois, for Bell Glass
Co
Shirley White, of Chicago Illinois for Respondent A Di
amond Glass Co and A Diamond Board Up Co
Margo R Newman Esq of Chicago Illinois for the
Charging Party
DECISION
STATEMENT OF THE CASE
MARVIN ROTH Administrative Law Judge This case
was heard at Chicago, Illinois, on December 3, 1986 and
November 30, and December 1 2 and 3 1987 The
charge and amended charge were filed on May 2, 1986,
respectively, by Glaziers Architectural Metal & Glass
Workers Local Union No 27, Chicago & Vicinity, Inter
national Brotherhood of Painters and Allied Trades
AFL-CIO (the Union) 1 The complaint, which issued on
June 30 1986 and was amended at the hearing, alleges
that Bell Glass Co A Diamond Glass Co and A Dia
mond Board Up Co and Apple Glass Company2 (Bell
Diamond Apple and collectively Respondents) violated
and are violating Section 8(a)(1) and (5) of the National
Labor Relations Act 3 The gravamen of the complaint is
that Bell is the alter ego of Apple that Diamond a
single employer is the alter ego and/or successor of
Apple that Respondents have unlawfully failed and re
fused to recognize and bargain with the Union as repre
sentative of their respective employees and that Re
spondents are obligated to remedy unfair labor practices
previously committed by Apple Apple did not enter an
appearance in this proceeding Bell and Diamond, by
their respective answers, deny the alleged relationships
and deny commission of the alleged unfair labor prac
tices
All parties were afforded full opportunity to partici
pate, to present relevant evidence, to examine and cross
examine witnesses to argue orally, and to file briefs The
General Counsel and Diamond each filed briefs 4 On the
' The caption was amended on motion of the General Counsel at the
heanng
2 All dates are for the period from July 1 1985 through June 30 1986
unless otherwise indicated
3 When necessary A Diamond Glass Co and A Diamond Board Up
Co will be referred to separately as Diamond Glass and Diamond Board
Up
4 Bell submitted a one page letter in lieu of a brief As Bell did not
serve copies on the other parties I did not consider the letter However
I have considered the oral arguments of all parties
293 NLRB No 85
BELL GLASS CO
entire record in this case, 5 and from my observation of
the demeanor of the witnesses, and having considered
the briefs submitted by the General Counsel and Dia
mond, I make the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENTS
In Apple Glass C0, 13-CA-24872, etc (JD-89-86) (un
reported), enfd docket No 86-2398 (7th Cir 1986),
which will be discussed further, the Board found that
Apple , an Illinois corporation was engaged in the buss
ness of installing and replacing window glass and store
fronts, and that Apple annually purchased and received
at its Chicago, Illinois facility goods and materials valued
in excess of $50,000 directly from points outside of Illi
nois Apple admitted and the Board found that Apple
was an employer engaged in commerce under the Act
Apple ceased operations at the end of 1985, and was dis
solved in February 1986 Bell a corporation with its
place of business in Chicago, has since January 1986
been engaged in the business of replacing glass The par
ties stipulated that during 1986, a representative period,
Bell purchased goods and services valued in excess of
$50,000 from enterprises which meet the Board s juris
dictional standards Shirley White and Leonard Settipani,
d/b/a A Diamond Glass & Board Up, a partnership
commenced operations on March 1, 1985 In January
1986 the business was incorporated Two Illinois corpo
rations were formed respectively, A Diamond Glass Co
and A Diamond Board Up Co In fact, the corporations
operate as a single business entity The answer to the
complaint was signed by Shirley White on behalf of A
Diamond Glass and Board Up Company' White testi
fled in sum that she is the sole stockholder, president,
and chief operating officer of both corporations On Jan
nary 2, 1986, George Pistas executed an employment
agreement" with A Diamond Glass and Board Up
Company, described as a business enterprise organized
for the purpose of conducting and performing any and
all types of Board up work and any and all types of
Glass work The business enterprise is engaged in the
business of putting boards over damaged windows and
doors (board up work), and replacing glass and store
front facades All business is conducted out of one loca
tion (since` January 1986 the premises at 3855 West
Grand, in Chicago) The two corporations share a single
Federal employer identification number, and use a single
payroll Shirley White testified in sum that all nonclerical
employees are classified as glaziers There are no sepa
rate job classifications Rather, employees are assigned
work as needed with regard to their experience and abil
ity, e g their ability to perform metal work The parties
stipulated that during 1986 a representative period, Dia
mond Glass purchased goods and services valued in
excess of $50,000 directly from enterprises which meet
the Board's jurisdictional standards It is undisputed that
Bell and Diamond each purchase substantial amounts of
glass Union President Bernard Spatz testified without
contradiction that there are no factories producing glass
5 General Counsel s motion to correct transcript is granted
701
in Illinois Therefore it is evident that directly or mdi
rectly Bell and Diamond receive substantial amounts of
glass from points outside of Illinois 6 Putting aside at this
point the question of the relationships among Apple,
Bell and Diamond I find that Diamond Glass and Dia
mond Board Up are commonly owned, operated and
controlled, with a common labor policy, and together
constitute a single employer under the Act (Diamond),
that Apple was, until January 1 1986, an employer en
gaged in commerce, and that since January 1, 1986 Bell
and Diamond have been and are employers engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION AND BARGAINING
UNITS INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act In Apple Glass Co, supra, the
Board found that all employees of Apple employed at its
facility then located at 4305-11 West Fullerton Avenue,
Chicago, excluding office clerical employees, supervi
sors, and guards as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act The
Board further found that since February 28, 1985, the
Union has been the exclusive collective bargaining repre
sentative of the unit employees In the present case the
General Counsel contends that since about January 1,
1986, all employees of Bell at its facility (presently at the
same location), with the same exclusions and all employ
ees of Diamond at its facility, also with the same exclu
sions, constitute an appropriate unit for collective bar
gaining The General Counsel further contends that by
virtue of the (alleged) status of Bell and Apple as a
single employer and alter egos, and the (alleged) status of
Diamond as a successor and alter ego of Apple, the
Union has since January 1, 1986 been the exclusive bar
gaining representative of the employees in each unit As
indicated, the General Counsel does not seek a unit cov
enng all entities The units alleged in the complaint are
presumptively appropriate Respondents have not come
forward with evidence that would overcome that pre
sumption As found Diamond Glass and Diamond
Board Up together constitute a single employer with
common management and supervision and an integrated
work force I find that the units requested by the Gener
al Counsel as modified by the fact that Bell presently op
erates only out of 4311 West Fullerton are appropriate
