AC Electric

National Labor Relations Board - Board Decisions

Apr 17, 2001

333 N.L.R.B. 987 (N.L.R.B. 2001)

AC ELECTRIC 987
Thomas H. Roberts, d/b/a AC Electric and its alter
ego Boyce Enterprises, Inc. and its successor
ECM Enterprises, Inc., d/b/a Ace Electric and
International Brotherhood of Electrical Work-
ers Local Union 910, AFL–CIO. Case 3–CA–
18504
April 17, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On March 30, 1998, Administrative Law Judge Robert
T. Snyder issued the attached supplemental decision.
Respondent ECM Enterprises, Inc., d/b/a Ace Electric
(ECM) filed exceptions and a supporting brief. The
General Counsel filed an answering brief. The General
Counsel also filed exceptions and a supporting brief.
Respondent ECM filed an answering brief.
The National Labor Relations Board has delegated 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 briefs and has decided to
affirm the judge’s rulings,1 findings,2 and conclusions
only to the extent consistent with this Supplemental De-
cision and Order. With a minor exception, we agree with
the judge’s analysis of the interrelationships among the
three Respondents in this compliance specification case.
We disagree, for the reasons that follow, with his divi-
sion of their liability for unfair labor practices committed
by one of them.
This case involves backpay owing to Randy Bashaw
and Raymond Rothamel, whom Respondent Thomas H.
Roberts, d/b/a AC Electric (AC) unlawfully refused to
hire on November 4, 1993. At that time, Respondent AC
was engaged in the electrical contracting business and
was bound to the terms of a multiemployer contract with
a predecessor of the Charging Party Union. Respondent
AC ceased operations on December 31, 1993. The judge
has found, in agreement with allegations of the specifica-
tion, that Respondent Boyce Enterprises, Inc. (Boyce),
which began electrical contracting operations on the next
day, was AC’s alter ego and/or AC’s successor within
the meaning of Golden State Bottling Co. v. NLRB, 414
U.S. 168 (1973), because Boyce took over and continued
AC’s operations with knowledge of AC’s unfair labor
practices.3

1 We find no need to pass on the judge’s statement that Respondent
ECM is foreclosed by Board Rule 102.54(b) from disputing the interim
earnings of discriminatee Raymond Rothamel.
2 Respondent ECM has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.

Respondent Boyce continued in existence throughout
the remainder of this compliance specification’s backpay
period, which ends on May 1, 1996. Boyce ceased op-
erations altogether in late August 1996. Until then, it
remained bound to successive collective-bargaining
agreements with the Union and its predecessor.
On March 25, 1996, Respondent ECM commenced
electrical contracting operations, employing a majority of
the Boyce work force and assuming many of the jobs
started by AC/Boyce. The judge has found, again in ac-
cord with the allegations of the compliance specification,
that ECM succeeded to the operations of Respondents
AC and Boyce with knowledge of AC’s unfair labor
practices. He therefore found that Respondent ECM was
also a Golden State successor.
Respondent ECM, however, was not bound to the
terms of any collective-bargaining agreement with the
Union, and it provided different wages and benefits than
those in the contracts applicable to the bargaining unit of
electricians of Respondents AC and Boyce. The judge
acknowledged that generally a Golden State successor
would share full joint and several liability for the prede-
cessor’s unfair labor practices. However, he found that
there were “special and somewhat novel circumstances
presented on this record” that warranted division of the
backpay period and the imposition of different backpay
obligations for the Respondents. He reasoned that Re-
spondents AC and Boyce should share joint and several
liability for reimbursement of wages and benefits to the
two discriminatees at union contract rates for the entire
backpay period of November 4, 1993, to May 1, 1996.
On the other hand, the judge found both that Respondent
ECM was only liable to the discriminatees for the brief
part of the backpay period on and after the March 25,
1996 date when it commenced operations and that its
liability was limited to reimbursement of wages and
benefits at ECM’s own, nonunion rates. (Respondents
AC and Boyce shared joint and several liability with Re-
spondent ECM in this regard, in addition to their separate
liability for the entire backpay period.)
For the reasons stated by the judge, we agree that Re-
spondents AC and Boyce are alter egos and/or wrongdo-
ing predecessor and Golden State successor, and that, as
such, they have full joint and several backpay liability to
3 The judge also found that Respondents AC and Boyce were a single
employer. We find no need to pass on this finding.
333 NLRB No. 120
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 988
the discriminatees for the entire backpay period at the
union contract rates set forth in the compliance specifica-
tion (with certain uncontested modifications set forth in
the judge’s decision). We further agree that Respondent
ECM is a Golden State successor, but we disagree with
the judge’s limitation of ECM’s resulting backpay liabil-
ity.4
In Golden State, the Supreme Court upheld the
Board’s remedial doctrine permitting the imposition of
derivative liability on a bona fide successor employer
who acquires and continues the business of a predecessor
with knowledge of the predecessor’s unremedied unfair
labor practices.5 This equitable doctrine involves a bal-
ancing of the legitimate interests of the bona fide succes-
sor, the public, and the employee victims of an unfair
labor practice. The balancing process emphasizes the
need for protection of those employees who may be
“without meaningful remedy when title to the employing
business operation changes hands.” Perma Vinyl, 164
NLRB at 969. Their situation contrasts with that of a
successor who, having advance notice of the predeces-
sor’s wrongdoing, may make arrangements for potential
liability when negotiating the business transfer. Golden
State, 414 U.S. at 185, citing Perma Vinyl, 164 NLRB at
969. Consequently, the general practice under the
Golden State doctrine is to impose full joint and several
liability on the predecessor and the successor.
As stated, the judge here acknowledged this general re-
medial practice under the Golden State doctrine, but he
found that “special and somewhat novel circumstances”
warranted the imposition of a more limited backpay obliga-
tion on Respondent ECM. The judge did not identify those
circumstances, and we find that there are none.
With respect to the appropriate length of the backpay
period for Respondent ECM, there is no precedent for
limiting a successor’s liability to the term of its exis-
tence. The relevant timeframe for purposes of computing
backpay liability is the entire period in which the dis-
criminatees would have worked but for the respondent
employer’s unlawful denial of employment. The imposi-
tion of joint and several liability for the entire period on
both predecessor and successor, irrespective of their own
actual periods of operation, best insures that the em-
ployee victims receive full compensation even if one or
the other employing entity suffers insolvency or resists
compliance. See Golden State, 414 U.S. at 186–187 (en-
dorsing the Board’s policy of imposing liability on a

4 Independent of the backpay issue addressed here, Respondent
ECM bears the remedial obligation to offer immediate employment to
Bashaw and Rothamel.
5 See Perma Vinyl Corp., 164 NLRB 968 (1967), enfd. sub nom.
U.S. Pipe & Foundry Co. v. NLRB, 398 F.2d 544 (5th Cir. 1968).
predecessor beyond the date it sold its business). The
Board has routinely imposed this liability on a Golden
State successor who comes into existence at some point
during this backpay period. E.g., AAA Fire Sprinkler,
Inc., 322 NLRB 69 (1996) (Arlene); Marbro Co., 310
NLRB 1145 (1993) (RMS); and Bell Co., 243 NLRB 977
(1979) (Endurall). We shall continue to do so in this
case.
Turning now to the appropriate basis for computing
Respondent EMS’ liability, we emphasize that the impo-
sition of Golden State liability for backpay does not rely
on the successor’s obligation to assume the predecessor’s
contractual obligations to a union,6 to adhere to the
predecessor’s terms and conditions of employment,7 or
even to recognize and bargain with the union that repre-
sented the predecessor’s employees.8 Requiring Respon-
dent ECM to compensate the discriminatees on the basis
of monetary terms in a collective-bargaining agreement
is not tantamount to requiring it to assume the contract.
The real question here is whether the General Coun-
sel’s reliance on the union contract terms sets a reason-
able standard for determining gross backpay, restoring to
the discriminatees as nearly as possible what they may
reasonably be said to have lost as a consequence of the
discrimination against them. In that regard, it is undis-
puted that the discriminatees applied for, and were un-
lawfully denied electrician jobs with Respondent AC on
November 4, 1993. From that date, throughout the entire
backpay period ending on May 1, 1996, and continuing
until August 23, 1996, Respondent AC or its alter
ego/Golden State successor, Respondent Boyce, re-
mained in operation and obligated to pay its electricians
according to the terms of successive union contracts.
Although Respondent ECM began operations on March
25, 1996, employing some AC/Boyce employees on and
after that date under different terms and conditions of
employment, it has failed to show that Bashaw and
Rothamel necessarily would have been among those em-
ployees who left AC/Boyce and joined its work force at
any time prior to the end of the backpay period. We
therefore find that the General Counsel’s use of the union
contract terms as the standard for computing all Respon-
dents’ backpay liability, including that of Respondent
ECM as a Golden State successor, was reasonable for the
entire backpay period at issue.9
6 Golden State, 414 U.S. at 183–185.
7 NLRB v. Burns Security Services, 406 U.S. 272, 281 (1972).
8 St. Marys Foundry Co., 284 NLRB 221, 221 fn. 4 (1987), enfd.
860 F.2d 679 (6th Cir. 1988).
9 We need not decide here the appropriate standard for computing li-
ability, if any, after Boyce ceased operations.
AC ELECTRIC 989
ORDER
1. The National Labor Relations Board orders that the
Respondents, Thomas H. Roberts, d/b/a AC Electric and
its alter ego Boyce Enterprises, Inc., their officers,
agents, successors, and assigns, shall, jointly and sever-
ally with their successor, Respondent ECM, Enterprises,
Inc., d/b/a Ace Electric, its officers, agents, successors,
and assigns, make whole the discriminatees Randy Ba-
shaw and Raymond Rothamel, by paying to each of
them, for the period November 4, 1993, to May 1, 1996,
the amounts of backpay appearing for each of them in
each quarterly backpay report attached to and made part
of the amended compliance specification, with interest
accrued thereon to date of payment, minus the tax and
withholding required by Federal and state Law, and will
pay to each of the entities described in paragraph 37 of
the amended compliance specification on behalf of the
two named discriminatees the amounts specified opposite
the name of each entity, including the IBEW Health and
Welfare Fund, IBEW Pension Fund, IBEW Annuity Tier
A and National Electrical Benefit Fund (NEB), except
that no payment shall be made to the IBEW Apprentice-
ship Fund and to IBEW Local Union 910, AFL–CIO,
representing working dues and assessments, and quar-
terly dues as described in paragraph 34 of the amended
compliance specification.
2. Backpay and loss of benefits shall continue to ac-
crue for, and on behalf of Randy Bashaw and Raymond
Rothamel until such time as Respondent ECM, d/b/a Ace
Electric makes a valid offer of reinstatement to them.

Robert A. Ellison, Esq., for the General Counsel.
Thomas H. Roberts, appearing pro se.
Karen Roberts, President, for Boyce Enterprises, Inc.
Thomas H. Sommers, Esq. (Hoff, Curtis, Pacht, Cassidy &
Frame, P.C.), for ECM Enterprises, Inc., d/b/a Ace Elec-
tric.1
Donald D. Oliver, Esq. (Blittman & King, LLP), for the Charg-
ing Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE AND PROCEDURAL
HISTORY
ROBERT T. SNYDER, Administrative Law Judge. In an
order dated May 31, 1995, in the absence of exceptions having
been filed, the General Counsel, having successfully requested
withdrawal of its exceptions to a decision of Administrative
Law Judge George F. McInerny, issued on April 26, 1995, the
Board adopted the findings and conclusions of the administra-

1 Both Boyce Enterprises, Inc. (Boyce) and ECM Enterprises, Inc.,
d/b/a Ace Electric (ECM, Ace, or Ace Electric) have been added as
Respondents solely in this supplemental proceeding in order to add
them as parties allegedly responsible for complying with the Board’s
Order, as enforced.
tive law judge as contained in his decision, as corrected, and
ordered the Respondent, Thomas H. Roberts, d/b/a AC Electric
(Roberts, AC, or AC Electric), its officers, agents, successors,
and assigns, to take the action set forth in the recommended
Order of the administrative law judge.