for collective bargaining The question of the Union's
representative status depends on the relationships among
Apple Bell and Diamond which is the principal issue in
this proceeding
6 This fact alone demonstrates statutory jurisdiction In view of Re
spondents failure and refusal to comply with General Counsels subpoe
nas which resulted in a lengthy delay in the hearing the General Coun
sel did not have to show that Respondents met the Board s jurisdictional
standards Rather the General Counsel was required to show only statu
tory jurisdiction which it did See Tropicana Products 122 NLRB 121
123 (1958) Strand Theatre 235 NLRB 1500 (1978)
702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III THE ALLEGED UNFAIR LABOR PRACTICES
A Developments Commencing Prior to December
1985 The Operations of Apple the Apple Unfair
Labor Practice Proceeding and the Formation of
Diamond
Apple commenced operations n 1983 Ed Kuzniar and
George Pistas each owned 50 percent of the corporate
stock Kuznfar was president and Pistas was vice presi
dent Apple performed board up work until January
1985, when Kuznfar and Pistas sold the board up oper
ation to another firm Apple operated out of the premises
at 4305-11 West Fullerton Kuzniar and Pistas owned
the premises at 4311 West Fullerton Kuzniar testified
that the premises at 4305 West Fullerton were owned by
his father in law until 1983, when he purchased the
premises without putting his name on a deed Pistas testa
fled that the building out of which Apple operated
was owned by himself Kuznfar, and their wives, but did
not indicate to which (or both) buildings he was refer
ring However Kuznfar, acting as counsel for Bell, asked
Pistas When we bought 4305 West Fullerton what was
in the building when we bought it? Pistas proceeded to
answer the question, and did not dispute the premise that
we bought it No party presented title documents in
evidence The General Counsel stated on the record that
it would obtain copies of such documents and offer them
in evidence, but never did so I find in light of the admis
sions of Kuzmar and Pistas, that they owned both the
premises at 4305 and 4311 West Fullerton Apple s larg
est item of equipment consisted of its trucks Apple
leased its trucks from Cherry Leasing, which was also
owned by Kuznfar and Pistas Atlas Automotive, a firm
owned by Pistas owned other equipment including a
large saw which was also used by Apple in its business
In February 1985, the Union commenced an organiza
tional campaign among Apple s employees This cam
paign , and Apple s response, led to the prior unfair prac
tice proceeding The Union and Frank Dorgan a dis
charged employee filed charges and the General Coun
sel issued a consolidated complaint against Apple In
July 1985, Administrative Law Judge Thomas Bracken
conducted a hearing in the matter and on April 8, 1986,
Judge Bracken issued his decision and recommended
Order Judge Bracken found in sum as follows As of
February 26, 1985 Apple had 13 unit employees, includ
ing 7 glaziers 2 metal shop employees, and 3 helpers
Seven of the 12 employees signed authorization cards
designating the Union as their bargaining representative
At this point Apple commenced a campaign of unfair
labor practices, including the discriminatory discharge of
Frank Dorgan, and threats of plant closure by Vice
President Pistas Judge Bracken found that a remedial
bargaining order was warranted He issued a recom
mended Order which in part directed the Company, its
officers, agents , successors, and assigns , to recognize and
bargain with the Union as representative of the unit em
ployees, and to reinstate Frank Dorgan with full back
pay No exceptions were filed On June 18, 1986, the
Board pro forma adopted Judge Brackens decision and
recommended Order and or August 25, 1986 the United
States Court of Appeals for the Seventh Circuit entered
a judgment enforcing the Board s Order 7
During 1985, Apple s supervisory personnel in adds
tion to Kuznfar and Pistas, consisted of Robert and
Arlene Lowe and Louis Stephens Robert Lowe, Kuz
near s brother in law principally supervised the glaziers,
Louis Stephens principally supervised metal work, and
Arlene Lowe, Kuznfar s mother in law, principally su
pervised the office clerical personnel One of those cleri
cals was Shirley White, who began working for Apple in
1983 upon her graduation from high school Notwith
standing her youth, White was and is a bright, aggressive
take charge person who proceeded to learn the bust
ness (White represented Diamond at the present hearing,
and did so in a competent manner) In March 1985,
while still on Apples payroll, White and Lenard Setts
pant, who also worked for Apple formed Diamond as a
partnership They began operating on a small scale from
a small facility on Damen Avenue, but soon moved to a
larger location at 4435 West Fullerton, within 2 to 3
blocks of Apple s facility 8 Pistas testified that Kuznfar
fired White in May 1985 because they learned that she
was in another business Kuzmar testified that he fired
White in the summer of 1985 White in her testimony ad
matted that she worked for Apple until July Their tests
mony was patently false In the prior proceeding Judge
Bracken found that White was still on Apple s payroll in
early July, and discredited Pistas testimony that White
no longer worked for Apple In the present proceeding,
insurance agent William Stuber who was called as Re
spondents witness testified that in March 1985 Apple
referred him to White for Diamonds business Pistas ad
matted in his testimony that White was still working for
Apple on December 31, when Apple went out of bust
ness It is evident that Apple knowingly permitted White
to work for Apple while she was engaged in another
glass replacement business It is also evident from the
false testimony of Pistas in both unfair labor practice
proceedings that Apple sought to conceal this arrange
ment from the Board The inference is warranted, and I
so find, that Apple encouraged the partnership of White
and Settipani as an arrangement in furtherance of its own
interests
The evidence also indicates that White was aware of
the pending unfair labor practice proceeding against
In the meantime over a month before the hearing before Judge
Bracken the Board by the Acting Regional Director petitioned the
United States District Court for the Northern District of Illinois for tern
porary injunctive relief including interim recognition and bargaining
with the Union and reinstatement of Dorgan and another alleged discri
minatee (whose case was subsequently dismissed ) Unfortunately instead
of seeking an expedited hearing on the petition the Acting Regional Di
rector agreed to submit the matter on the record of the unfair labor prac
tice case thereby assuring a lengthy delay in the injunction proceeding
The District Court referred the matter to a United States magistrate As a
result what began as an injunction proceeding became in effect a duple
cate administrative proceeding On February 19 1986 the magistrate
issued her report and recommendation and on April 17 1986 the district
court entered a temporary injunction order By this time Apple was out
of business Compare Madden v Alberto Culver Co 49 LRRM 2516
(D C ILL 1961)
s White testified that Diamond moved into 4435 West Fullerton in Sep
tember 1985 However George Pistas testified that Diamond moved into
that facility in March 1985 1 credit Pistas
BELL GLASS CO
Apple White testified that she was not involved in the
Union's demand for recognition from Apple However,
White, in her capacity as Apple s secretary, typed a
letter to the Board's Regional Office dated April 5, 1985
The letter, signed by Pistas, purported to present a list of
employees terminated by Apple, and concluded with the
assertion that ' I think the above list will prove that we
did in fact dismiss people because of their conduct The
list included Frank Dorgan, Robert Lowe, and Lenard
Settipani, all of whom were ostensibly discharged for
theft In fact, neither Lowe nor Settipani had ever been
fired by Apple Kuzniar and Pistas testified that Settipani
left when Apple sold the board up operation After being
confronted with his April 5 letter, Pistas asserted that
Kuzniar fired Settipani but rehired him the following
day White, as Apple s secretary and Settipani's partner,
knew perfectly well that Apple never discharged Lowe
or Settipani It is evident from the April 5 letter that, at
the very least, White knew that Apple was involved in a
Board case in which it was charged with unlawful dis
charge and that the Company was giving false informa
tion to the Board in response to those charges
There is no dispute that Kuzniar and Pistas, the two
Apple principals, were fully aware of the unfair labor
practice proceeding Apple was represented by counsel,
who also initially represented Bell in the present case
Pistas testified at the hearing before Judge Bracken In
the present proceeding, Kuzniar testified that he dis
cussed the case with Pistas, and that they disagreed in
that Kuzniar wanted to settle and Pistas wanted to liti
gate Kuzniar testified that this was not the reason why
they dissolved Apple According to Kuzniar they broke
up because of differences over their work habits Pistas
was in sum a workaholic" whereas Kuzniar wanted
some leisure time Pistas also devoted much time to his
used car business (Atlas Automotive), leaving Kuzniar to
run Apples However Pistas testified that they decided
to terminate Apple because of their problems and that
their biggest problem' was their disagreement as to
how to deal with the Board case He testified in sum that
their disagreement over work habits was also a factor In
light of Pistas admission I find that in dissolving Apple
Pistas and Kuzniar were principally motivated by a
desire to avoid obligations which might be imposed as a
result of the unfair labor practice proceeding which they
correctly anticipated would result in a decision against
them In making this finding I have also taken into con
sideration the Board s finding that Pistas threatened to
close the doors' if the employees brought in the Union
B The Formation of Bell Changes in Diamond s
Operations the Roles of Kuzniar and Pistas in Bell
and Diamond and the Unions Demands for
Recognition and Bargaining
Bell commenced operations in January 1986 at the
4311 West Fullerton Avenue facility Also in January,
Diamond moved to its present location at 3855 West
Grand The complaint alleges, and Bell's answer admits,
that about April 11, 1986, the Union requested that Bell
9 Atlas Automotive was a repair and body shop and Apple used its
services Now Atlas sells used cars
703
recognize and bargain with the Union as representative
of Bell's unit employees, and that since on or about April
24, Bell has failed and refused to comply with that re
quest The complaint alleges, but Diamond's answer
denies, that about May 30 the Union made a similar re
quest of Diamond, but that Diamond failed and refused
to comply with the request However, the answer states
that Diamond does not recognize the Union as a bar
gaining agent By letter dated May 30 to Diamond, the
Union asserted that Diamond was the alter ego or suc
cessor of Apple, and requested that Diamond recognize
and bargain with the Union and remedy the outstanding
unfair labor practices committed by Apple The Union
sent one copy of the letter by certified mail and another
by ordinary mail The certified letter was returned
marked Refused, thereby indicating that the letter was
in fact received but rejected The letter sent by ordinary
mail was never returned to the Union Shirley White and
George Pistas, in their respective testimony, did not
deny receiving either letter The mailing of a letter raises
a presumption that the letter was received lA Wigmore
Evidence, § 95 I find as alleged in the complaint, that
the Union requested that Diamond recognize and bargain
with the Union as representative of Diamond's unit em
ployees, and that Diamond failed and refused to comply
with that request
It is undisputed that Ed Kuzniar runs Bell Kuzniar
testified that he is the owner and president, and that he
hires, fires, disciplines, and sets rates of pay for Bell s
employees As indicated, Bell operates out of 4311 West
Fullerton Kuzniar testified in sum as follows As part of
their arrangement in dissolving Apple Kuzniar bought
out Pistas part ownership of the premises Kuzniar did
not make immediate payment Instead he gave Pistas a
mortgage on which Kuzniar makes payments of $482 per
month from Bell s account Kuzniar as an individual
leased the premises to Bell for use in the operation of a
glass replacement business at a monthly rental of $1220
The lease was signed on behalf of Bell by Kuzniar s wife
Kuzniar also operates a board up service (Anchor) out of
the same premises However there is no lease agreement
between Kuzniar and Anchor The premises at 4305
West Fullerton have been rented out As indicated the
General Counsel promised to produce copies of title doc
uments, but did not do so I have no reason to question
this testimony of Kuzniar, and I credit his testimony in
this regard
As of the end of December when it ceased operations
Apple s personnel complement consisted of Kuzniar,
Pistas Supervisors Robert, and Arlene Lowe and Louis
Stephens office clerical Sheila Lacour, and unit employ
ees Donald (Red) Pangallo Peter Quasthoff Richard
Sandberg, Gary Stephens and Alberto Vasquez Kuzniar
brought with him to Bell only his relatives Robert and
Arlene Lowe, and Lacour, who was his tenant (Lacour
remained until October 1987) Kuzniar hired 3 new em
ployees to perform unit work David Rousseau Michael
Karpinski, and William Sunagel Kuzniar testified that
Rousseau and Karpinski were hired temporarily to pre
pare the facility, that only Robert Lowe and Sunagel
worked regularly on glass replacement and that by the
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
time of the present hearing Robert and Arlene Lowe
were his only employees The size of Bell s complement
reflected the fact that Bell was a smaller operation than
Apple had been or that Diamond would become Kuz
near did not inform the Apple unit employees that Bell
was going out of business Rather he left that task to
Pistas , who admitted that he may have told the employ
ees that he was going to Diamond and they could have
jobs there Shirley White also spoke to the Apple em
ployees , and told them that jobs would be available at
Diamond In January 1986, when Diamond moved into
its new and larger facility at 3855 West Grand, Dia
mond s personnel complement consisted of four supervi
sory personnel (White, Settipani , Pistas , and Lewis Ste
phens, who functioned as shop foreman ), and six employ
ees who performed unit work Four of the six were
former Apple employees George Stephens , Pangallo,
Sandberg, and Vasquez Diamond hired two additional
employees Stanislaw Tadus and Earl Brozell White tes
tified that Brozell did board up work , and the others
were glaziers White and Settipani performed the clerical
work , and therefore Diamond did not hire clerical help
until April 1986 White testified that during 1985 Dia
mond used employees only on a temporary basis , includ
ing Settipani s brother and a former Apple employee
White testified that by January 1987 Diamond had seven