In the complaint in the underlying proceeding, Roberts was
alleged to have violated Section 8(a)(1) of the Act by interro-
gating prospective employees—the two alleged discrimina-
tees—about their union activities and membership and to have
violated Section 8(a)(1) and (3) of the Act by conditioning job
offers on prospective employees giving up their union member-
ship and by refusing to hire two prospective employees because
they were members of a union, in this case the Charging Union,
International Brotherhood of Electrical Workers, Local Union
910, AFL–CIO (the Union or Local Union 910).
The Union did not file, nor did the parties litigate, any
allegation that Roberts refused to bargain in good faith with the
Union in violation of Section 8(a)((1) and (5) of the Act, al-
though Judge McInerny found that Roberts had signed a letter
of assent in 1990 binding himself, as an electrical contractor, to
abide by the collective-bargaining agreement between a prede-
cessor of the Union, Local Union 781, which had since merged
into Local Union 910, and electrical contractors. At the time of
his decision, litigation was pending in Federal district court as
to whether Roberts continued to be bound by the letter of assent
and whether all union grievance proceedings should be stayed
at his request.
Judge McInerny concluded that Roberts had violated the Act
as alleged, and recommended an order, adopted by the Board,
which, inter alia, required Roberts to offer to Randy Bashaw
and Raymond Rothamel, the two union member applicants
discriminatorily denied employment, immediate employment,
and to make them whole for any loss of earnings either may
have suffered.
Judge McInerny found Roberts unlawfully refused to hire
Bashaw and Rothamel on or about November 4, 1993. In his
remedy, adopted by the Board, he ordered Roberts to offer the
two immediate employment at rates commensurate with their
experience under the current collective-bargaining agreement in
effect between the Union and the appropriate division and
chapter of the National Electrical Contractors’ Association
(NECA) and to make them whole for any loss of earnings they
may have suffered by reason of Roberts’ unlawful conduct
toward them, in accordance with the usual Board make-whole
remedy, by paying each of them a sum of money equal to the
amount he would have earned from the date of the unlawful
refusal to hire them to the date they are offered employment,
less net earnings during such period, to be computed in the
manner established by the Board in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
In his decision in the underlying proceeding, Judge McIn-
erny declined to find Boyce, owned and operated by Roberts’
wife, Karen Roberts, an alter ego and successor to Roberts, in
the light of uncontroverted testimony of his transfer and sale of
assets and property of his business to her at the end of 1993,
and her continuation of the same business under facts which
might well justify such legal conclusions, in the absence of any
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 990
notice to Karen Roberts as the alleged principal of Boyce or the
opportunity for her to be heard, and where the complaint was
not amended to allege Boyce as having such status.
Subsequently, upon the application of the Board for sum-
mary entry of a judgment against Roberts, its officers, agents,
successors, and assigns, enforcing its Order dated May 31,
1995, the U.S. Court of Appeals for the Second Circuit entered
judgment enforcing the Order of the Board dated May 31,
1995.
The Backpay Specification, Answers Thereto, and Resulting
Issues for Determination
The Regional Regional Director for Region 3 (Regional Di-
rector) issued an amended compliance specification dated De-
cember 11, 1996. In it, for the first time the Regional Regional
Director names Ace Electric as a party Respondent responsible,
jointly and severally with AC and/or Boyce,2 for compliance
with the Board’s Order and the court’s judgment, as a successor
with notice of AC’s and/or Boyce’s actual liability to remedy
its unfair labor practices.
The specification recites that AC having failed and refused to
comply, and a controversy having arisen over the obligation of
Boyce and Ace to satisfy the make-whole provisions of the
Board’s Order, the Regional Director issued this amended
specification pursuant to Sections 102.54 and 102.55 of the
Board’s Rules and Regulations.
In the amended specification the Regional Director alleges
that since May 31, 1995, AC has not taken any actions required
of it by the Board’s Order and the court’s judgment. AC did
not file any answer so does not deny this allegation.
After making various factual allegations, which, taken to-
gether, the Regional Director alleges, support her conclusion
that Boyce has continued AC’s business as an alter ego, the
specification seeks to hold Boyce jointly and severally liable
with AC for compliance.
In an unsworn answer dated August 13, 1996, which Karen
Roberts filed as president of Boyce, she claims that on Decem-
ber 31, 1993, Thomas Roberts instructed his attorney to file a
discontinuance of business and on that date, was in fact, out of
business and that Boyce did not commence operations until
January 2, 1994. While the amended specification alleged that
at various time since January 1, 1994, Boyce employed Thomas
Roberts, Boyce by Karen Roberts, his wife, asserts in the an-
swer that he is no longer employed by Boyce and has not been
for quite some time.
Boyce, in its answer, did not dispute or deny certain allega-
tions in the amended specification. These include the allega-
tion that at all material times, both AC’s and Boyce’s offices
and place of business were located at 248 Allen Road, Platts-
burgh, New York. This address was later established as the
common residence of Thomas and Karen Roberts.
Neither did Boyce deny the allegation that on December 31,
1993, Thomas Roberts transferred all of the assets and property
he held as the sole proprietor of AC to his wife, Karen Roberts
(nee Boyce), who, in turn, created Boyce Enterprises, Inc.

2 Boyce had been named as AC’s alter ego in both the original and
amended specification.
Boyce also did not deny that since January 1, 1994, Karen Rob-
erts has been its sole owner and president; that Boyce employed
the same four employees that AC had employed since 1991
until December 31, 1993; that since January 31, 1994, Boyce
used the same electrical equipment and four vehicles previously
used by AC at various times during the same period; and fi-
nally, that at all material times since January 1, 1994, Boyce
has held AC Electric out to the public as a division of Boyce.
As to the successor issue, the specification alleges and Ace
Electric filed answer admitting that it commenced operations as
an electrical contractor on or about March 25, 1996. By its
answer Ace Electric also admits that Edmond A. Martin (Mar-
tin) was office manager and estimator for Conroy & Conroy, a
general contractor, and in that capacity had contact with nu-
merous subcontractors including Thomas Roberts, AC, and/or
Boyce. It further admits that Thomas Roberts became an em-
ployee of Conroy & Conroy in the summer of 1995 and that
Martin and Roberts continued to have contact from time to time
as coemployees. In its answer Ace Electric also admits that
Thomas Roberts3 is employed as its operations manager (but
specifically denies that Roberts has overall responsibilities for
day-to-day operations and implementation of labor relations
policies).
With respect to backpay, the specification alleges that the
backpay period for the two discriminatees, Bashaw and
Rothamel, begins on November 4, 1993, and continues to date,
inasmuch as no valid offer of reinstatement has been made by
AC, Boyce, or Ace. As earlier noted, neither AC nor Boyce
denies this allegation, while Ace denies it by virtue of lack of
information to form a belief as its truth or falsity.
As to all further backpay allegations, neither AC nor Boyce
denies them, but Ace denies specific elements of the formula
used to establish gross backpay on the basis of lack of sufficient
information to form a belief, and further, denies allegations that
it is a successor to AC and/or Boyce or subject to the jurisdic-
tion of the Board.
In her backpay calculations, the Regional Director notes that
the amounts claimed are based on records provided to the Re-
gional Office by Thomas Roberts that are dated November 4,
1993, through May 1, 1996. Therefore, the amounts owing are
as of May 1, 1996, although in the absence of a valid offer of
reinstatement to the discriminatees, backpay and loss of bene-
fits continue to accrue.
The Regional Director alleges that an appropriate measure of
calendar quarter gross backpay owing to Bashaw and Rothamel
is based on the average hours worked by those employees who
worked during the backpay period, excluding four named core
employees who were employed by AC long before the two
discriminatees were denied employment in November 1993,
multiplied by the discriminatees’ respective hourly wage rate.
The specification then claims that for those weeks during the
backpay period when only one employee worked, the hours
worked have been equally divided between the two discrimina-
tees.
The specification next alleges the respective hourly wage for
each discriminatee, claiming for Bashaw $15.32 from Novem-
3 Misspelled Andrews in par. 18 of its answer.
AC ELECTRIC 991
ber 4, 1993, until April 1, 1995, when he became a journeymen
and would have earned $19.15 an hour, and claiming the jour-
neyman rate of $19.15 throughout the backpay period for
Rothamel. These rates are alleged as commensurate with the
discriminatees’ experience under the collective-bargaining
agreements between the Union and NECA. The specification
also adds remuneration for each discriminatee representing
overtime pay at 1-1/2 times regular pay for overtime hours
worked by the employees employed other than the four named.
The specification schedules itemize the quarterly gross back-
pay and then computes the quarterly net backpay by deducting
net interim earnings for each discriminatee. The interim em-
ployers and earnings and the computation of the net resulting
figures are set forth in schedules.
In addition to alleged lost pay, the specification seeks recov-
ery of fund contributions on behalf of the discriminatees. The
Regional Director’s theory for seeking these sums, to be paid to
the respective funds on behalf of the discriminatees, is that
Thomas Roberts, his alter ego Boyce, as well as his successor
Ace Electric, have never timely withdrawn their bargaining
authority from NECA, and NECA and the Union have negoti-
ated two collective-bargaining agreements relevant to obliga-
tions of signatories, their agents and successors, requiring cov-
ered employers to make such payments. These two agreements
were effective April 1, 1993, to March 31, 1995, and April 1,
1995, to March 31, 1997.
The agreements cited provide for the member employers of
the NECA, as well as signatory employers who adopt and agree
to be bound by the agreement, to make payments to various
union funds, including a Health and Welfare Fund, Pension
Fund, Annuity Fund, National Electrical Benefit Fund (NEBF),
and Apprenticeship Fund, among others, each of which provide
for contributions to be made of varying percentages of the cov-
ered employer’s gross monthly labor payroll. While described
as union funds in the specification, these funds, in actuality, are
trust funds, jointly administered by the Union (or in the case of
the NEBF its parent, the IBEW) and employers under trust
agreements and pursuant to Section 302 of the Labor Manage-
ment Relations Act of 1947.
In addition to contributions to the cited funds, the specifica-
tion also seeks payments of moneys in the form of working
dues (assessments), described in the agreements at Section 309
as “the additional working dues,” which the covered employer
agrees to deduct and forward to the financial secretary of the
Local Union—upon receipt of a voluntary written authoriza-
tion—from the pay of each IBEW member, the amount being
the amount specified in the approved Local Union bylaws. The
percentage of pay to be deducted varies between 4.5 and 5.0
percent in the two agreements.
Finally, the specification also demands that “Respondents
must make whole IBEW Local 910 for the quarterly dues it lost
during the life of the collective-bargaining agreements as a
result of Respondents’ unfair labor practices.”
As to union dues, both working dues and assessments as well
as quarterly union dues paid directly by members to Local Un-
ion 910, the specification alleges that there shall be no offset
from the amounts owing to the Union by what the discrimina-
tees remitted (or presumably what working dues were remitted
on their behalf) during the backpay period while employed by
their interim employers. The Regional Director asserts here
that the Union would have received dues from others who
would have worked in their place for interim employers, but
still lost moneys by virtue of the discriminatees’ not having
been hired by Respondents.
An appropriate measure of net amounts owed on behalf of
the two discriminatees to the Health and Welfare, Pension and
Annuity Funds is claimed to be the gross number of hours for
which Respondents owe these funds on their behalf offset by
the number of hours each discriminatee’s interim employer
contributed to these funds on their behalf. Each overtime hour
is equal to 1 hour for purposes of calculating fund contribu-
tions. The net number of hours is then multiplied by the appli-
cable rate for each fund to reach the net amount of contribu-
tions owing to these specific funds.
An appropriate measure of the amounts owing to the NEBF,
Apprenticeship Fund and Working Dues (Assessment)/General
Fund on behalf of the discriminatees is claimed to be the gross
amount of what their earnings would have been had they been
employed by Respondent, multiplied by the applicable percent-
age set forth for each of these funds in the collective-bargaining
agreements previously referenced.
In addition to the foregoing, including the quarterly dues the
Union lost during the life of the collective-bargaining agree-
ments, the specification relies on article IX, section 9.09 of the
agreements binding Respondent to their terms, as well as decla-
ration of trusts, and the rules and regulations including collec-
tions policies, of the funds, in seeking interest on delinquent
payments to the Pension Fund and the Annuity Fund in the
amount of l.5 percent for each month following the month for
which contributions were required, and liquidated damages in
the amount of 10 percent of the unpaid contributions.
With respect to the allegations that it is obligated to make
contributions to the various funds, Ace Electric denies that it is
bound by any collective-bargaining agreement entered into
between NECA and the Union and denies any obligation to
contribute to any union fund. Ace further denies it is bound by
any agreement or declaration of trust or rules, regulations, or
policies of the funds. Ace also denies that the Union is entitled
to any dues during any period when it was not acting as the
exclusive bargaining representative for the alleged discrimina-
tees.
The Evidence Adduced in Support of the
Amended Specification
Initially, counsel for the General Counsel moved, success-
fully, to allege Boyce, to the extent it is not found to be AC’s
alter ego, is a successor to or single employer with AC.
The collective-bargaining agreements introduced into evi-
dence show the parties to be Local Union 910 and The St. Law-
rence Valley Electrical Contractors Association, Inc., a division
of Albany Chapter of NECA. It is these agreements, in effect
for the time periods previously described, upon which the Re-
gional Director relies to establish both the salaries and fringe
benefits and other benefits to which the discriminatees, and the
funds, on their behalf, are claimed to be entitled in this proceed-
ing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992
Compliance Officer Richard Friend of Region 3 of the
Board, testified that, having received the answers to the
amended specification, neither of them raise any specific ques-
tions or objections to the manner of his computations, i.e,. the
gross backpay formula selected and applied, or the amount of
the calculations. Friend also indicated that to his knowledge
none of the named Respondents had offered reinstatement to
the named discriminatees since the issuance of the Board Order
in the underlying proceeding.
On his cross-examination, Friend was compelled to ac-
knowledge that the make-whole remedy of the Board fails to
make any reference to union dues, or require payment of union
dues, and, indeed, the remedy is directed toward the discrimina-
tees, and not to the Charging Party, the Local Union.
Friend noted that while the remedy does not specifically ad-
dress or require fund contributions, he implied such a general
make-whole remedy would include undertakings regarding
losses in fringe benefits, such as pensions, health benefits, and
annuities.
Friend also agreed that with respect to certain quarters of the
year covered by the backpay period, the specification provided
no credit to Respondents for earnings by Bashaw which ex-
ceeded his alleged gross backpay in those quarters. The speci-
fication, of course, made no claims for Bashaw for those quar-
ters, under the prevailing case law governing the manner of
computation and calculation of gross backpay by quarters. See
F.W. Woolworth Co., 90 NLRB 289 (1950).
When asked on redirect examination about the reason for the
inclusion of union dues in the specification, Friend referred to
an investigation of the collective-bargaining agreement but
offered no basis or theory to support their inclusion. The un-
dersigned then requested counsel for the General Counsel to
support the inclusion of dues and the funds in the specification,
in the absence of specific language in the Board’s Order, by
citation at the appropriate time.
Counsel for the General Counsel introduced into evidence
various documents supporting its theory that Thomas Roberts
had bound himself to abide by the union agreements. By sign-
ing a letter of assert on June 19, 1990, as owner of AC Electric,
Thomas Roberts authorized the Plattsburgh division of the Al-
bany Chapter NECA (NECA) as its collective-bargaining rep-
resentative for all matters contained in or pertaining to the cur-
rent and any subsequent approved inside labor agreement be-
tween the NECA and Local Union 781, IBEW.4
Although Thomas Roberts attempted to withdraw from his
union agreement and relationship by a letter of December 2,

4 Other evidence has established that Local Union 910 became the
successor to Local Union 781 when it merged with and became a part
of Local Union 910 sometime in late 1992 or early 1993 before the
agreements in evidence were executed. Thomas Roberts’ later defense,
asserted in a Federal Court proceeding which resolved the issue of
Roberts’ contractual relationship with Local Union 910 adversely to
him, that the merger removed any obligation by Roberts to bargain with
Local Union 910, was soundly rejected by the district court, and af-
firmed on appeal of a grant of a Motion for Summary Judgment in
favor of Local Union 910, AC Electric v. Electrical Workers Local
910, No. 94–CV–963, transcript of hearing (N.D.N.Y. 1995); affd.
mem. 89 F.3d 826 (2d Cir. 1995).
1992, addressed to the Union’s predecessor, Local Union 781,
that action proved ineffective because made improperly and
untimely under his letter of assent, which required such notice
to be made to both the NECA and to the Local Union and at
least 150 days prior to the then-current anniversary date of the
applicable approved labor agreement. A notice to be effective
would have had to be made to both parties at least 150 days
prior to March 31, 1993, the anniversary date of the then-
current agreement, and this notice did not meet that require-
ment.5
At a labor-management committee meeting held on Decem-
ber 29, 1993, between Local Union 910 and NECA representa-
tives to which Thomas Roberts had been invited, but at which
Karen Roberts appeared instead, a major portion of the meeting
was devoted to AC Electric’s failure to comply with the wage
and fringe benefit provisions of the labor agreement. In the
minutes of the meeting, Karen Roberts is listed as representing
AC Electric. The labor-management committee with three
union and three employers representatives, is convened under
terms of the inside construction agreement to hear all unre-
solved grievances. The minutes reflect Karen Roberts’ partici-
pation to the extent of asking a question and receiving an an-
swer as to the inapplicability to AC Electric’s situation of a
provision in the agreement permitting either party to provide
written notice of a desire to change or terminate the agreement
on 90 days’ notice.
At the conclusion of an executive session of the committee,
it rendered a decision finding AC Electric had never timely
terminated its signed agreement, now with Local 910, and that
AC Electric was in violation of its letter of assent and several,
enumerated, articles of the inside construction agreement.
In a letter dated December 31, 1993, Local Union 910 in-
formed Thomas Roberts of the decision and enclosed a copy.
In the letter, Roberts was informed of the possible moneys he
owed to the Union and invited to seek a meeting with the
writer, Union Business Manager George Intschert, failing
which the Union would proceed with all legal means to effectu-
ate collection.
Because at one point the Union believed it would be able to
resolve its dispute with Thomas Roberts, the Union withdrew
its initial unfair labor practice charge filed on November 12,
1993. The withdrawal request was approved by the then Re-
gional Director for Region 3 by notice to Roberts dated De-
cember 14, 1993. However, there was no response from Rob-
erts to the joint labor-management committee decision, further
efforts to resolve the dispute were unsuccessful and the Union
refiled its charge on April 6, 1994, alleging the conduct which
resulted in the underlying Board Order and court summary
judgment.
As noted, sometime in 1994 Thomas Roberts filed a com-
plaint in Federal District Court for the Northern District of New
York, in which he sought a declaratory judgment that no con-
tractual relationship existed between him and Local 910, and
for punitive and compensatory damages. In a nine-page deci-
sion read into the record, Thomas J. McAvoy, chief judge of
5 There is no evidence that Thomas Roberts, Boyce, or Ace ever pro-
vided a timely and appropriate notice of withdrawal thereafter.
AC ELECTRIC 993
the U.S. District Court, granted Local 910’s Motion for Sum-
mary Judgment and denied Roberts’ cross-motion for the same
relief. The court found a valid and binding collective-
bargaining agreement existed between Thomas Roberts, d/b/a
A.C. Electric and defendant Local 910. Plaintiff was directed
that he is bound to submit to the grievance procedure contained
in the inside labor agreement, including participation in future
labor-management committee to arrive at its full and final ad-
justment of the grievance.
On Roberts’ appeal, as earlier noted, the U.S. Court of Ap-
peals for the Second Circuit, affirmed the district court’s grant
of the Union’s Motion for Summary Judgment.
Counsel for the General Counsel offered into evidence ex-
cerpts from Plattsburgh area NYNEX telephone company
directories showing commercial and business listings for the
periods August 1995 to July 1996 and August 1996 to July
1997. The earlier listings show Thomas Roberts with his busi-
ness address as 248 Allen Road, Plattsburgh and business tele-
phone as 561–1705. There is no business listing for Boyce
Enterprises, Inc. The listings for the same period contain one
for AC Electric at the same address, 248 Allen Road, Platts-
burgh and the telephone number 561–216l. This address is the
Roberts’ home residence. This listing is for a period after
Thomas Roberts, d/b/a AC Electric ceased all operations and
was succeeded by Boyce Enterprises, owed by his wife Karen.
A good size display advertisement in this directory lists AC
Electric Division of Boyce Enterprises, Inc. as a professional
electrical contractor for commercial, industrial, and residential,
specializing in industrial motor controls with a picture of an
electrician testing or applying a tool to an electrical control
panel. The telephone number listed is 561–4644.
For the year August 1996 to July 1997 the telephone listing
for AC Electric continues with the same address and telephone
numbers, including a toll free 800 number listing. A large dis-
play ad in this directory shows ACE Electric as a professional
electrical contractor for industrial and commercial, listing a p.o.
box no. in Plattsburgh and a telephone number 561–7923. The
same page also includes a listing for AC Electric, for industrial,
commercial, and residential with a telephone number the same
as the prior year for AC Electric, 561–2161. Immediately fol-
lowing AC Electric’s business listing is one for ACE Electric
listing its business address as 248 Allen Road, Plattsburgh,
which is the Roberts’ home residence and the continued busi-
ness address for AC Electric in the prior year and this year’s
1996–1997 business telephone directory. Thomas Roberts
continues to be listed in the business listings at his home ad-
dress and the same telephone listing, 561–1705, as in the prior
year’s white business listings.
As to union dues, Thomas Millea, assistant business manager
for the Union, testified that union members pay two types of
dues. One is a working assessment provided for as noted in the
collective-bargaining agreement which is deducted from an
assenting member’s gross pay per week and forwarded to the
Union, at the rate of 4-1/2 percent of gross pay. The other is
union dues paid directly by the member to the International
Union in Washington, D.C. It is paid quarterly or annually.
The current rate is $61.50 per quarter for an apprentice, and
$67.50 per quarter for a journeyman. The obligation to pay
union dues continues whether or not members are employed.
During a cross-examination of Millea conducted by Thomas
Roberts, Millea acknowledged that he had been aware that a
nonunion employee, Joseph Dufrane, had worked for AC Elec-
tric for same 11 months after Thomas Roberts signed the letter
of assent. During that time Millea had approached Roberts
about Dufrane’s employment, someone who had been em-
ployed outside the Union’s exclusive referral procedure (art. IV
of agreement) informing Roberts that should he retain Dufrane
on his payroll he would be eligible for union membership, and
placement in the Union’s apprenticeship training program, but
otherwise would have to be terminated, but that Roberts, who
rated Dufrane as more of an apprentice than journeyman,
wasn’t sure he wanted to keep him as an employee. On other
occasions, Millea testified he met with Roberts on several dif-
ferent jobsites informing him that his actions were in violation
of the working agreement.
During Millea’s cross-examination by counsel for Ace Elec-
tric, it became clear, if it had not been made clear previously,
that Thomas Roberts, in executing the Union’s letter of assent,
authorizing the local chapter of NECA to represent Ace in col-
lective bargaining with the union’s predecessor, binding Rob-
erts to the terms and conditions of the current and all subse-
quent agreements entered between the parties, unless and until
such authorization was timely terminated, did not agree that the
union was the majority representative of his employees. The
agreement Roberts adopted was an 8(f) agreement under the
Act, covering employees in the building and construction
industry. Under the Board’s decision in John Deklewa & Sons,
282 NLRB 1375 (1987), enf. sub nom. Iron Workers Local 3 v.
NLRB, 843 F.2d 770 (3d Cir. 1987), cert denied sub nom. Dek-
lewa v. NLRB, 488 U.S. 889 (1988), a collective-bargaining
agreement permitted by Section 8(f) shall be enforceable
through the mechanisms of Section 8(a)(5) and Section 8(b)(3).
And an employer that did not individually agree to a prehire
agreement may nonetheless be bound to the terms of such an
agreement as a result of multiemployer bargaining. City Elec-
tric, 288 NLRB 443 (1988).