employees , excluding clerical and supervisory personnel,
of whom five were glaziers and two did board up work,
and that at the time of the present hearing (December
1987) Diamond had seven glaziers and two board up
workers I find that as of January 1986 and continuing
thereafter , Diamond had a substantial and representative
complement of employees , of whom a majority had been
employees of Apple See Fall River Corp v NLRB 482
US 27 (1987)
In contrast to the situation at Bell , which is undispu
tedly owned and operated by Kuzmar the position of
Pistas regarding Diamond is in dispute Shirley White
contends that she is the sole owner and principal of Dia
mond (Lenard Settipani , who began Diamond early in
1985, eventually left the firm some time after January
1986) George Pistas owns the premises at 3855 West
Grand , and is therefore Diamonds landlord Pistas testi
fled that in August 1985 when he saw that Apple was
breaking up he saw an opportunity to buy a building
and get a tenant Therefore he purchased the premises at
3855 West Grand for occupancy by Diamond, and of
fered to join Diamond in a `limited capacity Pistas,
who described Lenard Settipani as a good friend, admit
ted that he brought equipment into the building without
charging Diamond or Settipani According to Pistas, he
provided their equipment in exchange for board up serv
ices performed by Settipani Pistas leased the premises to
Diamond pursuant to a 1 year lease agreement dated
January 1 , 1986, which provided for a monthly rental of
$1350 plus 1 percent of gross volume of business over
$500,000 The lease was renewed for an additional year,
and therefore was still in effect as of the present hearing
On January 2, 1986 Diamond and Pistas executed an
Employment Agreement ,' whereby Diamond employed
Pistas as General Manager and Advisor to the Compa
ny [b]y virtue of his vast experience and knowledge
in this field ' The agreement provided that Pistas would
devote a minimum of 20 hours per week to Diamond s
business , to be used at his discretion , and acknowledged
that Pistas had other business interests which required his
attention The agreement provided that Pistas would be
free to make business decisions regarding day to day op
eration of Diamond without prior consent, but that ac
tions outside day to day operations , such as hiring and
firing," would require prior consent The agreement fur
ther provided that Pistas would be paid compensation of
$300 per week plus 3 percent of gross income Although
the agreement was terminable at will by either party,
Pistas would continue to receive the 3 percent for a
period of 1 year after termination of the agreement The
agreement also provided that Diamond would compen
sate Pistas for his expenses , including those for a vehicle
which he provided for Diamonds business , and that
Pistas would also be provided with a separate telephone
line for his personal business Pistas was also given first
right of refusal for the purchase of Diamond if it became
available for sale Regarding the lease , Pistas testified
that the lease also included furniture and equipment in
the facility , and that he also leased vehicles to Diamond
As found , Apple leased its trucks from Cherry Leasing,
which was owned by Kuzniar and Pistas Pistas testified
that as of the end of 1985 , he assumed the obligations of
Cherry and became its sole owner The General Counsel
presented in evidence a leasing agreement dated Decem
ber 30 , 1985 from Cherry Leasing , signed by Pistas as
sole owner ' to Diamond for the lease of three vehicles
for use in its glass and board up business Pistas testified
that when they dissolved Apple he took two trucks and
Kuzniar took one However , at another point Pistas testi
feed , as did Kuzniar that in December Apple had three
or four trucks which it leased from Cherry Bell present
ed evidence which indicates that in January Bell pur
chased its truck from Cherry instead of continuing to
lease the vehicle and in August 1986 purchased a new
truck from a dealer The evidence fails to indicate that
Diamond acquired any new or additional trucks The
foregoing evidence indicates that as part of their arrange
ment for dissolving Apple Kuzniar transferred his share
of Cherry Leasing to Pistas, and they agreed that
through Cherry three of Apple s vehicles would go to
Diamond and one would go to Bell As found these
trucks constituted by far for the largest items of equip
ment needed for a glass replacement business The vari
ous documents executed between Pistas and Diamond
were prepared by Pistas ' wife, Attorney L Diane Sharp
Sharp also provided assistance to Shirley White in pre
paring corporate documents for Diamond Regarding
other Apple equipment and furnishings , Kuzniar testified
in that there was virtually nothing left that most of the
equipment and furniture was junked as worthless or
stolen , and that the balance consisted mainly of small
handtools which belonged to individuals including em
ployees Pistas contradicted Kuzniar s version Pistas tes
tified that he and Kuzniar divided the equipment be
tween them, with regard to which if any equipment be
longed to either of them individually or through their re
spective corporations Kuzmar 's share remained at the
BELL GLASS CO
former Apple facility, for use in Bell's operations Pistas
share went into Diamonds business In fact, Apple had
valuable or new equipment, some of which is described
in Judge Bracken s decision, e g , a television monitor
and a saw z all Bell presented in evidence a document
which contradicted Kuzniar s prior testimony, specifical
ly a burglary report dated January 8, 1987, involving a
typewriter which had been owned by Apple I credit
Pistas Kuzniar also testified that by the end of 1985
Apple had no remaining inventory of glass or metal
Given the size of Apple's operation, his testimony is in
credible The General Counsel presented in evidence an
invoice from a supplier (Glass Temp), marked for ship
ment to Apple, which was paid by Diamond on January
8 I do not credit Shirley White's suggestion, in her testi
mony, that this must have been a mistake I find that Bell
and Diamond divided Apple's inventory, and that Dia
mond, as the larger operation, received the larger share
One of George Pistas principal functions for Diamond
was to solicit and obtain business for Diamond's greatly
enlarged operations Pistas' Employment Agreement
with Diamond contemplated that he would perform this
function Pistas testified that he solicited business for Di
amond, and that in doing so he had an advantage over
White, i e, he could draw on important sources of busi
ness which were not available to White Shirley White,
as Apple's secretary, had contact with Apple s customers
or prospective customers However, her contacts were
limited White did not go out to jobsites until she went
with Diamond Customers and suppliers knew her as a
secretary, or at most an office manager, and knew little
of her business or service ability or her credit standing
Lenard Settipani was also an unknown factor However,
Pistas and Kuzniar were known as the owners of Apple,
and both had other business investments and contacts
Much of the work of replacing glass and storefront fa
cades is not repeat business For example, a home owner
or store owner who was the victim of fire damage or
vandalism might use the services of Apple, Bell, or Dia
mond, and seldom or ever again have need for their
services However some actual or prospective customers
do constitute a major source of business on a recurring
basis for glass and storefront replacement firms and
firms doing board up work These include fast food