What has been said so far shows the binding nature of the
agreement in establishing the make-whole obligations of Tho-
mas Roberts toward the two discriminatees, even in the absence
of a refusal to bargain allegation in this case, and it governs the
obligations as well by Boyce, if it is established as AC Elec-
tric’s alter ego. Whether these contractual obligations govern
any remedy against Ace Electric, assuming it to be a successor,
with knowledge of Thomas Roberts’ unfair labor practice, is a
separate issue which will be explored and determined, infra.
Thomas Roberts testified under subpoena as a witness called
by counsel for the General Counsel. By letter dated December
26, 1993, addressed to C. J. Madonna, attorney for Boyce En-
terprises, he informed Madonna that “as of 12/31/93, I, Thomas
H. Roberts, currently doing business as AC Electric, will no
longer be in business. I have decided that there are just too
many headaches and I have decided to fold my business.”
Roberts denied that his problems with the IBEW were serious
ones but acknowledged he did have some problems with the
Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994
In the letter, Thomas Roberts authorized Boyce to collect
$47,226.01, representing his accounts receivables, and to pay
out of that sum the accounts payable he then itemized due vari-
ous electric and related supply companies totaling $44,306.
Boyce collected this sum and made the payments due.
The letter goes on to indicate that Thomas Roberts relin-
quished his rights to Boyce regarding four vehicles he owned at
the time for use in his business in return for his receiving
$3000. for his interest in those vehicles. The vehicles consisted
of a 1988 Dodge van, a 1990 Chevrolet van, a 1993 Chevrolet
van, and a 1994 Chevrolet van. He had paid $15,000 for the
1994 Chevrolet van, most of which was financed. The down
payment had been $1000. Boyce, after purchase, continued to
make payments on the van. He had paid $1000 down on the
1993 van. The 1990 van “might have been” then owed free and
clear. Thomas Roberts had paid $10,000 or $11,000 on its
purchase. He had also paid $10,000 for the Dodge van. All
four had been purchased new from dealers.
In the letter, Thomas Roberts then asks that every effort be
made to collect and distribute the moneys and to forward to him
a balance of $5919. This represents $3000 for the vans plus
$2919 for the difference between accounts receivable and pay-
able. He did receive the balance in full plus some additional
monies representing a late payment.
Thomas Roberts produced three canceled checks from Boyce
to himself representing these payments to him. One was for
$1000, another was for $1440 and the third was for $4000.
Roberts explained that this sum represented the equity he had in
the business, including $3000 for the trucks and the balance of
$2919, representing the difference between accounts receivable
and accounts payable. The checks, dated June 3 and 8 and
September 28, 1994, respectively, were draw on a bank ac-
count, printed in the name of “Boyce Enterprises, Incorporated,
d/b/a A.C. Electric.”
After ceasing to do business on December 31, 1993, Thomas
Robert testified he became employed by Boyce when it com-
menced business on January 2, 1994, estimating and supervis-
ing. These were the same duties and responsibilities he per-
formed when he was the proprietor of AC Electric.
Roberts explained that his wife answered the telephone when
he had operated AC Electric but that after Boyce began operat-
ing, she ran the company on a day-to-day basis and did the
hiring and firing. However, Roberts said that he and Jim Gill,
an employee of AC Electric who went to work for Boyce, were
responsible for supervising the employees and that his wife,
Karen Roberts, had no prior experience in the electrical con-
tracting business. Roberts received a salary as did his wife as
president while the electrical employees were paid on an hourly
basis.
As of December 31, 1993, AC Electric had four or five big
jobs still in progress. After December 31, 1993, Boyce per-
formed those jobs and he worked on some of them. For the
most part, the employees who had been employed by AC Elec-
tric also worked in these jobs for Boyce. When AC Electric
ceased operations it had seven employers and all of them were
then placed on the Boyce payroll as of January 2, 1994.
Thomas Roberts left Boyce’s employ in March or April,
1995 because of disputes with his wife over business matters
which were interfering with personal matters. He then became
employed by Conroy and Conroy (Conroy), an electrical con-
tractor which had been a major customer of both AC Electric
and Boyce. Conroy had supplied AC Electric with 35 percent
of its electrical work as a subcontractor and had supplied Boyce
with 50 percent of its electrical work.
In starting to work for Conroy as an electrician, Thomas
Roberts accepted an offer from a Conroy owner, Will Conroy,
who had been after him for a couple of years to work for him.
Roberts continued in Conroy’s employ as its sole electrician
from May until February 1995. During this period Conroy
continued to subcontract to Boyce and Roberts had occasion to
work alongside Boyce electricians on a couple of occasions.
Thomas Roberts had known Edmond Martin since 1992.
Martin was and is Conroy’s estimator and works in the Conroy
office. Roberts dealt with Martin while operating his own
business, AC Electric, and while supervising employees at
Boyce. Roberts submitted bids and estimates on behalf of both
AC Electric and Boyce to Martin between a third and half the
time and the rest of the time he dealt with Will Conroy.
Thomas Roberts testified he had been in touch with Martin
on business matters, personally or by phone, once every couple
of weeks and considered himself a personal friend and ac-
quaintance of Martin.
Starting in December 1995 and continuing during January
and February 1996, the work Roberts had been doing for Con-
roy became less and his hours were being cut back. At this
point, Ed Martin approached him and asked if he was interested
in going into a partnership with him, but Roberts declined.
Sometime later Martin told him “I could set this business up
and I could run it and I could do all the paperwork and taxes
and payroll and books and all this crap, and essentially the
things that I didn’t—didn’t like to do and never enjoyed about
the business so eventually I caved in and said ‘well, you know,
I’m losing hours here and I need money to—to support the wife
and kids.’” (Tr. 104.) I understood Roberts’ testimony here to
describe an understanding between himself and Martin pursuant
to which Martin would perform all bookkeeping, billing, pay-
roll and related office functions and Roberts would manage and
operate the electrical subcontracting jobs which the new busi-
ness was able to generate.
The new business, Ace Electric, started operations at the end
of March 1996. Roberts acknowledged he was to run the op-
eration outside the office as a kind of manager, supervisor, or
jack of all trades, and he has continued in that capacity to the
present, or at last through the close of hearing.
A joint exhibit stipulated into evidence, headed “Employee
Time Lines” shows that of nine employees employed by AC
Electric, including its owner, Thomas Roberts, until it ceased
operations on December 31, 1993, seven became employed by
Boyce at its inception on January 1 or 2, 1994, and that in addi-
tion to these seven, Boyce employed six others during all or
part of the period of its operation, which ceased in late August
1996. Among the six others, were Karen Roberts, its owner
and Thomas Roberts’ wife, and Thomas Roberts Jr., the Rob-
erts’ son. This exhibit further shows that Ace Electric em-
ployed nine electricians from its startup on March 26, 1996, to
close of hearing and that six of them had been previously em-
AC ELECTRIC 995
ployed by Boyce , and of these six, five of them, excluding only
Thomas Roberts, had remained employed by Boyce into 1996,
with their last employment dates for Boyce varying between
late January and August. There was also no substantial hiatus
between their employment, with four of the five showing their
starting employment with Ace within a week of leaving Boyce.
The fifth, Randy Trudeau, had been laid off by Boyce on Janu-
ary 26, 1996, before starting with Ace on April 5 of that year
shortly after its start up date. These six had commenced work
for Ace Electric between March 1996, when it began opera-
tions, and August, 1996 when the last of them, Eric Harvey,
had finished up work for Boyce. Others started in April and
May, when Ace Electric started to obtain contracting work
requiring more than one electrician.
Among the six electricians Ace hired who had previously
been employed by Boyce, Roberts successfully recommended
to Martin the employment of three of them, Randy Trudeau,
Russ Lester, and Eric Harvey, and may have recruited a fourth,
James Boyce. In two instances, Roberts successfully hired
them away from Boyce with promises of health benefits made
at the suggestion of Martin.
Roberts testified that after leaving Boyce, he was no longer
involved in supervising Boyce’s electricians.
As for Ace Electric, Martin is its president and sole share-
holder. Ace does business under the name of Ace Electric in
order to obtain favorable alphabetical placement in the phone
directory and also to take advantage of the reputation AC Elec-
tric had built up. Recall Ace’s business directory listing show-
ing Roberts’ resident address as its business address.
Ace primarily engages in commercial electrical work, mostly
as a subcontractor for Conroy. Ace obtains this work by sub-
mitting bid proposals to Conroy which in the past have been
reviewed by Martin in the course of his employment with Con-
roy and are ultimately approved by Will Conroy.
When Ace started its operations, Martin purchased a brand
new van to be used by Ace in its business from a car dealership
for $18,139.34 and registered the van in the name of ECM En-
terprises, Inc. Thereafter Ace purchased three other vehicles
from Boyce for fair market value in an arms length transaction.
On March 26, 1996, Boyce sold a 1990 Chevrolet cargo van to
Ace for $1800. On May 21, 1996, Boyce sold a 1993 Chevro-
let cargo van to Ace for $7300. On September 17, 1996, Boyce
sold a 1994 Chevrolet cargo van to Ace for $10,000.6
As an employee of Ace, Tom Roberts does field supervision;
he lays out jobs on the jobsites off the prints, laying out pipe
runs and related electrical work on site and supervises the work
performed by the Ace electricians. Roberts also performs some
estimating and preparation of bids for future jobs, primarily in
the area of labor costs, while Martin does the material costs
portion of the bids, based on his experience in performing this
work for Conroy.

6 These facts are culled from a set of stipulations executed and
agreed to by all parties. It is apparent that the three latter described
vans are three of the four vans, title to which Tom Roberts transferred
to Boyce and the understanding regarding which was memorialized in
his letter to Boyce’s attorney dated December 26, 1993. I may rea-
sonably infer that the purchase prices cited represent an approximation
of fair market value.
Martin’s employment by Conroy has continued after Ace
commenced operations and Conroy had become a source of
revenue for Ace. Tom Roberts spends a lot of time in Martin’s
office at Conroy on Ace’s business. As will be recalled, Ace
also maintains a P.O. box in Plattsburgh as a business address,
and a separate telephone number, and Martin also has an office
in his home.
Tom Roberts denied that he ever had a discussion with Mar-
tin concerning the labor problems that either AC Electric or
Boyce had with the Union, or ever informed Martin that there
was litigation in the courts concerning whether AC Electric was
bound by a collective-bargaining agreement with the Union.
Roberts did admit that he had asked Martin for a day off from
work in December 1995, in order to go to New York City to
attend a hearing involving some union problem. This most
likely was the oral argument conducted in the U.S. Circuit
Court of Appeals on the Union’s Motion and his Cross-motion,
for Summary Judgment. Its court house is located in New York
City. However, since the court’s summary order issued on
November 21, 1995, the argument was held sometime before
that date but sometime after the district court’s decision of Feb-
ruary 13, 1995. Thus, Roberts recollection of the month of his
attendance is in error. The argument was probably held some
weeks to a month or so prior to November 21. A later stipula-
tion fixed the hearing Roberts attended as the Second Circuit
Court of Appeals argument and the date as sometime in No-
vember 1995.
In the underlying unfair labor practice proceeding, Tom
Roberts testified as follows: On September 14, 1994, he was
then working on an estimator for Boyce and driving a truck
around that had AC Electric printed or painted on the side.
Roberts’ explained it was not his truck, but was a truck of the
corporation his wife owned. Tom Roberts had prepared a cer-
tificate of discontinuance of business which he signed and
dated December 31, 1993. Although Roberts claimed his law-
yer was supposed to file it the with the appropriate state author-
ity, it was not until Roberts had received a copy of the rein-
stated unfair labor practice charge filed on April 6 that Roberts
asked his lawyer for a copy of the certificate and then received
one showing it had been filed on April 8, 1994.
In the underlying proceeding, Roberts explained that his wife
was office manager, bookkeeper, receptionist, and supervisor
for Boyce, but performed no electrical work herself. This tes-
timony conflicts with his testimony summarized earlier in
which Roberts acknowledged that his wife, Karen, was not
responsible for supervising employees on the job.
As for the vehicles Boyce uses in its business, all four of
them continue to retain the same markings as described. Title
was transferred from Roberts to his wife at the end of Decem-
ber 1993.
Roberts also testified in the underlying proceeding that some
of the various items of tools and equipment he owned and
which were stored in the trucks were being used and similarly
stored by Boyce after it started business. Roberts claimed, but
did not produce any documentation, that he had received ap-
proximately $17,000 for the transfer of the tools and equipment
to Boyce. When referred to that claim in the instant hearing
Roberts now disclaimed that figure and, instead, relied solely
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 996
on his letter to his wife’s attorney dated December 26, 1993, for
the complete financial transactions between them.
Roberts further testified that between October and December
1993, he had employed Russ Lester, James Gill, and Joseph
Dufrane as electricians and they each became employees of
Boyce from January 2, 1994. The time line in evidence shows
that four others, John Myers, James Boyce, Christopher Hilpl,
and Donald Katzfey, also worked for him until the end of 1993,
and also immediately transferred to Boyce’s payroll at the be-
ginning of January 1994. Roberts could not report what sepa-
rate application procedure they underwent when they were
hired by Boyce.
While Boyce has continued to perform residential and com-
mercial electrical work as did Roberts himself, it has done a lot
more service work and less construction work than he himself
performed.
In the underlying proceeding, Roberts contradicted his testi-
mony given in this proceeding that he supervised the electri-
cians employed by Boyce. He swore that only James Gill su-
pervised and that he only worked as an estimator.
Roberts also denied in the underlying proceeding that no job
that had been bid or awarded to AC Electric was subsequently
performed by Boyce. As we know, Roberts admitted in this
proceeding that Boyce completed a number of jobs still in pro-
cess when he closed operations in December 1993.
Roberts noted that he had referred all of his previous cus-
tomers to Boyce and he did so when they asked for prices or
got their bills. Since AC Electric and Boyce had the same
business telephone number and fax line it was a relatively easy
way to refer these core customers to Boyce for their service or
related work.
Roberts now testified that as concerns any equipment, other
than vans or trucks, Boyce commenced operations using the
electricians’ tools, power tools, perhaps a threader, and ladders
which he had owned and used in his business as AC Electric.
Ownership to these pieces of equipment was not transferred to
Boyce by any document. They appear to have been kept in the
vans, ownership to which were transferred.
With respect to preexisting customers of AC Electric, Rob-
erts referred all of them to Boyce whenever he was contacted
by any of them on and after December 31, 1993. And he did so
automatically, without informing any of them that their work
was now being performed by a new or separate business enter-
prise. This charade of claiming independence in this proceed-
ing but in fact trading on AC Electric’s name, good will, ex-
perience and contacts carried over, of course, in the manner in
which the two entities’ telephone and business addresses were
retained, and in the way in which the “new” Company name
retained AC Electric as a division of Boyce Enterprises in let-
tering on the vans and retained AC Electric as the name under
which Boyce Enterprises did business on its checks and on its
letterhead.
During his cross-examination by ECM counsel, Roberts ex-
plained that Ace Electric had a substantially larger operation
than either AC or Boyce, and had a minuscule portion of its
business in residential electrical work, compared with 30 per-
cent for AC and 15 to 20 percent for Boyce.
Roberts also acknowledged that Martin was running Ace on
the side while employed full time by Conway. There was also
a period of some 6 months, from late March to September 1996
during which Boyce and Ace were competitors in the electrical
subcontracting field.
Robert also offered some testimony relating problems he had
with the Union which led him to attempt to cancel his letter of
assent in early December 1992. However, by virtue of the liti-
gation which Roberts brought and which ended on appeal with
a final resolution binding him to the union agreement and its
successors, I find that Roberts is collaterally estopped from
contesting in this proceeding his obligation to comply with its
terms insofar as they establish the basis for the make-whole
remedy against him.
Roberts also repeated earlier testimony denying that he told
Martin about the pending unfair labor practice charges or pro-
ceeding prior to his becoming employed by Ace. He was em-
barrassed by the proceedings and didn’t believe it was any of
Martin’s business. Neither did Martin inquire of any potential
liabilities of AC or Boyce or of any personal liabilities of Rob-
erts or ask Roberts for an indemnification agreement.
Roberts also claimed that his wife started Boyce as a woman
owned business enterprise which would enable it to obtain an
advantage in obtaining Federal contracts from the local air
force base in Plattsburgh. Later testimony established that
Karen Roberts never sought such business on behalf of Boyce.
Roberts then denied that Boyce was started in order to avoid
any potential liability for unfair labor practices or under a col-
lective-bargaining agreement with the Union. It will be re-
called that the original charge had been filed on November 12,
1993. While it was withdrawn in mid-December 1993 (and
later refiled in April 1994), Roberts surely had no reason to
believe, absent any settlement of the Union’s outstanding
grievances against him at the time, that he was in a position to
resolve his union problems when he ceased operations and his
wife took over the business operation. Indeed, Roberts had
been summoned to a union-employer grievance committee
meeting just days before he ceased operations and he surely
learned from his wife, who did attend in his absence, the likely
result that the committee would find him in breach of the con-
tract terms and liable for correcting them.
At this December 29, 1993 meeting, neither the Union nor
NECA were informed of Roberts’ intention of going out of
business 2 days later, either by way of a notice from Roberts
himself or a statement from his wife who was about to succeed
to the business with her own corporation 4 days later.
As an employee of Ace Electric, Roberts is paid a salary of
$725 weekly for 40 hours but receives pay for overtime hours
worked at one fortieth of his salary. As a salaried employee of
Boyce, Roberts was paid between $300 and $400 weekly.
Regarding AC Electric’s customers, of a list of 90 which
Roberts provided for the year 1993, 20 later became customers
of Ace Electric. Among these 90 customers, Roberts identified
17 who were his largest. Four of them, Hills, Price Chopper,
Schonbek, and Conroy and Conroy, also became customers of
Ace. These four comprised 25 to 30 percent of AC’s business.
As to one large AC customer on the list of 17, Duquette Broth-
ers Construction, a general contractor and direct competitor of
AC ELECTRIC 997
Conroy and Conroy, Martin has refrained from bidding on any
of its job since he is unwilling to help Duquette at the expense
of his regular employer, Conroy.
Karen Roberts explained that given Tom Roberts’ unavail-
ability, she attended the December 29, 1993 joint labor man-
agement committee meeting at the request of her husband’s
attorney. She related that their was no particular reason for
Boyce’s formation in late 1993. She placed the new marking
on the four vehicles she took over. Under “AC Electric” she
now added “A Division of Boyce Enterprises.” Her husband
gave her the equipment, hand tools, circuit breakers, ladders,
which were already stored in the vehicles. She purchased new
registrations for the vehicles in her own name and placed them
under a separate business insurance policy.
After her husband left the business in May 1996, to work for
Conroy, Eric Harvey bid the new work for Boyce. After finish-
ing up for Boyce on August 23, Harvey immediately became
employed by Ace on August 26.
Both Russ Lester and Eric Harvey told Karen Roberts they
needed health benefits when they left Boyce’s employ for Ace
Electric.
When Boyce ceased operations in August 1996, one job on
which Boyce electricians had already performed installation of
temporary and permanent electric service, as a subcontractor of
Conroy, for a company called Batatt located in the Plattsburgh
industrial park, was completed by Ace electricians. Boyce also
supplied to Ace and billed Ace for the time of two electricians,
Lester and Harvey, for a couple of jobs performed by Ace be-
fore Boyce ceased operations.
Karen Roberts dealt with Martin, when, while Boyce was
still in business, he called to solicit Boyce for a Conroy job and,
later when she supplied electricians for Ace.
After Tom Roberts left Boyce in May 1996, he continued to
help Karen Roberts at night with Boyce’s paperwork without
being paid. By the time Harvey left Boyce in August 1996,
Karen Roberts decided to go out of business, as the work had
gotten slow.
Inquiries about commercial electrical work that Boyce or AC
Electric has received since August 1996, Karen Roberts refers
to Ace.
Ed Martin testified that he is the president and sole share-
holder of ECM which incorporated on March 26, 1996. There
are no other officers. At Conroy, Martin progressed over time
from bookkeeper/accountant to becoming an estimator, reading
blueprints and figuring job costs. Until sometime in 1995, he
was Conroy’s sole estimator, with help from Will Conroy, as
well as accountant and office manager. While Conroy’s main
estimator, up until mid-1996, he was in charge of letting out
subcontracting work.
Up until December 31, 1993, AC Electric performed electri-
cal subcontracting work for Conroy on a fairly regular basis,
performing between 70 and 80 percent of such work. One day
a week on average, Martin had regular business dealings with
Roberts, on estimating jobs and the like. Since Boyce began
operating in early January 1994, Conroy’s use of Boyce was
similar to its earlier use of AC and Martin’s dealings with Tom
Roberts remained the same as it had previously when he was
operating his own business as AC Electric, as did his dealings
with Karen Roberts.
In starting ECM, Martin was looking to get supplemental in-
come. In late January, early February 1996, while Roberts was
working for Conway, Martin approached Roberts about form-
ing a new electrical subcontracting company. Although Rob-
erts’ reaction at first wasn’t very positive, over time as his
hours started to be reduced by late February, the idea took hold
with him. While Roberts’ rejected a partnership, Martin next
proposed a package, which provided for Roberts financially and
limited his responsibilities to those he enjoyed doing. Accord-
ing to Martin, Roberts was disillusioned with being in business
for himself and appeared to be unhappy with a lot of things.
Roberts did agree to Martin’s proposal, the corporation was
formed and began operating.
Tom Roberts pretty much runs the operation outside of the
administration level. He manages the staff (of electricians), he
insures they’re at the jobsites to which they are assigned, he
schedules their work and insures it is done, works a lot with the
clients, takes the calls that come in through the answering ser-
vice Ace is now using and responds to them, including allocat-
ing men to take care of a particular problem if it’s something
that can be handled quickly.
Martin sees Roberts at least once a day at Conroy, sometimes
twice. They maintain regular contact during the day through
use of Conroy’s office radio and Martin also has a cellular
phone for this purpose. A lot of the contact has to do with Con-
roy matters, i.e., jobs being performed for Conroy by Ace.
ECM does roughly 80 percent of its business with Conroy,
representing $300,000 of the roughly $420,000 gross volume of
business it has done in the year since it began operating.
ECM’s business is primarily commercial in nature.
Neither Tom nor Karen Roberts had told him about a prior
unfair labor practice proceeding or litigation with any labor
organization. He had no such knowledge when ECM was
formed.
Martin was confronted by counsel for the General Counsel
with a commerce questionnaire signed on April 12, 1994, by a
Michelle Randolph, A Conroy secretary, submitted to Conroy
on April 12, 1994, by the Board’s Regional Office, seeking to
determine whether AC Electric, which furnished services to
Conroy recently, met the Board’s jurisdictional standards on its
investigation of the underling charge in this proceeding. A
covering letter from the Region referred to the charge filed
against AC Electric. Ed Martin’s name and title as manager
was typed in as representative of Conroy best qualified to give
further information concerning the operations of its business.
Conroy’s gross volume of purchases of materials or services
directly from outside the State was noted, by an x mark placed
in a box relating to its interstate purchases, as exceeding
$50,000 during the past year.
Martin could not recall Randolph discussing or asking him in
April 1994, for this information. Neither could he recall
Randolph informing him that she had received a letter and
questionnaire from the Board. Martin agreed Randolph would
not normally have had access to Conroy’s interstate business
transactions, and would have had to obtain such information
from himself or Will Conroy.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 998
Martin did recall Tom Roberts telling him in the latter part of
1995 or early 1996 that he had to go to court about something.
Martin was aware Roberts asked for the day to appear in New
York City at court somewhere but he, Martin could not be more
specific about it, as he didn’t inquire a whole lot more about it.
Martin has no idea whether AC Electric was union or non-
union, he and Roberts never discussed the matter. Conroy is a
nonunion contractor, so is ECM, but he never discussed this
subject with Roberts.
Martin could not deny that in selecting Ace Electric as the
name under which ECM Enterprises, Inc. chose to do business
and advertise itself to the public, he was influenced by, and
deemed favorable, the name’s close connection to a business,
AC Electric, which had been established for several years.