chains, real estate management companies, insurance
companies insurance agents and construction compa
vies Apple had such sources of business From March
through December 1985 Diamond operated on a much
smaller scale than Apple Diamond used small facilities
evidently did not even have a suitable truck, and had no
regular employees However, by December Diamond
was sufficiently confident of its imminent expansion as to
lease a larger facility (purchased by Pistas specifically for
Diamonds use) and to immediately hire six employees
and two additional supervisors (Pistas and Lewis Ste
phens) It is evident that White and Pistas both knew
that only Pistas could provide the business to sustain
such an enlarged operation In fact, through Pistas, Dia
mond picked up much of Apple s business Diamond
does work for Affiliated Realty, a real estate manage
ment firm and former Apple customer Diamond also
serviced fast food chains including Wendy's which was
705
also an Apple customer Shirley White testified that Dia
mond has gradually shifted into more construction work,
working for building contractors However Apple also
did construction work Such success on Diamonds part
can hardly be viewed as coincidental, given the fact that
there are some 275 glazing companies in Chicago
Bell, like Diamond, also drew on former Apple cus
tomers for its business Service Construction, a construe
tion firm owned by Kuzniar's brother, Thomas Kuzniar,
was also a former Apple customer Service Construction
is now one of Bell s major customers Ed Kuzniar admit
ted that on behalf of Bell he sent fliers to prospective
customers, pointing out that Bell `will operate out of of
fices located at 4305-11 West Fullerton Avenue
where Apple Glass Company, which is going out of
business was previously headquartered, and asserting
that ` It has been my pleasure to serve you in the past
and I look forward to continuing to serve your glass re
placement needs and emergency board up services
through the Bell Glass & Board Up Company " Kuzniar
testified that Bell will do any glass replacement work,
does mainly storefronts and some residential work, but
does not do metal work Kuzniar testified that Bell oper
ates out of 4311 West Fullerton, where Apple formerly
had its metal shop In light of Bell's flier, I find that Bell
also performs emergency board up work Shirley White
testified that while Diamond has increased the amount of
its construction work, Diamond continues to perform
glass and storefront replacement work, including metal
work Diamond does replacement work on both homes
and businesses As with Apple, Diamonds customers in
elude fast food chains, real estate management compa
vies insurance companies, and insurance agencies, some
of which are former Apple customers Although both
Bell and Diamond drew upon former Apple customers,
the evidence indicates that for the most part Bell and Di
amond do not service the same customers This tends to
indicate that Bell and Diamond not only divided Apple s
assets and liabilities, but also its market with Diamond as
the larger operation, getting the larger share This ar
rangement accommodated Kuzniar s desire for more lei
sure time to devote to his hobbies This evidence also
tends to support Respondents' contention that there is no
connection between Bell and Diamond and that they
may properly be viewed as competitors The following
colloquy which took place while General Counsel was
questioning Pistas, is illuminating
Q Are there any management companies that
have called Diamond on a repeated basis to perform
work at different addresses?
A Sure
Q Can you name any of those?
MR KUZNIAR Don t miss any, now
THE WITNESS That is right, we are like competi
tors here
I believe that the above exchange was spontaneous
rather than staged and reflects the present relationship
between Bell and Diamond Pistas and White have no
ownership or financial interest in Bell (except insofar as
Pistas holds a mortgage on Bell s facility) and they do
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not participate in managing Bell Kuzmar has no owner
ship or financial interest in Diamond and he does not
participate in its management Indeed, while the General
Counsel devoted much time and effort to belaboring
such minutia as the identity of suppliers, the General
Counsel managed to avoid the question of the relation
ship between Bell and Diamond both at the hearing and
in its brief
Returning to Diamond, I have previously found that
both Pistas and White knew that Diamond would sub
stantially increase its volume of business when Apple
closed, and that Pistas would obtain most of that busi
ness The evidence further indicates that Pistas and
White also knew that Diamond would immediately re
ceive a massive infusion of funds which would enable
Diamond to greatly enlarge its business to a scale compa
rable to that of Apple's former operation During 1985
Diamond was little more than a cash and carry oper
ation Checking account activity was minimal Suppliers
would not extend credit to Diamond, for instance, Shir
ley White testified that United States Aluminum, a major
supplier of metal , would not extend credit to Diamond,
and would accept only registered or cashiers checks
However, beginning in January 1986 large sums of
money were deposited in Diamonds bank accounts, and
checking account activity greatly increased Diamond
paid out large sums of money to suppliers, including
United States Aluminum, by ordinary check Shirley
White, in her testimony, admitted that Diamonds pur
chases of supplies and materials increased dramatically
from December to January I do not credit White s sug
gestion, in her testimony, that these deposits reflected
payments from insurance companies for work performed
by Diamond during 1985 Diamonds volume of business
prior to January 1, 1986, was too small to explain such a
large infusion of funds
George Pistas in his testimony admitted that in his ca
pacity as `General Manager and Advisor" to Diamond
he solicited and obtained business for Diamond, pur
chased supplies, priced jobs, and supervised work Pistas
testified that he did not give or loan money to Diamond
or obtain loans for Diamond or hire or fire employees
(although he sometimes effectively recommended such
action) and that he terminated his employment relation
with Diamond in or about September 1987 without writ
ten notice as required by his employment agreement
Pistas did not terminate either the lease of Diamonds fa
cility or the lease of motor vehicles Pistas admitted that
he was lax in collecting payments under his various
agreements with Diamond and that Diamond still owed
him a large amount of money under both the employ
ment agreement and the property lease I find that Pistas
understated his role in Diamond Pistas had a substantial
investment in Diamond As found he purchased the fa
cility at 3855 West Grand for Diamond for which Dia
mond is obliged to pay a substantial monthly rental Dia
mond leases all of its vehicles from Pistas through his
firm, Cherry Leasing Pistas provided most of Diamond s
other equipment and furnishings, and obtained substantial
business for Diamond In light of Diamond's substantial
infusion of funds beginning in January 1986, it is evident
that Pistas either invested a substantial amount of money
in Diamond or obtained substantial loans on its behalf
In light of this evidence, it is unlikely that Pistas viewed
his arrangement with Diamond as nothing more than a
temporary job It is also unlikely that Pistas would
simply walk away from Diamond after less than 2 years,
with Diamond still owing him substantial amounts of
money, and after he obtained business for Diamond