Besides the three vehicles he purchased for fair market value
from Boyce, Martin also purchased more than $10,000 worth of
equipment from Boyce, including a power puller, a generator, a
pipe bender, hot box, band saw, hole punch, several ladders, a
threader, and small hand tools. In determining what tools and
equipment to purchase and their price, Martin relied on discus-
sions with Tom Roberts. These items of equipment are re-
flected in four separate bills of sale dated between April 11 and
July 12, 1996, which Karen Roberts signed as president of
Boyce, but on letterheads which read AC Electric and con-
tained the Roberts’ residence address and AC’s and Boyce’s
business address, 248 Allen Road, Plattsburgh.
Besides the 80 percent of its business which Ace Electric
does with Conroy, a number of other major customers, among
them Deb Stores at the Pyramid Mall which represented 12 or
13 percent of its total income for the first year of its operation,
Burger King, Myers, and Schonbek, had each done business
with Tom Roberts, as manager or estimator for AC Electric or
Boyce.
The Debs job alone, had a gross volume of $200,000, and
Tom Roberts’ past relationship with the store had a great deal
to do with the award of the electrical subcontract to Ace. Con-
roy was the general contractor at the site as well.
Furthermore, certain work previously performed for Conroy
by AC Electric or Boyce was now being referred to Ace Elec-
tric.
In describing the full extent of Roberts’ responsibilities and
duties for ECM, which covered just about everything outside of
the office, Martin noted that he had a permanent job with Con-
roy and wanted to keep it. His weekly hours for ECM total 15,
his hours for Conroy total 45. Roberts’ duties extended to hir-
ing, firing and disciplinary matters, but Roberts discussed these
decisions with him. Ace started operations with four electri-
cians, including Tom Roberts, each of whom had been previ-
ously employed by Boyce, and three of whom came to Ace
without any time gap, except for Roberts who worked by Con-
roy for about a year from March 1995 to March 1996; only
Randy Trudeau, who had been laid off by Boyce on January 26,
1996, and was thereafter collecting unemployment benefits, has
any hiatus before becoming employed Ace on April 5, 1996. A
fifth electrician Russ Lester, also came directly from Boyce in
May 1996. At the time of the hearing, Ace employed seven
electricians, excluding Roberts, including three who had not
previously worked for Boyce.
As described by Martin, Tom Roberts recruited Trudeau,
John Myers, and James Boyce for Ace in late March and early
April 1996. At its beginning, Ace had a separate business tele-
phone number set up at Tom Roberts’ residence, with an an-
swering service. More recently, since July 1996, Ace has its
own answering service and two-way radio communication.
When additional manpower was needed on certain early jobs,
Martin arranged with Karen Roberts for Boyce to supply them.
The two contract electrician supplied this way, Russ Lester and
Eric Harvey, later became Ace electricians, joining the original
four Boyce employees on ECM’s payroll. Martin had Roberts
approach Harvey, a good electrician, to offer him health bene-
fits to induce him to join ECM when he had finished up for
Boyce in late August 1996.
At Christmas 1996, Tom Roberts was paid a bonus of $1500.
All the other electricians, but one who started in October 1996,
received 1 week’s pay. On pay raises, Martin makes the final
decision but asks for and respects Tom Roberts’ opinion. The
range of hourly pay for Ace’s electricians ran from $9 to
$18.12.
As to the Battat electrical job, which Boyce had started but
did not complete as a subcontractor for Conroy before it ceased
operating in August 1996, Will Conroy permitted Ace to finish
it, and Ace billed and was paid $105,000 of the total price for
the job of $128,000.
Martin was the sole investor for Ace’s startup costs. Ace has
its own logo, a separate line of credit and separate IRS identifi-
cation number. ECM pays health insurance premiums for three
of its employees and their dependents, at a cost of roughly $745
per month.
During his cross-examination by ECM’s counsel, Martin ac-
knowledges he had no formal training in labor relations, Cana-
dian born, Martin had experience in accounting, office manag-
ing as a controller, and in finance and insurance. None of his
background included dealing with unions. And, although Con-
roy had subcontracted on occasion to a union subcontractor
Martin himself was not involved. He was not previously aware
of the NLRB, had never read a union contract nor been a union
member.
Martin confirmed the close and extensive subcontracting re-
lationship from 1991 to 1993 between Conroy and AC Electric.
Martin explained that he and his family have taken a vaca-
tion during the school spring break for the last 4 or 5 years at
Myrtle Beach, South Carolina. This usually occurs in early or
mid-April. Yet, Martin could not testify that he was at Myrtle
Beach on April 12, 1994. Neither was he able to produce any
documents showing his presence there on that date. He could
just not recall seeing or receiving the Regional Office com-
merce questionnaire.
The only mention Tom Roberts ever made to him about a un-
ion was toward the end of 1995 or the beginning of 1996 when
he disclosed that he had a court appearance in New York City,
but he had no other discussions with Roberts about any matter
he may have had with the Union. Martin was vague and
somewhat imprecise in describing his conversation with Rob-
erts at the time. Martin did say he learned that Roberts’ en-
gagement involved a union matter when he explained to Will
Conroy his need for the day off. But Martin sought to excuse
AC ELECTRIC 999
his lack of recall as stemming from the turmoil in his life at the
time since he and his wife had separated in mid-December
1995, he was having problems at Conway with a new employee
and problems with another sideline business investment in a
restaurant.
When Martin offered Tom Roberts a $125 increase in his
salary, above his $600 a week at Conway, and health benefits
for himself and his family, Roberts’ initial reluctance to be-
come involved in operating a business was overcome, particu-
larly since Martin himself would handle the accounting, pay-
roll, and related matters.
While Roberts had significant input on personnel matters and
his recommendations were generally followed, on one occasion
when Roberts would have given the employees another chance
Martin asked Randy Truduea to let go an electrician whose
attitude was questionable.
With respect to Ace Electric’s customers, documents pre-
pared by Martin and received in evidence, show that Conroy is
Ace’s largest customer by far, accounting for a very high per-
centage of its total business income for the 10 months between
April 11, 1996, and February 22, 1997. The second largest
customer is Deb Stores on which project Conroy was and is the
general contractor. Aside from Conroy, other larger common
customers with AC Electric from 1993, are A. Schonbeck
Company and Hills Department Store, and another customer,
Battat, Inc., for whom both Boyce and Ace Electric performed
electrical service on the same job at different periods of time.
Martin claimed he was unaware of any unfair labor practice
charges filed against Tom Roberts or AC Electric until he re-
ceived a letter from Board Attorney Ellison dated November 4,
1996, informing him of the procedural history in the case, en-
closing a copy of the original compliance specification, the
Union’s allegation of Ace Electric’s status as Boyce’s alter ego,
and advising he was investigating the allegations. Martin’s
receipt of the letter was also the first time he because aware of
Randy Bashaw and Raymond Rothamel as discriminatees in the
case.
The copy of the letter received in evidence contains the
handwritten word “successor” in the margin next to the phase
in the letter, “alter ego of Boyce,” which Martin wrote, perhaps
after a conversation with Ellison.
Martin further testified that he never received any notice
from the Union that it was making claims against Ace or seek-
ing recognition from Ace.
During an initial series of questions from ECM counsel,
Martin explained that after receiving the Board letter, he called
Roberts, had a brief conversation with him, and then tried to get
together information for presentation to Board Attorney Ellison
on his inquiry. At no time did Martin express surprise or anger
that Roberts may have mislead him, appropriate responses for
one claiming the status of an innocent third party, unaware of
the multiple court orders outstanding against the operations
manager of his business.
While Martin informally denied knowledge of labor relations
and the role of the National Labor Relations Board in regulat-
ing conduct in the area of labor relations, he was aware that as a
nonunion electrical subcontractor he had an advantage in un-
derbidding union firms for electrical jobs. Further, in his 9
years’ association with Conroy, Martin was unable to recall any
specific instance in which Conroy subcontracted electrical work
to a unionized electrical contractor. He also agreed it was a
strong possibility that on one occasion, although a union sub-
contractor, S and L Electric, was low bidder by $400 on a par-
ticular job for Conroy, nonetheless the work was awarded to
AC Electric or Boyce. Martin insisted that the past relationship
and experience with AC and Boyce outweighed any minor
saving in cost.
James Gill, who worked for both AC Electric and then
Boyce continually from March 1993 to July 19, 1995, testified,
contrary to Roberts, that Conroy supplied probably 60 percent
of AC Electric’s electrical work. Recall that Roberts testified
that he and Gill supervised the projects and Gill confirmed this.
Gill explained that overtime hours were paid partly in cash.
When paid for in cash, the payment was at straight time after 40
hours worked in the week.
When Boyce started operating, Tom Roberts simply re-
moved the registration from the van Gill was using on a job and
returned two hours later with a new registration in the name of
his wife, Karen Roberts. Everything in terms of work, assign-
ments, his continuing to report to Tom Roberts, Roberts’ job
functions, and paperwork continued the same as before, except
the name “Boyce Enterprise” was added to the top of the AC
Electric letterhead on all ongoing jobs. Karen Roberts never
supervised Gill on the job and only visited small jobsites once
in a while. When a few customers inquired about the change,
Gill expressed ignorance. At some point in time, the pay
checks, which had continued to bear the AC Electric name,
were changed to Boyce. Either Karen Roberts or Tom Roberts
signed Karen’s name on these checks. Tom Roberts also
signed change orders for Boyce jobs. After the Boyce Enter-
prise name was added on the vans, Gill continued to drive the
same van, receiving the same rate of pay, servicing the same
customers in the same type of work.
On out-of-town jobs, Gill used the same credit card, Tom’s
personal one, as he had used before Boyce started.
Gill was laid off from his job with Boyce on July 21, 1995,
by Tom Roberts, and that evening received a registered notice
of termination signed by Karen Roberts because of allegedly
stealing outside lights while on a job at the Hoyt Cinema in
Plattsburgh. Gill had been offered two of four lights by the
contractor from Maine who was removing them and who him-
self took two for himself. At the time, Gill later learned that
Roberts was working for Conroy while still performing work
for Boyce on all of its jobs.
At one point in the period after adding the name “Boyce En-
terprises” to the vans, while having some beers at his residence,
Tom Roberts joked and said, “Well, if anything ever happened,
it’d be no problem to make that ‘Ace Electric,’ all I have to do
is add an E to it.”
During the period of Boyce’s operation and until his termina-
tion, Conroy’s share of Boyce’s business grew to even more
than 60 percent. Boyce did all of Conroy’s buildings. This is
contrary to Tom Roberts’ testimony.
Under cross-examination, Gill denied admitting stealing light
fixtures from Hoyts Cinema. He excluded the period of his
employment by AC and Boyce from, an updated personal re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1000
sume he prepared. It is apparent, and Gill confirmed, that he
omitted any reference to AC or Boyce on his resume so as to
avoid any negative references to a prospective employer. A
New York State Department of Labor notice of determination
to claimant mailed August 24, 1995, finding Gill ineligible for
unemployment insurance benefits for a limited period of time
on the basis of his having lost his employment through miscon-
duct in connection with his last employment, was received in
evidence. Gill had filed for unemployment benefits claiming a
layoff. This notice was based on information supplied the de-
partment of labor by Boyce. Gill did not contest it or request a
hearing because he found work. The document does not consti-
tute a finding on which I can place any reliance, particularly in
the absence of a hearing process including testimony taken
under oath.
Respondent’s Defense to Raymond Rothamel’s
Backpay Claim
Raymond Rothamel’s examination by ECM counsel dis-
closed that for a period of time from June 1994 through De-
cember 1996, Rothamel had operated an electrical contracting
business under the name “Watts Up.” Starting in July 1994,
and continuing into May 1996, Rothamel’s personal monthly
calendar showed that during those months he devoted a certain
limited number of days to performing services in his own elec-
trical contracting business. During those days, he agreed, he
was not out pursuing other work. Both his 1994 and 1995 Fed-
eral tax returns show net losses derived from the operation of
his business, of $1959 in 1994, and $1514 in 1995. Rothamel
did not pay himself a salary from the business in those years.
In starting the business, Rothamel expected to earn money
from the endeavor, but those expectations were not fulfilled. In
1994 Rothamel’s gross receipts totaled $4562. In 1995 they
were less than half that amount, $2078. Rothamel explained he
did limited advertising in the beginning and was basically wait-
ing for customers to call him. By 1995 he was securing fewer
jobs. While Rothamel’s quarterly earnings record shows in-
terim earnings in various quarters derived from employment
which reduced his backpay claim, Rothamel’s self employment
resulted in no reduction of gross backpay in any quarter.
Following the close of hearing, by direction of the under-
signed, the counsel for the General Counsel advised all parties
by letter why there was no provision in the amended specifica-
tion for the second, third, and fourth calendar quarters in 1994.
Counsel for the General Counsel explained that during those
three quarters AC Electric’s only employees were its core
group consisting of Dufrane, Gill, Lester, and Myers, each of
whom had been employed long before the two discriminatees
were denied employment. (One other employee; whose inclu-
sion on the time line shows employment in 1994, actually
worked instead in 1995 based on Boyce payroll records.) Thus,
the hours worked by these four were excluded from computa-
tion of the average hours worked by employees of AC and
Boyce since they would not have been replaced by the dis-
criminates. This letter dated March 28, 1997, shall be included
in the record as Administrative Law Judge, Exhibit 1.
Credibility Resolutions
Based upon my observation of Thomas Roberts as a witness
and in light of the numerous conflicts uncovered between his
testimony in this proceeding and the underlying proceeding I
am persuaded that his testimony that he never informed Martin
of his unfair Labor practices and union contract litigation are
not credible. I also discredit his testimony denying his status as
manager of Boyce’s operations, even after he became employed
by Conroy, and any testimony which may have sought to
minimize his direction and control of ECM’s electrical subcon-
tracting operations as full operations manager. I credit James
Gill’s testimony including those portions of it which contradict
Roberts’ testimony, particularly Roberts’ layoff of Gill from
employment with Boyce in July 1995. In this connection, I am
not persuaded that Gill’s discharge and its circumstances less-
ens the credibility of Gill’s enumeration of all of the factual
elements which show AC Electric’s disguised continuance of
its business enterprise through the guise of Boyce, including
Thomas Roberts’ key management and supervisory role in the
continued business enterprise. Particularly telling is Gill’s
attributing comments to Tom Roberts showing how AC Elec-
tric, which continued as a business name throughout the time
that Boyce was operative, could easily become Ace Electric as,
in fact, it became, once Martin entered the picture.
Martin’s denials that he ever learned of Roberts’ unfair labor
practices or that Roberts’ was a party to a binding collective-
bargaining agreement are also not credited. Martin’s evident
lack of ease and awkwardness when pressed on the record
about his becoming aware of Roberts’ leave to attend the argu-
ment in the court of appeals shield an unwillingness to disclose
the full extent of the information he learned of Roberts’ legal
trouble at the time. It is also evident that a man of Martin’s
evident sophistication in business affairs, and understanding of
Conway’s (and Ace’s) advantages in operating nonunion,
would not have entered a new business relationship with Rob-
erts unaware of any outstanding debts or potential obligations
arising from Roberts’ past business dealings, both as AC Elec-
tric and Boyce. I thus deny his claim, that he lacked any
knowledge of Roberts’ Board or union litigation. I further find
that, apart from the foregoing, Martin learned of Tom Roberts’
status as a charged party in the unfair labor proceeding bearing
this case number when his office received the Region’s com-
merce questionnaire. Inasmuch as Martin’s own name was
typed on the form by Conroy personnel as the one best quali-
fied to provide further information, his secretary signed the
response for him, and only he or Will Conroy would have the
information to respond, I conclude that ECM’s failure to call
either Will Conroy or Michelle Randolph to deny Martin’s
involvement, permits me to draw, and I do draw, the adverse
inference that neither witness, with both of whom Martin was
still associated in employment, would support his claim of lack
of knowledge of the questionnaire. See International Auto-
mated Machines, 285 NLRB 1122 (1987). Thus, I conclude
Martin did have such knowledge, particularly where Martin did
not deny he received the document, testifying only that he
could not recall doing so, and he could not swear he was away
on vacation during the week it was received and answered.
AC ELECTRIC 1001
Analysis and Conclusions
The first significant issue is whether or not Boyce is AC’s al-
ter ego. The Board has set forth several test’s to determine
whether one employer is in fact the alter ego of another. In
order to find alter ego status, the two entities must have sub-
stantially identical management, business purpose, operation,
equipment, customers, supervision and ownership. Advance
Electric, 268 NLRB 1001, 1002 (1984). In addition, the Board
ascertains whether the second Company’s creation was legiti-
mate or merely a disguised continuance of the former employer
so as to evade responsibility under the Act. Southport Petro-
leum Co. v. NLRB, 315 U.S. 100, 106 (1942).
Boyce is clearly AC’s alter ego. Both Companies engaged in
electrical contracting work, both operated their business from
the same location with the same phone number, and the same
equipment. The transfer of rights in the equipment between AC
and Boyce show less than arm’s-length transactions, since the
record reveals that the canceled checks from Boyce to AC for
payment of such equipment, were drawn on a bank account in
the name of “Boyce Enterprises, Incorporated, d/b/a AC Elec-
tric,” the vans were sold to Boyce for sums well below fair
market value, and Boyce never paid AC Electric for its start up
tools and equipment with a worth of some thousands of dollars
at least. Roberts himself claimed to have received $17,000 for
them, but could not support that assertion, finally abandoning it
together. And Martin paid Boyce over $10,000 for Boyce’s
tools in the spring and summer of 1996 which likely included
some, if not all, of the same tools Boyce originally inherited
from AC.
Furthermore, the record shows that Boyce hired all of the
employee’s working for AC at the time AC ceased operations.
In addition, AC referred all its customers to Boyce. In fact,
Boyce finished several jobs that AC had started. Moreover,
Roberts’ position at Boyce involved the same work he did at
AC. He also continued to supervise the same employee’s at
Boyce that he supervised at AC. As far as the employee’s and
the customer’s were concerned, they did business with AC one
day and continued doing the same business the next day with
the same people operating under a different name. Even though
Roberts left his position at Boyce to work with Conroy & Con-
roy he continued to work with Boyce electricians.
The facts regarding ownership also call for a finding of alter
ego status. Even though Thomas Roberts was the sole owner of
AC and Karen Roberts is the sole shareholder of Boyce, ac-
cording to the Board, the ownership is substantially identical.
In Kenmore Contracting Co., 289 NLRB 336 (1988), the Board
found common ownership in a company owned by two brothers
and a former company owned by their parents. The Board
stated that even though “the same individuals are not shown to
be owners of each corporation, the corporations are solely
owned by the members of the same family,” and therefore suf-
ficiently related to establish substantially identical ownership.
Id. at 337; see also McDonald’s Ready Mix Concrete, 246
NLRB 152, 154 (1979), where the Board held that the distinc-
tion in the ownership of two companies loses significance when
there is a close familial relationship such as father and son. In
the instant case, my conclusion that ownership of AC and
Boyce is substantially identical is enhanced by other factors
strongly supporting actual rather than technical ownership,
including those noted above showing the stark absence of
arm’s-length dealings.
While the existence of a close family relationship will not
always establish the common ownership element in an inquiry,
alter ego status can, nonetheless, be found even absent element
of common ownership. In Blake Construction Co., 245 NLRB
630, 634 (1979), the Board stated that not all of the factors have
to be satisfied and that identical ownership is not crucial for a
finding of alter ego status. So, assuming arguendo, that there is
a lack of common ownership in the relationship between AC
and Boyce, the Board can still find alter ego status here as I
have done.
Whether the creation of Boyce served a legitimate purpose or
was just a means of continuing AC’s existence under a disguise
is also indicative of an alter ego relationship. While Karen
claims that she started Boyce in order to receive favorable con-
sideration for Federal contracts, she never bid on a federal con-
tract. Karen began her company by taking over the jobs, cus-
tomers and employee’s that AC had at the time it ceased opera-
tions. Furthermore, the fact that Boyce and AC held them-
selves out to be one and the same demonstrates an intention to
evade responsibility under the act by disguising AC as Boyce.
Recall that a NYNEX phone directory listed an advertisement
for AC Electric as a division of Boyce Enterprises, Inc. The
date on the listing reflects a period of time after AC had ceased
its operations. Finally, the timing of AC’s cessation of busi-
ness and Boyce’s commencement, without any other explana-
tion for its timing and immediately following AC’s appearance
before the joint labor-management committee and Roberts
learning that his contract obligations would be confirmed and
enforced, and without informing the Union of this transfer to an
allegedly independent entity, buttresses the conclusion that
Boyce was created to avoid liablility under the Act and in its
obligations to the Union. Although the Union’s unfair labor
practice charge of November 12, 1993, had been withdrawn by
December 14, 1993, as earlier noted, based on Roberts’ failure
to resolve his differences with the Union, he was aware that the
Union’s claims would continue to be strongly asserted.
As AC’s alter ego, Boyce is bound by the bargaining agree-
ment and therefore derivatively liable for remedying AC’s un-
fair labor practices. See Custom Mfg. Co., 259 NLRB 614
(1981); George C. Shearer, Exhibitors Delivery Service, 262
NLRB 622 (1982). The Board has consistently held that alter
egos are liable for remedying the unfair labor practices of the
former employer to the same extent that the former employer is
liable. See Red Carriers, Inc., 301 NLRB 1113, 1115 (1991).
(“If alter ego status is found to exist the labor obligations of the
original employer will be deemed to be shared by its alter ego,
and both will be held liable, as a single employer, for any viola-
tions of the Act.”) See also Herbert Industrial Insulation Corp.,
319 NLRB 510 (1995), enfd. by summary order No. 97–4143,
(2d Cir. 1998).
Apart from its status as AC’s alter ego the evidence is clear
that Boyce is a single employer with, and successor to AC, as
alternatively alleged in this case. See, e.g,. Evans Plumbing
Co., 278 NLRB 67, 68 (1986). Furthermore, Boyce is a suc-
cessor with full knowledge of AC’s unfair labor practices, and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1002
thus liable to remedy them under Golden State Bottling Co.,
414 U.S. 168 (1973).
It is clear that as a sole proprietor of his business enterprise,
AC Electric, Thomas Roberts is personally liable for the unfalr
labor practices committed by AC as well as by Boyce, its alter
ego. Denart Coal Co., 315 NLRB 850 (1994). With respect to
Boyce, counsel for the General Counsel urges, for the first time,
in his post trial brief, that Karen Roberts should also be held
personally liable, that the circumstances are appropriate for
piercing the corporate veil, and cites case authority to support
this contention. In each of the three cases cited on page 31 of
counsel for the General Counsel’s brief, unlike the pleading
herein, the complaint or backpay specification specifically al-
leges the personal liability of corporate officers and sharehold-
ers. I am unwilling to order such relief herein. Due process
considerations forbid it. Inasmuch as Karen Roberts was not
put on notice by the pleadings, or even at trial, that a claim
would be made to hold her personally responsible here I cannot
impose such a remedy. See, e.g., Abraham & Strauss, 287
NLRB 951 (1987). Had Karen Roberts been placed on fair
notice of this claim, she might very well have retained counsel
and vigorously defended the allegation, instead of appearing
pro se as she did. In the absence of the issue’s fair or full litiga-
tion, I deny the Government’s request for this remedy.
The next issue posed is whether ECM is a successor em-
ployer to AC/Boyce. The successorship question turns on
whether, in view of the “totality of the circumstances,” there is
“substantial continuity” between the new and predecessor em-
ployer. Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 43
(1987). The Board examines whether the new company “‘ac-
quired substantial assets of its predecessor and continued, with-
out interruption or substantial change, the predecessor’s busi-
ness operations.’” Golden State Bottling Co. v. NLRB, 414
U.S. 168, 184 (1973). In particular, the Board has held the
continuity of the work force is the determinative factor. In
measuring continuity of the work force the Board inquires as to
whether the business operations remained essentially the same
after the transfer, whether the new employer is using the same
employees, the same supervisory personnel, and the same
equipment and facilities as its predecessor, Cruise Motors, Inc.,
105 NLRB 242, 247 (1953).
Applying the Board’s criteria to the instant facts, the conclu-
sion is warranted that ECM is a legal successor to AC/Boyce.