Shirley White is a competent manager , and has gradually
learned the business However, in January 1986 she had
only limited knowledge of and experience in the buss
ness , and she has never had the business connections or
financial resources enjoyed by Pistas, such as would
enable Diamond to suddenly and greatly increase the
size of its operations I find that since December 1985
Pistas has been and is a silent partner in Diamond, and
together with Shirley White is a principal of Diamond 10
As indicated, the General Counsel devoted consider
able time and effort to showing the identity of suppliers
of goods and services for Apple , Bell, and Diamond I
am not persuaded that such information has great eviden
tiary value in this case There are some 275 glazing com
panes in Chicago However, there are only five distribu
tors of glass in Chicago, i e, distributors of the principal
product used by the glaziers There are even fewer dis
tnbutors of specialty products and services used by the
glazing firms, e g, two distributors of tempered glass
two distributors of the plastic product, Lexon and one
supplier of mobile radio service Moreover Bell operates
in the same facility as Apple, and Diamond is located in
the same area Therefore, it is difficult to attach much
significance to the fact that Bell and Diamond use many
of the same suppliers as Apple In fact there are some
differences Coolidge was not one of Apple s major sup
pliers of glass, although it is now Diamonds major sup
plier Apple purchased tempered glass principally from
Glasstemp by Glass Tech, but Diamond purchases prin
cipally from Temtech This is not to say that the sources
of supply of Respondents are without any evidentiary
significance
As indicated, I have found significance in the testimo
ny of Brockhaus Schwaller insurance agent William
Stuber and in Pistas ' ability to obtain credit from suppli
ers for Diamond Apple obtained insurance through
Brockhaus Schwaller and Bell and Diamond also place
their insurance through the same firm In particular, Re
spondents all obtained health insurance coverage through
Brockhaus Schwaller, including coverage under the same
insurer and plan This fact is significant because of evi
dence that the working conditions of the employees of
Diamond and Bell are comparable to those of Apple As
testified by Kuzmar all glass replacement firms operate
in much the same manner Respondents employees
(other than clerical and supervisory) were or are paid an
hourly wage and have a basic 40 hour week Fringe ben
efits are comparable Apple had glaziers working in one
shop and metal workers working in another whereas
10 Ed Kuzniar in his testimony opined that Apple is still engaged in
business under Pistas On the present record it would be speculative to
say whether Pistas is engaged in any glass replacement or similar business
other than Diamond However the present evidence indicates that Pistas
was and is very much involved in Diamond
BELL GLASS CO 707
according to Shirley White all of Diamond s unit em
ployees are classified as glaziers with one or two as
signed to do board up work However, metal work is a
matter of progression Metal work requires greater skill
than glass installation and therefore employees (whether
of Apple or Diamond) were assigned to metal work as
they acquired the appropriate skills
C Analysis and Concluding Findings
The present case involves four relationships which are
alleged by the General Counsel to be applicable to the
present case They are, respectively, single employer
alter ego, successor for collective bargaining purposes,
and successor for the purpose of remedying an unlawful
discharge
The Board and courts have held that ostensibly sepa
rate firms may be regarded as a single employer under
the Act where there is interrelation of operations, togeth
er with centralized control of labor relations, common
management and common ownership, or financial con
trol NLRB v M P Building Corp, 411 F 2d 567 (5th
Cir 1969) The alter ego doctrine is an extension of the
concept of single employer Thus, two nominally sepa
rate business entities may be regarded as a single employ
er if one is the alter ego or `disguised continuance of
the other Southport Petroleum Co v NLRB, 315 US
100, 106 (1942) In determining whether two facially in
dependent employers constitute alter egos' under the
Act, the Board has long held that although each case
must tur-i on its own facts, we generally have found alter
ego status where the two enterprises have substantially
identical [ownership], management , business purpose, op
eration, equipment, customers and supervision Advance
Electric, 268 NLRB 1001, 1002 (1984) 11 In Advance
Electric, the Board held that in determining whether an
alter ego status was present it would consider whether
the purpose behind the creation of the alleged alter ego
was legitimate or whether, instead, its purpose was to
evade responsibilities under the Act but that such
intent is not an essential element of an alter ego relation
ship See also Fugazy Continental Corp 265 NLRB 1301
1302 (1982), enfd 725 F 2d 1416 (D C Cir 1984) Good
man Piping Products v NLRB, 741 F 2d 10, 12 (2d Cir
1984) Contra Alkire v NLRB, 716 F 2d 1014, 1020 (4th
Cir 1983)
In NLRB v Burns Security Services 406 US 272
(1972), the Supreme Court affirmed the principle that a
new employer succeeding to the business of another has
an obligation to bargain with the union representing the
predecessor s employees Fifteen years later in Fall River
Dyeing Corp v NLRB, 482 U S 27, 43 (1987), the Su
preme Court elaborated on Burns, and resolved several
issues which had arisen in the intervening years concern
mg its application The court held that in determining
11 The concepts of single employer and alter ego should not be con
fused with that of joint employer Under the latter doctrine separate
firms which share or co determine those matters governing essential
terms and conditions of employment of the employees involved are
Joint employers of those employees regardless of whether the firms are
commonly owned operated or controlled NLRB v Greyhound Corp
368 F 2d 778 (5th Cir 1966) Joint employer status is not an issue in the
present case
whether a new employer is the successor to the old, the
question presented is
[W]hether the new company has acquired substan
tial assets of its predecessor and continued without
interruption or substantial change the predecessor s
business operations " Hence the focus is on
whether there is substantial continuity" between
the enterprises Under this approach, the Board ex
amines a number of factors whether the business of
both employers is essentially the same whether the
employees of the new company are doing the same
jobs in the same working conditions under the same
supervisors, and whether the new entity has the
same production process, produres the same prod
ucts, and basically has the same body of customers
The court has stated in Fall River Dyeing supra at 41,
`And the new employer has an obligation to bargain
with the union representing the predecessors employees
so long as the new employer is in fact a successor of the
old employer and the majority of its employees were em
ployed by its predecessor That obligation takes effect
when the successor has a substantial and representative
complement' of employees (which need not be a full
complement), a majority of whom were employed by the
predecessor The fourth relationship invoked by the
General Counsel was defined by the Supreme Court in
Golden State Bottling v NLRB, 414 US 168 (1973)
which issued shortly after Burns In Golden State, the
Court held that the bona fide purchaser of a business,
who acquires and continues the business with knowledge
that his predecessor has committed an unfair labor prac
tice in the discharge of an employee may be ordered by
the Board to reinstate the employee with backpay
Unlike successorship for bargaining purposes this obliga
tion does not require that a majority of the successor s
employees be former employees of the predecessor and
also does not turn on whether those employees are rep
resented by a union See Golden State at fn 6
Applying the foregoing principles to the facts of the
present case, I find that Apple Bell and Diamond are
separate employers and that neither Bell nor Diamond is
the alter ego of Apple Apple, although corporate in
form was in essence a partnership of Ed Kuzniar and
George Pistas That partnership no longer exists When
Kuzniar and Pistas agreed to break up their partnership
they divided their assets and liabilities and each went his
separate way Kuzniar is the principal and owner of Bell
and as found Pistas and Shirley White are the principals
of Diamond Since January 1985 there has been no con
nection between Bell and Diamond Rather, although to
some extent they seek different customers they are com
petitors operating in the same industry and market Bell
and Diamond have different ownership and management
from each other and from the partnership arrangement of
Pistas and Kuzniar which existed under Apple There
fore I am recommending that the allegations of the com
plaint be dismissed insofar as the complaint alleges that
Bell and Apple are a single employer and that Bell and
Diamond are each an alter ego of Apple
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
However as indicated the tests for successorship are
different There is no requirement of common ownership
management or control The successor may even be a
competitor of the predecessor I find that Diamond is the
successor of Apple both for bargaining purposes (under
Burns and Fall River), and for the purpose of remedying
the unlawful discharge of Frank Dorgan (under Golden
State) It is substantially immaterial whether Pistas is an
owner or has a financial interest in Diamond That firm
would be the successor of Apple even if, as contended
by Diamond, it began as partnership of White and Setti
pane and is now owned and controlled by White As
found Diamond commenced its enlarged operation in
January 1986 with a substantial and representative corn
plement of employees of whom a majority had been em
ployees of Apple There was no hiatus in operations
Apple ceased operations at the end of 1985, and Dia
mond immediately commenced operations in its new fa
cility (provided by Pistas) using most of Apple s person
nel and trucks, much of its other equipment, and obtain
ing credit and customers on the strength of Pistas in
volvement in Apple and Diamond Pistas, while still an
owner of Apple offered Apple s employees employment
with Diamond Diamonds business was substantially the
same as Apple s Like Apple, Diamond engaged in the
business of replacing glass and storefront facades Dia
mond also did board up work, as Apple previously had
done Diamond's employees did substantially the same
work under the same conditions as Apple except that
Diamond used a different facility Two of Diamonds su
pervisors (Pistas and Louis Stephens) had been supervi
sors at Apple The other two (White and Settipani) were
former Apple employees Diamond provided the same
products and services as Apple and basically had the
same body of customers Diamond inherited some of
Apple s customers and obtained new ones However the
successorship doctrine does not require that the prede
cessor and the successor have the same customers
Rather as indicated by the Supreme Court, the pertinent
question is whether they basically have the same body
of customers i e whether they do business in the same
market Good N Fresh Foods 287 NLRB 1231 1234
(1988) Diamonds operations meet this test Therefore, I
find that Diamond is the successor of Apple and that Di
amond violated Section 8(a)(5) and (1) of the Act by fail
mg and refusing to recognize and bargain with the Union
as the collective bargaining representative of Diamond s
employees in the appropriate unit I further find that Di
amond, as the successor of Apple is obligated to remedy
the unlawful discharge of Frank Dorgan Diamond ac
quired a substantial portion of Apple s business, and con
tinned to operate that business with knowledge that
Apple committed an unfair labor practice by discharging
Dorgan Pistas and Kuzniar jointly made the decision to
discharge Dorgan Pistas was at least general manager
of Diamond and as found a silent partner and principal
of Diamond Therefore his knowledge is imputed to Dia
mond See Golden State, 414 US at 173 Moreover
Shirley White was aware of the unfair labor practice
case and had at least reasonable cause to believe that
Dorgan was unlawfully discharged Therefore, even
apart from Pistas knowledge White was under an obli
gation to inquire further into the matter before acquiring
a substantial portion of Apple s business
Turning to Bell I find that Bell together with Dia
mond is jointly and severally obligated to remedy
Apples unlawful discharge of Dorgan Bell like Dia
mond is a successor of Apple Bell acquired substantial
assets of Apple, including the lease of the facility Bell
continued without hiatus to engage in the same business
although on a reduced scale Most of Bell s personnel
complement (Kuzniar, Robert and Arlene Lowe, and
LaCour) were former Apple personnel Kuzniar togeth
er with Pistas, was responsible for Dorgan s discharge
Bell and Diamond together acquired all of the former
business of Apple including assets and liabilities It would
make no sense to find that if one firm acquired all of the
business of Apple with knowledge of Dorgan s unlawful
discharge, that firm would be obligated to remedy the
discharge, but that if two firms divided the business not
only with knowledge but with principals who were re
sponsible for the discharge, they could escape any liabil
ity However, as Bell s employee complement did not in
elude a majority of former Apple employees, I find that
Bell did not violate the Act by failing and refusing to
recognize and bargain with the Union
CONCLUSIONS OF LAW
1 Diamond is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and has continued the employing entity and is a succes
sor of Apple
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 All employees of Diamond employed at its facility
presently located at 3855 West Grand, Chicago, Illinois
excluding office clerical employees guards and supervi
sors as defined in the Act constitute a unit appropriate
for the purpose of collective bargaining within the mean
mg of Section 9(b) of the Act
4 Since January 1 1986, the Union has been and is
the exclusive collective bargaining representative of Dia
mond s employees in the unit described above
5 By failing and refusing since May 30 1986, to rec
ognize and bargain collectively with the Union as the ex
clusive representative of its employees in the appropriate
unit Diamond has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) and
(5) of the Act
6 Bell is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
7 Diamond and Bell acquired and continued the busi
ness of Apple with knowledge of Apple s potential liabil
ity to remedy the unlawful discharge of Frank Dorgan
as determined by the Board in Apple Glass Co Cases 13-
CA-24872, etc, and are obligated to remedy that unfair
labor practice
8 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
BELL GLASS CO 709
THE REMEDY