At its start up. ECM operated out of Tom Roberts’ residence
and the business address of AC and Boyce, using Roberts’ tele-
phone listing. Although this business address later changed,
ECM continued to list the same address in the NYNEX direc-
tory, 248 Allen Road, in Plattsburgh. ECM is an electical con-
tracting company, as was AC/Boyce, although it is a somewhat
larger operation and has a greater percentage of its business in
industrial work. Nonetheless, ECM, as did AC/Boyce before it,
relies to a large extent on subcontracting work supplied by
Conroy and Conroy, and a number of its major customers had
each done business with Tom Roberts, first as AC, and then as
manager/estimator for Boyce.
ECM has also hired a majority of employee’s who once
worked for AC/Boyce. Of the nine persons now employed by
ECM, six were once employees of either AC, Boyce or both.
These employee’s were hired with no substantial hiatus be-
tween employment. The longest hiatus was 2 months, for one
employee. The other employees were hired by ECM between 3
to 10 days after their employment with AC/Boyce ended. Most
significantly, Tom Roberts has continued as the key estimator
and outside jobsite supervisor and manager of ECM, just as he
was for AC/Boyce.
Furthermore, ECM purchased a substantial amount of assets
from AC/Boyce that were used for the operation of the same
type of enterprise. ECM received most of its work referrals
from Conroy & Conroy, as did AC/Boyce. In addition, ECM
finished several jobs that were started by AC/Boyce. The
changes undergone in the businesses at hand were nominal and
the conclusion is warranted that ECM is AC/Boyce’s successor.
See Harter Tomato Products Co. v. NLRB, 133 F.3d 934 (D.C.
Cir. 1998).
Before any liability can attach to a successor, however, an
inquiry must be made into the successor’s knowledge of the
unfair labor practices of its predecessor. Golden State Bottling
Co., supra. While Martin claims he knew nothing of the unfair
labor practices of AC/Boyce, the evidence and circumstances
surrounding the formation of the three companies, including my
credibility resolutions, show otherwise. Furthermore, by virtue
of the role of Thomas Roberts, in jointly planning the creation
of ECM and assuming the major functions, if not as partner
then as the operations manager just as he was for AC/Boyce,
effectively advising and making important personnel decisions
and labor estimating, running and supervising ECM’s subcon-
tracting jobs, I conclude that Roberts’ knowledge of his own
unfair labor practices while operating both AC and Boyce may
be fairly imputed to Martin and ECM. General Wood Pre-
servative Co., 288 NLRB 956, (1988). The Board in General
Wood noted that the successor discriminatively refused to hire
know union activists through its production manager who had
held the same position with the predecessor. I am satisfied that
in entering his electrical subcontracting business in pursuit of
non-union jobs, with a de facto partner, Roberts, whose skills,
experience and good will in the non-union segment of the busi-
ness, Martin was anxious to utilize, Martin must be held ac-
countable for Roberts’ past conduct in discriminatorily refusing
to employ union members. See also York Printing Co., 308
NLRB 1146, 1147 (1992); Sav-On Drugs, 300 NLRB 691, 693
(1990); and Marbro Co., 310 NLRB 1145, 1150 (1993). The
point also must be made here that once the General Counsel has
established ECM’s successorship status, the burden is on the
successor to show that it lacked knowledge of its predecessor’s
unfair labor practices. Blu-Fountain Manor, 270 NLRB 199,
210 (1984), enfd. sub nom. NLRB v. Jarm Enterprises, 785
F.2d 195 (7th Cir. 1986). I conclude that ECM has failed to
meet its burden, under all the circumstances appearing in the
record, and I may find the requisite knowledge from reasonable
inferences derived from the record as a whole, as I have done.
M & J Supply Co., 300 NLRB 444 (1990).
Under Perma Vinyl Corp., 164 NLRB 968 (1967), a succes-
sor employer charged with notice of unfair labor practices pro-
ceedings against its predecessor will be held liable for remedy-
ing the predecessor’s unlawful conduct. Id. At 969. Thus,
ECM will be obliged to offer to reinstate and to reimburse with
AC ELECTRIC 1003
backpay the two discriminatees. As the Board noted in Perma
Vinyl at 969:

The imposition of this responsibility upon even the bona fide
purchaser does not work an unfair hardship upon him. When
he substituted himself in place of the perpetrator of the unfair
labor practices, he became the beneficiary of the unremedied
unfair labor practices

Under normal conditions, involving an offending employer
and successor, they share a joint and several responsibility in
the matter of backpay. Id. at 970. However, under the special
and somewhat novel circumstances presented on this record, I
am obliged to divide the backpay period into two distinct time
frames. See Daniel Construction Co., 276 NLRB 1093 (1985).
The first, imposed solely against AC/Boyce, encompasses the
period from November 4, 1993, to August 23, 1996, by which
time both AC and Boyce had gone out of business. The sec-
ond, imposed against both AC/Boyce and ECM, jointly and
severally, commences on March 25, 1996, when ECM began
operations and continues until May 1, 1996, when the backpay
calculations in the amended specification conclude.
As to the make-whole remedy to be imposed against
AC/Boyce for the initial period, I conclude that the amended
specification makes claim for moneys which are not properly
claimable or encompassed in the make whole remedy ordered
imposed by the Board and court. I have no question about the
inclusion of the claims for payment of union contractual wage
rates for the two discriminatees as well as the reimbursement of
the Union health and Welfare, Pension, Annuity and the NEBF
funds on their behalf. These are fringe benefits which, are well
encompassed within the usual make whole remedy ordered here
for the Section 8(a)(1) and (3) violations found. Richard W.
Kaase Co., 162 NLRB 1320 (1967); Knickerbocker Plastic Co.,
104 NLRB 514 (1953), enfd. 218 F.2d 917 (9th Cir. 1955).
Both the wage rates and fringe benefit contributions accord
with the rates set forth in the union collective-bargaining
agreement and successor agreement which, I have concluded, is
binding on AC/Boyce by virtue of the final determination in the
federal litigation which it instituted and which it is collaterally
estopped from attacking in this proceeding. Furthermore, the
Board has had occasion recently to affirm an Administrative
Law Judge’s conclusion of a party’s untimely notice of termi-
nation at any time because it did not comply with the contrac-
tual notice provision, Visone Construction, 323 NLRB 471,
476 (1997). Roberts’ failure to provide timely and appropriate
notice to all parties similarly has prevented him from terminat-
ing the original contract, or from forestalling its automatic re-
newal.
I also reject ECM’s attack on the provision for payment, at
least by AC/Boyce, of the liquidated damages and interest im-
posed under the Union’s Pension, Welfare and Annuity Funds
for delinquiencies in remission of contributions required to be
made under the collective-bargaining agreements, the declara-
tion of trusts and their rules and regulations to which AC as-
sented when Roberts executed the letter of assent binding him
to the terms of the agreement between NECA and the Union’s
predecessor. Roberts cannot claim he lacked notice of this
provision of the contract (art. IX, sec. 9.09) and just as the fund
contributions are deemed part of a make whole remedy, so too,
the provisions which are designed to make whole the funds
themselves for delinquent or nonpaynment of contributions on
behalf of discriminatees have the same legitimate purpose.
However, neither the IBEW apprenticeship fund contribu-
tions nor the IBEW Local 910 working dues/assessments, much
less the quarterly dues, claimed in the specification, have any
reasonable nexus with a make-whole remedy for discriminatees
arising under Section 8(a)(1) and (3) of the Act. Neither the
apprenticeship fund contributions nor the dues payable to the
Union provide a benefit to the two employees, the loss of which
they may have suffered because of the discriminatory refusal
and failure to employ them. Neither did either of them execute
the authorization for deduction of working dues from their pay
provided in the contract. Both types of claims are germaine
and may be recoverable under a refusal-to-bargain finding un-
der Section 8(a)(5) of the Act. But there is no such allegation
or legal conclusion in the underlying proceeding, which in-
volved only a discriminatory refusal to hire in violation of Sec-
tion 8(a)(1) and (3). Accordingly, I will exclude from the make
whole remedy the contributions sought for the Apprenticeship
Fund, as well as the working dues and the quarterly dues alleg-
edly owed to the Union on behalf of Bashaw and Rothamel.
As to the formulas utilized in the amended specification to
establish gross backpay, as noted earlier, neither Tom Roberts
nor Boyce, by Karen Roberts, disputed them. Thus, the calcu-
lations stand, and as they appear to be reasonably designed to
produce as close approximations as possible to what the two
discriminatees would have earned had they not been discrimi-
natorily denied employment, I will approve them. J/B Indus-
tries, 245 NLRB 538, 541–542 (1979,) and cases cited therein,
including NLRB v. Brown & Root, Inc., 311 F.2d 447, 452
(1963).
As to the questions related to interim earnings, the only issue
that was raised at trial by ECM, and urged as well in its brief,
pertained to Rothamel’s spending certain days during the back-
pay period in his own contracting business to the exclusion of
seeking outside employment. There is no evidence that
Rothamel did not intend his business to turn a profit and pro-
vide him with some net income, and he did show earnings on
his tax returns, albeit his costs each year exceeded his gross
receipts. As a discriminatee is not held to the highest degree of
diligence in seeking interim employment, and need only make
reasonable efforts to find work, and as any uncertainty in the
evidence is resolved against respondents as wrongdoers, I will
not exclude any of the days Rothamel spent engaged in his
personal contracting business from the calculations of gross
backpay. La Favorita, Inc., 313 NLRB 902, 903 (1994), enfd.
48 F.3d 1232 (10th Cir. 1995); Hansen Bros. Enterprises, 313
NLRB 599, 608 (1993); Regional Import & Export Trading
Co., 318 NLRB 816, 820 (1995). This conclusion is apart from
the one I reach that ECM, by failing to challenge the gross
backpay calculations for Rothamel contained in the amended
specification as unreasonable, or to propose an alternative, as it
is required to do in its answer by Board Rule 102.56(b), if it
wishes to litigate Rothamel’s failure to seek interim employ-
ment at any time, is foreclosed from disputing the gross back-
pay formula or calculations as applied to Rothamel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1004
Turning now to the joint and several liability of AC/Boyce
and ECM running from March 25 to May 1, 1996, contrary to
the allegations appearing in the amended specification, I am
unwilling to impose any contractually based obligations on
these parties. While I have concluded that ECM is AC/Boyce’s
successor under Golden State Bottling Co., supra, it has no
obligation to comply with, or to enforce the 8(f) agreement to
which AC and Boyce were subject. Neither does AC/Boyce,
following ECM’s succession to the business, Daniel Construc-
tion Co., supra. The underlying decision did not impose a bar-
gainng obligation on AC; it only required AC to make whole
the discriminatees. In doing so, it would be required to pay
them backpay in accordance with the contract which the record
showed it had adopted as a successor employer under Golden
State. ECM has no such obligation. It did not adopt the union
agrement, and it is not subject to remedying any breached bar-
gaining obligations which were not imposed against its pred-
cessor. Particularly given the fact that the agreement to which
AC was subject was an 8(f) prehire agreement which, while
binding for the entire term of the contract (and beyond, against
AC/Boyce because of Roberts’ failure to provide timely notice
of termination), requires for conversion to a full 9(a) status, a
Board certification or voluntary recognition based upon a clear
showing of majority support, Deklewa, 282 NLRB at 1385 fn.
41, 1387 fn. 53, there is even less reason to impose its terms for
the purpose of measuring the two discriminatees’ backpay,
upon ECM as a Golden State successor. Even if it had an obli-
gation arising under Section 8(a)(5), that obligation would re-
quire it normally to bargain in good faith with the Union se-
lected by the employees of its predecessor, under NLRB v.
Burns Security Services, 406 U.S. 272 (1972), but no such obli-
gation was imposed against its predecesssor below.
Accordingly, I will require AC/Boyce and ECM, jointly and
severally, to make whole the two discriminatees by paying to
them the wages and benefits which ECM provided to its jour-
neymen electricians during the backpay period. Inasmuch as
those figures have not been calculated by the Regional Office
of the Board, nor has the Region computed the quarterly totals,
for the first and second quarters of 1996, I will recommend a
remand of this portion of the proceeding to the Regional Re-
gional Director for the necessary computations. See, e.g.,
Teamsters Local 469 (Coastal Tank Lines) 323 NLRB 210
(1997).
[Recommended Order omitted from publication.]