Having found that Diamond has violated Section
8(a)(1) and (5) of the Act I shall recommend that it be
required to cease and desist from such conduct and take
certain affirmative action designed to effectuate the poli
cies of the Act I shall recommend that Diamond be or
dered to recognize and, on request, bargain with the
Union as the bargaining representative of its employees
in the appropriate unit I shall further recommend that
Diamond and Bell each be ordered to offer Frank
Dorgan immediate and full reinstatement to his former
job or, if it no longer exists to a substantially equivalent
position, without prejudice to his seniority or other
rights and pnvileges previously enjoyed, and to jointly
and severally make him whole for any loss of earnings
and benefits he may have suffered from the time of his
discharge to the date that Diamond and Bell, respective
ly, offer him reinstatement Dorgan may choose as to
which offer, if any, he will accept Backpay shall be
computed in accordance with the formula approved in
F W Woolworth Co, 90 NLRB 289 (1950) with interest
as computed in New Horizons for the Retarded 283
NLRB 1173 (1987) 12 It will also be recommended that
Bell and Diamond be required to preserve and make
available to the Board or its agents, on request, payroll
and other records to facilitate the computation of back
pay due, and to post appropriate notices The recom
mended Order does not obviate any of Apple's obliga
tions under the order in the prior unfair labor practice
case See Golden State supra, 414 U S at 186-187 (Ed
Kuzniar testified that Apple still has an open account,
and that he has been collecting money owed to Apple
and making payments on its debts )
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed13
ORDER
A Respondent A Diamond Glass Co and A Diamond
Board Up Co, d/b/a A Diamond Glass and Board Up
Co its officers agents, successors and assigns shall
1 Cease and desist from
(a) Refusing to bargain collectively with Glaziers, Ar
chitectural Metal & Glass Workers Local Union No 27
Chicago & Vicinity International Brotherhood of Paint
ers and Allied Trades, AFL-CIO as the exclusive bar
gaining representative of its employees in the following
appropriate unit
12 In accordance with our decision in New Horizons for the Retarded
283 NLRB 1173 (1987) interest on and after January 1 1987 shall be
computed at the short term Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621 ) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
13 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses
All employees of Diamond employed at its facility
presently located at 3855 West Grand, Chicago, Illi
nois excluding office clerical employees, guards
and supervisors as defined in the Act
(b) In any like or related manner interfering with re
straining, or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) On request bargain with the Union as the exclusive
representative of the employees in the appropriate unit
discribed above concerning terms and conditions of em
ployment and, if an understanding is reached, embody
the understanding in a signed agreement
(b) Offer Frank Dorgan immediate and full reinstate
ment to his former job with Apple Glass Company or if
such job no longer exists to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges previously enjoyed, and jointly and
severally with Bell Glass Co, make him whole for losses
he suffered by reason of the discrimination against him
by Apple Glass Company and their failure and refusal to
offer him reinstatement as set forth in the remedy sec
tion of this decision
(c) Preserve and on request, make available to the
Board or its agents, for examination and copying all
payroll records, social security payment records, time
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order
(d) Post at its Chicago Illinois facility copies of the at
tached notice marked Appendix A Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondents au
thorized representative shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
B Respondent Bell Glass Co, its officers, agents, suc
cessors and assigns shall take the following action nec
essary to effectuate the policies of the Act
(a) Offer Frank Dorgan immediate and full reinstate
ment to his former job with Apple Glass Company, or if
such job no longer exists, to a substantially equivalent
position without prejudice to his seniority or other rights
and privileges previously enjoyed and jointly and sever
ally with A Diamond Glass and Board Up Co, make
him whole for losses he suffered by reason of the dis
crimination against him by Apple Glass Company and
our failure and refusal to offer him reinstatement as set
forth in the remedy section of this decision
(b) Preserve and on request, make available to the
Board or its agents for examination and copying, all pay
roll records social security payment records timecards
personnel records and reports, and all other records nec
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
essary to analyze the amount of backpay due under the
terms of this Order
(c) Post at its Chicago, Illinois facility copies of the at
tached notice marked Appendix B 14 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent's au
thorized representative, shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
14 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al 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
to engage in union or concerted activities, or to refrain
therefrom
WE WILL recognize and on request bargain collec
Lively with the above named Union as the exclusive rep
resentative of all employees in the appropriate unit de
scribed above, with regard to rates of pay, hours of em
ployment, and other terms and conditions of employment
and, if an understanding is reached, embody such under
standing in a signed agreement
WE WILL offer Frank Dorgan immediate and full rein
statement to his former job or, if such job with Apple
Glass Company no longer exists, to a substantially equiv
alent position, without prejudice to his seniority or other
rights and privileges previously enjoyed, and jointly and
severally with Bell Glass Co, make him whole with in
terest for losses he suffered by reason of the discnmina
tion against him by Apple Glass Company and our fail
ure and refusal to offer him reinstatement
A DIAMOND GLASS Co A DIAMOND
BOARD UP CO, D/B/A A DIAMOND GLASS
AND BOARD UP CO
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL NOT refuse to bargain collectively with Gla
ziers, Architectural Metal & Glass Workers Local Union
No 27, Chicago & Vicinity International Brotherhood
of Painters and Allied Trades AFL-CIO as the exclu
sive bargaining representative of our employees in the
following appropriate unit
All our employees employed at our facility present
ly located at 3855 West Grand, Chicago, Illinois
excluding office clerical employees guards and su
pervisors as defined in the Act
WE WILL NOT in any like or related manner interfere
with restrain, or coerce you in the exercise of your right
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARDS
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
WE WILL offer Frank Dorgan immediate and full rein
statement to his former job with Apple Glass Company
or, if such job no longer exits to a substantially equiva
lent portion without prejudice to his seniority or other
rights and privileges previously enjoyed and jointly and
severally with A Diamond Glass and Board Up Co
make him whole with interest for losses he suffered by
reason of the discrimination against him by Aplle Glass
Company and our failure and refusal to offer him rein
statement
BELL GLASS CO